The opinion
Filed 2/13/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MIKE TORRES, B246515
(Consolidated with B246526 & B250851)
Plaintiff, Respondent and Appellant,
(Los Angeles County
v. Super. Ct. Nos. BS120272)
THE CITY OF MONTEBELLO et al.,
Defendants and Respondents;
ARAKELIAN ENTERPRISES, INC.,
Real Party in Interest, Respondent
and Appellant.
ARAKELIAN ENTERPRISES, INC., (Los Angeles County
Super. Ct. Nos. BS138950)
Plaintiff and Appellant,
v.
THE CITY OF MONTEBELLO et al.,
Defendants and Respondents.
APPEALS from judgments and an order of the Superior Court of Los Angeles
County, James C. Chalfant, Judge. Affirmed.
Miles Law Group, Stephen M. Miles; Law Offices of Frank W. Battaile and Frank
W. Battaile for Plaintiff, Respondent and Appellant Mike Torres.
Leibold McClendon & Mann, P.C. and John G. McClendon for Defendants and
Respondents City of Montebello and City Council of the City of Montebello.
Bell, McAndrews & Hiltachk, Paul T. Gough, Colleen C. McAndrews,
Thomas W. Hiltachk; Gibson, Dunn & Cutcher, Robert E. Palmer, Lauren D. Friedman,
Courtney A. Dreibelbis and Thomas Manakides for Real Party in Interest, Respondent
and Appellant, and Plaintiff and Appellant Arakelian Enterprises, Inc.
_____________________
INTRODUCTION
The principal issue in this appeal concerns Government Code section 40602’s
mayoral signature requirement for municipal contracts and whether the mayor’s
purported refusal to sign a contract duly approved by the city council authorizes the
mayor pro tem to sign the contract in the mayor’s “absence” under Government Code
section 40601. We conclude it does not.
Since 1962, Arakelian Enterprises, Inc. doing business as Athens Services,
successor in interest to Athens Disposal Company, Inc. (Athens), has been the exclusive
residential waste hauling franchisee for the City of Montebello (the City or Montebello).
In 2008, a candidate for the Montebello City Council approached Athens about becoming
the City’s exclusive commercial waste hauling franchisee as well. The candidate won
election to the Montebello City Council and, with his vote, the City Council approved a
contract granting Athens an exclusive residential and commercial waste hauling
franchise.
2
In the weeks that followed, the Mayor of Montebello, who had voted against the
exclusive franchise, refused to sign the contract. The City Attorney advised the Mayor
that he had a ministerial duty to execute contracts passed by the City Council under
Government Code section 40602. If the Mayor refused to do so, the City Attorney
warned, he would be deemed “absent” under Government Code section 40601 and the
Mayor Pro Tempore would be directed to execute the contract in his stead. More weeks
passed without the Mayor signing the contract, until, at the apparent direction of the City
Attorney, the Mayor Pro Tempore signed it.
Plaintiff Mike Torres filed a complaint against the City seeking a writ of mandate
to invalidate the contract. The trial court entered judgment for Torres and issued the
requested writ, ruling the contract void ab initio because it had not been executed by the
Mayor as required by Government Code section 40602. On appeal from the judgment as
a real party in interest, Athens principally contends the Mayor was appropriately deemed
“absent” based on his refusal to carry out his ministerial duty, and the Mayor Pro
Tempore was therefore authorized to execute the contract under Government Code
section 40601.1 As we explain, neither the City Attorney nor the Mayor Pro Tempore
had the authority to deem the Mayor “absent” under the Government Code. Accordingly,
we conclude the Mayor Pro Tempore’s signature was ineffective to enter the contract on
the City’s behalf, and affirm the judgment on this basis.2
1
Athens also contends Torres’s action was barred by the doctrine of laches. We
address this issue below and conclude the trial court properly rejected the laches defense.
2
Because our resolution of this issue is alone sufficient to affirm the judgment, we
do not address Athens’s challenge to the trial court’s independent ruling that the contract
violated Proposition 218. As for Torres’s contention that one of the councilmembers had
a disqualifying financial interest in the contract under Government Code section 1090 et
seq., we address this issue below and conclude the trial court correctly rejected the claim.
3
In the wake of the trial court’s ruling, Athens filed its own complaint against the
City seeking a writ of mandate directing the Mayor to execute the contract in accordance
with Government Code section 40602. However, in the intervening period between the
City Council’s approval of the contract and Athens filing its complaint, Montebello
voters approved an initiative requiring the City Council to utilize a competitive bidding
process to award residential solid waste franchises. Because the residential portion of the
contract had not been subject to competitive bidding, the trial court ruled it could not
issue the requested writ, and sustained the City’s demurrer on that basis. We conclude
the trial court’s ruling was correct as a matter of law.
Finally, Torres cross-appeals from the trial court’s order denying his motion for
private attorney general fees under Code of Civil Procedure section 1021.5. The trial
court found Torres’s attorney fees had been paid entirely by an organization of Athens’s
waste hauling competitors and, on that basis, concluded private attorney general fees
were inappropriate because Torres bore no financial burden in litigating the case. We
find no abuse of discretion in this ruling.
FACTS AND PROCEDURAL HISTORY
Athens or its predecessors have been the exclusive residential waste hauling
franchisee in Montebello since 1962. In 2008, Robert Urteaga, then a Montebello City
Council candidate, approached Athens about submitting a proposal to become the
exclusive commercial waste hauling franchisee for the City. At the time, commercial
contracts were handled by several different waste haulers, including Athens and many of
its competitors, each of which had a seven-year rolling non-exclusive franchise under the
Montebello Municipal Code. Urteaga believed an exclusive contract would be “a good
idea for simplicity’s sake.” Athens contributed to Urteaga’s election campaign, and
Urteaga ultimately won a seat on the City Council.
4
At its July 9, 2008 regular meeting, the City Council considered the proposed
exclusive waste hauling contract. After hearing testimony, the City Council directed its
staff to prepare a proposed contract granting an exclusive residential and commercial
waste hauling franchise to Athens (the Contract). Athens was to begin performing the
commercial portion in 2016, after the existing commercial franchises had been
terminated.
At the next regular meeting on July 23, 2008, the City Council considered and
approved several modifications to the Contract that were negotiated orally at the dais.
The changes included (1) an amendment requiring Athens to pay a $500,000 proposal
fee; (2) an amendment requiring Athens to pay the City 7.5 percent of its gross receipts
for the collection of commercial solid waste; (3) an amendment eliminating a $2 per
customer residential franchise fee; and (4) an amendment establishing $1.99 monthly
charge for customers who desired an additional 90 gallon waste bucket.
