NATHAN VOSBURG et al. v. COUNTY OF FRESNO; DETAINEE-AMERICANS FOR CIVIC EQUALITY
F078081 (Super. Ct. No. 17CECG04294)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
September 9, 2020
CERTIFIED FOR PARTIAL PUBLICATION*
Law Office of Janice M. Bellucci and Janice M. Bellucci for Movant and Appellant.
Griswold, LaSalle, Dowd, Cobb & Gin, Mario U. Zamora and Jaskaran S. Gill for Plaintiffs and Respondents.
-ooOoo-
* Pursuant to
This appeal addresses an unincorporated association‘s eligibility for attorney fees under California‘s private attorney general statute,
The unincorporated association filed a motion to intervene on the side of the defendants, the county and the county‘s registrar of voters. The trial court deferred ruling on the motion to intervene and allowed the association to participate in the election contest. The defendants and association argued the election results were valid because the patients resided in the city and were properly registered tо vote. After receiving evidence and briefing, the trial court rejected the election contest. This result was favorable to the association and its members because it upheld the members’ right to vote.
The unincorporated association‘s subsequent motion for attorney fees was denied by the trial court on the ground the association did not qualify as a “party” for purposes of the “successful party” requirement in
As the foundation for the application of
We therefore reverse the order denying the motion for attorney fees.
FACTS
California State Hospital—Coalinga (CSH-Coalinga) is overseen by the California Department of State Hospitals. It is a self-contained, 1,300-bed, psychiatric hospital constructed with a security perimeter. The patients at CSH-Coalinga are committed involuntarily by court order because they have been classified as (1) mentally disordered sex offenders (former
CSH-Coalinga has been located within the City of Coalinga since it was annexed in 2006. The patients at CSH-Coalinga retain the right to vote, unless otherwise ordered
At the time of the November 2017 election, 322 patients at CSH-Coalinga were registered to vote in the City of Coalinga. The number of registered voters is known because CSH-Coalinga constitutes its own precinct, which was designated “0001001” for purposes of the November 2017 election.
One of the items presented to voters of the City of Coalinga at the November 2017 election was a ballot measure proposing to raise the total sales tax rate in the city from 7.975 percent to 8.975 percent. The sales tax measure was referred to as Measure C. County and its registrar of voters were responsible for conducting the November 7, 2017 election in the City of Coalinga and canvassing the results.
Of the 1,127 votes cast in the election, 582 voters opposed Measure C and 545 voted in favor of it. As а result, Measure C was defeated. In the CSH-Coalinga precinct, 178 ballots were completed. These ballots contained 127 votes opposing Measure C and 50 votes in support of Measure C; one ballot was left blank. As a result, if the votes cast by patients at CSH-Coalinga were subtracted from the election results, Measure C would have passed by a vote of 495 to 455.
Appellant Detainee-Americans for Civic Equality (DACE) is an unincorporated association. It was formed in 2010 to encourage political participation by CSH-Coalinga patients, to help them to register to vote, and to advocate for issues of concern to the patients. Prior to the November 2017 election, DACE organized meetings and discussions among CSH-Coalinga patients about the merits of Measure C. A member of DACE who is a former CSH-Coalinga patient communicated with the City of Coalinga about Measure C and sought the city‘s cooperation in increasing transportation services for visitors to and from CSH-Coalinga. DACE asserts city officials disregarded its
After Measure C was defeated, DACE contends CSH-Coalinga patients were targeted, blamed and scapegoated for the defeat in numerous ways. DACE also contends city officials began to advocate for the disenfranchisement of CSH-Coalinga patients. Other forms of retaliation against CSH-Coalinga patients became the subject of a federal lawsuit. (See Saint-Martin v. Price (E.D.Cal. June 6, 2018, No. 18-CV-00123-DAD-SKO) 2018 U.S. Dist. LEXIS 95389, 2018 WL 2716907 [defendants’ motion to dismiss patients’ complaint denied].)
