Rich v. City of Benicia

No. 57567 (Cal. Super. Ct. November 7, 1974)

The court orders an award of attorneys' fees to plaintiff in a suit which resulted, through a stipulation, in the defendant city's undertaking to perform its duty under the California Environmental Quality Act to prepare an environmental impact report for a reconstruction project. Such an award is justified under the private attorney general exception to the general rule against attorneys' fees awards, because by bringing this action plaintiff served to effectuate a strong state policy to require careful dvtuyiny og poyrnyisl impacts before permitting the execution of projects that may significantly affect the environment. The parties are given 45 days to agree upon an appropriate amount for the award, after which time, failing agreement, the question will be submitted to the court.

Counsel for Plaintiff
John R. Wolf
144 Surrey Lane
San Rafael, Cal. 94901

Counsel for Defendants
Charles T. Williams
917 Las Juntas
Martinez, Cal. 94553

[5 ELR 20205]

Sherwin, J.

ORDER IN RE ATTORNEY'S FEES

The above entitled matter came on for hearing on Tuesday, the 12th day of March, 1974, on the petitioner's Motion for Preliminary Injunction to suspend a certain reconstruction project in the City of Benicia, County of Solano, State of California, pending [5 ELR 20206] compliance with the Environmental Quality Act of the State of California. JOHN R. WOLF, ESQ., appeared for the Petitioner, and CHARLES T. WILLIAMS, ESQ., appeared for respondents. Evidence was adduced, counsel argued and the matter was submitted on memoranda. Prior to the expiration of the date for submitting briefs, however, a pretrial conference was held and a disposition of most of the issues resolved by stipulations. Pursuant to these stipulations the respondent, CITY OF BENICIA, undertook to procure an environmental impact report on terms substantially in accord with the prayer of the petitioner. The issue of attorney's fees was then agreed to be submitted on further memoranda. The memoranda, the arguments and the authorities how having been considered by the Court

1. IT IS ORDERED, ADJUDGED AND DECREED that the petitioner is entitled to reasonable attorney's fees; * AND

2. Pursuant the request of the parties, they shall be given 45 days within which to agree upon an appropriate amount, at the expiration of which, if not agreed upon, the question shall be submitted to the Court. *

* MEMORANDUM

The question of petitioner's entitlement to attorney's fees has been briefed extensively and ably by counsel for both parties to this lawsuit. The Court is indebted to them for their assistance in preparing for this decision.

Respondent's memorandum provides a good beginning. It represents a conventional approach from which one would infer that unless some specific statute authorizes an award of attorney's fees to the prevailing party in a lawsuit, it would be necessary to find that the case could be fitted into one of the narrow exceptions to the early, traditional rule against such awards. There are some exceptions, however, which have been said to be justified in the exercise of a court's general equitable powers. Quite correctly, respondent's outline of these refers to the obdurate behavior theory, the common fund theory, the common benefit extension of the common fund theory, and, a variation of the latter, the private attorney general theory. The CITY'S argument then develops reasons why none of these should be applied to the instant case.

Without quarreling with the details of respondent's argument, it is vulnerable to the reservation that it fails to apprehend the sweep of the historical trend in the gradual development of several ideas that are now generally thought to justify awards of attorney's fees as an incident to the costs of successful litigation in the public benefit cases.

In order to supply the missing element, it seems appropriate to describe some major social changes that have characterized the last half century.

As noted in 24 Hastings Law Journal, page 733, "Traditionally, enforcement of those Federal laws designed to protect broad public interest has depended almost exclusively upon the efforts of the United States Attorney General's Office and various administrative agencies." However, this tradition was grounded in a pre-Rooseveltian era. The proliferation of Federal, State and local agencies, elected by no one, and responsible to no one in the absence of judicial scrutiny, the inhibitions on official attorney generals' offices imposed by restricted funding, a centralized bureaucracy, frequent conflicts of interest, and the all too human pride of opinion which forbade the public acknowledgement of error, led to the frequent departures from congressionally stated policies. It did not take a Nixon administration, with its impoundments and other lawless acts, to produce a widespread feeling of frustration and concern as to whether a democratic form of government could really function in a manner that would carry out the will of the electorate as expressed in the law of the land.

The development of particular rules for the application of the court's equitable powers to award attorney's fees should be studied in this light. Each particular development seems to have represented a tentative foot forward in the approach to a theory that would satisfy the public's need for a way to insure the due execution of the law on the one hand, and which would not suffocate the agencies or the courts on the other. A solution was needed which would not penalize unsuccessful litigants unduly, as well. Thus it was logical that the first step to be recognized was the common fund theory which, as counsel have commented, soon led to the common benefit theory. Again, it was natural that the courts should be induced to add to this roster the case where a defendant had a patent duty which it obstinately or "obdurately" refused to perform. Sims vs. Amos, 340 Fed. Supp. 691, Lee vs. Southern Home Sites Corp., 444 Fed.2d 143, are illustrative.

