*1 Dist., July B046173. Second Div. Seven. [No. 1991.] al., KATHLEEN ANGELHEART et Plaintiffs and Appellants, al., CITY OF BURBANK et Defendants and Appellants.
Counsel Stormer, Traber, E. Litt & Pegine Grayson, M. Anne Theresa K. Richardson and Barrett S. Litt for Plaintiffs Appellants. Fletcher, Scott, W.
Joseph and Juli City Attorney, C. Chief Assistant City Attorney, for Defendants and Appellants.
Opinion LILLIE, Burbank, P. J. City Michael R. Hastings, —Defendants his Burbank, Bowne, Dossin, capacity Mayor as and Al Robert Mary Lou Howard, and Mary their Kelsey, as members of the capacity Burbank City (herein Council referred to as City), appeal from an order awarding plaintiffs $18,700 attorneys’ fees of pursuant to Code of Civil Procedure section 1021.5. Salas, Plaintiffs Kathleen Angelheart, Norman Laurie Angelheart, Candy Stallings, (hereinafter Mark Stallings referred to collectively plaintiffs) cross-appeal from that portion of the order denying them the full amount $71,286.62. of attorneys’ fees sought, the amount of Background
Factual and Procedural The award of attorneys’ arises out of successful plaintiffs’ challenge to City’s former regulation homes, of large family day-care which regula- tion, claimed, they inwas violation of state law.
In Mrs. Angelheart provided child her Burbank home for children, Salas, children including of plaintiffs Stallings. Plaintiff a Burbank resident, also was licensed state to a small operate family day-care center, and applied to operate a family day-care In center. September 1987, City informed the Angelhearts were they required for apply conditional use permit from City that the city ordinance limits number of children to be cared for in any day-care home to 10. After hearing, City planning board Board) (Planning granted Angelhearts a conditional conditions, use permit, with several including the condition nine the
limiting to number of children under To age five. remove the conditions imposed permit, Angelhearts appealed Planning Board’s to the decision Burbank Council which denied the City permit for large day-care facility, limiting thus to six the number of children the Angelhearts were allowed to care their home. for In (Code plaintiffs filed for writ mandate Civ. April petition Proc., 1085, 1094.5) and relief injunctive for complaint declaratory §§ alia, contended, against Plaintiffs that City. Legislature, by inter the state Code, (Health Care Day California Child Act & 1596.70 et Facilities Saf. § Act), has seq.; the field of occupied family day-care regulation preempt- Act, all ing regulation and that the permitted municipal expressly certain application of ordinances to in violation of the plaintiffs was law, Act. alleged Plaintiffs also Burbank could not state pursuant prohibit large family day-care single-family homes area zoned Code, 1597.46, (Health & dwellings (a)), Saf. a large family subd. § day-care being home defined seven providing as a home care for to twelve 1596.78, (Id., children. (a).) subd. These were contested by City. § issues September plaintiffs obtained a writ of mandate peremptory 16, 1988, City, on or commanding before November a procedure to establish *5 regulating family day-care homes that the Act. The complies 22, return date of November 16 subsequently was continued December and, December, in early did enact an the City pursuant ordinance writ. 21, 1988,
On December filed plaintiffs objections to four of the provisions ordinance, new the claiming violated The provisions state law. return date 6, 1989; return, was continued to March after the hearing on the court made 1989, a minute dated order March stating part that “the pertinent court, ordinance is not invalid on its face.” while acknowledging certain applications in the future ordinance a violation may constitute law, of state the interpreted ordinance obviate many of concerns plaintiffs’ and to be consistent with state law. 7,1989, filed appeal from the 9 order March on June which appeal
was dismissed subsequently plaintiffs’ motion sometime mid-July dismissal, 1989. our record is as to Although unclear for the grounds plaintiffs’ attorney claimed on the on the hearing motion for fees that the appeal untimely. was 3, 1989, and attorneys’
On filed a motion for fees costs July plaintiffs 1021.5, Civil fees seeking attorneys’ to Code of Procedure section pursuant $71,286.62.1 and totaling costs motion, filed in four
According attorneys to declarations support January Litt & the case from Stormer a total of about 354 hours on spent attorneys, 1988 to which at the various rates of the April billing $43,514. Counsel, resulted fees of from Public attorneys about Two interest law and Hills Bar Associ- Angeles Beverly office of Los ations, case, which, according a spent total of about 87 hours on rates, $12,694. fees, billing totaling resulted a fee of To these about $56,200, 1.25, plaintiffs argued that court should apply multiplier $71,286. which would result in a fee total award of about Plaintiffs based factors, application of a on certain low- multiplier including relatively Stormer, income status of the small Litt & plaintiffs, size of unpopular nature of expensive bringing against suit “admi- municipality, rable results” relief’ obtaining sought. “precise motion, opposition to the motion was under City argued untimely Court, California Rules of rule and even if timely, do not meet plaintiffs the criteria for out in Civil attorneys’ set Code of Procedure section 1021.5. senior City’s assistant declared that the issues city attorney presented unusual; in the were case not particularly the total amount of complex (over 400) hours on the case was spent plaintiffs’ attorneys “greatly excess” time necessary for are experienced attorneys plaintiffs’ attorneys, she did herself more than the entire spend 200 hours on case. motion,
After hearing on the the matter was submitted. On 10, 1989, October the court made the “The following order: Court finds that *6 the reasonable fees based attorneys’ work amount to upon performed $18,700.00 claimed).”2 one-third of the (approximately amount motion, 1Code of Civil Procedure provides pertinent “Upon section 1021.5 part: a court may attorney’s award fees to a party against opposing successful one or more parties any action which has resulted in the enforcement important right affecting of an interest benefit, (a) significant a if: pecuniary whether nonpecuniary, or has been conferred on the general public (b) or a persons, class of necessity and financial private burden of enforcement are (c) such as to make the award appropriate, and such fees should not in the justice interest of be paid recovery, out of the any.” if order, form, 2The which appeared on a form a similar to clerk’s minute order also stated: “Counsel plaintiff has submitted an incredible attorney accumulation of hours in their application for fees. Attorneys of their asserted competence experience could and should have been produce able to product the work reflected in the file in substantially less than the attorney board, 441.75 etc., hours. Even with attendant activities before the 150 hours would order, filed notice October City timely appeal of from the filed notice of from said We deal plaintiffs timely cross-appeal order. first with City’s appeal.
