Super. Ct. No. CV07-0525 San Luis Obispo County
CERTIFIED FOR PUBLICATION
The San Luis Obispo County Democratic Central Committee (Committee) appeals from a postjudgment order denying its motion for reasonable attorney fees under the "private attorney general statute," Code of Civil Procedure section 1021.5 (section 1021.5). The Committee made the motion after prevailing in an appeal filed by Gail Wilson, respondent. This court decided the appeal in a published opinion, Wilson v. San Luis Obispo County Democratic Central Committee (2009) 175 Cal.App.4th 489 (Wilson I).
Respondent was a member of the Committee. Litigation between the parties arose after the Committee had removed respondent from office. Based upon the recent California Supreme Court cases of Adoption of Joshua S. (2008) 42 Cal.4th 945 (Joshua S.) and Conservatorship of Whitley (2010) 50 Cal.4th 1206 (Whitley), we affirm the trial court's order insofar as it denies recovery of attorney fees incurred by the Committee in defending against respondent's claims concerning her removal from office and right to reinstatement. We reverse the order insofar as it denies recovery of attorney fees incurred by the Committee in defending against respondent's claims concerning the composition of the Committee's membership.
In June 2006 respondent was appointed in lieu of election to the office of Committee member. In February 2007 respondent was removed from office by a two-thirds vote of Committee members. The removal was pursuant to the Committee's bylaws. "[Respondent] filed a petition for a writ of mandate to compel [the Committee] to reinstate her as a member . . . and 'to remove as Committee Members . . . all persons not duly elected under the California Elections Code or serving as ex officio members pursuant to [Elections Code sections] 7206 and 7211.' " (Wilson I, supra, 175 Cal.App.4th at p. 495.) If the relief requested had been granted, 22 out of 48 Committee members would have been removed from office.
The trial court denied the petition, and respondent appealed to this court. On appeal, respondent made four contentions: "(1) Committee bylaws authorizing her removal are invalid because they conflict with the Elections Code and are unconstitutionally vague; (2) her removal violated her First Amendment rights to free speech and political association; (3) her removal violated her constitutional right to procedural due process and her common law right to fair procedure; and (4) Committee bylaws unlawfully expanded the membership to include persons who are not statutorily authorized to become members." (Wilson I, supra, 175 Cal.App.4th at p. 492.) We rejected these contentions and affirmed the trial court's judgment.
The Committee filed a section 1021.5 motion for reasonable attorney fees incurred in defending against respondent's action in the trial court and on appeal. The amount requested was $102,214.55. The trial court denied the motion. It relied on Joshua S, supra, 42 Cal.4th 945.
"Under . . . 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." (Whitley , supra, 50 Cal.4th at pp. 1210-1211.) "[E]ligibility for section 1021.5 attorney fees is established when '(1) plaintiffs' action [or defendants' defense of that 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." ' [Citation.]" (Id., at p. 1214, fn. omitted.)*fn1
In Joshua S., Sharon gave birth to two children through artificial insemination. When both children were born, Sharon was in a committed relationship with Annette. While retaining her parental rights, Sharon consented to Annette's adoption of the children. When Sharon and Annette later separated, Annette filed a motion for an order of adoption. Sharon moved for court approval to withdraw her consent to adopt. Sharon argued that the form of second parent adoption sought by Annette was unlawful. The California Supreme Court held that this form of second parent adoption was lawful. Annette subsequently moved for attorney fees pursuant to section 1021.5. Annette argued that she was entitled to the fees because she "had prevailed in the Supreme Court on the second parent adoption issue, an issue of benefit to a large class of persons." (Joshua S., supra, 42 Cal.4th at p. 950.) The trial court awarded attorney fees to Annette, but the Court of Appeal reversed.
Our Supreme Court noted "that the litigation here did yield a substantial and widespread public benefit." (Joshua S., supra, 42 Cal.4th at p. 952.) But the court concluded that "even when an important right has been vindicated and a substantial public benefit conferred, and when a plaintiff's litigation has transcended her personal interest, . . . section 1021.5 was not intended to impose fees on an individual seeking a judgment that determines only his or her private rights, but who has done nothing to adversely affect the public interest other than being on the losing side of an important appellate case." (Id., at p. 958.) The court found that Sharon "fits squarely into this category." (Ibid.) The court explained: " . . . Sharon was a private litigant with no institutional interest in the litigation, and the judgment she sought in the present case would have settled only her private rights and those of her children and Annette. She simply raised an issue in the course of that litigation that gave rise to important appellate precedent decided adversely to her." (Id., at p. 957, fn. omitted.) "[S]section 1021.5 attorney fees should not be imposed on parties such as [Sharon], an individual who has only engaged in litigation to adjudicate private rights from which important appellate precedent happens to emerge, but has otherwise done nothing to compromise the rights of the public or a significant class of people." (Id., at p. 954.)
The trial court issued a seven-page ruling. The court concluded that "the elements of [section] 1021.5 appear to have been met." The court noted that "the litigation did vindicate important public rights of a political committee, and it conferred a significant benefit on the public in a published opinion upholding important First Amendment rights of political parties and their members." The court also recognized that respondent "was not merely seeking a determination of her private rights, but [was] also seeking broader relief with respect to removal of all [Committee] members who had not been duly elected under the Elections Code, as well as a ban on selecting new members except pursuant to the Elections Code." The court stated, "Clearly, ...