Second District, Division 6 Reverses Lower Court Denial of Fees.
Doreen Farr and Steven Pappas were candidates for the third district supervisor in Santa Barbara County. Ms. Farr was elected, and Mr. Pappas unsuccessfully contested the election pursuant to Elections Code section 16100(d), (f). Ms. Farr made a motion for attorney’s fees in the amount of $250,000 under California’s private attorney general statute, a request that was denied by the trial court.
The Second District, Division 6, in a 3-0 opinion authored by Presiding Justice Gilbert, reversed the fee denial in Pappas v. Farr, Case No. B219570 (2d Dist., Div. 6 Dec. 21, 2010) (unpublished).
The appellate court found no valid basis for denying Ms. Farr an award of fees. The primary flaw in the lower court’s reasoning was its reliance on a line of cases holding that in determining whether to award fees under Code of Civil Procedure section 1021.5, the court may consider a litigant’s nonpecuniary interests. Justice Gilbert found that the California Supreme Court in Conservatorship of Whitley, 50 Cal.4th 1206, 1211 (2010) had disapproved this previous authority and concluded that personal nonpecuniary interests may not be used to disqualify a litigant from obtaining 1021.5 fees. Rather, the correct focus is on the financial burdens and incentives involved in bringing the lawsuit.
Finding that no rational person would have undertaken defense of the action for financial benefit in light of the fact that a supervisor’s salary during 4 years is only slightly greater than $250,000 gross, the Court of Appeal determined that Ms. Farr was entitled to fees--after all, that would mean she would have been working for free even after winning the election contest action.
The matter was remanded for calculation of the fees to be awarded Ms. Farr.
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