*1 No. 24326. Oct. [S.F. 1982.] al.,
MARTHA FOLSOM et Plaintiffs and Respondents, BUTTE COUNTY ASSOCIATION OF al., GOVERNMENTS et Defendants and Appellants.
Counsel Blackstock, Counsel, Siemsen, V. County
Daniel Delbert Acting County Counsel, & Lyde Leonard Gerald Hermansen for Defendants and Appellants. Lieberman, Bush, L. Alan Siegel,
Daniel Michael R. Andrew T. Holcombe, H. Roberta Ranstrom and Martin Flam for Plaintiffs and Respondents.
Opinion NEWMAN, J. attorney silent as to costs settlement agreement In action, fees, their with prejudice, to dismiss promised four transit to establish substantial defendants’ performance promise as a Our central is whether that agreement operates systems. question claims, the trial court and bar of all merger preexisting depriving Proc., (Code Civ. to award costs and fees. statutory attorney jurisdiction 1032, 1021.5)1 §§ bar, whether,
If the is not a we under section agreement must decide 1021.5, (1) fees *4 be awarded to services funded may legal groups primarily monies, (2) and a who settles be a “successful by public may litigant party.” to and conclude that an silent as costs fees does not create agreement
We
bill or a motion
to either a cost
to section 1021.5. We also
pursuant
a bar
that the fee award here was
that an award
be made
proper,
may
conclude
under section 1021.5 to a
services
funded
legal
group
primarily by public
monies, and that a claimant
a lawsuit
be a
settling
may
“successful party”
of the section if the
action
meaning
underlying
within the
contributed
conditions at which it was directed.
substantially
remedying
resident
Plaintiffs are
Biitte
who aver
taxpayers
County
are elder-
they
disabled,
and, hence,
of limited means
transit-dependent. They
ly,
sought
and
relief
allocations to
declaratory
injunctive
against county
street and
of funds collected under the Transportation
road projects
Development
Code,
29530-29536;
Code,
(Act). (Gov.
Pub. Util.
Act of 1971
§§
known as the
The
Mills-Alquist/Deddeh
99200-99407 [also
Act].2
§§
1032,
(c), provides that in
actions
enumerated in subdivisions
1 Section
subdivision
(b)
(a)
may be allowed or not ...
in the discretion of the
and
“costs
court.”
motion,
provides:
“Upon
may
attorneys’
a court
1021.5
award
fees to a
Section
opposing
party against
parties
one or more
action which has resulted in
successful
(a)
right affecting
public
important
significant
of an
interest
if:
the enforcement
benefit,
nonpecuniary,
general
or
has been conferred on the
pecuniary
public
whether
or a
(b)
necessity
persons,
private
and financial burden of
enforcement are
large class
(c)
appropriate,
justice
make the award
and
such fees should not in the
as to
interest of
such
entities,
recovery,
any.
respect
involving public
if
With
to actions
paid out of
this
be
of,
entities,
against,
public
but not in favor
applies to allowances
and no claim shall
to be filed therefor.”
required
be
Procedure,
standing under section 526a of the Code of Civil
asserted
2 Plaintiffs
judgment,
restraining
preventing any illegal expenditure
and
action to obtain a
“An
states:
state,
town,
county,
city
city
county
may
or
and
of the
be
...
of a
. . . funds
thereof,
any agent,
person acting
or
or other
in its behalf . .
against any officer
maintained
424,
(1980)
Van Atta v. Scott
27 Cal.3d
therein ...”
by a citizen resident
.
149,
taxpayer
to file
“Section 526a authorizes
Cal.Rptr.
