Filed 5/18/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CARLSBAD POLICE OFFICERS D075723 ASSOCIATION et al.,
Plaintiffs and Respondents, (Super. Ct. No. 37-2019-00005450- v. CU-WM-CTL)
CITY OF CARLSBAD et al.,
Defendants and Respondents;
AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO & IMPERIAL COUNTIES et al.,
Interveners and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Reversed and remanded with directions.
Sheppard, Mullin, Richter & Hampton, James M. Chadwick, Tenaya Rodewald,
and Matthew Halgren for Interveners and Appellants Scripps Media, Inc., doing business
as KGTV-TV, The San Diego Union-Tribune, LLC, KFMB-TV News 8, KNSD (NBC7),
KPBS Public Broadcasting, and Voice of San Diego. ACLU Foundation of San Diego & Imperial Counties, David Loy, and Jonathan
Markovitz for Interveners and Appellants American Civil Liberties Union of San Diego
& Imperial Counties and Flora Rivera.
Reporters Committee for Freedom of the Press, Katie Townsend, Bruce D. Brown,
and Lin Weeks for Reporters Committee for Freedom of the Press as Amicus Curiae on
behalf of Interveners and Appellants Scripps Media, Inc., et al.
Bobbitt, Pinckard & Fields, Richard L. Pinckard, Bradley M. Fields, and Amy R.
Margolies for Plaintiffs and Respondents Carlsbad Police Officers Association, et al.
McDougal Love Boehmer Foley Lyon & Canlas, Morgan L. Foley and Lauren N.
Hendrickson for Defendants and Respondents City of El Cajon and Jeff Davis, City of
National City and Manuel Rodriguez.
City of Oceanside, Office of the City Attorney, John Mullen, Annie Higle for
Defendants and Respondents City of Oceanside and Frank McCoy.
2 Section 387 of the Code of Civil Procedure 1 permits a nonparty to intervene in a
pending case, either as of right or permissively, when certain criteria are met. To
encourage the pursuit of public interest litigation, section 1021.5 authorizes an award of
attorney's fees to the prevailing party. In this "reverse-PRA" case, 2 eight police officer
associations (POAs) filed a petition for writ of mandate seeking to prevent their
respective agencies from disclosing certain records of police misconduct or use of force
pursuant to a new law, Senate Bill No. 1421. (Stats. 2018, ch. 988, § 2.) Several media
organizations and a civil rights group moved to intervene, and the trial court conditioned
their participation on the interveners striking their requests to recover statutory attorney's
fees. It later agreed with the interveners on the merits that Senate Bill No. 1421 required
disclosure of pre-2019 police records.
The interveners challenge the condition placed on their intervention. The scope of
a court's power to limit intervention under section 387 appears to be one of first
impression in California. We conclude that although a trial court may place reasonable
limits even as to intervention of right, the condition imposed here was unreasonable and
amounted to an abuse of discretion. We therefore reverse the order and remand for
1 Further undesignated statutory references are to the Code of Civil Procedure.
2 In a "reverse-PRA" action, an interested third party seeks a judicial ruling precluding a public agency from disclosing allegedly confidential documents pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.) (PRA or CRPA). (See Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1267 (Marken).) 3 further proceedings to permit the interveners to seek reasonable attorney's fees against the
POAs pursuant to section 1021.5.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, the Legislature passed Senate Bill No. 1421 to expand public access to
police records concerning the use of deadly or serious force and significant misconduct.
(Sen. Bill No. 1421, Stats. 2018, ch. 988.) The new law took effect on January 1, 2019.
(Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).)
Within a month, eight POAs (Carlsbad, Coronado, El Cajon, Harbor, National
City, Oceanside, San Diego, and San Diego Schools) petitioned for writ of mandate to
prevent their respective police agencies from releasing pre-2019 records pursuant to
Senate Bill No. 1421. The POAs maintained that applying the new legislation to records
concerning events that occurred before January 1, 2019 would amount to impermissible
"retroactive" application of the law. Their petition named as respondents the cities of
Carlsbad, Coronado, El Cajon, San Diego, National City, and Oceanside; the San Diego
Unified Port District; the San Diego Unified School District; and the corresponding
police chiefs (collectively, the agencies).
The POAs requested a temporary stay barring disclosure of pre-2019 records. The
agencies did not oppose their request. The court issued an alternative writ, set a March 1
hearing date, and entered a temporary stay.
Roughly one week later, the ACLU of San Diego and Imperial Counties and its
client Flora Rivera (collectively, the ACLU interveners) filed a motion seeking leave to
intervene (§ 387). The ACLU had filed a series of requests under Senate Bill No. 1421
4 since January 1, 2019 directed to the agency respondents. Among them was a request
filed on February 8 on behalf of Rivera, whose brother was killed in an encounter with
San Diego Police Department officers in 2018. The ACLU interveners sought leave to
intervene both as of right and on a permissive basis under section 387. Their proposed
complaint in intervention sought attorney's fees against the POAs.