PROCEEDINGS
In December 2017, Nathan Vosburg, Steve Raine, Ron Ramsey, Ron Lander, and Tanya Stolz, in their personal and official capacities as councilmembers for the City of Coalinga (Contestants), filed a statement of contest pursuant to
On January 16, 2018,2 County filed an answer to the statement of contest. County specifically denied the allegations that (1) several illegal votes were cast in the November
Motion to Intervene
A week later, DACE filed a motion to intervene in the election contest, which was set for hearing on March 7. The motion stated DACE sought to unite with County in resisting the election contest filed by Contestants. The proposed complaint in intervention attached to DACE‘s motion included a counterclaim against Contestants for declaratory relief stating “that patients residing in [CSH-]Coalinga are lawfully entitled to vote in City of Coalinga elections if they intend the City of Coalinga to be their domicile.”
Contestants opposed DACE‘s motion to intervene, contending DACE‘s request was not supported by any declarations or affidavits and, therefore, DACE had not shown that any challenged vote had been made by a member of DACE. Contestants also argued an election contest is a summary procedure and DACE, if allowed to intervene, should not be allowed to expand the litigation by seeking declaratory relief.
On February 28, the trial court issued a notice setting a hearing on the election contest for March 9. The court also stated: “The Court hereby continues the hearing on the motion for leave to intervene until after the hearing set out above. The [Court] shall set a date for that motion if appropriate.”
On March 7, the trial court filed a minute order stating (1) the hеaring on the motion for leave to intervene was continued, (2) a new hearing date would be set after the March 9, hearing on the election contest, and (3) the court recognized “that the proposed intervenors could be considered to be real parties in interest and for th[at] reason their attorney may be present at the March 9th hearing.”
At the March 9, hearing, three attorneys appeared—one for Contestants, one for County, and one for DACE. The trial court established a briefing schedule and the hearing on the merits of the election contest was continued to April 27.
On April 9, Contestants filed their opening brief in support of the election contest. The brief was approximately 12 pages long (excluding the caption page and tables). Contestants argued the patients at CSH-Coalinga were not domiciled in the City of Coalinga unless they resided in the city prior to their commitment to CSH-Coalinga. Based on this argument about domicile, Contestants asserted every vote from CSH-Coalinga‘s precinct should be excluded from the election results.
Simultaneous with the filing of Contestants’ brief, DACE filed a 15-page opening brief (excluding the caption page and tables) in opposition to the election contest. The brief was supported by declarations from two patients of CSH-Coalinga. Each declaration described, among other things, how the patient registered to vote and why the patient regarded CSH-Coalinga as his domicile for voting purposes. Each patient asserted there was no other location where he could lawfully reside for voting purposes.
Another document filed on April 9, was labeled “STIPULATED FACTS FOR ELECTION CONTEST.” The opening paragraph of the three-page stipulation stated the Contestants, in their personal and professional capacities as councilmembers, County, County‘s registrar of voters, “and proposed Intervenor [DACE], constituting all the parties appearing in this action, through undersigned counsel of record, hereby stipulate to the following facts.” (Italics added.) The stipulation contained information about Measure C, the November 2017 election, CSH-Coalinga, and its patients—much of which is set forth earlier in this opinion.
On April 12, County filed a brief in reply to the briefs submitted by Contestants and DACE. County argued every affidavit of registration submitted by a patient was properly completed as to form, was duly executed, and the information (including the voter‘s residence at CSH-Coalinga) was certified under penalty of perjury. The brief relied primarily on provisions in the
A week later, DACE filed a reply brief in opposition to the election contest. The brief was 14 pages (excluding the caption page and tables). DACE‘s reply brief addressed many of the cases and other authorities relied upon by Contestants in their opening brief. The next day, Contestants filed their reply to County‘s brief and to DACE‘s opposition to the election contest.
On April 27, the trial court held a hearing on the merits of the election contest. Counsel for DACE was present. The trial court heard arguments and took the matter under submission.
