I respectfully dissent in part. We recently considered the question of whether attorney fees for administrative proceedings could be awarded under Code of Civil Procedure section 1021.5 in Beach Colony II. v. California Coastal Com. (1985) 166 Cal.App.3d 106, 115. Although we based the decision that the developer of Beach Colony II was not entitled to fees on the ground it had not shown its financial burden was out of proportion to its individual stake, we did analyze the developer’s contention that Code of Civil Procedure section 1021.5 provided for fees in the administrative proceeding as follows: “Section 1021.5 states an award of attorneys fees *1473is appropriate if specific criteria is met and one party is successful ‘in any action . . . .’ Colony II reads section 1021.5 as including administrative proceedings. ‘An “action” however, is merely a form of judicial remedy sought to protect a right or redress a wrong. [Citations.]’ (Serrano v. Unruh (1982) 32 Cal.3d 621, 636 . . . (Serrano IV), italics added.) The Supreme Court in Serrano IV defines judicial remedy as one ‘ “administered by the courts of justice, or by judicial officers empowered for that purpose ....’” (Id., at p. 636, fn. 23.) Thus, the holding of Serrano IV is that an administrative agency may not award a successful petitioner attorneys fees under a private attorney general theory for prevailing in nonjudicial (i.e., legislative) proceedings.
“In contrast with section 1021.5, section 1028.5’s relevant language allows: ‘expenses incurred in administrative proceedings . . . .’ (Italics added.) The absence of any reference to administrative proceedings in section 1021.5 suggests, at least, the section was not meant to apply to nonjudicial aspects of an administrative proceeding. To support its argument, Colony II relies primarily on New York Gaslight Club, Inc. v. Carey (1980) 447 U.S. 54 ... . That case is distinguishable because it relies on the language of section 706(k) of the Civil Rights Act of 1964, 78 Statutes 259, 42 United States Code section 2000e-5(k) which more expansively permits fees ‘[i]n any action or proceeding . . . .’ (42 U.S.C. § 2000e-5(k) italics added.)” {Id. at pp. 115-116, fn. omitted.)
I do not believe anything of significance on the question of whether an administrative proceeding is an “action” has occurred since the filing of that opinion in 1985 and I would follow that analysis.
I would affirm.