On August 5, 2008, the City Council approved the Contract by a three-to-two vote.
Urteaga, together with the Mayor Pro Tempore, Rosemarie Vasquez, and a third member
of the City Council, Kathy Salazar, voted for the Contract.3 The Mayor, William
Molinari, joined by another member of the City Council voted against. Thereafter, the
Montebello City Attorney approved the form of the Contract and submitted it to Mayor
Molinari for his signature.
3
Torres contends Salazar was financially interested in the Contract inasmuch as
Athens had donated money in the past to a non-profit organization that Salazar founded
and from which she, at times, drew a salary. Due to this purported financial interest,
Torres maintains Salazar was prohibited from voting to approve the Contract in her
official capacity and the Contract must therefore be set aside under Government Code
section 1090 et seq. We will state the relevant facts related to this contention in our legal
discussion of the section 1090 claim.
5
According to the Mayor, he had the Contract in hand in August and September
2008, but he was unable to confirm that the orally negotiated changes had been properly
incorporated. Due to his confusion over the changes, Mayor Molinari asked the City
Attorney to place the final Contract on the City Council agenda before he executed it.
The City Attorney did not respond to the request.
Contrary to Mayor Molinari’s version of events, the City Attorney maintained the
Mayor simply refused to sign the Contract because he objected to awarding Athens an
exclusive commercial franchise. On August 25, 2008, the City Attorney prepared a
memorandum advising the Mayor that he had a ministerial duty to execute the Contract
as approved by the City Council. The memorandum admonished, “Your decision to not
sign the [Contract] warrants a determination that for purposes of this [Contract] only, you
are deemed ‘absent’ thus vesting in the Mayor Pro-Tem the authority to execute this
contract. [¶] I will instruct Mayor Pro-Tem Vasquez to sign the [Contract]. In addition,
the contract will have the following notation ‘for purposes of this Agreement only, the
Mayor is deemed absent from execution and thus Mayor Pro-Tem is authorized to
execute this Agreement.’ ”
The Mayor did not execute the Contract. Though he was physically present at
City Hall on September 12, 2008, the Contract was apparently taken from the Mayor’s
mailbox, altered with the notation proposed by the City Attorney, then signed by the
Mayor Pro Tempore. The same day, Mayor Pro Tempore Vasquez issued a statement
explaining that she signed the Contract because “the Mayor has declined to execute the
agreement negotiated by the City Council and the City Attorney.”
In April 2009, Athens paid the City the $500,000 proposal fee set forth in the
Contract. In July 2009, Athens began performing the residential waste hauling portion of
the Contract. In advance of its performance, Athens purchased four new compressed
natural gas garbage trucks at a cost of $1.2 million and provided Montebello residents
with new 90-gallon easy-roll automated waste containers at no charge to the residents.
The new waste containers cost Athens between $1.5 and $1.7 million.
6
On April 23, 2009, Torres filed his petition for a writ of mandate to set aside the
Contract. Among other things, the petition alleged the Contract was void because the
City failed to comply with Government Code section 40602, which requires mayoral
execution of all municipal contracts. The City responded with an anti-SLAPP motion,
which the trial court denied on August 7, 2009. On October 6, 2009, the City appealed
the ruling, staying the trial court proceedings.
In November 2009, Mayor Molinari and Mayor Pro Tempore Vasquez faced
reelection. Montebello voters also qualified a recall of City Council members Urteaga
and Salazar, resulting in a February 2010 special election. Due in apparent part to the
controversy over the City Council’s approval of the Contract, Mayor Pro Tempore
Vasquez was not reelected and City Council members Urteaga and Salazar were recalled.
Mayor Molinari won reelection with the largest share of the vote.
Within a week of the recall, the City abandoned its appeal from the denial of its
anti-SLAPP motion and, on October 29, 2010, substituted new counsel to represent it in
this action. On May 5, 2011, Torres demurred to the City’s original answer. The City
responded by filing an amended answer, admitting the material allegations of Torres’s
petition. Athens filed a motion to strike the City’s amended answer, which the trial court
denied on July 29, 2011.
On July 27, 2011, the new City Council approved a resolution to place a City-
initiated measure on the ballot requiring a public bidding process for all residential solid
waste hauling franchises. Montebello’s voters approved the “Residential Solid Waste
Franchises Initiative” on November 8, 2011, and the Initiative was codified as Chapter
8.14 of the Montebello Municipal Code. Chapter 8.14 prohibits the renewal of existing
residential solid waste franchises and requires a competitive bidding process for awarding
new franchises. (Montebello Mun. Code, §§ 8.14.030 & 8.14.060.)
7
On July 26, 2012, the trial court granted Torres’s petition for writ of mandate.
Among other things, the court concluded the Contract was “unlawful and void” because it
was not executed by the Mayor in accordance with Government Code section 40601.
Prompted by the trial court’s ruling, on August 20, 2012, Athens filed its own
petition for a writ of mandate directing the Mayor to execute the Contract in accordance
with the Government Code. The court sustained the City’s demurrer to the petition
without leave to amend. Because the Contract had not been subject to the competitive
bidding process mandated by Chapter 8.14 of the Montebello Municipal Code, the court
held it could not issue the requested writ.
On March 4, 2013, Torres filed a motion for attorney fees pursuant to Code of
Civil Procedure section 1021.5. After granting Athens’s request for additional discovery
and further briefing concerning the financial burden prong of section 1021.5, the court
denied Torres’s attorney fee motion. Citing evidence showing Torres’s attorney fees had
been paid in full by “an organization of Athens’ trash hauler competitors,” the court
concluded “Torres ha[d] not met his burden of showing that his litigation costs transcend
his personal interest such that the necessity and financial burden are such as to make an
award . . . appropriate.”
Athens appealed from the judgment granting Torres’s writ petition and the
judgment dismissing its complaint against the City. Torres filed a cross-appeal from the
portion of the judgment rejecting his Government Code section 1090 claim (see fn. 3,
ante) and a cross-appeal from the order denying his motion for attorney fees. We
consolidated the several appeals for disposition in a single opinion.
8
DISCUSSION
1. The Ruling Rejecting Athens’s Laches Defense Is Supported by the
Evidence
As a threshold matter, Athens contends Torres’s entire action is barred by the
doctrine of laches. “A party asserting laches must show both unreasonable delay and
prejudice resulting from the delay. [Citation.] A trial court’s ruling regarding laches will
be sustained if there is substantial evidence to support it.” (Martin v. Santa Clara Unified
School Dist. (2002) 102 Cal.App.4th 241, 257.) In rejecting Athens’s laches defense, the
trial court assumed the costs Athens incurred to date in performing the Contract
demonstrated prejudice, but concluded Athens failed to establish unreasonable delay by
Torres in bringing the mandamus action. The court’s ruling is supported by the evidence.
