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Court of Appeal, Second District, Division 2, California.

Susan NORTHINGTON and Theresa Johnson, Plaintiffs and Respondents, v. Edward DAVIS, as Chief of Police of the City of Los Angeles, et al., Defendants and Appellants.

Civ. 48002.

Decided: December 07, 1976

Burt Pines, City Atty., Claude E. Hilker and Jerome A. Montgomery, Asst. City Attys., and Gregory C. O'Brien, Jr., Deputy City Atty., for defendants and appellants. Daniel M. Luevano, Rosalyn M. Chapman, John E. McDermott, Michele D. Washington and Linda T. Ferguson, Los Angeles, for plaintiffs and respondents.

Plaintiffs Susan Northington and Theresa Johnson (respondents) sued various City of Los Angeles employees and agencies1 for injunctive and declaratory relief regarding the planned building of a helipad at a proposed police station in South Central Los Angeles. The building site is near an elementary school. Respondents were represented by the Western Center on Law and Poverty, the Legal Aid Foundation of Los Angeles, and the National Conference of Black Lawyers. Both parties made motions for summary judgment. The trial court rendered judgment for respondents to the extent that defendants were enjoined from constructing the South Los Angeles Division Police Station in a form containing certain structural reinforcements to allow helicopters to land thereon until the approval of the Department of Transportation has been first obtained under Public Utilities Code section 21662.5.

Attorneys for the National Association of Black Lawyers, Inc., and the Western Center on Law and Poverty made motions for awards of reasonable attorneys' fees. The court awarded $4,000 to the National Conference of Black Lawyers, Inc., and $7,000 to the Western Center on Law and Poverty. The court stated that the awards were based on the ‘substantial public benefit theory in that the public generally is benefited by not having buildings constructed in the future which might be used for helicopter operations without the approval of the Department of Transportation, and the prohibition of future illegal expenditure of public funds.’ The City appeals from the order granting attorneys' fees.2


1. The substantial public benefit theory was misapplied, and attorneys' fees should not have been awarded in the instant case.

2. Even assuming that fees should have been awarded, the award in the instant case was highly excessive.


The award of attorneys' fees based on the substantial public benefit test was improper.

Code of Civil Procedure section 1021 provides in pertinent part:

‘Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; . . .’

There is no state statute providing for the award of attorneys' fees in this case.3 Neither was there ever an express or an implied agreement concerning attorneys' fees between the parties in this case.

‘However, appellate decisions in this state have created two nonstatutory exceptions to the general rule of section 1021, each of which is based upon inherent equitable powers of the court. The first of these is the well-established ‘common fund’ principle: when a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney's fees out of the fund. [Citations.] The second principle, of more recent development, is the so-called ‘substantial benefit’ rule: when a class action or corporate derivative action results in the conferral of substantial benefits, whether of a pecuniary or nonpecuniary nature, upon the defendant in such an action, that defendant may, in the exercise of the court's equitable discretion, be required to yield some of those benefits in the form of an award of attorney's fees. [Citations.]' (D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 25, 112 Cal.Rptr. 786, 803, 520 P.2d 10, 27.)4

Many questions are raised by this appeal. For the substantial benefit theory to apply, how substantial must the benefit be? Must the benefit be to defendants? (See, for example, D'Amico, supra, 11 Cal.3d at pp. 25–26, 112 Cal.Rptr. 786, 520 P.2d 10.) Was this truly a representative action, or did respondents, while taxpayers, sue only for themselves, utilizing their status as taxpayers and as the mother of a child at the 107 Street Elementary School and the PTA president of that school primarily as a means of acquiring a recognizable capacity or status to sue?

Non-representative nature of the suit.

The plaintiffs (respondents herein) are Susan Northington and Theresa Johnson. Ms. Northington is the parent of the student in attendance at the 107 Street Elementary School. Mr. Johnson was president of the Parent Teachers' Association of the school. Both were taxpayers but the suit was not brought on behalf of all other taxpayers of the district. (Compare Gogerty v. Coachella Valley Junior College Dist., 57 Cal.2d 727, 729, 21 Cal.Rptr. 806, 371 P.2d 582.) D'Amico, supra, states that the substantial benefit rule applies to class actions or corporate derivative actions. While the taxpayer suit on behalf of other taxpayers may be equivalent to a class action, suit brought by two individuals as individual taxpayers, although probably incidentally benefiting others, is not a class action.

