Glenn Cty. Veterans Council v. County of Glenn

Filed 2/4/09 Glenn Cty. Veterans Council v. County of Glenn CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

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This is a skirmish over attorney fees after the parties settled the underlying case. Plaintiffs Glenn County Veterans Council (Veterans Council), Veterans of Foreign Wars Willows Post 1770 (VFW), American Legion Alfred J. Foster Post 34, and Bendall Allen, an officer of both the Veterans Council and VFW, filed a petition for writ of mandate alleging that defendants Glenn County and the Glenn County Board of Supervisors were unlawfully denying them priority on space and charging them for use of the Memorial Hall in Willows.^[1] The petition further alleged that defendants had a clear, present, and legal duty to provide funds, maintenance, space, custodians, employees, attendants, and supplies under Military and Veterans Code section 1262 and Gridley CampNo. 104, Etc. v. Board of Supervisors (1929) 98 Cal.App. 585 (Gridley).^[2] Defendants answered, countering that the Memorial Hall was a joint use building and denying that they were unlawfully limiting plaintiffs use of the facility. They also argued that defendants had dedicated newly renovated space for the exclusive use of veterans four months before plaintiffs filed their petition. The parties reached a settlement under which plaintiffs obtained much of what they sought in the writ petition.

Plaintiffs requested $1,955.43 in costs and $112,875 in attorney fees pursuant to Code of Civil Procedure section 1021.5 (Section 1021.5).^[3] The court awarded them costs as requested but only $20,000 in attorney fees. Both parties appeal from the order.

Plaintiffs argue that the court abused its discretion by failing to consider the lodestar in calculating the attorney fee award. Defendants contend that plaintiffs were not entitled to any attorney fees because they did not meet the requirements of Section 1021.5. Alternatively, defendants accept the $20,000 as a compromise resolution that should be affirmed to avoid continued unnecessary litigation. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In their settlement conference statement and offer, plaintiffs quoted Gridley in support of their argument that the veterans use of the Memorial Hall served an important public interest, stating: [A] reading of [Political Code section 4041f] leads to the conclusion that the [L]egislature had in mind a double purpose -- to subserve the public interests of the country by providing for the erection of structures where the thought of patriotism might be given wider currency, and at the same time enable organizations of persons who had engaged in hazardous service for their country to meet and aid in keeping alive the principles upon which the republican form of government must rest. [(98 Cal.App.) at page 596.] Defendants had already admitted plaintiffs allegation that the Veterans charters require[d] [the] organization[s] to provide returning veterans support to bridge the gap between active service, and rejoining civilian life and activity and that all Veterans organizations are charged by their charters to promote patriotism, Americanism and civic duty.

The settlement agreement provided that: (1) defendants would allocate 2,400 square feet of meeting, office and storage space to plaintiffs on the ground floor; (2) kitchen space would be shared in such [a] manner so as not to interfere with usage by [plaintiffs]; (3) plaintiffs and defendants would cooperate in a specific plan for scheduling use of the Main Hall; (4) defendants would not charge plaintiffs for use of the Main Hall and would refund the $1,100 previously collected from plaintiffs; (5) plaintiffs would retain use of the Main Hall for patriotic holidays and events; (6) defendants would retain public use of the Main Hall for high school graduation, high school prom and the Lamb Derby; and (7) [t]he parties [would], at all times, exercise reasonableness and use their best efforts to resolve any issues which [might] arise. The only issue left unresolved was attorney fees.

Plaintiffs requested attorney fees under Section 1021.5 calculated as follows: 301 hours @ $250 per hour = $75,250 (lodestar) x 1.5 (multiplier) = $112,875. Plaintiffs counsel submitted a declaration regarding his hourly rate together with his detailed time schedule. Defendants labeled the amount of requested fees as unconscionable in . . . its excess.

