Angelheart v. City of Burbank

232 Cal. App. 3d 460, 285 Cal. Rptr. 463, 91 Daily Journal DAR 8754, 91 Cal. Daily Op. Serv. 6599, 1991 Cal. App. LEXIS 825

• Court: California Court of Appeal
• Decided: July 18, 1991
• Docket: B046173
• Status: Published

Opinions

Opinion

LILLIE, P. J.

—Defendants City of Burbank, Michael R. Hastings, in his capacity as Mayor of Burbank, and Robert Bowne, Al Dossin, Mary Lou Howard, and Mary Kelsey, in their capacity as members of the Burbank City Council (herein referred to as City), appeal from an order awarding plaintiffs attorneys’ fees of $18,700 pursuant to Code of Civil Procedure section 1021.5. Plaintiffs Kathleen Angelheart, Norman Angelheart, Laurie Salas, Candy Stallings, and Mark Stallings (hereinafter collectively referred to as plaintiffs) cross-appeal from that portion of the order denying them the full amount of attorneys’ fees sought, in the amount of $71,286.62.

Factual and Procedural Background

The award of attorneys’ fees arises out of plaintiffs’ successful challenge to City’s former regulation of large family day-care homes, which regulation, they claimed, was in violation of state law.

In 1987, Mrs. Angelheart provided child care in her Burbank home for 12 children, including children of plaintiffs Stallings. Plaintiff Salas, a Burbank resident, also was licensed by the state to operate a small family day-care center, and applied to operate a large family day-care center. In September 1987, City informed the Angelhearts they were required to apply for a conditional use permit from City and that the city ordinance limits the number of children to be cared for in any day-care home to 10. After hearing, City planning board (Planning Board) granted the Angelhearts a conditional use permit, with several conditions, including the condition limiting to nine the number of children under age five. To remove the conditions imposed on their permit, the Angelhearts appealed the Planning Board’s decision to the Burbank City Council which denied the permit for a large day-care facility, thus limiting to six the number of children the Angelhearts were allowed to care for in their home.

In April 1988, plaintiffs filed petition for writ of mandate (Code Civ. Proc., §§ 1085, 1094.5) and complaint for declaratory and injunctive relief against City. Plaintiffs contended, inter alia, that the state Legislature, by the California Child Day Care Facilities Act (Health & Saf. Code, § 1596.70 et seq.; the Act), has occupied the field of family day-care regulation preempting all municipal regulation not expressly permitted by the Act, and that the application of certain City ordinances to plaintiffs was in violation of the Act. Plaintiffs also alleged that pursuant to state law, Burbank could not prohibit large family day-care homes in an area zoned for single-family dwellings (Health & Saf. Code, § 1597.46, subd. (a)), a large family day-care home being defined as a home providing care for seven to twelve children. (Id., at § 1596.78, subd. (a).) These issues were contested by City.

In September 1988 plaintiffs obtained a peremptory writ of mandate commanding City, on or before November 16, 1988, to establish a procedure for regulating large family day-care homes that complies with the Act. The return date of November 16 was subsequently continued to December 22, 1988 and, in early December, City did enact an ordinance pursuant to the writ.

On December 21, 1988, plaintiffs filed objections to four provisions of the new ordinance, claiming the provisions violated state law. The return date was continued to March 6, 1989; after hearing on the return, the court made a minute order dated March 9, 1989, stating in pertinent part that “the ordinance is not invalid on its face.” The court, while acknowledging that certain applications of the ordinance in the future may constitute a violation of state law, interpreted the ordinance to obviate many of plaintiffs’ concerns and to be consistent with state law.

City filed an appeal from the March 9 order on June 7,1989, which appeal was subsequently dismissed on plaintiffs’ motion sometime in mid-July 1989. Although our record is unclear as to the grounds for the dismissal, plaintiffs’ attorney claimed on the hearing on the motion for fees that the appeal was untimely.

