Californians for Responsible Toxics Management v. Kizer

• Decision Date: 23 June 1989
• Docket Number: No. A041631,A041631
• Citation: 211 Cal.App.3d 961,259 Cal.Rptr. 599
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIANS FOR RESPONSIBLE TOXICS MANAGEMENT, Plaintiff, Respondent, and Cross-Appellant, v. Kenneth KIZER, Director, California Department of Health and Human Services, Defendant, Appellant, and Cross-Respondent.

Page 599

259 Cal.Rptr. 599

211 Cal.App.3d 961

CALIFORNIANS FOR RESPONSIBLE TOXICS MANAGEMENT, Plaintiff, Respondent, and Cross-Appellant, v. Kenneth KIZER, Director, California Department of Health and Human Services, Defendant, Appellant, and Cross-Respondent.

No. A041631.

Court of Appeal, First District, Division 4, California.

June 23, 1989.

John K. Van de Kamp, Atty. Gen., Charlton G. Holland, Asst. Atty. Gen., Stephanie Wald, Supervising Deputy Atty. Gen., and Asher Rubin, Deputy Atty. Gen., San Francisco, for appellant.

Khourie, Crew & Jaeger, P.C., Michael N. Khourie, James G. Gilliland, Jr., Richard L. Grossman, Mark T. Jansen, San Francisco, Greve, Clifford, Diepenbrock & Paras, and Scott R. Keene, Sacramento, for respondent.

POCHE, Associate Justice.

Defendant Kenneth Kizer, the Director of the California Department of Health Services (Department), appeals an attorneys' fee award (Code Civ.Proc., § 1021.5) ¹ of $97,675.50 to plaintiff, Californians for Responsible Toxics Management (CRTM), as successful party in a suit brought by CRTM as a private attorney general against the Department and the International Technology Corporation, Inc. (IT). CRTM cross-appeals from the fee award contending that it was too low.

CRTM, a conservation group organized as a California nonprofit corporation, filed a complaint for declaratory and injunctive relief in early April 1986 naming as defendants IT Corporation and Kenneth Kizer. CRTM sought in part to enjoin IT's alteration or expansion of its toxic waste facility in Benicia, as well as orders requiring IT to identify and remedy contamination at the site, and requiring the department to withhold approval of the facility until IT was in full statutory compliance.

On June 6, 1986, IT Corporation and the department entered into a consent order which required IT at the Benicia site to monitor its existing landfill, remedy leakage in a drum burial area, close certain inactive ponds, and post a bond of $277,500 to ensure its compliance. That order was superseded by a final consent order of July 8, 1986, setting forth essentially the same agreement.

After July 25 and August 1 hearings on the order to show cause CRTM's motion for a preliminary injunction was denied. The court's order states in part that it was "relying upon the protection provided during the pendency of this litigation by the July 8, 1986 Consent Order entered into between defendant Department of Health Services and defendant IT Corporation."

On October 3, 1986, CRTM filed a motion for summary judgment. The motion was denied by an order of January 2, 1987, in which the court concluded that the case presented a myriad of factual disputes involving two issues--first, "whether or not INTERNATIONAL TECHNOLOGY CORPORATION, INC. is making substantial modifications or additions to the facility in violation of Health and Safety Code, Section 25200.5 " and second, "whether or not INTERNATIONAL TECHNOLOGY CORPORATION, INC. is violating the closure requirements of State and Federal governments."

CRTM's motion for reconsideration was denied by an order of May 7, 1987. It then moved for an award of $593,000 in attorneys' fees and costs pursuant to section 1021.5. Following a stipulation for dismissal of the underlying action, CRTM settled its attorneys' fees claim against IT for $38,000. The trial court made a fee award of $97,675.50 against the state, on the basis that CRTM's action had acted as a catalyst in speeding up issuance of the final consent order.

On appeal the Department contends that the trial court erred in concluding that CRTM was a "successful party" entitling them to a fee award under section 1021.5. Alternatively, the Department also argues that if any fee award against it was proper it must be limited to an award for time and costs directly related to issues involving the Department. By cross-appeal CRTM challenges the exclusion of certain items from the lodestar and the award of less than 100% of the lodestar sum.

Discussion

Section 1021.5, which is a codification of the private attorney general doctrine, provides for an "award of attorneys' fees to a successful party ... in an action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit ... has been conferred on the general public ..., (b) the necessity and financial burden of private enforcement are 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." (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317, 193 Cal.Rptr. 900, 667 P.2d 704.)

