Lindelli v. Town of San Anselmo

• Decision Date: 26 May 2006
• Docket Number: No. A108886.,A108886.
• Citation: 139 Cal.App.4th 1499,43 Cal.Rptr.3d 707
• Court: California Court of Appeals Court of Appeals
• Parties: Suzanne N. LINDELLI et al., Plaintiffs and Respondents, v. TOWN OF SAN ANSELMO et al., Defendants and Respondents, Marin Sanitary Service, Real Party in Interest and Respondent, Remcho, Johansen & Purcell, Movant and Appellant.

43 Cal.Rptr.3d 707

139 Cal.App.4th 1499

Suzanne N. LINDELLI et al., Plaintiffs and Respondents, v. TOWN OF SAN ANSELMO et al., Defendants and Respondents Marin Sanitary Service, Real Party in Interest and Respondent Remcho, Johansen & Purcell, Movant and Appellant.

No. A108886.

Court of Appeal, First District, Division 5.

May 26, 2006.

No appearance of counsel for plaintiffs and respondents.

No appearance of counsel for defendants and respondents.

Bien & Summers, Elliot L. Bien, Novato; Ragghianti Freitas, Gary T. Ragghianti, San Rafael, for real party in interest and respondent.

Remcho, Johansen & Purcell, Robin B. Johansen and Thomas A. Willis, for movant and appellant.

GEMELLO, J.

The issue presented is whether attorneys acting on their own behalf can intervene in a client's lawsuit and move for attorney fees under Code of Civil Procedure section 1021.5, which provides for fee awards in cases resulting in the enforcement of important rights affecting the public interest.

In Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 4 Cal.Rptr.3d 453 (Lindelli I), we held that the Town of San Anselmo violated the stay provisions of Elections Code section 9241 in awarding an interim contract for waste management services to Marin Sanitary Service notwithstanding the fact that an earlier ordinance awarding a contract for such services to Marin Sanitary Service was the subject of an upcoming referendum election. The case returns because on remand, the successful petitioners, Suzanne N. Lindelli and North Bay Corporation, declined to authorize their attorneys, Remcho, Johansen & Purcell (RJP), to file a motion for an award of attorney fees under Code of Civil Procedure section 1021.5.¹ Thereafter, RJP sought leave to intervene to file a motion for attorney fees on their own behalf. The trial court denied RJP's motion.

Resolution of the issue presented is directed by Flannery v. Prentice (2001) 26 Cal.4th 572, 110 Cal.Rptr.2d 809, 28 P.3d 860 (Flannery). In Flannery, the California Supreme Court held that, absent an agreement allocating fee awards to the client, fees awarded under the Fair Employment and Housing Act "belong to the attorneys who labored to earn them." (Flannery, at p. 575, 110 Cal.Rptr.2d 809, 28 P.3d 860.) The court departed from federal precedent and construed "prevailing party" in Government Code section 12965 to refer to either a litigant or its counsel. (Flannery, at p. 578, 110 Cal. Rptr.2d 809, 28 P.3d 860.) Following the reasoning of the Flannery decision, we hold that RJP has standing to move for fees and sufficient interest in an award of attorney fees under section 1021.5 to support permissive intervention under Code of Civil Procedure section 387, subdivision (a). We reverse and remand for the trial court to calculate and award a reasonable fee for the appeal in Lindelli I.

FACTUAL AND PROCEDURAL BACKGROUND

We incorporate the factual and procedural background from our decision in Lindelli I, supra, 111 Cal.App.4th at pp. 1103-1104, 4 Cal.Rptr.3d 453.

From 1994 to 2002, San Anselmo Refuse & Recycling, an affiliate of North Bay Corporation (collectively North Bay), provided waste management services for San Anselmo. The North Bay franchise was to expire on November 30, 2002. On August 27, 2002, San Anselmo passed a resolution awarding the new waste management franchise to a competitor, Marin Sanitary Service.

Petitioner Suzanne Lindelli (Lindelli) and others obtained enough signatures to qualify a referendum petition protesting the award of the franchise to Marin Sanitary Service. The petition was certified on September 26, 2002. On September 28, San Anselmo published a notice seeking interim contract proposals for the period from expiration of the existing franchise agreement until a referendum election could be held. North Bay, Marin Sanitary Service, and a third party submitted bids. On October 8, San Anselmo awarded an interim contract to Marin Sanitary Service under the identical terms and conditions as the challenged franchise agreement. The interim contract differed from the original franchise agreement only in its duration. San Anselmo set the vote on the referendum petition for the next permissible general election, November 4, 2003.