‘[a]n
Plaintiffs Oroville, BCAG, and Gridiey, Biggs, the Cities Butte County, county’s (Local as trustee of the TDA funds county auditor-controller the state Defendants), as well officials against responsible viz., Act, of the Business and Secretary Transpor- administering Director Department Transportation tation Agency Defendants). Plaintiffs averred BCAG’s allocations for fiscal (State were invalid for failure to identify 1978-1979 unmet through with section 6658 of the comply regulations. They needs and transit further allocations and rescind alloca- unexpended enjoin sought *6 time road until “such as an and projects adequate public tions to street reasonably meets the transit system operating transportation of Butte County.” and areas unincorporated needs in the incorporated of the Chico City an order that BCAG approve request They sought also a system State Defendants establish whereby local-agency Council and The would be reviewed. included for prayer request allocation decisions fees. statutory attorney costs and auditor-controller, county answered who except
All defendants 1978, December that he memo of deemed by counsel county informed his hence to neither and intended answer ministerial purely involvement “sufficient cause [appeared] stated that The memo nor demur. Chico, Oroville, Gridiey, County Biggs, and the in 1969 of 5 BCAG was created seats, by mayors by county supervisors and four of nine five held Butte. In it had
founding cities. and controller intended not to release “any TDA . . complaint” . any entity monies to unless so ordered purpose, by a court of the remainder of term during of competent jurisdiction office.” [his] (Italics in that the effect original.)6 stipulate parties this decision $3 million TDA approximately freeze funds. BCAG all
In June 1979 rescinded allocations for prior street and road Local and Defendants moved for on purposes, partial summary judgment (a) that relief for grounds:7 years two principal 1978-1979 prior should mootness because those be denied for allocations had been rescinded and fund, (b) and that section 6658 restored of title of the California Code was Administrative invalid been in excess of having the authority of the Secretary of the Business and Transportation Agency promulgate. to the motion objected State Defendants inter alia that alleging rescission allocations violated both section years’ 6648 and section prior 6659 of the regulations.8 6, 1979, hearing
After a trial court July the motion granted November entered which struck order all averments relating or TDA adequacy allocations condition regularity prior (1) rescind all outstanding fund, (2) BCAG allocations from the local from or funds encumbering refrain not encumbered on expending July allocations, time as there were until such further and preface allocations with a survey unmet needs “as required by and the The court thus regulations.” statutes denied the motion insofar as it lack of alleged authority was based on Secretary adopt section 6658 and found such valid. The court regulation also expressly retained “until the have been allocations made to assure that jurisdiction have they statutes, made in accordance with the plan, been the regulations” 6 Though expired January the controller’s term a similar statement of intent was following day. made his successor the 7 Meanwhile, April developmental area 2 of disabilities board notified BCAG (see 4, ante) with both noncompliance section 99222 Public Utilities Code fn. Code, title 21 of the 6658 of California Administrative as evidenced BCAG through 78-6 of 1978 and “invalid information” set forth resolutions 78-2 therein. to be circumstances. struction; circumstances: needs on 30 rescinded and revised reallocated and that Section 6659 8 Section 6648 spending days’ notice [K] (c) claimant . . ” [f] provides: An . provides (a) moneys to a an allocation adjustment An differ from those claimant. appeal otherwise than “Once an allocation instruction has been transportation that allocated funds reserved in the local may affecting proved be *7 rescinded, the allocation . . in accordance with the planning agency only under to the time of the allocation be necessary but only .; after three . . [t] .; terms of the allocation (b) or The claimant is found [1] one years made, (d) due to of fund and then The it following financial may changed may only in- be leave to to amend their and accorded plaintiffs complaint “to allege in the ultimate allocations.” irregularities was filed agreement January settlement 1980. Its stated “to settle claim was
purpose plaintiffs’ regarding alleged improper ltf transportation allocations of monies between and [local fund] 1978, and claims of ltf any regarding legality allocations made fiscal for In 1979-1980.” consideration for Local Defendants’ year promise new systems9 (1) establish four transit plaintiffs promised inform the Oroville, and of auditor fiscal officers and county “all Gridley, Biggs that funds frozen as a result lawsuit be of this may immediately released without (2) “file from and with the challenge plaintiffs” Court a dismissal of Local Defendants, with within one week prejudice, of the date that the new last transit has initiated service as defined in system 10 below.” Paragraph f that new system transit shall be provided deemed have “[a] initiated service when service has been established on all and routes within the hours ” in provided agreement]. service as [elsewhere 17, 1980,
