Leiserson v. City of San Diego

• Decision Date: 30 June 1988
• Docket Number: No. D006445,D006445
• Citation: 249 Cal.Rptr. 28,202 Cal.App.3d 725
• Court: California Court of Appeals Court of Appeals
• Parties: Steven LEISERSON, Plaintiff and Appellant, v. The CITY OF SAN DIEGO et al., Defendants and Appellants.

Page 28

249 Cal.Rptr. 28

202 Cal.App.3d 725

Steven LEISERSON, Plaintiff and Appellant, v. The CITY OF SAN DIEGO et al., Defendants and Appellants.

No. D006445.

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

June 30, 1988.

Ronald W. Hutcherson, El Cajon, for plaintiff and appellant.

John W. Witt, City Atty., Ronald L. Johnson, Sr. Chief Deputy City Atty., Eugene P. Gordon, Chief Deputy City Atty., and Leslie J. Girard, Deputy City Atty., for defendants and appellants.

WORK, Acting Presiding Justice.

Steven Leiserson appeals an order denying his motion for more than $40,000 in attorney's fees pursuant to CODE OF CIVIL PROCEDURE SECTION 1021.5¹ which provides for the award of attorney's fees under a private attorney general theory. Leiserson contends the trial court erred in concluding he was not a successful litigant for the purposes of such an award because, although his tort action was financially unsuccessful, his lawsuit was the catalyst for the public benefit he perceives flowing from our appellate pronouncement delineating previously undefined rights of news gatherers at disaster sites and the City's amendment of its written police policies regarding these persons at disaster sites. Defendants City of San Diego et al. (City) respond by asserting the motion was patently frivolous, untimely and was properly denied and cross-appeal claiming the trial court abused its discretion in denying their request for sanctions under section 128.5. For the reasons which follow, we conclude as a matter of law Leiserson was not a "successful" party within the meaning of section 1021.5 and, thus, is not entitled to attorney's fees. We also hold the issues he raises and his appeal are not frivolous. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The factual background underlying this litigation is recounted in detail in Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41, 44-46, 229 Cal.Rptr. 22. We summarize. Leiserson, a news cameraman for a local television station, was arrested by a San Diego police officer while photographing the site of the Pacific Southwest Airlines (PSA) jetliner crash in a residential section of central San Diego where approximately 150 persons were killed on September 25, 1978. The arrest followed his refusal to remain away from the crash site where rescue and fire personnel were engaged. After the misdemeanor criminal complaint filed against him was dismissed, he sued the City and others for damages for their false imprisonment, assault, battery, torture, intentionally inflicting mental distress, conspiring to violate his civil rights, violating his civil rights, interfering with his contract relations, invading his privacy and malicious prosecution. He asserted his arrest was unreasonable because Penal Code section 409.5, subdivision (d) gave him the right to remain at the disaster site as a media representative. The trial court found for defendants, reasoning the police acted properly in ordering Leiserson away from the crash site and arresting him for failing to comply with that order. The court concluded the officers reasonably believed the crash site might constitute a crime scene from which members of the press may be excluded. Moreover, the trial judge held the right of press access guaranteed by Penal Code section 409.5, subdivision (d) did not extend to situations where the police reasonably believed members of the press would be endangered by entering the disaster area. In any event, the trial judge noted the police complied with the statute by providing a cordoned-off press area within 60 feet of the crash site.