I City’s Appeal A. Timeliness Motion of contends that the motion was to California untimely pursuant Court, rule,
Rules rule That is not here of 870. its by express language, The rule applicable. that “A who claims provides part prevailing party costs and file after the days shall serve a memorandum of costs within 15 mailing date of of the clerk entry by notice of or dismissal judgment under Code of Civil Procedure section the date of written 664.5 or of service dismissal, notice entry or within 180 after judgment entry days Court, (Cal. judgment, 870(a).) whichever is rule first.” Rules of 1021.5, awarded, “But section to which the fees were pursuant clearly provides motion intended to be initiated special procedure plainly after the result of the is subject action known but to no time express limit. The motion distinguishes claim under procedure sharply for fees section 1021.5 from claim is ordinary costs which made not motion but by by (if all) memorandum and which brought is hearing by claimant but by the to tax adversary’s motion our view more specific [citation]. provisions of section 1021.5 control the general more described in procedure (Marini section 1033 .” (1979) . . . Municipal [former] Court 829, 834 Cal.App.3d 465].) Cal.Rptr. [160
As the of rule provisions with the time dealing within which a memorandum of costs is to be filed have no application to motion procedure 1021.5, out set Code of Civil Procedure section City’s conten- tion is without merit.
be generous. counsel [1] childcare in the Cal.App.3d proceedings. The There is a public order is statutory interest. justify 213, That Here, threshold City appealable. 223 determination is *7 However, scheme without the ‘public’ of Burbank. There is no showing [226 hourly rate. showing Cal.Rptr. (Citizens is limited—comprised Nor supported juncture whatever 265].) Against Rent [plaintiffs there it can be encouragement any have] basis same Control said that enforced an for the application showing only any City v. residents of Burbank.” which might that it benefits [of] important city expertise presented (1986) Berkeley has inure from these failed to anyone right any multiplier. affecting seeking comply 181
467 Public Significant B. Benefit conferred that the action finding that the court’s contends enforcing important Burbank the residents of benefit on
significant the undis to City points evidence.” credible by any is “not right supported effect that to the to the motion opposition evidence submitted puted in Burbank care center family day a Angelhearts’ operate application years prior received the two the City only was one of two applications ordinance, the Angelhearts’ new of its the lawsuit and since adoption three such only applications. was one of application an award of whether “The to determine trial court has discretion A the trial reversal of appropriate. section 1021.5 is [Citation.] sufficiently grave injury lie if the resultant court’s determination will reasonable basis and no miscarriage justice, to amount to a manifest (Weissman Retirement County Employees Angeles v. the action is shown.” Los 124]; 40, internal (1989) quota 211 46-47 Cal.Rptr. Assn. Cal.App.3d [259 omitted.) tion marks in section 1021.5 is
The as embodied attorney general theory private of important public enforcement designed encourage private “clearly 829, Court, 835-836.) (Marini supra, Municipal Cal.App.3d v. 99 rights.” Section in origin. “The need not be constitutional important right [Citation.] rights important public policies. also as well as applies statutory 1021.5 exer The directs the judiciary ‘important right’ requirement [Citations.] or societal strength importance cise to ascertain judgment attempting must be right right important involved. [Citations.] [T]he The .... trivial policies. cannot involve or peripheral public [Citations.] assessment of must determined from a realistic significance benefit be (1987) Duffy Cause v. (California all the circumstances.” Common pertinent 285], marks internal quotation 745 Cal.App.3d Cal.Rptr. [246 omitted.) satisfy
A asset does not have to be tangible gain present concrete benefit; rather, the a significant that action confer requirement be may of a fundamental statutory policy effectuation constitutional or (Beach (1985) II Colony Cal.App.3d Coastal Com. present. California 485].) Cal.Rptr. [212 Act that Day provision California Child Care Facilities contains children “It is the intent of the care homes for Legislature family day children the give must be situated normal residential so as to surroundings It is home environment which is conducive to and safe healthy development. care home family day of this state to children in a public policy provide *8 the same home in environment as a provided traditional home setting.” Code, 1597.40, (Health (a).) & Saf. Legislature § subd. declared also “this to be policy of statewide concern with the occupying the purpose field the exclusion of zoning, building and fire codes and municipal the regulations governing use or occupancy family day care homes for children, as in except specifically provided for and to chapter, prohibit restrictions any use of relating single-family family day residences for (Ibid.) for homes children as except by this provided chapter.”
In light of these the trial court legislative declarations of policy, reasonably could have determined right that action involved an important affecting interest. discretion public City any has established abuse of as to this factor.
