McDowell v. Watson

Decision Date09 December 1997
Docket NumberNo. E018130,E018130
CourtCalifornia Court of Appeals Court of Appeals
Parties, 97 Cal. Daily Op. Serv. 9257, 97 Daily Journal D.A.R. 14,899 Eion McDOWELL, et al., Plaintiffs and Respondents, v. William WATSON, Defendant and Appellant.

Page 692

69 Cal.Rptr.2d 692
59 Cal.App.4th 1155, 97 Cal. Daily Op. Serv. 9257,
97 Daily Journal D.A.R. 14,899
Eion McDOWELL, et al., Plaintiffs and Respondents,
v.
William WATSON, Defendant and Appellant.
No. E018130.
Court of Appeal, Fourth District, Division 2, California.
Dec. 9, 1997.

Page 694

[59 Cal.App.4th 1158] McNamara, Van Blarcom, McClendon & Leibold, P.C., Stephen M. McNamara, Orange and John G. McClendon, Newport Beach, for Defendant and Appellant.

James DeAguilera, Redlands, for Plaintiffs and Respondents.

OPINION

McKINSTER, Acting Presiding Justice.

Challenging various approvals given by the County of Riverside to a development on land owned by William Watson, Eion and Clara McDowell unsuccessfully petitioned the trial court for a writ of mandate and injunction. After the trial court denied the McDowells' petition, 1 Watson moved for attorney's

Page 695

fees pursuant to Code of Civil Procedure section 1021.1 and for sanctions pursuant to Public Resources Code section 21167.8. The trial court denied both motions. Watson appeals. Finding no abuse of discretion, we affirm.
ISSUES ON APPEAL

Regarding the denial of the motion for attorney's fees pursuant to Code of Civil Procedure section 1021.1, was the gravamen of the cause of action asserted by the McDowells one for injunctive relief?

Regarding the denial of the motion for sanctions pursuant to Public Resources Code section 21167.8, were the McDowells required by statute to personally attend the settlement meeting? If they were not, did the trial court abuse its discretion in denying the motion as to their counsel?

DISCUSSION

A. THE MOTION FOR ATTORNEY'S FEES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 1021.1 WAS PROPERLY DENIED.

The McDowells' original petition was filed in September of 1994. On January 26, 1995, Watson served an offer, "pursuant to Code of Civil Procedure §§ 998 and 1021.1, to compromise and settle the above matter in exchange for petitioners dismissing the matter with prejudice. Each party to this compromise is to bear its own costs and attorney's fees." The McDowells did not accept that offer.

[59 Cal.App.4th 1159] The judgment entered in favor of the county and Watson after the trial court denied the McDowells' petition entitled Watson to recover his costs of suit from the McDowells. (Code Civ. Proc., § 1032, subd. (b).) Since Watson had previously offered to waive costs, the judgment was less favorable to the McDowells than the offer to compromise had been.

A trial court may, in its discretion, award reasonable compensation for attorney's fees incurred after the date of an offer to compromise if that offer is made pursuant to Code of Civil Procedure section 998, the offeree has failed to accept it, and the offeree thereafter fails to obtain a more favorable judgment. (Code Civ. Proc., § 1021.1, subd. (b).) Those prerequisites having been met, Watson moved for an award of attorney's fees in November of 1995. The trial court denied the motion.

1. Compensation May Not Be Awarded Under Code of Civil Procedure Section 1021.1 for Attorney's Fees Incurred to Litigate Any Count in Which the Relief Sought Is Essentially Injunctive in Nature.

Subdivision (f) of Code of Civil Procedure section 1021.1 limits the trial court's authority to award attorney's fees by providing in relevant part: "No attorney's fees shall be awarded pursuant to this section in any of the following instances: ... [p] (5) For or against any party as to any cause of action the gravamen of which is personal injury, wrongful death, or injunctive relief." The McDowells contend that the gravamen of their suit was for injunctive relief, and thus the motion was properly denied.

The statutory reference to a "cause of action the gravamen of which is ... injunctive relief" is ambiguous. Strictly speaking "a 'cause of action' is comprised of a 'primary right' of the plaintiff, a corresponding 'primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty." (Crowley v. Katleman (1994) 8 Cal.4th 666, 681, 34 Cal.Rptr.2d 386, 881 P.2d 1083.) The gravamen, or essential nature (see Williamson v. Pacific Greyhound Lines (1944) 67 Cal.App.2d 250, 252-253, 153 P.2d 990), of a cause of action is determined by the primary right alleged to have been violated, not by the remedy sought (R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1194, 218 Cal.Rptr. 667). The nature of the relief sought does not determine the nature of the cause of action because the violation of one primary right may entitle the injured party to many different forms of relief. (Crowley, p. 682, 34 Cal.Rptr.2d 386, 881 P.2d 1083; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 30, p. 92.) "Injunctive relief is a remedy and not, in itself, a cause of action...."