Lack of substantial benefit to persons being asked to pay.

Even assuming that the suit was in a representative capacity, under D'Amico, supra, 11 Cal.3d at page 25, 112 Cal.Rptr. 786, 520 P.2d 10, to justify award of attorneys' fees the substantial benefit must be bestowed on defendants, not plaintiffs. In that case, graduates of out-of-state colleges of Osteopathy successfully sued the Board of Medical Examiners and the Board of Osteopathic Examiners to be considered for licensure, either as new physicians and surgeons or according to the provisions of the Osteopathic and Medical Practice Act applicable prior to the 1962 Amendment. The court found that the benefit bestowed as a result of the judgment was on the plaintiffs and not on the Medical Board or the Attorney General. Respondents rely in part on Mandel v. Hodges, supra, 54 Cal.App.3d at p. 622, 127 Cal.Rptr. 244. An award of attorney's fees was there affirmed under the substantial benefit rule. There the state employee sued to enjoin the Governor from proclaiming Good Friday from Noon to 3 p. m. as a state holiday. The benefit there, unlike the case at bench, was directly and proximately to the citizens and taxpayers of the state. (Mandel v. Hodges, supra, 54 Cal.App.3d at p. 623, 127 Cal.Rptr. 244.) There was a proven saving to the state in emplovee working time. Plaintiff Mandel did not sue to get a day off for herself or any specific group.

Moreover, the substantiality of the benefit conferred is another question. In Mandel v. Hodges, supra, the state saved approximately $2 million in 1973 alone. (54 Cal.App.3d at p. 622, fn. 16, 127 Cal.Rptr. 244.) The taxpayer suit in Knoff v. City etc. of San Francisco, 1 Cal.App.3d 184, 195–197, 81 Cal.Rptr. 683, resulted in substantially increased tax revenues. In contrast at bench, by respondents' own calculations, only approximately $9,600 of unauthorized construction was prevented by the instant suit. Seven thousand six hundred and fifteen dollars was saved soon after the lawsuit was filed, when Chief of Police Edward Davis wrote a letter to the director of the Bureau of Public Buildings stating that the structural capability for helicopters would be included in the initial construction of the police station but that the raised concrete platform and appurtenant equipment should not be included in the design. As stated in the answer to the complaint, the City never planned to make the bare concrete structure into a heliport without procuring all the necessary permits required by law. While the filing of the complaint may have produced this letter and the City's decision not to build the heliport, the only benefit conferred by the remaining litigation was to force the City to procure a permit before constructing a building strong enough to support a helipad. Since the City was intending to do that anyway, there was little benefit conferred after the City decided not to build the helipad.

We realize that the benefits need not be financial. As the court stated in Fletcher v. A. J. Industries, Inc., 266 Cal.App.2d 313, 324, 325, 72 Cal.Rptr. 146, 153, regarding a successful shareholder derivative suit:

‘It will suffice if the court finds, upon proper evidence, that the results of the action ‘maintain the health of the corporation and raise the standards of ‘fiduciary relationships and of other economic behavior,’' or ‘prevent[s] an abuse which would be prejudicial to the rights and interest of the corporation or affect the enjoyment or protection of an essential right to the stockholder's interest.’ [Citation.] . . .'

The trial court herein found that the public is benefited by not having buildings built in the future that might be used for helicopter operations without approval of the Department of Transportation and by the prohibition of future illegal expenditures of public funds. The court, however, also noted that relative to any benefit, ‘Frankly, I don't think that the victory here was the greatest victory in the world in this particular case . . ..’

