Baggett v. Gates

KAUS, J., Concurring and Dissenting.

I concur in parts II and III of the court’s opinion, but dissent from the court’s conclusion in part IV that the trial court abused its discretion in denying plaintiffs’ motion for attorney fees under Code of Civil Procedure section 1021.5. On the facts of this case, I believe the trial court could very reasonably conclude that a “private attorney general” attorney fee award was not warranted because the financial burden of the lawsuit did not transcend plaintiffs’ personal interest in the litigation.

In establishing the parameters of this state’s private attorney general doctrine, section 1021.5 provides that a trial court may award attorneys fees against a losing party in an action resulting in the enforcement of an important right if, inter alia, “the necessity and financial burden of private enforcement are such as to make the award appropriate.” In analyzing this requirement in Woodland Hills Resident Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941-942 [ 154 Cal.Rptr. 503 , 593 P.2d 200 ], we explained that this limitation was intended to reserve a private attorney general fee award for those cases in which such an award is needed to effectuate an important public policy, i.e., those cases in which a private plaintiff’s personal interest alone is insufficient to make it likely that he would have inpurred the attorney fees to bring the action. Quoting from the Court of Appeal decision in County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89 [ 144 Cal. Rptr. 71 ], we held: ‘“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.”’” ( 23 Cal.3d at p. 941 ; see also Serrano v. Priest (1977) 20 Cal.3d 25 , 45-46 & fn. 18 [ 141 Cal.Rptr. 315 , 569 P.2d 1303 ].)

*145 On the facts of this case, the trial court could well have determined that a statutory fee award was not needed as an incentive to insure that plaintiffs statutory rights would be vindicated and that the cost of the lawsuit did not place a burden on plaintiffs “out of proportion to [their] individual stake in the matter.”

The attorney fees at issue total about $8,400. As the court’s opinion notes, each of the four plaintiffs is challenging the validity of a disciplinary sanction which threatens to reduce his salary by $5,000 a year. Although there is, of course, no guarantee that plaintiffs will prevail on the merits once they are afforded an administrative hearing, assuming —as we must—that plaintiffs believe in the validity of their case, the total amount of money at stake in this proceeding—$20,000 every year —certainly provided the plaintiffs with a substantial financial incentive to pursue this litigation.

Furthermore, contrary to the court’s suggestion {ante, p. 143), this litigation will provide a substantial monetary benefit to the individual officers even if they do not ultimately prevail on the merits after an administrative hearing. The reduction in the officers’ salaries proposed by the city was scheduled to take effect early in 1980, but that reduction has been stayed during the course of this litigation by an injunction issued by the trial court. As a consequence, the lawsuit to date has apparently permitted plaintiffs to receive more than $40,000 in additional income. Thus, even if we consider the matter solely from the point of view of the individual plaintiffs’ financial interest, I do not see how we can conclude that the trial court abused its discretion in finding that in light of their personal stake in the litigation, the cost of the litigation—$8,400 in attorney fees—did not place a disproportionate burden on plaintiffs. 1

In addition, it is not at all clear to me that the trial court—in conducting the “realistic assessment” of the situation mandated by Wood *146 land Hills (see 23 Cal.3d at pp. 938, 940, 941-942 & fn. 13)—was required to confine its consideration to the financial costs and benefits of the four individual plaintiffs. The record discloses that the attorney fees at issue have not been paid by the individual plaintiffs; instead, this litigation has been financed by plaintiffs’ employee association—the Los Angeles Police Protection League. There is, of course, absolutely nothing improper in such an arrangement. (See, e.g., Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217 [ 19 L.Ed.2d 426 , 88 S.Ct. 353 ]; Railroad Trainmen v. Virginia Bar (1964) 377 U.S. 1 [ 12 L.Ed.2d 89 , 84 S.Ct. 1113 , 11 A.L.R.3d 1196 ].) Nonetheless, in determining whether a private attorney general fee award is needed to insure that lawsuits will be brought to enforce a' particular statutory policy, it seems eminently reasonable for a trial court to consider whether the existence of such an organization means that—as a practical matter—private lawsuits to enforce the enactment will in fact be forthcoming even without the promise of a private attorney general award. 2 Surely, when the role of the employees’ association is taken into account, there can be no question but that the trial court did not abuse its discretion in concluding that an attorney fee award under section 1021.5 was not warranted in this case.

I would affirm the trial court judgment in its entirety.

The fact that other persons may gain the benefit of the general legal principle established in this case cannot, of course, in itself justify a fee award. As we explained in Woodland Hills, supra, 23 Cal.3d 917 , 946: “Although ‘it is a built-in consequence of [the Anglo-American principle of] stare decisis that “a legal doctrine established in a case involving a single litigant characteristically benefits all others similarly situated’” [citations], the doctrine of stare decisis has never been viewed as sufficient justification for permitting an attorney to obtain fees from all those who may, in future cases, utilize a precedent he has helped to secure. [Citations.] As the Second Circuit Court of Appeals stated in rejecting a plea for attorney fees based on a comparable theory: ‘It is a novel assertion that attorneys who are victorious in one case may, like the holder of a copyright, claim fees from all subsequent litigants who might rely on or use it in one way or another.’ [Citation.]”

UnIike the legal aid offices and “public interest” law firms discussed in Serrano v. Priest, supra, 20 Cal.3d 25, 47-48 , an employee organization—like the homeowners’ association involved in Woodland Hills—is an organization which exists, in large measure, in order to further the common personal interests of its members. Insofar as a particular lawsuit is likely to provide direct benefits to a large number of members who are contributing to the legal fees, it would belie reality to ignore the members’ collective interest in assessing whether the financial burden imposed by the lawsuit is “out of proportion” to the personal interests at stake in the matter.

Although the Court of Appeal decision in County of Inyo v. City of Los Angeles, supra, involved a public, rather than a private, entity, its reasoning is instructive on this point: “Inyo County went to court as champion of local environmental values, which it sought to preserve for the benefit of its present and future inhabitants. This action is not a ‘public interest’ lawsuit in the sense that it is waged for values other than the petitioner’s. The litigation is self-serving. The victory won by the county in 1977 bulked large enough to warrant the cost of winning it. The necessity for enforcement by Inyo County did not place on it ‘a burden out of proportion to [its] individual stake in the matter.’ [Citation.]” ( 78 Cal.App.3d at p. 90 .)