On filed a cost bill also January plaintiffs and for motion both, fees under 1021.5. attorney Defendants opposed grounds 18, 1980, On urged appeal. this court ruled that April were “ entitled to an award of fees and them pronounced ‘successful par- alia, ties’, inter virtue the condition in the Court’s order of November to the effect that the Butte County Association of Governments rescind all remaining outstanding allocations of from money the local fund. This transportation obviously became at least one of the bases for B.C.A.G.’s further action in meeting transportation needs of Butte County.”10
After proceedings on computation the court on August awarded $35,257.5011 fees costs, and $2,068. requested, The order declared (1) systems inter-city system 9 The were open Chico, four an public that connected Paradise, Oroville, Gridley, (2) Biggs, Gridley and the system Labor Camp, fixed-route area, open operated within the system Chico urban a similar within the area, system whereby elderly Oroville urban and handicapped and any residents county city might elderly in the utilize transit services handicapped other 267,000 335,600 city. systems It was estimated that the four would serve between year. one-way passengers per 10 The not say order added: “This matters in local discussed defen dants’ setting They written memoranda should considered should be and will fees. only be. The court has determined that some are fees due.” 1,175.25 time, sought $90 a rate an hour 11 Plaintiffs plus hours of percent novelty, complexity, enhancement for factors such as and results achieved. The court found that “an excessive of time spent amount and that compen the hours to be less, sated one-third or 783.5 should be hours.” The court also found a reasonable $45 hourly rate denied to be hour and enhancement of the touchstone figure. generally v. Priest Serrano Cal.3d P.2d III].) 1303] [Serrano
676
that “this action has resulted in the enforcement of an important right that, in affecting alia, interest inter public transit funds have been allocated to meet public transit needs in Butte that County; a signifi cant benefit has been conferred on both a large class of and on persons general public; and necessity financial [and] burden of private enforcement are such as to make this award of attorney’s fees appropria * te.”12 Defendants appeal.
I
Defendants contend the agreement operated as a
and
merger
bar
of all issues framed by the
and
complaint
hence left the trial court without
to award
jurisdiction
costs or fees. They
on
rely
in
language Gregory v.
(1978)
Hamilton
77
213
Cal.App.3d
Cal.Rptr.
[142
Plaintiffs
563].13
with cases
respond
viz.,
holding
contrary,
Rappenecker v. Sea Land
Service,
(1979)
Inc.
93
256
Cal.App.3d
Cal.Rptr.
(agreement
[155
516]
costs),
silent as to
Chicano Police
Ass’n v.
(10th
Stover
Cir. 1980)
Officer’s
677 As we below we neither view. explain adopt party’s Compromise (Rohrbacher v. (1904) 485, has been favored. Aitken long 145 Cal. 488 Co., 1054]; P. v. Sacramento R. Armstrong Valley supra, 179 Cal. [78 648, 650.) valid agreement has compromise many attributes of a “[A] and in the absence of a of fraud or judgment, showing undue influence is of the decisive thereto and rights parties as a bar operates (Shriver original controversy.” v. Kuchel reopening (1952) 113 421, 35].) 425 P.2d Cal.App.2d [248 are, course,
Compromise agreements “governed by legal to contracts applicable (Ibid.) principles generally.” They “reg ulate and settle only such matters and differences as to be appear clearly in them intention of the comprehended and the parties necessary thereof, and do not extend to consequences matters which the never parties therein, to include intended although (Lemm at the time.” existing v. 474, Stillwater Land & Cattle Co. 217 Cal. 785]; 482 P.2d [19 accord, Co., v. Sacramento Armstrong Valley R. supra, 179 Cal. at p. 651.) they Thus conclude all ordinarily matters in issue put is, that pleadings—that questions otherwise would have been resolved at (See, trial. Ellena v. State e.g., 245, 69 Cal.App.3d of California 110].) not, 260 do They (absent however [138 affirmative conclude agreement matters parties), incident to the judgment that were no of the cause of the action. part
It is established that the right costs is statutory that costs “are allowed as an incident of the solely judgment given upon issues in the action. v. Begbie 128 Begbie, Cal. 154 P. . . . They [66 constitute no of a at the part judgment moment of its rendition . . . .” (Whitaker Title v. Ins. etc. Co. (1918) 111, 179 Cal. 460]; 113 P. [175 see also Wells & Co. v. Fargo City etc. S. F. 25 Cal.2d 625]; P.2d McCallion v. Hibernia etc. Society (1893) [152 98 Cal. 329]; P. Gray v. Dougherty (1864) Cal. 282.) Thus allowed,
it is that costs are absent the parties’ express agreement to the of a contrary, following entry consent decree. (Rappenecker v. Sea-Land Service, Inc., supra,
The
agreement
Rappenecker,
costs,
which was silent as to
provided
it was “in full compromise
settlement of [plaintiff’s] claims
(E.D.Pa. 1975)
479, 484; accord,
9, Intern.
