Bogan v. Houlemard CA6 ( 2015 )

Filed 9/30/15 Bogan v. Houlemard CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JAMES BOGAN, H041246
(Monterey County
Plaintiff and Appellant, Super. Ct. No. M122980)
v.
MICHAEL A. HOULEMARD, JR. et al.,
Defendants;
JASON CAMPBELL,
Real Party in Interest and
Respondent.
I. INTRODUCTION
Real party in interest James Campbell was one of the official proponents of a
proposed initiative being circulated among voters for signature and placement on the
Monterey County ballot. Plaintiff James Bogan filed a petition for writ of mandate in the
trial court seeking to have the proposed initiative rejected for filing and processing by
election officials if and when the initiative was submitted with voters’ signatures.
Campbell was the only party who mounted a defense against Bogan’s mandate petition,
and the trial court ultimately denied the petition. The initiative appeared on the ballot but
was rejected by voters at the November 2013 election. After a judgment was entered
denying Bogan’s mandate petition, Campbell sought attorney’s fees and costs from
Bogan under Code of Civil Procedure section 1021.5.1 The trial court granted the motion
and awarded Campbell attorney’s fees and costs in the amount of $86,909.34.
On appeal from the postjudgment order awarding attorney’s fees, we understand
Bogan to contend that the trial court’s order was insufficient, that the court failed to apply
the proper legal standard in determining whether attorney’s fees should be awarded under
section 1021.5, that Campbell did not meet the statutory criteria for an award of such
fees, and that the fee award was otherwise improper given the circumstances of this case.
For reasons that we will explain, we will affirm the order awarding attorney’s fees.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Campbell’s Proposed Initiative
Campbell’s proposed initiative pertained to Fort Ord, a former military base by
Monterey Bay. (City of Marina v. Board of Trustees of California State University
(2006) 39 Cal.4th 341, 346 (City of Marina).) Upon closure of the base, the land was
transferred to various governmental entities and local organizations. (Ibid.) “To provide
a government for the former base and to manage its transition to civilian use, the
Legislature enacted the Fort Ord Reuse Authority Act (Gov. Code, § 67650 et seq.).”
(City of Marina, supra, at p. 346.) The act authorized the creation of the Fort Ord Reuse
Authority (FORA) and “conferred upon it governmental powers and duties within the
former base . . . . FORA’s general statutory purpose is ‘to plan for, finance, and carry out
the transfer and reuse of the base in a cooperative, coordinated, balanced, and decisive
manner.’ [Citation.]” (Ibid.) “The charter for Fort Ord’s future use and development is
[a] statutorily mandated” reuse plan. (Ibid.) “The plan addresses land use,
transportation, conservation, recreation and capital improvement in Fort Ord . . . .”
1
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
2
(Ibid.) FORA is an election district for purposes of initiative and referendum, and the
voters of FORA are the voters of Monterey County. (Gov. Code, §§ 67655, subd. (a),
67659.)
In April 2013, Campbell and other proponents of the “Protect Fort Ord Open
Space Access Initiative” began circulating a petition among voters for signature and
placement of the initiative on the ballot. The stated purpose of the initiative was to
“modify and enforce sections of the Fort Ord Reuse Plan . . . to protect essential access
points to the recreational areas of Fort Ord and preserve the quality of open space and
habitat in . . . sections of the former military base with significant oak woodlands.”
Bogan was among the proponents of another initiative petition that was also being
circulated among voters. Bogan’s initiative, entitled “California Central Coast Veterans
Cemetery, Open Space Preservation and Economic Revitalization Initiative,” also sought
to amend the Fort Ord reuse plan.
B. Bogan’s Petition for a Writ of Mandate
On May 1, 2013, Bogan filed a petition for writ of mandate against the executive
officer and alleged district elections official of FORA, Michael A. Houlemard, Jr., and
against the Registrar of Voters of Monterey County.2 Bogan named Campbell and other
official proponents of the “Protect Fort Ord Open Space Access Initiative” as real parties
in interest.3 In the petition, Bogan alleged that the proponents of the initiative were
violating the law by “fail[ing] to include the full text of their initiative . . . in their
petition,” which was being circulated among voters for signature and placement on the
ballot. Bogan further alleged that the initiative petition contained “false, misleading,
confusing, and incomplete materials.” Bogan sought a writ of mandate ordering FORA’s
2
Neither Houlemard nor the Registrar of Voters of Monterey County has appeared
in this appeal.
3
The other initiative proponents who were named as real parties in interest are not
parties to this appeal.
3
executive officer and the county registrar of voters to reject the initiative for filing and
processing, if and when the initiative was submitted with voters’ signatures.
At the same time, Bogan also filed an ex parte application for an order shortening
time for hearing on the petition. Campbell opposed the application. After a hearing, the
trial court denied the application for an order shortening time.
FORA’s executive officer, the county registrar of voters, and Campbell each
responded to Bogan’s mandate petition. None of the individuals who were proponents of
the initiative and who were named as real parties in interest in Bogan’s mandate petition,
other than Campbell, made an appearance in the trial court.
Bogan filed a motion for issuance of a peremptory writ of mandate. Campbell
filed written opposition. Campbell contended that a pre-election challenge to an initiative
measure is disfavored, that his initiative petition contained the full text of the proposed
measure to be enacted by voters, and that no additional text was required. The county
registrar of voters filed a “response” to Bogan’s motion, but argued only that the county
did not have control over whether any particular initiative pertaining to FORA should be
placed on the ballot.
