Northington v. Davis

• Decision Date: 03 April 1979
• Court: California Supreme Court
• Parties: , 593 P.2d 221 Susan NORTHINGTON et al., Plaintiffs and Respondents, v. Edward DAVIS, as Chief of Police, etc., et al., Defendants and Appellants. L.A. 30731.

Page 524

154 Cal.Rptr. 524

23 Cal.3d 955, 593 P.2d 221

Susan NORTHINGTON et al., Plaintiffs and Respondents, v. Edward DAVIS, as Chief of Police, etc., et al., Defendants and Appellants.

L.A. 30731.

Supreme Court of California.

April 3, 1979.

Burt Pines, City Atty., Claude E. Hilker and Jerome Montgomery, Asst. City Attys., and Gregory C. O'Brien, Jr., Deputy City Atty., for defendants and appellants.

Daniel M. Luevano, Los Angeles, Robert T. Olmos, Delano, Patricia Tenoso, John E. McDermott, Michele Washington, Richard Rothschild, Rosalyn M. Chapman, Los Angeles, Diane Messer, Long Beach, and Linda Taylor Ferguson, Los Angeles, for plaintiffs and respondents.

Antonio Rossman, Woodland Hills, Carlyle W. Hall, Jr., Brent N. Rushforth, and John R. Phillips, Los Angeles, as amici curiae on behalf of plaintiffs and respondents.

TOBRINER, Justice.

This case, like Woodland Hills Residents Assn., Inc. v. City Council of Los Angeles, ante, 154 Cal.Rptr. 503, --- P.2d ----, presents a question as to the propriety of an attorney fee award in public interest litigation. In this case, as in Woodland Hills, at the time the trial court passed on plaintiffs' motion for attorney fees neither statutory nor judicial authority in California sanctioned an attorney fee award under the private attorney general theory, and the trial court consequently did not grant fees on that theory. Unlike Woodland Hills, however, the trial court in this case did award attorney fees against the city defendants on the basis of the substantial benefit theory. The city now appeals from the attorney fee award, contending that under this court's analysis of the substantial benefit doctrine in Serrano v. Priest (1977) 20 Cal.3d 25, 38-42, 141 Cal.Rptr. 315, 569 P.2d 1303 (Serrano III ), the award of fees pursuant to that doctrine was erroneous. In addition, the city maintains that, in any event, the $11,000 attorney fee award granted in this case was excessive.

For the reasons discussed below, we have concluded that the challenged portion of the judgment should be reversed and the case remanded to the trial court for reconsideration of plaintiffs' attorney fee motion. As we explain, although we believe that under the facts of this case the trial court may appropriately award attorney fees under the substantial benefit theory, in our view both the trial court's reasoning and the size of the present award demonstrate that the challenged award cannot be sustained solely on the basis of that theory; thus, a remand of the attorney fee ruling is necessary. We also hold that, upon remand, the trial court should reconsider the applicability of the private attorney general doctrine in light of the newly enacted provisions of Code of Civil Procedure section 1021.5.

1. The facts.

Plaintiffs Susan Northington and Theresa Johnson instituted the underlying taxpayer suit against various employees and agencies of the City of Los Angeles, challenging the legality of the imminent construction of a helipad (i. e., a helicopter landing strip) on the roof of a proposed police station in South Central Los Angeles. The site of the proposed helipad was approximately 250 feet from a public elementary school, and plaintiffs contended that under Public Utilities Code section 21662.5 ¹ the city could not legally proceed with the construction without first obtaining the approval of the State Department of Transportation (previously the Department of Aeronautics). Plaintiffs sought both declaratory and injunctive relief to prohibit the city from constructing the police station as planned.

At the time plaintiffs' complaint was filed, the city's plans for the proposed police station called for the construction of an unstriped, unequipped concrete pad on the roof of the station (capable in the future of being converted into a helipad) and for the inclusion of various structural elements (column footings, beams, joints and a stairway) which would only be necessary if a helipad was, in fact, ultimately located on the building. Shortly after the filing of the complaint, and apparently in part as a result of this lawsuit, the police department eliminated plans for the bare concrete pad on the roof of the structure, thereby reducing the cost of the proposed building by $7,615. The city refused, however, to eliminate the internal structural elements (estimated to cost $1,985) that would be needed if a helipad were to be constructed on the police station in the future.

Although the city conceded in its answer to the complaint that it had not obtained the approval of the Department of Transportation required by section 21662.5, and further conceded that such approval would have to be obtained before a helipad was actually constructed and put into operation on the building, the city maintained that under section 21662.5 no approval was required simply to construct a building that was structurally capable of supporting a helipad. Plaintiffs argued in response that before the city could legally spend public funds for improvements whose purpose was solely to support a helipad, the city was required to obtain the Department of Transportation's approval to assure that the extra expenditure of public funds would not be wasted.

Both parties moved for summary judgment, and the trial court ruled in favor of plaintiffs, concluding that under section 21662.5 the city was obligated to "obtain the approval of the California State Department of Transportation before constructing the South Los Angeles Division Police Station in a form containing structural reinforcements which are included for the purpose of providing sufficient added strength to the building to allow helicopters to land thereon." Finding that construction of the building in conformity with the current plans would "constitute a waste of taxpayers' money," the court enjoined the city from expending funds for the structural reinforcements which had been included in the building simply to accommodate the proposed helipad. The city has not appealed the trial court's injunctive order and consequently the substantive aspect of the trial court's ruling is not before us.

After the trial court had ruled in their favor, plaintiffs represented by the Western Center on Law and Poverty and the National Conference of Black Lawyers sought an award of attorney fees against the city, grounding their claim on both the private attorney general theory and the substantial benefit theory. Shortly before the trial court hearing on the attorney fee motion, the United States Supreme Court rendered its decision in Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, rejecting the nonstatutory private attorney general theory as an appropriate basis for an attorney fee award under federal law. Thereafter, at the subsequent hearing plaintiffs while not abandoning the private attorney general theory maintained that Alyeska was not fatal to their claim and that they were entitled to recover attorney fees under the substantial benefit theory.

Although defense counsel vigorously opposed any attorney fee award, the trial court ultimately ruled in plaintiffs' favor, concluding that plaintiffs' counsel were entitled to a total of $11,000 in attorney fees under the substantial benefit theory. In awarding the fees on this basis, the trial court indicated that it was relying on the fact that the public had obtained two distinct "benefits" by virtue of the litigation, "one, not having buildings constructed in the future which might be used for helicopter operations without the approval of the Department of Transportation, and two, the prohibition of future illegal expenditures of public funds."

Thereafter, when the defense counsel complained that the fees sought by plaintiffs' counsel were out of proportion to the $9,600 of public funds saved by the litigation, ² the court elaborated on the reasoning underlying its ruling. The court stated: "I think the dollar amount involved is not the true test here. . . . I do think the case had certain important benefits...