(Santa Clara County Super. Ct. No. CV038065), Trial Judge: Honorable Kevin E. McKenney.
The opinion of the court was delivered by: Mihara, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Martin Ramon brought a class action to prevent the County of Santa Clara (County) from billing individuals for the cost of their arrests for driving under the influence of alcohol or drugs when there was no emergency "incident" as the term is used in Government Code section 53150. After the parties entered into a settlement agreement that provided injunctive and declaratory relief to the class, the trial court awarded attorney's fees to Ramon pursuant to Code of Civil Procedure section 1021.5.*fn2 On appeal, Ramon challenges the amount of the attorney's fees award. He contends that the trial court erred in concluding that the case of Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169 (Connerly) precluded the recovery of attorney's fees to Ramon for work performed by his counsel in opposing the County's amicus curiae brief in a related lawsuit that resolved the issue in the present case. We agree and remand for a determination of the appropriate fee award for such work.
The County cross-appeals and argues that the trial court abused its discretion in awarding attorney's fees for services provided by Ramon's counsel in a previous action filed in Alameda County. We reject this argument.
I. Factual and Procedural Background
In July 2002, Ramon was one of several plaintiffs naming the County and other public entity defendants in Dubray v. City of Dublin, et al., in Alameda County Superior Court case No. 2002057128 (Dubray). At issue was whether Government Code section 53150 et seq. authorized governmental agencies to bill individuals, who had been arrested for driving under the influence without being involved in an accident, for emergency response costs. In August 2002, the first amended complaint, which named eight individual plaintiffs and 10 separate public entity defendants, was filed in Dubray. Each plaintiff was a resident of a different county.
In March 2003, a second amended complaint was filed in Dubray, which increased the number of individually named plaintiffs to 13 and public entity defendants to 23. In response to the second amended complaint, the defendants raised standing and joinder issues. In June 2003, the trial court ruled on several joinder and class action issues, and sustained the defendants' demurrer to the second amended complaint with leave to amend.
After the defendants filed demurrers to the plaintiffs' third amended complaint in Dubray, the trial court ruled that the plaintiffs' allegations of commonality were insufficient to support a defendant class and sustained a demurrer to the class action allegations without leave to amend. The trial court also ordered a case management conference to address procedural issues involving its jurisdiction over claims against non-Alameda County entities.
In November 2003, the trial court issued an order that stayed all proceedings against non-Alameda County entities, including the County, pending the plaintiffs' decision regarding the filing of a petition for coordination. The plaintiffs' petition for coordination was denied in February 2004. In June 2004, the trial court dismissed the Dubray action as to all non-Alameda County entities on the ground of misjoinder.
In March 2005, Ramon filed a class action complaint in Santa Clara County Superior Court against the County seeking declaratory and injunctive relief, and alleging breach of contract, money had and received, and a violation of the equal protection clause. In May 2005, the County filed a demurrer to the complaint. Following the filing of opposition by Ramon, the trial court overruled in part and sustained in part the County's demurrer.
In September 2005, Ramon filed a first amended class action complaint. After the County filed an answer, the trial court imposed a stay upon request by the parties pending the decision in California Highway Patrol v. Superior Court (Allende) (2006) 135 Cal.App.4th 488. The issue in Allende was which costs could be recovered under Government Code section 53150. The County and the League of California Cities filed an amicus brief in Allende in which they argued, as the County asserted in the present case, that emergency response costs were recoverable even when there had been no incident requiring an emergency response. Ramon's attorneys filed opposition to the County's amicus brief. On January 4, 2006, the reviewing court issued its decision in Allende, in which, among other things, it rejected the County's position. Ramon and the County then executed a settlement agreement in November 2006. Pursuant to this agreement, the County agreed to end its practice "of billing 'emergency response' costs to persons arrested for driving under the influence of alcohol or drugs ('DUI') in situations in which there has been no 'incident resulting in an appropriate emergency response' as that phrase is used in California Government Code section 53150...." The County also agreed to pay "reasonable... attorney fees as determined by the Court," $1,000 in costs, and $1,000 to Ramon.
In February 2007, Ramon filed his motion for attorney's fees pursuant to the terms of the settlement agreement and section 1021.5. Ramon argued that reasonable attorney's fees included not only compensation for certain services rendered in Dubray, but also for those rendered in Allende.
On November 28, 2007, the trial court issued its order on Ramon's motion for attorney's fees and costs. The trial court awarded Ramon $127,799.90 for attorney's fees incurred in the present case. The trial court found that Ramon had submitted sufficient evidence of all hours reasonably spent and of the reasonableness of counsel's hourly rates. The trial court denied Ramon's request for $81,539.10 for attorney's fees incurred in opposing the County's amicus efforts in Allende, reasoning that, "[t]raditionally, amici curiae have not been considered parties liable for attorney's fees. (See Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, 1177.) [The County] was not a party to the Allende matter, and participated in the Allende appeal solely in the capacity of an amicus curiae." The trial court then awarded Ramon attorney's fees incurred in Dubray in the amount of $29,943.24.
Ramon filed a motion for reconsideration, which the trial court granted. The trial court modified the order to award Ramon $1,000 in costs. It also modified the amount for attorney's fees incurred in Dubray and awarded $44,614.20. The order also stated that the total award of fees and costs was $173,414.10, and that "[t]o the extent possible, the attorney's fees" should be paid out of the class fund as provided in the parties' settlement agreement.
Ramon argues that the trial court erred in denying his request for attorney's fees that were incurred in opposing the ...