Serrano v. Priest

Decision Date04 October 1977
Citation141 Cal.Rptr. 315,569 P.2d 1303,20 Cal.3d 25
CourtCalifornia Supreme Court
Parties, 569 P.2d 1303, 7 Envtl. L. Rep. 20,795 John SERRANO, Jr., et al., Plaintiffs and Appellants, v. Ivy Baker PRIEST, * as State Treasurer, etc., et al., Defendants and Appellants. L.A. 30398.

Sidney M. Wolinsky, San Francisco, Daniel M. Luevano, Rosalyn Chapman, Philip L. Goar, John E. McDermott, Rose Matsui Ochi, David A. Binder, Harold W. Horowitz, Jerome L. Levine, Michael H. Shapiro, Los Angeles, and E. Robert Wallach, Piedmont, for plaintiffs and appellants.

Bayard F. Berman, William T. Rintala, Beverly Hills, Henry Shields, Los Angeles, Robert G. Sproul, Jr., James J. Brosnahan, Jr., Edward W. Rosston, David M. Heilbron, San Francisco, Stuart C. Walker, Menlo Beach, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Arne Werchick, San Francisco, Sanford M. Gage, Beverly Hills, Leroy Hersh, San Francisco, Ned Good, Los Angeles, David B. Baum, San Francisco, Robert G. Beloud, Upland, Roger H. Hedrick, Daly City, Leonard Sacks, Encino, Stephen I. Zetterberg, Claremont, Antonio Rossmann, San Francisco, Carlyle W. Hall, Jr., Brent N. Rushforth and John R. Phillips, Los Angeles, as amici curiae on behalf of plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., John J. Klee, Jr., and Ronald V. Thunen, Jr., Deputy Attys. Gen., for defendants and appellants.

RICHARDSON, Justice. **

In Serrano v. Priest (1976) 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929 (hereafter cited as Serrano II ) we affirmed a judgment of the Los Angeles County Superior Court, entered on September 3, 1974, which held essentially (1) that the then-existing California public school financing system was invalid as in violation of state constitutional provisions guaranteeing equal protection of the laws, and (2) that the said system must be brought into constitutional compliance within a period of six years from the date of entry of judgment, the trial court retaining jurisdiction for the purpose of granting any necessary future relief. 1 That judgment is now final.

Within a month after the entry of the foregoing judgment and prior to the filing of defendants' appeals, plaintiffs' attorneys (Public Advocates, Inc. and Western Center on Law and Poverty) made separate motions for an award of reasonable attorneys fees "against defendants Priest (then the state Treasurer), Riles (then and presently the state Superintendent of Public Instruction) and Flournoy (then the state Controller) in their official capacities as officials of the State of California." The motions were not based upon statute but were instead addressed to the equitable powers of the court. Three theories, to be examined in detail by us below, were advanced in support of the award: the so-called "common fund" theory, the "substantial benefit" theory, and the "private attorney general" theory.

A hearing on the issue of entitlement to fees was held on January 6, 1975, and on January 27 the trial court entered an interim order in which it announced its intention to award reasonable attorneys fees to plaintiffs' counsel on the private attorney general theory only, declining to apply the other two theories advanced. The matter was continued until April 14, 1975, for briefing and argument upon the issue of the amount of fees to be awarded. On that date the court received testimony and, upon stipulation of the parties, additional evidence by affidavit. At the conclusion of this hearing the court announced its intention to award $400,000 as reasonable attorneys fees to Public Advocates, Inc. and $400,000 as reasonable attorneys fees to Western Center on Law and Poverty. Upon timely request by Public Advocates, Inc. the court ordered the preparation of findings of fact and conclusions of law. On August 1, 1975, the court filed its "Order Concerning Attorneys' Fees," which was consistent in all relevant respects with its previous rulings, 2 as well as its "Findings of Fact and Conclusions of Law Concerning the Award of Attorneys' Fees" of which there were 219 of the former and 28 of the latter.