The Contract was ostensibly executed by the Mayor Pro Tempore on
September 12, 2008. Seven months later, on April 23, 2009, Torres filed his petition for
writ of mandate. In opposing the writ petition, Athens, which had the burden of proof on
its affirmative defense, failed to offer any evidence to demonstrate Torres acted
unreasonably in waiting to file this action. Instead, Athens relied entirely on a prior
ruling by the trial court denying Torres’s application for injunctive relief. In denying the
application, the court found, inter alia, that Torres had failed to adequately explain his
delay in seeking an injunction. Based on this finding, Athens took the position that the
initial burden rested with Torres to provide an “explanation for the extraordinary delay in
seeking a writ.”
The trial court rejected Athens’s contentions. With respect to the burden of proof,
the court correctly observed that Athens had raised laches as an affirmative defense and
“it has the burden” of showing “unreasonable delay for laches purposes.” In contrast, the
court explained that Torres had the burden of establishing “irreparable harm” in applying
for an injunction, and his failure to seek immediate injunctive relief suggested there was
no real threat of such injury. In view of these different burdens, the court reasoned that
“an unreasonable delay in applying for a preliminary injunction is not the same as an
unreasonable delay in commencing and prosecuting a lawsuit.” We agree with the trial
9
court. The denial of Torres’s application for injunctive relief did not compel a finding of
unreasonable delay for laches purposes. As Athens failed to offer evidence to establish
unreasonable delay, the trial court reasonably rejected its laches defense.4
2. The Contract Was Not Executed in Accordance with the Government Code;
The Trial Court Properly Ruled the Contract Void
Government Code section 40602 provides, “The mayor shall sign: [¶] . . . [¶] . . .
All written contracts and conveyances made or entered into by the city.” 5 “In the
absence of the mayor,” section 40601provides, “the mayor pro tempore shall exercise the
powers granted [to the mayor] in this chapter.” 6 The trial court concluded the Contract
was “unlawful and void” because it was not signed by the Mayor in accordance with the
Government Code. We agree.
4
Insofar as Athens relies on the subsequent three-year period between Torres filing
this case and the trial on his writ petition, the evidence also supports the trial court’s
findings that Torres reasonably prosecuted the action and much of the delay was
“attributable to law and motion practice by other parties.” This included anti-SLAPP
motions by the City and an individual defendant, which Athens attempted to join; an
appeal from the ruling denying the City’s anti-SLAPP motion, which stayed the case until
the City abandoned its appeal; the City’s amended answer admitting Torres’s allegations
and Athens’s motion to strike the answer. The trial court found all of this delayed
prosecution of the action and reasonably explained why it took so long to bring the case
to trial.
5
Unless otherwise stated, subsequent statutory references are to the Government
Code.
6
Under section 40602, a city’s “legislative body may provide by ordinance that [a
written contract] be signed by an officer other than the mayor.” The City has no such
ordinance. Rather, Montebello Municipal Code section 3.21.060, subdivision B provides
that “Contracts for professional/special services in excess of fifty thousand dollars require
the approval of the city council and the signature of the mayor, or in his or her absence,
the mayor pro tempore, pursuant to the provisions of Gov. Code Sections 40601 and
40602.” (Italics added.)
10
a. The Government Code prescribes the only method by which a valid
municipal contract can be made
We begin with Athens’s contention that section 40602 does not apply because “the
Contract imposed no financial obligation on the City.” As we explain below, the
Contract, which imposes a financial obligation on Montebello’s constituent residents, is
subject to section 40602’s mayoral signature requirement, and the authority Athens relies
upon is inapposite.
It is undisputed that Montebello is a general law city. The powers of a general law
city include “only those powers expressly conferred upon it by the Legislature, together
with such powers as are ‘necessarily incident to those expressly granted or essential to the
declared object and purposes of the municipal corporation.’ ” (Irwin v. City of
Manhattan Beach (1966) 65 Cal.2d 13, 20; Poway Royal Mobilehome Owners Assn. v.
City of Poway (2007) 149 Cal.App.4th 1460, 1472 (Poway.) A “ ‘ “general law city . . .
must comply with state statutes that specify requirements for entering into contracts.
[Citations.]” ’ ” (Poway, at p. 1472.) Thus, “when a statute limits a city’s power to make
certain contracts to a certain prescribed method and impliedly prohibits any other
method, a contract that does not conform to the prescribed method is void and no implied
liability can arise for benefits received by the city or for damages caused by it to the other
party to the void contract.” (South Bay Senior Housing Corp. v. City of Hawthorne
(1997) 56 Cal.App.4th 1231, 1235 (South Bay), italics omitted; Miller v. McKinnon
(1942) 20 Cal.2d 83, 91-92 (Miller).) “ ‘Under such circumstances the express contract
attempted to be made is not invalid merely by reason of some irregularity or some
invalidity in the exercise of a general power to contract, but the contract is void because
the statute prescribes the only method in which a valid contract can be made, and the
adoption of the prescribed mode is a jurisdictional prerequisite to the exercise of the
power to contract at all and can be exercised in no other manner so as to incur any
liability on the part of the municipality. Where the statute prescribes the only mode by
which the power to contract shall be exercised the mode is the measure of the power.’ ”
(Miller, at pp. 91-92, first and second italics added; South Bay, at p. 1235.)
11
In South Bay, a developer of low-income senior citizen housing sued the city of
Hawthorne for anticipatory breach of a lease and development agreement that had been
unanimously approved by the city council. (South Bay, supra, 56 Cal.App.4th at
pp. 1233-1234.) On appeal from a jury verdict in favor of the developer, the city argued
there was no enforceable contract unless it was signed by the mayor in accordance with
section 40602. The Court of Appeal agreed, rejecting the developer’s argument that
section 40602 did not apply to Hawthorne because it was a general law, as opposed to a
charter, city. Relying on our Supreme Court’s holding in Miller, the South Bay court
observed, “It follows that, by the plain language of the statutes, the City’s power to make
a contract is limited to the prescribed method and, by necessary implication, that any
other method is prohibited—which means that, unless it was signed by the Mayor, the
contract with South Bay is void and no implied liability can arise under that contract.”
(South Bay, at p. 1236, citing Miller, supra, 20 Cal.2d at pp. 91-92.)
