People ex rel. Reisig v. Broderick Boys, C058066 (Cal. App. 6/16/2009)
| Decision Date | 16 June 2009 |
| Docket Number | C058066 |
| Parties | THE PEOPLE ex rel. JEFF W. REISIG, as District Attorney, etc., Plaintiff and Respondent, v. THE BRODERICK BOYS, Defendant; KEITH EDWARDS et al., Movants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Super. Ct. No. CV042085.
In People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506 (Broderick Boys I), we held that four men who had been served with a gang injunction had standing to challenge it and that the injunction was void for lack of proper service. On behalf of three of the men, counsel sought attorney fees under the private attorney general doctrine (Code Civ. Proc., § 1021.5, hereafter § 1021.5). The District Attorney opposed the motion, arguing that (1) he was immune from a fee award, (2) the men did not meet the statutory criteria for a fee award, and (3) the amount sought was excessive.
The trial court denied the motion, finding the fee claimants failed to satisfy the statutory criteria for a fee award. The court did not rule on the immunity claim or the reasonableness of the amount of fees sought. The claimants appeal.
We conclude that (1) the proper standard of review in this case is whether the trial court abused its discretion in denying the motion for attorney fees. Applying that standard, we conclude that the trial court did not abuse its discretion because (2) the litigation did not confer a significant benefit on the public or a large class of persons. This opinion also concludes that (3) the litigation was unnecessary.1 We therefore affirm.
On December 30, 2004, the Yolo County District Attorney (hereafter District Attorney) filed a civil injunction complaint against a street gang known principally as the Broderick Boys, sued as an unincorporated association in West Sacramento. The complaint sought the creation of a "Safety Zone" in which anti-gang measures, such as a curfew, would be in effect in an effort to stem criminality. The complaint was served on Billy Wolfington, a Broderick Boys member of unknown rank. After interim relief was granted, a default was entered and the court issued a permanent injunction on February 3, 2005. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1512-1514.)
On July 28, 2005, Keith Edwards, Angelo Velazquez, Jason Swearengin and Benjamin Juarez (movants) moved to set aside the default judgment and default. The movants, and many others, had been served with the injunction and one had been arrested for violating its curfew. The movants claimed service on Wolfington was inadequate because the Broderick Boys was not an unincorporated association; even if it was, Wolfington was not a responsible member of the association and serving him alone violated due process principles. (Broderick Boys I, supra, 149 Cal.App.4th at p. 1514.) The trial court (Warriner, J.) found they lacked standing because they did not claim to be members of the Broderick Boys street gang. (Id. at pp. 1515-1516.)2
On appeal we concluded as follows:
(1) The movants had standing to challenge the injunction once they were served with it, without having to admit that they were gang members, although they could also have challenged the injunction either by filing a declaratory relief action or by defending contempt charges for violating its terms. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1516-1518.)
(2) The injunction was void. We rendered several subsidiary holdings in reaching this conclusion:
(A) The record did not show that the Broderick Boys was an unincorporated association because there was no showing that it was formed for any "common lawful purpose" as provided by Corporations Code section 18035, subdivision (a), and as provided by the common law long predating that statutory language. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1520-1522.)
(B) A statute allowing an unincorporated association with no known agents to be served by service on "one or more" members (Corp. Code, § 18220) does not allow serving "one" member in all cases. Instead, such service is sufficient if that member enjoys a position within the association such that it is reasonable to expect that the member will alert the association to the suit. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1522-1524.) Service only on Billy Wolfington, a gang member of unknown rank, did not satisfy this state statute.
(C) The service also violated federal due process, because other more effective methods were readily available but were not employed. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1524-1528 [].)
We reversed with directions to set aside the void judgment. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1528-1529.)
On July 17, 2007, an amended complaint was filed, naming a number of alleged gang members, but not movants.
On November 5, 2007, the attorneys who now represented only three of the four movants (Edwards, Juarez and Swearengin, hereafter collectively referred to as the movants), sought attorney fees under section 1021.5.
The motion included a description of the work done, the number of hours spent by each attorney and reasons supporting the claimed hourly rates for each attorney. The motion was supported by declarations of other attorneys attesting to the reasonableness of the hourly rates claimed. A lodestar was calculated by multiplying the hourly rates by the hours worked, and a multiplier of 1.5 was proposed; added to that amount were costs, plus estimated fees for the fee motion, handled by two other attorneys (with no multiplier). The total claim exceeded $400,000.
Alan Schlosser declared that he was the Legal Director for the American Civil Liberties Union Foundation of Northern California, a regional affiliate of the American Civil Liberties Union (collectively, ACLU), a nationwide nonprofit organization dedicated "to preserving and advancing the rights guaranteed by our federal and state constitutions and by federal, state and local laws protecting citizens' civil rights and civil liberties." After the ACLU "complaint hotline" received two calls from persons concerned about the gang injunction, the regional office began investigating, including telephone and in-person interviews with "persons served with or otherwise affected by the injunction." The office also researched other gang injunction cases and decided to attack the injunction by means of a motion to set aside "on jurisdictional grounds." This included acquiring and analyzing court records showing the methods of service in other gang injunction cases.3
The District Attorney opposed the motion for attorney fees, claiming that (1) he was "immune," (2) the section 1021.5 criteria were not met, and (3) the fees sought were excessive. As to the amount of fees, the District Attorney (1) presented a declaration stating that the claimed hourly rates were too high, (2) argued that much of the work should be severed because it related to ongoing issues about the gang injunction, and (3) argued a multiplier was inappropriate because only "interim" success had been achieved.
The District Attorney also noted that Velazquez, one of the movants, had signed a declaration renouncing his gang membership and had signed a release, which barred the claim for fees as to him. As indicated above, although he was one of the movants, Velazquez is not a fee claimant.
In reply, the ACLU argued that although the injunction case was proceeding, the movants had not been served and their success was not "interim" success. The litigation voided the injunction that the authorities had claimed limited the movants' conduct. The reply contested the claim of immunity and defended the lodestar and multiplier calculations.
We grant the District Attorney's unopposed motion for judicial notice of documents showing that on December 19, 2007, the trial court (Fall, J.) issued permanent injunctions against nine Broderick Boys members who had defaulted. None of these were movants in Broderick Boys I.4
The unreported fee hearing was held the next day. In a written order filed January 7, 2008, the trial court (Fall, J.) awarded costs, but denied fees because movants did not "demonstrate that: (1) this litigation secured enforcement of important rights affecting the public interest; (2) this litigation conferred a significant benefit on a large class of persons; and (3) their financial burden is out of proportion to their personal stake in this litigation."5
On behalf of the movants, the ACLU timely filed a notice of appeal. (See Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 432 [].)
Section 1021.5 states, in pertinent part: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. . . ."
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