Trial Court‘s Decision
On May 8, the court issued a 11-page order denying the election contest. The court found there was no defect in the voter registration process and concluded the statutes “support the position that one committed to a State Hospital can register to vote in the County of the commitment.” The order discussed cases and other authorities that had been addressed only by Contestants and DACE. For example, the court rejected Contestants’ interpretation of In re Marriage of Thornton (1982) 135 Cal.App.3d 500 and Hillman v. Stults (1968) 263 Cal.App.2d 848 and adopted DACE‘s characterization of the cases. The court also rejected Contestants’ reliance on decisions from other jurisdictions, concluding they were not relevant “as they do nоt interpret California law.”
Motion for Attorney Fees
In July, DACE filed a motion for attorney fees pursuant to
In August, the trial court held a hearing on the motion for attorney fees. A few weeks after the hearing, the court issued an order adopting its tentative ruling to deny DACE‘s motion for attorney fees. The ruling stated DACE was not a party and acknowledged that “intervenors or de facto intervenors have the ability to interpose in a lawsuit and become a party to it.” The ruling discussed the concept of de facto interveners, cited Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588 (Savaglio) and Investco, supra, 22 Cal.App.5th 443, and stated:
“While DACE is an organization that purports to represent the interests of those whose votes were at issue, it is not a person or party directly impacted by the contest. [¶] The court finds that DACE was not a de facto intervenor, and therefore was not vested with the same procedural rights and remedies as the original parties to the suit. [¶] However, the court did permit DACE to participate and present its arguments as a friend of the court, or amicus curiae. DACE has provide[d] the court with no authority for recovery of attorney fees under Code of Civil Procedure section 1021.5 by an amicus curiae.”
The court determined “DACE was not a ‘successful party’ in this proceeding, and therefore is not eligible for an award of attorney fees under
I. GENERAL PRINCIPLES
A. Overview of Section 1021.5
“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
Courts and commentators have divided this statutory text in various ways. To assist counsel in organizing their arguments, declarations and other evidence relevant to a statutory fee award and to aid superior courts’ analyses of the evidence and arguments, we
The burden of proving the existence of the first five statutory elements listed in Robinson is placed on the party requesting attorney fees under
B. Standard of Review
The abuse of discretion standard of review normally is applied to a trial court‘s ruling on a motion for attorney fees under
II. SUCCESSFUL PARTY
Most of the appellate decisions addressing the “successful party” criterion in
A. Unincorporated Associations
DACE is an unincorporated association. (See generally, 9 Witkin, Summary of Cal. Law (11th ed. 2017) Corporations, §§ 42-55, pp. 842-858 [unincorporated associations].) Therefore, to establish the context for the arguments about whether DACE qualifies as a “successful party” (
Long ago, “an unincorporated association was not considered to be a legal entity separate from its members.” (Recommendation: Unincorporated Associations (Sept. 2003) 33 Cal. Law Revisions Com. Rep. (2003) 729, 733.) They are not “recognized by the law as persons. They are mere aggregates of individuals called for convenience, like partnerships, by a common name.” (Grand Grove of United Ancient Order of Druids of California v. Garibaldi Grove (1900) 130 Cal. 116, 119.)
During the 20th century, the legal status of unincorporated associations evolved with the enactment of statutes and developments in the common law. For instances, in White v. Cox (1971) 17 Cal.App.3d 824, the court stated: “Since 1962 the trend of case law has flowed toward full recognition of the unincorporated association as a separate legal entity.” (Id. at p. 828.) In Redondo Beach Police Officers Assn. v. City of Redondo Beach (1977) 68 Cal.App.3d 595, (Redondo Beach), the court stated that, since the 1967 enactment of former
In 2003, the California Law Revision Commission (Commission) recommended “improvements to existing California law governing unincorporated associations,” including reorganizing provisions to improve accessibility, defining important terms, detailing the proposed law‘s relation to other law, and simрlifying existing provisions relating to property ownership and transfer. (Recommendation: Unincorporated Associations (Sept. 2003) 33 Cal. Law Revisions Com. Rep., supra, at pp. 735-736.) Based on this recommendation, the Legislature repealed many provisions in the
In 2004, the Commission recommended additional definitions and “that basic governance rules be added to the law of unincorporated associations.”