The difficulty with these approaches is that there are far more instances where duly enacted laws fail of execution, especially novel laws such as NEPA, than those represented by these narrow categories. For every case where an agency decision may be questioned because of obduracy, conflict of interest, sweetheart relationships or other manifest evils, there are probably as many more where the law is not given its intended application because of the built-in predilections of an entrenched bureaucracy, or an honest difference of opinion between the agents charged with enforcement and those elements of the society whose pressure on the legislature succeeded in obtaining enactment of the law in the first place. Nevertheless, in all such cases, wherever the traditional State or Federal attorney general's offices does not, or cannot, act, for whatever reason, pro bono lawsuits by private parties needed encouragement.

The Federal courts have taken the lead. In Hall vs. Cole, 412 U.S. 1, the United States Supreme Court said: ". . . in the absence of statutory or contractual authorization, Federal courts, in the exercise of their equitable powers, may award attorney's fees when the interests of justice so required." Following Hall, supra, a number of the Circuits have rendered decisions awarding attorney's fees in a variety of circumstances.Several of these cases are listed on pages 16 and 17 of the petitioner's brief. Some of them concern civil rights, some questions of labor relations and some concern environmental law. Among the latter, one of the most often discussed is La Raza Unida vs. Volpe, 47 F.R.D. 94, 337 Fed. Supp. 221, which developed the following criteria for consideration in determining whether a successful plaintiff should be awarded attorney's fees: (1) The suit resulted in benefits to the class of which the plaintiff was a member; (2) it effectuated a strong congressional policy; and (3) it appeared essential to lift the financial burden from the particular plaintiff in order to encourage private enforcement of the law.

In addition to La Raza Unida vs. Volpe, supra, other environmental lawsuits where plaintiffs were awarded attorney's fees include the Sierra Club vs. Volpe, 405 U.S. 727, Natural Resource Defense Council vs. EPA, 484 F.2d 1026, and Sierra Club vs. Lynn, 364 Fed. Supp. 834, 847.

In California, the question has not yet been resolved by an appellate court as to an environmental lawsuit, but in the context of other disputes, similar principles have been applied.¹ Thus, in Knoff vs. City & County of San Francisco, 1 Cal.App.3rd 184, and Fletcher vs. A.J. Industries, Inc., 266 Cal. App.2d 313, the courts have approved the granting of attorney's fees ". . . when a class action or corporate derivative action results in the conferral of substantial benefits, whether of a pecuniary or non-pecuniary nature, upon the defendant in such an action, that defendant may, in the exercise of the court's equitable discretion, be required to yield some of those benefits in the sum of an award of attorney's fees." The California Supreme Court has not yet committed itself, but in D'Amico vs. Board of Medical Examiners, 11 Cal.3rd 1, it referred to the case of Bradley vs. School Board of City of Richmond, Virginia, 54 F.R.D. 28, 42, an aberrant Circuit Court of Appeals decision adverse to plaintiff's position, and said: ". . . . the doctrine is currently under examination by the U.S. Supreme Court in the above cited Bradley case, and, pending an announcement by the high court concerning its limits and contours on the federal level, we decline to consider its possible application in this state . . ."

Since, the U.S. Supreme Court has reversed the Circuit Court and upheld an award of attorney's fees, but the case is of limited significantce because the Supreme Court relied on the partially retroactive application of a new statute applicable to segregation areas. Bradley vs. Richmond School Board, 40 L. Ed. 2d 476.

Applying principles of La Raza, supra, Knoff, supra, and Fletcher, supra, to the instant case, it is clear that plaintiff's lawsuit qualifies. It results, albeit through a stipulation, in the CITY'S undertaking [5 ELR 20207] to perform its duty to prepare an environmental impact report. It thereby effectuates a strong State policy to require a careful scrutiny of potential results before permitting the execution of projects that may significantly affect the environment. The suit was necessary, because otherwise no report would have been prepared inasmuch as a "negative declaration" had already been submitted.

In the latter connection, the petitioner would seek to have the award of attorney's fees based also on the proposition that the defendant stubbornly or obdurately refused to do its plain duty. From the evidence it could well be inferred that some of Benicia's City officials were irritatingly antagonistic towards the whold idea of citizen participation in the decision-making process, in an area where they considered themselves peculiarly expert. However, once the City attorney became involved, he very wisely and properly turned the whole picture around and thereby expedited resolution of the dispute and accomplished immeasurable economies in the process. It may be inferred that the first attitudes of the City officials were engendered by uncertainty as to what was expected of them under the California Environmental Quality Act. Now that that problem has been explored, a different attitude may well prevail.

Nothing further is likely to be accomplished by grounding the decision on the issue of attorney's fees so narrowly. On the contrary, if service of the public interest is the goal, as it must be, to base awards on the private attorney general theory will go furthest to eliminate a major obstacle, the expense of hiring legal counsel. (See 24 Hastings Law Journal, supra.).

1. Counsel have referred to several Superior Court decisions awarding attorney fees in pro bono cases, including the courts for Alameda, Los Angeles and Sacramento Counties. None has been cited as refusing to do so in a proper case.