Plaintiffs also filed numerous declarations in support of their attorney fee request. The evidence and arguments reveal the parties widely divergent views of events giving rise to the dispute over space use, each others motives, and, in particular, plaintiffs purpose in filing the writ petition. The court necessarily resolved these conflicts in granting plaintiffs request for attorney fees under Section 1021.5.

More relevant to the question whether plaintiffs were entitled to any fees is the declaration of plaintiff Bendall Allen. Allen described the membership status of the plaintiff veterans. He stated that the Veterans Council represented all 2,000 veterans in Glenn County. As to the veterans groups that admitted members, he declared that VFW had 93 members and the American Legion had 98. Allen explained in a supplemental declaration that [a]ll proceedings for admission to the VFW [were] dictated by the rules of the Veterans of Foreign Wars as chartered by Congress. He also stated that the VFW and American Legion were working together to re-establish a Disabled American Veterans (DAV) post which would meet in the Memorial Hall. According to Allen, the former DAV post was disbanded when its disabled members could not negotiate the steps upstairs, or stand and each wait two minutes for the single-chair lift, or to the failure of the heating or cooling system to operate. In response to the request for attorney fees, defendants submitted Allens deposition testimony regarding the number of people who attended veterans meetings at the Memorial Hall. Allen testified that the VFW met every month and required a quorum of five to conduct business. He stated that three meetings had been cancelled for lack of a quorum in the last 10 years. Allen also testified that in the two years of its existence, no more than 20 people had attended a meeting of the Veterans Council.

Allens declaration in support of the attorney fee award also detailed the problems plaintiffs encountered with defendants in scheduling and space use. He stated that from the 1930s to the 1990s bingo games were a mainstay of the veterans fund-raising program. He also described the recent dispute over defendants decision to charge rent for the use of the Memorial Hall for bingo. In their opposition to attorney fees, defendants cited Allens deposition testimony that veterans groups had only recently attempted to revive the bingo games. Allen stated that the money went through the veterans groups to soldiers in Iraq. Allens supplemental declaration clarified that the bingo games raised funds to provide programs or service to other Veterans and the active military.

Allen described other veterans programs limited by lack of space. Plaintiffs proposed creation of an amateur radio licensing class at Memorial Hall, a program supported by law enforcement and required by the Department of Homeland Security. According to Allen, defendants opposed what they characterized as putting a ham radio station and equipment in the Memorial Hall. Allen stated that the project was put on hold for lack of space and support by defendants.

Allen also cited problems created by lack of storage space. In July 2004, defendants denied an American Legion request for storage space in Memorial Hall. The American Legion contacted defendants at the time, expressing concern that someone had removed casket flags they had stored in the hall. Defendants purportedly described the American Legions items as old flags and other useless items. Defendants responded that Allen had asked that the flags be moved to the basement to make room for VFW equipment, a claim Allen denied.

Plaintiffs argued in support of their request for attorney fees under Section 1021.5 that they shouldered the expense and risk of litigation to enforce the rule of law against the [defendants] illegal action. They explained: The results benefit[ted] all California veterans and veterans organizations by ensuring that public officials may not disregard the law . . . . Plaintiffs continued: [The small group of individuals] have now won a legal battle against their own elected officials, but it was a conflict they did not seek, but did not avoid. Their actions were necessary to stop [defendants] disregard for the law and its sacred obligation to all veterans. It was also to stop the misappropriation of the [] Memorial Hall.

Defendants opposed the request for attorney fees, arguing that plaintiffs failed to satisfy the requirements of Section 1021.5. Defendants asserted that [t]he driving force for this action was the desire of a small group of individuals who commissioned themselves as champions of veterans rights in Glenn County when in reality their basic goal was to establish control of a publicly financed private club for gaming activities such as bingo, billiards and cards.

