Bouvia v. County of Los Angeles

• Decision Date: 29 October 1987
• Docket Number: No. B024452,B024452
• Citation: 241 Cal.Rptr. 239,195 Cal.App.3d 1075
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth BOUVIA, Plaintiff and Appellant, v. COUNTY of LOS ANGELES et al., Defendants and Respondents.

Page 239

241 Cal.Rptr. 239

195 Cal.App.3d 1075

Elizabeth BOUVIA, Plaintiff and Appellant, v. COUNTY of LOS ANGELES et al., Defendants and Respondents.

No. B024452.

Court of Appeal, Second District, Division 2, California.

Oct. 29, 1987.

Malley, Scott & Koffman, Richard Stanley Scott and Robyn McDonald Schiffman, Santa Monica, King, Brady & Bazar and Jacqueline M. Scheck, Los Angeles, Griffith D. Thomas, Sherman Oaks, ACLU Foundation of So. California, Fred Okrand and Paul Hoffman, Los Angeles, Roth & Streifer and Andrew Roth, and Stephen Rease, Riverside, for plaintiff and appellant.

DeWitt W. Clinton, County Counsel for Los Angeles County, Steven J. Carnevale, Principal Deputy County Counsel, and Daniel D. Mikesell, Jr., Principal Deputy County Counsel, Los Angeles, for defendants and respondents.

COMPTON, Associate Justice.

In this consolidated appeal, plaintiff Elizabeth Bouvia seeks review of two separate orders ¹ denying her requests for an award of attorney's fees under the private attorney general doctrine codified in Code of Civil Procedure section 1021.5 and the federal Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. § 1988). ² We affirm in part and reverse in part.

This is the second time the instant case has come before us. In 1986, Bouvia, then 28 years old and suffering from severe cerebral palsy, sought the removal of a nasogastric feeding tube inserted against her will by a medical staff of the High Desert Hospital (HDH), a skilled nursing facility operated by the County of Los Angeles Department of Health Services. Shortly after being admitted to that institution in December 1985, plaintiff's caloric intake and weight fell to a level that her treating physician, Dr. Harry Glenchur, M.D., believed was life threatening. Glenchur, who also served as medical director of the hospital, subsequently ordered that Bouvia be force-fed until her weight stabilized. Contending that she had a right to refuse any and all medical treatment, plaintiff initiated the underlying action for damages and injunctive relief against the county, the hospital, and the doctor, among others.

During the proceedings which followed, the trial court heard evidence detailing Bouvia's previous attempt to end her life by self-starvation. That attempt was widely publicized in the media and resulted in a court order allowing the hospital in which she was a patient to commence force-feeding by insertion of a nasogastric tube. Although plaintiff eventually discharged herself from that facility, she soon found that few physicians or institutions would aid her in her quest to bring about her own death. Forced then to end her fast, Bouvia entered a private convalescent hospital agreeing not to attempt starvation. In the months which followed, however, plaintiff continued to lose weight and suffered increasing discomfort from arthritis and other ailments.

In September 1985, Bouvia voluntarily admitted herself to Los Angeles County-University of Southern California Medical Center (County/USC Medical Center) in hopes of receiving treatment to relieve her chronic pain. Following trials of various medications and administration routes, a device known as a Hickman catheter was surgically implanted in the anterior chest wall and attached to a "Harvard pump" for the purpose of injecting into the circulatory system periodic doses of morphine sulfate, a potent narcotic analgesic. Relieved of some, but not all, of her physical pain, and no longer in need of acute care, plaintiff was transferred to HDH. ³ Thus commenced the series of events which led to the filing of the underlying litigation.

Believing that her rejection of medical treatment was motivated by a desire to commit suicide, the trial court denied plaintiff's request for injunctive relief. Bouvia thereafter filed her application for writ of mandate in this court. In a published opinion we granted the petition and directed the superior court to issue a temporary injunction ordering removal of the feeding tube and prohibiting its replacement without plaintiff's consent. (See Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 225 Cal.Rptr. 297.) Upon remand, Bouvia's counsel sought an award of fees under both federal and state law. The trial court, however, denied the request after concluding that the proceedings had not produced a "significant benefit" within the meaning of Code of Civil Procedure section 1021.5, and that in view of the pending damage action it was premature to award fees under 42 United States Code section 1988.

