California Common Cause v. Duffy

• Decision Date: 14 December 1987
• Docket Number: No. D005889,D005889
• Citation: 200 Cal.App.3d 730,246 Cal.Rptr. 285
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA COMMON CAUSE, et al., Plaintiffs and Appellants, v. John F. DUFFY, et al., Defendants and Appellants.

Page 285

246 Cal.Rptr. 285

200 Cal.App.3d 730

CALIFORNIA COMMON CAUSE, et al., Plaintiffs and Appellants, v. John F. DUFFY, et al., Defendants and Appellants.

No. D005889.

Court of Appeal, Fourth District, Division 1, California.

Dec. 14, 1987.

Gregory Marshall, San Bruno, for plaintiffs and appellants

Janet B. Houts, San Diego, for defendants and appellants.

KREMER, Presiding Justice.

In this case, both sides appeal from an award of attorneys' fees pursuant to CODE OF CIVIL PROCEDURE, SECTION 1021.5¹. John F. Duffy, Sheriff of San Diego County (Duffy), contends the trial court erred in awarding any attorneys' fees as well as costs to California Common Cause and individual taxpayers (collectively referred to as Taxpayers) because they failed to meet any of the statutory req irements. The Taxpayers contend the trial court abused its discretion in calculating the amount of the fee award. We conclude the attorneys' fees and costs were properly awarded but remand for recalculation of the amount.

FACTS

In January 1985, Duffy appeared at press conferences in Los Angeles and Sacramento sponsored by Crime Victims for Court Reform, a private political committee organized to encourage Chief Justice Rose Bird to resign and failing that, to encourage the public to vote against her retention. Duffy announced his support for the political committee and stated he would help distribute postcards containing a strongly-worded anti-Bird message. ² The postcards were designed to be mailed by citizens to Bird.

In February 1985, Duffy directed the postcards be distributed throughout the Sheriff's Department and be prominently displayed in Sheriff's substations. He issued a memo on February 11 to all sheriff's department personnel expressing his strong support for the anti-Bird campaign, indicating the availability of the postcards and stating deputies could distribute the postcards while on duty to citizens who requested them. Duffy stated distribution of the postcards did not involve a political issue since the postcards did not mention any election, campaign, vote or ballot measure.

Due to media attention, there were numerous requests for the postcards and the supply of postcards was depleted in a matter of hours. An on-duty deputy sheriff drove to Los Angeles and picked up more postcards from the Crime Victims for Court Reform committee. Eventually, 18,000 postcards were distributed through the Sheriff's Department. At least 25 deputies while on duty and in uniform participated in distributing the cards. Duffy, with clerical help, mailed postcards to 51 people who had requested the postcards. He included a cover letter condemning Bird. He used On February 15, 1985, the ACLU requested Duffy stop distribution of the postcards because it involved illegal expenditures of public monies and use of personnel in political campaigning. Duffy responded by stating distribution of the cards did not involve any prohibited political activity by on-duty personnel. He continued distribution of the postcards.

Sheriff's Department stationary, envelopes and postage meter to mail the postcards and cover letter.

On February 19, the Taxpayers filed a complaint seeking declaratory and injunctive relief against Duffy. When Duffy did not stop distribution, the Taxpayers arranged for an ex parte appearance to seek a temporary restraining order. At the appearance on February 26, the court persuaded the parties to negotiate. As a result, Duffy agreed to not distribute any more postcards and to write a memo that same day to department personnel informing them the postcards would no longer be distributed through the department and that anyone requesting information on the judicial retention election issue should be referred to the campaign committee of one side or the other. The Taxpayers dropped their application for a temporary restraining order.

Duffy issued the agreed memorandum but listed the ACLU rather than a pro-Bird campaign organization for referral. The parties returned to court the next day to remedy this listing. Duffy issued an amended memorandum. ³

In early March, the Taxpayers drafted and served a set of interrogatories to establish the identities and activities of the sheriff's department employees who had distributed the postcards. Duffy refused to answer three of the questions because they were "burdensome and oppressive." The Taxpayers moved to compel answers to the interrogatories. This motion was consolidated for hearing with Duffy's demurrer to the complaint. At the hearing, the court denied the motion to compel on the basis "the Sheriff has admitted the activity complained of occurred." The court also overruled the demurrer.

