Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC334309. Mary Thornton House, Judge.
Edward Howard; The Carrick Law Group and Roger Lane Carrick for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Tom Greene, Chief Assistant Attorney General, Theodora P. Berger, Assistant Attorney General, Susan S. Fiering and Edward G. Weil, Deputy Attorneys General, for Objector and Respondent.
MANELLA, J.
INTRODUCTION
Appellant American Environmental Safety Institute (AESI or Institute) appeals from the denial of its motion for attorney fees, brought pursuant to Code of Civil Procedure section 1021.5, the “private attorney general” statute, which provides: “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, or of enforcement by one public entity against another public entity, 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.”
Henceforth, we refer to Code of Civil Procedure section 1021.5 simply as section 1021.5.
The trial court denied AESI’s motion because, among other reasons, AESI had not demonstrated that the settlement in the underlying lawsuit, or the appeal from the consent judgment entered on the settlement, had conferred a significant public benefit. We find no abuse of discretion and affirm the order.
BACKGROUND
In 2005, AESI brought an action against The Procter & Gamble Distributing Company and Procter & Gamble Manufacturing Company (Procter & Gamble) for injunctive relief and civil penalties, alleging that Procter & Gamble toothpaste contained lead. AESI filed the action in the public interest as a citizen enforcer, pursuant to Proposition 65, an initiative measure that added the Safe Drinking Water and Toxic Enforcement Act of 1986 to the Health and Safety Code as chapter 6.6, sections 25249.5 through 25249.13. After AESI served notice of the action upon the Attorney General, he appeared and participated, but did not intervene. AESI and Procter & Gamble settled the lawsuit, and the trial court entered judgment on the settlement (the consent judgment). The Attorney General appealed from the consent judgment, and we affirmed it in an unpublished opinion filed November 16, 2006.
We henceforth refer to the Safe Drinking Water and Toxic Enforcement Act as Proposition 65. Under Proposition 65, businesses are prohibited from discharging or releasing significant amounts of certain toxic chemicals into water or onto land. (Health & Saf. Code, §§ 25249.5, 25249.9.) The statute may be enforced by any person in the public interest, if specified conditions are met. (Health & Saf. Code, § 25249.7.)
See American Environmental Safety Institute v. Procter & Gamble Manufacturing Company (Nov.16, 2006, B186515) [nonpub. opn.] (Environmental I).
AESI then filed a motion in the trial court to recover its attorney fees on appeal from the Attorney General, who was the appellant in the first appeal, and is the respondent here. The motion was supported by the declarations of Roger Lane Carrick, AESI’s attorney from the inception of this action, and Edward Howard, AESI’s appellate counsel in the previous appeal and here. In his declaration, Mr. Howard discussed his experience in public interest litigation, the time spent on this case and his hourly rate. In his declaration, Mr. Carrick discussed his education, experience in public interest litigation, his hourly rate and the time he and Howard spent in providing legal services to AESI. Carrick provided a summary of the proceedings in the litigation, and paraphrased or quoted portions of the consent judgment, our opinion in Environment I, supra, B186515 and the Attorney General’s contentions in that appeal. Carrick stated that AESI had tested Crest toothpaste in 2002 through 2004, and determined it contained sufficient lead to expose consumers in amounts greater than limits established by the State of California. He attached over 300 pages of exhibits to his declaration, including a copy of the consent judgment, the trial court’s tentative ruling made prior to hearing on AESI’s application to approve the settlement, an order amending the tentative ruling, our opinion in Environment I, supra, B186515, attorney timesheets and his declaration filed in support of AESI’s application for approval of the consent judgment, with attached exhibits.
Procter & Gamble notified this court that it was not affected by the current appeal, and did not intend to file a brief.
Without referring to exhibits, Carrick expressed the following opinions and conclusions in his declaration: “43. As a result of the Institute’s prevailing on appeal, Crest® is being reformulated to reduce significantly the Lead content in a toothpaste product used by millions of adults and children every day in California and across the country. [¶] 44. As a result of the Institute’s prevailing on the appeal, the Institute created a template . . . to obtain comparable relief from every other toothpaste . . . manufacturer, thereby reducing Lead exposure to consumers across the board. [¶] 45. As a result of the Institute’s prevailing on the appeal by upholding the Consent Judgment, a citizen enforcer’s rights and responsibilities in Proposition 65 enforcement have been affirmed by the Court of Appeal, providing a litigation template to other citizen enforcers of Proposition 65 as to how [to] structure and defend their settlements obtained through their good faith enforcement of this initiative statute.”
