County of Inyo v. City of Los Angeles

• Decision Date: 27 February 1978
• Citation: 78 Cal.App.3d 82,144 Cal.Rptr. 71
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF INYO, a political subdivision of the State of California, Petitioner, v. CITY OF LOS ANGELES, a Municipal Corporation, and Department of Water and Power of the City of Los Angeles, et al., Respondents. Civ. 13886.

Page 71

144 Cal.Rptr. 71

78 Cal.App.3d 82

COUNTY OF INYO, a political subdivision of the State of California, Petitioner, v. CITY OF LOS ANGELES, a Municipal Corporation, and Department of Water and Power of the City of Los Angeles, et al., Respondents.

Civ. 13886.

Court of Appeal, Third District, California.

Feb. 27, 1978.

Rehearing Denied March 15, 1978.

Hearing Denied May 11, 1978.

L. H. "Buck" Gibbons, Dist. Atty., Inyo County, Antonio Rossmann, Sp. Counsel to the County of Inyo, San Francisco, James B. Weber, Certified Law Student, for petitioner.

Burt Pines, City Atty., Edward C. Farrell, Chief Asst. City Atty. for Water and Power, Kenneth W. Downey, Asst. City Atty., Donald D. Stark, Sp. Counsel for the City of Los Angeles, Irvine, for respondents.

FRIEDMAN, Associate Justice.

We deny Inyo County's motion for imposition of costs (amounting to $1,067.61) and an attorney fee (of $85,267.50) against the adverse party, City of Los Angeles.

The lawsuit is an original mandate action in which Inyo County is the petitioner and Los Angeles the respondent. In 1973 we issued a peremptory writ of mandate directing the City of Los Angeles and its Department of Water and Power to prepare an environmental impact report covering their increased extraction and use of Owens Valley groundwater. (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 108 Cal.Rptr. 377; see also, County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, 132 Cal.Rptr. 167.) As its return to the writ of mandate the City of Los Angeles prepared and filed an environmental impact report. Through its district attorney and its retained special counsel, Inyo County presented briefs, exhibits and argument designed to demonstrate the invalidity of the environmental impact report. On June 27, 1977 we filed a decision sustaining the county's position. We held that the environmental impact report complied with neither the California Environmental Quality Act nor the writ of mandate. In the exercise of our continuing jurisdiction, we directed the city to take "reasonably expeditious action" to comply with the writ. (County of Inyo v. City of Los Angeles (1977), 71 Cal.App.3d 185, 139 Cal.Rptr. 396.) The state Supreme Court rejected the city's petition for hearing. The county then filed the present motion.

I

The parties debate the timeliness of the county's application. In prerogative writ proceedings in the appellate courts the prevailing party may be awarded costs but only by direction of the court in its judgment or before its judgment reaches finality. (Union Trust Co. v. Superior Court (1939) 13 Cal.2d 541, 543-544, 90 P.2d 582.) The city's charge of tardiness is based upon the "finality" of our June 1977 decision rejecting the city's return to the writ of mandate.

The time limitation voiced in Union Trust, supra, stems from the court's lack of jurisdiction after the lawsuit is terminated by a final decision. Our decision of June 1977 was an interim one which did not terminate the lawsuit; rather, it was characterized by a retention of continuing jurisdiction to enforce the writ of mandate until the latter had been satisfied. (County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at p. 205, 139 Cal.Rptr. 396; County of Inyo v. City of Los Angeles, supra, 61 Cal.App.3d at p. 95, 132 Cal.Rptr. 167.) A peremptory writ of mandate does not necessarily exhaust the court's authority; where it does not provide complete relief, the court may continue the lawsuit and make such interim orders as the case may require. (Gonzales v. Intern. Assn. of Machinists (1963) 213 Cal.App.2d 817, 820, 29 Cal.Rptr. 190.) In the absence of a final judgment we retain jurisdiction over the parties and subject matter, as well as ancillary jurisdiction to award costs.

The claim for conventional costs of $1,067.61 covers the expenses of brief printing, a transcript and service of papers. These apparently embrace only the county's costs of resisting the city's insufficient return to the writ and not all costs since inception of the suit. The request is a piecemeal one. Possibly we need not await the suit's termination before awarding costs. In any event, we take our cue from the cost procedures in trial and appellate litigation generally. In a general way, these provide for costs as an incident to the ultimate judgment in the action. (Code Civ.Proc., §§ 1031, 1032, 1033; Cal.Rules of Court, rule 26(a).) If only as a matter of discretion, we defer action on Inyo County's partial bill for conventional costs until it is incorporated in a complete cost bill at the close of the lawsuit.