C. The Trial Court’s Order Denying Bogan’s Mandate Petition and Judgment
A hearing was held on the matter in June 2013. The trial court heard argument
from Bogan and Campbell about the sufficiency of Campbell’s initiative petition.
FORA’s executive officer took “no position” on the matter, and the county registrar of
voters submitted the matter without argument.
The trial court denied Bogan’s petition for writ of mandate. In a written order
filed in July 2013, the court stated that Campbell’s proposed initiative contained the full
text of all proposed changes to the Fort Ord reuse plan and was not misleading. The
court determined that the proposed initiative contained sufficient information to enable
the average voter to intelligently evaluate it, and that the law did not require the proposed
initiative to contain additional information. The court further determined that
4
“[i]ncluding additional text beyond the changes proposed by the Initiative could mislead
the public regarding the scope of the Initiative,” and that “[i]ncluding provisions of the
Fort Ord Reuse Plan that are not being changed by the Initiative could have unintended
legal consequences if the language is interpreted to be part of the Initiative.” A judgment
denying the petition for writ of mandate was also filed.
Bogan filed a notice of appeal from the judgment. The appeal was dismissed after
Bogan failed to file an opening brief.4 In the meantime, the initiative proposed by
Campbell appeared on the ballot but was rejected by voters at the November 2013
election.
D. Campbell’s Motion for Attorney’s Fees
Campbell filed a motion for attorney’s fees and costs under section 1021.5.5
Campbell argued that he met the criteria for an award of attorney’s fees under the statute
because (1) he was the successful party in an action that resulted in the enforcement of an
important right affecting the public interest; (2) a significant benefit had been conferred
upon the general public or a large class of persons; and (3) the necessity and financial
burden of private enforcement made an award of attorney’s fees appropriate.
In support of his argument, Campbell asserted that he was the successful party in
the action because he was the only party to defend the initiative petition, and he fully
prevailed. He also contended that his defense of the initiative petition enforced the right
4
On our own motion, we take judicial notice of Bogan’s notice of appeal and this
court’s order of dismissal in Bogan v. Houlemard et al. (H040216). (Evid. Code, § 452,
subd. (d)(1).)
5
Section 1021.5 provides in pertinent part: “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.”
5
to initiative, which is an important right of the democratic process. Campbell observed
that, as a result of his defense of the initiative petition, the signatures on the petition were
submitted for verification and the measure qualified for the ballot for a vote in the
November 5, 2013 election. Campbell argued that his defense thus benefitted the
initiative’s supporters as well as county voters who were able to vote on an initiative
concerning a matter of “significant local concern.” He also argued that an award of
attorney’s fees was appropriate because no public entity defended the initiative petition,
and he had no financial interest in the outcome of the litigation.
Campbell initially requested more than $51,000 for attorney’s fees and out-of-
pocket expenses, plus an additional amount for attorney’s fees incurred in preparation of
a reply brief. Campbell provided declarations from counsel in support of the request.
E. Bogan’s Opposition to the Motion for Attorney’s Fees
In opposition to the attorney’s fees motion, Bogan contended, among other
arguments, that Campbell did not satisfy the statutory criteria for an award of private
attorney general’s fees under section 1021.5. According to Bogan, Campbell failed to
establish that he was a successful or prevailing party, and his voluntary participation in
the litigation did not justify a fee award. Bogan further argued that Campbell participated
in the action to protect his own individual interests and concerns, including his
membership in a political organization called “Keep Fort Ord Wild,” rather than to
benefit the public. Bogan also observed that Campbell’s initiative was rejected by voters
in the November 2013 election. Bogan contended that Campbell’s defense of the
initiative did not therefore confer any benefit on the voters and residents in the county, or
on the public and its use and enjoyment of the former Fort Ord site. Bogan also argued
that Campbell failed to demonstrate that he actually had to pay any attorney’s fees or was
otherwise subjected to any financial burden in connection with the litigation. Bogan
further contended that even if Campbell satisfied the statutory requirements for a fee
award, the court should exercise its discretion and deny fees because of the “unique and
6
exceptional facts” in the case, including that Bogan was retired, living on a fixed income,
and had brought the action in an attempt to “better educate the public as to the details
of . . . Campbell’s ballot initiative.”
Subsequent to the filing of Bogan’s opposition to the attorney’s fees motion,
Campbell and Bogan stipulated that Bogan’s “personal status and financial condition
[were] not relevant factors for the Court’s consideration in determining the propriety or
amount of any fee award under Code of Civil Procedure section 1021.5.” Campbell
consequently agreed in the stipulation “not to attempt to engage in any discovery from
[Bogan] . . . in connection with [Campbell’s] motion for attorneys’ fees on the above
factors.”
In a reply in support of his attorney’s fee motion, Campbell continued to assert
that he was entitled to fees under section 1021.5. He also sought additional attorney’s
fees incurred since the filing of the motion, including for time spent by counsel engaging
in “protracted negotiations” with Bogan regarding discovery and factual claims made by
Bogan in his opposition to the fee motion. In total, Campbell sought $86,909.34 in
attorney’s fees and expenses.