We now address the factor of whether a separate action conferred Assn., significant “The Supreme Court Woodland Hills Residents benefit. [in Inc. 917, 503, Council (1979) (154 23 Cal.3d 939-940 Cal.Rptr. 200)] P.2d has explained legislative intent behind benefit’ ‘significant course, ‘Of in requirement: a public always significant seeing has interest thus, sense, that legal strictures are in a real properly enforced the public derives a always “benefit” when illegal conduct private rectified. Both the statutory language (“significant benefit”) and pri or law, however, case indicate Legislature that the did not intend authorize an award of in every case a violation. We involving statutory believe rather that Legislature that a contemplated adjudicating motion 1021.5, for attorney fees under section a trial court would determine the benefit, benefit, significance of the as well the size receiving class assessment, circumstances, from a realistic all the light pertinent ” gains which have (California Common Cause resulted a case.’ particular v. Duffy, supra, italics.) Cal.App.3d original case, In the instant there is no evidence the record support trial court’s conclusion that all of the residents of Burbank child care seeking fact, benefited from the action. there is no evidence that there was any Burbank, person like the who Angelhearts, sought permit more than the 10 children allowed in family day-care home under the former action, There municipal ordinance. is no evidence Angelhearts’ that although successful and involving an important public policy, affected a of persons. class
The trial court’s conclusion be cannot supported facts two persons for a applied large family home day-care permit last two years *9 such permit for persons applied and that three under former regulations the is new There the ordinance. after enactment of first seven months during the in the change the by were affected indicate these applicants that nothing words, its discre- court abused In the trial other zoning Burbank ordinances. in Burbank affected others the action concluding Angelhearts’ tion in that appli- situated similarly were that there other when there was no evidence change the cants, by were then affected day-care homes family that other or ordinance, in the affected would be so family in the homes day-care that future. Stores, Inc. Lucky v. in Press
As the California
Court
Supreme
explained
704],
the court
P.2d
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(1983)
dation, which that the trial court its discretion compels conclusion abused that concluding benefit Angelhearts’ litigation significant conferred aon class of Our record no reasonable basis persons. simply provides trial court’s Nor there evidence our support any conclusion. record to that other cities support the assertions the dissent speculative are for violating state law and that case have ramifications would fact, cities and family most of the assertions day providers. dissent are nowhere in premised entirely matters speculative appear this record.3 evidence, 3Angelhearts filed a judicial motion to take additional or in the alternative to take
notice, we petition rehearing supplemented based on record. Inasmuch as have denied reason, petition, motion and evidence” is before us. properly “additional For this “Section 1021.5 was not designed as method for liti rewarding motivated gants own pecuniary interests who coincidentally Com., protect (Beach interest.” II Colony Coastal California *10 II, supra, 114.) Colony Beach where Cal.App.3d owners property in engaged litigation in a “rela resulting published involving decision avulsion,” act tionship coastal and common law ... in the area of (166 112), at the court stated: Cal.App.3d p. allegation II’s “Colony [that public got something fact that the nothing litigation] from its ignores benefits it obtained are immediately monetary translated into directly The terms. benefits are likely not to result economic benefit any more than a few even in the theoretically future. While citizen persons, every benefits which by rulings a follow the law compel governmental body to law, which resolve disputes over that is not applicable pecuniary benefit However, substantial, nature. . . . II eco only Colony reaps present (166 nomic benefit it would have had the litigation lost been unsuccessful.” 113.) Cal.app.3d p. the trial
As court abused in finding its discretion the existence of one of 1021.5, the necessary statutory under elements section there is no basis for fees, an award of and reversal is We need warranted. not address the issue of financial burden. conclusion,
In light of the above we also need the Angel- not address claim hearts’ on their that the trial court cross-appeal abused its discretion determining amount of the fees.
Disposition The order is reversed. The are to bear their parties own costs on appeal. J., (Fred), Woods concurred. we need not arguments address in the dissent are premised which on the “additional evidence.” However, true, dissent, it is not as asserted in the Angelhearts that had no reason address
the “significant benefit” issue majority until the opinion Angelhearts was filed. had opportunity court, present evidence on the issue they to the trial but had the burden of proof on that issue below. record, Even were we to deem the by Angelhearts declarations submitted part to be of our we would reach the same result on appeal. The declarations fail to establish that was the decision, trial Angelheart mandates, factors, court’s as opposed to the clear statutory or other that governments caused some local regulations to conform their to state law. The declarations also fail to large establish that a persons class of Angelheart has been affected decision. themselves, Other than in the case of Angelhearts there is no evidence local governments have actually provisions enforced invalid against of their ordinances family day-care providers. There is no evidence municipality a upon provisions relied such deny permit or condition a any provider. JOHNSON, J. dissent. respectfully —I too,
I, for different reasons. but judgment reverse the trial court’s would remand the trial court for a require different reasons would Those the amount of fixing standards the correct purpose applying award, higher result inevitably which would attorney process fee award this case. however, issue, to an was entitled is whether respondent
The threshold I reach the says opposite no. majority fee award of kind. any conclusion. *11 As
I. Ruled, Entitled Home Was the Child Care the Trial Court Attorney Procedure
to an Under Code of Civil Fee Award 1021.5.1
Section have determined could “reasonably concedes the trial court majority right affecting that the an important care action involved [child home’s] ante, the trial 468.) But then it concludes (Maj. p. interest.” public opn., right affecting erred finding important court this action involving benefit, on nonpecuniary, a or public significant pecuniary interest conferred a class of general or persons. I itself majority opinion standard review the begin by reiterating the of “The trial determine whether an award endorses: court has discretion to A reversal the trial section 1021.5 is of appropriate. [Citation.] if sufficiently grave court’s determination will lie is injury resultant to amount to a manifest and no reasonable basis miscarriage justice, of (Weissman the action Retirement Angeles County Employees is shown.” v. Los 40, 124]; 211 (1989) Assn. internal quota- 46-47 Cal.App.3d Cal.Rptr. [259 omitted.) marks tion of a significance
What the majority opinion says measuring about “The benefit must be repeating: benefit also bears of the significance determined a circumstances.” from realistic assessment of all pertinent 730, (California Duffy Common 200 745 (1987) Cal.App.3d Cause v. [246 285], A or a omitted.) tangible internal asset Cal.Rptr. marks quotation that the gain concrete does not be present satisfy requirement have to benefit; rather, a action confer a of fundamental significant effectuation Colony II Cali (Beach constitutional v. may be statutory policy present. 106, 485].) (1985) 112 Cal.Rptr. Coastal Com. 166 Cal.App.3d [212 fornia indicated, statutory 1Unless otherwise are to the Code Civil Procedure. all references case, In the instant the trial court found that all of the residents of Burbank child seeking care benefited from the infer action. It is also reasonable to Burbank, that child providers of home like the also Angelhearts, benefited, because the zoning action caused Burbank to new ordi adopt Thus, nances which complied Angelhearts’ state law. impact action on others situated a similarly one establishes continuing rights (166 of all large home in Burbank. family day-care providers 106.) Cal.App.3d
“In Assn., Council, Woodland Hills Residents v. 23 Cal.3d City supra, Inc. 917, 939-941, the Supreme Court council to recognized forcing city with the comply Subdivision Act could be a Map by making findings proper ‘significant (Kern benefit’ and a factual trial presented issue to the court.” 1205, River Public Access Com. v. (1985) 170 Cal.App.3d of Bakersfield 125]; Cal.Rptr. also finding significant [217 benefit was conferred litigation forcing local governments to with state laws are San comply Valley (1984) Bernardino Society, County Audubon Inc. v. San Bernardino 423], Cal.App.3d Cal.Rptr. and State [202 California County (1983) Santa Clara 142 Cal.App.3d 614-615 Cal.Rptr. [191 204].) *12 however, The instant litigation, than a accomplished “forcing more city that, council to in comply state laws” this specific case. Beyond Thus, forced Burbank to reform its own ordinances. the plaintiffs brought about a change in the law which will benefit directly Burbank’s other children, existing home child care potential the providers, city’s parents, and other employers, citizens for the foreseeable future. the Accordingly, Angelheart litigation an presents even more “significant case of compelling benefit” than those several cases which have fee attorney approved awards where the litigation reminded only local authorities to an obey (See, existing statutory provision. the cases cited the e.g., preceding paragraph.)