The same judge who had approved the settlement heard and denied AESI’s attorney fees motion. In a written ruling entered March 23, 2007, the court expressly found that AESI had failed to show what important public right had been vindicated in the appeal. The court also found that AESI had not shown a significant public benefit, as it had presented no evidence in support of its assertion that the consent judgment had resulted in a significant reduction of lead in Crest toothpaste. AESI timely filed a notice of appeal from the denial of its motion.
The trial court made other findings, which we find unnecessary to review. For example, the trial court found that the Attorney General’s appeal, not AESI’s response to the appeal, had successfully vindicated the public’s rights, by defeating AESI’s challenge to his standing to appeal. The court further found that AESI, not the public, had benefited from its prevailing in the appeal, because the issues concerned only the distribution of funds to AESI. Finally, the trial court found that the Attorney General could not be considered a “party” liable for attorney fees under section 1021.5.
CONTENTIONS
AESI contends its motion met the requirements of section 1021.5, by showing that its appellate victory upheld two important public rights. AESI describes the first such right as “the right of Californians to be free from unnecessary exposures in their daily use of Crest® toothpaste to Lead. . . .” AESI argues that proof of having vindicated this right was sufficient because the consent judgment included a finding that the public is benefited by a reduction of lead in toothpaste, or by a “search” to reduce lead. AESI contends that this court upheld such a finding in rejecting the Attorney General’s appeal and affirming the consent judgment. Thus, appellant argues, the purported finding has become law of the case, which may not be relitigated. AESI contends the second right vindicated by the previous appeal was “the right of a citizen enforcer to enforce a Proposition 65 Consent Judgment from attack on appeal by a public prosecutor who refused to pursue the Crest® violation.”
“‘“The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . .”’” (People v. Stanley (1995) 10 Cal.4th 764, 786.)
AESI finally contends that were we to interpret Health and Safety Code section 25249.7 in a manner that would “eliminate the citizen enforcer’s ability to obtain appellate attorney fees incurred in defending a Proposition 65 consent judgment entered by a trial court in the public interest,” such an interpretation “would unconstitutionally burden the citizen enforcer’s power to enforce and implement Proposition 65 in a manner co-equal with public prosecutors . . . .”
Health and Safety Code section 25249.7, subdivision (f)(4)(B), permits settling parties to agree to attorney fees, but requires the trial court to determine whether any award of attorney fees is reasonable.
DISCUSSION
The party seeking attorney fees under section 1021.5 bears the burden to establish that the underlying action served to vindicate an important public right and conferred a significant benefit on the general public or a large class of persons. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 938-939 (Woodland Hills); California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 569.) When presented with such a motion, “the trial court . . . 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.” (Woodland Hills, supra, 23 Cal.3d 917 at p. 938.) Then, the “trial court [must] 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. [Citation.]” (Id. at pp. 939-940.) “The decision whether the claimant has met his burden of proving each of these prerequisites and is thus entitled to an award of attorney fees under section 1021.5 rests within the sound discretion of the trial court and that discretion shall not be disturbed on appeal absent a clear abuse. [Citations.]” (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044.) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.)
AESI contends that the issues on appeal present solely questions of law, requiring a de novo review. The review of a motion for attorney fees after trial may present a mixed question of law and fact; if factual questions predominate, the standard of review is deferential; if the material facts are undisputed, the issue is a question of law reviewed de novo. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176 (Connerly).) Where factual issues predominate, de novo review is proper only when the material facts are undisputed. (Id. at pp. 1175-1176.)
In Connerly, the court held that an advocacy group that had appeared as an amicus curiae and actively participated in the litigation was not liable for attorney fees as an “opposing party” under section 1021.5. (Connerly, supra, 37 Cal.4th at p. 1172.) Disclaiming any responsibility for attorney fees under section 1021.5, respondent compares his participation with that of an amicus. As we reject appellant’s contention that the trial court erred in finding it had not shown a significant public benefit, we do not reach the parties’ contentions regarding whether the Attorney General may be considered an opposing party under section 1021.5. (See Connerly, at p. 1172.)