A separate motion for leave to intervene was filed by Scripps Media, Inc., doing
business as KGTV-TV, The San Diego Union-Tribune, LLC, KFMB-TV News 8, KNSD
(NBC7), KPBS Public Broadcasting, and Voice of San Diego (collectively, the Media
interveners). Each of these news organizations had filed PRA requests with the agency
respondents seeking records covered by Senate Bill No. 1421 and claimed they had
received inadequate responses. Like the ACLU interveners, the Media interveners sought
to intervene both as of right and on a permissive basis under section 387. Unlike the
ACLU interveners, the Media interveners requested relief against the agencies, asserting
an affirmative cause of action for violations of the PRA and the California Constitution
and seeking a writ of mandate directing the agencies to respond to their pending records
5 requests. As relevant to this appeal, the Media interveners sought attorney's fees against
both the POAs and the agencies. 3
Most of the agencies did not oppose the requests to intervene. Three agencies—
Coronado, El Cajon, and National City—opposed intervention by the Media interveners
but not by the ACLU interveners. They believed the Media interveners' request for
affirmative relief would impermissibly transform a reverse-PRA action into an effort to
enforce still-pending PRA requests. They further objected to the Media interveners'
request for attorney's fees, arguing that their interests and the Media interveners' interests
were aligned. To the extent intervention would be allowed, the three agencies urged the
court to preclude the Media interveners from recovering attorney's fees.
The POAs opposed both requests to intervene. Arguing the respondent agencies
were inclined to produce pre-2019 records, the POAs maintained that the interveners
failed to meet the third criterion for intervention of right—i.e., that their interests were
inadequately represented by the original parties. Nor was permissive intervention
warranted—the POAs claimed the requests for attorney's fees would enlarge the lawsuit
3 Although both the ACLU and Media interveners chose to include requests for attorney's fees in their proposed complaints in intervention, they had no obligation to do so. (See Faton v. Ahmedo (2015) 236 Cal.App.4th 1160, 1169 ["statutory attorney fees need not be pleaded and proved at trial and may properly be awarded after entry of judgment"]; Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497 [plaintiff's failure to include prayer for attorney's fees under section 1021.5 "does not waive or forfeit his ability to seek them at the conclusion of the case"].) Even if not mentioned in their complaints, the interveners would still be entitled to seek statutory attorney's fees as an element of costs following successful conclusion of the case. (See Code Civ. Proc., § 1033.5, subd. (a)(10)(B).) 6 by introducing a request for additional or different relief. In addition, the POAs
suggested the specter of an attorney's fee award would interfere with the rights of the
original parties to litigate the lawsuit on their own terms.
The court held a hearing on February 15 on the motions for leave to intervene. It
explained that its tentative decision was to allow intervention but require the interveners
to strike their requests for attorney's fees because these requests would enlarge the issues
in the case. The Media interveners responded that enlargement of the issues was a factor
only for permissive intervention, whereas they sought intervention by right. And to the
extent intervention was merely permissive, the fact that the POAs also sought attorney's
fees demonstrated that the interveners' request would not expand the scope of litigation.
Counsel for the ACLU interveners joined in these arguments.
The court proceeded to allow intervention, finding it "appropriate under the third
prong," presumably in reference to the POAs' argument against mandatory intervention.
However, it conditioned intervention on the ACLU and Media interveners striking their
request for attorney's fees, explaining:
"The issue of attorney fees, it's a big issue because I have the police officers association, and I've got all of you in here. In this court's humble opinion, I think it's best to strike the attorney's fees. If you want to file your motion in intervention, strike the attorney fees. You could say, hold on, Judge, we don't like that. You can file your own separate lawsuit. That's up to you to make that choice. I will leave it to you. I'll give you my opinion. I think it's best to get this thing done on March 1, one way or the other. I'm going to leave that up to you. If you want to intervene, strike the attorney fees provision."
7 In a minute order, the court indicated it was exercising "its discretion" to grant leave to
intervene, "provided however" that both interveners "strike their request for attorney's
fees which will enlarge the issues in this case." 4
The ACLU and Media interveners filed their complaints in intervention, striking
their requests for attorney's fees. They subsequently filed merits briefs opposing the
POAs' petition. The agencies took no stance. Following a hearing on March 1, the trial
court denied the POAs' petition, concluding that Senate Bill No. 1421 covered records
concerning events occurring before January 1, 2019. 5 After the court issued a "partial
judgment denying [the POAs'] petition for writ of mandate," the ACLU and Media
interveners appealed the February 15 order limiting the scope of their intervention.
