Westside Community for Independent Living, Inc. v. Obledo

Citation188 Cal.Rptr. 873,33 Cal.3d 348,657 P.2d 365
Parties, 657 P.2d 365 WESTSIDE COMMUNITY FOR INDEPENDENT LIVING, INC., et al., Plaintiffs and Respondents, v. Mario G. OBLEDO, as Secretary, etc., Defendant and Appellant. L.A. 31561.
Decision Date07 February 1983
CourtCalifornia Supreme Court

William F. Soo Hoo, Sacramento, for defendant and appellant.

Stanley Fleishman, Los Angeles, for plaintiffs and respondents.

BIRD, Chief Justice.

Did the trial court in this case abuse its discretion in granting attorney fees to plaintiffs pursuant to Code of Civil Procedure section 1021.5?

I.

Section 11135 of the Government Code bars any program or activity funded by the state from unlawfully discriminating against any person "on the basis of ethnic group identification, religion, age, sex, color, or physical or mental disability." 1 Section 11139.5 directs defendant, the Secretary of the Health and Welfare Agency, to "establish standards for determining which persons are protected by [§ 11135] and guidelines for determining what practices are discriminatory." 2 Both of these statutes were enacted in September of 1977. (See Stats.1977, ch. 972, § 1, pp. 2942-2943.)

On November 8, 1979, plaintiffs filed a petition for writ of mandate in the superior court, asking the court to order defendant to issue final regulations implementing section 11135. The petition alleged that defendant's failure to issue such regulations constituted a violation of section 11139.5.

Defendant filed an answer on December 12, 1979, in which he acknowledged that he had not as yet issued final regulations, but asserted that he was in the process of formulating regulations. He denied that he had failed to comply with section 11139.5 or had been dilatory in developing regulations. 3

The declaration of William Wilder, special assistant to defendant Obledo, was attached to the answer. Wilder said he was in charge of drafting regulations to comply with section 11139.5. He stated that on September 7, 1979, 2 months before the petition for writ of mandate was filed, a 63-page draft of proposed regulations was submitted to defendant for approval. 4 Defendant approved the draft regulations on October 24, 1979, approximately two weeks before the lawsuit was filed, and gave authorization to proceed with their finalization and adoption.

Defendant's answer also asserted that the court had no authority to order issuance of final regulations, because (1) the former Administrative Procedure Act (former §§ 11371-11445, see current § 11340 et seq.) required notice to the public and public hearings before the proposal was adopted; (2) section 11139.5 required the "concurrence" of the Fair Employment Practices Commission; and (3) former Health and Safety Code section 18903 might require that the proposed regulations be submitted to the State Building Standards Commission for its approval. (See current Health & Saf.Code, § 18930.)

Wilder's declaration stated that the procedures mandated by the Administrative Procedure Act were already underway.

On December 14, 1979, at a superior court hearing on the petition for writ of mandate, defendant told the court that the draft regulations would be released to the public in January. The trial court continued the hearing until January 30, 1980.

Prior to the January court hearing, defendant released the proposed regulations to the public and filed a copy with the trial court. Defendant also informed the trial court that he planned to complete hearings on the regulations by the end of May of 1980 and issue the regulations in early June. Another court hearing was scheduled for June 2, 1980.

One week later, on February 7, plaintiff filed a notice of motion for attorney fees under Code of Civil Procedure section 1021.5 (hereafter, section 1021.5), the private attorney general statute. In March, the trial court ordered defendant to pay attorney fees of $10,870. Defendant filed a notice of appeal from the attorney fee award.

Prior to the June 2, 1980, hearing, defendant informed the court that the regulations would be issued by the end of June. The court issued an alternative writ of mandate which ordered him to issue regulations by June 30, 1980, or show cause why he had failed to do so. Final regulations were issued on June 24, 1980.

In July of 1980, plaintiffs requested supplemental attorney fees. The trial court awarded additional fees of $1,538 in September of 1980. Defendant appealed from this award, and the two appeals were consolidated.

II.

Section 1021.5 provides in pertinent part, "Upon motion, a court may award attorneys' fees to a successful party ... 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 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."

