Opinion
B160096. B156528.
11-20-2003
OMAR BRADLEY, Plaintiff and Respondent, v. ERIC J. PERRODIN, Defendant and Appellant.
Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser, and Lea Rappaport Geller for Defendant and Appellant. Reed & Davidson, Dana W. Reed and Bradley W. Hertz; Milton Grimes for Plaintiff and Respondent..
In this mayoral election contest, we reverse the order erroneously awarding attorney fees and costs to the unsuccessful challenger, respondent Omar Bradley, under the private attorney general statute (Code Civ. Proc., § 1021.5).
BACKGROUND
In the June 5, 2001, Compton mayoral runoff election, appellant Eric Perrodin prevailed over respondent Omar Bradley, the incumbent, following a hotly contested race. On the same date, Leslie Irving defeated Melanie Andrews in the runoff election for a city council seat.
Bradley filed an election contest against Perrodin, and Andrews filed an election contest against Irving. In the consolidated actions, the superior court entered judgment for Bradley and Andrews, and placed them in their respective offices in lieu of the winners, Perrodin and Irving. The court held that the city clerk, by erroneously placing Perrodins and Irvings names first on their respective runoff ballots, had caused Bradley and Andrews to lose elections they otherwise would have won due to the primacy effect theory of ballot name-order placement. In addition, the superior court overturned Irvings election and permanently disqualified her from public office on the ground that she had committed offenses against the elective franchise by illegally registering nine non-citizen voters (Elect. Code, §§ 16100, subd. (c), 18100, subd. (a), 18371, subd. (a), 18500, 18501, 18561). The superior court, however, absolved Perrodin of having committed offenses against the elective franchise, rejecting the theory that he and Irving, "as members of a `slate, were agents of each other and therefore were vicariously liable for each others actions."
Perrodin and Irving each appealed from the judgment and petitioned for a writ of supersedeas and immediate stay. With respect to the Bradley-Perrodin election contest, we granted Perrodins petition for writ of supersedeas and immediate stay (Bradley v. Perrodin (Feb. 26, 2002, B156528)), and the California Supreme Court denied Bradleys application for stay and petition. (Bradley v. Perrodin (Feb. 28, 2002, S104699).) Accordingly, while Perrodins appeal was pending, Perrodin continued to serve as mayor.
With respect to the Andrews-Irving election contest, however, we denied Irvings petition for writ of supersedeas and immediate stay. (Wheaton v. Arceneaux (Mar. 7, 2002, B156528).) Accordingly, Andrews continued to serve on the city council while Irvings appeal was pending.
While Perrodins appeal was pending, Bradley, having prevailed below, moved for about $1.4 million in private attorney general fees and costs against the City of Compton. (Code Civ. Proc., § 1021.5.) The city opposed the motion on numerous grounds, including the fact that Perrodins appeal was still pending. In addition to opposition from the city, taxpayer Margaret Mitchell orally requested leave to intervene in opposition to the motion. The court denied Mitchells request to intervene, citing the lack of notice, questions about Mitchells standing, and the fact that Mitchells "concern[s]" were "being represented."
Bradley sought $655,138.75 in attorney fees (the lodestar figure) and $70,116.90 in costs. Applying a multiplier of 2 to the lodestar figure, Bradley sought a total of $1,380,394.40 in fees and costs.
Bradley argued below that the city attorney lacked authority to oppose his fee motion against the city councils wishes. Bradley stated in part: "[T]he City Council adopted a resolution accepting [the superior courts] Findings of Fact and Conclusions of Law, which, by definition, acknowledges the public benefits bestowed on the City by the Omar Bradley legal team and [the superior court]. . . . [¶] . . . [I]n a related attorneys fee matter (the `taxpayer lawsuit challenging the Citys legal authority to pay the claim submitted by the Omar Bradley legal team), outside counsel for the City acknowledged that because of the legal services rendered by the Omar Bradley legal team and [the superior courts] ruling, `substantial benefit was realized by the city and the general public and important rights were vindicated . . . . Moreover, in a Declaration filed in the `taxpayer case, Compton City Manager John Johnson recounted the Citys desire to pay Contestants legal fees and costs, initially by way of a claim and now by way of this Courts anticipated CCP section 1021.5 ruling. . . ." (Italics omitted.)