On October 9, 2002, North Bay and Lindelli filed a written protest. They argued that the interim contract violated the stay provisions of Elections Code section 9241. After receiving no response, they filed a petition for writ of mandate, which was denied by the trial court. Lindelli and North Bay then sought a writ of mandate and stay from this court to stop the interim contract from going into effect. We denied their petition.

On appeal from the trial court's decision on the petition for writ of mandate, Lindelli and North Bay withdrew their request to have Marin Sanitary Service removed as interim provider and confined themselves to a request for a ruling that the issuance of the interim contract to Marin Sanitary Service was unlawful. We denied San Anselmo's motion to dismiss the appeal as moot. Although Lindelli and North Bay's concession that they were no longer seeking removal of the interim provider ordinarily might have rendered the case moot, we exercised our discretion to consider the appeal on the merits because "[t]he election law issue presented in this case is one of broad importance, capable of recurring, and likely otherwise to escape review." (Lindelli I, supra, 111 Cal.App.4th at p. 1104, 4 Cal.Rptr.3d 453.)

On the merits, we concluded that San Anselmo had violated the stay provisions of Elections Code section 9241 in accepting bids for an interim contract and then awarding Marin Sanitary Service the yearlong interim contract until the referendum election. (Lindelli I, supra, 111 Cal. App.4th at pp. 1103, 1111, 4 Cal.Rptr.3d 453.) We reversed the trial court judgment denying the petition for writ of mandate and remanded for further proceedings in accord with our decision. (Id. at p. 1115, 4 Cal.Rptr.3d 453.)

The principal issue on remand was whether petitioners were entitled to attorney fees under section 1021.5. Although RJP charged petitioner North Bay on an hourly basis for litigating this case in the trial court, RJP agreed to pursue the appeal in Lindelli I, supra, 111 Cal.App.4th 1099, 4 Cal.Rptr.3d 453 without charge to the petitioners, based on the expectation of a statutory fee award. On July 29, 2004, a few days before RJP intended to file an attorney fees motion on petitioners' behalf, RJP learned from petitioner North Bay that it no longer wished to be a moving party in the fee request. On August 3, 2004, petitioner Lindelli informed RJP that she also no longer wished to be a moving party in the fee request.

On August 4, 2004, RJP filed a motion to intervene under section 387 to request reasonable attorney fees and costs pursuant to section 1021.5. Real party in interest Marin Sanitary Service opposed the motion and San Anselmo joined in the opposition. The trial court denied RJP's motion, concluding that RJP lacked standing to seek an award of fees on their own behalf.²

DISCUSSION

I. General Standards for Permissive Intervention

Section 387, subdivision (a), states in relevant part: "Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding." A third party may intervene (1) where the proposed intervenor has a direct interest, (2) intervention will not enlarge the issues in the litigation, and (3) the reasons for the intervention outweigh any opposition by the present parties. (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 139, 111 Cal.Rptr.2d 689.) "The purpose of allowing intervention is to promote fairness by involving all parties potentially affected by a judgment." (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1199, 242 Cal.Rptr. 447; see also City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030 1036, 27 Cal.Rptr.3d 722 (San Francisco) [section 387 "balances the interests of others who will be affected by the judgment against the interests of the original parties in pursuing their litigation unburdened by others"].) Section 387 should be liberally construed in favor of intervention. (Simpson Redwood Co., at p. 1200, 242 Cal.Rptr. 447.)

The fundamental question as to the permissive intervention standards is whether RJP has the type of direct interest in a section 1021.5 fee award required to support intervention under section 387. To support permissive intervention, the proposed intervener's interest must be direct rather than consequential, and it must be an interest that is capable of determination in the action. (San Francisco, supra, 128 Cal.App.4th at pp. 1037, 27 Cal.Rptr.3d 722.) "The requirement of a `direct' and `immediate' interest means that the interest must be of such a direct and immediate nature that the moving party `"will either gain or lose by the direct legal operation and effect of the judgment." [Citations.]' `A person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation.' [Citations.] Conversely, `An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner.'" (Ibid.)

A trial court decision to grant or deny an intervention request is ordinarily reviewed for abuse of discretion. (San Francisco, supra, 128 Cal.App.4th at p. 1036, 27 Cal.Rptr.3d 722.) However, whether RJP has sufficient interest in a section 1021.5 fee award to support intervention under section 387 is a question of statutory interpretation subject to de novo...