DISCUSSION
This case presents a matter of first impression in California: can a trial court
condition leave to intervene on a nonparty agreeing to forgo its request for statutory
attorney's fees? As we explain, under the circumstances presented, the trial court could
not. Accordingly, we reverse the order and remand the case for further proceedings to
4 As later discussed in more detail, it is unclear whether the trial court permitted intervention on a permissive or mandatory basis.
5 An appellate court later reached the same conclusion in a different case. (Walnut Creek Police Officers' Association v. City of Walnut Creek (2019) 33 Cal.App.5th 940, 941−942.) 8 permit the interveners to seek an award of attorney's fees against the POAs pursuant to
section 1021.5. 6
A. A Successful Intervener in a Reverse-PRA Action Is Entitled To Seek Attorney's Fees Pursuant To Section 1021.5.
Section 1021.5 codifies the judicially-created private attorney general doctrine.
(Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217−1218 (Whitley).) "Upon
motion, a court may award attorneys' 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, or of enforcement by one public
entity against another public entity, 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."
(§ 1021.5.) In other words, the statute considers whether the action: (1) enforced an
important public right, (2) conferred a significant public benefit, and (3) is of a type that
private enforcement was necessary, and the financial burden justifies subsidizing the
6 Following entry of judgment against the POAs, litigation continued between the Media interveners and the agencies on the affirmative PRA claim. Five of the agencies were voluntarily dismissed before the trial court. After briefing was complete on appeal, the Media interveners settled their claims with the remaining three agencies and filed associated requests for dismissal. The requests are granted. (Cal. Rules of Court, rule 8.244(c)(2).) The City of Oceanside and Frank McCoy, the City of El Cajon and Jeff Davis, and the City of National City and Manuel Rodriguez are dismissed from the appeal, with each of those parties and the Media interveners to bear their own associated costs. We accordingly resolve the sole remaining issue: whether the court properly conditioned participation by the Media and ACLU interveners on those entities forgoing their right to seek attorney's fees against the POAs pursuant to section 1021.5. 9 successful party's attorneys. (Whitley, at p. 1214.) The third factor "does not apply
where, as here, a plaintiff's action produces no monetary recovery." (Weiss v. City of Los
Angeles (2016) 2 Cal.App.5th 194, 218, citing Woodland Hills Residents Assn., Inc. v.
City Council (1979) 23 Cal.3d 917, 934–935.)
The fundamental purpose of the private attorney general doctrine is to encourage
parties to bring lawsuits that effectuate a strong public policy and confer benefits to a
broad class of citizens, by awarding substantial attorney's fees to those who successfully
bring such suits. (Whitley, supra, 50 Cal.4th at pp. 1217−1218.) " 'The doctrine rests
upon the recognition that privately initiated lawsuits are often essential to the effectuation
of the fundamental public policies embodied in constitutional or statutory provisions, and
that, without some mechanism authorizing the award of attorney fees, private actions to
enforce such important public policies will as a practical matter frequently be
infeasible.' " (Id. at p. 1218.)
Although the statute is phrased in permissive terms, a court's discretion to deny
attorney's fees to a party that meets the statutory requirements of section 1021.5 is
limited. (Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1344 (Lyons).)
Unless special circumstances would render an award of 1021.5 fees unjust, fees must be
awarded under the statute where the statutory criteria have been met. (Ibid., accord
Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 391) 7
7 There is no indication that the trial court precluded interveners from recovering section 1021.5 fees here based on any finding that such an award would be unjust. 10 It is now well established that a successful intervener seeking records disclosure in
a reverse-PRA action is entitled to recover attorney's fees under section 1021.5. In
Pasadena Police Officers Association v. City of Pasadena (2018) 22 Cal.App.5th 147,
159 (Pasadena Police), Division One of the Second Appellate District concluded it was
error to deny attorney's fees to the Los Angeles Times after it successfully intervened in a
reverse-PRA action brought by two police officers to prevent the disclosure of
investigative reports concerning their shooting of an unarmed African American teen.
Attorney's fees were recoverable under section 1021.5 because the case "involve[d]
public officials and a public employee union pursuing litigation designed to expand the
ability of police officers and a police department to withhold information from the
public." (Pasadena Police, at pp. 165−166.) The trial court had erred by focusing on the
subjective motivations of the officers; all that mattered was that the officers and their
POA "plainly attempted to restrict the public's right of access to police records"—a
matter implicating important public rights for purposes of section 1021.5. (Pasadena
Police, at pp. 164−165.)