The court based its ruling on the points and authorities and declarations submitted by the parties. After hearing oral argument, the court acknowledged that plaintiffs were requesting a 1.5 multiplier to enhance the lodestar amount. The court found that the case involved a substantial public right or benefit because the building was established to recognize the efforts of veterans in the area. The court had the most trouble with the question whether plaintiffs conferred that benefit on the general public or a large class of persons. The court rejected plaintiffs argument that use of the hall benefitted all the veterans in the state. It also dismissed the argument that the court should award attorney fees to send a message to all public officials that if you do not support your dedication agreements, that the penalty is an award under 1021.5. The court did, however, find that plaintiffs conferred a benefit on a group larger than themselves, namely the 2,000 veterans in Glenn County.

Defendants objected to the proposed order prepared by plaintiffs that included the express finding that plaintiffs counsel reasonably spent 301 hours on this litigation and attorneys fee[s] of $250 per hour . . . . The court signed a summary order that awarded plaintiffs $20,000 in attorney fees and $1,993.45 in costs. Neither party requested the court make any express factual findings on its award of attorney fees.

DISCUSSION

I.

Plaintiffs Are Entitled to Attorney Fees

Defendants appeal on grounds the court abused its discretion in awarding any attorney fees to plaintiffs under Section 1021.5, which codified the private attorney general doctrine. (Woodland Hills Residents Assoc., Inc. v. City Council of Los Angeles(1979) 23 Cal.3d 917, 930-931 (Woodland Hills).) To determine whether a prevailing party is entitled to attorney fees, we must consider whether: (1) plaintiffs action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate. (Woodland Hills, supra, at pp. 934-935.)

We review the courts award of attorney fees pursuant to Section 1021.5 for abuse of discretion. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 544; California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 569.) Because neither side requested the court make any express factual findings on the attorney fee requirements of Section 1021.5 and thus the record is silent, we imply all findings necessary to support the order. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.) Having determined that the record supports the implied findings, we conclude the court did not abuse its discretion in deciding that plaintiffs were entitled to attorney fees under Section 1021.5.

A. Enforcement of an Important Right:

In Woodland Hills, the Supreme Court discussed requirements of Section 1021.5 in detail. As to the first requirement it held that the trial court, utilizing its traditional equitable discretion . . . must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award under a private attorney general theory. (23 Cal.3d at p. 938.) The Supreme Court stated that the Legislature obviously intended that there be some selectivity, on a qualitative basis, in the award of attorney fees under the statute, for section 1021.5 specifically alludes to litigation which vindicates important rights and does not encompass the enforcement of any or all statutory rights. Thus, . . . the statute directs the judiciary to exercise judgment in attempting to ascertain the strength or societal importance of the right involved. (Id. at p. 935.) And in determining the importance of the particular right that was vindicated, courts must realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. [Citation.] (Id. at p. 936.)

Defendants argue that the courts analysis was flawed because it focused on veterans and the fundamental principal of patriotism . . . bypassing whether or not the lawsuit was based on a worthy cause and focusing exclusively on whether it dealt with a worthy group, i.e., veterans and patriotism. However, plaintiffs petition specifically identified the statutory right they sought to enforce, i.e., the provisions of Military and Veterans Code section 1262, interpreted as mandatory by Gridley. Allens declarations detailed the ways defendants failed to comply with the statutory mandate. Defendants disagreed with plaintiffs account of events, but the court impliedly resolved the factual disputes in favor of plaintiffs.

Plaintiffs also tied enforcement of Military and Veterans Code section 1262 to the overriding purpose of the veterans groups to promote patriotism and provide services for veterans, both old and young. Defendants did not dispute that the charters of the veterans groups required them to serve these purposes.

Accordingly, we conclude the record supports the courts implied finding that this case involved the enforcement of an important statutory right.