As noted, Athens contends section 40602 does not apply because “the Contract
imposed no financial obligation on the City,” insofar as Montebello citizens pay directly
for Athens’s services. Athens does not address South Bay or Miller in advancing this
argument. Instead, it relies principally on City of Orange v. San Diego County
Employees Retirement Assn. (2002) 103 Cal.App.4th 45 (City of Orange), wherein the
court held that, read together, the language of section 40602 and provisions of a
municipal code not at issue here, “do not unambiguously require that every city contract,
without exception, be in writing and signed by the mayor.” (City of Orange, at p. 54.)
City of Orange is inapposite.
The City of Orange court premised its holding on the “general purpose” of section
40602, which, the court stated, was to ensure that expensive municipal decisions are not
hastily made. (City of Orange, supra, 103 Cal.App.4th at pp. 54-55.) The court held the
city could enforce an oral option contract that required a retirement association to hold a
settlement offer open, reasoning “ ‘restrictions on a municipality’s power to
contract . . . are designed to protect the public, not those who contract with the
municipality.’ ” (Id. at p. 54.) In that regard, the court explained the oral option contract
12
imposed no financial burden on the city, the sole consideration was the city’s agreement
to stay litigation while considering the retirement association’s settlement offer, and the
“litigation standstill would save the city money if the offer were accepted.” (Ibid.)
Under those circumstances, the City of Orange court found the purpose of section
40602—to prevent hasty decisions on important public matters—was served by honoring
the oral option agreement because it gave the city adequate time to review the settlement
offer and secure approval from city officials without fear the retirement association
would withdraw the offer. (City of Orange, at p. 55.) That is, “Orange had much to gain
and little, if anything, to lose from the oral option contract.” (Ibid.)
City of Orange is readily distinguishable. To begin, contrary to Athens’s premise,
the Contract here does impose a financial burden on the City insofar as the City’s
constituent residents are required to pay the rate set by the Contract for residential trash
services. As the purpose of section 40602 is to prevent hasty decisions concerning
taxpayer funded public finances, we see no difference between a situation in which
taxpayers are billed directly for Athens’s services versus one in which the City pays
Athens then passes the cost along to its residents through a tax, fee or charge. In either
case, there is a concern that elected officials will make improvident decisions affecting
taxpayers’ wallets. The Contract clearly implicates the “general purpose” of section
40602. (City of Orange, supra, 103 Cal.App.4th at pp. 54-55.)
Additionally, unlike in City of Orange, here, it is not the City, but Athens—a
private entity—that attempts to enforce a contract that does not conform to the
Government Code. Because “ ‘restrictions on a municipality’s power to contract . . . are
designed to protect the public, not those who contract with the municipality’ ” (City of
Orange, supra, 103 Cal.App.4th at p. 54), the Government Code’s “ ‘jurisdictional
prerequisite’ ” must be scrupulously enforced in this case to ensure the public is protected
from hasty decisions by elected officials that impact taxpayer finances. (Miller, supra,
20 Cal.2d at pp. 91-92.) We conclude the Government Code prescribes the only method
by which the City could enter the Contract. (See ibid.; South Bay, supra, 56 Cal.App.4th
at p. 1236.)
13
b. The Government Code did not authorize the Mayor Pro Tempore to
sign the Contract
Having concluded the Contract is subject to the Government Code, we turn to
Athens’s contention that the Mayor Pro Tempore’s signature was sufficient to conform
the Contract to the statutory prescriptions. Under section 40601, the mayor pro tempore
is authorized to execute a contract requiring the mayor’s signature “[i]n the absence of
the mayor.” Athens argues “absence” as used in section 40601 includes not just the
mayor’s physical absence, but also the mayor’s refusal to perform a ministerial duty, such
as signing a contract that has been approved by the city’s legislative body. (See § 40602
[“The mayor shall sign: [¶] . . . [¶] . . . All written contracts and conveyances made or
entered into by the city”], italics added.)
“Our analysis starts from the fundamental premise that the objective of statutory
interpretation is to ascertain and effectuate legislative intent. [Citations.] In determining
intent, we look first to the words themselves. [Citation.] When the language is clear and
unambiguous, there is no need for construction. [Citations.] When the language is
susceptible of more than one reasonable interpretation, however, we look to a variety of
extrinsic aids, including the ostensible objects to be achieved . . . and the statutory
scheme of which the statute is a part.” (People v. Woodhead (1987) 43 Cal.3d 1002,
1007-1008.) “The interpretation of an ambiguous statutory phrase may be aided by
reference to other statutes which apply to similar or analogous subjects.” (Id. at p. 1008.)
“[I]t is a well-established rule of construction that when a word or phrase has been given
a particular scope or meaning in one part or portion of a law it shall be given the same
scope and meaning in other parts or portions of the law.” (Stillwell v. State Bar (1946)
29 Cal.2d 119, 123 (Stillwell).)
As Athens correctly observes, the word “absence” is not defined by section 40601.
Nevertheless, the concept of absence appears elsewhere in the Government Code in
relation to the mayor’s duties and the mayor pro tempore’s authority to act in the mayor’s
stead. Section 36802 provides, “The mayor shall preside at the meetings of the council.
If he is absent or unable to act, the mayor pro tempore shall serve until the mayor returns
14
or is able to act.” (Italics added.) Like section 40602, section 36802 imposes a
ministerial directive—the mayor “shall preside at the meetings of the council.” (Gov.
Code, § 36802, italics added.) Nevertheless, the word “absent” as used in section 36802
is clearly limited to its physical aspect—it authorizes the mayor pro tempore to serve
“until the mayor returns.” (Ibid., italics added.) In view of the analogous subjects
addressed by the two statutes, the word “absence” in section 40601 should be given the
same scope and meaning as the word “absent” in section 36802. (Stillwell, supra, 29
Cal.2d at p. 123.) We agree with the trial court that “absence” as used in section 40601 is
limited to the mayor’s physical absence.