Division Eight of the Second Appellate District reached a similar conclusion in
City of Los Angeles v. Metropolitan Water District of Southern California (2019)
42 Cal.App.5th 290 (Metropolitan Water). When a city controller questioned the merits
of a government-run artificial-turf rebate program, the San Diego Union-Tribune
submitted a PRA request to a regional water district seeking information about who had
participated in the program. After conferring with its member—a city water
department—the district produced redacted records. (Id. at p. 297.) The Union-Tribune
11 objected to the redactions. Meanwhile, the city water department filed a reverse-PRA
lawsuit seeking to enjoin the district from releasing information about turf program
participants. After the Union-Tribune intervened, the trial court denied the water
department's petition and granted the Union-Tribune's cross-petition to compel
disclosure. The court also awarded attorney's fees under section 1021.5, a ruling the
appellate court affirmed. The Union-Tribune had " 'enforced an important right affecting
the public interest,' " specifically, the public's " 'right to know how the government uses
public money,' " and disclosure " 'conferred a significant benefit on the public.' "
(Metropolitan Water, at p. 306.)
Here, there is no dispute that the release of police records concerning officer
misconduct and use of serious force implicates a matter of public interest. The trial court
expressed as much in allowing intervention: "clearly, we have got a very important issue
statewide. I'm not the only court looking at this." Instead, the POAs attempt to
distinguish Pasadena Police by claiming their action was not a reverse-PRA claim.
Whereas the officers in Pasadena Police sought to block access to a specific pending
CPRA request, the POAs argue they were seeking "clarification" as to the scope of
Senate Bill No. 1421. As the Media interveners suggest, however, this supposed
distinction only underscores the public interest at stake. (See Pasadena Police, supra, 22
Cal.App.5th at pp. 164–165 [police officer union's efforts to broaden exemptions to PRA
disclosure "further justifies the imposition of attorney fees," showing an institutional
rather than purely private interest].) As a factual matter, the POAs made specific
reference in their writ petition to the "massive influx" of PRA requests under Senate Bill
12 No. 1421 that threatened to overwhelm the agency respondents. That the POAs sought to
categorically impair a multitude of records requests does not change the nature of their
reverse-PRA action. 8
In short, Pasadena Police and Metropolitan Water have established that attorney's
fees are available under section 1021.5 to an intervening party in a reverse-PRA case. 9
But our analysis does not stop there. Contrary to the POAs' claim, the question before us
is not whether the trial court abused its discretion in denying a request for attorney's fees
under section 1021.5. The ACLU and Media interveners were barred from seeking
attorney's fees under this statute as a condition of their intervention. The question is thus
8 The POAs also imply that we should reject any request for attorney's fees because the interveners "baited POAs into believing that they would not be subject to a fee request" when the interveners opted to intervene rather than file a separate lawsuit. We struggle to comprehend this argument, which the POAs do not support with citation to any authority. (Cal. Rules Court, rule 8.204(a)(1)(B).) The interveners preserved their objection to the court's ruling and may now be heard to challenge it on appeal. To the extent the POAs mean to suggest (as they did before the trial court) that an attorney's fee award might chill their ability to litigate on behalf of their members, a compelling policy argument could likewise be made to the contrary—that fee-shifting in a reverse-PRA action discourages the pursuit of meritless actions designed to obstruct public access to information subject to disclosure. Indeed, the same suggestion could be made by any party potentially subject to an award of attorney's fees under section 1021.5, but it is a position the Legislature necessarily rejected when it enacted the statute.
9 Language in Marken that a PRA records requester "who participates in a reverse- CPRA lawsuit would not be entitled to attorney's fees" (Marken, supra, 202 Cal.App.4th at p. 1268) must be construed in context: the Marken court was referring to an intervener's right to recover fees under the PRA (Gov. Code, § 6259, subd. (d)) in a reverse-PRA action. The PRA does not permit such an award. (National Conference of Black Mayors v. Chico Community Publishing, Inc. (2018) 25 Cal.App.5th 570, 583, 587.) Moreover, "Marken's statement about attorney fees was part of the court's general discussion of the viability of reverse-CPRA actions and so was dicta; no attorney fees were sought in that appeal." (Metropolitan Water, supra, 42 Cal.App.5th at p. 301.) 13 whether the court could validly impose such a condition on intervention. In answering
this question, we first explore whether intervention here was permissive or compulsory.
