Second District, Division Four Clarifies Scope of Fee Authorization in In Pro Per Plaintiff Situations and Denies Nonstatutory Costs Requested by Plaintiff.
In pro per plaintiff, who was not a licensed attorney, successfully petitioned for mandate against the City of Agoura Hills City Council, seeking her attorney’s fees and costs as the prevailing party under Code of Civil Procedure section 1021.5 (the private attorney general fee-shifting statute). She sought recovery of $60,000 in “intellectual property value” (her nomenclature for the time she spent on the case), $4,975.45 in fees incurred for the services of licensed attorneys who assisted her, and various costs (such as computer research costs, food, phone expenses, and purchase of a suit and shoes for a court appearance, with the latter item coming to $976.41). The City moved to tax costs and opposed the requested fees. The lower court did find plaintiff conferred a significant public benefit in setting aside an environmental impact report certification but only awarded her $4,975.45 for the fees incurred by outside attorney assistance. The lower court denied plaintiff’s request for $60,000 in fees for her own time and denied various nonstatutory costs. Both sides appealed, with plaintiff claiming she was entitled to all her requested fees/costs and City claiming she was entitled to no section 1021.5 fees.
In Altmann v. City of Agoura Hills City Council, Case No. B202996 (2d Dist., Div. 4 Nov. 14, 2008) (unpublished), the Second District, Division Four affirmed in entirety and ordered the parties to bear their own costs on appeal.
On the costs issue, the appellate panel found that most of the items were nonstatutory in nature so that they were properly denied. (See Ladas v. California State Auto. Assn., 19 Cal.App.4th 761, 775-776 (1993).)
The Court of Appeal next addressed plaintiff’s claim that her time spent—even though she was not a licensed attorney—was recoverable because she is a “private attorney general” albeit a non-licensed one. Atherton v. Bd. of Supervisors, 176 Cal.App.3d 433, 436 (1986) was squarely on point in holding that a pro se plaintiff is not entitled to fees under section 1021.5 based upon the plain meaning of the statutory language. The appellate panel also found that plaintiff’s semantical argument lacked merit, because “private attorney general” meant to “convey the concept that a private citizen may stand in the shoes of the Attorney General, not in the sense of an attorney representing a party in court ….” (Slip Opn., at p. 7.) Plaintiff’s argument that this disparate treatment violated the equal protection clause of the federal and state Constitutions did not go very far, with the 2/4 panel determining that unlicensed private attorneys general and licensed attorneys are not similarly situated given the extensive regulations of California attorneys.
That brought the Court of Appeal to confront City’s challenge to the award of fees to plaintiff for outside attorneys assisting her in the prosecution of the mandate petition. Initially, it was observed that non-section 1021.5 cases recognized pro se plaintiffs who were assisted by attorneys who did not appear before the court may recover nonetheless the fees incurred for this outside help. (See, e.g., Witte v. Kaufman, 141 Cal.App.4th 1201 (2006); Mix v. Tumanjan Develop. Corp., 102 Cal.App.4th 1318 (2002); West Coast Develop. v, Reed, 2 Cal.App.4th 693 (1992).) However, City made an argument that a different rule should apply with respect to section 1021.5. The appellate panel found that City’s class action case authority was inapposite, as it did not address section 1021.5. Logic dictated rejection of City’s argument: “Had [plaintiff] been represented by counsel of record, there would be no question that she met the criteria under the statute and would be entitled to recover the attorney fees she incurred. There is no reason the result should be any different simply because [plaintiff] represented herself, but with the assistance of counsel who did not make a formal appearance in court. The trial court properly awarded [plaintiff] attorney fees for her counsel’s services.” (Slip Opn., at p. 10.)
BLOG UNDERVIEW—The Altmann court also provided us with some interesting information about the derivation of the term “private attorney general.” The term was coined by Judge Jerome Frank in the context of a challenge to a private person’s standing to bring a lawsuit to vindicate the public interest (namely, a private citizen acting in the sense of a government official advancing the public interest in a lawsuit). See Associated Industries v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943), cited in County of Inyo v. City of Los Angeles, 78 Cal.App.3d 82, 88, fn. 1 (1978).
Judge Jerome Frank