68 F.R.D.
(8th
Obin v. Dist. No.
Ass’n. etc.
574, 582-583;
1981)
(9th
Cir.
651 F.2d
v. United States
Cir.
Mendoza
F.2d
simultaneously negotiated attorney
fee”
[“evil
neutralized
active
participation
Department
negotiation],
of Justice
cert. den.
regarding
Mayaguez.
Court of Appeal
of suit do not fall
observed
within such service.
. . .
“[c]osts
‘Costs
*10
to
are allowances which are authorized
reimburse the successful
to an
party
in
and are
the
action or
nature of incidental
proceeding
damages
a
the
of
indemnify
party against
expense
successfully
his
asserting
(Purdy
v. Johnson
(1929)
100
418
rights.’
Cal.App.
181].)
P.
[280
offer,
to draft with
its
its failure
By
precision
compromise
defendant cannot
to claim
now be heard
that its language precludes the award of
(93
costs.”
in Slater
264.)15 Similarly,
at
Superior
Court
p.
v.
Cal.App.3d
(1941)
757
P.2d
waiver of a
plaintiffs
the
Cal.App.2d
portion
[115
32]
to a
awarded was held no bar
cost
“If
damages
award.
no mention of costs
in the
. . the
has been made
waiver
.
would
legal effect
have been that
would be entitled to costs. This follows from the
[plaintiff]
fact that costs
are not an
of the
integral part
are but an
judgment—they
incident
to the
(Id. at
omitted].)
judgment.”
p.
[citations
The same
fees that
reasoning applies
attorney
are authorized
by
solely
the
and hence are not a
cause of
statute
action.16
are
part
They
incidents
cause,
awarded after
of a
entry
unless
properly
stipulated judgment,
or
by necessary
by
excluded
For
expressly
implication
stipulation.
Valley
Gold
Rapp
Spring
Co.
(1888)
v.
in
The conclusion here, follows that the agreement which included no provision fees, as to costs or statutory did not deprive trial court of jurisdiction or, entertain either a cost bill under 1021.5, a motion for fees.
Nor do facts surrounding agreement suggest parties intended a waiver of costs and statutory fees. The aim of the agreement was “to settle claim plaintiffs’ regarding alleged improper allocations ltf transportation monies [local between 1974 and fund] and any claims regarding legality ltf allocations made for year fiscal *12 provide Fees Act amended section 1988 to “In proceeding 20 The action or to 1981, 1985, 1982, 1983, tide, provision a of sections enforce 1986 of this title IX of 1972], Public Amendments or title VI [Education Law of the Civil Rights Act court, 1964, may prevailing in its discretion allow the party, other than the United States, attorney’s part reasonable fee as cost.” a which, 1021.5, like codify one of numerous federal statutes section It is theory; frequently it is also the one private-attomey-general compared most with section legislative Alyeska responses deemed to Pipeline 1021.5. Both are v. Co. Wilderness 141, 1612], 240 Society 421 U.S. L.Ed.2d 95 S.Ct. which [44 held federal courts statutory authority, jurisdiction, explicit attorney absent to without award fees a 94-1011, theory. (See. Rep. Sen. private-attorney-general Jud. Com. No. reprinted in News, 5908-5912; Cong. pp. & at Code Admin. Review 1976 U.S. Selected 1977 281, 365-367.) Legislation 9 Pacific L.J. California 21 Indeed, in White are close to those at hand. Following entry the facts of a consent fees, moved for an plaintiffs as to award under section decree silent 1988. Defendants had agreement impliedly waived fees and to argued that moved vacate the decree. The reversed, the motion to vacate and court denied awarded fees. The district First Circuit a motion request a fee under section 1988 to alter or amend holding judgment and hence 59(e)-of (28 by 10-day limit of rule Federal Rules of governed Civil Procedure (1st Dept. Emp. H. Sec. U.S.C.). White v. N. Cir. 629 F.2d reversed, holding postjudgment request a fee high court under section not The 1988 judgment because fees are not element of the to alter the cause of action. “Unlike motion relief, attorney’s fees allowed under 1988 not compensation are for the judicial other uniquely separable