I must respectfully dissent.
Authority for the award of attorney fees and costs in actions of this general nature is available in Code of Civil Procedure section 1021.5 which reads: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement [z'i] such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor.” (Italics added.)
In Serrano v. Priest (1977) 20 Cal.3d 25 [141 Cal.Rptr. 315, 569 P.2d 1303], the court awarded attorney fees under an equitable principle permitting the successful party in this sort of action to recover his expenses as a “private attorney general” for bringing about benefits to a broad class of citizens {id. at pp. 43-47). This theory was statutorily added to the law through the adoption of Code of Civil Procedure section 1021.5 quoted above (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 928, 930-931 [154 Cal.Rptr. 503, 593 P.2d 200]). The equitable principles authorizing payment of attorney fees were discussed by the court in Serrano which pointed out two bases upon which the court may award attorney fees: the first is the common fund principle, not applicable here, and the second is the substantial benefit rule. The latter rule holds when a class action or corporate derivative action results in the conferral of substantial benefits, whether of a pecuniary or nonpecuniary nature, upon the defendant in such an action, that defendant may, in the exercise of the court’s equitable discretion, be required to yield some of those benefits in the form of an award of attorney fees (see 20 Cal.3d at p. 38). Serrano v. Priest went on to use a third theory, “private attorney general” concept, to award attorney fees where the successful suit brings about benefits to a broad class of citizens by effectuating a strong public policy (see 20 Cal.3d at p. 43).
Other California cases awarding attorney fees on the substantial benefit theory have not had the statewide impact that was present in Serrano v. Priest, supra, 20 Cal.3d 25 (see 23 Cal.3d at pp. 945-946), *667and it is not likely there will be any such case in the foreseeable future. The benefits in each of the cases have nevertheless been real and substantial to the entity involved, as noted by Serrano. The public community most directly benefited by the decision is the appropriate target for significance evaluation.
In Knoff v. City and County of San Francisco (1969) 1 Cal.App.3d 184 [81 Cal.Rptr. 683], attorney’s fees were allowed when the class action was instrumental in recovering taxes which had escaped taxation. In Mandel v. Hodges (1976) 54 Cal.App.3d 596 [127 Cal.Rptr. 244, 90 A.L.R.3d 728], the plaintiff’s action was instrumental in eliminating paid time off for certain holidays state employees were taking. In Card v. Community Redevelopment Agency (1976) 61 Cal.App.3d 570 [131 Cal.Rptr. 153], the taxpayers invalidated a city ordinance purporting to amend an existing redevelopment plan by including certain areas not covered by the original plan and as a result, certain property tax increment revenues came to the city rather than the redevelopment agency. In Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, the court held the association’s action in requiring the city to make specific findings that a proposed subdivision conformed to the city’s general plan could be found an important and substantial benefit to the city and, thus, sufficiently significant to call for the conclusion attorney fees should be allowed (23 Cal.3d at pp. 940-941).
Woodland Hills held the right need not be of constitutional proportions to justify the award of attorney fees, but the Legislature in passing Code of Civil Procedure section 1021.5 obviously intended there be some selectivity, on a qualitative basis, in the award, for it gives the court discretion to exercise judgment in attempting to ascertain the “strength” or “social importance” of the right involved (see Woodland Hills Residents Assn., Inc. v. City Council, supra, at p. 935).
As the court in Woodland Hills points out at pages 939 to 940, the public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a “benefit” where illegal private or public conduct is rectified. “Both the statutory language (‘significant benefit’) and prior case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation. We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving *668benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case. [Citation.]”
In Woodland Hills, the court, discussing the “substantial benefit” theory, also points out (23 Cal.3d at p. 945): “When the ‘benefits’ bestowed on others become less tangible and more ephemeral in nature, however, the equity in charging involuntary beneficiaries with the costs of obtaining such benefits on an unjust enrichment theory becomes more problematical. Although the named plaintiffs and others in the benefited class may place a high value on such intangible benefits, and thus may be more than willing to pay their share of the costs of procuring such benefits, other members of the benefited class may value such benefits differently, and may legitimately complain that they should not be involuntarily saddled with costs which are out-of-proportion to their perceived benefit. In such circumstances, insofar as an award of attorney fees is sought to be justified on notions of unjust enrichment, the justification fails.”
I believe the discretion authorized under the Brown Act provision (Gov. Code, § 54960.5) should be identical to the discretion authorized under the case law generally and Code of Civil Procedure section 1021.5 specifically, and that law, rather than the federal interpretations should be applied.
The benefits here are of a very questionable nature to anyone. Conceding there was a wrong in circulating the letter without a public meeting, I note it was an expedient means of avoiding the activation of the eminent domain proceeding which would have caused unnecessary expense and concern on the part of all parties. The objective was clearly to obtain a short postponement of service in order that the issue might be discussed more fully at a properly called public meeting and resolved before legal proceedings were begun in earnest. I see no real benefit to the public in bringing the action in this instance long after the matter was resolved, especially since (1) there was no effort to hide the action of these members, a practice the Brown Act seeks to obviate, and the matter was brought to the attention of the public .promptly, (2) the purpose to avoid incurring unnecessary expenses of legal process was in the general public interest as well as the real party involved, and (3) the ultimate action of the council taken at an open and public meeting held within 30 days and without any prompting by this action supported the emergency action sought by the letter.
*669I can appreciate the distress some members of the public might have in not getting the planned park, but ultimate council action was responsible for that, not the delay in serving process which the letter occasioned. I am not unmindful of the fact this action might have some indirect benefit in deterring other similar acts of greater moment in the future, but there were no allegations of that here nor of any concerted effort to avoid the law generally. (Cf., Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors (1968) 263 Cal.App.2d 41 [69 Cal.Rptr. 480].)
The benefit to the public in bringing this action almost four months after the matter was mooted by council action is nil. Proving the city attorney was wrong in opining this action by the council members was proper may provide some pleasant self-satisfaction to the plaintiffs, but I see no real benefit to the city or the plaintiffs by the action at that time under the standard of Serrano, supra, 20 Cal.3d 25, and Woodland Hills, supra, 23 Cal.3d 917. The earlier, proper action of the council on February 28 had the practical effect of mollifying the Brown Act violation. The council action following the delivery of the letter, especially the February 28 vote, was all done in public with full notice, evidencing recognition of the appropriate course of action to resolve the issue raised by the letter.
The award of attorney fees is discretionary with the trial court under Government Code section 54960.5 and I find no abuse of discretion in denying fees under the circumstances of this case applying the standard set out in Serrano, supra, and Woodland Hills, supra, as the court announced. I would reject the proposition urged by the plaintiffs that in every action of this sort where a violation is established the plaintiffs should ordinarily recover an attorney fee. I do not believe reversal is required, but if so, I believe the trial court may well observe the suggestions of the majority justifying no award and reach the same result as here using its test. The public benefit from the legal action here was not of a substantial proportion even on a local community level such as would require the award of attorney fees.
I find no abuse of discretion in the denial of such fees by the trial court and would affirm.
On June 16, 1981, the opinion was modified to read as printed above.