Two notices of appeal from the order were filed, one by Public Advocates, Inc. and Western Center on Law and Poverty, as "counsel for plaintiffs," and one by defendants Unruh, Cory, and Riles. On October 1, 1975, we transferred the appeal to this court and ordered it consolidated with the then-pending appeal in Serrano II. The latter appeal having been fully briefed, however, we proceeded to hear argument and render our decision in Serrano II, deferring our consideration of the instant appeal until the judgment in Serrano II had become final.

On January 28, 1977, after the rendition of our decision in Serrano II but prior to the issuance of the remittitur, a motion was filed in this court for reasonable attorneys' fees in connection with the appeal of this cause. This motion was filed by "respondents" (designated in the caption as plaintiffs John Serrano, Jr. et al.) By their attorneys, Public Advocates, Inc. and Western Center on Law and Poverty. Prior to issuance of the Serrano II remittitur we modified our judgment to reserve jurisdiction for the purpose of passing upon this motion in conjunction with the instant appeal.

I

We summarize the contentions advanced in the briefs of the parties: 3

Defendants contend that the award of attorneys fees was improper on any of the grounds considered. Thus, they urge that whereas the trial court was correct in determining that such an award cannot be sustained on either the common fund theory or the substantial benefit theory, it erred in concluding that an award should be made on the private attorney general theory. Additionally they argue that even if such an award based on any of these theories were proper in a case in which the prevailing litigant had incurred an obligation to pay for legal services, it could not be justified in a case in which, as here, the plaintiffs had incurred no obligation for such services which were provided without charge by organizations receiving public or tax-exempt charitable funding. 4 In any event, defendants urge, the award in this case is excessive. Finally, defendants also oppose the granting of the motion for attorneys fees on appeal.

Plaintiffs and their attorneys, while agreeing with the trial court's award of fees on the private attorney general theory, contend that the court erred in refusing to base its award additionally on the common fund and substantial benefit theories. The fact that plaintiffs are represented by organizations receiving public or other tax-exempt funding, they urge, should have no effect upon their eligibility for the award. Public Advocates, Inc., in an argument in which Western Center on Law and Poverty does not join, also urges that the award is inadequate. Finally, plaintiffs and their attorneys contend that their motion for attorneys fees on appeal should be granted on each of the three theories here in question.

II

Recently in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10, we had occasion to point out: "Section 1021 of the Code of Civil Procedure provides in relevant part: 'Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . .' No state statute provides for the award of attorney's fees in a case of this nature, and there has been no express or implied agreement concerning attorneys fees in this case. However, appellate decisions in this state have created two nonstatutory exceptions to the general rule of section 1021, each of which is based upon inherent equitable powers of the court. The first of these is the well-established 'common fund' principle: when a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorneys fees out of the fund. (See, e. g., Estate of Stauffer (1959) 53 Cal.2d 124, 132, 346 P.2d 748; Estate of Reade (1948) 31 Cal.2d 669, 671-672, 191 P.2d 745; see generally 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, §§ 129-133, pp. 3278-3283.) The second principle, of a more recent development, is the so-called 'substantial benefit' rule: when a class action or corporate derivative action results in the conferral of substantial benefits, whether of a pecuniary or nonpecuniary nature, upon the defendant in such an action, that defendant may, in the exercise of the court's equitable discretion, be required to yield some of those benefits in the form of an award of attorneys fees. (See, e. g., Knoff v. City, etc., of San Francisco (1969) 1 Cal.App.3d 184, 203-204, 81 Cal.Rptr. 683; Fletcher v. A. J. Industries, Inc. (1968) 266 Cal.App.2d 313, 318-325, 72 Cal.Rptr. 146; see also Sprague v. Ticonic Bank (1939) 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; see generally 4 Witkin, Cal.Procedure, supra, Judgment, § 134, pp. 3283-3284.)" (Id. at p. 25, 112 Cal.Rptr. at p. 803, 520 P.2d at p. 27.) Mindful of these observations, we proceed first to determine whether the trial court was correct in concluding that an award of reasonable attorneys fees could not be supported in the instant case under either of the aforementioned exceptions to the rule of section 1021.

(a) The Common Fund Theory

"Although American courts, in contrast to those of England, have never awarded counsels' fees as a routine component of costs, at least one exception to this rule has become as well established as the rule itself: that one who expends attorneys' fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation...

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