award to an action. Their from the injury giving rise cause of action 331, (White, supra, p. p. 455 U.S. at L.Ed.2d at [71 at trial.” S.Ct. proved to be 1166].) p. at approving position Eighth taken majority came close Circuit in Obin v. 574, Ass’n, 582, supra, F.2d postjudgment that Intern. fee motions under Dist. No. independent a claim collateral from the The Obin view section 1988 raise merits. (455 p. Justice Blackmun concurrence U.S. at L.Ed.2d at 457 [71 endorsed 1168]) (See, e.g., People and mirrors that taken this p. at court. v. p. 102 S.Ct. 731].) fn. 5 Cal.3d P.2d McKale Indeed, are in those costs nor fees included claims. Neither 1979-1980.” that nor at oral neither costs fees were argument conceded defendants We decline to infer waiver from settlement negotiations. during discussed mere silence. indifferent, one to defendants’ concern that though, settling
areWe his of settlement. While liability to know total advance want may lawsuit is to fee issues for consideration judicial reserve procedure the preferred Court, at (Anthony Superior supra, and determination rule, also, ante), cases in fn. we decline to 772; other cited see p. never into that fee matters may injected negotiations urge, as plaintiffs counsel in a of inherent conflict. position without placing the merits court: “In considering view of White whether to enter thus this join We settlement, a defendant have reason demand may good negotiated from both and fees. liability damages his total such Although know issues for a difficult ethical we are may plaintiffs attorney, raise situations is ever to ethical that no resolution available counsel.” hold reluctant at 102 S.Ct. p. U.S. at fn. 15 L.Ed.2d (455 n itself, the award challenge
We turn to defendants on these were nor neither “success- attorneys “parties” plaintiffs’ grounds: 1021.5. within the meaning ful” contention incurred no
The first personal liability *13 their several of were attorneys, services of whom for the employed by monies,22 with and that funded fee award primarily agencies would contravene section 1021.5 agencies23 such benefiting and public note that section 1021.5 as originally Defendants introduced policy. word 1310) Bill included the “private,” No. (Assem. Assembly (1977-1978 J. (2 Sess.) 3471), Assem. Reg. p. the word and that the struck (3 (1977-1978 Sess.) it. Sen. J. thereafter reinserted Reg. Senate from charitable strictly firms supported concede that sources are They enforcement” but urge groups deemed like “private Legal properly California should deemed “public Northern entities” not Services the statute. benefited Bush, Siegel, Daniel Michael and Alan represented 22 Plaintiffswere Lieberman of Office; California, Regional Butte Roberta Legal Ranstrom of Legal Services of Northern California, Office; Executive Martin Flam of Legal California Northern Rural
Services Assistance; Society of Legal County; Aid Sacramento Mitchell of Loren and Laura Rosenthal, attorney. private instance, Siegel, for of Daniel states supplemental declaration that “all fees 23 The my my and my program, will inure not to individual hours benefit.” received of legislative Indeed, The cited is at glimpse history best equivocal. of Northern California Legal Services is established under the Legal a “private Services Corporation, nonmembership nonprofit corporation” 2996b(a) added]) (42 U.S.C. that has been held not an agency § [italics Serv., (Spokane Cty. Legal the federal government. Inc. v. Serv. Legal 1977) Corp. (E.D.Wash. 280; F.Supp. see also 42 U.S.C. 2996d(e)(l).)24 Though is not corporation allowed to § accept (id., 2996f(b)(l), clients fee-paying Congress intended clearly that it be for fees on same basis as eligible “private” Thus practitioners.25 (see, awards have been made both in favor of e.g., Tasby v. Estes fee Card 1976) 644; (E.D.Mich. Dempsey (N.D.Tex. F.Supp. 1978) 942) e.g., Flora v. Moore (see, F.Supp. against corporation 1104). (N.D.Miss. F.Supp.
