Metropolitan News-Enterprise


Tuesday, May 19, 2020


Page 1


Court of Appeal:

Judge Erred in Conditioning Intervention On Waiving CCP §1021.5 Attorney Fees


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal, in a case of first impression, yesterday reversed an order permitting news media outfits and the American Civil Liberties Union to intervene in litigation brought by eight police officer associations challenging Public Records Act requests, but only on the condition that they waive any entitlement to attorney fees if they prevailed.

The issue arises from a writ action in which the police officer associations (“POAs”) were contesting the retroactive application of 2019 legislation which broadens the availability of officers’ records in response to Public Records Act (PRA) requests. Granting leave to intervene was compulsory under Code of Civil Procedure §387, Justice William S. Dato wrote, because there were pending requests for such records by the would-be interveners.

The purposes of the private attorney general statute, Code of Civil Procedure §1021.5, are thwarted by orders—such as that of San Diego Superior Court Judge Eddie C. Sturgeon—conditioning the right of intervention on waiving attorney fees, awardable under that provision.

Judge’s Statement

Sturgeon told the media outfits:

“The issue of attorney fees, it’s a big issue because I have the police officers association, and I’ve got all of you in here. In this court’s humble opinion, I think it’s best to strike the attorney’s fees. If you want to file your motion in intervention, strike the attorney fees. You could say, hold on, Judge, we don’t like that. You can file your own separate lawsuit. That’s up to you to make that choice. I will leave it to you. I’ll give you my opinion. I think it’s best to get this thing done on March 1, one way or the other. I’m going to leave that up to you. If you want to intervene, strike the attorney fees provision.”

The news media concerns and the ACLU dropped their requests for attorney fees and they were allowed to intervene. Their positions prevailed, and they sought attorney fees.

Dato’s Analysis

“This case presents a matter of first impression in California: can a trial court condition leave to intervene on a nonparty agreeing to forgo its request for statutory attorney’s fees?” Dato said, answering:

“[U]nder the circumstances presented, the trial court could not.”

He explained:

“A trial court may place reasonable conditions on a nonparty’s intervention under section 387, consistent with its inherent authority to ensure efficient case management. Conditions may be placed both on permissive interveners and interveners of right. Where intervention is of right, however, a court has less leeway to limit a nonparty’s participation….Although restrictions of a ‘housekeeping’ nature may be allowed—e.g., to avoid unnecessary duplication—these limitations may not impair an intervener of right from presenting its interest in the same manner as an original party.”

Dato went on to say:

“Given the weighty policy considerations that motivated the enactment of section 1021.5, we struggle to see how a court could reasonably condition even permissive intervention on entirely forgoing private attorney general fees. The interests served by this type of attorney’s fee award—the desire to further litigation in the public interest—appear unrelated to whether a litigant intervenes permissively or as of right. And whether intervention is permissive or compulsory, telling interveners they must file a separate lawsuit to seek attorney’s fees under section 1021.5 would seem to interfere with the salutary objectives of intervention—i.e., avoiding delay and a multiplicity of suits….

“In any event, we need not resolve the broader question. A court has less discretion to restrict participation of by intervener of right, and the ACLU and Media interveners qualify for such intervention. It was an abuse of discretion to condition participation by interveners of right on forgoing their otherwise appropriate requests for statutory attorney’s fees against the POAs under section 1021.5. We therefore reverse the order imposing that condition for intervention.”

The case is Carlsbad Police Officers Assn. v. City of Carlsbad, D075723.


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