Our conclusion is bolstered by the lack of any statutory authorization for the
actions taken by the City Attorney and Mayor Pro Tempore in this case. While physical
absence is essentially a binary concept—the mayor is either physically present or he is
absent, absence in the dereliction of a ministerial duty sense advanced by Athens is more
amorphous—requiring at a minimum some determination that the mayor has a ministerial
duty he refuses to perform. Here, that determination was initially made by the City
Attorney, who recommended that the Mayor be “deemed absent” for purposes of signing
the Contract. The determination then was apparently ratified by the Mayor Pro Tempore,
who, on the City Attorney’s advice, purportedly signed the Contract.7 However, nothing
in the Government Code authorized the City Attorney or Mayor Pro Tempore to
7
In support of its earlier anti-SLAPP motion, the City submitted a purported
declaration by the Mayor Pro Tempore affirming she signed the Contract after the Mayor
was deemed absent. Following her recall by the Montebello voters, the Mayor Pro
Tempore invoked her Fifth Amendment right against self incrimination and refused to
testify during deposition about her purported signature on the Contract. In view of her
refusal to submit to cross-examination, the trial court struck the Mayor Pro Tempore’s
declaration, and concluded there was “no proof” of who signed the Contract.
Notwithstanding the trial court’s ruling striking the declaration, Athens contends other
evidence compelled a finding that the Mayor Pro Tempore did in fact sign the Contract.
As we conclude the Mayor Pro Tempore was not authorized to execute the Contract as a
matter of law, we need not address this evidentiary dispute.
15
unilaterally deem the Mayor absent based on their own determination that he had failed to
perform a ministerial duty.
On the contrary, the authority to direct the performance of a ministerial act is
vested in the courts, which, under Code of Civil Procedure section 1085, are authorized
to issue a writ of mandate to a public official “to compel the performance of an act which
the law specially enjoins, as a duty resulting from an office, trust, or station.” Thus,
while we conclude section 40601 is limited to the mayor’s physical absence, this did not
leave the City Attorney, the Mayor Pro Tempore or Athens without a means for resolving
their dispute with the Mayor over his ministerial duty in this case. As the trial court
correctly concluded, those who believed the Mayor was derelict in his duty to sign the
Contract could have sought relief from the courts by way of a petition for writ of
mandate. They could not, however, circumvent the Government Code’s prescriptions by
simply deeming the Mayor absent on their own unilateral determination. (Cf. City of
Orange, supra, 103 Cal.App.4th at pp. 54-55 [section 40602 creates “ ‘ “ ‘a broad base of
authority by requiring [contract] approval by a number of different individuals’ ” ’ ”].)
c. Estoppel does not apply
Finally, Athens contends the City should be equitably estopped from denying the
validity of the Contract. Again, we disagree. As an initial matter, Athens’s argument
disregards that it is Torres—not the City—that petitioned the court for a writ of mandate
to set aside the Contract. As a resident of Montebello, Torres had standing to challenge a
City contract that did not conform to the Government Code, and Athens offers no reason
why Torres should be estopped from challenging the Contract in that capacity.8
8
Athens contends its estoppel argument is nevertheless appropriate because “Torres
is just a straw man standing in the shoes of the independent [trash] haulers and City
insiders like [Mayor] Molinari.” Even if Torres has such a relationship with Athens’s
competitors and Mayor Molinari, Athens’s assertion still does not explain why Torres
should stand in the City’s shoes for purposes of estoppel. In any event, Athens cites no
authority for extending estoppel to bar a resident’s lawsuit challenging his city’s ultra
vires action on the ground that the resident is a purported “straw man” for some other
interested groups.
16
Moreover, numerous cases hold “estoppel may not be raised against a public entity
when it would defeat the public policy of requiring adherence to statutory procedures for
entering into contracts.” (Poway, supra, 149 Cal.App.4th at p. 1476; see, e.g., Seymour
v. State of California (1984) 156 Cal.App.3d 200, 204 [no estoppel against state based on
oral lease when statute required a written lease approved by specified officer]; State of
California v. Haslett Co. (1975) 45 Cal.App.3d 252, 257-258 [estoppel could not be
raised against the state to render effective an oral agreement to enter into a lease when it
was not approved by the officer designated by statute]; Santa Monica Unified Sch. Dist.
v. Persh (1970) 5 Cal.App.3d 945, 953 [no estoppel against a school district when a
written offer was orally affirmed but not ratified or approved by the board as required by
statute].) As we have explained, the Contract, which bound Montebello’s residents to
pay Athens’s trash hauling rates, implicated section 40602’s salutary purpose of
“requiring a city’s governing body to make considered decisions on important matters
affecting the public fisc.” (Poway, at p. 1475.) The “doctrine of estoppel is not available
to ‘ “defeat the effective operation of a policy adopted to protect the public.” ’ ” (City of
Fresno v. California Highway Com. (1981) 118 Cal.App.3d 687, 697.)
Lastly, Athens’s estoppel argument rests on the erroneous premise that Athens
reasonably relied on the Mayor Pro Tempore’s unauthorized execution of the Contract.
As this court recently recognized, “ ‘Persons dealing with a public agency are presumed
to know the law with respect to any agency’s authority to contract. [Citation.] “ ‘One
who deals with the public officer stands presumptively charged with a full knowledge of
that officer’s powers, and is bound at his . . . peril to ascertain the extent of his . . . powers
to bind the government for which he . . . is an officer . . . .’ ” [Citation.]’ ” (People ex rel.
Harris v. Rizzo (2013) 214 Cal.App.4th 921, 942.) The record shows Athens knew the
Mayor Pro Tempore signed the Contract after the City Attorney recommended that the
Mayor be deemed absent. As we have explained, neither the City Attorney nor the
Mayor Pro Tempore was authorized to unilaterally make that determination. Athens
relied on the Mayor Pro Tempore’s signature at its peril. Estoppel does not apply.
17
3. Councilmember Salazar Was Not Financially Interested in the Contract;
The Trial Court Properly Rejected the Government Code section 1090
Claim
Though we have concluded the Contract is void because it was not signed by the
Mayor in accordance with section 40602, we must nevertheless address Torres’s claim in
his cross-appeal that Councilmember Salazar violated section 1090 et seq. by
participating in the vote to approve the Contract despite her alleged financial interest in it.
This is because, apart from declaring a tainted contract void, section 1090 also requires
disgorgement of any public funds paid under the contract, without requiring the public
entity to restore the benefits it received. (Finnegan v. Schrader (2001) 91 Cal.App.4th
572, 583 [“It is settled law that where a contract is made in violation of section 1090, the
public entity involved is entitled to recover any compensation that it has paid under the
contract without restoring any of the benefits it has received”]; Carson Redevelopment
Agency v. Padilla (2006) 140 Cal.App.4th 1323, 1336 [where section 1090 is violated,
“the disgorgement remedy is automatic”].) Be that as it may, we conclude the trial court
reasonably determined that Salazar did not have a financial interest in the Contract.
