Trial Court Improperly Struck Attorney’s Fees Prayer Where Complaint Demonstrated That Plaintiff Was The Catalyst For A Municipal Change In Position.

Complaint Resulting In Governmental Changes Suggested Basis for Fee Award Under CCP section 1021.5.

            In our May 21, 2008 post, we explored Camenisch v. Superior Court, 44 Cal.App.4^th 1689, 1698 (1996), which cautions against striking attorney’s fees prayer requests at the pleading stage unless a full opportunity for discovery has occurred.  A recent First District, Division Two unpublished decision also follows this logic in reversing a trial court’s striking of a request where a plaintiff’s tax refund lawsuit had already resulted in a change of position by the City of Rohnert Park.

            Stutrud v. City of Rohnert Park, Case No. A118408 (1^st Dist., Div. 2 Sept. 25, 2008) (unpublished) involved a tax refund lawsuit where the trial court struck a prayer for attorney’s fees without any explanation.  The Court of Appeal reversed that determination as involving an issue that may not be resolved at the pleading stage.  Rather, plaintiff’s lawsuit forced the City to accept that the sewer fees were subject to Proposition 218 and to reenact the fees following the procedures established by Proposition 218.  City even admitted that the need for passage of a new ordinance was due to plaintiff’s victory in a prior appeal.  Citing Tipton-Whittingham v. City of Los Angeles, 34 Cal.4^th 604 (2004) and Graham v. DaimlerChrysler Corp., 34 Cal.4^th 553 (2004), the appellate panel reasoned:  “Compelling a recalcitrant municipality to comply with a constitutional provision cannot be dismissed as a negligible benefit to the citizens of Rohnert Park.  Thus, it is hardly an outlandish notion to believe that [plaintiff’s] lawsuit was the catalyst for the City’s change of position and that he may be entitled to fees for his past efforts.”  The predicate, of course, would be Code of Civil Procedure section 1021.5, the private attorney general statute authorizing an award of fees to a successful party enforcing “an important right affecting the public interest.”

            This case cautions that attorney’s fees prayer “strikes” should not be done lightly, especially where the record shows a very plausible basis for fee entitlement.