Defendants concede that section 1021.5 codified the “private attorney attorney-fee doctrine and that general” the Legislature, when drafting statute, drew “pre-Alyeska federal private attorney general heavily (Woodland Serrano III . ...” adverted to in authorities Hills Assn., Residents Inc. v. City Council 23 Cal.3d 934 [154 503, 593 P.2d II].) Hills It is from those 200] [Woodland pre- Alyeska concluded in Serrano III— filed four this court underpinnings after section 1021.5 was into days signed law—that awards were properly made to attorneys employed interest” law “public firms. “Because the basic rationale underlying ‘private attorney general’ which we here theory seeks to adopt encourage presentation claims meritorious constitutional numbers affecting large people, in many because cases the only attorneys equipped such present claims firms, are those funded ‘public interest’ law a denial of the benefits of rule to such would be attorneys essentially inconsistent with the rule Comment, Awards itself. Attorney’s Fees to Legal Aid generally Offices, [1973] Harv.L.Rev. 411.)” (20 Cal.3d 48.)26 Poverty, III, 24 The Western Center Law and awarded supra, fees in Serrano similarly Cal.3d established. Alyeska, supra, 25 In the court observed that during “remarks made the debates on this [Legal Corporation legislation Services indicate that there was Act] no intent to restrict *14 plaintiff’s recovery attorneys’ the of fees in actions commenced by Corporation the or its recipient where plaintiffs under the circumstances other would be awarded such fees. 120 id., Meeds); Cong. id., (Rep. Rec. 15001 at 15008 (Rep. Steiger); (Sen. at 24037 id., id., Cranston); (Sen. Mondale); (Sen. Thus, at 24052 at 24056 Kennedy). if other ” might plaintiffs recover on the private-attorney-general theory, might so Corporation. 262-263, (421 pp. 156]; U.S. at fn. p. L.Ed.2d at see also 45 C.F.R. 1609.5(a).) 26 Itis established properly that awards are to plaintiffs’ made attorneys rather than to III, (Serrano supra, 21) themselves 20 Cal.3d at fn. and are not barred they payable agency because are to aft that furnishes its services without charge to the (See, e.g., County Swoap (1975) client. Humboldt v. 51 Cal.App.3d 444-445 [124 of cited.) and cases 510] III was narrower in Serrano than Nonetheless, holding this court’s who to litigants awarded were held properly Fees the statute. of reach 1021.5, contrastingly, Section constitutional questions. important vindicate “ enforce- has resulted in the ‘in action award an permits the public interest’ of its affecting regardless right an important ment Hills, (Woodland supra, source-constitutional, or other.” statutory 925.) at p. Cal.3d III, decisions, federal transcends like that of of Serrano
The rationale
under-
intent and
to the aims
speaks
legislative
expression
mere literal
Incarcerated Men Allen Coun-
in
As explained
fee doctrine.27
lying
“The fact that
1974)
Defendants also contend that the award was because improper were not “successful” within the meaning section 1021.5. Bruno v. Bell Citing Cal.App.3d they 435] that the argue neither created nor litigation an preserved identifiable sum of but money, merely diverted from public funds one purpose another. also They argue summary in judgment granted their favor. issue, None of those assertions appears dispositive which here is be in the test to a settlement context to applied determine if a has been party Section 1021.5 “successful.” does not require successful party sum; create or identifiable preserve money rather it states that the conferred or may “pecuniary (See benefit nonpecuniary.” ante.) fn. Bruno, Nor from which supra, the “mere diverted” idea de- rives, there in Plaintiff succeeded controlling. a statute that invalidating for allocations counties of certain state provided revenues.30 His $2.5 loss of resulted million in “success” county revenue. The Legislature by amending statute cure its responded and to infirmity allocations. The Court of restore the counties’ characterized the Appeal of a negation “the policy result as determination in the [vested (91 where these funds should as to Legislature] go.” 787.) the award under no statute proper It found or and vacated it theory contrary other public policy. grounds here, The Bruno bears little result resemblance that achieved where diverted from street road funds were to the projects very purposes which the the funds. Legislature designated Plaintiffs vindicated legislative thus those who are only intent and benefited transit-dependent Butte Code, but the as whole. Pub. citizenry Util. County subd. 3, ante.].) The of a (c) importance based statutorily must be right [fn. achievement fundamental “relationship assessed legislative Hills, (Woodland supra, 23 Cal.3d at p. goals.” challenge portion of the that will accrue to the 29 Defendants do not award benefit Society Legal Legal County or the Aid of Sacramento California Rural Assistance either and, (see ante); given holding, inquire we need not into funding fn. our bases of organizations. those invalidation, grounds, in the on constitutional action resulted of section 30 Plaintiffis Code, which Highways provided for distribution to Streets and counties 104.10 purchased property derived the state from real for highway of the income percentage purposes.