B. The ACLU and Media Interveners Were Entitled To Intervention of Right.
"An intervention takes place when a nonparty, deemed an intervenor, becomes a
party to an action or proceeding between other persons by doing any of the following: [¶]
(1) Joining a plaintiff in claiming what is sought by the complaint. [¶] (2) Uniting with a
defendant in resisting the claims of a plaintiff. [¶] (3) Demanding anything adverse to
both a plaintiff and a defendant." (§ 387, subd. (b).) By allowing nonparties to
participate in litigation, section 387 "protects the interests of others affected by the
judgment, obviating delay and multiplicity." (People v. Superior Court (Good) (1976)
17 Cal.3d 732, 736 (Good).)
Section 387 recognizes two forms of intervention. The first is compulsory. Under
subdivision (d)(1)(B), a trial court "shall, upon timely application, permit a nonparty to
intervene in the action or proceeding" if that person "claims an interest relating to the
property or transaction that is the subject of the action and that person is so situated that
the disposition of the action may impair or impede that person's ability to protect that
interest, unless that person's interest is adequately represented by one of the existing
parties." In other words, to establish a right to mandatory intervention, the nonparty
must: (1) show a protectable interest in the subject of the action, (2) demonstrate that the
disposition of the action may impair or impede its ability to protect that interest; and
(3) demonstrate that its interests are not adequately represented by the existing parties.
(Edwards v. Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732
14 (Edwards).) These criteria are virtually identical to those for compulsory joinder of an
indispensable party. (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th
540, 556 (Hodge); see § 389, subd. (a).)
If intervention is not compulsory, leave to intervene may also be granted on
permissive grounds. Under section 387, subdivision (d)(2), "[t]he court may, upon timely
application, permit a nonparty to intervene in the action or proceeding if the person has
an interest in the matter in litigation, or in the success of either of the parties, or an
interest against both." Permissive intervention is appropriate if: "(1) the proper
procedures have been followed; (2) the nonparty has a direct and immediate interest in
the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the
reasons for the intervention outweigh any opposition by the parties presently in the
action." (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386; see City of
Malibu v. Cal. Coastal Com. (2005) 128 Cal.App.4th 897, 902.)
"Whether intervention is permissive or mandatory, a petition to seek leave is
required; without permission from the court, a party lacks any standing to the action."
(Lohnes v. Astron Computer Products (2001) 94 Cal.App.4th 1150, 1153.) Although a
party may assert that it holds an unconditional right to intervene, that right is conditioned
on a court's initial determination that the application to intervene is timely. (Ibid.) Here,
there is no dispute that the ACLU and Media interveners' applications were timely.
If leave to intervene is granted, "[t]he intervener becomes a party to the action
with all of the same procedural rights and remedies of the original parties." (Catello v.
I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1013−1014 [original party was
15 entitled to recover costs under section 1032 after intervener voluntarily dismissed its
complaint in intervention]; see also Savaglio v. Wal-Mart Stores, Inc. (2007) 149
Cal.App.4th 588, 602−603; 4 Witkin, Cal. Proc. (5th Ed. 2008) Pleading, § 226.)
Critically, those procedural rights and remedies include the right to seek attorney fees
under section 1021.5 on equal terms with the original parties. (City of Santa Monica v.
Stewart (2005) 126 Cal.App.4th 43, 87 (Stewart); People v. Investco Management &
Development LLC (2018) 22 Cal.App.5th 443, 458.)
As the Media interveners suggest, the record is unclear whether the trial court
granted leave to intervene permissively or as of right. In finding intervention
"appropriate under the third prong," the court appeared to respond to the POA's argument
that the interveners failed to satisfy the third requirement for mandatory intervention
because the agencies would adequately represent their interests. But the minute order
also stated the requests for attorney's fees would enlarge the issues—a criterion for
permissive intervention. Where intervention is as of right, "[i]t makes no difference that
such intervention will expand the issues in the case and impinge on the right of the
original parties to litigate the matter in their own fashion." (Weil et al., Civil Practice
Guide: Civil Procedure Before Trial (The Rutter Group), ¶ 2:401.)
We agree that the ACLU and Media interveners qualified for intervention of right.
Both had filed a series of records requests with the eight agencies, seeking pre-2019
police records pursuant to newly enacted Senate Bill No. 1421. Through their mandamus
petition, the POAs sought to prevent the agencies from releasing pre-2019 records
pursuant to a PRA request. Therefore, the interveners had direct interests in the subject
16 matter of the litigation. "A successful reverse-CPRA lawsuit seeking to prevent a public
agency from releasing information on the ground the requested disclosure is prohibited
by law will necessarily affect the rights of the party requesting the information—a party
whose interest in access to public records is recognized by California Constitution, article
I, section 3, subdivision (b)(1), as well as the CPRA, and protected by specific provisions
of the CPRA authorizing litigation to compel disclosure." (Marken, supra, 202
Cal.App.4th at pp. 1269−1270.)
Absent intervention, resolution of the petition in the POA's favor would, "as a
practical matter impair or impede [the interveners'] ability to protect that interest."
