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In re Conservatorship of the Person and Estate of Whitley

November 8, 2010


Ct.App. 1/4 A122896 Sonoma County Super. Ct. No. SPR-061684 Judge: Elaine M. Rushing

The opinion of the court was delivered by: Moreno, J.

Under Code of Civil Procedure section 1021.5, a litigant who acts as a private attorney general and is a successful party in the litigation may under certain circumstances recover attorney fees from the opposing parties. One of the requirements that courts are directed to consider when determining eligibility for attorney fees is "the necessity and financial burden of private enforcement." As explained below, courts have long construed this language to mean, among other things, that a litigant who has a financial interest in the litigation may be disqualified from obtaining such fees when expected or realized financial gains offset litigation costs. What is less clear is whether non-financial, non-pecuniary personal interests in the litigation, such as vindicating the best interests of a child or sibling, can also serve to render a litigant ineligible for attorney fees, as some Courts of Appeal have held. That issue is squarely presented by this case.

We conclude that a litigant's personal non-pecuniary motives may not be used to disqualify that litigant from obtaining fees under Code of Civil Procedure section 1021.5. The contrary interpretation, which was adopted by the Court of Appeal in this case, has no basis in the language, legislative history, or evident purpose of section 1021.5. As discussed below, the purpose of section 1021.5 is not to compensate with attorney fees only those litigants who have altruistic or lofty motives, but rather all litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms. Accordingly, we reverse the Court of Appeal's judgment and remand for proceedings consistent with this opinion.


Most of the facts, taken largely from the Court of Appeal opinion, are not in dispute. Maldonado has served for over 25 years as conservator for her brother, Roy Whitley, who is a developmentally disabled adult with epilepsy, mild cerebral palsy, and profound mental retardation. In Conservatorship of Whitley (2007) 155 Cal.App.4th 1447 (Whitley I), the Court of Appeal considered Maldonado's challenge to a trial court order, entered over her objection, granting the North Bay Regional Center's request to move Whitley from the Sonoma Developmental Center, where he had lived for over 40 years, to Miracle Lane, a smaller, community-based facility. The trial court's decision to approve Whitley's move to Miracle Lane came after a two-day evidentiary hearing in the superior court, as contemplated in the settlement of an unrelated federal case (see Richard S. v. Department of Developmental Services (C.D.Cal., Mar. 27, 2000, No. SA CV 97-219-GLT (ANx)) 2000 U.S. Dist. Lexis 22750) (Richard S.), revd. on other grounds in Cable v. Dept. of Developmental Services (9th Cir. 2002) 54 Fed.Appx. 263). (Whitley I, at p. 456.)

The Richard S. settlement dictated the procedures to be followed when a member of the developmentally disabled person's interdisciplinary team objects to a community placement decision. As Whitley I explains, "by the terms of the settlement, whenever a recommendation is made that a developmental center resident is to be moved to a community living arrangement and a placement has been located, [the State Department of Developmental Services] sends a written notice of the intent to transfer to the superior court having jurisdiction over the resident. If any team member disagrees with the plans to move the resident into the community, the notice includes a statement to that effect along with a 'Request for Hearing' form if the objector wishes to be heard on the issue of placement. [¶] [I]t is up to the court to determine whether or not it will hold a hearing. If the court takes no action on the request, the settlement agreement provides that the transfer to the community living arrangement proceeds as scheduled. If a hearing is scheduled, the transfer is not made until after the court's ruling." (Whitley I, supra, 155 Cal.App.4th at p. 1459.)