The facts that only two persons for a home applied large family day-care in the last two permit years under the regulations former and that three persons applied for such permit during first seven months after enact- ment of the new ordinance does not The trial support majority’s position. court could have inferred reasonably from the evidence Burbank provided by that the new ordinance more encouraged people operate large family homes Burbank than under the day-care regulations. former Even under city an figures supplied, average only application of one a year was regulations, under the while an average submitted former of five or six per to be submitted reasonably expected could be under the new year ordinance. in the This substantial increase of represents availability large family of hundreds time will benefit probably in Burbank and over homes day-care children, and their employers. their parents’ Burbank parents, Burbank many about how Even in evidence specific the absence of of time homes as day-care “large” family citizens had applied operate fees, to estimate whether it is for courts of on feasible hearing action conferred legal there will future so the enough Angelhearts’ be all, months had after elapsed “significant benefits.” After seven child new home changed “large” ordinance the creation of permitting time for It existing requires facilities facilities. expansion of “small” Moreover, new word to about the spread opportunity. legal feasibility arrangements hear time make for those who about this it takes possibility, cases, this, many to enter new an old business or one. expand them “prove” it would on place require intolerable burden plaintiffs have brought many they how will advantage legal change take people insists majority at a Yet the shortly change about time after the has occurred. case, lack of specific on that kind of in this just proof complaining hearing. evidence time of the about known beneficiaries reasons, Instead, For law the courts requires. obvious this is what the are to circumstances” pertinent make a “realistic assessment of all 730, 745, (California italics Duffy, supra, Common Cause v. 200 Cal.App.3d added). will Since aby legal change most of beneficial actions produced must occur the future—often far the future—courts often base esti “assessment” of benefits” the basis “significant predictions (Los Angeles (1986) Angeles League mates. Protective Los Police case, it was 697].) entirely In the instant Cal.App.3d Cal.Rptr. [232 *13 “large” reasonable the trial be home enough for court to there would predict child care estimate years plaintiffs’ facilities created Burbank future eventually action will number of legal “significant confer benefits” on citizens—children, city Burbank citizens. In a other parents, employers, Burbank, many the size of will far more to predict people is reasonable decide to new child “small” ones “large” expand start home care facilities or than to there axe others Angelhearts assume are ones or that only few will who their If the felt there were few who Legislature follow lead. facilities, could be child it seems encouraged “large” home operate doubtful have these legislation freeing it would bothered to facilities pass I Legislature right of local land use restrictions. was about suspect California in trial Burbank. general right and the court was about
Beyond the benefits trial court found this action have expressly Burbank, conferred on residents ignore we cannot appeal beneficiaries in other California “The cities. element of [significant benefit] . . . section 1021.5 . . . is often decided well—if as an better—by court appellate as to a trial opposed court. How will receive many people benefit, much, kind what and how as a result of a given legal action more of a value usually judgment (Los than an issue of fact.” Angeles Police League City Protective Angeles, supra, 9.) Los 188 Cal.App.3d Burbank’s further attempt resist law an complying by taking state Thus, ended with a appeal dismissal. the city avoided an establishing appel- late which precedent would have undoubtedly been unfavorable to its posi- tion would have directly on all impacted cities this state. But the fact this case was resolved an short of appellate decision does not mean the result is without practical effect elsewhere.
One would have to be blind to the of the real world to practicalities assume word of this court order would not reach many city govern- California, ments especially scores of which municipalities share Los Angeles basin with Burbank. It is none of these had probable yet cities had time to react to this news their land changing regulations own use as date of the hearing on the fees. So the request plaintiff would have been hard pressed demonstrate at that there had hearing been Nevertheless, effect ripple beyond borders of Burbank. any “realistic assessment of all pertinent (California circumstances” Common Cause v. 730, 745, Duffy, supra, added) 200 Cal.App.3d italics cannot ignore probability the Angelhearts’ action will encourage voluntary legal change elsewhere which will confer benefits on home child care providers, parents, children, employers, throughout citizens cities the Los Angeles basin, and beyond.
It cannot be local disputed many jurisdictions had land-use restrictions which prevented Indeed, large home child care facilities from operating. is the very reason state lawmakers found it necessary to enact legislation preempting those restrictions. The Angelhearts’ serves litigation exam- to these ple jurisdictions that they must their land laws make change use them coincide with the new state law in this field.
