Tuesday, March 8, 2016

Private AG Found Unecessary in Case Brought by Public Entity

San Diego Municipal Employees Assoc. v. City of San Diego, No. D066886 (D4d1 Feb. 9, 2016)

 A public employee retirement fund sued a city, challenging its assertion that the fund members were required to contribute more to their retirement. A bunch of other unions intervene on the side of the fund. When the case settles, the intervening unions seek fees under Code of Civil Procedure § 1021.5 based on a private attorney general theory. But § 1021.5 applies only when private enforcement is truly necessary. Here, the fund—a public entity—was already in the case. When there’s already a public entity prosecuting a case on behalf of a part of the general public, to show the requisite necessity, a private litigant must “make a significant showing that its participation was material to the result.” The trial court found that the Unions didn’t make that showing here, and the Court of Appeal affirms. 

Although the Unions’ lawyers did some non-redundant discovery work that was helpful, “the mere fact that witnesses or evidence available to the public agency were examined or introduced by counsel for a private party does not suffice to establish that their efforts were necessary for purposes of section 1021.5.” Since the Unions’ counsel didn’t do anything particularly unique that contributed to the success of the litigation, the trial court did not err in finding that the necessity standard had not been met.


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