On July 3, 1989, plaintiffs filed a motion for attorneys’ fees and costs pursuant to Code of Civil Procedure section 1021.5, seeking attorneys’ fees and costs totaling $71,286.62.¹

According to declarations filed in support of the motion, four attorneys at Litt & Stormer spent a total of about 354 hours on the case from January 1988 to April 1989, which at the various billing rates of the attorneys, resulted in fees of about $43,514. Two attorneys from Public Counsel, the public interest law office of the Los Angeles and Beverly Hills Bar Associations, spent a total of about 87 hours on the case, which, according to their billing rates, resulted in a fee of $12,694. To these fees, totaling about $56,200, plaintiffs argued that the court should apply a multiplier of 1.25, which would result in a total fee award of about $71,286. Plaintiffs based the application of a multiplier on certain factors, including the relatively low-income status of plaintiffs, the small size of Litt & Stormer, the unpopular and expensive nature of bringing suit against a municipality, and the “admirable results” in obtaining the “precise relief’ sought.

In opposition to the motion, City argued the motion was untimely under California Rules of Court, rule 870 and even if timely, plaintiffs do not meet the criteria for attorneys’ fees set out in Code of Civil Procedure section 1021.5. City’s senior assistant city attorney declared that the issues presented in the case were not particularly complex or unusual; the total amount of hours (over 400) spent by plaintiffs’ attorneys on the case was “greatly in excess” of the time necessary for experienced attorneys as are plaintiffs’ attorneys, and she herself did not spend more than 200 hours on the entire case.

After hearing on the motion, the matter was submitted. On October 10, 1989, the court made the following order: “The Court finds that the reasonable attorneys’ fees based upon the work performed amount to $18,700.00 (approximately one-third of the amount claimed).”²

City filed timely notice of appeal from the October 10, 1989, order, and plaintiffs filed timely notice of cross-appeal from said order. We deal first with City’s appeal.

I

City’s Appeal

A. Timeliness of Motion

City contends that the motion was untimely pursuant to California Rules of Court, rule 870. That rule, by its express language, is not here applicable. The rule provides in part that “A prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 870(a).)

“But section 1021.5, pursuant to which the attorney fees were awarded, clearly provides a special motion procedure plainly intended to be initiated after the result of the action is known but subject to no express time limit. The motion procedure sharply distinguishes a claim for fees under section 1021.5 from an ordinary costs claim which is made not by motion but by memorandum and which is brought to hearing (if at all) not by the claimant but by the adversary’s motion to tax [citation]. In our view the more specific provisions of section 1021.5 control the more general procedure described in [former] section 1033 . . . .” (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 834 [160 Cal.Rptr. 465].)

As the provisions of rule 870 dealing with the time within which a memorandum of costs is to be filed have no application to the motion procedure set out in Code of Civil Procedure section 1021.5, City’s contention is without merit.

B. Significant Public Benefit

City contends that the court’s finding that the action conferred a significant benefit on the residents of Burbank in enforcing an important right is “not supported by any credible evidence.” City points to the undisputed evidence it submitted in opposition to the motion to the effect that the Angelhearts’ application to operate a large family day care center in Burbank was one of only two applications the City received in the two years prior to the lawsuit and since the adoption of its new ordinance, the Angelhearts’ application was only one of three such applications.

“The trial court has discretion to determine whether an award of section 1021.5 attorney fees is appropriate. [Citation.] A reversal of the trial court’s determination will lie only if the resultant injury is sufficiently grave to amount to a manifest miscarriage of justice, and no reasonable basis for the action is shown.” (Weissman v. Los Angeles County Employees Retirement Assn. (1989) 211 Cal.App.3d 40, 46-47 [259 Cal.Rptr. 124]; internal quotation marks omitted.)