(Hodge, supra, 130 Cal.App.4th at p. 554; see § 387, subd. (d)(1)(B).) Finally, although
the agencies believed Senate Bill No. 1421 covered pre-2019 police records, it was
readily apparent by the time leave to intervene was sought that they would not vigorously
challenge the merits of the POAs' claim. The POAs' petition suggested police
departments would be overburdened if forced to respond to the "massive influx" of PRA
requests seeking pre-2019 records. The City of Carlsbad and Chief of Police Neil
Gallucci filed an immediate response to the petition indicating the agency would "take no
position and neither oppose or deny Petitioners' requested relief." None of the agencies
opposed the POAs' stay request. Three agencies (Coronado, El Cajon, and National City)
opposed intervention by the Media interveners to the extent they sought attorney's fees.
And after leave to intervene was granted, none of the agencies took a stance on the
merits.
17 On this record, the Media and ACLU interveners qualified for intervention of right
under section 387, subdivision (d)(1)(B). To the extent the court believed the attorney's
fee requests would enlarge the issues in the case, this factor was not relevant to a grant of
compulsory intervention.
C. The Trial Court Abused its Discretion in Conditioning Intervention of Right on Forgoing Otherwise Appropriate Requests for Statutory Attorney's Fees.
The POAs maintain that regardless of whether intervention was mandatory or
permissive, intervention was "specifically conditioned" on the interveners striking their
requests for attorney's fees. This argument goes to the heart of the matter before us—
may a trial court condition intervention on a nonparty giving up its right to request
statutory attorney's fees? For reasons we explain, the court could not impose such a
condition here.
The parties do not cite, nor have we found, California authority specifically
delineating when and how a court may restrict intervention. 10 It is well settled that a
trial court has inherent power to exercise reasonable control over litigation pending
before it ' "in order to ensure the orderly administration of justice.' " (Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 (Rutherford); see §§ 128, subd. (a)(3),
187.) These inherent powers primarily encompass "procedural matters, typically to
control the court's own process, proceedings and orders," or to create "workable means"
10 A single-sentence footnote in Bustop v. Superior Court (1977) 69 Cal.App.3d 66 states that the interveners in that case had "stipulated to waive the provisions of Code of Civil Procedure section 170.6 as a condition of intervention." (Id. at p. 72, fn. 2.) But the case does not mention whether that condition was court-imposed, and if it was, whether such a restriction would be valid. 18 to enforce statutory rights. (Topa Ins. Co. v. Fireman's Fund Ins. Cos. (1995) 39
Cal.App.4th 1331, 1344.) Among these powers is the ability to "make discretionary
orders with reasonable conditions." (Venice Canals Resident Home Owners Assn. v.
Superior Court (1977) 72 Cal.App.3d 675, 679.) For example, a court may condition
entering a temporary stay on requiring the posting of a bond or undertaking to protect
affected third parties. (Id. at pp. 679−680.) A court may likewise require parties to
engage in mandatory settlement negotiations and place reasonable conditions (such as
personal appearance) on their participation. (Wisniewski v. Clary (1975) 46 Cal.App.3d
499, 505.) On the other hand, a court has no inherent power to override a statute or
established principles of law. (Rutherford, at p. 967.) For example, it may not impose
attorney's fees as a sanction where fees were not authorized by contract or law.
(Wisniewski, at p. 506.) From these general principles we infer that a trial court has
inherent power to place reasonable conditions on intervention.
Federal authorities help refine that rule. Although not identical in all respects,
section 387 is modeled in part after rule 24 of the Federal Rules of Civil Procedure.
Statutory language allowing intervention of right was added to section 387 in 1977 and
"is in substance an exact counterpart" to the parallel federal rule. (Hodge, supra, 130
Cal.App.4th at p. 556; Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164
19 Cal.App.4th 1416, 1423.) 11 It follows that the Legislature must have intended that the
two mandatory intervention statutes should have the same meaning, and we may look to
authorities construing the parallel federal rule for guidance. (Hodge, at p. 556; Siena
Court, at p. 1423; Edwards, supra, 29 Cal.App.5th at pp. 732−733.)
Justice William Brennan suggested an approach to evaluating the scope of a
court's power to restrict intervention in a concurring opinion in Stringfellow v. Concerned
Neighbors in Action (1987) 480 U.S. 370 (Stringfellow). He reasoned that although
courts may impose reasonable conditions of intervention, a district court "has less
discretion to limit the participation of an intervenor of right than that of a permissive
intervener." (Id. at p. 382 (conc. opn. of Brennan, J.).) Unlike the permissive intervener,
the intervener of right has "an interest at stake which the other parties will not fully
protect, and which the intervenor can fully protect only by joining the litigation." (Id. at
p. 382, fn. 1 (conc. opn. of Brennan, J.).) Nevertheless, even interveners of right " 'may
11 Section 387, subdivision (d)(1) provides: "The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: [¶] (A) A provision of law confers an unconditional right to intervene. [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties." Rule 24(a) of the Federal Rules of Civil Procedure provides, "On timely motion, the court must permit anyone to intervene who: [¶] (1) is given an unconditional right to intervene by a federal statute; or [¶] (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." 20 be subject to appropriate conditions or restrictions responsive among other things to the
requirements of efficient conduct of proceedings.' " (Id. at p. 383, fn. 2 (conc. opn. of
Brennan, J.).) Later cases have followed Justice Brennan's suggested approach.
