Second District, Division 5 Also Reverses Fee Award Against Clerk, Even Though Only Registrar Appealed the Merits Judgment.
Here is an interesting one for our appellate followers. It primarily deals with a mootness issue and its interplay with the fee award in the case.
In Carson Citizens for Reform v. Kawagoe, Case No. B209424 (2d Dist., Div. 5 Oct. 13, 2009) (certified for publication), proponents of a petition to recall a local mayor disputed the validity of requests by voters to withdraw their signatures because the requests lacked a declaration of a circulator under specialized Election Code statutory sections. Recall proponents won below, and were awarded $78,897.95 in fees under Code of Civil Procedure section 1021.5 as against both the city clerk and county registrar. Clerk and registrar both appealed the fees award (albeit on different grounds), even though clerk apparently did not appeal the merits judgment.
The Second District, Division 5 determined that voters were entitled to withdraw their signatures. However, the appeal as to the mandate writ was moot because the recall election had previously been held. That turned matters to the thorny question of the extent to which the doctrine of mootness impacted the fee award.
Mootness did not prevent the appellate court from reviewing the declaratory relief portion of the judgment so as to determine if recall proponents were the successful party for purposes of the fee award. (Cf. Save Our Residential Environment v. City of West Hollywood, 9 Cal.App.4th 1745, 1750-1751 (1992); Mapstead v. Anchundo, 63 Cal.App.4th 246, 277-279 (1998).) Because the appellate panel reversed the declaratory relief judgment, the fee award also went POOF! as to registrar (who appealed the merits).
This left a remaining issue about whether the fee award went POOF! as to the clerk. It did. Relying on its inherent power to do “that which justice requires,” the appellate panel determined that the aspects of the judgment that affected the fee award were so intertwined that it was proper to reverse the fees order as to both registrar and clerk “in the interests of justice.”