“Unincorporated association” currently is defined as “an unincorporated group of two or more persons joined by mutual consent to a common lawful purpose, whether organized for profit or not.” (
To summarize, under California law, unincorporated associations possess many characteristics of other legal entities and may (1) sue or be sued, (2) own and transfer an interest in real or personal property, (3) take property under a will, (4) register a trademark, (5) seek an injunction against a public nuisance or unfair competition, or (6) engage in commerce. (9 Witkin, Summary of Cal. Law, supra, Corporations, § 44, p. 845 [entity status].)
2. Capacity to Litigate
In this appeal, we are primarily interested in the ability of an unincorporated association to participate in litigation, a subject addressed by the
Consequently, the fact DACE is an unincorporated association does not disqualify it from intervening in the election contest. (See generally, Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 283 [two entities, the Flood Mitigation League of Ross Valley and the Friends of Corte Madеra Creek, successfully intervened in an election contest, joining the flood control district in opposing the contest] (Greene).)3
3. Representative Capacity
In the present election contest, DACE did not participate to vindicate a right or interest it held as a separate legal entity. DACE itself was not eligible to vote in the November 2017 election and, thus, it did not attempt to join the election contest to protect its right to vote. Instead, DACE appeared in a representative capacity, seeking to protect the rights of its members and the other patients at CSH-Coalinga. Accordingly, we examine the ability of unincorporated associations to appear in litigation to represent the interests of its membership.
In 1990, an appellate court stated: “It is not altogether clear under what circumstances an unincorporated association has standing to sue in a representative
In Tenants Assn., an unincorporated association of present and past tenants of a mobile home park sued the park owners and manager alleging breach of statutory duties, unfair business practices, fraud, cancellation of written instruments, injunctions and abatement of a nuisance. (Tenants Assn., supra, 222 Cal.App.3d at p. 1295.) The trial court sustained the defendants’ demurrer on the ground the association lacked standing to pursue those claims. (Id. at p. 1298.) The Second District reversed as to some of the claims, concluding the association could sue in a representative capacity and seek prospective relief such as an injunction or declaration of rights. (Id. at p. 1302.) Because the relief sought on those claims was generally applicable to the tenants, the court stated “that considerations of necessity, convenience and justice provide justification for the use of the representative procedural device.” (Id. at p. 1304.) In comparison, the court concluded the association did not have standing to sue for money damages relating to anxiety, emotional distress or personal injuries because the alleged injuries were inherently too personal to the individual to reasonably constitute a community of interest. (Id. at p. 1304.)
In reaching its conclusions, the court “recognized the right of an unincorporated association to sue to challenge governmental action.” (Tenants Assn., supra, 222 Cal.App.3d at p. 1299.) The court discussed Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, stating:
“Back in 1973, one appellate court noted that: ‘In recent years there has been a marked accommodation of formerly strict procedural requirements of standing to sue [citation] and evеn of capacity to sue [citation] where matters relating to the “social and economic realities of the present-day organization of society” [citation] are concerned.’ [Citation]. [¶] In Residents of Beverly Glen, the court held that a homeowners association had standing to sue to challenge governmental action because its complaint
alleged that its members lived in the affected area of the challenged project and would suffer injury if the project was allowed to proceed. [Citation.] The court looked to the public nature of the question involved, noting that the right to sue is greatly relaxed where the question is of public interest.” (Tenants Assn., supra, 222 Cal.App.3d at pp. 1299-1300.)
Adapting the foregoing principles to election contests, we conclude an unincorporated association has standing to appear in an election contest as a representative of its members if (1) its members live in the area affected by the outcome of the election, (2) its members would suffer injury from an adverse outcome in the election contest, and (3) the questions involved were of a public nature. (See Greene, supra, 49 Cal.4th at p. 283 [associations intervened in election contest].)