Because permissive intervention "is addressed to the discretion of the court," a
district court "may impose various conditions or restrictions on the scope of
intervention." (Lesz v. Kavanaugh (N.D.Tex. 1991) 783 F.Supp. 286, 292.) For
example, in Department of Fair Employment & Housing v. Lucent Technologies, Inc.
(9th Cir. 2011) 642 F.3d 728 (DFEH), a California agency sued Lucent Technologies for
violating the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) by
terminating its employee. The district court allowed permissive intervention by the
aggrieved employee, but to avoid duplication it only permitted him to litigate "those
claims not asserted by DFEH." (DFEH, at p. 741.) In addition, the court restricted the
employee from duplicating DFEH's discovery requests and prevented him from seeking
attorney's fees for work performed on DFEH's claims or work duplicating DFEH's
efforts. (Ibid.) These various conditions, including the preemptive limit on recoverable
attorney's fees, did not amount to an abuse of discretion. (Id. at pp. 741−742; see also
Stringfellow, supra, 480 U.S. at p. 378 [restricting permissive intervener's claims and
rights to discovery did not amount to constructive denial of citizens group's motion to
intervene].)
Courts may likewise impose reasonable conditions "of a housekeeping nature" on
interveners of right. (7C Wright, Miller & Kane, Fed. Practice & Procedure (3d ed.
2007), § 1922, pp. 630−632.) A unilateral right to intervene "does not prevent the
21 imposition of reasonable limitations on Applicants' participation to ensure the efficient
adjudication of the litigation." (United States v. Duke Energy Corp. (M.D.N.C. 2001)
171 F.Supp.2d 560, 565 (Duke); see Beuregard, Inc. v. Sword Services LLC (5th Cir.
1997) 107 F.3d 351, 353 [same].) For example, where interveners of right in public-law
litigation "have a sufficient interest to intervene as to certain issues in an action without
having an interest in the litigation as a whole," it may be reasonable "to limit intervention
as of right to discrete phases of the litigation." (Harris v. Pernsley (3d Cir. 1987) 820
F.2d 592, 599 & fn. 11; see also United States v. Detroit (6th Cir. 2013) 712 F.3d 925,
931−932.) Likewise, to avoid duplication, expense, and delay when discovery is already
underway, a magistrate judge may require leave of court for the intervener to initiate
unilateral independent discovery. (Duke, at p. 565.)
These cases stand for the proposition that just as a court has inherent case
management authority to place reasonable limits on the original parties as to procedural
matters, scheduling, and discovery, it may likewise place such restrictions on interveners
of right. Because an intervenor of right necessarily has an interest at stake that the
original parties will not adequately protect, it "therefore has an interest in the litigation
similar to that of the original parties." (Stringfellow, supra, 480 U.S. at p. 382, fn. 1
(conc. opn. of Brennan, J.).)
By contrast, a court abuses its discretion by severely restricting the participation of
an intervener of right. (Columbus-America Discovery Group v. Atlantic Mutual Ins. Co.
(4th Cir. 1992) 974 F.2d 450, 469−470 [court could not effectively deny all discovery to
intervener of right] (Columbus).) "While the efficient administration of justice is always
22 an important consideration, fundamental fairness to every litigant is an even greater
concern." (Id. at p. 470.) A court consequently has limited authority "to make significant
inroads on the standing of an intervenor of right; in particular, it should not be allowed to
limit the intervenor in the assertion of counterclaims or other new claims." (7C Wright,
Miller & Kane, supra, § 1922; see Florida Medical Assn., Inc. v. Dept. of Health, Educ.,
& Welfare (M.D.Fla. May 18, 2011, No. 3:78–cv–00178–MMH–MCR) 2011
U.S.Dist.Lexis 11180, *21 [rejecting party's request to strike intervener's cross-claims as
a condition of intervention of right] (Florida).) As one scholar put it, reasonable limits
on interveners of right "do not preclude effective presentation of the intervener's interest."
(Shapiro, Some Thoughts on Intervention before Courts, Agencies, and Arbitrators
(1968) 81 Harv. L.Rev. 721, 756.)
