Metropolitan News-Enterprise


Thursday, June 2, 2016


Page 1


No Fees for Man Who Established City’s Breach—C.A.

Motorist Who Ran Red Light and Convinced High Court That Proper Warning Had Not Been Given Prior to Installing Camera Loses Bid to Have Appeal of Fee-Denial Reinstated


By a MetNews Staff Writer


A man who contested a ticket for going through a red light in Culver City—and wound up persuading the California Supreme Court that the city was in violation of statute by not providing a warning 30 days prior to installing each camera that recorded infractions such as his—will not be awarded attorney fees, under a ruling yesterday by the Court of Appeal for this district.

The opinion, by Justice Luis Lavin of Div. Three, denies writ relief to Steven Edward Gray, who contested the Court of Appeal’s dismissal of his appeal from the order by Los Angeles Superior Court Judge James Hahn denying him attorney fees.

Denial of such fees, sought under the private attorney general statute, was not appealable, Lavin said.

‘Substantial Rights’

Penal Code §1466 (b)(2) permits a defendant in an infraction case to appeal “any order made after judgment affecting his or her substantial rights,” Lavin said, but declared that “the order does not affect Gray’s substantial rights.”

He explained:

“It is plain that a defendant’s ‘substantial rights’ include personal liberty interests….In addition, a criminal defendant’s obligation to pay victim restitution for losses caused by the defendant’s criminal conduct (Cal. Const., Art. I, § 28(b)(13)(A), (B); § 1202.4) has been said to affect the defendant’s substantial rights….

“By contrast, courts generally do not find a defendant’s substantial rights are implicated when a postjudgment order merely deprives the defendant of personal property.”

Appellate Division’s Discretion

Gray also argued that if the order denying attorney fees was nonappealable, the Appellate Division should have treated his appeal as a writ petition. Rejecting the contention, Lavin said:

“In the proceedings before the Appellate Division, Gray failed to articulate any unusual circumstance which would support a decision to treat his appeal as a writ petition.  But given that Gray presented a colorable argument as to why a criminal defendant in an infraction case might, in some limited circumstances, be entitled to attorney’s fees under the private attorney general statute, the Appellate Division would have acted within the bounds of its discretion if it had decided to treat Gray’s defective appeal as a petition for extraordinary relief.  However, on this record—and particularly where Gray failed to offer the Appellate Division any compelling argument on point—we cannot say the Appellate Division abused its discretion by refusing to do so.”

 Vehicle Code Section

Gray—who ran a red light at Washington Boulevard and Helms Avenue on Nov. 21, 2008—sought reimbursement of fees he has expended on lawyers in establishing that Vehicle Code §21455.5 requires a public announcement at least 30 days before switching on a red light camera, and issuing only warnings for 30 days after that. The city contended it was bound by the notice requirements only in connection with installation of its first camera, two years earlier.

The high court on March 13, 2014, sided with Gray as to the city’s duty, contradicting Div. Three—but affirmed its decision upholding Gray’s conviction.

Yesterday’s decision comes in Gray v. Superior Court, People RPI, 2016 S.O.S. 2719.

Sherman M. Ellison joined with Robert Cooper of Wilson, Elser, Moskowitz, Edelman & Dicker in representing Gray. There were five amicus curiae briefs in support of his stance.

William Litvak and Caroline K. Castillo of Dapeer, Rosenblit & Litvak argued for the People.


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