4. DACE‘s Capacity to Represent its Members in the Election Contest
We next consider whether DACE has met the three enumerated conditions. First, it is undisputed that the patients residing at CSH-Coalinga are in an area affected by the referendum vote on Measure C. The hospital constitutes a separate precinct within the City of Coalinga. Therefore, we conclude the first condition was satisfied.
Second, the members of DACE would have been harmed in at least two ways if the election contest was successful. A successful election contest would have nullified the votes they cast in the November 2017 election and, as a result, adversely effected their right to vote. Also, the passage of Measure C would have affected the economic interests of patients in CSH-Coalinga by increasing the amount of sales tax they paid on goods purchased. Based on these two impacts, we conclude the second condition was satisfied.
Third, the election contest involved questions of a public nature because Measure C, a sales tax measure, has public aspects both in terms of who pays the cost of local government and what services are provided the City of Coalinga. Furthermore, the specific challenge raised in this election contest addressed the right of patients at CSH-Coalinga to vote in the election. A Californian‘s right to vote is a fundamental
5. Trial Court‘s Approach to DACE‘s Representative Capacity
In Robinson, supra, 202 Cal.App.4th 382, this court described a two-step approach useful in determining whether the trial court abused its discretion. (Id. at p. 391.) “First, the appellate court considers whether the superior court applied the proper legal standards in reaching its determination.” (Ibid.) If the wrong legal standards were applied, the trial court abused its discretion. (Ibid.) When carrying out this step, “an appellate court must pay particular attention to the superior court‘s stated reasons” for awarding or denying fees. (Ibid.) Based on this approach, we quote the trial court‘s analysis of DACE‘s ability to represent its members interests in the election contest.
“The court did not grant DACE‘s motion to intervene because it was not consistent, particularly as to the form in which DACE sought to intervene, with a summary proceeding such as an election contest. The de facto interveners in Investco were determined to be clearly interested parties and de facto intervenors because they were specifically targeted in the action. (Investco, supra, [22 Cal.App.5th] at p. 459.) While DACE is an organization that purports to represent the interests of those whose votes were at issue, it is not a person or party directly impacted by the contest. [¶] The court finds that DACE was not a de facto intervenor, and therefore was not vested with the same procedural rights and remedies as the original parties to the suit.”
Furthermore, based on an unincorporated association‘s ability to appear in litigation in a representative capacity on behalf of its members, DACE qualified for permissive intervention under
To summarize, we conclude (1) the trial court‘s analysis of DACE‘s right to intervene in the election contest in the order denying the motion for attorney fees did not accurately reflect California law governing an unincorporated association and (2) DACE qualified for permissive intervention. We next turn to the primary issue in this appeal—that is, whether DACE qualified as a party for purposes of
B. Litigants Who Qualify as a “Party”
1. Plaintiffs, Defendants and Real Parties in Interest
To effectuate the policy underlying
For example, in Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614 (San Marcos), the Wal-Mart entity filed a petition for writ of mandate against the city, the city‘s clerk and the county‘s registrar of voters to keep a referendum measure off the ballot. (Id. at p. 621.) The measure challenged the city council‘s decision to allow Wal-Mart to build a second store in the city. (Id. at p. 617.) The real parties in interest were two individuals who resided in the city and had submitted the referendum petition to the city‘s clerk. (Id. at p. 618.) The real parties in
The Fourth District reversed the order denying the request for attorney fees and “remanded to the trial court for a new hearing on the amount of an award.” (San Marcos, supra, 132 Cal.App.4th at p. 626.) The appellate court rejected Wal-Mart’s argument that the real parties in interest were not successful parties, citing an earlier case that “held real parties in interest were entitled to attorney fees under
In summary, San Marcos is a case involving litigation over a city election where the election results were upheld and the real parties in interest were determined to be “successful parties” and otherwise eligible for attorney fees under
2. Amicus Curiae
In contrast to real parties in interest, “[a]micus curiae generally are not entitled to fees under fee-shifting statutes, including [
3. Interveners
Under California law, interveners become a party to the action with the same procedural rights, remedies and responsibilities of the original parties. (Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148–149