The Court of Appeal reversed and remanded, finding that the superior court lacked jurisdiction to conduct the Richard S. hearing on the propriety of Whitley's community placement. (Whitley I, supra, 155 Cal.App.4th at p. 1464.) The Court of Appeal concluded the only means by which Maldonado's objection to the North Bay Regional Center's community placement decision could be resolved was by invoking the statutorily authorized administrative fair hearing provisions provided under the Lanterman Developmental Disabilities Services Act (Lanterman Act) (Welf. & Inst. Code, § 4500 et seq.). (Whitley I, supra, at pp. 1462-1463.) "In contrast to the discretionary judicial procedure forged in the Richard S. litigation, the Lanterman Act guarantees an applicant for or recipient of services or his or her representative 'who is dissatisfied with any decision or action of the service agency' the right to an administrative fair hearing. (Welf. & Inst. Code, § 4710.5, subd. (a).) The statute also provides detailed provisions for claimants who wish to attempt to resolve the issue through a voluntary informal meeting or through voluntary mediation before proceeding to an administrative fair hearing." (Whitley I, supra, 155 Cal.App.4th at pp. 1459-1460.) The court cited two reasons to support its conclusion that the Lanterman Act procedures rather than the Richard S. procedures govern. First, Maldonado was not a party to the Richard S. settlement, so it was not binding on her. (Whitley I, supra, at pp. 1461-1462.) Second, the Lanterman Act's comprehensive approach to resolving disagreements concerning placement decisions--including a voluntary meeting, voluntary mediation, and an administrative fair hearing with judicial review--showed the Legislature's intent that the Lanterman Act's fair hearing procedures be the exclusive remedy for actions by legal representatives, such as Maldonado, asserting an objection to a community placement decision. (Whitley, supra, at pp. 1462-1463.)

After Whitley I was issued, Maldonado moved for an award of $177,887 in attorney fees under Code of Civil Procedure section 1021.5.*fn1 An award was warranted, according to Maldonado, because "Whitley created a procedural precedent that . . . conferred a significant benefit on the public and a large class of persons." Additionally, "Maldonado's victory on appeal transcended her personal interest in Whitley's welfare."

The North Bay Regional Center did not dispute the reasonableness of the hours Maldonado's appellate counsel devoted to this case or the rates charged. Nor did it dispute that a fee award is permissible even though her appellate counsel agreed to handle the case on a pro bono basis. However, it opposed Maldonado's request for attorney fees on the ground that this case does not meet all the criteria for an award of fees under section 1021.5, arguing that even if an important public right was at issue, a significant benefit was not conferred upon the public or a large class of persons, and the financial burden imposed on Maldonado was not out of proportion to her personal interest in blocking her brother's transfer. The trial court agreed with both of these arguments and denied the attorney fee request.

Maldonado appealed, contending among other things that section 1021.5's requirement that fees be awarded only when the "necessity and financial burden of private enforcement . . . make the award appropriate" means that litigants may not be eligible for attorney fees when they have an individual pecuniary stake in the litigation, but that litigants may not be disqualified simply because they have a personal, non-pecuniary interest. Because Maldonado did not have a pecuniary interest in the litigation, but only an interest related to her brother's welfare, she argued that she met the "necessity and financial burden" requirement. The Court of Appeal disagreed, holding, in accordance with a number of Court of Appeal cases discussed below, that a strong non-pecuniary personal interest in the litigation, such as Maldanado's in the present case, could disqualify a litigant from obtaining attorney fees under section 1021.5. We granted review to address this issue.


We initially consider the proper standard of review. " 'On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.' " (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) Here, we granted review to address a particular issue of law that requires us to construe a statute: specifically, whether a litigant's non-pecuniary interests can disqualify him or her from eligibility for attorney fees under section 1021.5. We review this question of law de novo.

In matters of statutory construction, "[w]e apply well-established principles of statutory construction in seeking 'to determine the Legislature's intent in enacting the statute " 'so that we may adopt the construction that best effectuates the purpose of the law.' " ' [Citations.] We begin with the statutory language because it is generally the most reliable indication of legislative intent. [Citation.] If the statutory language is unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls. [Citation.]" (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 211.) But if the statutory language may reasonably be given more than one interpretation, courts may employ various extrinsic aids, including a consideration of the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. (Ibid.)

We begin by examining the language of the statute. As we summarized shortly after the statute was enacted, eligibility for section 1021.5 attorney fees is established when "(1) plaintiffs' action 'has resulted in the enforcement of an important right affecting the public interest,' (2) 'a significant benefit, whether pecuniary or non-pecuniary has been conferred on the general public or a large class of persons' and (3) 'the necessity and financial burden of private enforcement are such as to make the award appropriate.' " (Woodland ...

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