F. The May 2014 Order Awarding Attorney’s Fees
A hearing was held on Campbell’s motion for attorney’s fees and costs in
April 2014. After hearing argument, the trial court granted the motion The court stated
that Campbell had “met” the “requirements” for fees. The court indicated that the
“benefit to the public” was the “right to engage in this initiative process, the right to put
these matters on the ballot.” The court found that Campbell had defended the “right to
petition, to put the initiative on the ballot, and to be able to proceed forward with that.”
In a written order filed on May 2, 2014, the trial court stated that Campbell was a
“prevailing party” and had “satisfie[d] the criteria for an award of fees under Code of
Civil Procedure[] section 1021.5, in that [his] defense of the right to petition for a change
in law by initiative enforced important public rights and conferred a significant benefit on
7
the general public in Monterey County. The necessity and financial burden of the private
enforcement of the right to initiative ma[d]e an award of attorneys’ fees and costs
appropr[]iate.” The court further found that the hours and rates claimed by Campbell
were reasonable and appropriate. The court awarded attorney’s fees and costs in the
amount of $86,909.34 as requested.
III. DISCUSSION
A. Sufficiency of the Trial Court’s Order
Bogan first contends that the trial court erred by “failing to make sufficient
findings in support of the fee award, and by failing to cite, consider or rely on any
evidence to support and justify the fee award.” Bogan further contends that the court
“automatically award[ed]” attorney’s fees to Campbell as the prevailing party in a case
involving election materials, without considering whether Campbell had satisfied the
requirements for an award under section 1021.5.
Section 1021.5 states that “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. . . 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.”
A trial court is not required to issue a statement of decision regarding an attorney’s
fee award or to otherwise explain its decision in awarding attorney’s fees. (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1140 (Ketchum); Maria P. v. Riles (1987) 43 Cal.3d 1281,
1294; In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 589 [trial court “not required to
explain its rationale” for an attorney’s fee award]; Gorman v. Tassajara Development
Corp. (2009) 178 Cal.App.4th 44, 101 (Gorman) [“there is no general rule requiring trial
courts to explain their decisions on motions seeking attorney fees”]; see id. at p. 67.)
8
Further, on appeal “ ‘ “[a]ll intendments and presumptions are indulged to support [the
judgment] on matters as to which the record is silent, and error must be affirmatively
shown.” ’ [Citation.]” (Ketchum, supra, at p. 1140.) As a general rule, and in the
absence of evidence to the contrary, “we presume that the trial court has properly
followed established law. [Citations.]” (People v. Diaz (1992) 3 Cal.4th 495, 567;
accord, Gorman, supra, at p. 67; Mejia v. City of Los Angeles (2007) 156 Cal.App.4th
151, 158 (Mejia).) Thus, “[t]he absence of an explanation of a ruling may make it more
difficult for an appellate court to uphold it as reasonable, but we will not presume error
based on such an omission.” (Gorman, supra, at p. 67; see RiverWatch v. County of
San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 776 [trial court’s
ruling will not be disturbed “absent a showing that there is no reasonable basis in the
record for the award”].)
At the hearing on Campbell’s motion for attorney’s fees, the trial court stated that
Campbell had “met” the “requirements” for fees. The court indicated that the “benefit to
the public” was the “right to engage in this initiative process, the right to put these
matters on the ballot.” The court found that Campbell had defended the “right to petition,
to put the initiative on the ballot, and to be able to proceed forward with that.” In its
subsequent written order, the court stated that Campbell had “satisfie[d] the criteria for an
award of fees under Code of Civil Procedure[] section 1021.5, in that [his] defense of the
right to petition for a change in law by initiative enforced important public rights and
conferred a significant benefit on the general public in Monterey County. The necessity
and financial burden of the private enforcement of the right to initiative ma[d]e an award
of attorneys’ fees and costs appropr[]iate.”
Based on the record, it is apparent that the trial court considered the requirements
of section 1021.5 in its determination that Campbell was entitled to an award of
attorney’s fees. The court was not required to provide a more detailed explanation of the
basis for its ruling. Bogan fails to cite to anything in the record, including the trial
9
court’s statements during the hearing on the attorney’s fees motion or the court’s
subsequent written order, that persuades us that the court “automatically award[ed]”
attorney’s fees without considering whether the requirements for an award under
section 1021.5 had been satisfied. We therefore turn to the issue of whether the court
correctly determined that Campbell satisfied the requirements of section 1021.5 and was
entitled to attorney’s fees under the statute.
B. General Legal Principles Regarding Attorney’s Fees under Section 1021.5
“[S]ection 1021.5 is an exception to the general rule in California, commonly
referred to as the American rule . . . , that each party to a lawsuit must ordinarily pay his
or her own attorney fees. [Citation.]” (Adoption of Joshua S. (2008) 42 Cal.4th 945, 954
(Joshua S.).) “A court may award attorney fees under section 1021.5 only if the statute’s
requirements are satisfied.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 250
(Vasquez).) Section 1021.5 authorizes an award attorney’s fees to a “successful party
against one or more opposing parties” if (1) the action “has resulted in the enforcement of
an important right affecting the public interest,” (2) “a significant benefit, whether
pecuniary or nonpecuniary, has been conferred on the general public or a large class of
persons,” and (3) “the necessity and financial burden of private enforcement . . . are such
as to make the award appropriate . . . .” (§ 1021.5; see Serrano v. Stefan Merli Plastering
Co., Inc. (2011) 52 Cal.4th 1018, 1026; Vasquez, supra, at p. 251.)
