In re Adoption of Joshua S.

• Decision Date: 24 January 2008
• Docket Number: No. S138169.,S138169.
• Citation: 70 Cal.Rptr.3d 372,42 Cal.4th 945,174 P.3d 192
• Court: California Supreme Court
• Parties: Adoption of JOSHUA S., a Minor. Annette F., Plaintiff and Respondent, v. Sharon S., Defendant and Appellant.

70 Cal.Rptr.3d 372

42 Cal.4th 945

174 P.3d 192

Adoption of JOSHUA S., a Minor.

Annette F., Plaintiff and Respondent, v. Sharon S., Defendant and Appellant.

No. S138169.

Supreme Court of California.

January 24, 2008.

Blatchley & Blatchley, William E. Blatchley, San Diego; John L. Dodd & Associates and John L. Dodd, Tustin, for Defendant and Appellant.

Luce, Forward, Hamilton & Scripps and Charles A. Bird. San Diego, for Plaintiff and Respondent,

Jennifer C. Pizer. Brian Chase, Shannon Minter and Courtney Joslin, for Children of Lesbians and Gays Everywhere, Family Pride Coalition, Los Angeles Gay & Lesbian Center, Lambda Legal Defense & Education Fund, Lesbian & Gay Lawyers Association

of Los Angeles, National Center for Lesbian Rights, Our Family Coalition, Pop Luck Club, San Diego Family Matters and Tom Homann Law Association as Amid Curiae on behalf of Plaintiff and Respondent.

Rosen, Bien & Asaro, Andrea G. Asaro and Amy Whelan, San Francisco, for American Civil Liberties Union, Bay Area Lawyers for Individual Freedom, Legal Services for Children, Western Center on Law & Poverty, Youth Law Center and Protection & Advocacy, Inc., as Amici Curiae on behalf of Plaintiff and Respondent.

Shute, Mihaly & Weinberger, Ellison Folk, Robert S. Perlmutter, San Francisco, and Jenny K. Harbine, for Planning and Conservation League, Natural Resources Defense Council and Baykeeper as Amici Curiae on behalf of Plaintiff and Respondent.

Manning & Marder, Kass, Ellrod, Ramirez, Scott Wm. Davenport and Jason J. Molnar, San Diego, for Los Angeles County Bar Association and Beverly Hills Bar Association as Amici Curiae on behalf of Plaintiff and Respondent.

Judith E. Klein, La Mesa, for Minor.

MORENO, J.

In Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 2 Cal.Rptr.3d 699, 73 P.3d 554 (Sharon S.), we validated a so-called "second parent" adoption, in which the same-sex partner of a birth mother adopted the mother's child, while the mother remained a coparent. Subsequently, the prevailing party in that case, Annette F. (Annette), sought attorney fees under the "private attorney general" attorney fee statute, Code of Civil Procedure section 1021.5,¹ to be paid by the losing party, Sharon S. (Sharon). The trial court awarded such fees but the Court of Appeal reversed. As will be explained at greater length below, the court concluded that because of Annette's large personal stake in the outcome of the litigation, she was not acting as an authentic private attorney general. We granted review to address that issue. We subsequently ordered supplemental briefing on the following question: Does section 1021.5 authorize an award of attorney fees against a litigant who has done nothing to adversely affect the rights of the public or a substantial class of people other than raising an issue in the course of litigation over private rights and interests that results in an important appellate precedent adverse to that litigant?

As explained below, we do not decide whether the trial court abused its discretion in determining that the extent and scope of the litigation transcended Annette's personal stake in its outcome. Rather, we hold that section 1021.5 does not authorize an award of attorney fees against an individual who has done nothing to adversely affect the rights of the public or a substantial class of people other than raise an issue in the course of private litigation that could establish legal precedent adverse to a portion of the public, and that therefore fees should not be awarded in the present case. As elaborated below, both the language and legislative history of section 1021.5 support this interpretation. We therefore affirm the judgment of the Court of Appeal on that basis.

I. STATEMENT OF FACTS

The facts are for the most part undisputed. Sharon and Annette were in a committed relationship from 1989 through mid-2000. In 1996 Sharon was artificially inseminated and gave birth to Zachary. While retaining her parental rights, Sharon consented to Annette's adoption of the child. (Sharon S., supra, 31 Cal.4th at p. 422, 2 Cal.Rptr.3d 699, 73 P.3d 554.)