The private attorney general theory as embodied in section 1021.5 is “clearly designed to encourage private enforcement of important public rights.” (Marini v. Municipal Court, supra, 99 Cal.App.3d 829, 835-836.) “The important right need not be constitutional in origin. [Citation.] Section 1021.5 applies also to statutory rights as well as important public policies. [Citations.] The ‘important right’ requirement directs the judiciary to exercise judgment in attempting to ascertain the strength or societal importance of the right involved. [Citations.] [T]he public right must be important and cannot involve trivial or peripheral public policies. [Citations.] .... The significance of the benefit must be determined from a realistic assessment of all the pertinent circumstances.” (California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 745 [246 Cal.Rptr. 285], internal quotation marks omitted.)

A tangible asset or a concrete gain does not have to be present to satisfy the requirement that the action confer a significant benefit; rather, the effectuation of a fundamental constitutional or statutory policy may be present. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 112 [212 Cal.Rptr. 485].)

The California Child Day Care Facilities Act contains the provision that “It is the intent of the Legislature that family day care homes for children must be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development. It is the public policy of this state to provide children in a family day care home the same home environment as provided in a traditional home setting.” (Health & Saf. Code, § 1597.40, subd. (a).) The Legislature also declared “this policy to be of statewide concern with the purpose of occupying the field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically provided for in this chapter, and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided by this chapter.” (Ibid.)

In light of these legislative declarations of policy, the trial court reasonably could have determined that the action involved an important right affecting the public interest. City has not established any abuse of discretion as to this factor.

We now address the separate factor of whether the action conferred a significant benefit. “The Supreme Court [in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940 (154 Cal.Rptr. 503, 593 P.2d 200)] has explained the legislative intent behind the ‘significant benefit’ requirement: ‘Of course, the public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a “benefit” when illegal private or public conduct is rectified. Both the statutory language (“significant benefit”) and pri or case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation. We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.’ ” (California Common Cause v. Duffy, supra, 200 Cal.App.3d 730, 749, original italics.)

In the instant case, there is no evidence in the record to support the trial court’s conclusion that all of the residents of Burbank seeking child care benefited from the action. In fact, there is no evidence that there was any other person in Burbank, like the Angelhearts, who sought a permit for more than the 10 children allowed in a family day-care home under the former municipal ordinance. There is no evidence that the Angelhearts’ action, although successful and involving an important public policy, affected a large class of persons.

The trial court’s conclusion cannot be supported by the facts that two persons applied for a large family day-care home permit in the last two years under the former regulations and that three persons applied for such permit during the first seven months after enactment of the new ordinance. There is nothing to indicate that these applicants were affected by the change in the Burbank zoning ordinances. In other words, the trial court abused its discretion in concluding that the Angelhearts’ action affected others in Burbank when there was no evidence that there were other similarly situated applicants, or that other family day-care homes were then affected by the change in the ordinance, or that family day-care homes would be so affected in the future.

As the California Supreme Court explained in Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311 [193 Cal.Rptr. 900, 667 P.2d 704], wherein the court upheld an award of attorney fees in a case involving free speech and petition rights, “Of course, not all lawsuits enforcing constitutional guarantees will warrant an award of fees. For example, in Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158 . . . , this court held that plaintiffs were not entitled to attorney fees since their litigation, while based on the constitutional right to be free from the arbitrary deprivation of private property, vindicated only the rights of the property owners of the single parcel at issue. ...[][]... While that right was certainly important, the economic interests protected in that case can hardly be considered as fundamental as the equal protection rights vindicated in Serrano v. Priest (1976) 18 Cal.3d 728 . . . , or the freedom of speech and petition rights enforced in the present case, [f] Second, the primary effect of the judgment in Pacific Legal Foundation was merely to invalidate a condition placed on a land use permit which encumbered the value of a single parcel of property. Only plaintiffs’ personal economic interests were advanced by their lawsuit. Under those factual circumstances, the litigation ‘did not result in conferring a “significant benefit” on a “large class of persons.” ’ ” (34 Cal.3d at pp. 319-320, fn. 7.)

