Angelheart v. City of Burbank

• Citation: 232 Cal.App.3d 460,285 Cal.Rptr. 463
• Decision Date: 18 July 1991
• Docket Number: No. B046173,B046173
• Court: California Court of Appeals
• Parties: Kathleen ANGELHEART, et al., Plaintiffs and Appellants, v. CITY OF BURBANK, et al., Defendants and Appellants.

Page 463

285 Cal.Rptr. 463

232 Cal.App.3d 460

Kathleen ANGELHEART, et al., Plaintiffs and Appellants, v. CITY OF BURBANK, et al., Defendants and Appellants.

No. B046173.

Court of Appeal, Second District, Division 7, California.

July 18, 1991.

As Modified on Denial of Rehearing Aug. 14, 1991.

Review Denied Oct. 24, 1991.

Theresa M. Traber, Anne K. Richardson, Litt & Stormer, and Pegine Grayson, Los Angeles, for plaintiffs and appellants.

Joseph W. Fletcher, City Atty., and Juli C. Scott, Chief Asst. City Atty., for defendants and appellants.

LILLIE, Presiding Justice.

Defendants City of Burbank, Michael R. Hastings, in his capacity as Mayor of Burbank, and Robert Bowne, Al Dossin, Mary Lou Howard, and Mary Kelsey, in their capacity as members of the Burbank City Council (herein referred to as City), appeal from an order awarding plaintiffs attorneys' fees of $18,700 pursuant to Code of Civil Procedure section 1021.5. Plaintiffs Kathleen Angelheart, Norman Angelheart, Laurie Salas, Candy Stallings, and Mark Stallings (hereinafter collectively referred to as plaintiffs) cross-appeal from that portion of the order denying them the full amount of attorneys' fees sought, in the amount of $71,286.62.

FACTUAL AND PROCEDURAL BACKGROUND

The award of attorneys' fees arises out of plaintiffs' successful challenge to City's former regulation of large family day care homes, which regulation, they claimed, was in violation of state law.

In 1987, Mrs. Angelheart provided child care in her Burbank home for twelve children, including children of plaintiffs Stallings. Plaintiff Salas, a Burbank resident, also was licensed by the state to operate a small family day care center, and applied to operate a large family day care center. In September 1987, City informed the

Angelhearts they were required to apply for a conditional use permit from City and that the city ordinance limits the number of children to be cared for in any day care home to ten. After hearing, City Planning Board granted the Angelhearts a conditional use permit, with several conditions, including the condition limiting to nine the number of children under age five. To remove the conditions imposed on their permit, the Angelhearts appealed the Planning Board's decision to the Burbank City Council which denied the permit for a large day care facility, thus limiting to six the number of children the Angelhearts were allowed to care for in their home.

In April 1988, plaintiffs filed petition for writ of mandate (Code Civ.Proc., §§ 1085, 1094.5) and complaint for declaratory and injunctive relief against City. Plaintiffs contended, inter alia, that the state Legislature, by the California Child Day Care Facilities Act (Health & Saf.Code, § 1596.70 et seq.; the Act), has occupied the field of family day care regulation preempting all municipal regulation not expressly permitted by the Act, and that the application of certain City ordinances to plaintiffs was in violation of the Act. Plaintiffs also alleged that pursuant to state law, Burbank could not prohibit large family day care homes in an area zoned for single family dwellings (Health & Saf.Code, § 1597.46, subd. (a)), a large family day care home being defined as a home providing care for seven to twelve children. (Id., at § 1596.78, subd. (a).) These issues were contested by City.

In September 1988 plaintiffs obtained a peremptory writ of mandate commanding City, on or before November 16, 1988, to establish a procedure for regulating large family day care homes that complies with the Act. The return date of November 16 was subsequently continued to December 22, 1988 and, in early December, City did enact an ordinance pursuant to the writ.

On December 21, 1988, plaintiffs filed objections to four provisions of the new ordinance, claiming the provisions violated state law. The return date was continued to March 6, 1989; after hearing on the return, the court made a minute order dated March 9, 1989, stating in pertinent part that "the ordinance is not invalid on its face." The court, while acknowledging that certain applications of the ordinance in the future may constitute a violation of state law, interpreted the ordinance to obviate many of plaintiffs' concerns and to be consistent with state law.

