BRUCE v. CITY OF ALAMEDA

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Court of Appeal, First District, Division 3, California.

Pamela BRUCE et al., Plaintiffs and Respondents, v. CITY OF ALAMEDA et al., Defendants and Appellants.

No. A040544.

Decided: January 04, 1989

Carter J. Stroud, City Atty., City of Alameda, Alameda, Charles O. Triebel, Jr., Oakland, for defendants and appellants. Guy T. Saperstein, Mari Mayeda, Farnsworth, Saperstein & Seligman, Peter E. Sheehan, Legal Aid Soc. of Alameda County, Oakland, for plaintiffs and respondents.

Defendant the City of Alameda (the City), appeals from an order awarding over $124,000 in attorney fees to plaintiffs' counsel, the Legal Aid Society of Alameda County (LASAC), pursuant to Code of Civil Procedure section 1021.5 and 42 United States Code section 1988.1  Plaintiffs cross-appeal from the same order.   We affirm the order.

FACTS

In 1982 voters in the City enacted an ordinance by initiative (Measure I) which restricted development of low cost, government subsidized rental housing units in the City.   Represented by LASAC, plaintiff Gerald Walker and another individual, La Drena Hornesby, challenged the ordinance by petition for writ of mandate in this court.   That petition was denied in January 1983.   In April 1983, LASAC represented Walker and plaintiff Pamela Bruce when they filed an action in the trial court attacking the ordinance.   The trial court concluded that the ordinance was preempted by Government Code section 65008 and enjoined its operation.   Intervenor, the Alameda County Improvement Association, Inc., appealed;  Division 1 of this court affirmed in a published opinion filed in March 1985.  (See Bruce v. City of Alameda (1985) 166 Cal.App.3d 18, 20–23, 212 Cal.Rptr. 304.)

Settlement negotiations between the City and plaintiffs regarding attorney fees were unsuccessful.   In February 1987, plaintiffs moved for an award of attorney fees under section 1021.5 and 42 United States Code section 1988.   The trial court concluded that plaintiffs were entitled to fees under both state and federal law.   It concluded that plaintiffs' counsel were entitled to compensation for 431.67 attorney hours and 75 law clerk hours, at 1987 hourly rates.   It adjusted that touchstone or lodestar figure upward by a multiplier of 1.25, because of the “contingent nature of success, the exceptional results achieved, the superior quality of representation, the delay in receipt of fees, and the economic undesirability of the action.”   Finally, it also awarded plaintiffs approximately $15,000 in fees for attorney services related to the fee motion.   The total fee award was $124,168.47.

THE CITY'S APPEAL ***

c. Fees for work on intervenor's appeal

As noted, when the trial court declared Measure I in conflict with state law, the intervenor appealed, but the City did not.   Plaintiffs' fee award included fees for approximately 49 hours of work by LASAC on that appeal.   The City contends that it should not be required to pay fees for work occasioned by its co-opponent.   The City asserts that it made no cooperative effort with intervenor, and that the benefits to the City of intervenor's position were “problematical” and “not admitted.”   It is not clear whether the City's attack is on the sufficiency of the evidence to support that aspect of the award, or on its legal basis, but both arguments are without merit.

Neither party cites a California case involving an award of fees against a nonappealing codefendant for work done on an appeal taken by codefendant or intervenor.   However, section 1021.5 permits an award against “one or more opposing parties․”  In addition, the trial court's broad discretion in awarding attorney fees under that section extends to determining how liability for those fees should be divided or allocated among the losing parties to achieve equitable results.  (See Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 272, 237 Cal.Rptr. 269.)

We note too that federal courts have approved fee awards against one party for work on issues raised by an intervenor.   In Environmental Defense Fund v. Environmental Prot. (D.C.Cir.1982) 672 F.2d 42, the court held that prevailing parties were entitled to an award of fees from the Environmental Protection Agency (EPA) which included time spent in litigating against the intervenors in the action.   The EPA argued that it was not in privity with the intervenors and did not control or direct their presentations.   The appellate court considered it more important, however, that all of the positions advanced by the intervenors supported the EPA's position in the litigation, and that the EPA never opposed any of the positions asserted by the intervenors.  (Id., at pp. 55–56.)   Similarly, in Kelley v. Metropolitan County Bd. of Educ. (1985) 773 F.2d 677, the court held that prevailing plaintiffs in a school desegregation case were entitled to recover fees from defendant board of education for time spent on issues raised by intervenors, even though the board had opposed intervention.   The court reasoned that the board should be liable for those costs because its own failure to dismantle its dual school system caused the intervention.  (Id., at pp. 684–685.)

 Although these federal cases are not controlling here, we follow them because the rule which they articulate appears to be effective in enforcing the principles of federal statutes which are comparable to section 1021.5.   (See Serrano v. Unruh, supra, 32 Cal.3d at p. 639, fn. 29, 186 Cal.Rptr. 754, 652 P.2d 985.)   We conclude that on a proper factual showing, section 1021.5 may permit an award against a nonappealing defendant for work done to defend against an appeal taken by codefendant or intervenor.

County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 223 Cal.Rptr. 846, relied on by the City, is inapposite.   The court in that case did not consider or decide whether it would be an abuse of discretion to award fees against one opposing party for attorney time spent against another opposing party.

 The showing in this case was sufficient to justify the award.   The City's assertions that it did not cooperate with the intervenor and that any benefits received were “problematical” are unsupported by any citation to the record.   Plaintiffs, on the other hand, point to evidence in the record from which the trial court could reasonably have inferred that the City and the intervenor had cooperated in an earlier, related action, that the City would have benefitted in the instant case had intervenor prevailed on appeal, and that City's conduct had at least some causal connection to the appeal.   The City does not claim that it ever opposed the appeal or the position taken by intervenor.   The court did not abuse its discretion in determining that the fee award should include the hours spent on the appeal.

d.–f.†

PLAINTIFFS' CROSS–APPEAL ††

DISPOSITION

The judgment is affirmed.   The matter is remanded to the trial court with directions to hear and determine plaintiffs' request for reasonable fees on appeal.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

STRANKMAN, Associate Justice.

WHITE, P.J., and MERRILL, J., concur.