We believe the instant case is similar on its facts to Pacific Legal Foundation, which compels the conclusion that the trial court abused its discretion in concluding that the Angelhearts’ litigation conferred a significant benefit on a large class of persons. Our record simply provides no reasonable basis to support the trial court’s conclusion. Nor is there any evidence in our record to support the speculative assertions by the dissent that other cities are violating state law and that this case would have ramifications for other cities and family day care providers. In fact, most of the assertions in the dissent are premised entirely on speculative matters that appear nowhere in this record.³

“Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (Beach Colony II v. California Coastal Com., supra, 166 Cal.App.3d 106, 114.) In Beach Colony II, where property owners engaged in litigation resulting in a published decision involving the “relationship of the coastal act and common law ... in the area of avulsion,” (166 Cal.App.3d at p. 112), the court stated: “Colony II’s allegation [that the public got something for nothing from its litigation] ignores the fact that the benefits it obtained are immediately and directly translated into monetary terms. The public benefits are not likely to result in any economic benefit to more than a few persons, even in the future. While every citizen theoretically benefits by rulings which compel a governmental body to follow the law and which resolve disputes over applicable law, that benefit is not pecuniary in nature. . . . However, only Colony II reaps the substantial, present economic benefit it would have lost had the litigation been unsuccessful.” (166 Cal.app.3d at p. 113.)

As the trial court abused its discretion in finding the existence of one of the necessary statutory elements under section 1021.5, there is no basis for an award of fees, and reversal is warranted. We need not address the issue of financial burden.

In light of the above conclusion, we also need not address the Angel-hearts’ claim on their cross-appeal that the trial court abused its discretion in determining the amount of the fees.

Disposition

The order is reversed. The parties are to bear their own costs on appeal.

Woods (Fred), J., concurred.

1 Code of Civil Procedure section 1021.5 provides in pertinent part: “Upon motion, a court may award attorney’s 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.”

2 The order, which appeared on a form similar to a clerk’s minute order form, also stated: “Counsel for plaintiff has submitted an incredible accumulation of attorney hours in their application for fees. Attorneys of their asserted competence and experience could and should have been able to produce the work product reflected in the file in substantially less than the 441.75 attorney hours. Even with attendant activities before the board, etc., 150 hours would be generous. That determination is supported by the same showing [of] expertise presented by counsel to justify their hourly rate. Nor is there any basis for the application of any multiplier. [1] There is a threshold showing that [plaintiffs have] enforced an important right affecting the public interest. However, at this juncture it can be said only that it benefits anyone seeking childcare in the City of Burbank. There is no showing that any other city has failed to comply with the statutory scheme without whatever encouragement which might inure from these proceedings. Here, the ‘public’ is limited—comprised of the residents of Burbank.”

The order is appealable. (Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 223 [226 Cal.Rptr. 265].)

3 Angelhearts filed a motion to take additional evidence, or in the alternative to take judicial notice, and petition for rehearing based on supplemented record. Inasmuch as we have denied the motion and petition, the “additional evidence” is not properly before us. For this reason, we need not address arguments in the dissent which are premised on the “additional evidence.”

However, it is not true, as asserted in the dissent, that Angelhearts had no reason to address the “significant benefit” issue until the majority opinion was filed. Angelhearts not only had an opportunity to present evidence on the issue to the trial court, but they had the burden of proof on that issue below.

Even were we to deem the declarations submitted by Angelhearts to be part of our record, we would reach the same result on this appeal. The declarations fail to establish that it was the trial court’s Angelheart decision, as opposed to the clear statutory mandates, or other factors, that caused some local governments to conform their regulations to state law. The declarations also fail to establish that a large class of persons has been affected by the Angelheart decision. Other than in the case of the Angelhearts themselves, there is no evidence that local governments have actually enforced invalid provisions of their ordinances against large family day-care providers. There is no evidence a municipality relied upon such provisions to deny or condition a permit to any other provider.