B. A Significant Benefit To A Large Class of Persons:

Woodland Hills also described the meaning of the second requirement for an award of attorney fees under Section 1021.5. The significant benefit may be pecuniary or non-pecuniary in nature. Therefore, the fact that the chief benefits afforded by an action have no readily ascertainable economic or monetary value in no way forecloses an attorney fee award under the statute. (23 Cal.3d at p. 939.) The attorney fee award may be justified in recognition of the effectuation of a fundamental constitutional or statutory policy. (Ibid.) Defendants suggest that plaintiffs right to use the hall had already been established by Gridley. However, [t]he fact that litigation enforces existing rights does not mean that a substantial benefit to the public cannot result. Attorney fees have consistently been awarded for the enforcement of well-defined, existing obligations. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318 (Press).)

At the same time, the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation even though the public has a significant interest in the enforcement of statutory law. (Woodland Hills, supra, 23 Cal.3d at p. 939.) Instead, it contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case. (Id. at pp. 939-940.)

The court admitted that it struggled with whether plaintiffs satisfied this element of Section 1021.5. Ultimately, it rejected plaintiffs claim that their lawsuit benefitted all veterans in the state but expressly accepted the claim that plaintiffs provided significant benefit to the veterans of Glenn County.

The record supports the courts finding. Defendants did not dispute Allens claim that there were 2,000 veterans in Glenn County. While not large in actual numbers, the population of veterans comprised approximately seven percent of the countys population.^[4] Moreover, the population of veterans in Glenn County is 10 times larger than the membership of the plaintiff organizations. On this record, the court could reasonably conclude that plaintiffs efforts to secure space for veterans programs at the Memorial Hall would significantly benefit the countys veterans. There was no abuse of discretion.

C. Necessity and Financial Burden of Private Enforcement:

An award on the private attorney general theory is appropriate when the cost of the claimants legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his individual stake in the matter. [Citation.] (County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89.)

The record contains pieces of evidence which, taken together, support the courts implied finding that the cost of plaintiffs victory in the settlement and the necessity for pursuing legal action was out of proportion to their individual stake in the matter. Plaintiffs counsel set forth the cost for his services; defendants argued the attorney fee claim was excessive. Allens declaration provided a history of plaintiffs dispute over space use; defendants disputed their account of what had occurred. There was no evidentiary support for defendants assertion that [t]he driving force for this action was the desire of a small group of individuals who commissioned themselves as champions of veterans rights in Glenn County when in reality their basic goal was to establish control of a publicly financed private club for gaming activities such as bingo, billiards and cards. Defendants cited as the only support for this argument a portion of Allens deposition which included the following exchange:

Q. Mr. Allen, one of your claims is that you dont have enough space for the activities that you either do or want to do. Can you tell me exactly what it is you dont have space for?

A. We dont have enough space for the -- or the same area that was occupied by the school board. That was promised to us for -- We need that broken down into a lodge room like this with a meeting table for the Council especially. And we need a place for the two poker tables, and we need space for the two billiard tables and we needed space for isolated training for parents of Veterans overseas. [] And then if we have that, then we need a place for our office. We need office space for all the organizations. And were working on picking up four more Veterans units and theyre going to need the same office space, so it cant be a room -- little room like this.

The court impliedly rejected defendants argument that plaintiffs filed the petition for the benefit of a small group of their own members. The record supports this implied finding.

II.

The $20,000 Award Was Within The Courts Discretion

Plaintiffs argue that the court erred as a matter of law in mistakenly believ[ing] it had the discretion to deny the application of the lodestar figure to the attorney fee award. Defendants respond that the court had discretion to reject the lodestar figure and urge us to affirm the $20,000 award as a compromise resolution . . . to avoid continued unnecessary litigation. We conclude the court properly exercised its discretion in reducing the lodestar and awarding only $20,000 in attorney fees.

The amount of attorney fees to be awarded under Section 1021.5 is determined according to the guidelines set forth in Serrano v. Priest (1977) 20 Cal.3d 25, 48-49 (Serrano III). (Press, supra, 34 Cal.3d at p. 321.) Serrano III requires the trial court to first determine a touchstone or lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation for each attorney . . . involved in the presentation of the case. [Citations.] That figure may then be increased or reduced by the application of a multiplier after the trial court has considered other factors concerning the lawsuit. (Press, supra, at p. 322, fn. omitted.) Factors the court may consider in adjusting the lodestar figure include: (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed . . . . (Serrano III, supra, 20 Cal.3d at p. 49, fn. omitted.)

