Opinion
NOT TO BE PUBLISHED
Superior Court of Santa Barbara County No. 1304851 J. William McLafferty, Judge
Philip A. Seymour; Strumwasser & Woocher LLP, Fredric Woocher for Defendant and Appellant.
Theodora Oringher Miller & Richman PC, Kenneth E. Johnson; Stanley H. Green for Plaintiff and Respondent.
GILBERT, P.J.
The losing candidate in a race for county supervisor filed an election contest, naming the successful candidate as the sole defendant. After the trial court denied the petition contesting the election, the defendant made a motion for attorney fees. The fee request was made under Code of Civil Procedure section 1021.5, the private attorney general statute, and section 1973l(e) of the Voting Rights Act (42 U.S.C. § 1971 et seq.). The trial court denied the motion.
We reverse the denial of fees under Code of Civil Procedure section 1021.5.
FACTS
Doreen Farr and Steven Pappas were candidates for the third district supervisor in Santa Barbara County. After Farr was elected, Pappas filed an election contest pursuant to Elections Code section 16100, subdivisions (d) and (f). The contest alleged illegal votes and official errors sufficient to affect the outcome of the election. The contest challenged only votes cast in 18 precincts around the University of California at Santa Barbara where Pappas lost by substantial margins. Although Pappas did not allege any personal misconduct by Farr, Farr was the only named defendant.
Among the alleged defects were that distributors of voter registration cards violated Elections Code section 2138 by failing to return the completed cards to the county elections officials within three days; that persons who assisted others in filling out registration affidavits violated Elections Code section 2150, subdivision (d) by failing to sign the affidavits; and that county elections officials violated the Help America Vote Act (HAVA), 42 United States Code section 15301 et seq., by failing to verify voter registration information.
Pursuant to Farr's in limine motion, the trial court determined that any violation of Elections Code section 2138 or 2150, subdivision (d) would not result in the disenfranchisement of a voter. Thus the court excluded any evidence of a violation of those sections. The court also determined that Pappas has no standing to assert a violation of HAVA. After a four-day trial, the court found: "Pappas has failed to produce evidence of even one isolated incident of fraud or other illegal voting in this case.... There has similarly been a complete failure of proof as to any illegal votes cast by voters as a result of innocent mistakes, misunderstanding or ignorance of legal requirements, or other inadvertent errors by voters or election officials."
The trial court denied Pappas's petition contesting the election. We affirmed. (Pappas v. Farr (Oct. 14, 2010, B215239) [nonpub. opn.].) After the court denied Pappas's petition contesting the election, Farr made a motion for attorney fees in the amount of $250,000. The trial court denied the motion. Farr appeals.
DISCUSSION
Farr contends the trial court had no valid basis for denying her an award of attorney fees under Code of Civil Procedure section 1021.5.
Code of Civil Procedure section 1021.5 provides in 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 necessary 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." The section applies whether the successful party is a plaintiff or defendant. (Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768.)
Here the trial court found that Farr's defense of the action resulted in the vindication of important public rights, and that it resulted in a significant benefit to the public at large. There also can be no doubt of the necessity for private enforcement. The parties agree that Farr is the only proper defendant in the contest action. Thus her rights and the public interest cannot be adequately protected by public enforcement. That leaves the question whether the "financial burden of private enforcement... make[s] the award appropriate...."
In denying Farr's motion for fees, the trial court stated: "Each [candidate] raised sums for [his or her] campaign[] that would dwarf the annual salary and the attorney fees in this case. Clearly the value of the office of Third District Supervisor is not the annual salary. Public office involves non-pecuniary interests of the office holder and his/her supporters that the court must consider in this context."
The trial court relied on a line of cases holding that in determining whether to award fees under Code of Civil Procedure section 1021.5, the court may consider a litigant's nonpecuniary interests. (See, e.g., Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, 967 [plaintiff's aesthetic interest in zoning decision precluded an award of fees].)
While this case was pending on appeal, however, our Supreme Court decided Conservatorship of Whitley (2010) 50 Cal.4th 1206. Whitley disapproved the line of cases on which the trial court relied. It holds that a litigant's personal nonpecuniary interests may not be used to disqualify the litigant from obtaining fees under Code of Civil Procedure section 1021.5. (Id. at p.1211.) Instead, the court must focus on the financial burdens and incentives involved in bringing the lawsuit. (Ibid.)
Whitley cites Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 9-10, for the proper method of balancing costs and benefits: "'The trial court must first fix-or at least estimate-the monetary value of the benefits obtained by the successful litigants themselves.... Once the court is able to put some kind of number on the gains actually attained it must discount these total benefits by some estimate of the probability of success at the time the vital litigation decisions were made which eventually produced the successful outcome.... Thus, if success would yield... the litigant group... an aggregate of $10,000 but there is only a one-third chance of ultimate victory they won't proceed-as a rational matter-unless their litigation costs are substantially less than $3,000.' [¶] 'After approximating the estimated value of the case at the time the vital litigation decisions were being made, the court must then turn to the costs of the litigation-the legal fees, deposition costs, expert witness fees, etc., which may have been required to bring the case to fruition.... [¶] The final step is to place the estimated value of the case beside the actual cost and make the value judgment whether it is desirable to offer the bounty of a court-awarded fee in order to encourage litigation of the sort involved in this case.... [A] bounty will be appropriate except where the expected value of the litigant's own monetary award exceeds by a substantial margin the actual litigation costs.'" (Conservatorship of Whitley, supra, 50 Cal.4th at pp. 1215-1216.)
A supervisor's term is four years. The gross salary is $84,500 a year. The net salary after taxes would be substantially less. Farr's net income over the four years might be equal to or even slightly greater than the $250,000 she incurred in fees. But that means she would be working for free. Even without discounting the benefit for the possibility Farr might have lost the litigation, no rational person would have undertaken defense of the action for financial benefit.
Moreover, the purpose of Code of Civil Procedure section 1021.5 is to provide an incentive for private parties to bring or defend public interest actions when their personal stake in the outcome is insufficient to warrant incurring the cost of litigation. (See Conservatorship of Whitley, supra, 50 Cal.4th at pp. 1220-1221.) Thus we look to the estimated value of the case at the time vital litigation decisions are made. (Id. at pp. 1215-1216.) At the time Farr made the vital litigation decision to defend the election contest, it appeared the trial would be even longer and more costly than it was. It was only the trial court's decision to exclude evidence of violations of Elections Code sections 2138 and 2150, subdivision (d) that saved the parties from a lengthy trial.
Pappas attempts to distinguish Whitley in that there the plaintiff had no financial benefit at stake; whereas here Farr does have a personal financial benefit. It is true that Farr will receive some personal financial benefit. But not even Pappas's briefs, as we read them, suggest that Farr's personal financial benefit outweighs the cost of litigation. The trial court recognized this when it found, "Clearly the value of the office of Third District Supervisor is not the annual salary." The court relied solely on Farr's nonpecuniary interests in denying her fees.
We conclude that as a matter of law Farr is entitled to an award of attorney fees pursuant to Code of Civil Procedure section 1021.5. We remand to the trial court for a determination of the amount. We need not determine whether Farr is entitled to fees under the Voting Rights Act.
The order denying Farr attorney fees is reversed and remanded for further proceedings. Costs are awarded to Farr.
We concur: YEGAN, J., PERREN, J.