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(Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168, 125 P.2d 930.)

[59 Cal.App.4th 1160] Nevertheless, the phrase "cause of action" is also "commonly used in pleading as applying only to the relief sought, even though the separately pleaded claims have origin in the same right or obligation." (Ideal Hardware etc. Co. v. Dept. of Emp. (1952) 114 Cal.App.2d 443, 448, 250 P.2d 353; accord, Slater v. Blackwood (1975) 15 Cal.3d 791, 796, 126 Cal.Rptr. 225, 543 P.2d 593.)

Were the Legislature to have intended "cause of action" to be understood in its technical sense, subdivision (f)(5) of Code of Civil Procedure section 1021.1 would be meaningless, because injunctive relief is never the gravamen of a cause of action. In this instance, therefore, "cause of action" must have been used in the latter, more common, sense. Accordingly, we interpret Code of Civil Procedure section 1121.1, subdivision (f)(5), to prohibit an award of attorney's fees incurred to litigate any count in which the relief sought is essentially injunctive in nature. 2

2. The Relief Sought by the McDowells Was Essentially Injunctive.

What, then, is the nature of injunctive relief? An injunction is statutorily defined to be "a writ or order requiring a person to refrain from a particular act." (Code Civ. Proc., § 525.) While the statute seems to limit that definition to prohibitory injunctions, an injunction may also be mandatory, i.e., may compel the performance of an affirmative act. (Smith v. Smith (1941) 18 Cal.2d 462, 465, 116 P.2d 3; Luitwieler v. Superior Court (1921) 54 Cal.App. 528, 530, 202 P. 165.) In short, an injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. (E.g., Comfort v. Comfort (1941) 17 Cal.2d 736, 741, 112 P.2d 259 [" 'to do or desist from certain action' "].)

When Watson made his offer to compromise, the operative pleading was entitled the "Second Amended Petition for Writ of Mandate." Other than attorney's fees and costs, the only relief for which the McDowells prayed in that pleading was (1) a writ of mandate directing the county to comply with the California Environmental Quality Act (CEQA) by preparing an environmental impact report on what they characterized as Watson's "new" project, and (2) preliminary and permanent injunctions restraining the county from taking any actions to implement or to permit the implementation of Watson's project until the county had complied with CEQA.

[59 Cal.App.4th 1161] Thereafter, the pleadings were amended one last time by the filing of the "Third Amended Petition for Writ of Mandate and Complaint for Injunctive Relief." Like the prior version, it seeks: a writ of mandate directing the county to vacate the agricultural grading permit previously issued to Watson, to vacate the approval of the subdivision, and to prepare an EIR; and preliminary and permanent injunctions restraining the implementation of the subdivision pending compliance with CEQA.

In short, the McDowells sought relief consisting of orders commanding the county to perform certain acts and to refrain from performing certain other acts. It is therefore injunctive in nature, regardless of whether that relief were to come in the form of an order entitled "writ of mandate" or "permanent injunction." All of the relief sought being essentially injunctive, it falls within the exception created by subdivision (f)(5) of Code of Civil Procedure section 1021.1. Therefore, the trial court did not err by refusing Watson's request for an award of attorney's fees under that section.

Watson contends that the legislative history of Code of Civil Procedure section 1021.1 indicates that the reference to injunctive relief in subdivision (f)(5) was intended to exclude actions seeking relief in the form of writs of mandate. After taking judicial notice of and reviewing the relevant

Page 697

evidence of legislative intent, 3 we find no such indication. To the contrary, there is nothing to suggest that the Legislature intended to draw a distinction between cases in which the relief sought is expressly identified as an injunction and those in which the relief, although essentially injunctive, is referred to by a different label.

[59 Cal.App.4th 1162] Watson also argues that, by acknowledging that the relief provided by a writ of mandate is injunctive in nature, we threaten to erase all procedural distinctions between mandate and injunctions. We do nothing of the kind. While there are procedural differences between the two forms of relief (see 6 Witkin, Cal. Procedure, supra, Provisional

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Remedies, § 279, pp. 221-222), we are concerned here with the substantive nature, the gravamen, of the relief itself. Recognizing that they are substantively the same in purpose and effect does not eliminate the procedural differences attending to them.

Arguing that the McDowells' requests for injunctive relief were without merit and made in bad faith, Watson also asks us to limit the scope of the [59 Cal.App.4th 1163] exception created by Code of Civil Procedure section 1021.1,...

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