VIEN T. BUI, Plaintiff and Respondent,
TRANG KIM NGUYEN et al., Defendants and Appellants.
Santa Clara County Superior Court No.: 1-10-CV-161914 The Honorable Franklin Bondonno Judge
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Dumont Law Offices and Mary T. Dumont for Plaintiff and Respondent.
Jaurigue Law Group, Michael J. Jaurigue, Nam H. Le, Christine M. Pham and Abigail Ameri Zelenski for Defendants and Appellants.
When a lawsuit enforces “an important right affecting the public interest” and the statutory criteria under section 1021.5 of the Code of Civil Procedure are satisfied, a private litigant may recover his or her attorney fees. One criterion under section 1021.5 is that private enforcement of the public right vindicated in the lawsuit was necessary. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214 [117 Cal.Rptr.3d 342, 241 P.3d 840].) In this appeal, we conclude that plaintiff, who was awarded damages for injuries arising from negligently performed dental work and who obtained an injunction prohibiting defendant Trang Kim Nguyen (a dental technician) from identifying herself as a dentist, was not entitled to attorney fees under section 1021.5 because he did not show that private enforcement of a public right was necessary.
A jury found in plaintiff Vien T. Bui’s favor on an intentional misrepresentation claim and awarded him $150, 000 against defendant, Hi-Tech Dental, Inc. (Hi-Tech). It also awarded $50, 000 against Hi-Tech’s owner and dental
assistant, Trang Kim Nguyen. (Nguyen; hereafter, appellants Hi-Tech and Nguyen are sometimes collectively referred to as Dental Clinic.) About three weeks later and before judgment was entered, Bui obtained a permanent injunction requiring Nguyen (1) to identify herself as a dental assistant, not a dentist, in all Hi-Tech advertising, and (2) to refrain from wearing a white dental lab coat. Bui made a postjudgment motion for more than $500, 000 in attorney fees pursuant to section 1021.5. He claimed he had acted in the role of a private attorney general in obtaining injunctive relief that was beneficial to a large group of dental patients potentially seeking the services of Dental Clinic. The court granted Bui’s motion, awarding $126, 974.13.
On appeal, Dental Clinic contends the trial court erred in awarding attorney fees to Bui under section 1021.5. It asserts (1) there was no substantial evidence the injunctive relief Bui obtained conferred a significant benefit upon the general public or a large group of persons; (2) the record does not support the finding there was a necessity of private enforcement under subdivision (b) of section 1021.5; and (3) there was no statutory finding that the burden of private enforcement outweighed Bui’s personal stake in the case.
We conclude the court abused its discretion in granting attorney fees under section 1021.5. Bui failed to establish that private enforcement was necessary to protect the public from false advertising by Nguyen. Because the necessity of private enforcement is one of the required elements under section 1021.5, the court erred in awarding attorney fees under that statute. We will therefore reverse the order.
On January 22, 2010, Bui filed suit against Hi-Tech and Nguyen (case No. 1-10-CV161914). He alleged seven causes of action, captioned as intentional misrepresentation, battery, false imprisonment, fraud (concealment), unfair business practices, intentional infliction of emotional distress, and negligence. The complaint did not allege that Hi-Tech and Nguyen engaged in false advertising. Nor did it contain a prayer for any form of injunctive relief.
On February 11, 2010, Bui filed a separate suit Bui v. Due (Super. Ct. Santa Clara County, No. 1-10-CV-163603) against three licensed dentists:
Frank Tran (Trail), Doina Balaban (Balaban), and Lien Hoang (Hoang). The first amended complaint was captioned as one for “dental negligence and fraud.” (Capitalization & boldface omitted.) Bui alleged that Tran, Balaban, and Hoang were at all relevant times employed by or had contracts with Hi-Tech. He alleged that between February 2008 and November 2008, he suffered injuries as a result of negligent dental treatment performed by Tran. He also alleged a separate negligence claim against Balaban, as well as dental negligence and fraud claims against Hoang. Based upon the stipulation of the parties, the court ordered the two cases consolidated.
Bui’s case against Dental Clinic apparently proceeded to trial in early 2012. On February 28, 2012, the jury returned a verdict awarding Bui (1) $150, 000 against High-Tech for intentional misrepresentation, and (2) $50, 000 against Nguyen on the same cause of action. According to a recital in the court’s permanent injunction, the $50, 000 awarded to Bui against Nguyen was “for past non-economic loss, including physical pain and mental suffering.” The trial court then reduced the verdict to a joint and several award of $50, 000 against Hi-Tech and Nguyen, based upon its conclusion that Hi-Tech’s liability was founded upon respondeat superior liability.
About three weeks after the jury verdict, on March 23, 2012, Bui filed a motion for injunctive relief, citing Business and Professions Code sections 17535 (injunctive relief for false advertising) and 17203 (injunctive relief to address unfair business practices). Based upon the record before us, this motion was the first indication by Bui that he intended to seek equitable relief concerning alleged unlawful business practices or false advertising. He requested a permanent injunction ordering Dental Clinic to (1) modify its radio and television advertisements that featured Nguyen to include a specific disclaimer that she was not a dentist and that only licensed dentists could diagnose the consumer’s dental problems; (2) monitor Hi-Tech’s Web site and affirm the accuracy of its contents; (3) modify Hi-Tech’s Web site to place the names of Hi-Tech’s dentists on page one and keep the roster up to date; (4) modify the Web site to include a disclaimer on page one that patients could be
treated only by licensed dentists and that Nguyen was not a licensed dentist; and (5) display at the Hi-Tech facility photographs of licensed dentists currently practicing at the clinic with an indication that they were licensed dentists, and to display on the same wall the photographs and licenses of the dental staff who were not licensed dentists as well as a sign indicating that status. Bui’s motion also sought an order that Nguyen at all times comply with the limitations of her license, including that she at all times be under the supervision of a licensed dentist, and that she never give a diagnosis or plan of treatment for any patient’s dental condition. There is nothing in the record indicating that Dental Clinic opposed Bui’s motion for injunctive relief.
The court granted the motion in part as against Nguyen only on June 12, 2012. It found that a permanent injunction should issue requiring Nguyen to (1) identify herself as a dental assistant rather than a dentist in any advertising, and (2) refrain from wearing a white dentist’s coat at the Hi-Tech facility. The court based its decision on the fact that the jury had found in favor of Bui, 12-0, on his claim of intentional misrepresentation. That claim was based in part on allegations that Nguyen had worn a “ ‘doctor’s coat’ ” and had appeared to Bui to be a dentist. It was also based on Bui’s testimony that he had believed Nguyen to be a dentist. The court observed that Bui had presented six witnesses (other patients) “[t]o buttress his claims” and their testimony was “of uneven value.” The court concluded, however, that one of those witnesses had believed Nguyen to be a dentist and it could be inferred from the testimony of two other witnesses that they had also believed Nguyen to be a dentist. The court therefore issued a permanent injunction against Nguyen pursuant to its ruling on the intentional misrepresentation cause of action of the complaint.
Bui then filed a motion for attorney fees under section 1021.5, which Dental Clinic opposed. Both Bui’s motion and Dental Clinic’s opposition to the motion were supported by numerous declarations. On December 28, 2012, the court granted ...