Ultimately, the trial judge has discretion to determine the value of professional services rendered in his [or her] court . . . . [Citation.] However, since determination of the lodestar figures is so [f]undamental to calculating the amount of the award, the exercise of that discretion must be based on the lodestar adjustment method. [Citations.] (Press, supra, 34 Cal.3d at p. 322.) The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong. [Citations.] (Serrano III, supra, 20 Cal.3d at p. 49.)

The record in this case is sparse, in part because the parties had settled the case leaving only the issue of attorney fees to be decided by the court. The court acknowledged the lodestar amount and 1.5 enhancement requested by plaintiffs. It did not, however, explain its calculations or the reasons for reducing the lodestar from $75,250 to $20,000 and plaintiffs did not request any factual findings. Defendants argue that the courts rejection of plaintiffs proposed order,which included a finding that the claim of 301 hours was reasonable, shows that the court exercised its discretion to reduce the lodestar figure offered by plaintiffs.

The party challenging a fee award has an affirmative obligation to provide an adequate record so that we may assess whether the trial court abused its discretion. [Citations.] We cannot presume the trial court has erred. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) In Vo, the appellate court affirmed the trial courts determination that the fee award was reasonable in the absence of specific findings on the issues raised by the parties. (Id. at pp. 447-448.) However, the courts failure to explain how it calculated fees may result in reversal of the fee award for abuse of discretion. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810-1811 [affirmed entitlement to attorney fees but reversed amount of fees and remanded to allow the court to make a record]; see also Press, supra, 34 Cal.3d at pp. 322-325 [affirmed entitlement to attorney fees but reversed the amount of fees and remanded for calculation in accordance with Serrano III].)

In this case we conclude that plaintiffs failure to provide an adequate record defeats their claim of abuse of discretion. The court was in the best position to determine the reasonableness of their fee request. It based its ruling on the points and authorities and declarations and argument submitted by the parties. The case presented a straightforward application of statutory and case law. By rejecting plaintiffs proposed order and the finding that 301 hours was reasonable, the court indicated that it disagreed with the lodestar figure. We will not presume that the $20,000 award was an abuse of discretion.

DISPOSITION

The order is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

CANTIL-SAKAUYE , J.

We concur:

BUTZ , Acting P. J.

MORRISON , J.*

________________________

* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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^[1] Plaintiffs refer to the facility as the Veterans Memorial Hall and defendants refer to it as the Civic Memorial Hall. We shall use the neutral reference, Memorial Hall.

^[2] Military and Veterans Code section 1262 reads in relevant part: Any county may provide, maintain or provide and maintain buildings, memorial halls, meeting places, memorial parks, or recreation centers for the use or benefit of one or more veterans associations. For these purposes the board of supervisors of any county may: [] . . . []

(b) Purchase, construct, lease, furnish, or repair such buildings, and provide custodians, employees, attendants, and supplies for the proper maintenance thereof.

(c) Clear, grade, plant, irrigate, fence, and improve such memorial parks, or recreation centers, and provide custodians, employees, attendants, and supplies for the proper maintenance thereof. . . .

Gridley holds that the provisions of former Political Code section 4041f (as added by Stats. 1921, ch. 348, p. 476), an earlier formulation of Military and Veterans Code section 1262, are mandatory, not permissive. (98 Cal.App. at pp. 596-597.)

^[3] Section 1021.5 reads in relevant part: Upon motion, a court may award attorneys fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities . . . .

^[4] We take judicial notice that Glenn County had an estimated population of 28,915 in January 2007. (California Cities, Towns & Counties (2008), Glenn County, p. 493; Evid. Code,  452, subds. (g) & (h).)