Matter Remanded for Lower Court to Gauge Reasonableness of Requested Fees and to Rule on Positive Multiplier Request.
A citizen leaves the voting booth. 1944. Lewis Walker, photographer. Library of Congress.
A lower court denied a fee request entirely as to two litigants successfully opposing a preelection challenge to Measure N (a local Murrieta ballot initiative they proposed for removal of red light cameras in Murrieta), with the fee request directed against the plaintiff seeking to get the Measure removed from the ballot as well as the county and city. Litigants had sought to recoup about $129,000 in fees, requested to be enhanced by a 2 or 3 multiplier, under CCP § 1021.5—California’s private attorney general statute. (Actually, Measure N was approved by 57.26% of Murrieta electors at the general election.)
Litigants obtained a reversal of the fee denial in Flynn v. Vinson, Case No. E058128 (4th Dist., Div. 2 Nov. 18, 2014) (unpublished).
The appellate court disagreed with the lower court’s conclusion that the litigants were unsuccessful because they failed to engage in a postelection defense of the Measure’s legality (a type of prematurity argument). Instead, it found no language in section 1021.5 or published decisions supporting the view that litigants had to successfully defend Measure N in a postelection challenge before moving for fees. Rather, the litigants did succeed in keeping the Measure from ballot removal, which involved the enforcement of an important public right—proposing an initiative and then making sure voters were able to vote on it. (Wal-Mart Real Estate Business Trust v. City Council of San Marcos, 132 Cal.App.4th 614, 623 (2005).) Flynn, the party trying to derail consideration of Measure N by voters, did fall within the class of parties liable for 1021.5 fees.
On remand, the lower court was ordered to consider the reasonableness of the fees and multiplier requests against Flynn, although the fee denial and costs rulings were affirmed as to city and county.