Citizens Against Rent Control v. City of Berkeley

• Court: California Court of Appeals
• Writing for the Court: SMITH; KLINE, P.J., and ROUSE
• Citation: Citizens Against Rent Control v. City of Berkeley, 226 Cal.Rptr. 265, 181 Cal.App.3d 213 (Cal. App. 1986)
• Decision Date: 21 May 1986
• Parties: CITIZENS AGAINST RENT CONTROL, etc., et al., Plaintiffs and Respondents, v. CITY OF BERKELEY, California, etc., et al., Defendants and Appellants. A022404.

Page 265

226 Cal.Rptr. 265

181 Cal.App.3d 213

CITIZENS AGAINST RENT CONTROL, etc., et al., Plaintiffs and Respondents, v. CITY OF BERKELEY, California, etc., et al., Defendants and Appellants.

A022404.

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

May 21, 1986.

Review Denied July 30, 1986.

Nielsen, Hodgson, Parrinello & Mueller, James R. Parrinello, John E. Mueller, Marguerite Mary Leoni, San Francisco, for plaintiffs and respondents.

Manuela Albuquerque, City Atty., City of Berkeley, Berkeley, for defendants and appellants.

SMITH, Associate Justice.

Plaintiffs in this action to invalidate a Berkeley ordinance that placed dollar-amount limits on contributions to campaign committees for or against municipal ballot measures ultimately prevailed on appeal to the United States Supreme Court (Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492) from a decision of our state Supreme Court that had upheld the ordinance. Upon issuance of remittitur to the superior court, plaintiffs moved for an award of attorney fees under the private-attorney-general statute, Code of Civil Procedure section 1021.5. By two orders, the superior court awarded $209,514.50 in attorney fees and $14,539.88 in costs, which amounts included costs and fees for plaintiffs' litigation before the United States Supreme Court. Defendants, the City of Berkeley, its city council and its Fair Campaign Practices Commission, appeal from those orders.

We will reverse the award of printing costs for the federal high court appeal but affirm the awards in all other respects.

BACKGROUND

A brief summary of the underlying litigation is necessary. For convenience, we borrow in part from the opinion of the United States Supreme Court: "The voters of Berkeley ... adopted the Election Reform Act of 1974, Ord. No. 4700-N.S., by initiative. The campaign ordinance so enacted placed limits on expenditures and contributions in campaigns involving both candidates and ballot measures. Section 602 of the ordinance provides:

" 'No person shall make, and no campaign treasurer shall solicit or accept, any contribution which will cause the total amount contributed by such person with respect to a single election in support of or in opposition to a measure to exceed two hundred and fifty dollars ($250).'

"[Respondent] Citizens Against Rent Control [CARC] is an unincorporated association formed to oppose a ballot measure at issue in the April 19, 1977, election. The ballot measure would have imposed rent control on many of Berkeley's rental units. To make its views on the ballot measure known, [CARC] raised more than $108,000 from approximately 1,300 contributors. It accepted nine contributions over the $250 limit. Those nine contributions totaled $20,850, or $18,600 more than if none of the contributions exceeded $250. Pursuant to § 604 of the ordinance, [appellant] Berkeley Fair Campaign Practices Commission, 20 days before the election, ordered [respondent CARC] to pay $18,600 into the city treasury.

"Two weeks before the election, [CARC] sought and obtained a temporary restraining order prohibiting enforcement of §§ 602 and 604. The ballot measure relating to rent control was defeated." (Citizen Against Rent Control v. Berkeley, supra, 454 U.S. 290, 292-293, 102 S.Ct. 434, 435-436, fns. omitted, bracketed material added.)

A preliminary injunction issued, after which respondents amended their complaint to include a request for attorney fees under section 1988 of title 42 of the United States Code for alleged civil rights violations (42 U.S.C. §§ 1982-1983). ¹ Summary judgment declaring section 602 of the ordinance unconstitutional as violative of respondents' rights under the First Amendment of the federal Constitution and article I, section 2, of the state Constitution was entered in September 1977, and appellants timely appealed to this court.

On January 1, 1978, pending the appeal, newly enacted section 1021.5 of the Code of Civil Procedure (hereafter cited only as section 1021.5) went into effect. ² This court unanimously affirmed the superior court judgment in an opinion filed on December 13, 1979. ³ Respondents made no motion for attorney fees. Appellants then sought and were granted a hearing in the California Supreme Court. In an opinion filed August 7, 1980, that court reversed the superior court judgment, deciding four to three that the ordinance was constitutionally valid under both the federal and state Constitutions in that the contribution limit was necessary to serve a compelling governmental interest in preserving the integrity of the state initiative and referendum process and was not unduly restrictive. (Citizens Against Rent Control v. City of Berkeley (1980) 27 Cal.3d 819, 832, 167 Cal.Rptr. 84, 614 P.2d 742.)