City filed an appeal from the March 9 order on June 7, 1989, which appeal was subsequently dismissed on plaintiffs' motion sometime in mid-July 1989. Although our record is unclear as to the grounds for the dismissal, plaintiffs' attorney claimed on the hearing on the motion for fees that the appeal was untimely.

On July 3, 1989, plaintiffs filed motion for attorneys' fees and costs pursuant to Code of Civil Procedure section 1021.5, seeking attorneys' fees and costs totaling $71,286.62. ¹

According to declarations filed in support of the motion, four attorneys at Litt & Stormer spent a total of about 354 hours on the case from January 1988 to April 1989, which at the various billing rates of the attorneys, resulted in fees of about $43,514. Two attorneys from Public Counsel, the public interest law office of the Los Angeles and Beverly Hills Bar Associations, spent a total of about 87 hours on the case, which, according to their billing rates, resulted in a fee of $12,694. To these fees, totaling about $56,200, plaintiffs argued that the court should apply a multiplier of 1.25, which would result in a total fee award of about $71,286. Plaintiffs based the application of a multiplier on certain factors, including the relatively low-income status of plaintiffs, the small size of Litt & Stormer, the unpopular and expensive nature of bringing suit against a municipality, and the "admirable results" in obtaining the "precise relief" sought.

In opposition to the motion, City argued the motion was untimely under California Rules of Court, rule 870 and even if timely, plaintiffs do not meet the criteria for attorneys' fees set out in Code of Civil Procedure section 1021.5. City's Senior Assistant City Attorney declared that the issues presented in the case were not particularly complex or unusual; the total amount of hours (over 400) spent by plaintiffs' attorneys on the case was "greatly in excess" of the time necessary for experienced attorneys as are plaintiffs' attorneys, and she herself did not spend more than 200 hours on the entire case.

After hearing on the motion, the matter was submitted. On October 10, 1989, the court made the following order: "The Court finds that the reasonable attorneys' fees based upon the work performed amount to $18,700.00 (approximately one-third of the amount claimed)." ²

City filed timely notice of appeal from the October 10, 1989 order, and plaintiffs filed timely notice of cross-appeal from said order. We deal first with City's appeal.

I

CITY'S APPEAL

A. Timeliness of Motion

City contends that the motion was untimely pursuant to California Rules of Court, rule 870. That rule, by its express language, is not here applicable. The rule provides in part that "A prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." (Cal.Rules of Court, rule 870(a).)

"But section 1021.5, pursuant to which the attorney fees were awarded, clearly provides a special motion procedure plainly intended to be initiated after the result of the action is known but subject to no express time limit. The motion procedure sharply distinguishes a claim for fees under section 1021.5 from an ordinary costs claim which is made not by motion but by memorandum and which is brought to hearing (if at all) not by the claimant but by the adversary's motion to tax [citation]. In our view the more specific provisions of section 1021.5 control the more general procedure described in [former] section 1033...." (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 834, 160 Cal.Rptr. 465.)

As the provisions of rule 870 dealing with the time within which a memorandum of costs is to be filed have no application to the motion procedure set out in Code of Civil Procedure section 1021.5, City's contention is without merit.

B. Significant Public Benefit

City contends that the court's finding that the action conferred a significant benefit on the residents of Burbank in enforcing an important right is "not supported by any credible evidence." City points to the undisputed evidence it submitted in opposition to the motion to the effect that the Angelhearts' application to operate a large family day care center in Burbank was one of only two applications the City received in the two years prior to the lawsuit and since the adoption of its new ordinance, the Angelhearts' application was only one of three such applications.

"The trial court has discretion to determine whether an award of section 1021.5 attorney fees is appropriate. [Citation.] A reversal of the trial court's determination will lie only if the resultant injury is sufficiently grave to amount to a manifest miscarriage of justice, and no reasonable basis for the action is shown." (Weissman v. Los Angeles County Employees Retirement Assn. (1989) 211 Cal.App.3d 40, 46-47, 259 Cal.Rptr. 124; internal quotation marks omitted.)

The private attorney general theory as embodied in section 1021.5 is "clearly designed to encourage private enforcement of important public rights." (Marini v. Municipal Court, supra, 99 Cal.App.3d 829, 835-836, 160 Cal.Rptr. 465.) "The important right need not be constitutional in origin. [Citation.] Section 1021.5 applies also to statutory rights as well as important public policies. [Citations.] The 'important right' requirement directs the judiciary to exercise judgment in attempting to ascertain the strength or societal...