If other cities do not change land use regulations more- voluntarily, *14 over, the plaintiffs’ pioneering legal action has made much it easier for situated similarly home child care in providers compel to their change briefs, counties and municipalities. The pleadings, and all the rest plaintiffs’ lawyers drafted are part of the public record and available to lawyers other representing prospective home child care providers to hoping in other expand cities whose current land use restrictions are inconsistent with state law. So are the court orders compelling Burbank to amend its land bring can to in lawsuits subsequent which lawyers use restrictions money The time and plaintiffs’ in their trial cases. attention of the courts first, lawsuit in path-breaking invest bringing were lawyers required down need to follow benefit of others who this will redound to the on issue in care home health facilities in or their expand that same order to open path jurisdictions beyond Burbank. “all
The I a assessment” of characterizes what consider “realistic majority cities . . that other assertions . pertinent “speculative circumstances” as are law this have ramifications for violating state and that case would cities and family day entirely speculative . . . providers premised matters that nowhere this record. appear dissent, from
As here is different mentioned earlier in this the court’s role actually happened the traditional one of facts of what reconstructing the function, latter typical sometime When more past. performing “speculating” or are from judges juries finders” and are prohibited “fact anything the sense from estimating inferring what have might happened occasionally in the record. But other than hard evidence that is placed the future. law asks to do different—to forecast judges something quite judges Section of those it represents requires 1021.5 one occasions—when legal action is “public given assess the benefits” a quantity quality into peering can that be without likely generate. assessment made Rarely as finding the future and what the will be contrasted with predicting facts what have been. they
Of this into a broader necessity, brings range sort of assessment play than the already existing might produce information parties facts form of sense evidence. must some common judge, predictor, apply they about of individuals and institutions—how knowledge behavior have in the in the future. past likely behaved and how are to behave they many
It knowledge does not deal of forecast require great specialized like jurisdictions local will regulations turn out to have restrictive land-use did). (otherwise Burbank’s did the bother law why Legislature passing Nor, will, is it all jurisdictions of those local “speculative” predict many Burbank, like we indulge resist with the new state Unless law. complying obstinate, the uniquely Burbank’s unlikely assumption government there vigor would lead one to forecast city’s opposition lawsuit spontaneously were number of other which had not reformed jurisdictions to the Angelheart land use laws the new state law comply prior counties, either be a beacon Angelheart decision. For these cities could aor Either would deserve considerable way, Angelhearts’ lawsuit whip. credit for the when eliminated their flowing jurisdictions benefits those *15 Furthermore, child against large restrictions home care centers. forjudges, as former members of the it legal profession, is reasonable not “speculative,” decision, forecast will learn and the lawyers Angelheart of use its pleadings briefs, and to the fullest in compelling or these other cities and persuading counties to with the state law. comply there no hard of a
Understandably, hearing was evidence the record which took months after the succeeded place only Angelheart four litigation litigation’s as to that future or other local impact persuading compelling jurisdictions to their land change use There was not time regulations. simply for these any of events to have occurred. evidence Any Angelhearts the (at to introduce at attempted hearing that would have been “speculative” least as the majority of this court defines and dismissible as “speculative”) such. however, court, and
Ironically sadly, my on this after dismiss- colleagues ing my “realistic assessment” as closed their assertions” have “speculative eyes and ears to evidence have” this case not “would but demonstrating has had “ramifications for other cities and care profound family provid- day ers.” Now that time has seemed indeed enough passed for what a reasonable nearly inevitable to be prediction proved disproved, or has prediction been out. borne But after the the dismissing prediction speculation majority insists on ignoring reality as well.
The have to take evidence Angelhearts submitted motion additional under section 9092 of certain declarations and to take notice judicial of ordinances. changed These declarations document—as was predictable—that in the since years in Angelheart was issued trial court decision has been used by lawyers state throughout govern- local persuade compel ments to amend their land laws home use to allow child care facilities.3 2Code of Civil Procedure provides: section 909 “In by all cases where trial jury right by jury not a matter of or where has been trial waived, reviewing may court contrary make factual determinations to or addition to those by may made trial court. The factual determinations be based on evidence adduced taking before trial court with or reviewing either without of evidence court. reviewing may making court the purpose the factual determinations or for any other in the purpose justice, concerning interests of evidence take additional of or facts occurring any prior time and appeal, may give entry the decision of the or direct any judgment or order may any require. make order may further or other as the case This that, feasible, liberally section among may shall be construed to the end others where causes be finally disposed single appeal proceedings and without further in the trial court except justice where in interests of a new of the required trial is on some or all issues.” instance, describing 3For zoning project Project Child Care of the Law Public Angeles Counsel which was not Los County Pegine Grayson, started in until Esq., offers a goal Zoning declaration that: “The is to review Project analyze family zoning day care Angeles County. ordinances of all cities in Los ... have I thus far analyzed day reviewed family zoning of at Angeles ordinances least 25 Los *16 Furthermore, was predictable—that same declarations document—as those briefs, theories, in the etc. prepared have legal used lawyers pleadings, to their own lawsuits preparing as models to follow Angelhearts’ litigation lawyers laws.4 to their land use These change local governments compel to of the reviewed exception, Municipal I Codes cities County cities. With one have found which, to as substantial barriers date contain . . violate State law and serve provisions to . facilities, man express legislative contradiction of the the establishment of these in direct . . . cities assigned to work with group attorneys date. ... I have of volunteer informed case, have and ruling Angelheart targeted by Zoning Project of the court’s in the entirely may be encouraged city attorneys who to share the information with them aAs day regulations. care family of the area degree preemption convinced of State of family efforts, enacted new targeted have direct result of volunteers’ three of cities these amend drafted day zoning State law. others have comply care ordinances with Several future, process others are in the hearings that are in the near and still ments slated for family bring County’s drafting such ... the effort to of amendments. I headed in 1990 Angelheart decision day zoning compliance State care ordinance into with law. I discussed occasions, convincing them County planning staff on and succeeded in with numerous new, February of this their The ordinance effect in regulatory process. amend lawful went into clear, by petitioners . . year firmly positive ruling . I believe that the obtained [1991]. County throughout the Angelheart impact has and will to have a already had continue broad Angeles making been extensive of Los and the State of Child care advocates have California. decision, it, bring encouraged aware of be they use of the and as other cities become should (Decla family day zoning voluntarily law.” compliance their care ordinances into State 1991, 31, Pegine 2-5.) at Grayson, July pp. ration E. executed Meanwhile, Stevens, Care Law Center in San Esq., Carol S. staff of the Child Francisco, to meet state mandates” attempting “change declares that in local ordinances law “municipal ordinances in organization in northern California counties and cities her found that these to be many provisions analogous cities contained to those found unlawful com- Angelheart many significant court. ... we resistance to communities encountered . . pliance. Although precedent, Angelheart . it does not court decision in establish the trial many useful strengthen advocacy experience has been our . . has been that position. . Our city governments planning departments compliance requirements and achieve with state law action, lawyers advocacy potential legal when become involved in efforts and the for ], imminent. Currently, such as that