On May 17, 2002, the trial court granted Bradleys motion and imposed $749,353.78 in fees and costs against the city, but stayed the order pending Perrodins appeal in the Perrodin-Bradley election contest, as well as any appeal from the fee and costs award. With regard to the issue of standing on appeal, the court asked the parties to draft a fee order "in a way that you can agree on to make it real clear that I want the Court of Appeal to be able to address that on its merits without legal wrangling over whether there is somebody or isnt somebody who has the appropriate standing to bring it before the Court of Appeal."
The court did not apply a multiplier to the lodestar figure, but added $23,433.75 in supplemental fees and $664.38 in supplemental costs incurred in connection with the fee motion.
On July 8, 2002, Perrodin appealed from the order assessing fees and costs against the city. The city, however, did not appeal.
In his opening brief, Perrodin explains the citys failure to appeal from the fee order as follows: "Because the portion of Judge Chirlins judgment overturning the election of Appellant Irving and installing Respondent Andrews on the Compton City Council was not stayed by this Court, Respondent Bradleys allies maintain a three-to-two majority on the City Council, and they consistently vote as a block to support his and Respondent Andrews positions in all matters relating to the election contest. Appellants counsel is informed that this same three-to-two majority ordered the City Attorney not to file an appeal from Judge Chirlins fee order directing the City to pay Bradleys attorneys $750,000 in fees and costs."
On March 10, 2003, we reversed the judgment for Bradley and entered judgment for Perrodin. (Bradley v. Perrodin (2003) 106 Cal.App.4th 1153.) We found, contrary to the judgment, that Bradleys and Perrodins names were listed in the correct order on the mayoral runoff ballot. Moreover, we stated that "even if Bradleys and Perrodins names were erroneously reversed on the runoff ballot, the primacy effect theory would not justify shifting 306 votes from Perrodin to Bradley." (Id. at p. 1164.)
With regard to the Andrews-Irving election contest, we affirmed the portion of the judgment annulling Irvings election due to her offenses against the franchise, but we reversed the imposition of a lifetime ban from public office. (Bradley v. Perrodin, supra, 106 Cal.App.4th at pp.1165-1170, 1174-1176.)
As for Andrews, we concluded the superior court had erroneously placed her in office based on the primacy effect theory. We found that despite the unintentional name-order error on the Andrews-Irving runoff ballot, the superior court erred in reversing the results and placing Andrews in office based on the primacy effect theory. (Bradley v. Perrodin, supra, 106 Cal.App.4th at pp. 1160, 1170-1173.) Upon the finality of our opinion, Andrews city council seat became vacant. (Id. at pp. 1173-1174.)
DISCUSSION
We begin by discussing the issue of standing. Bradley contends that because fees and costs were imposed solely against the city, which has not appealed, Perrodin is not an aggrieved party and lacks standing to appeal.
The record indicates that during Andrews tenure, a majority of the city council disagreed with the city attorneys decision to oppose Bradleys motion for fees and costs. According to Perrodin, the city failed to appeal from the fee order because the city council, by a 3-2 vote (with Andrews voting with the majority), had ordered the city attorney not to file an appeal. Assuming that Andrews, who was erroneously placed on the city council by the trial court, had cast the deciding vote against filing an appeal, it would be the height of injustice to stick the taxpayers with $750,000 in potentially unwarranted fees and costs due to the councils decision not to file an appeal.
On October 21, 2003, we granted the citys application for leave to file an amicus curiae brief in support of Perrodins appeal. In its amicus brief, the city joined in Perrodins arguments in full and urged us to uphold Perrodins standing to challenge the attorney fee order. The city explained that at the October 7, 2003, City Council meeting, the council voted "to waive any Brown Act privilege regarding the discussions that took place in closed session [on May 21, 2002,] with respect to whether to appeal Judge Chirlins fee award. The City Council also authorized the filing of this amicus brief during the same meeting." According to the citys amicus brief, at the May 21, 2002, closed session of the City Council, the council voted by 3-2 vote (with former council members Andrews, Rahh, and Zurita voting with the majority), against the City Attorneys advice, not to appeal the attorney fee order.
Contrary to Bradleys contention, Perrodin is an aggrieved party even though the fee order was not directed personally against him. Perrodin is both a resident and the mayor of Compton. Perrodin, like all Compton residents, would be harmed unless someone has standing to appeal the potentially erroneous order.