In 1999, Sharon was again artificially inseminated by the same sperm donor and gave birth to Joshua. Sharon and Annette made the same agreement allowing Annette to adopt Joshua while Sharon retained her parental rights. Thereafter the relationship between Sharon and Annette deteriorated and Annette left the family home. Annette filed a motion for an order of adoption. Sharon moved for court approval to withdraw her consent to adopt and to dismiss Annette's petition. Sharon relied on several arguments, including that the form of second parent adoption sought was unlawful. (Sharon S., supra, 31 Cal.4th at pp. 422-424, 2 Cal.Rptr.3d 699, 73 P.3d 554.)

The trial court denied the motion to dismiss the adoption. Sharon filed and the Court of Appeal granted a petition for writ of mandate, holding that the form of second parent adoption sought by Annette was without statutory basis. We granted Annette's petition for review and reversed, finding that second parent adoptions like that sought by her were lawful. We remanded the matter for resolution of factual issues related to Sharon's claim that her consent to the adoption had been gained by fraud and duress and to ensure that the relevant administrative and statutory requirements of the second parent adoption had been satisfied. (Sharon S., supra, 31 Cal.4th at pp. 445-446, 2 Cal.Rptr.3d 699, 73 P.3d 554.)

Before the resolution of the other issues, Annette moved for an award of attorney fees in the amount of $138,939.78 pursuant to section 1021.5. Annette sought the fees for legal services provided by her counsel, Charles Bird of the firm Luce, Forward, Hamilton and Scripps (Luce), in the Court of Appeal and Supreme Court leading to the decision in Sharon S.

Annette's supporting papers noted that although the matter was not yet fully resolved, Annette had prevailed in the Supreme Court on the second parent adoption issue, an issue of benefit to a large class of persons, and argued that she was therefore entitled to an award of fees pursuant to the private attorney general provisions of section 1021.5 for that portion of the case.

Bird, Annette's attorney, filed a declaration stating that he was initially approached in August of 2001 by someone who had written an amicus curiae brief or letter brief on Annette's behalf, when the matter was pending in the Court of Appeal, out of concern that the outcome of the case may have a far-reaching, detrimental effect. Bird eventually decided to represent Annette, and argued on her behalf in the Court of Appeal. When the Court decided against Annette solely on the ground that second parent adoption was without statutory basis, Bird prepared an unsuccessful petition for rehearing and then a successful petition for review in this court. He prepared the briefs and argued the case in this court, which included extensive analysis of the legislative history of the relevant statutes, a brief responding to the various amici curiae, an answer to Sharon's petition for rehearing and an answer to Sharon's petition for a writ of certiorari in the United States Supreme Court.

Bird's declaration further stated that Annette and Luce had entered into a written engagement agreement providing for payment of a fee at a described rate and for the reimbursement of expenses, with an estimation that the cost of oral argument in the Court of Appeal was likely to ran between $8,000 and $10,000. He discussed with Annette that if she lost in the Court of Appeal, the fees from continuing the litigation would likely outstrip her ability to pay, but that he would continue to represent her on the second parent adoption issue because of his concern for the law made by the case. He explained that his firm would take the chance of prevailing and potentially recovering attorney fees based on the public benefit resulting from the work.

The trial court awarded $92,049.15 in attorney fees to Annette. The court found the Supreme Court's decision conferred a significant nonpecuniary benefit on a large class of persons and resolved an important issue of law. The trial court also concluded, for reasons elaborated below, that notwithstanding the fact that Annette had a personal stake in the outcome of the litigation, the cost of the litigation was out of proportion to that stake.

The Court of Appeal reversed. While not disputing that the litigation conferred significant benefits on a large class of persons and resolved an important issue of law, the court concluded that Annette's personal stake in the litigation, i.e., the vindication of her rights as an adoptive parent, were so large that a private attorney general award under section 1021.5 was not justified. In so concluding, the court rejected Annette's argument that nonpecuniary interests such as hers were not to be counted among the personal interests that could defeat a section 1021.5 award.

We granted review and subsequently sought the supplemental briefing described above.

II. DISCUSSION

A. The Necessity and Financial Burden Requirement

Eligibility for section 1021.5² attorney fees is established when "(1) plaintiffs' action `has resulted in the enforcement of an important right affecting the public interest,' (2) `a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons' and (3) `the necessity and financial burden of private enforcement are such as to make the award appropriate.'" (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935, 154 Cal.Rptr. 503, 593 P.2d 200 (Woodland Hills).)

There is no question that the litigation here did yield a substantial and widespread public benefit. In Sharon S., supra, 31 Cal.4th at page 437, 2 Cal.Rptr.3d 699, 73 P.3d 554, we estimated that there were between 10,000 and 20,000 second parent adoptions in the state that...