“Section 1021.5 codifies the courts’ ‘traditional equitable discretion’ concerning
attorney fees [citation], and within the statutory parameters courts retain considerable
discretion. ‘[T]he Legislature has assigned responsibility for awarding fees under
section 1021.5 “not to automatons . . . , but to judges expected and instructed to exercise
‘discretion.’ ” ’ [Citations.] In deciding whether to award fees, the court ‘must
realistically assess the litigation and determine, from a practical perspective, whether or
not the action served to vindicate an important right so as to justify an attorney fee award
under a private attorney general theory.’ [Citation.] A reviewing court ‘will uphold the
10
trial court’s decision to award attorney fees under section 1021.5, unless the court has
abused its discretion.’ [Citation.]” (Vasquez, supra, 45 Cal.4th at p. 251.)
“ ‘[T]he Legislature adopted section 1021.5 as a codification of the “private
attorney general” attorney fee doctrine that had been developed in numerous prior
judicial decisions. . . . [T]he fundamental objective of the private attorney general
doctrine of attorney fees is “ ‘to encourage suits effectuating a strong [public] policy by
awarding substantial attorney’s fees . . . to those who successfully bring such suits and
thereby bring about benefits to a broad class of citizens.’ ” [Citations.] The doctrine
rests upon the recognition that privately initiated lawsuits are often essential to the
effectuation of the fundamental public policies embodied in constitutional or statutory
provisions, and that, without some mechanism authorizing the award of attorney fees,
private actions to enforce such important public policies will as a practical matter
frequently be infeasible.’ [Citation.]” (Conservatorship of Whitley (2010) 50 Cal.4th
1206, 1217-1218 (Whitley), italics omitted.)
Although the California Supreme Court has generally described the private
attorney general attorney fee doctrine, as codified in section 1021.5, in terms of
encouraging the initiation of certain types of lawsuits (see e.g., Whitley, supra, 50 Cal.4th
at pp. 1217-1218), section 1021.5 does not expressly restrict an award of attorney’s fees
to only plaintiffs. Rather, section 1021.5 authorizes an award of attorney’s fees to a
“successful party against one or more opposing parties.” This section “draws no
distinctions between plaintiffs and defendants as a ‘successful party.’ [Citations.]”
(Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768 (Hull).) Further, “a real party in interest
in a mandamus proceeding also is regarded as a party to the litigation” (Mejia, supra,
156 Cal.App.4th at p. 160), and a real party in interest may be entitled to attorney’s fees
under section 1021.5 (Hull, supra, at p. 1765; Wal-Mart Real Estate Business Trust v.
City Council of San Marcos (2005) 132 Cal.App.4th 614, 617, 622 (Wal-Mart)).
11
“The decision as to whether an award of attorney fees is warranted rests initially
with the trial court.” (Baggett v. Gates (1982) 32 Cal.3d 128, 142; accord, Mejia, supra,
156 Cal.App.4th at p. 158.) Generally, “[w]e will uphold the trial court’s decision to
award attorney fees under section 1021.5, unless the court has abused its discretion.
[Citation.]” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 578.)
“[D]iscretion may not be exercised whimsically, and reversal is required where there is
no reasonable basis for the ruling or when the trial court has applied the wrong test to
determine if the statutory requirements were satisfied. [Citations.]” (Flannery v.
California Highway Patrol (1998) 61 Cal.App.4th 629, 634.) “ ‘ “If the trial court has
made no findings, the reviewing court will infer all findings necessary to support the
judgment and then examine the record to see if the findings are based on substantial
evidence.” ’ [Citations.]” (Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1368.) De novo
review is warranted, however, when “ ‘ “the determination of whether the criteria for an
award of attorney fees and costs . . . have been satisfied amounts to statutory construction
and a question of law.” ’ [Citation.]” (Whitley, supra, 50 Cal.4th at p. 1213.)
With these general legal principles in mind, we turn to the issue of whether
attorney’s fees were authorized under section 1021.5 for Campbell’s successful
opposition to Bogan’s petition for writ of mandate, which sought the rejection of
Campbell’s initiative for filing and processing by election officials
C. Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005)
132 Cal.App.4th 614In determining whether, under section 1021.5, Campbell’s opposition to Bogan’s
mandate petition (1) enforced an important right affecting the public interest,
(2) conferred a significant benefit on the general public or a large class of persons, and
(3) “the necessity and financial burden of private enforcement . . . are such as to make the
award appropriate,” we find Wal-Mart instructive because it involved a similar set of
facts.
12
In Wal-Mart, a city decided to allow Wal-Mart to build a store in the city. (Wal-
Mart, supra, 132 Cal.App.4th at p. 618.) Two residents submitted a referendum petition
with signatures to the city, challenging the city’s action and seeking to put the matter to a
vote. (Ibid.)