AESI contends there is no material factual issue, because the trial court’s approval of the consent judgment included a finding that it conferred a significant benefit on the general public. We disagree. No express finding of significant public benefit appears in the consent judgment. The only express findings were that no warning was required, no penalty was warranted and the attorney fees to be paid by Proctor & Gamble to AESI were reasonable.
As the trial court noted in its order denying the motion for attorney fees, payment of attorney fees pursuant to the consent judgment was contractual, not ordered under section 1021.5.
AESI contends the following language was the trial court’s express finding of public benefit: “‘[T]here exists public benefit to the reduction of lead or the search to further reduce lead levels in a product commonly used by the public.’” The quoted language does not appear in the judgment; it appears only in the trial court’s tentative ruling. We reject AESI’s assertion that we upheld the trial court’s comments expressed in the tentative ruling. On the contrary, we found that the tentative ruling had not been incorporated into the judgment, and we held that it comprised no part of the findings of the trial court. (Environment I, supra, B186515 at pp. 10, 21.) Even had the trial court incorporated the tentative ruling’s remarks into the consent judgment, the statement that it is beneficial to reduce lead levels in a product commonly used by the public is not an express finding that the consent judgment would do so. Further, the approval of settlement funds to be used for searching to reduce lead is not an express finding that such a search would provide a significant benefit. Indeed, there is no express or implied finding in the consent judgment or the tentative ruling that the general public or any large class of persons would significantly benefit from the settlement.
A trial court should not approve a Proposition 65 settlement if it is unfair or fails to serve the public interest. (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 61-63.) Thus, we construe the consent judgment as including an implied finding that the settlement was fair and served the public interest. However, section 1021.5 requires more than a fair result that serves the public interest; it requires a “significant” public benefit. Section 1021.5 does not define “‘significant benefit,’” but the statutory language makes clear that it is not synonymous with the enforcement of every constitutional or statutory right. (Woodland Hills, supra, 23 Cal.3d at p. 939.) “[T]he public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a ‘benefit’ when illegal private or public conduct is rectified. Both the statutory language (‘significant benefit’) and prior case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation.” (Id. at p. 939.)
An implied finding is one that must necessarily be drawn from the judgment in order to uphold it. (Richter v. Walker (1951) 36 Cal.2d 634, 639-640.)
As the language of section 1021.5 makes clear, an award of attorney fees based on the “enforcement of an important right affecting the public interest” is authorized only if the court makes the additional findings that “a significant benefit . . . has been conferred on the general public or a large class of persons” and that “the necessity and financial burden of private enforcement . . . are such as to make the award appropriate.” Thus, courts have recognized that “[t]here are three requirements for recovery of attorney’s fees under [section 1021.5]: (1) one must be a successful party in an action resulting in the enforcement of an important right affecting the public interest; (2) a significant benefit . . . must have been conferred on the general public or a broad class of persons, and (3) the necessity and financial burden of private enforcement must transcend the litigant’s personal interest in the controversy. [Citation.]” (City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 1112.)
Making no distinction between “public benefit” and “significant public benefit,” AESI contends that we upheld a finding of public benefit in the previous appeal, and that the Attorney General is attempting to relitigate that issue. We did not uphold a finding of either public benefit or significant public benefit. We held that in order to approve the attorney fees Procter & Gamble agreed to pay AESI, the trial court was not required to find that the parties had established the elements of section 1021.5; thus, a finding of significant public benefit was not a prerequisite to the approval of the settlement agreement. (Environment I, supra, B186515 at p. 18.)
We also observed that “the Attorney General ha[d] failed to provide a proper substantial evidence analysis to support his claim that ‘no party produced evidence to allow the court to conclude that plaintiff has achieved any substantial benefit for the public.’” (Environment I, supra, B186515 at p. 20.) This is a far cry from holding that the trial court had made a finding of public benefit -- let alone significant public benefit -- or that substantial evidence supported such a finding.