In Crawford v. Board of Education (1988) 200 Cal.App.3d 1397, the court stated that litigants who intervene at some point during the course of public interest litigation and contribute in a significant way to the vindication of an important constitutional or statutory right are eligible for an award under
4. De Facto Interveners
In City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43 (City of Santa Monica), a nonprofit taxpayer and consumer rights organization sponsored initiative measures that sought to prevent city officials from receiving certain advantages from persons or entities who derived benefit from discretionary decisions made by city officials while in office. (Id. at p. 50.) Voters approved the initiatives and lawsuits were brought relating to the enforcement of the initiatives. (Ibid.) The sponsoring organization was allowed to intervene in the lawsuits. (Id. at pp. 53–54.) Part of the appellate opinion addressed the sponsoring organization’s motion to recover attorney fees under
The term “de facto intervener” was used in Savaglio, supra, 149 Cal.App.4th 588. In that case, a retailer was sued for violating meal and rest break laws. During the litigation, the retailer filed records conditionally under seal without complying with the rules of court. A newspaper moved to unseal the records and the retailer filed a belated motion to seal, which the trial court granted in part. The newspaper requested attorney fees under
The most recent decision to discuss a de facto intervener’s eligibility for attorney fees under
Investco appears to be the first case in which de facto interveners were awarded attorney fees under
C. DACE as a De Facto Intervener
Here, the trial court’s written order denying attorney fees found “DACE was not a de facto intervenor” and characterized DACE’s participation “as a friend of the court, or amicus curiae.” To complete a proper review of this determination, we must classify the trial court’s determination and identify the standard of review applied to that type of determination.
1. Determination Made and Applicable Standard of Review
The abuse of discretion standard of review applies to a superior court’s decision on a motion for attorney fees under
Here, DACE’s participation in the election contest is largely undisputed because that participation is reflected in the record. Consequently, we conclude whether DACE is a de facto intervener and, thus, a “party” for purposes of
2. De Facto Versus De Jure Interveners
The California cases discussing de facto interveners in the context of an award of attorney fees under
One legal dictionary states “de facto” means: “Actual, existing in fact; having effect even though not formally or legally recognized.” (Black’s Law Dict. (8th ed. 2004) p. 448.) It also states “de jure” is a Latin phrase for “ ‘as a matter of law’ ” that means: “Existing by right or according to law.” (Id. at p. 458.)5 Based on these definitions, we conclude a de facto intervener has two primary characteristics. First, the individual or entity has not been formally recognized by the court as an intervener pursuant to the procedure set forth in
Examining the litigant’s actual participation is consistent with our Supreme Court’s approach to
Our Supreme Court also stated “the procedural device by which a plaintiff seeks to enforce an important right is not determinative of his or her entitlement to attorney fees under
3. Distinguishing Interveners from Amici Curiae
Based on the definitions of “de facto” and “de jure” and the distinction prior cases have drawn between interveners and amici curiae, we next consider how the participation of an intervener differs from the participation of an amicus curiae. “The granting of leave to appear as amici curiae is not the full equivalent of intervention, for amici curiae are confined to legal argument, cannot plead or offer evidence, and cannot appeal from an adverse decision.” (4 Witkin, Cal. Procedure, supra, Pleading, § 236, p. 317.) Thus, in terms of participating in the trial court proceedings, both amici curiae and interveners present legal argument, but only interveners may submit a pleading or offer evidence.
4. DACE’s Participation in the Election Contest
The trial court deferred ruling on DACE’s motion to intervene and allowed DACE to participate in the election contest as though Dace’s motion to intervene had been granted and DACE’s request of declaratory relief had been held in abeyance until the election contest was resolved. DACE’s participation in the election contest included filing an opening brief on the same day Contestants filed their opening brief. Also, like Contestants, DACE filed a reply brief. As a result, DACE’s participation in the briefing of the case was akin to a plaintiff in intervention, not an amicus curiae. Furthermore, unlike an amicus curiae, DACE participated in the submission of evidence to the trial court. Its counsel signed the “STIPULATED FACTS FOR ELECTION CONTEST.” DACE also presented two declarations of patients at CSH-Coalinga. As to pleading, DACE’s proposed complaint in intervention never became operative and had nо impact on the outcome of the litigation.