These are the relevant facts and procedural history: Councilmember Salazar and
her husband founded the non-profit drug counseling organization MELA Counseling
Services Center (MELA) in 1993. MELA receives its funding from county contracts,
grants and private donations. Salazar received an annual salary of $75,000 from MELA,
if MELA had sufficient funds to pay the salary. Salazar received at least part of this
salary in 10 to 15 of the years MELA has been in operation.
MELA has a five member board of directors. In July 2008, when the City Council
was considering the Contract, Athens’s executive vice president, Dennis Chiappetta, was
one of MELA’s directors and Salazar was the chief executive director. Both Chiappetta
individually and Athens, at Chiapetta’s urging, made donations to MELA at its major
annual fundraising fashion show. These annual donations never exceeded $5,000. Funds
collected from MELA’s private fundraising are held in an account separate from the
18
account used to pay Salazar’s salary. When Salazar cast the tie-breaking vote to approve
the Contract, she did not disclose that Athens or Chiappetta made donations to MELA.
Based on the evidence presented, the trial court found that “Salazar did not receive
any promises from Athens for her vote.” Though Salazar received a salary from MELA
in some years, the court found there was “no connection” between her salary, Athens’s
donations, and the Contract. Accordingly, the court concluded she had no financial
interest in the Contract under section 1090 et seq.
Section 1090, subdivision (a) provides, in relevant part: “Members of the
Legislature, state, county, district, judicial district, and city officers or employees shall
not be financially interested in any contract made by them in their official capacity, or by
any body or board of which they are members.” The statute “codifies the long-standing
common law rule that barred public officials from being personally financially interested
in the contracts they formed in their official capacities.” (Lexin v. Superior Court (2010)
47 Cal.4th 1050, 1072 (Lexin).)
The Legislature has excepted two categories of financial interests, generally
referred to as “remote interests” and “noninterests,” from section 1090’s reach. (Eden
Township Healthcare Dist. v. Sutter Health (2011) 202 Cal.App.4th 208, 219 (Eden).)
Section 1091 defines a series of “remote interests” and provides that “[w]here an interest
is remote, a board member may comply with section 1090 by making full disclosure of
the interest, noted in the entity’s official records, and abstaining from voting on the
affected contract or influencing other board members in any way.” (Lexin, supra,
47 Cal.4th at p. 1073.) Section 1091.5, subdivision (a) defines a series of noninterests,
under which a public officer “shall not be deemed to be interested in a contract.”
“To determine whether section 1090 has been violated, a court must identify
(1) whether the defendant government officials or employees participated in the making
of a contract in their official capacities, (2) whether the defendants had a cognizable
financial interest in that contract, and (3) (if raised as an affirmative defense) whether the
cognizable interest falls within any one of section 1091’s or section 1091.5’s exceptions
for remote or minimal interests.” (Lexin, supra, 47 Cal.4th at p. 1074.) As noted, the trial
19
court focused on the second element, finding Salazar did not have a “financial interest” in
the Contract.
“Financial interests prohibited by section 1090 ‘are not limited to express
agreements for benefit and need not be proven by direct evidence. Rather, forbidden
interests extend to expectations of benefit by express or implied agreement and may be
inferred from the circumstances.’ [Citation.]” (Hub City Solid Waste Services, Inc. v.
City of Compton (2010) 186 Cal.App.4th 1114, 1127.) Nevertheless, while
acknowledging direct or indirect interests are equally prohibited, our Supreme Court has
instructed that the inquiry is “whether the [official] had a cognizable financial interest in
that contract.” (Lexin, supra, 47 Cal.4th at p. 1074, italics added.) “Courts thus
generally focus on whether the contract in question could confer some type of pecuniary
advantage to the target of a section 1090 inquiry: ‘Section 1090 is triggered when a
public official receives any profit from a public contract and includes the acceptance of a
bribe in return for influencing the public entity to enter into a particular contract.’
[Citation.] ‘The phrase “financially interested” broadly encompasses anything that would
tie a public official’s fortunes to the existence of a public contract.’ ” (Eden, supra, 202
Cal.App.4th at p. 225.) “Put in ordinary, but nonetheless precise, terms, an official has a
financial interest in a contract if he might profit from it.” (People v. Honig (1996) 48
Cal.App.4th 289, 333.)
In his cross-appeal, Torres acknowledges that Salazar had no direct financial
interest in the Contract. He nevertheless contends Salazar had a “remote interest” under
section 1091, which applies to the interest of “an officer or employee of a nonprofit
entity . . . .” (Gov. Code, § 1091, subd. (b)(1).) In view of Salazar’s status as an officer
of MELA, Torres argues Salazar violated sections 1090 and 1091 by participating in the
vote to approve the Contract, while failing to disclose the financial contributions Athens
made to MELA. We disagree.
20
As with financial interests under section 1090 generally, section 1091 applies to
only a “remote interest in the contract.” (Gov. Code, § 1091, subd. (a), italics added.)
Had the vote concerned a contract with MELA, or had Athens conditioned future
contributions to MELA on approval of the Contract, then Salazar, as a MELA officer,
would have been subject to section 1091’s disclosure and abstention requirements. But
MELA was not a party to the Contract and the trial court specifically found, based on the
evidence, that “Salazar did not receive any promises from Athens for her vote.” MELA
simply had no financial interest in the Contract. And, because MELA had no financial
interest in the Contract, it follows that Salazar had no remote interest by virtue of her
employment as a MELA officer. The trial court properly rejected Torres’s claim for
violation of section 1090 et seq. (See, e.g., Eden, supra, 202 Cal.App.4th at pp. 214-216,
227 [though district official participated in negotiating public contracts with company
that employed him as its president and chief executive officer, court found there was “no
disqualifying conflict of interest,” because there was no evidence of any change in the
official’s salary, benefits, or status relating to the contracts].)
4. A Writ of Mandate Will Not Issue to Compel an Illegal Act; The Trial Court
Properly Sustained the City’s Demurrer to Athens’s Complaint
Following the trial court’s ruling granting Torres’s petition, Athens filed its own
petition for writ of mandate seeking to compel the Mayor to execute the Contract in
accordance with the Government Code. The City responded with a demurrer, which the
trial court sustained. Because the residential waste hauling franchise contemplated by the
Contract had not been subject to competitive bidding, the court reasoned that it could not
compel the Mayor to execute the Contract, as doing so would violate the Montebello
Municipal Code.
As noted in our discussion of the facts, in November 2011, Montebello’s voters
passed the “Residential Solid Waste Franchises Initiative,” which was codified as
Chapter 8.14 of the Montebello Municipal Code (Chapter 8.14). The stated purpose of
Chapter 8.14 “is to ensure that the City Council utilizes a competitive process for
awarding residential solid waste franchises.” (Montebello Mun. Code, § 8.14.020.)