Wal-Mart filed a petition for writ of mandate against the city and others, including
the two proponents of the referendum as real parties in interest. (Wal-Mart, supra, 132
Cal.App.4th at p. 618.) In a subsequent motion for issuance of the writ of mandate, Wal-
Mart sought to invalidate the referendum petition on the grounds that the referendum
petition “violated the Elections Code by not including the full text of the City’s various
documents implementing the land use change,” some signatures were obtained by people
not registered to vote, and the city’s actions were not subject to referendum. (Ibid.) The
city did not oppose the petition or motion, but filed a response in which they sought
“guidance” on the proper verification of petition signatures. (Ibid.)
The proponents of the referendum opposed Wal-Mart’s petition and motion. They
argued that a pre-ballot challenge to a referendum was disruptive of the electoral process,
and that Wal-Mart’s challenge should not be permitted because there was no compelling
showing that the substantive provisions of the referendum were invalid. The trial court
agreed that it was more appropriate to review challenges to the measure after an election,
absent a clear showing of invalidity. The trial court accordingly denied Wal-Mart’s
motion and dismissed its petition without prejudice. At the subsequent election, city
voters approved the referendum. (Wal-Mart, supra, 132 Cal.App.4th at p. 619.)
The referendum proponents sought attorney’s fees under section 1021.5, but the
trial court denied the motion. (Wal-Mart, supra, 132 Cal.App.4th at p. 619.) The
appellate court reversed. The appellate court first determined that the referendum
proponents, who were real parties in interest, were “successful” parties within the
meaning of section 1021.5. The appellate court observed that Wal-Mart in bringing its
petition “sought to keep the referendum off the ballot,” while the proponents “sought
13
dismissal of the petition to allow a vote on the City’s action to proceed, and that is
precisely the relief they obtained.” (Wal-Mart, supra, at p. 621.)
The appellate court also determined that the referendum proponents’ conduct
“ ‘resulted in the enforcement of an important right affecting the public interest’ ” and
conferred “ ‘a significant benefit’ ” on a large class of persons within the meaning of
section 1021.5. (Wal-Mart, supra, 132 Cal.App.4th at p. 622.) The appellate court
observed that “the ‘state constitutional right of initiative or referendum is “one of the
most precious rights of our democratic process.” [Citation.] These powers are reserved
to the people, not granted to them. Thus, it is our duty to “ ‘ “jealously guard” ’ ” these
powers and construe the relevant constitutional provisions liberally in favor of the
people’s right to exercise the powers of initiative and referendum.’ [Citation.]” (Id. at
pp. 622-623; accord, Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1168.)
The appellate court determined that “[t]he electorate’s constitutional right to a
referendum vote is . . . an important right under section 1021.5, and [the referendum
proponents’] opposition to Wal-Mart’s petition to thwart the vote, or at least delay it,
protected the rights of thousands of registered voters to proceed in accordance with state
law.” (Wal-Mart, supra, at p. 623; see Lindelli v. Town of San Anselmo (2006) 139
Cal.App.4th 1499, 1517 [recognizing importance of referendum power and associated
rights in determining that petitioners were entitled to section 1021.5 fees]; Joshua S.,
supra, 42 Cal.4th at p. 957, fn. 4 [noting that “election law litigation inherently implicates
public rights”].) The appellate court further determined that private enforcement of the
referendum power by the proponents of the referendum was a necessity within the
meaning of section 1021.5, because the city did not oppose Wal-Mart’s petition and the
trial court relied on the referendum proponents’ arguments in ruling against Wal-Mart.
(Wal-Mart, supra, at pp. 623-624.)
14
D. Application of Section 1021.5 in This Case
In this case, Bogan in his petition and motion for writ of mandate sought to have
Campbell’s initiative “reject[ed] . . . for filing and processing” by election officials, and
to ultimately prevent the initiative from “appear[ing] in the Monterey County voter
information pamphlet and on the Monterey County ballot.” Bogan contended that the
initiative petition did not include the full text of the initiative as required by law, and that
the petition contained false, misleading, confusing, and incomplete materials. In
opposition, Campbell contended that no additional text was required in the initiative
petition, and that Bogan’s motion for writ of mandate should be denied so that the
initiative could be included on the ballot if it qualified. The trial court determined that
the law did not require the initiative to contain additional information and that it was not
misleading. The court concluded that “the requested writ of mandate will not issue, so
that the signatures on the petition may be verified and the measure placed on the ballot if
it so qualifies.”
The measure proposed by Campbell involved the “ ‘ “precious” ’ ” constitutional
right of initiative. (Wal-Mart, supra, 132 Cal.App.4th at p. 622.) Similar to Wal-Mart,
Bogan’s petition for writ of mandate sought to keep the measure “off the ballot,” while
Campbell sought “to allow a vote” and “that is precisely the relief [Campbell] obtained.”
(Id. at p. 621.) Campbell’s opposition to Bogan’s “petition to thwart the vote, or at least
delay it,” thus “protected the rights of [a large class] of registered voters to proceed in
accordance with state law.” (Id. at p. 623.) Accordingly, Campbell’s defense of the
initiative “resulted in the enforcement of an important right affecting the public interest”
and conferred “a significant benefit” on a large class of persons within the meaning of
section 1021.5. (See Wal-Mart, supra, at p. 622.) Further, the trial court’s denial of
Bogan’s petition and motion was based on arguments raised only by Campbell, and
attorney’s fees were incurred in Campbell’s defense. Thus, “the necessity and financial
15
burden of private enforcement” were “such as to make the award [of attorney’s fees]
appropriate. ” (§ 1021.5.)
