Statute Solving Split Is a Clarification, Not a Change

Scott v. City of San Diego, No. D074061 (D4d1 Aug. 1, 2019)

While this appeal was pending, the Legislature amended the FEHA’s costs provision to make clear that costs could not be awarded against a plaintiff who brings a non-frivolous claim, even when that plaintiff fails to beat a Code of Civil Procedure § 998 offer. The Court of Appeal here holds that the amendment was a clarification, not a change, in the law, such that the standard could be applied to pre-amendment claims. At the time the fees were awarded, there was a split of authority in the Court of Appeal interpreting the pre-amendment statute. Plus, the legislative history of the bill contained strong statements of intent to clarify, not change, the law. That was enough to get the court here comfortable with applying the “clarified” standard to the cost award in this case.

Reversed.

§ 998 Shifts Costs in FEHA and POBRA Cases

Sviridov v. City of San Diego, No. D069785 (D4d3 Aug. 15, 2017)

The general rule in California is that a prevailing defendant can recover its costs. See Cal. Code Civ. Proc. § 1032(a). But there are various statutes that create an exception to that rule, permitting cost-shifting only when the claim is objectively devoid of merit. Two such statutes implicated here: The Fair Employment and Housing Act and the Public Safety Officers Procedural Bill of Rights Act. But in this case, costs weren’t awarded just because Defendant prevailed. They were awarded because Plaintiff rejected several offers of judgment under Code of Civil Procedure § 998 and failed to best the offers at trial. In a terse analysis, the Court of Appeal holds here that the FEHA and POBRA do not create exceptions to cost-shifting when it is imposed under § 998(c)(1), as opposed to § 1032.

Affirmed.

There's No Private Public Defender Doctrine

Save Our Heritage Org. v. City of San Diego, No. D070006 (D4d1 Apr. 27, 2017)

When an advocacy organization successfully challenges government action, it often is entitled a fee award under Code of Civil Procedure § 1021.5, which codifies California’s private attorney general doctrine. But in this case—a permitting dispute over a revitalization project in Balboa Park—the organization lost. The proponent of the permit—a committee created to shepherd the design and review process—had intervened at the trial court level and was ultimately successful in getting the approval on appeal. The question is: Can the proponent get a fee award of its own under § 1021.5?

The answer is yet, but.

Risky Move Does Not Pay Off

City of San Diego v. San Diegans for Open Gov’t, No. D068939 (on rehearing, Oct. 17, 2016)

San Diegans for Open Government—somewhat of a gadfly litigant in local matters down there—won an attorney fee award against the city in a validation action brought under Code of Civil Procedure § 861.1.

Everything that's Old Is New Again

San Diegans for Open Government v. City of San Diego, No. D068421 (D4d1 Jun. 7, 2016)

In 1994, the Legislature changed California’s general civil sanctions rules to make them look and work more like Rule 11 of the Federal Rules of Civil Procedure. The 1994 amendments added Code of Civil Procedure § 128.7, which permits a court to sanction attorneys or parties for filing meritless pleadings that are “signed” by a party or its attorney. Like Rule 11, § 128.7(c)(1) includes a “safe harbor” requiring the service of a sanctions motion twenty-one days before filing and an opportunity to correct the sanctionable pleading before the motion can be heard. It also adopts an “objectively unreasonable” standard for sanctions—proof of bad faith or ill intent are unnecessary.

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.

Affirmed.