Metropolitan News-Enterprise


Tuesday, May 5, 2009


Page 1


C.A. Allows Recovery of Attorney Fees Against Amicus Curiae


By STEVEN M. ELLIS, Staff Writer


A man who sued a county for billing individuals over the cost of arrests for driving under the influence when there was no emergency can recover attorneys’ fees for opposing the county’s amicus curiae brief in a related case, the Sixth District Court of Appeals ruled yesterday.

Remanding for a determination of the appropriate award, the court rejected a trial court’s conclusion that Santa Clara County’s status as an amicus in the other case, rather than a party, precluded recovery for work in opposition to the county’s brief.

Martin Ramon brought a class action in the Santa Clara Superior Court to prevent the county from billing individuals for the cost of their arrests for driving under the influence of alcohol or drugs under Government Code Sec. 53150 when there was no emergency “incident” as the term is used in the statute.

Ramon had been part of a similar class action against a number of government entities pending before the Alameda Superior Court, but brought the action in Santa Clara Superior Court when the first action was dismissed as to defendants not situated in Alameda County.

When Santa Clara County filed its answer, Santa Clara Superior Court Judge Kevin E. McKenney stayed the proceedings pending a determination in the similar case of California Highway Patrol v. Superior Court (Allende) (2006) 135 Cal.App.4th 488.

Brief Filed

The county and the League of California Cities filed an amicus brief in Allende arguing that emergency response costs were recoverable even when there had been no incident requiring an emergency response, and Ramon’s attorneys filed an opposition to the amicus brief.

Div. Three of the First District Court of Appeal ultimately ruled in Allende that Sec. 53150 allows government agencies to recover emergency response costs caused by drunk and drugged drivers, including the expense of conducting field sobriety tests and making arrests.

But the court, in an opinion Justice Stuart R. Pollak, rejected the county’s position that a mere driving under the influence arrest constituted an “incident,” and Ramon and the county subsequently entered a settlement agreement that provided injunctive and declaratory relief to the class.

Under the agreement, the county agreed to end its practice of billing “emergency response” costs to persons arrested for driving under the influence where there had been no “incident resulting in an appropriate emergency response” as used in Sec. 53150, and to pay “reasonable…attorney fees” plus $1,000 in costs and $1,000 to Ramon.

Ramon then sought attorneys’ fees for all three actions under Code of Civil Procedure Sec. 1021.5, but McKenney awarded him only $173,414.10 in fees for the Alameda Superior Court and Santa Clara Superior Court cases, and declined to award $81,539.10 Ramon had incurred opposing the amicus brief in the Allende case.

Citing the California Supreme Court’s opinion in Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, McKenney reasoned that, “[t]raditionally, amici curiae have not been considered parties liable for attorney’s fees.”

‘Opposing Parties’

In Connerly, the plaintiff successfully sued six state agencies challenging the constitutionality of several statutes that provided governmental preferential treatment based on race, sex, and other categories. The defense of the statutes was left mostly to various advocacy groups who supported affirmative action, and the California Supreme Court ruled that the advocacy groups could not be “opposing parties” from whom attorneys’ fees could be recovered because they had no responsibility for the enactment or enforcement of the statutes in question.

But Justice Nathan D. Mihara wrote on Ramon’s appeal that Connerly was not controlling, even though Santa Clara County did not have a direct interest in the litigation, because the county advocated the same interpretation of Government Code Sec. 51350 in Allende as it did in the superior court action.

He explained:

“Here, the County inserted its controversy with Ramon into the Allende case, and thus the legal services incurred by Ramon’s counsel in Allende in response to the County’s amicus brief were useful and necessary, and directly contributed to the settlement of the present action.”

In an unpublished portion of the opinion, Mihara also concluded that McKenney had not erred in awarding Ramon attorneys fees in the Alameda Superior Court action.

Justices Richard J. McAdams and Wendy Clark Duffy joined Mihara in his opinion.

The case is Ramon v. County of Santa Clara, 09 S.O.S. 2542.


Copyright 2009, Metropolitan News Company