Bogan contends that the trial court erred in awarding attorney’s fees against him,
including on the ground that Wal-Mart is distinguishable. We are not persuaded by
Bogan’s arguments.
First, Bogan suggests that a defendant or real party in interest may not be awarded
attorney’s fees against an individual plaintiff under section 1021.5. As we have
explained, section 1021.5 does not distinguish between plaintiffs and defendants, and real
parties in interest may be entitled to attorney’s fees under that section. (Hull, supra,
13 Cal.App.4th at p. 1768; Wal-Mart, supra, 132 Cal.App.4th at pp. 617, 622.) Further,
it is an “incontrovertible proposition that section 1021.5 fees may be sought in the
appropriate case not only against governmental entities and corporations but also against
private individuals. (See, e.g., Planned Parenthood v. Aakhus[ (1993) ]14 Cal.App.4th
162 [antiabortion protestors violating privacy rights of clinic patrons assessed § 1021.5
fees].)” (Joshua S., supra, 42 Cal.4th at p. 958.)
Second, Bogan contends that Campbell’s defense did not involve “the
enforcement of an important right affecting the public interest.” (§ 1021.5.) According
to Bogan, he sought to challenge the proposed initiative early during the signature-
gathering process rather than after the petition had been submitted to the registrar of
voters for signature verification as in Wal-Mart (see Wal-Mart, supra, 132 Cal.App.4th
at p. 618), and therefore he cannot be deemed to have been seeking to “thwart the vote”
(id. at p. 623) or otherwise infringing the right of voters.
In his mandate petition, however, Bogan sought a writ of mandate ordering
Campbell’s initiative “reject[ed] . . . for filing and processing, if and when it [was]
submitted with voters’ signatures.” According to the mandate petition, Bogan sought the
writ to avoid “irreparable harm” from occurring “in that [Campbell’s] . . . initiative, if
found to have a sufficient number of valid signatures, will appear in the Monterey County
16
voter information pamphlet and on the Monterey County ballot.” Thus, regardless of
when Bogan filed his mandate petition, it is apparent that his mandate petition sought to
prevent Campbell’s proposed initiative, in the form that was then being circulated for
signature, from appearing on the ballot. Under the circumstances, Bogan’s mandate
petition could reasonably be construed as a “petition to thwart the vote, or at least delay
it” (Wal-Mart, supra, 132 Cal.App.4th at p. 623), and otherwise “adversely affect[ing]
the public interest by preventing the [county’s] electorate from exercising its power of
[initiative]” (Joshua S., supra, 42 Cal.4th at p. 957).
Third, we disagree with Bogan’s contention that Campbell’s defense “only
benefitted himself, and presumably his small group of supporters,” rather than “the
general public or a large class of persons” as required by section 1021.5. If Bogan’s
mandate petition had been successful, Campbell’s initiative would not have been placed
on the ballot. Campbell’s defense of the initiative thus prevented Bogan from
“thwart[ing]” a vote on the initiative by Monterey County voters (Wal-Mart, supra,
132 Cal.App.4th at p. 623), “protected the rights of [a large class] of registered voters to
proceed in accordance with state law” (ibid.), and otherwise prevented Bogan from
“adversely affect[ing] the public interest by preventing the [county’s] electorate from
exercising its power of [initiative]” (Joshua S., supra, 42 Cal.4th at p. 957).
Fourth, Bogan asserts that Campbell failed to demonstrate that “the necessity and
financial burden of private enforcement . . . are such as to make the award appropriate.”
(§ 1021.5.) In particular, Bogan contends that there is no evidence Campbell had to pay
attorney’s fees to defend the initiative, and that his motive in pursuing the defense was to
benefit his own personal interests rather than the interests of the public.
“[T]he necessity and financial burden requirement ‘ “really examines two issues:
whether private enforcement was necessary and whether the financial burden of private
enforcement warrants subsidizing the successful party’s attorneys.” ’ [Citations.] The
‘necessity’ of private enforcement ‘ “ ‘ “looks to the adequacy of public enforcement and
17
seeks economic equalization of representation in cases where private enforcement is
necessary.” ’ [Citations.]” ’ [Citation.]” (Whitley, supra, 50 Cal.4th at pp. 1214-1215.)
Relevant here, “[t]he second prong of the inquiry addresses the ‘financial burden
of private enforcement.’ In determining the financial burden on litigants, courts have
quite logically focused not only on the costs of the litigation but also any offsetting
financial benefits that the litigation yields or reasonably could have been expected to
yield. ‘ “An award on the ‘private attorney general’ theory is appropriate when the cost
of the claimant’s legal victory transcends his personal interest, that is, when the necessity
for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his
individual stake in the matter.’ [Citation.]” ’ [Citation.] ‘This requirement focuses on
the financial burdens and incentives involved in bringing the lawsuit.’ [Citation.]”
(Whitley, supra, 50 Cal.4th at p. 1215.) In weighing the financial burdens and incentives
involved in litigating the suit, the court must determine “ ‘whether it is desirable to offer
the bounty of a court-awarded fee in order to encourage litigation of the sort involved in
this case.’ ” (Id. at p. 1216.)
