Consumers Lobby Against Monopolies v. Public Utilities Commission

RICHARDSON, J.

Concurring and Dissenting. I concur with parts I, III and IV of the majority opinion and in its holding that the Public Utilities Commission lacks the authority to award attorney’s fees in quasi-legislative ratemaking proceedings. I respectfully dissent, however, from those portions of the opinion (pts. II and V) which hold that in quasi-judicial reparation actions the commission may, in its discretion, award attorney’s fees and that similar awards may be made to nonattorneys.

Section 1021 of the Code of Civil Procedure (all further statutory are to that code unless otherwise cited) provides that: “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; but parties to actions or proceedings are entitled to costs and disbursements, as hereinafter provided.” (Italics added.) I have previously expressed my opinion that, under the express language of section 1021, attorney’s fees may not be awarded in any action or proceeding in the absence of specific statutory authorization or agreement of the parties. (Serrano v. Priest (1977) 20 Cal.3d 25, 51 (dis. opn.) [ 141 Cal.Rptr. 315 , 569 P.2d 1303 ].) The once again rejects this view and holds that in addition to the various proceedings specified by statute (e.g., §§ 836, 874.010, 1031, 1268.610; Civ. Code, § 4370), attorney’s fees may be awarded in any judicial or quasi-judicial proceeding under such equitable principles as the “common fund” theory. The majority, I believe, is in error.

Concurrently with our decision in Serrano , and perhaps in response to the United States Supreme Court’s decision in Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240 [ 44 L.Ed.2d 141 , 95 S.Ct. 1612 ] (see County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89, fn. 2 [ 144 Cal.Rptr. 71 ]), the Legislature in 1977 adopted section 1021.5 which in pertinent part provides: “Upon motion, a court may award attorneys’ fees... in any action which has resulted in the enforcement of an important right affecting the public interest [under specified conditions]....” (Italics added.) By adopting section 1021.5, the Legislature clearly, in my view, intended to codify and limit the various equitable doctrines discussed and applied in Serrano and to provide *917 the statutory authorization required by section 1021 for awards of attorney’s fees. By limiting such awards under section 1021.5 to “court” proceedings, the Legislature probably intended to preclude the granting of these awards by the Public Utilities Commission because no similar statute was enacted to allow such awards in administrative proceedings. The majority’s continued reliance upon the equitable common fund theory is thus contrary to the express intent of the Legislature.

The majority disputes the premise that section 1021.5 was intended to deny the commission the power to award attorney’s fees. According to the majority, in view of the broad powers legislatively conferred upon the commission (see Pub. Util. Code, § 701) and liberally construed by the decisions of this court, the commission needs no express statutory authorization to award attorney’s fees. Such a view, however, is wholly inconsistent with the express provisions of section 1021.

As noted above, section 1021 requires specific statutory authorization or private agreement before attorney’s fees may be awarded in “actions or proceedings.” The section thus applies both to judicial and administrative proceedings. If the Legislature had intended to grant administrative bodies the power to award such fees, it could readily have so provided. It has not done so.

As to that portion of the majority opinion which would allow similar awards to be made to nonattorneys, I simply note that, as the commission lacks all statutory authority to award attorney’s fees, a fortiori, it may not award similar fees to nonattorneys. Indeed, I am unaware of any authority, statutory or judicial, which would sanction such an award from the public treasury. Given the difficult, technical and complex issues which are routinely raised in commission proceedings, it seems to me inappropriate to adopt any rule which, as a general proposition, would encourage representation by laypersons of the public interest before agencies such as the Public Utilities Commission.

I would affirm both of the commission’s decisions under review herein.

Clark, J., and Manuel, J., concurred.