brought by plaintiffs Angelhart approximately [íic twenty percent family day requests legal of the we in California involve assistance receive zoning care issues. There remain where municipalities hundreds of California the mandates yet ruling zoning Angelhart state law have to be reflected in municipal ordinances. [ríe family has been and represent will continue to be to counsel. . as we individual ] beneficial . day providers care commu- provide providers and and assistance to information technical Stevens, (Declaration nities where we representation.” cannot undertake individual Carol S. 31, 1991, July 2-3.) executed pp. at Adams-Charton, Orange Poverty County, Esq., As Kristine a declaration that the offered county “provides [appearing planning Law Center in that before . . . child advocates department hearings city hearings] arguments legal council with the results Angelheart authority past of a provided persuasive case. This information has advocates with judicial (Declaration of family day-care determination on these issues.” Kristine Adams- Reconsideration, 2.) in Support July p. Charton of Motion for executed on instance, Adams-Charton, Esq., litiga 4For the declaration offered Kristine director of the Poverty Orange County, Angelheart tion of Law Center of states: “The case has been the against Orange. basis of writs of mandamus filed the Cities of Westminster In both cases [lawyers] arguments relied made Angelheart pleadings shape legal strategies in the *17 the Angelheart attest and the Angelhearts’ decision lawsuit have been instru efforts, in mental many successful to amend local land use laws the already, California, length and breadth of the State of the counties of Los including Plumas, Amador, Pasadena, Monica, Angeles, the cities of Santa Haw thorne, Beach, Corona, Covina, Redondo West Santa Fe Fountain Springs, Stockton, Petaluma, Leandro, Fresno, Valley, San Sunnyvale, Campbell, Bakersfield, Orland, Riverside, Rosa, Barbara, Maria, Santa Santa Santa Yuba City, Westminster and Orang
Notably, offered was why impractica- declarations also demonstrate it ble for the Angelhearts’ attorneys “significant public to have these “proved” “Zoning benefits” at the time of the The hearing on fee award. attorney Project” in in Angeles Los did even Los County come into existence Angeles until well than a County into 1990 and as of the time is less present third of the in way county. its review of local this through ordinances Likewise, councils, the other lawsuits presentations city before negotiations, and related activities fee Angelheart on started after the capitalizing award All hearing. of these events were but not reasonably predictable Now, course, “provable” as of the time of the hearing. are not they but predictable proved. court, however,
The majority of this over has denied the my dissent section 909 motion to accept these declarations as evidence or as justifica- tion for taking additional evidence in any form on the of whether question the Angelhearts’ lawsuit and “significant decision conferred a bene- fit.6 Accordingly, these declarations are not admitted evidence in this appeal. Nonetheless, in they exist the nature of “offers of that a “realistic proof’ assessment of all the pertinent circumstances” as of the time of the hearing in the trial court and as of the time the heard in was this court should appeal have included the reasonably Angelheart foreseeable case impact would protect rights of their clients. . . pleadings Angelheart . and briefs from et. al. [T]he vs. the Burbank have been the advocacy Orange County cornerstone of child care provided and has important authority bring city for advocates in their efforts to ordinances compliance (Declaration into with State law.” Support of Kristine Adams-Charton Reconsideration, 31, 1991, Motion for 2-3.) executed July pp. 5The declarations cited preceding in the specific jurisdictions. footnotes mentioned these They also referred many jurisdictions Angelheart litigation where the was used to persuade or compel compliance, but did not name those cities and counties. 6It is true these Angelhearts declarations were not submitted petition until the filed their rehearing. But it should be they recalled were the respondents appeal. in this The trial court found, believe, correctly had I solely the benefits conferred on Burbank’s citizens were “significant” enough by satisfy themselves Accordingly, standards of section 1021.5. Angelhearts had no reason attempt to document the benefits their lawsuit had conferred Thus, beyond the boundaries majority of Burbank until the opinion. Angelhearts’ filed its motion under section was not only proper—and the accompanying declarations material convincing evidence—but timely this motion was in the circumstances of this case. litigation would It was predictable Burbank. jurisdictions have outside County and elsewhere Angeles Los “significant public benefits” confer has. confirm that merely declarations throughout state. offered full capture If these declarations do not is concerned majority court—or I to the trial join remanding them case reality would happily evidence and other consider this the trial court as referee—to appointing Angelhearts’ and the Angelheart on the decision question of whether *18 the bound- beyond benefits” “significant lawsuit indeed has conferred public in hand, my colleagues join aries of On the I am unwilling Burbank. other denying reality. finding “significant public I trial
To sum conclude the court’s of up, to the citizens solely Even if we benefits upheld. benefit” should be focus the to satisfy the amount sufficiently significant of Burbank of benefit is if all the realistically And assess pertinent standards of section 1021.5. we circumstances, instruct, this case in all prob- as we discover prior opinions in many has and benefits on citizens ability conferred will continue to confer small, cities, these the State California. With throughout of in, further action benefits factored it is undeniable this plaintiffs’ legal in my fulfilled the benefit” “significant requirement. Accordingly, there no court have affirmed opinion, question is but that this should fee award to the under the terms section 1021.5.7 attorney of plaintiff II. The Trial Calculating Erred the of Court in Amount
Attorney Fees Awarded. Once it the the has been satisfied all litigation established plaintiffs’ the attor- applicable of section is entitled to requirements party 1021.5 fees the the of ney, remaining whether trial court’s calculation question attorney In the fees was correct. instant case was not. implicit finding 7The the majority opinion challenge does not reach nor the court’s trial 1021.5(b). plaintiff private of requirement satisfied the “financial burdens enforcement” of requirement victory This his legal is fulfilled when “the cost of the claimant’s transcends interest, is, necessity the
personal placed that when the a burden on pursuing for lawsuit ” (County City ‘out plaintiff proportion Inyo of his individual in the matter.’ v. stake of 82, 71], Angeles (1978) in Cal.App.3d Cal.Rptr. quoted approval Los 78 89 [144 503, Assn., (1979) Cal.Rptr. Woodland 23 Hills Residents Inc. v. Council Cal.3d [154 941 200].) say, plaintiff clearly P.2d Suffice it to this lacked resources and did not have 593 enough gain personal monetary legal excess of expense (perhaps terms to incur the $50,000 $15,000) required and no less than this to a conclusion. prosecute case successful Indeed, plaintiff litigate “public this would unable this had there not been a have been case interest” law expecting firm such available to cases of this nature without undertake fee from the client. 480
The amount of the award is to be determined according guidelines set forth California Supreme (1977) Court Serrano v. Priest 25, 315, Cal.3d 48-49 (Serrano III) 569 P.2d Cal.Rptr. [141 Serrano 1303]. III requires trial court to first determine a “touchstone” or “lodestar” figure based on a compilation time spent reasonable Ucareful hourly each compensation . . . involved presentation 48, (Id. added; 621, case.” italics p. (1982) Serrano v. Unruh 32 Cal.3d Cal.Rptr. (Serrano IV).) 652 P.2d The [186 lodestar figure may 985] then be “increased or reduced of a application ‘multiplier’ after the trial court has idered other factors concerning lawsuit.”8 Press Lucky Stores, (1983) 900,'667 Inc. 34 Cal.3d 704].) P.2d Cal.Rptr. [193 court Serrano III held the determination of the figure lodestar to be “ stated, extremely important. Accordingly, the court ‘The starting point of fee every award . . . must be a calculation of the attorney’s services terms time he has on the expended case. Anchoring to this analysis concept is only way of approaching the that can problem claim objec- *19 a claim tivity, which is vital to the obviously of the bar and the prestige ” III, (Serrano 48, courts.’ 23, supra, 20 Cal.3d at fn. p. City quoting of Detroit v. Corp. (2d 1974) Grinnell 470.) Cir. F.2d The court in III Serrano acknowledged it the judge is trial ultimately who has discretion to determine “the value of rendered in professional services his (20 However, added, court. . . .” 49.) [or Cal.3d at her] the p. court the determination of the lodestar figure is so “fundamental” in the calculating award, amount of the the exercise of discretion must be based the on lodestar adjustment (Id. method. 48-49.) at pp.