Regarding the “financial burden of private enforcement” (§ 1021.5), Bogan
contends that Campbell failed to establish that he actually had to pay any attorney’s fees,
or that he otherwise incurred any liability for fees and costs in this action. However,
“[s]ection 1021.5 does not specifically require a plaintiff to bear his own fees. It simply
speaks of the ‘financial burden of private enforcement.’ [Citation.]” (Otto v. Los
Angeles Unified School Dist. (2003) 106 Cal.App.4th 328, 333.) Attorney’s fees may be
awarded “even if the attorney has performed services pro bono . . . and regardless of
whether the plaintiff is represented by private or nonprofit counsel. [Citation.]”
(Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852,
873; see Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 683.)
Bogan cites Torres v. City of Montebello (2015) 234 Cal.App.4th 382 (Torres), for
the proposition that a litigant must bear a financial burden in order to receive an award of
18
section 1021.5 fees. In Torres, the plaintiff obtained a court determination that the city’s
exclusive waste hauling contract with the company Athens was void. (Torres, supra, at
pp. 388-389.) The trial court nevertheless determined that the plaintiff was not entitled to
section 1021.5 fees because his attorney’s fees “had been paid entirely by an organization
of Athens’s waste hauling competitors” and thus the plaintiff “bore no financial burden in
litigating the case.” (Id. at p. 389.)
In particular, the trial court found that the plaintiff’s attorney had told the plaintiff
that “ ‘he needed to go to [the organization of Athens’s trash hauling competitors],’ and
once he obtained an agreement from the [organization] to pay the attorney fees, ‘[t]hey
“took over” ’ and ‘[t]hey paid for all of it.’ ” (Torres, supra, 234 Cal.App.4th at pp. 405-
406.) Under the circumstances, the trial court found that the plaintiff was “ ‘not a
[litigant] who wished to pursue a lawsuit, found an attorney, and then also found a
collateral source of funding for his attorneys’ fees.’ On the contrary, the [trial] court
found, ‘this lawsuit would not have been filed without [the organization’s] agreement to
pay [the plaintiff’s] attorneys’ fees.’ ” (Id. at p. 406.)
The appellate court determined that the trial court did not abuse its discretion in
denying attorney’s fees to the plaintiff. (Torres, supra, 234 Cal.App.4th at pp. 389, 408.)
The appellate court explained that Athens’s competitors who were part of the
organization could have brought their own suit challenging the contract. “Had these
competitors succeeded in establishing that their actual costs of litigation transcended their
expected monetary benefit, they would have been entitled to attorney fees under Code of
Civil Procedure section 1021.5. But these same competitors cannot obscure their
financial interest in the litigation by choosing to fund [the plaintiff], who bore no
‘financial burden’ in bringing this case (Code Civ. Proc., § 1021.5), then claim, in [the
plaintiff’s] name, a right to reimbursement for their attorney fees under the private
attorney general statute. [Citation.]” (Torres, supra, at p. 408.)
19
In this case, there is no evidence that Campbell was involved in the litigation
based on a third party’s agreement to pay his attorney’s fees. Rather, Campbell was
named in Bogan’s mandate petition as a real party in interest. After being named,
Campbell and other proponents of the initiative retained counsel to assist in the litigation,
according to a declaration Campbell filed in the trial court. Campbell’s counsel filed a
declaration in the trial court detailing the attorney’s fees and expenses incurred in
defending the initiative. Under the circumstances, there was a “financial burden of
private enforcement” within the meaning of section 1021.5 with respect to Campbell’s
defense of the initiative.
Regarding the purported “offsetting financial benefits” to Campbell (Whitley,
supra, 50 Cal.4th at p. 1215), Bogan contends that Campbell’s motive in defending the
initiative was to benefit his own personal interests rather than the interests of the public.
Bogan does not, however, cite any evidence in the record reflecting a financial benefit
that the litigation yielded or reasonably could have expected to yield to Campbell. (Ibid.)
Bogan asserts, without proper evidentiary support, that Campbell was a member of
political organization called “Keep Fort Ord Wild.” Bogan does not explain how the
litigation could have yielded financial benefits to Campbell in view of this purported
political membership.
Bogan also points to Campbell’s references in the trial court to the free speech
rights of the initiative proponents and to the initiative being Campbell’s initiative. From
this, Bogan asserts that Campbell defended this action to protect his own rights rather
than the interests of the public. However, “section 1021.5 focuses not on plaintiffs’
abstract personal stake, but on the financial incentives and burdens related to bringing
suit.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321, fn. 11, italics added; see
ibid. [“That plaintiffs’ personal interests in the outcome of the oil profits initiative were
sufficient to induce them to bring this action is irrelevant”]; Washburn v. City of Berkeley
(1987) 195 Cal.App.3d 578, 585 (Washburn).) Assuming Campbell had these general
20
interests concerning free speech rights and the subject matter of the initiative, “a litigant’s
personal nonpecuniary motives may not be used to disqualify that litigant from obtaining
fees under Code of Civil Procedure section 1021.5.” (Whitley, supra, 50 Cal.4th at
p. 1211.) In sum, “where the decision results in a substantial benefit to the public, and
where the [party seeking fees has] no pecuniary interest in the outcome of the litigation,
as in this case, the financial burden is such that a fee award is proper. [Citation.]”
(Washburn, supra, at pp. 585-586.)
