Private Attorney General Statute: Appellate Court Affirms Denial Of Attorney’s Fees To Petitioner Winning An Auditing Reallocation of Oakland Measure Y Funds

Neither Private Attorney General or Common Fund Doctrines Justified Fee Award.

      Sacks v. City of Oakland, Case Nos. A126781/A126817 (1st Dist., Div. 1 Dec. 10, 2010) (certified for partial publication; fee discussion not published) involved a petitioner who, at the trial court level, won a mandate writ regarding the allocation and use of tax revenues collected by Oakland pursuant to Measure Y, an ordinance enacted by the voters to add neighborhood beat officers to the police department. The trial court denied her request for attorney’s fees under California’s private attorney general statute (Code Civ. Proc., § 1021.5) and the common fund doctrine. She appealed.

    

     Petitioner did no better on appeal, losing some traction on the merits based on an appeal by others and not obtaining an overturn of the fee denial order.

     Initially, the appellate court noted that its review was hampered somewhat by the lack of a statement of decision on the fee issue. However, because no such statements are required in fee proceedings, no error would be presumed based on this omission. (Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44, 67 (2009).)

     Because the appellate court did reverse significant aspects to petitioner’s trial court “win,” petitioner was not the successful party because her cause only resulted in the modification of Measure Y auditing practices.

     No important right was enforced and no significant benefit conferred on the general public because the appellate court determined that petitioner only got reallocation of revenues from one source to another and a decision that neighborhood beat officers had to be hired directly rather than indirectly. This “net” wash did not justify an award of 1021.5 fees. (Bruno v. Bell, 91 Cal.App.3d 776, 782-783 (1979).)

     Finally, the common fund doctrine request was flawed because no separate fund was created from which a fee could be paid, with the lower court’s order only directing that the City refund moneys into an existing Measure Y fund. (Jordan v. DMV, 100 Cal.App.4th 431, 446-447 (2002).) No fund was created by the litigation itself, dooming fee recovery on this equitable basis. (Northwest Energetic Services, LLC v. Calif. Franchise Tax Bd., 159 Cal.App.4th 841, 878 (2008).)