685 motion for summary judg- that defendants’ partial is it dispositive Nor was, resolved in their favor. While California authority in part, ment determination that the common sense dictates is subject sparse, the on more than mere 1021.5 must depend appearance. under section success Hills, the trial court must in Woodland the “realistically assess As we said determine, a from whether or not the practical perspective, litigation (Id., 938.) . . . .” at right to vindicate important p. action served most federal courts construing The rule followed “prevailing party” Act, Fees Attorney’s the Civil Awards is as to Rights inquiry under must be a one outside the merits pragmatic may range success party’s initial “It’s focus well be on underlying dispute. might establishing condition that the fee claimant factual/legal has sought change precise benchmark, .... With condition taken as a or affect this then inquiry may outcome, matter the turn to whether as in whatever form it quite practical realized, is one to which the fee claimant’s plaintiff efforts contributed in and which does involve an actual way, conferral of benefit or significant relief from burden when measured against benchmark condition.” 1316, 1319; accord, (Bonnes v. (4th 1979) Cir. F.2d Long Chicano Ass’n, 131; Police Nadeau v. 624 F.2d at supra, Helgemoe p. (1st Officer’s F 278; & M v. C. 1978) 581 F.2d Corp. Schmidt & Cir. Schaefer Sons, Inc. (S.D.N.Y. 1979) 206-207.31) 476 F.Supp. action, The critical fact is the not the manner of its resolu impact tion. If has been the impact “enforcement of an important right affecting interest” public and a conferral of a benefit on consequent “significant the general or a large class a section 1021.5 persons”32 award is not barred because the (Woodland case was won on a issue preliminary Hills, supra, Cal.3d at or because it was settled p. before trial. (Rich v. City 436.)33 As Cal.App.3d Congress of Benecia to have seems reasoned in Act: “A enacting Fees ‘prevailing party’ settlement, should not be an out penalized seeking of court thus help filed, to lessen docket ing congestion. after a a de Similarly, complaint fendant might cease the unlawful A court voluntarily should practice. succinctly phrased applicable appropriate test: “The benchmarks 31 Schaefer determining (a) which party prevailed are immediately situation prior suit, (b) role, commencement of today, any, situation and the played by if litigation effecting any changes (476 206.) between the two.” F.Supp. at litigant’s personal (Marini, 32 The benefit must of course transcend a supra, interest. 838; County Inyo City Angeles (1978) Los 78 Cal.App.3d 89-90 [144 authority Supreme 33 Federal is in accord. The Court stated in Gagne (1980) Maher v. 448 U.S. L.Ed.2d 100 S.Ct. “The fact respondent 2570]: through prevailed through litigation a settlement rather than does not weaken her claim to (See also, Beyond fees 42 U.S.C. Lipson, Alyeska—Judicial [under § 1988].” Response Rights Attorneys’ to the Civil Fees Act St. Louis U.L.J. *17 conclude, still award fees even it a though might as matter of that no equity, (House formal relief ... is needed.” Jud. Com. No. Rep. 94-1558 (Sept. 7; 1976) at see also Sen. Jud. p. Com. No. (June 29, Rep. 1976) at in 1976 U.S. Code p. reprinted Cong. & Admin. News at 5908.)34 p.
III we evaluate the award here to Accordingly determine whether plaintiffs fact were “successful.” Their litigation aim was to assure an adequate in Butte system County. transit Just public prior commencement action, BCAG had found that no unmet transit needs existed in the county and had request of Chico rejected City Council to allocate Chico’s monies to a share TDA transit system there. No transit public system existed in Chico or Oroville or between the major urban areas of the service for the county, and handicapped both limited and violative of (See 7, ante.) fn. regulations. applicable After the court issued its order on November contingent Local Defendants agreed Oroville, a implement plan including intracity for Chico and an systems intercity for the system and a county, elderly program whereby utilize handicapped might systems throughout the It county. follows that the result achieved was that which precisely plaintiffs sought. becomes action whether their question substantially contributed to or, it,
that result
as the trial court phrased
“whether or not the local
done
would have
what
have
they
done absent
politicians
the lawsuit.” The
with evidence that
replete
record is
BCAG dramatically
its
changed
filing
plaintiffs’
after
action. At the
position
time suit was
filed
which controlled
BCAG,
board
supervisors,
majority
seats on
took
that added public
was not
position
transportation
needed. Supervisor
Winston was
Chico
reported (p.