Given the courts refusal to allow Mitchell to intervene, we conclude Perrodin, the sole appellant, has standing to appeal on behalf of the public. As we pointed out in Bradley v. Perrodin, supra, 106 Cal.App.4th at p. 1171, "[e]lection contests are not typical adversary proceedings `between individuals asserting personal rights or interests, but involve the right of the people to have the fact as to who has been duly elected by them judicially determined. . . . The public interest imperatively requires that the ultimate determination of the contest shall reach the right result. (28 Cal.Jur.3d (1986) Elections, § 221, p. 727-728, fns. omitted.)"
As the public is entitled to the full and fair determination of all aspects of this election contest, including the significant issue of being made to pay unwarranted fees and expenses, we turn to the merits of the appeal.
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 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 . . . ."
Bradley contends he is entitled to fees under subdivision (a) of section 1021.5 for having conferred a significant public benefit despite his failure to unseat Perrodin, because he "successfully unseat[ed] Leslie Irving on behalf of Melanie Andrews and the People of Compton." The trial court found that Andrews, who was in propria persona below, had relied exclusively upon evidence supplied by Bradleys attorneys in unseating Irving. The trial court noted that although Bradley had failed to implicate Perrodin in Irvings illegal activities, "virtually all of the evidence regarding Irvings activities was presented by Bradleys attorneys."
Bradleys primary objective in presenting evidence against Irving, however, was to regain the mayors office by linking Perrodin to Irvings illegal activities. Given the entirely personal nature of Bradleys primary objective, Irvings incidental removal does not entitle Bradley to fees and costs under the "significant benefit" clause of the private attorney general statute. The private attorney general statute is "not a reward for litigants motivated by their own interests who coincidentally serve the public." (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 570.)
Moreover, Bradleys request for fees under subdivision (b) of section 1021.5 (which seeks to lessen the burden of private enforcement) must also fail given our rejection of Perrodins similar rationale in Bradley v. Perrodin, supra, 106 Cal.App.4th at p. 1165. In our earlier decision, we denied Perrodins fee request under section 1021.5, finding Perrodins personal stake in the outcome of the election contest outweighed any public interest that he vindicated in winning the election contest on appeal. (Ibid.) The same obviously holds true for Bradley, who lost the election contest on appeal. As opposing candidates, Perrodin and Bradley each have a personal interest in the outcome of the election contest. Their personal interest in attaining the mayors office provided sufficient personal motivation to conduct this litigation without the added incentive of recovering fees under the private attorney general statute.
The private attorney general statute is intended to encourage private parties to initiate actions to vindicate "statutory and constitutional rights, as well as important public policies, in circumstances in which the expense of litigation would otherwise deter private parties from doing so." (In re Head (1986) 42 Cal.3d 223, 228.) "To recover private attorney general fees, `[t]he claimants objective in the litigation must go beyond — "transcend" — those things that concretely, specifically and significantly affect the litigant . . . , to affect the broader world or "general public" as the statute puts it. (Hammond v. Agran (2002) 99 Cal.App.4th 115, 127 . . . .) Attorney fees connected to a candidates `quest for elective office, on the other hand, do not transcend the candidates `palpable personal stake in the . . . election. (Id. at p. 128.)" (Bradley v. Perrodin, supra, 106 Cal.App.4th at p. 1165.)
Even if, as the trial court found, Bradleys attorneys uncovered errors or irregularities in the ballot counts, illegal votes, perjury, or other wrongs, Bradleys motive in filing the election contest was to regain the mayors office. That highly personal stimulus outweighed any incidental benefits to the general public resulting from Bradleys unsuccessful personal quest. The hope of recovering attorney fees did not transcend his "`palpable personal stake in the . . . election. [Citation.]" (Bradley v. Perrodin, supra, 106 Cal.App.4th at p. 1165.)
We conclude the trial court erred in ordering the city to pay Bradleys fees and costs under section 1021.5.
DISPOSITION
We reverse the order requiring the city to pay Bradleys fees and costs under Code of Civil Procedure section 1021.5. Perrodin is entitled to costs on appeal.
We concur: SPENCER, P.J., MALLANO, J.