To summarize, based on the record presented, we find as a matter of law that DACE was a de facto intervener. As a result, DACE was a “party” to the lawsuit for purposes of
D. DACE Was Successful
1. Results Achieved
DACE sought to participate in the election contest to resist Contestants’ attempt to invalidate the votes cast by its members and other patients at CSH-Coalinga and change the outcome of Measure C. The last sentence in DACE’s opening trial court brief clearly identified DACE’s objective, stating “this election cоntest must be denied.” This objective was achieved. The last two sentences of trial court’s May 8 order stated: “There is no defect in the voter registration process, and the statutes relating to the affidavit support the position that one committed to a State Hospital can register to vote in the County of the commitment. [¶] Accordingly, the election contest is denied.” Thus, the trial court’s final decision adopted the outcome sought by DACE. The votes cast by patients at CSH-Coalinga were valid and the defeat of Measure C was upheld.
When a court considers whether a party was successful in the litigation, the critical inquiry is the impact of the action, not the way in which the action was resolved.
2. Unique Contribution Requirement
Our inquiry into whether DACE was “successful” for purposes of
Part II.C.4. of this opinion provides a general description of DACE’s participation in the election contest. Here, we examine that participation in more detail.
3. Legal Arguments Contributed
DACE’s opening brief in the election contest was filed before County’s only brief. As a result, DACE has the first opportunity to develop arguments for denying the contest. A comparison of the two briefs filed by DACE with County’s trial court brief shows DACE advanced arguments not explicitly set forth by County. Indeed, County’s trial court brief, rather than repeating DACE’s earlier arguments, simply incorporated them by stating: “Finally, for the reasons stated herein and in [DACE’s] BRIEF IN OPPOSITION TO ELECTION CONTEST, the Court is requested to deny Contestants’ Election Contest” and confirm the election results previously certified by County.
The arguments presented by DACE qualify as a “contribution” to the litigation and outcome because they are reflected in the trial court’s decision. DACE’s opening brief on appeal provides six comparisons between its trial court briefs and the trial court’s order denying the election contest. These comparisons support DACE’s argument that the court adopted several arguments advanced solely by DACE. These arguments involved (1) the Restatement (Second) of Conflict of Laws, (2) In re Marriage of Thompson, supra, 135 Cal.App.3d 500, (3) Hillman v. Stults, supra, 263 Cal.App.2d 848, (4) an opinion of the California Attorney General, (5)
In addition, both of DACE’s trial court briefs discussed People v. Holden (1865) 28 Cal. 123; Arapajolu v. McMenamin (1952) 113 Cal.App.2d 824; and Jolicoeur v. Mihaly (1971) 5 Cal.3d 565. County’s brief did not mention these cases. Similarly, Contestants’ trial court opening brief did not mention these cases. However, Contestants’ trial court reply brief attempted to distinguish Arapajolu and Jolicoeur. The trial court’s decision stated: “In its reply brief DACE points to additional authorities that support the legality of the votes in question.” In the discussion that followed, the court referred Holden, Arapajolu and Jolicoeur.
4. Evidence Contributed
DACE supported its opening trial court brief with two declarations from patients at CSH-Coalinga. DACE was the only litigant to present declarations from patients. The declarations described the patients’ circumstances and reasons for listing CSH-Coalinga as their residence when registering to vote. DACE used this evidence to argue, among other things, that most CSH-Coalinga patients reside solely at the facility and “lack any alternative residence for voting or other purposes” and that some patients, including the declarants, “expect to spend the rest of their lives in CSH-C[oalinga].” The evidence in the patient declarations was not duplicated in the declarations filed by Contestants or County. Therefore, the record establishes that DACE made a unique contribution to the evidence presented in the election contest.
