Private Attorney General Statute: Third District Affirms Denial Of Attorney’s Fees To Attorneys Winning Prior Gang Injunction Due Process Challenge

Court of Appeal Denies Fees in a Splintered Unpublished Opinion.

     We would like to thank attorney Amitai Schwartz, who practices in Emeryville, for alerting us to an interesting unpublished decision from the Third District that concerned an appeal of denial of attorney’s fees under Code of Civil Procedure section 1021.5. This cause actually resulted in three separate opinions, although the fee denial was affirmed by a 2-1 vote. He was on the losing end, but the opinion is certainly one that inspired different viewpoints.

     The genesis of the appeal in People ex rel. Reisig v. The Broderick Boys, Case No. C058066 (3d Dist. June 16, 2009) (unpublished) (Broderick Boys II) came from much earlier proceedings involving a gang injunction. Specifically, the Third District in an earlier appeal found a gang injunction void after deciding service was invalid under the unincorporated association service statute (Corporations Code section 18220). People ex rel. Reisign v. Broderick Boys, 149 Cal.App.4^th 1506, 1520-1529 (2007) (Broderick Boys I). The void judgment was set aside, although further proceedings taken resulted in a new gang injunction (although the men involved in the earlier proceeding were not involved). Attorneys representing three of the prior successful parties moved to recoup section 1021.5 attorney’s fees of over $400,000. The trial court denied the request, and the ACLU appealed on behalf of the unsuccessful fee claimants.

     The ACLU lost its bid to recover fees in an opinion drawing viewpoints from all three justices.

     Initially, the appellate panel decided that the abuse of discretion standard applied—with a reversal occurring only where a decision is clearly wrong or has no reasonable basis. (Ryan v. California Interscholastic Federation, 94 Cal.App.4^th 1033, 1044 (2001).) Because material facts were in dispute with respect to the section 1021.5 components, de novo review was inappropriate. That took the Court of Appeal to the merits of the fee denial decision.

     Justice Nicholson, joined in by Presiding Justice Scotland, found that the movants’ victory in overturning the first injunction did not confer a significant benefit on the general public or a large class of persons. They found that the injunction was “a mere procedural respite and [provided] only temporary relief to movants.” The District Attorney did obtain a new injunction later on. Although the publication of Broderick Boys I could support a “significant benefit” finding, it did not necessarily establish that fact. The voiding of the injunction in the prior published decision involved “application of unremarkable due process law to the particular facts of this case.”

     Justice Nicholson also found that the necessity and financial burden of private enforcement was not compelling enough to make a section 1021.5 award appropriate, a conclusion not joined in by concurring Justice Scotland. Justice Nicholson mainly was swayed by the fact that movants did not avail themselves of a simple procedure by which they could seek removal from the gang injunction list, following cases that have denied section 1021.5 fees because claimants did not pursue efforts short of litigation. (Vasquez v. State of California, 45 Cal.4^th 243, 257 (2008) [our Leading Cases no. 10].)

     Justice Morrison dissented, finding that the prior published decision established a significant benefit and that the movants could only resort to the lawsuit to relieve themselves of the burdens of the void injunction. The prior injunction did restrict the liberty of the movants, such that their victory was indeed tangible in nature. The issuance of a new gang injunction was inconsequential, because it applied to men other than movants. Justice Morrison also believed it was unreasonable to compel a person to go to the police to attempt to be removed from a list that was the product of a void injunction.

     BLOG UNDERVIEW-Although we usually do not comment on the rights and wrongs of decisions, we will indicate that this decision was a “close one,” as shown by the three separate opinions by jurists who have been on the Third District for a number of years. For a prior section 1021.5 Third District decision drawing a dissent, see Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors, 79 Cal.App.4^th 505 (2000).