In the instant case the plaintiffs submitted a lodestar figure of about $56,000 and the requested figure to be multiplied by a factor of 1.25 for a $71,286.62. total of The application of the was based certain multiplier factors such as the relatively low-income status of the plaintiffs, unpopular and expensive nature of suing and the municipality, skills displayed by counsel the exact obtaining relief sought. 8A number of factors were set by forth Serrano III may which the trial court consider adjusting the figure. Among lodestar “(1) these novelty factors were: the difficulty and of the involved,
questions them; and the skill displayed presenting (2) the extent to which the litigation nature of the precluded other employment by (3) the attorneys; contingent the nature award, of the fee both point from the of view of victory eventual on the point merits and the award; of establishing view of eligibility (4) for an against the fact that an award the state ultimately would upon (5) fall the taxpayers; attorneys the fact that the question received public and funding charitable for purpose of bringing lawsuits of the character here involved; (6) the fact that the monies awarded would inure not to the attorneys benefit of the involved organizations but the by (20 which they employed.” are p. omitted.) Cal.3d at fn. regarding make the lodestar findings
In the the trial court did not ruling might factors which in a Serrano III of various analysis or figure engage Instead, its the court devised sum. requested modification justify The trial determining amount of .awarded. arbitrary own formula an “incredible hours claimed was attorney stated it felt the 441.74 court (for compe- “their asserted attorneys) accumulation” of hours in more no produced tence and work “should have” been experience” Burbank representing than 150 hours—50 hours less than counsel Thereafter, $125, awarded the trial court rate of spent. using hourly $18,700. $18,750.) award (150 $125 This plaintiffs equals multiplied less than one-third of amount claimed.
There court did “careful The trial was no calculation” hours. to this question actually litigation devoted plaintiffs’ attorneys in ballpark number of have. The stated they merely hours claimed to court terms the needed do amount of time it have attorneys felt should cut work in. With reduction the court justification no explanation were number lawyers expected of hours two-thirds. Somehow these research, briefs, rest and all the legal arguments draft pleadings, prepare required litigate litigated create and a lawsuit on an no one had issue merely before so than took lawyers do hours less Burbank’s respond to contentions had create. plaintiffs’ lawyers face,
On in the its reduction appears unjustified park” to be “ball hours allowed trial identified which litigation. for this Had the court specific items of hours *20 work to have excessive to legal appeared required complete much, and howby meaningfully this court be in a appellate might position review the trial court’s and some of those agree findings. all or findings, But 150 a case of this nature appear hours does not an allotment for adequate many which was as and and in as stages resisted at as vigorously many as forums this one was.
Not did the it also court the amount hours only arbitrarily pick $125 an what arbitrarily hourly substantially chose rate of which below is these It did this reduction attorneys traditionally charged. justify not $125 rate in In fair hourly to be a any way. day age, appear this does lawyers reasonable rate for of this level of competence. experience held, court has discretion California Court has “while a trial Supreme award, fee to determine the still bear resulting amount of an the must proper some the figure reasonable to the lodestar and to of the relationship purpose Stores, Inc., (Press private Lucky supra, doctrine.” attorney general 324.) Cal.3d at In the absolutely instant case there was no relation p. between the lodestar the of fees awarded. figure and amount There is no when a court decided in the “objectivity” determines issue case “doesn’t $50,000 really fee bills” and then the amount of contemplate attorney cuts the attorney by two-thirds because the trial court holds an opinion case was of limited It is to intertwine the “determina- importance. improper tion of the litigation’s with the should arise importance question—which only after it has been concluded that an award proper—of amount be (Id. 323.) awarded.” at p.
What the trial court did here is own expressed As its improper. rationale, the court was if treating this as section 1021.5 created some sort of “quasi fee” contingent the fee be arrangement—the amount of awarded to proportional to the judge’s of the perception importance issue or Instead, 1021.5, amount of the public benefits conferred. under section once the issue is important enough and the benefits conferred significant enough threshold, pass over fee statutory the amount of the award depends solely on amount legal work the case that required litigate produced those adjusted benefits deciding amount to be awarded multiplier. 2, ante, factors set out in footnote should be considered. The calculation devised trial court did guidelines not follow set Serrano III did nor it account III Serrano factors. Instead calculation was infected by the trial view of the results achieved. judge’s Particularly Appropriate Require III. This Is A Case Which Pay Attorney A Local Government the Plaintiffs’ Full Fees. Deny Only To Fail to Do inSo Cases of This Nature Not Will Common Citizens the Access to Justice Which Section 1021.5 Was Designed to Afford but Could Local Grant Governments Immunity Legislative Designed From State Mandates to Benefit
Those Common Citizens. At oral argument, Burbank made a fervent plea against allowing case, fee award in effect characterizing plaintiffs’ request a raid on the public fisc. should Why Burbank have to taxpayers pay lawyers And, who sued Burbank? especially, why should have to city’s taxpayers *21 “so much” pay to those lawyers?