21
To that end, Chapter 8.14 prohibits the City Council from renewing existing residential
solid waste franchises, and requires a competitive bidding process for awarding new
franchises. (Montebello Mun. Code, §§ 8.14.030 & 8.14.060.)
Athens contends the trial court erred by invoking Chapter 8.14 to sustain the
City’s demurrer. Because its writ petition sought to compel the Mayor to comply with a
ministerial duty he was charged with years earlier—when the City Council approved the
Contract in 2008—Athens argues Chapter 8.14 is irrelevant. We disagree.
The rule is settled that “ ‘[m]andamus will not lie to compel the performance of
any act which would be void, illegal or contrary to public policy. [Citation.]’ ” (County
of San Luis Obispo v. Superior Court (2001) 90 Cal.App.4th 288, 292 (San Luis Obispo);
Cook v. Noble (1919) 181 Cal. 720, 721.) Because mandamus must operate in the
present, an intervening change in law may moot or otherwise make such relief
unavailable. (See, e.g., Consumer Watchdog v. Department of Managed Health Care
(2014) 225 Cal.App.4th 862, 879-880.)
In San Luis Obispo, a landowner, Jack Munari, applied to the county for
certificates of compliance confirming a prior owner subdivided the subject property into
577 developable lots decades earlier. The county denied the application and Munari
petitioned for a writ of mandate compelling the county to issue the certificates. Shortly
after Munari filed the action, a trust deed holder foreclosed on his entire interest in the
property. (San Luis Obispo, supra, 90 Cal.App.4th. at pp. 290-291.) The trial court
nevertheless issued the writ of mandate. The Court of Appeal reversed.
The San Luis Obispo court explained that, under the Government Code, the county
was authorized to issue certificates of compliance to only those persons who had an
interest in the subject property, and the “Legislature did not intend such certificates to be
issued to someone who has no interest in the land whatsoever.” (San Luis Obispo, supra,
90 Cal.App.4th. at p. 292.) Although Munari owned the property when he filed the
action, the court emphasized the “mortgage foreclosure divested Munari of all interest in
the property prior to completion of judicial review of the administrative action.” (Ibid.)
22
Because mandamus would not lie to compel a presently illegal or void act, the court
concluded the foreclosure made it “impossible” for Munari to obtain relief. (Ibid.)
As in San Luis Obispo, an intervening event—the Montebello voters’ approval of
the Residential Solid Waste Franchises Initiative—renders Athens’s requested writ relief
impossible in this case. Notwithstanding Athens’s allegation that the Mayor had a
ministerial duty to execute the Contract in 2008, the trial court correctly concluded that
this fact did not sanction mandamus relief in the present, given Chapter 8.14’s directive
to award residential waste hauling franchises only through a competitive bidding process.
Because the residential franchise contemplated by the Contract was not subject to
competitive bidding, the City cannot lawfully award the franchise to Athens now.9 The
trial court properly sustained the City’s demurrer.
5. Torres Failed to Establish Financial Burden; The Trial Court Properly
Exercised Its Discretion to Deny Torres Private Attorney General Fees
In his cross-appeal, Torres challenges the trial court’s ruling denying his request
for attorney fees under Code of Civil Procedure section 1021.5. As our Supreme Court
has explained, “eligibility for [Code of Civil Procedure] section 1021.5 attorney fees is
established when ‘(1) plaintiffs’ action “has resulted in the enforcement of an important
right affecting the public interest,” (2) “a significant benefit, whether pecuniary or
nonpecuniary has been conferred on the general public or a large class of persons” and
(3) “the necessity and financial burden of private enforcement are such as to make the
award appropriate.” ’ ” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214
(Whitley).) Here, the trial court concluded the first two elements of the Whitley test were
satisfied; however, because the evidence showed Torres bore no “financial burden” in
9
In the alternative, Athens points to the severance provision of the Contract and
argues the offending residential waste hauling franchise should simply be severed from
the rest. This argument places the proverbial cart before the horse. The severance
provision is binding only if the parties have validly agreed to it. As we have explained,
the City never validly agreed to the severance provision, or any other provision of the
Contract, because the Contract was not executed by the Mayor in accordance with the
Government Code.
23
litigating the action, the court concluded Code of Civil Procedure section 1021.5 attorney
fees were not appropriate. “[A] trial court’s ruling on a request for attorney fees under
[Code of Civil Procedure] section 1021.5 is reviewed for abuse of discretion.” (Children
& Families Com. of Fresno County v. Brown (2014) 228 Cal.App.4th 45, 57; Vasquez v.
State of California (2008) 45 Cal.4th 243, 251.) We find no abuse of discretion here.
By its terms, Code of Civil Procedure section 1021.5 “requires a court to consider
the ‘financial burden of private enforcement’ ” on the litigant. (Whitley, supra, 50
Cal.4th at p. 1217.) “In determining the financial burden on litigants, courts have quite
logically focused not only on the costs of the litigation but also any offsetting financial
benefits that the litigation yields or reasonably could have been expected to yield. ‘ “An
award on the ‘private attorney general’ theory is appropriate when the cost of the
claimant’s legal victory transcends his personal interest, that is, when the necessity for
pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual
stake in the matter.’ [Citation.]” ’ ” (Id. at p. 1215.) By weighing the financial burdens
and incentives involved in bringing the lawsuit, the court can determine “ ‘whether it is
desirable to offer the bounty of a court-awarded fee in order to encourage litigation of the
sort involved in [the subject] case.’ ” (Id. at p. 1216.) In making this evaluation, “the
court is required to ‘realistically assess the litigation and determine, from a practical
perspective,’ whether or not the statutory requirements have been met.” (Save Open
Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 254 (Save
Open Space), citing Woodland Hills Residents Assn., Inc. v. City Council (1979) 23
Cal.3d 917, 938.) As part of this assessment, the court may consider evidence that the
named plaintiff is litigating the action primarily for the benefit of nonlitigants with a
financial interest in the outcome. (See Save Open Space, at p. 254.)