To summarize, based on DACE’s status as a de facto intervener and its unique contribution to the evidence and argument presented in the trial court, we find as a matter of law that DACE was “a successful party” in the election сontest for purposes of
III. OTHER ISSUES*
A. Standing to Appeal
Contestants argue DACE lacks standing to appeal because it was simply an amicus curiae and not a party to the underlying election contest. Earlier, we rejected Contestants’ argument that DACE is properly characterized as an amicus curiae and concluded DACE is a “party” for purposes of
B. Necessity of Private Enforcement
Contestants argued DACE failed to demonstrate private enforcement was necessary and, therefore any error in the application of
First, it is possible to interpret Contestants’ argument as implying that DACE must show that “but for” its participation in the election contest the outcome would have been less favorable. To the extent Contestants imply a “but for” test аpplies to the determination of the necessity for private enforcement, we reject that test. In City of Santa Monica, supra, 126 Cal.App.4th 43, the appellate court determined the trial court erred in requiring the intervening organization to show the requested relief would not have been obtained but for its participation in the litigation. (Id. at p. 89.) Similarly, we conclude the necessity requirement does not require a de facto intervener to show that but for its participation in the lawsuit a less favorable judgment or order would have been entered.
Second, we conclude the test for determining the necessity of private enforcement where a public entity has appeared in the litigation is set forth in Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633 (Committee to Defend). In that case, the First District determined the district attorney’s participation in the litigation did not bar the plaintiffs from recovering attorney fees under
Previously, we concluded DACE made a unique (i.e., nonduplicative) contribution to the legal arguments and evidence presented to the trial court. (See pt. II.D.3. and II.D.4., ante.) In addition, we concluded the contents of the trial court’s written decision demonstrated the court considered DACE’s arguments and determined they were convincing. Here, we consider whether DACE’s contribution satisfies the significance and materiality requirements of the Committee to Defend test. We conclude those requirements are satisfied.
The section of the trial court’s decision labeled “Discussion” covered slightly more than six pages. Over 60 percent of that discussion addressed arguments and authority addressed by DACE. Our opinion need not go through that discussion sentence by sentence and correlate the subjects addressed to the contents of DACE’s brief and the briefs of the other parties. Our review of that discussion convinces us that it was not background or superfluous; rather, it was a significant and material part of the trial court reasoning. Consequently, we conclude DACE’s contribution qualifies as both significant and material. DACE did not simply ride County’s coattails. (See Pearl on Attorney Fees, supra, § 2.28, p. 2-23 [“intervenors should not be able to recover fees for simply riding the coattails of the principal party or duplicating its efforts”].) Assessed from a realistic and practical point of view, County and DACE divided the work of opposing the election between themselves. In such a case, “it makes little sense to deny fees to counsel
Consequently, like the First District in Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th 1331, we conclude the factors in the Committee to Defend test are satisfied by the record presented on appeal. (Lyons, supra, at p. 1349.) As a result of this showing, we reject Contestants’ argument that the denial of the motion for attorney fees can be upheld because private enforcement was not necessary.7
C. Attorney Fees on Appeal
DACE’s opening brief “further requests a determination that it is ‘entitled to an award of attorney fees on appeal under
In Serrano v Unruh (1982) 32 Cal.3d 621, the Supreme Court stated that attorney fees, if recoverable at all pursuant to a statute, are available for services at trial and on
We conclude Lyons is distinguishable from the present appeal because we have not determined DACE is entitled to an award of attorney fees in the underlying election contest. Instead, on remand, the trial court must determine whether DACE was “successful” and, if so, whether DACE met the other criteria of
Regardless of the outcome of the motion for attorney fees incurred in the election contest, DACE might be able to recover the fees incurred in this appeal on a separate ground. California case law recognizes that when a litigant obtains a published opinion, the published opinion may provide a basis for awarding attorney fees under
DISPOSITION
The order denying the motion for attorney fees is reversed. The trial court is directed to vacate the order and conduct further proceedings on remand that are not inconsistent with this opinion.
Appellant shall recover its costs on appeal.
FRANSON, J.
WE CONCUR:
HILL, P.J.
DETJEN, J.