On appeal, we affirmed the trial court's decision, holding substantial evidence supported the trial court's finding the police reasonably believed the disaster site was also the scene of a possible crime and, thus, Penal Code section 409.5, subdivision (d) did not guarantee Leiserson access beyond that designated by the police. (Leiserson v. City of San Diego, supra, 184 Cal.App.3d at pp. 44, 52-53, 229 Cal.Rptr. 22.) However, our determination required us to analyze Penal Code section 409.5 within the context of the trial court's remaining findings to determine the extent of media access guaranteed. We weighed Leiserson's claim the statute gave the press unrestricted access to disaster sites for the purpose of news gathering so long as they do not interfere with emergency crews performing their duties and the uncontradicted evidence there was no interference by Leiserson. ( Id. at p. 49, 229 Cal.Rptr. 22.) We concluded two of the trial court's three independent justifications for the police conduct were insufficient. More specifically, we held safety is not a ground to exclude press members from a disaster site because the statute provides a specific exception for members of the media in situations already determined to be unsafe. ( Id. at p. 50, 229 Cal.Rptr. 22.) Similarly, we held that providing a separate confined area for the press at disaster sites does not comport with the mandate of the statute, because press access must be unrestricted unless police personnel at the scene reasonably determine such unrestricted access will interfere with emergency operations. ( Id. at p. 51, 229 Cal.Rptr. 22.) However, the trial court's determination the police reasonably believed the crash may have been the result of an assassination attempt on the life of a public official erroneously believed to have been aboard the plane was supported by the record. Thus, we concluded the traditional right to exclude the press from crime scenes justified the police order leading to Leiserson's arrest. (Id. at pp. 52-53, 229 Cal.Rptr. 22.)

After our opinion became final, Leiserson moved for attorney's fees of $40,953.50 pursuant to section 1021.5, contending his action had resulted in enforcing an important right affecting the public interest and conferring significant benefits on both the general public and the California news media. He further alleged the necessity and financial burden of private enforcement made the award appropriate since he lost his damages claim.

Leiserson theorizes he is entitled to fees because his damages action served to vindicate the media's right to gather and disseminate information from and about disaster sites on behalf of the public at large and acted as a catalyst for policy reforms by the San Diego Police Department and a published appellate court decision delineating previously undefined rights of the news media. ²

In support of the motion, Leiserson and his counsel filed declarations. Leiserson's declaration summarized his inability to gain assistance from large and small news organizations, his employer, KFMB- TV, The Press Club, Sigma Delta Chi, Society of Professional Journalists, the American Civil Liberties Union, the Law Firm of Gray, Cary, Ames & Frye which had handled his criminal defense, and several other attorneys in pursuing his civil action. ³ Leiserson summarizes his position as follows:

"It was my desire through such an action to rehabilitate myself in the eyes of my employer and to elevate my own self esteem. Critical, however, to the entire effort was my interest in seeing enforced that which I had taken for granted throughout my career, namely, the right to photograph events at the scene of disasters."

His counsel's declaration affirms Leiserson's difficulty in obtaining civil representation. The attorney explained the litigation's procedural history; noted mandatory judicial arbitration was ordered in which the arbitrator awarded Leiserson $7,500, but the defendants elected a trial de novo; perceived Leiserson was a crusader in bringing forth a case of first impression regarding the judicial construction of Penal Code section 409.5 terminating in an appellate court decision delineating "significant and previously undefined rights of news gatherers at accident and disaster sites and restraints on law enforcement officials relating to those news gatherers"; suggested Leiserson apparently had a role in the revision of the policies and training of the San Diego Police Department; stated that, although this case was originally filed as a damage claim, there was little likelihood from the inception of the action that damages sufficient to defray actual costs of litigation could be recovered, as Leiserson's proof of special damages from medical treatment were less than $20 and other special damages were minimal; and emphasized post-filing discovery revealed exemplary damages were not recoverable against the City. Accordingly, Leiserson now claims he pursued the litigation simply to vindicate his rights and seek a judicial interpretation of Penal Code section 409.5, subdivision (d).

The City contended Leiserson was not a "successful" litigant within the meaning of section 1021.5 and, moreover, had enforced no "important right affecting the public interests." The City also asserted the motion was untimely and patently frivolous, warranting the award of sanctions pursuant to section 128.5. In denying Leiserson's motion, the trial court expressed its concern whether Leiserson was a "prevailing" party as defined by this court's truncated statement in Macias v. Municipal Court (1986) 178 Cal.App.3d 568, 580, 223 Cal.Rptr. 756, that "[n]either the statute nor the case law authorize the award of attorney fees to a party who has been adjudicated the loser." Rising to the City's argument Leiserson only sought damages and obtained none and that the language in Macias on which Leiserson relied is largely dicta, the court stated:

"That's my concern. My concern and the reason that I am going to leave the tentative as the order of the court is because I interpret the language--.

"I don't know that this is a frivolous motion. It's an interesting theory that is being argued here by plaintiffs and I can't find anything directly on point, but I have problems with putting the law together such that if the court...