Duffy then filed an answer to the complaint, specifically denying the activity complained of had occurred. The Taxpayers scheduled depositions of Duffy and one of the Doe defendants (Lieutenant John Tenwolde). Negotiations for an agreed statement of facts as a basis for cross-motions for summary judgment broke down when the sheriff refused to stipulate that employees had distributed the postcards while on duty. The depositions were taken and followed by a short series of interrogatories. The Duffy interrogatories were essentially the same as the earlier ones which Duffy had not answered.

On November 20, 1985, the parties met and tentatively agreed to a set of facts. As part of the agreement, Duffy responded to the interrogatories. Eventually, the parties adopted a written stipulation of facts and agreed to arguing cross-motions for summary judgment.

On March 14, 1986, the court granted summary judgment for the Taxpayers on their declaratory relief claim, finding most of the activity was an illegal expenditure of public funds and personnel on political campaigning. The court noted some of Duffy's statements in his departmental memorandum and cover letter accompanying the mailing of the postcards was permissible. ⁴ The court denied injunctive relief as being unnecessary since the activity had stopped and there was no indication the sheriff would not abide by the ruling.

For the next several months, counsel disputed the terms of the written judgment. The court signed the Taxpayers' version on November 3, 1986. Duffy did not appeal the judgment.

Following entry of the judgment, the Taxpayers moved for costs and an award of attorney's fees pursuant to Code of Civil Procedure section 1021.5. The court awarded costs and fees, reducing the requested costs from $879.09 to $777.09 and the requested attorneys' fees from $39,857 to $13,350. Both sides appealed the court's order.

DISCUSSION

I AWARD OF ATTORNEYS' FEES

Under Code of Civil Procedure section 1021.5, a court may award attorneys' fees to the prevailing party in an action which results in the enforcement of an important right affecting the public interest if the action confers "a significant benefit ... on the general public or a large class of persons" and "the necessity and financial burden of private enforcement are such as to make the award appropriate."

Section 1021.5 is a codification of the private attorney general doctrine. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317, 193 Cal.Rptr. 900, 667 P.2d 704; Kreutzer v. County of San Diego (1984) 153 Cal.App.3d 62, 74, fn. 3, 200 Cal.Rptr. 322.) The "fundamental objective" of section 1021.5 is " ' "to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees ... to those who successfully bring such suits...." ' " (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200.) The statute is based on the recognition that "privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions." (Ibid.)

Prevailing Party

Duffy contends California Common Cause did not prevail because they failed to cause any action to be enjoined. Duffy, in support of his position, points to the trial judge's comment in his oral decision: "Although I have ruled partly in favor of the plaintiffs, it is not clear to me that I have ruled entirely in their favor."

A plaintiff will be considered a prevailing party when the lawsuit " 'was a catalyst motivating defendants to provide the primary relief sought' " or succeeded in " 'activating defendants to modify their behavior.' " (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353, 188 Cal.Rptr. 873, 657 P.2d 365, italics deleted.) Determination of success "must depend on more than mere appearance.... [T]he trial court must 'realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right....' [Citation.]" (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685, 186 Cal.Rptr. 589, 652 P.2d 437.) "The critical fact is the impact of the action, not the manner of its resolution." (Ibid.) A plaintiff should not be denied attorney's fees because resolution in the plaintiff's favor was reached by settlement, through the defendant's voluntary cessation of the unlawful practice or because the lawsuit was resolved on a preliminary issue obviating the adjudication of other issues. (Ibid.; Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 938, 154 Cal.Rptr. 503, 593 P.2d 200.)

Here, the Taxpayers sought to establish the illegality of the distribution of anti-Bird postcards by on-duty uniformed deputies and using departmental supplies. They obtained a declaratory judgment supporting their position. The fact injunctive relief was denied did not diminish the Taxpayers' success. By the time of the judgment, the sheriff was no longer distributing the postcards; he had voluntarily ceased the unlawful practice. An injunction was not then necessary; the declaratory judgment provided full relief.

While Duffy points to the court's comment it had not...