The answers to both those are obvious questions of purposes private attorney general doctrine which codified in was section 1021.5 and Indeed, behavior of the City of Burbank government this case. instant case illustrates came perfectly why doctrine into existence was eventually codified by California Here Legislature. that Legislature passed law to effectuate a critically important public goal, expansion of needed desperately child care facilities this state. The law stated expressly this statewide public goal was so it important superseded local land use facili- child care of home limit the size which otherwise regulations might underlying public and its this state law the clear of language ties. Despite and enforc- Burbank, retaining insisted on jurisdictions, among policy, the state code. directly which conflicted land restrictions ing old use General’s Attorney the State treasury At considerable cost to the state Burbank against actions Office have initiated a series of enforcement might their change them to and municipalities compelling and other counties laws. new state with the them into zoning regulations bring compliance laws many limited But the State Office has resources Attorney General’s in Burbank the books to enforce. restrictions remained on So those local as permitted child care center when their home plaintiffs expand applied then, Burbank Even encouraged—by Legislature. —indeed as the California not enforced and simply could have chosen to with state laws comply deny plain- elected to city But instead the superseded land use restrictions. facility. care a 12-child home rights tiffs under state law to operate have been might If child different enterprise home care was a sort of instance, were to court. For necessary Angelhearts for the to take Burbank in viola- business affecting grocery this a land-use regulation adversely law, and wait for sit back tion of a new state “Mom and stores could Pop” compelling file an action one “chains” the food business to major enough chain stores have with the state code. These city comply themselves litigation in the finance this enough stake and bank to money nature, care the home child resort to section 1021.5. But its by very without small—very Rather it consists of field has no “chain” operations. impossible the owners’ homes. It would be operated small—businesses like city a recalcitrant them able afford the to sue legal required to be the Angelhearts It will five ten more before years Burbank. be or possibly child in their home earn additional from the clientele enough expanded profit $50,000 in to force to amass the more than work facility legal required law. the clear state Burbank to abide mandate California means, course, the private What this is that were it not for like Burbank doctrine codified section 1021.5 general city governments are those laws small ignore could state laws when the ones affected the Angelhearts. businesses or modest income citizens like should have to Thus the answer to the Burbank question why taxpayers Angelhearts’ only practical way fees is obvious: This is pay legal *22 line state law. that Burbank’s can be into For government brought reason, which law created right it is the to enforce the state only way juris- in Burbank and similar for the and other citizens located Angelhearts awarded fees under section Angelhearts’ dictions. To the their court deny in in will mean that the future other small businesses 1021.5 this case willing to lawyers will to find modest income individuals be hard pressed with state in government comply them actions local to represent compelling laws. fees legal the have to pay
As to Burbank’s should question why taxpayers that, too, The $50,000 $70,000 answer. easy has an neighborhood of had If Burbank blame falls government. feet of Burbank squarely fees to obeyed legal new state law at the outset there would have been no have been at all. The restrictions would pay local land-use superseded Angelhearts amended or have ignored city granted would there beginning, failed the law at the permit immediately. Having to abide were that followed many other the enforcement opportunities during process had, Angelhearts’ for Burbank If it resisting inevitable. stop would much time this lawsuit lawyers litigating not have had to so spend grew their bill would have been smaller. The Angelhearts’ expenditures direct proportion to Burbank’s stubbornness.
The to underscore a facts which have serve emerged during appeal to legal truism—the vote has little value to those who lack access right to give enact the that counsel. Voters can elect the who will laws legislators and not them But than remain rights. rights theory more often not those It counsel legal when these same voters are able to obtain practice. only For, government, that theoretical become real. under our rights system then the laws can those citizens obedience to pursue compel lawsuit which provide rights.
Here, the Angel- elected created new representatives statutory rights self-executing, hearts and thousands of other were not rights voters. Those true, however. As is too time society—this city governments often others the new might one to be more obedient state law—refused to honor expect were fortunate voters. rights voluntarily. Angelhearts very this case were find undertake an They lawyers expensive, path- able to willing lawsuit them breaking charging representation. without the cost of successful, did if so could recover lawyers hope, they under section the state statutes 1021.5. Without this special dispensation, had no more make would have Angelhearts’ right vote helped possible *23 than a fortunate are the meaning scrap paper.9 for them worthless Less small modest-income individuals—to say multitudes of other businesses and nature and need mount a lawsuit of this cost nothing poor to people—who in order their elected rights to enforce otherwise theoretical purely the majority’s officials have enacted of other statutes. Under hundreds 1021.5, of their application remain disenfranchised—not they section will vote, right to make that vote right meaningful. but of to First, thus, majority consequences. has two unfortunate opinion, criteria it small individuals the applies deny businesses modest income them and opportunity vindicate intended benefit important rights others society. criteria Secondly, governments these same allow local ignore state mandates when businesses or those laws benefit small others whose resources and interests are inadequate pay economic lawsuits to compel obedience.
For the reasons set forth earlier in I affirm would the case opinion, insofar as it establishes entitled plaintiffs are to an award of fees under awarded, however, section 1021.5. to the As amount I would reverse the judgment remand for further consistent with Serrano III. proceedings 14, A petition for a rehearing August was denied and the petition of plaintiffs for review Court denied appellants by Supreme was Mosk, J., October 1991. was opinion petition that the should be granted. 9If we were to firms, consider the declarations pro offered leaders of several bono law apparently legal has representation taken and often statutory lawsuits to enforce this new right 3-5, Thus, in most jurisdictions (See local throughout ante.) state. pro fns. bono
programs have been forced divert limited lawyers resources donated volunteer persuade compel these reluctant obey cities and counties to a statewide mandate. Inevita bly, this means other citizens with legal help by other cases must be denied these volunteer lawyers. rights Their remain unenforced and thus nonexistent.