Trial Court: Monterey County Superior Court Superior Court No. M61489 Trial Judge: Hon. Susan M. Dauphine
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
(Monterey County Super. Ct. No. M61489)
Plaintiffs Angelina Morfin Vargas and Mark Dierolf sued defendants City of Salinas and city manager, David Mora (collectively City), for alleged misuse of public funds. The suit was dismissed as a SLAPP*fn1 under Code of Civil Procedure section 425.16, the so-called anti-SLAPP law.*fn2 The ensuing judgment was affirmed by this court and by the Supreme Court. (Vargas v. City of Salinas (2009) 46 Cal.4th 1 (Vargas I).) Plaintiffs now appeal from post-judgment attorney fees orders.
Plaintiffs moved for attorney fees under section 1021.5, the private attorney general statute. Even though they lost on the merits, plaintiffs argued that their action was brought in the public interest and, since the Supreme Court had agreed with their legal analysis, they were "successful" for purposes of section 1021.5. City moved for attorney fees under section 425.16, subdivision (c), which provides for a mandatory award of attorney fees to a defendant prevailing on an anti-SLAPP motion.*fn3 Plaintiffs opposed City's motion on the ground that an award of attorney fees to a government defendant unconstitutionally chills the right of petition absent a finding that the suit fits the "sham" exception to the Noerr-Pennington doctrine.*fn4 The trial court denied plaintiffs' motion and granted City's motion. We shall affirm.
Plaintiffs were supporters of a ballot measure that would have repealed City's utility tax. (Vargas I, supra, 46 Cal.4th at pp. 7, 14.) Prior to the election, City issued a report and published several articles describing the impact upon municipal services if the measure were enacted. (Id. at p. 13.) Plaintiffs sued. They alleged that the publications were campaign materials for which City may not lawfully expend public funds and not merely informational material, which may be produced at public expense. (See Stanson v. Mott (1976) 17 Cal.3d 206.)
The trial court granted City's special motion to strike under section 425.16, finding that the case arose from City's exercise of protected speech in connection with a public issue and that plaintiffs had no probability of prevailing on the claim. Judgment was entered in favor of City. On appeal, this court rejected plaintiffs' argument that we should examine the style, tenor, and timing of the material to determine whether it was campaign literature within the meaning of Stanson v. Mott, supra, 17 Cal.3d 206. We decided that the proper test was whether the material expressly advocated a particular election result. Because the challenged material did not expressly advocate a position on the ballot measure, we affirmed the judgment. (Vargas I, supra, 46 Cal.4th at p. 15.) The Supreme Court in Vargas I disagreed with our analysis, concluding that the style, tenor, and timing standard was the appropriate one. Nevertheless, even under that standard, City's publications were not campaign materials and, therefore, plaintiffs could not demonstrate a probability of prevailing. Accordingly, Vargas I affirmed the judgment. (Id. at p. 41.)
Following issuance of the remittitur, plaintiffs filed an unsuccessful motion for new trial. Thereafter, both sides filed motions for attorney fees. In denying plaintiffs' fee motion the trial court stated, "Plaintiffs lost their case before the trial court and on appeal. After review and consideration of the record and the arguments, the Court determines that Plaintiffs' efforts did not result in the enforcement of an important right affecting the public interest, nor confer a significant benefit on the public or large class of persons." The trial court rejected plaintiffs' constitutional arguments opposing City's motion, citing Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174 (Schroeder). With only minor modifications, the court found that the fees requested were "reasonable, . . . not excessive or duplicative." The court awarded City a total of $226,928 in attorney fees and $2,495.84 in costs.
There are two main issues on appeal. The first is whether, under the circumstances of this case, plaintiffs may be deemed successful parties for purposes of a section 1021.5 attorney fees award.*fn6 The second is whether an award of attorney fees to a public entity defendant under the anti-SLAPP law chills the constitutional right of petition.
A. The Refusal to Award Fees to Plaintiffs
Section 1021.5 is a discretionary fee-shifting provision. It provides, in pertinent part: "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 non-pecuniary, 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." (Italics added.)
The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1289.) "[W]hether a party has met the statutory requirements for an award of attorney fees is best decided by the trial court, whose decision we review for abuse of discretion. [Citation.] On review, we focus on whether the court applied the proper legal standards under section 1021.5 and, if so, whether the result was within the range of the court's discretion." (Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 381 (Ebbetts Pass II).)
The preliminary consideration under section 1021.5 is the plaintiff's success. Notwithstanding the judgment against them, plaintiffs maintain that this case meets all the elements required for a section 1021.5 attorney fee award, including the requirement of success. Plaintiffs were successful, they say, because they succeeded in having Vargas I reject the "express advocacy" test. It is true that a court may find a plaintiff was successful under section 1021.5 absent a favorable final judgment, but in order to do so, the court must generally find that the plaintiff obtained relief in some other way. Under Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 567, a plaintiff is a successful party whenever he or she obtains the relief sought in the lawsuit, regardless of whether that relief is obtained " 'through a "voluntary" change in the defendant's conduct, through a settlement, or otherwise.' " To be deemed successful under Graham, the plaintiff must establish that the lawsuit was a catalyst motivating the defendant to provide the primary relief sought and that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by threat of expense. (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608.) Here, plaintiffs obtained no relief and their lawsuit had no merit. City never changed its position. The superior court, the appellate court, and the Supreme Court all agreed that publication of the challenged material was not a misuse of public funds. This is not success. The fact that the Supreme Court accepted part of plaintiffs' legal analysis does not change that.*fn7
A similar situation was considered by the court in Ebbetts Pass II, supra, 187 Cal.App.4th 376. In that case, two environmental groups had challenged the approval of a timber harvesting plan they claimed violated certain environmental laws. Upon review of the judgment, the Supreme Court agreed with the plaintiffs' preliminary contentions but decided the merits against them. (Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936.) In subsequent proceedings the trial court denied the plaintiffs' motion for attorney fees under section 1021.5 and Ebbetts Pass II upheld that decision. The appellate court concluded that to find the plaintiffs successful under the circumstances "would be an unwarranted expansion of section 1021.5." (Ebbetts Pass II, supra, at p. 388.) The plaintiffs lost "because the record did not justify their winning under the law. While it may be argued that their contentions resulted in clarification of legal issues, the fact remains that contentions do not supplant evidence. The real problem is that regardless of the expansion of the law, they did not have a factually meritorious lawsuit and, when the dust settled, their only victory was in a statement of law that when applied to the record clarified why they should lose." (Id. at pp. 387-388.) The same analysis applies here. The trial court correctly focused upon plaintiffs' lack of success and did not abuse its discretion in refusing to require defendants to pay plaintiffs' legal fees under those circumstances.
B. The Award of Attorney Fees to Defendants
1. Question Presented and Standard ...