In this case, viewing all the evidence presented after two rounds of briefing on
Torres’s attorney fee motion, the trial court concluded Torres “had no financial interest in
the outcome, either from a benefit point of view or from a cost point of view.” (Italics
added.) Rather, the court found, “Torres’ attorneys’ fees were paid by the Los Angeles
County Environmental Business Association (‘LACEBA’), an organization of Athens’
24
trash hauler competitors.” The court explained that Torres’s attorney “told him he
needed to go to LACEBA,” and once he obtained an agreement from LACEBA to pay
the attorney fees, “[t]hey ‘took over’ ” and “[t]hey paid for all of it.” Thus, from Torres’s
perspective, there was no cost-benefit analysis. In the trial court’s words, “Torres is not a
petitioner who wished to pursue a lawsuit, found an attorney, and then also found a
collateral source of funding for his attorneys’ fees.” On the contrary, the court found,
“this lawsuit would not have been filed without LACEBA’s agreement to pay Torres’
attorneys’ fees.” Under these circumstances, the trial court determined awarding fees to
Torres—who bore no financial burden in bringing the case—would not advance Code of
Civil Procedure section 1021.5’s purposes.
Torres argues he still is entitled to attorney fees, even if his “cost is zero,” because
he had “no financial interest in the outcome of the litigation.” Torres draws support for
the contention from a statement by our Supreme Court in Whitley, wherein the court,
reciting a “method for weighing costs and benefits” articulated in Los Angeles Police
Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1 (Police Protective
League), stated: “ ‘[A] bounty will be appropriate except where the expected value of the
litigant’s own monetary award exceeds by a substantial margin the actual litigation
costs.’ ” (Whitley, supra, 50 Cal.4th at p. 1216.) Torres maintains this statement
establishes a bright line rule mandating an award of attorney fees whenever a plaintiff has
no financial interest in the litigation. As Torres puts it: “When your financial interests
are zero, those interests cannot exceed the ‘actual costs of litigation’ by a substantial
margin.” We are not convinced.
To begin, notwithstanding the quotation from Police Protective League, the
Whitley decision repeatedly emphasizes the “problem of affordability of lawsuits,” which
Code of Civil Procedure section 1021.5 was intended to address. (Whitley, supra, 50
Cal.4th at p.1219.) The Supreme Court explained, “Section 1021.5 addresses this
affordability problem with the inducement of attorney fees for public interest litigation
when certain conditions in the statute are met. Stated another way, the Legislature that
enacted [Code of Civil Procedure] section 1021.5 was not so much concerned with what
25
brought a litigant with a potential public interest case into an attorney’s office, but rather
with allowing that litigation to move forward from there by offering at least the prospect
that the financial burden of the litigation could be shifted to the opposing party if the
litigant prevailed.” (Whitley, at p. 1220.)
As Whitley explains, the Legislature’s focus was not whether the litigant expected
some benefit or no benefit; the Legislature was concerned with ensuring that the problem
of affordability would not dissuade private citizens from bringing litigation that could
benefit the public. Thus, not surprisingly, the Legislature specifically required a finding
of “financial burden” for attorney fees to be awarded. (Code Civ. Proc., § 1021.5 [a court
may award attorney fees if, inter alia, “the necessity and financial burden of private
enforcement . . . are such as to make the award appropriate”], italics added.) In contrast,
the litigant’s “offsetting financial benefits” are a consideration courts have appended to
the financial burden analysis. (Whitley, supra, 50 Cal.4th at p 1215.) The Legislature’s
emphasis on financial burden over financial interest suggests a rule opposite to the one
advanced by Torres—that is, if the litigant bears no financial burden, Code of Civil
Procedure section 1021.5 attorney fees are inappropriate, regardless of the existence or
nonexistence of a financial interest.
Moreover, the issue in Whitley did not concern the appropriate test for weighing
financial costs against financial interests. The issue was whether a nonfinancial
interest—in that case, the plaintiff’s personal interest in her developmentally disabled
brother’s living arrangement—should ever be weighed against the plaintiff’s financial
burden in pursuing the litigation. (Whitley, supra, 50 Cal.4th at p. 1211.) The Supreme
Court concluded “a litigant’s personal nonpecuniary motives may not be used to
disqualify that litigant from obtaining fees under Code of Civil Procedure section
1021.5.” (Whitley, at p. 1211.) The quotation from Police Protective League—
comparing the litigant’s expected “ ‘monetary award’ ” to the “ ‘actual costs of
litigation’ ”—served to underscore the point that nonpecuniary interests are not a valid
consideration. (Whitley, at p. 1216, italics added.) However, there is no indication in
Whitley that the Supreme Court intended this statement to govern a situation like the
26
present one, where a nonlitigant organization—that cannot move for Code of Civil
Procedure section 1021.5 fees in its own name—agreed from the outset to pay all the
costs of litigation for the named plaintiff.
Indeed, the trial court astutely drew that very distinction here. Commenting on the
relationship between Torres and LACEBA, the court remarked: “I thought about, well,
why isn’t this just a collateral source situation where with Mr. Torres goes to court, he
files a lawsuit, he’s interested in the outcome, and he happens to have a funding source.
Well, Athens shouldn’t get the benefit of the fact that Mr. Torres has this nice funding
source off to the side. . . . [T]hat would be a windfall to Athens. . . . But it seemed to me
that a ‘but for’ analysis applies here. It’s not that Mr. Torres got a nice funding source
off to the side. It’s that this lawsuit never would have been filed without that funding
source being willing to pay. . . . Why should you [LACEBA] get to hide behind the
petitioner [Torres] and then recover your attorneys fees. If you want to be the petitioner,
be the petitioner. If you want to be the funding source, be the funding source, but don’t
expect to be reimbursed under the Private Attorney General Statute.” (Italics added.)
We agree.
Here, any one of Athens’s competitors that comprised LACEBA could have
brought the writ petition challenging the Contract. Had these competitors succeeded in
establishing that their actual costs of litigation transcended their expected monetary
benefit, they would have been entitled to attorney fees under Code of Civil Procedure
section 1021.5. But these same competitors cannot obscure their financial interest in the
litigation by choosing to fund Torres, who bore no “financial burden” in bringing this
case (Code Civ. Proc., § 1021.5), then claim, in Torres’s name, a right to reimbursement
for their attorney fees under the private attorney general statute. (See Save Open Space,
supra, 84 Cal.App.4th at pp. 254.) The trial court acted reasonably and within its
discretion in denying the request for Code of Civil Procedure section 1021.5 attorney
fees.
27
DISPOSITION
The judgment in favor of Torres and the order denying Torres’s motion for private
attorney general fees under Code of Civil Procedure section 1021.5 are affirmed. The
judgment entered after the order sustaining the City’s demurrer to Athens’s complaint
also is affirmed. In the interest of justice, Athens and Torres shall bear their own costs.
CERTIFIED FOR PUBLICATION
KITCHING, J.
We concur:
EDMON, P. J.
ALDRICH, J.
28