(Mar.
News
Review
1979)) to have remarked at
the March
BCAG
“I’ve been
meeting:
these
so
objecting
that I’m almost
public transportation systems
long
. . .
hasten
worn down
but I
to add that I’m not worn down.” Yet within
resolution,
two
he had introduced a
months
BCAG
adopted,
study
system.
of an
In June
feasibility
intercity
BCAG rescinded all
34 Thusit
bar to fee
agreeing
is no
award that
have settled the matter
action,
performance of
prejudice,
promises.
dismiss the
with
defendants’
Contractual
should
be awarded under Civil Code
plaintiffs voluntarily
fees
section 1717 where
Industries,
(International
prejudice
without
before trial.
dismiss
action
Inc.
Olen
rule,
however,
We in BCAG’s decision to institute the four tran influential demonstrably and, hence, un that were “successful parties” plaintiffs sit systems resp Since defendants in no other challenge findings 1021.5. der section We attorney the orders costs and fees. remand granting we affirm ect,35 directions to hear and determine for plaintiffs’ request court with to the trial filed in the Court of on in Appeal April fees appeal, ante, v. Unruh the views set forth in Serrano with conformity P.2d Cal.Rptr. 985]. page J., J., Mosk, J., Broussard, J., concurred.
Bird, and Reynoso, C. dissent.
KAUS, J. respectfully I m of II and the majority discussed parts reach the issues do not I circumstances that under the particular disagree I profoundly since opinion us, before it was to award proper agreement the settlement case and this fees or costs. found, 1021.5, required by court also as that that 35 We reiterate important right affecting of an the enforcement interest . resulted in . . “action large .; persons has been conferred both class of and on the significant benefit . . necessity private and financial burden of enforcement public; general [and] attorney’s appropriate.” award of fees make this as to such [were] not, The as the question outset, majority states whether silent as to agreement costs and fees bar creates a to either a cost bill or a motion fees to section 1021.5 pursuant Code Civil Procedure. not, Possibly it does but that this case. Here both the as original well as the amended included complaint specific prayers costs and attorney fees. settlement agreement recited: specifically “Plaintiffs shall file with the Court dismissal of Local Defendants with prejudice, within one week of the date that the new last transit system has initiated service it, below.” As I defined understand nothing but the ^[10 necessary delay the transit called for establishing systems agreement prevented immediate of the dismissal with filing do prejudice—nor plaintiffs claim otherwise. Can there that once such question a dismissal had been filed, it would have been curtains for any effort an encore in the trigger form of fees and (Kronkright costs? v. Gardner 31 Cal.App.3d 270]; Burns Wouldridge *19 394]; Cal.Rptr. Ghiringhelli v. Riboni [71 P.2d Cal.App.2d result cannot be different just because went into court before the plaintiffs filed, dismissal was without it or way disavowing offering extrinsic evidence to alter its plain meaning. dissent, no wish to burden with
Having a tedious posterity I shall simply state that none the authorities cited by plaintiffs precisely point, involves a that none for costs specific prayer and fees in and a complaint to dismiss that with specific promise complaint prejudice. Particularly is the majority’s heavy reliance on inappropriate Rappenecker v. Sea-Land Inc. Service That case 516]. involved the allowing costs after the propriety plaintiffs’ acceptance to section 998 of the an offer Code of Civil pursuant Procedure by to allow in a defendant certain sum to be judgment taken. Later plaintiffs bills defendant sought filed cost strike. The Court of Appeal quite which, there was in the held that nothing if properly procedure followed, leads to judgment, would the normal negative of a for the as far judgment as costs were consequences The obvious distinction between Rappenecker concerned. and this case elaboration; bill; a favorable no invites the of a cost judgment filing needs it. with forbids prejudice dismissal
Richardson, J., concurred.