Defendant argues that there is no evidence in the record to support the trial court's conclusion that plaintiffs were a "successful party" in this action, or that the lawsuit "resulted in" the enforcement of a right. He points first to the fact that the lawsuit never reached a final judgment. However, past cases from both this court and the federal courts demonstrate that an attorney fee award may be justified even where a plaintiff's legal action does not lead to a favorable final judgment. 5

For example, in Northington v. Davis (1979) 23 Cal.3d 955, 154 Cal.Rptr. 524, 593 P.2d 221, the defendant city claimed that it altered its plans "voluntarily" shortly after the plaintiff's lawsuit was filed. The city argued that this alteration should not be considered a "benefit" achieved by the lawsuit. (Id., at p. 960, fn. 2, 154 Cal.Rptr. 524, 593 P.2d 221.) This court disagreed, holding that an attorney fee award may be based on such a "voluntary" change, where it is a result of plaintiff's legal action. "[P]rior authorities make it clear that 'voluntary' corrective action, induced by litigation, may properly be considered a 'benefit' of the litigation in determining the propriety of an attorney fee award. [Citations.]" (Ibid.)

In Fletcher v. A.J. Industries, Inc., (1968) 266 Cal.App.2d 313, 325, 72 Cal.Rptr. 146, cited with approval in Northington, the Court of Appeal upheld an attorney fee award in an action that was resolved through a settlement. The court held that "[i]t was not significant that the 'benefits' found were achieved by settlement of plaintiffs' action rather than by final judgment." (Ibid.)

Numerous federal decisions have reached the same conclusion, holding that attorney fees may be proper whenever an action results in relief for the plaintiff, whether the relief is obtained through a "voluntary" change in the defendant's conduct, through a settlement, or otherwise. (See, e.g., Sullivan v. Com. of Pa. Dept. of Labor, Etc. (3d Cir.1981) 663 F.2d 443, 447-450; Robinson v. Kimbrough (5th Cir.1981) 652 F.2d 458, 465-466; American Constitutional Party v. Munro (9th Cir.1981) 650 F.2d 184, 187-188.)

Thus, an award of attorney fees may be appropriate where "plaintiffs' lawsuit was a catalyst motivating defendants to provide the primary relief sought ...." (Robinson, supra, 652 F.2d at p. 465, emphasis added.) A plaintiff will be considered a "successful party" where an important right is vindicated "by activating defendants to modify their behavior." (Ibid.)

However, in order to justify a fee award, there must be a causal connection between the lawsuit and the relief obtained. Thus, in Northington, this court found that the defendant's "voluntary" action was "induced by" the plaintiff's legal action. (Northington v. Davis, supra, 23 Cal.3d at p. 960, fn. 2, 154 Cal.Rptr. 524, 593 P.2d 221.) And in Fletcher, the settlement was clearly a result of the plaintiff's lawsuit. (Fletcher v. A.J. Industries, Inc., supra, 266 Cal.App.2d at p. 325, 72 Cal.Rptr. 146.) The federal decisions have required that a plaintiff's action be a "material" factor or have "contributed in a significant way" to the result achieved. (Sullivan, supra, 663 F.2d at pp. 447-450; Robinson, supra, 652 F.2d at pp. 465-466; American Constitutional Party, supra, 650 F.2d at pp. 187-188.)

Where there is no causal connection between the plaintiff's action and the relief obtained, an attorney fee award is not proper. "[N]o award is required if the court determines that plaintiff's suit was completely superfluous in achieving the improvements undertaken by defendants on plaintiff's behalf." (Nadeau v. Helgemoe (1st Cir.1978) 581 F.2d 275, 281.) In American Constitutional Party, supra, 650 F.2d at page 188, the court rejected a claim for attorney fees, finding that the plaintiffs had introduced no evidence demonstrating that their lawsuit had played a "causal role" in achieving the result they sought.

Defendant here argues that plaintiffs' lawsuit was "completely superfluous," with no causal connection to defendant's action, the issuance of final regulations implementing section 11139.5. This argument is well taken. The record demonstrates that at the time the lawsuit was filed, defendant had already approved a final draft of the proposed regulations. Statutory requirements mandated a lengthy process of consultation with other state agencies, notice to the public, and public hearings before the proposals could be finalized. Defendant stated in December, in his answer to the petition, that he intended to proceed with the statutorily mandated procedures in an expeditious manner, and he did so. Quite simply, there is no evidence in the record to indicate that the issuance of final regulations occurred even a day earlier than it otherwise would have as a result of plaintiffs' lawsuit.

Plaintiffs repeatedly point to the long delay between the passage of section 11139.5...

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