Fifth, Bogan appears to alternatively assert that Campbell did not have a direct
interest in the litigation. From this implicit contention, Bogan argues that Campbell’s
“lead role” in the litigation was an insufficient basis to award fees. (See Connerly v.
State Personnel Bd. (2006) 37 Cal.4th 1169, 1181 (Connerly) [active participation in
litigation, without a direct interest in the litigation, is an insufficient basis to award
section 1021.5 fees, and thus such fees may not be awarded against amicus curiae who
“acted in many respects as lead counsel”].) Bogan’s mandate petition challenged an
initiative petition, of which Campbell was one of the official proponents, and Bogan
named Campbell as one of the real parties in interest. “[A] real party in interest in a
mandamus proceeding . . . is regarded as a party to the litigation.” (Mejia, supra, 156
Cal.App.4th at p. 160.) Further, a real party in interest “ ‘has been generally defined as
“any person or entity whose interest will be directly affected by the proceeding . . . .” ’ ”
(Connerly, supra, at p. 1178.) Bogan fails to provide a reasoned argument or cite
authority to support a conclusion that Campbell did not have a sufficient interest in the
litigation for purposes of a section 1021.5 fee award.
Sixth, Bogan contends that section 1021.5 fees have been awarded to successful
defendants only in certain situations, and that a fee award in this case is unjust (see
Serrano v. Unruh (1982) 32 Cal.3d 621, 639). He argues that the limited situations in
which successful defendants have been awarded fees do not encompass this case, in
which he “sought to benefit the public, and specifically the voters of Monterey County,”
21
with his mandate petition “by ensuring that they would have sufficient and accurate
information about [the] proposed amendments to the Fort Ord ‘Reuse Plan’ when they
reviewed [the] proposed ballot initiative.”
We observe that, on the merits of Bogan’s mandate petition, the trial court
rejected the contention that Campbell’s initiative petition contained insufficient or
inaccurate information. Further, “courts do not balance the relative benefits conferred
by the opposing parties’ positions; they ask only whether the successful party’s action
has conferred a significant benefit on the general public or a large class of persons.
[Citation.]” (Environmental Protection Information Center v. Department of Forestry &
Fire Protection (2010) 190 Cal.App.4th 217, 232.)
Moreover, regarding Bogan’s motivation in bringing the mandate petition, good
faith is not a defense to an award of attorney’s fees under section 1021.5, and bad faith is
not a requirement in order for such fees to be awarded against a party. (Mejia, supra,
156 Cal.App.4th at pp. 161, 162; Citizens Against Rent Control v. City of Berkeley (1986)
181 Cal.App.3d 213, 231-232 (Citizens Against Rent Control).) The California Supreme
Court has explained that “the party against whom such fees are awarded must have done
or failed to do something, in good faith or not, that compromised public rights.”
(Joshua S., supra, 42 Cal.4th at p. 958.) “ ‘[G]enerally speaking, the opposing party
liable for attorney fees under section 1021.5 has been the defendant person or agency
sued, which is responsible for initiating and maintaining actions or policies that are
deemed harmful to the public interest and that gave rise to the litigation.’ ” (Joshua S.,
supra, at p. 956, italics omitted, quoting Connerly, supra, 37 Cal.4th at pp. 1176-1177.)
The California Supreme Court cautioned, however, that “[t]his is not to say that a
party cannot be held liable for section 1021.5 attorney fees for engaging in litigation.
When a party initiates litigation that is determined to be detrimental to the public interest,
attorney fees have been imposed.” (Joshua S., supra, 42 Cal.4th at p. 957, italics added.)
As an example, the California Supreme Court cited Wal-Mart, explaining that “Wal-Mart
22
attacked on technical grounds a referendum that was to decide whether it could locate
within the city . . . . Wal-Mart thus sought a judgment that would adversely affect the
public interest by preventing the city’s electorate from exercising its power of
referendum.” (Ibid., italics omitted.) Similarly, as we have explained, Bogan challenged
Campbell’s initiative petition and sought a judgment to prevent the county’s electorate
from exercising its power of initiative.
We are also not persuaded by Bogan’s argument that an award of section 1021.5
fees against him is precluded because it will purportedly have a “ ‘chilling effect’ on the
public and limit future public interest lawsuits.” “The purpose and primary effect of
Code of Civil Procedure section 1021.5 is to encourage litigation that enforces important
public policies . . . . The purpose of an award of fees against an unsuccessful opposing
party is not to penalize petitioning activity by that party, but to encourage litigation by
the successful party by making the litigation financially feasible.” (Mejia, supra, 156
Cal.App.4th at p. 163.) Where the statutory criteria and the legislative intent of the
statute are satisfied, an attorney’s fee award under section 1021.5 is proper. (See
Joshua S., supra, 42 Cal.4th at p. 958.) Bogan fails to cite legal authority supporting the
proposition that a concern about the “chilling effect” of a fee award may form a basis for
denying a section 1021.5 fee award. As one appellate court has stated, “It is the
Legislature’s business—not ours—to rewrite the statutory criteria.” (Citizens Against
Rent Control, supra, 181 Cal.App.3d at p. 232, fn. omitted.)
IV. DISPOSITION
The May 2, 2014 order awarding attorney’s fees and costs is affirmed.
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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P. J.
WE CONCUR:
__________________________
MIHARA, J.
__________________________
GROVER, J.
Bogan v. Houlemard
H041246