Tuesday, November 9, 2010
Personal Stake Not Bar to Private Attorney General Fees—S.C.
By a MetNews Staff Writer
The California Supreme Court yesterday clarified that a litigant’s personal incentive for pursuing a public interest action will not necessarily foreclose that party from recovering attorney fees.
Writing for the unanimous court, Justice Carlos R. Moreno explained the purpose of Code of Civil Procedure Sec.1021.5’s fee award to a prevailing party acting as a private attorney general “is not to compensate with attorney fees only those litigants who have altruistic or lofty motives, but rather all litigants…who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms.”
Moreno opined that the literal language of Sec. 1021.5’s requirement that courts consider “the necessity and financial burden of private enforcement” when determining eligibility for attorney fees indicated the Legislature was concerned with “the problem of affordability of such lawsuits,” not a party’s subjective reasons for pursuing the litigation.
“As a logical matter, a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears,” he wrote. “Only offsetting pecuniary gains can do that.”
The issue was placed before the court in Conservatorship of Whitley, 10 S.O.S. 6260, in which Victoria Maldonado sought to recover attorney fees for the lawsuit she filed, acting as conservator for her developmentally disabled brother, challenging his transfer to a smaller care facility.
Maldonado secured a ruling from the appellate court establishing that the Lanterman Developmental Disabilities Services Act’s hearing procedures are the exclusive remedy for actions by legal representatives, such as Maldonado, asserting an objection to a community placement decision.
Following the appellate court’s ruling, Maldonado moved for an award of $177,997 in attorney fees, contending the underlying case “created a procedural precedent that …conferred a significant benefit on the public and a large class of persons” which “transcended her personal interest in [her brother’s] welfare.”
The trial court denied the fee request, finding the financial burden imposed on Maldonado was not out of proportion to her personal interest in blocking her brother’s transfer.
Maldonado appealed, contending that Sec. 1021.5’s requirement that fees be awarded only when the “necessity and financial burden of private enforcement…make the award appropriate” means that litigants are not eligible for attorney fees only when they have an individual pecuniary stake in the litigation.
The First District Court of Appeal Div. Four disagreed, opining that litigants may be disqualified if they have a strong personal, nonpecuniary interest, based on Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961 and its progeny.
Moreno, however, reasoned that the “inquiry suggested by the Williams line of cases is whether this is the type of interest that is so strong that no other incentive would be needed to pursue the litigation,” which is “inherently speculative and lacking in objective criteria.”
This approach also “entirely ignores the central problem that section 1021.5 seeks to address: the inherent unaffordability of legal services for public interest cases yielding primarily nonpecuniary benefits,” he said.
Although Moreno acknowledged that “objective financial incentives and subjective motives may overlap, and indeed sometimes may be indistinguishable,” he concluded “it is clear from the language and purpose of [Sec. 1021.5] that only the former is the proper subject of the court’s inquiry when assessing the financial burden of litigation.”
Moreno directed the matter remanded since the appellate court had not addressed whether Maldonado’s private attorney general action had conferred a substantial benefit. He added that if the court determines Maldonado is entitled to recover her attorney fees, the award could legitimately be restricted to compensate her only for the efforts that furthered the litigation of issues of public importance.
The case is Conservatorship of Whitley, 10 S.O.S. 6260.
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