Before a plaintiff may receive an award under section 1021.5 he must demonstrate a causal connection between his action and the relief achieved. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1291, 240 Cal.Rptr. 872, 743 P.2d 932; Westside Community For Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353, 188 Cal.Rptr. 873, 657 P.2d 365.) However, a plaintiff need not achieve a favorable final judgment in order to be a successful party. (Id. at p. 352, 188 Cal.Rptr. 873, 657 P.2d 365.) A defendant's voluntary action induced by plaintiff's lawsuit will still support an attorneys' fee award on the rationale that the lawsuit spurred defendant to act or was a catalyst speeding defendant's response. (Id. at pp. 352-353, 188 Cal.Rptr. 873, 657 P.2d 365.)

"The critical fact is the impact of the action, not the manner of its resolution." (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685, 186 Cal.Rptr. 589, 652 P.2d 437.) How the party achieves success does not determine his right to fees, but the impact of his suit does. (In re Head (1986) 42 Cal.3d 223, 228-229, 228 Cal.Rptr. 184, 721 P.2d 65.)

If plaintiff's lawsuit "induced" defendant's response or was a "material factor" or "contributed in a significant way" to the result achieved then plaintiff has shown the necessary causal connection. (Northington v. Davis (1979) 23 Cal.3d 955, 960, fn. 2, 154 Cal.Rptr. 524, 593 P.2d 221; Westside Community For Independent Living, Inc. v. Obledo, supra, 33 Cal.3d at 353, 188 Cal.Rptr. 873, 657 P.2d 365; California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 743, 246 Cal.Rptr. 285.) The question of whether plaintiff's action is causally linked to achieving the relief obtained is a question of fact. (Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 845, 216 Cal.Rptr. 649.)

A fee award made under section 1021.5 is a discretionary act by the trial court, and the award is only reversed on appeal when there is no reasonable basis for it in the record. (Westside Community for Independent Living, Inc. v. Obledo, supra, 33 Cal.3d at 349, 355, 188 Cal.Rptr. 873, 657 P.2d 365.)

In its decision the court here concluded that CRTM was a successful party ² because it had served as a catalyst. To establish the necessary causal connection between the CRTM lawsuit and the relief obtained the court looked to the chronology of events: "The consent decree of July 9, 1986 was not obtained until after the suit was filed.... Additional DEPARTMENT OF HEALTH SERVICES action [closure order of 12/19/86] appears to have been engendered by the unsuccessful Motion for Summary Judgment. It is reasonable to assume that the closure order and final consent decree came about more quickly in part because of the Plaintiff's action."

Obviously it can be difficult to prove causation where as here plaintiff seeks to recover on a catalyst theory. When action is taken by the defendant after plaintiff's lawsuit is filed the chronology of events may permit the inference that the two events are causally related. (Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725, 736, 249 Cal.Rptr. 28.)

The Department argues that such an inference shifts the burden to defendant to offer rebuttal. Indeed, there is a line of authority in federal Freedom of Information Act cases which supports this view. ³ That act permits the recovery of attorneys' fees only when the plaintiff can show both that his suit was reasonably necessary and had a substantial causative effect upon his receiving the requested information. (Vermont Low Income Advocacy Council, Inc. v. Usery (2d Cir.1976) 546 F.2d 509, 513.) Accordingly, cases have permitted such an inference from the chronology of events to stand where no rebutting evidence was offered by the defendant (Crooker v. United States Dept. of Justice (1st Cir.1980) 632 F.2d 916, 919; Marschner v. Department of State, Etc. (D.Conn.1979) 470 F.Supp. 196, 199) Likewise, where the government has presented affidavits rebutting the presumption by showing that the agency was complying with the request and the filing of the suit had no impact upon its action, the inference of causation has been successfully rebutted. (Kohn v. F.B.I. (D.Mass.1984) 581 F.Supp. 48, 49-50.) The approach followed in these federal cases is, we feel, a sensible one for evaluating whether a lawsuit has stimulated bureaucratic action.

Here the court seems to have relied solely upon the chronology of events. The Department submitted two declarations, one from Dwight Hoenig, the Department officer in charge of toxic substances control for the area in which the IT facility is located, and a second from John Allen, corporate counsel for IT.

According to these declarations in late May of 1986 IT was preparing a $60 million public bond offering. At the time IT was operating under an order from the Department which gave the company until June 6, 1986, to obtain additional liability coverage for its facilities in this state. Belatedly IT realized that it had no agreement from the Department to renew or extend the liability coverage order. Without the order the California IT facilities would be out of compliance and that fact would have had to be disclosed in the bond prospectus, with the result that the company would have had to offer the bonds at a higher...