On appeal, the United States Supreme Court reversed the state high court's decision, concluding on the record before it that the ordinance did not advance a legitimate governmental interest significant enough to justify its infringement of First Amendment rights of association and expression. (Citizens Against Rent Control v. Berkeley, supra, 454 U.S. 290, 299-300, 102 S.Ct. 434, 438-439.) The case was remanded to the California Supreme Court (id., at p. 300, 102 S.Ct. at p. 439) with the mandate that respondents (appellants therein) recover $4,589 in costs, representing clerk's costs of $300 plus $4,289 for the costs of printing the record. No award of attorney fees was made or requested.

On remand, the California Supreme Court vacated its prior decision, affirmed the superior court judgment and issued remittitur, ordering that respondents "shall recover costs on appeal."

On May 6, within 30 days following the remittitur, respondents filed notice of their intent to seek attorney fees and related expenses totaling $213,212.89 pursuant to section 1021.5. They also filed a costs memorandum by which (after later adjustments for duplicated items) they claimed appellate court costs totaling $14,539.88, of which $9,715.08 represented costs for printing briefs on their appeal to the United States Supreme Court--costs which that court had not awarded.

Appellants filed a motion to tax costs about two weeks later, objecting to the claims for costs in the federal high court but not disputing the remaining amounts. ⁴ On May 21, they filed opposition to the attorney fees claim as well on grounds that the court was without jurisdiction to make the award, respondents having failed to bring their claim in the appellate courts and the state Supreme Court's remittitur having directed only the recovery of "costs" on appeal (see Cal.Rules of Court, rule 26). Appellants asked that, should the court find it had such jurisdiction, discovery be permitted in order to identify any duplicative or excessive charges and to assess the "financial burden of private enforcement" component of section 1021.5. (See fn. 2, ante.) At a hearing held on May 27, after written responses had been filed on both sides, the parties argued both the costs and fees issues, and the matters were submitted. Appellants renewed their request that discovery be allowed should the court decide to award attorney fees.

On June 21, the court ordered fees allowed, in an amount to be determined on written justification from respondents, and ordered costs awarded in the amount requested. The order gave respondents 10 days to file their written justification and appellants until two weeks beyond that time to file opposition.

Justification, consisting in part of an extensive declaration by attorney James R. Parrinello detailing the efforts of attorneys and other personnel on the case, and a year-by-year breakdown of total hours spent by each attorney, was timely filed. Fees for 1977 (previously overlooked in preparing an earlier fees memorandum) were added, and certain other fees and expenses previously requested were withdrawn, leaving a net downward adjustment of the requested total to $209,514.50 plus related expenses of $1,644.25. Attached to the declaration was a copy of a letter, dated June 25, in which Mr. Parrinello offered to make time reports available after June 30 for respondents' inspection. ⁵

In opposition filed July 21, appellants objected to the amount of fees requested for the United States Supreme Court appeal (while adhering to their jurisdictional arguments). They expressly conceded that the fees claimed for all phases of the litigation preceding that appeal were reasonable but argued that the amount claimed for the federal court phase ($179,596) represented excessive and duplicate numbers of hours. It is internally evident from the filed opposition that respondents had by then turned over copies of their daily time sheets and billing records to appellants and that appellants had relied on those records in fashioning their opposition. ⁶

On August 27, after considering a further declaration by Mr. Parrinello, the superior court filed its final orders (1) denying appellants' motion to tax costs and awarding costs of $14,539.88, the full amount requested, and (2) awarding attorney fees of $209,514.50, the requested amount of fees less the claimed "related expenses" figure. This appeal timely followed notice of entry of the orders. Both orders are appealable as orders after judgment. (Code Civ.Proc., § 904.1, subd. (b); Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 831, 160 Cal.Rptr. 465 [ § 1021.5 fees]; Markart v. Zeimer (1925) 74 Cal.App. 152, 155-158, 239 P. 856 [costs on appeal]; cf. Harmon v. Pacific Tel. & Tel. Co. (1962) 201 Cal.App.2d 453, 454-456, 20 Cal.Rptr. 118 [same].)

APPEAL

I

Appellants first challenge the $9,715.08 awarded for costs of printing briefs filed in the United States Supreme Court. They argue that respondents were entitled only to those costs allowed them by the federal court's mandate, pursuant to that court's rules, which expressly disallow printing costs for briefs, ⁷ and that...