II

We turn to the attorney fee claim. Section 1021, Code of Civil Procedure, is the California codification of the general American doctrine which denies attorney fees to victorious litigants unless provided by statute or contract. Inyo County's fee application is grounded on three rules or theories which various courts have recognized as nonstatutory exceptions to the general doctrine: the private attorney general rule, the substantial benefit rule and the vexatious litigant rule. (The county terms the last the "obdurate behavior" rule.)

These are three of the four principles, rules or concepts described in Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, which we shall cite as Serrano III. Serrano III described two recognized California principles, rules or theories, stemming from the inherent equitable powers of the courts. "The first of these is the well-established 'common fund' principle: when a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney's fees out of the fund. . . . (P) (T)he second principle, of more recent development, is the so-called 'substantial benefit' rule: when a class action or corporate derivative action results in the conferral of substantial benefits, whether of a pecuniary or nonpecuniary nature, upon the defendant in such an action, that defendant may, in the exercise of the court's equitable discretion, be required to yield some of those benefits in the form of an award of attorney's fees." (Serrano III, at p. 34, 141 Cal.Rptr. at p. 318, 569 P.2d at p. 1306.)

Serrano III described two additional theories grounded largely in federal case law. "The first of these involv(ed) awards against an opponent who has maintained an unfounded action or defense ' "in bad faith, vexatiously, wantonly or for oppressive reasons" ' (11 Cal.3d at p. 26, 112 Cal.Rptr. at p. 804, 520 P,2d at p. 28 (D'Amico v. Board of Medical Examiners (1974), 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10)) . . .'' (Serrano III at p. 42, 141 Cal.Rptr. at p. 324, 569 P.2d at 1312; but see Williams v. MacDougall (1870) 39 Cal. 80, 85-86.)

Quoting from an earlier California decision, Serrano III described the fourth, or private attorney general theory in these terms: " 'This concept, as we understand it, seeks to encourage suits effectuating a strong congressional or national policy by awarding substantial attorney's fees, regardless of defendants' conduct, to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.' " (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 27, 112 Cal.Rptr. at p. 805, 520 P.2d at p. 29.) Serrano III went on to elaborate the private attorney general concept: "Thus it seems to be contemplated that if a trial court . . . determines that the litigation has resulted in the vindication of a strong or societally important, public policy, that the necessary costs of securing this result transcend the individual plaintiffs' pecuniary interest to an extent requiring subsidization, and that a substantial number of persons stand to benefit from the decision, the court may exercise its equitable powers to award attorney fees on this theory." (Id., 20 Cal.3d at p. 45, 141 Cal.Rptr. at p. 325-26.)

It is not certain whether Serrano III intended to postulate four separate standards whose discrete verbal forms would govern fee applications; or, whether it merely described several stock situations in which American courts, in the exercise of an historic discretionary power, have been habitually receptive to those applications. The verbalization of separate formulae seemingly requires a court to test each fee claim against each formula posed as its justification. The historic origin of the award was described and annotated in Trustees v. Greenough (1882) 105 U.S. 527, 26 L.Ed. 1157, Sprague v. Ticonic National Bank (1939) 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184, and Alyeska Pipeline Serv. v. Wilderness Soc. (1975), 421 U.S. 240, 257-258, 95 S.Ct. 1612, 44 L.Ed.2d 141. (See generally, Dawson, Lawyers and Involuntary Clients: Attorney Fees from Funds (1974) 87 Harv.L.Rev. 1597; Hornstein, Legal Therapeutics: The Salvage Factor in Counsel Fee Awards (1956) 69 Harv.L.Rev. 658.) The doctrine was a unitary one, evoked by exceptional cases in equity, "part of the original authority of the chancellor to do equity in a particular solution" and to achieve justice "as between a party and the beneficiaries of his litigation." (Sprague v. Ticonic National Bank, supra, 307 U.S. at pp. 166-167, 59 S.Ct. at p. 780; Fletcher v. A. J. Industries, Inc. (1968) 266 Cal.App.2d 313, 323, 72 Cal.Rptr. 146.)

As occasions for the fee award expanded, as it was evoked by legal victories other than the "common fund" variety, appellate opinion writers resorted to a variety of ad hominem justifications for the expansion. ¹ Other jurists then culled these expressions to bolster their own decisions, transmuting the ad hominem justification into stock formulae. The latter thus assumed the guise of rules, tending to freeze equitable individualization into relatively rigid, verbal molds. Possibly these "rules" are nothing more than an...