In short, although the issue is one of first impression in California, federal
authorities help us derive the following guidelines. A trial court may place reasonable
conditions on a nonparty's intervention under section 387, consistent with its inherent
authority to ensure efficient case management. Conditions may be placed both on
permissive interveners and interveners of right. Where intervention is of right, however,
a court has less leeway to limit a nonparty's participation. (See Stringfellow, supra,
480 U.S. at p. 382 (conc. opn. of Brennan, J.); 7C Wright, Miller & Kane, supra, § 1922.)
Although restrictions of a "housekeeping" nature may be allowed—e.g., to avoid
unnecessary duplication—these limitations may not impair an intervener of right from
presenting its interest in the same manner as an original party. (See 7C Wright, Miller &
Kane, supra, § 1922.)
23 We review the propriety of conditions imposed for abuse of discretion. (See
Columbus, supra, 974 F.2d at p. 470; In re Financial Oversight and Management Board
for Puerto Rico (1st Cir 2017) 872 F.3d 57, 64.) So long as there exists a reasonable
justification for the condition imposed, the trial court's decision will not be disturbed.
(See Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) "Nevertheless, trial court discretion is
not unlimited. 'The discretion of a trial judge is not a whimsical, uncontrolled power, but
a legal discretion, which is subject to the limitations of legal principles governing the
subject of its action, and to reversal on appeal where no reasonable basis for the action is
shown.' " (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d
348, 355.)
Turning to our record, the analysis here is not close. The trial court conditioned
intervention by the ACLU and Media interveners on striking their requests for attorney's
fees. Section 1021.5 permits an award of attorney's fees for litigation undertaken to serve
an important public interest, as intervention here does. (Pasadena Police, supra, 22
Cal.App.5th at pp. 165−166; Metropolitan Water, supra, 42 Cal.App.5th at p. 303.)
Once leave is granted, interveners stand on equal footing with the original parties,
including their ability to request attorney's fees pursuant to section 1021.5. (Stewart,
supra, 126 Cal.App.4th at p. 87.) Although the statute is phrased in permissive terms, a
court's discretion to deny attorney's fees under section 1021.5 to a party that meets the
statutory requirements is limited: fees must be awarded unless special circumstances
would render an award unjust. (Lyons, supra, 136 Cal.App.4th at p. 1344.)
24 Given the weighty policy considerations that motivated the enactment of section
1021.5, we struggle to see how a court could reasonably condition even permissive
intervention on entirely forgoing private attorney general fees. The interests served by
this type of attorney's fee award—the desire to further litigation in the public interest—
appear unrelated to whether a litigant intervenes permissively or as of right. 12 And
whether intervention is permissive or compulsory, telling interveners they must file a
separate lawsuit to seek attorney's fees under section 1021.5 would seem to interfere with
the salutary objectives of intervention—i.e., avoiding delay and a multiplicity of suits.
(Good, supra, 17 Cal.3d at p. 736.)
In any event, we need not resolve the broader question. A court has less discretion
to restrict participation of by intervener of right, and the ACLU and Media interveners
qualify for such intervention. It was an abuse of discretion to condition participation by
interveners of right on forgoing their otherwise appropriate requests for statutory
attorney's fees against the POAs under section 1021.5. We therefore reverse the order
imposing that condition for intervention.
On remand, the ACLU and Media interveners are entitled to request attorney's fees
under section 1021.5 against the POAs "for [their] work during all stages of this case,
including the present appeal." (Pasadena Police, supra, 22 Cal.App.5th at p. 166.)
12 The same could be said for attorney's fees under Government Code, section 6259, subdivision (d), which serve "to encourage members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure." (Pasadena Police, supra, 22 Cal.App.5th at p. 168; see Filarsky, supra, 28 Cal.4th at p. 427 [fee- shifting incentivizes members of the public to seek enforcement of PRA rights].) 25 Many of the concerns raised by the POAs as to whether the interveners unnecessarily
expanded the scope of the litigation, or whether their efforts were necessary to achieve
the outcome, can be addressed in resolving the attorney's fee motion itself. (See Whitley,
supra, 50 Cal.4th at p. 1226 ["the court may legitimately restrict the award to only that
portion of the attorneys' efforts that furthered the litigation of issues of public
importance"].) Suffice to say, the potential merits of the interveners' claims for attorney's
fees "are far too complex to take up on (or serve as grounds to limit) intervention."
(Florida, supra, 2011 U.S.Dist.Lexis 11180, *21.)
DISPOSITION
The February 15 order conditioning intervention by the ACLU and Media
interveners on striking their requests for attorney's fees is reversed, and the superior court
is directed to enter a new order granting intervention without that condition. The matter
is remanded for further proceedings consistent with this opinion to permit the ACLU and
Media interveners to request attorney's fees under section 1021.5 against the POAs. The
ACLU interveners are entitled to recover their costs on appeal from the POAs. The
Media interveners are entitled to recover from the POAs that portion of the appellate
costs they incurred in their appeal against the POAs, but not any portion of costs incurred
26 as to their appeal against the City of Oceanside, City of El Cajon, or National City and
their respective police chiefs.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.