AESI suggests that defeating the Attorney General’s appellate challenge to the consent judgment must be deemed to have conferred a public benefit, because otherwise the Attorney General could prevent citizen enforcement by prosecuting an appeal from all consent judgments, making enforcement too expensive and thereby thwarting the electorate’s intent to empower private citizens to enforce Proposition 65. AESI’s proposed exception would put in place a broad prevailing-party right to attorney fees, regardless of how significant any public benefit, as a disincentive to the Attorney General’s overreaching or engaging in other bad-faith behavior. It is unnecessary to fashion a judicially created exception to the significant public benefit requirement of section 1021.5, as procedures are presently in place for the recovery of attorney fees for frivolous or bad faith tactics undertaken solely to harass the opposing party. (See Code Civ. Proc., § 128.5 [trial court procedure]; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645, 650 [appellate court].) Moreover, “qualifying the unqualified language of a statute with unexpressed exceptions premised on legislatively unmentioned policy judgments . . . risks judicial trespass upon the Legislature’s province by varying the enacted words of the statute.” (Pacific State Bank v. Greene (2003) 110 Cal.App.4th 375, 379-380.)
AESI contends the trial court erred in admitting evidence to show the underlying litigation did not confer a public benefit, but should have considered only AESI’s success in defeating the appeal from the consent judgment. AESI argues that its success in the appeal vindicated “the right of a citizen enforcer to enforce a Proposition 65 Consent Judgment from attack on appeal by a public prosecutor who refused to pursue the Crest® violation.” In fact, the right of a plaintiff to appear as respondent in an appeal filed by another was not established by this court, but has been the law for over a century. (See, e.g., Senter v. De Bernal (1869) 38 Cal. 637, 640-642.)
AESI suggests that the prior appeal also affirmed the right of a citizen enforcer to settle a Proposition 65 action without supervision by the Attorney General. AESI cites no part of the opinion in support of this contention. Nor could it do so, as no such issue was before us in the prior appeal, and our opinion contains no reference to any right to settle with or without Attorney General supervision.
From the foregoing, we conclude that the element of significant public benefit was not established as a matter of law, but required a factual determination, which is reviewed for abuse of discretion, not de novo. (See Connerly, supra, 37 Cal.4th at pp. 1175-1176; Baggett v. Gates (1982) 32 Cal.3d 128, 142-143.) It was incumbent upon AESI to establish that the consent judgment conferred a substantial benefit on the general public or a large class of persons. (See Woodland Hills, supra, 23 Cal.3d at p. 938; California Licensed Foresters Assn. v. State Bd. of Forestry, supra, 30 Cal.App.4th at p. 569.) On appeal, AESI’s burden is to show the order was “‘“clearly wrong”’” or that it had “‘“no reasonable basis.”’” (Ryan v. California Interscholastic Federation, supra, 94 Cal.App.4th at p. 1044.)
AESI has not shown that the trial court had no reasonable basis to conclude that the confirmation of the settlement did not confer a substantial public benefit. The consent judgment does not require reformulation of Crest toothpaste; it requires only that Procter & Gamble state a lower maximum lead content in its specifications to hydrated silica suppliers. If hydrated silica with the lower lead content is unavailable, Procter & Gamble need only make reasonable efforts to use hydrated silica with the lowest level of lead feasible.
Because AESI did not meet its burden to show the settlement conferred a significant benefit on the general public or a large class of persons, we find no abuse of discretion in the trial court’s denial of AESI’s motion for attorney fees. (See California Licensed Foresters Assn. v. State Bd. of Forestry, supra, 30 Cal.App.4th at p. 569; § 1021.5.) Thus, AESI has not met its burden on appeal to show the denial of its motion was an abuse of discretion. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Ryan v. California Interscholastic Federation, supra, 94 Cal.App.4th at p. 1044.)
Because we affirm the trial court’s order, we do not reach AESI’s contention that the amounts requested were reasonable. Nor do we reach AESI’s constitutional contention, viz., that interpreting Health and Safety Code section 25249.7 in a manner that would “eliminate the citizen enforcer’s ability to obtain appellate attorney fees incurred in defending a Proposition 65 Consent Judgment entered by a trial court in the public interest would unconstitutionally burden the citizen enforcer’s power to enforce and implement Proposition 65 in a manner co-equal with public prosecutors.” We do not reach that issue because we have not interpreted section 25249.7 as eliminating citizen enforcers’ ability to obtain attorney fees on appeal. AESI’s attorney fees motion was brought under section 1021.5, not section 25249.7. We have merely upheld the trial court’s discretion in determining that AESI failed to establish its right to attorney fees under section 1021.5.
DISPOSITION
The order denying AESI’s motion for attorney fees is affirmed. The Attorney General shall have costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.