Immediately after the filing of our decision in the writ proceedings, Bouvia was informed by Dr. Glenchur that the use of morphine in treatment of her chronic pain was no longer "medically indicated" and that the catheter and pump would be removed. Although plaintiff vehemently objected, the staff gradually began reducing the dosage of the drug and substituting other medications to ease the withdrawal process. With the aid of counsel, Bouvia again filed a damage action accompanied by a request for injunctive relief in hopes of prohibiting the hospital from further decreasing her morphine intake. Following the issuance of a temporary restraining order to preserve the status quo, the trial court appointed two independent physicians as special masters to assist in evaluating plaintiff's medical needs. Their report essentially recommended that Bouvia be transferred to another facility where, after expert examination, she could be involved in a comprehensive treatment regimen designed to lessen her psychological and physiological dependence on morphine. After hearing argument, the court issued a temporary injunction directing in part that plaintiff be returned forthwith to the Medical Center. Conspicuously absent from the order, however, was any reference to future treatment or care.

Bouvia subsequently moved for an award of fees incurred in obtaining the injunction, contending that she was a "prevailing party" in an action to enforce her civil rights under federal law. (See 42 U.S.C. § 1988.) Finding that plaintiff had not suffered a constitutional deprivation sufficient to state a cause of action under 42 United States Code section 1983, ⁴ the trial court denied the motion.

In approaching the various issues raised on this appeal, we first reject the suggestion that our prior opinion implicitly determined the propriety of a fee award once the matter was remanded to the trial court. Contrary to the argument advanced by defendants, the question of whether plaintiff was entitled to such an award under either state or federal law was simply not raised by the parties or considered by this court in the writ proceedings. As will be discussed in greater detail infra, some of the criteria outlined in Code of Civil Procedure section 1021.5 and 42 United States Code section 1988 entail factual determinations that an appellate court is in no position to undertake. Whether a party has met the requirements for an award of fees and the reasonable amount of such an award are questions best decided by the trial court in the first instance. (See Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 559, 183 Cal.Rptr. 73, 645 P.2d 124; Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, 555, 202 Cal.Rptr. 400.) That court, utilizing its traditional equitable discretion, must realistically assess the litigation and determine from a practical perspective whether the statutory criteria have been met. (Baggett v. Gates (1982) 32 Cal.3d 128, 142, 185 Cal.Rptr. 232, 649 P.2d 874.) Its decision will be reversed only if there has been a prejudicial abuse of discretion. (Id. at p. 143, 185 Cal.Rptr. 232, 649 P.2d 874.) To make such a determination we must review the entire record, paying particular attention to the trial court's stated reasons in denying or awarding fees and whether it applied the proper standards of law in reaching its decision. (See Bartling v. Glendale Adventist Medical Center (Bartling II) (1986) 184 Cal.App.3d 97, 103, 228 Cal.Rptr. 847.)

In the present case, we had no such factual record to review when considering the appropriateness of issuing a writ of mandate to compel the removal of plaintiff's feeding tube. Under the circumstances, plaintiff was entitled to have the question of attorney's fees litigated first in the trial court before raising the issue here. ⁵

Turning now to the substantive issues posed on this appeal, we first consider whether the trial court had any reasonable basis for concluding that the appellate opinion obtained through plaintiff's legal action failed to vindicate an important right or confer a significant benefit on the general public within the meaning of Code of Civil Procedure section 1021.5.

The private attorney general doctrine is one of several exceptions to the general rule that each party must bear its own attorney's fees. (See Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, 198 Cal.Rptr. 551, 674 P.2d 253; see also Code Civ.Proc., § 1021.) Originally developed by the courts pursuant to their inherent equitable powers, the doctrine was given statutory recognition with the enactment of Code of Civil Procedure section 1021.5. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200.) That statute seeks to encourage the presentation of meritorious claims affecting large number of persons by providing successful litigants attorney's fees in public interest lawsuits. (Serrano v. Priest (1977) 20 Cal.3d 25, 44-48, 141 Cal.Rptr. 315, 569 P.2d 1303; Beach Colony II v. California Coastal Commission (1985) 166 Cal.App.3d 106, 111, 212 Cal.Rptr. 485.) The doctrine itself rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of fees, private actions to...