The ‘benefit’ in this case is principally to the plaintiffs-respondents and to their children at 107th Street School. To construe the theory of ‘benefit’ in the manner suggested by respondents and accepted by the trial court is tortuous, unreasonable, and an extremely tenuous basis for awarding of attorneys' fees. Respondents claim that the benefits achieved are that public money has been saved by eliminating the cost of strengthening the building to accommodate a helipad and by teaching the City and its police department not to try and build buildings without complying with the law. The absurdity of these arguments as a basis for justifying attorneys' fees is almost self-evident. It is ridiculous to claim conferring a benefit by a saving of money5 ($9,600) and then to turn around and ask for more money ($11,000) by way of fees than was saved.

The argument of respondents, accepted by the trial court, that the public benefited by the prohibition of future illegal expenditures of public funds is arrogant and presumptuous. It is in effect a claim of teaching the City a needed lesson. Nothing in the record demonstrates that respondents by simply mailing a letter could not have informed City of the need for permission from the Department of Transportation. There is no evidence that if so informed City, but for the lawsuit, nonetheless would have built the planned structure without such permission. Moreover there is no evidence that City or any other public agency or employee had threatened or threatens to illegally or unlawfully spend public money in the future but has been prevented from doing so in the future by this lawsuit. On the other hand, if what the trial court meant by its statement is that the lawsuit would serve as an object lesson and guide for the conduct of others in the future, that is too conjectural and speculative a ‘benefit.’

The real purpose of this lawsuit was not to familiarize the defendants with the Public Utilities Code. That seems to be merely a coincidental fact, a convenient peg on which respondents now seek to rest their claim. The genuine purpose of the lawsuit was to prevent altogether construction of a helipad near the school. Thus, the greatest degree of benefit is to the plaintiffs and the real immediate parties for whom they brought the lawsuit, the children of 107th Street School. Assuming appellants' good faith contentions that the helipad would be noisy, disruptive, and hazardous to the children, it does not necessarily follow, however, that the ‘benefit’ of removing the presence of this noise, disruption, and risk of hazard to the children of 107th Street School outweighs the loss of other benefits. It can be argued with equal logic that greater police protection within the same area and to the same children and their families has now been lost. To put it in another way, any benefits to the entire City of Los Angeles are extremely remote, indirect, and highly speculative, whereas the benefits to the plaintiffs are very proximate and direct, substantial, and readily apparent and enjoyable.

There is a strong possibility that as to the defendants generally as representatives of the public which is being asked to pay, there is more detriment in loss of police protection and crime prevention than there is any benefit in being educated concerning the provisions of the Public Utilities Code or in the relatively small reduction in construction cost. Respondents' arguments based on these two considerations as justification for attorneys' fees are specious.

The order granting attorneys' fees is reversed.


1.  We shall refer to the defendants and appellants in this case collectively as ‘the City.’

2.  There was no appeal from the granting of the motion for summary judgment.

3.  Respondents submit that Government Code section 800, which provides for attorneys' fees not to exceed $1,500 in certain civil actions, is irrelevant to the issue at hand. Because of respondents' position, we do not review the possible applicability of section 800 as a basis for award of attorneys' fees in the instant case.

4.  Although briefly mentioned, the substantial benefit theory as an exception to the usual American rule prohibiting attorneys' fees absent statute or agreement was not accepted by the United States Supreme Court in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 257–258, 95 S.Ct. 1612, 44 L.Ed.2d 141 (fn. 30). That case rejected the ‘private attorney general’ approach in the federal courts. California courts have not accepted the private attorney general theory. In D'Amico v. Board of Medical Examiners, supra, the court refused to pass on the usability of such theory, noting that at the time the U. S. Supreme Court had the issue before it in Bradley v. School Board of City of Richmond, Va., 472 F.2d 318, certiorari granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396. In view of the rejection of the theory in Alyeska Pipeline Co. v. Wilderness Society, supra, and the announced position of the California Supreme Court in D'Amico, it seems likely that such theory will be rejected in California. (See also Mandel v. Hodges, 54 Cal.App.3d 596, 620, 127 Cal.Rptr. 244, which makes this same observation, and Bozung v. Local Agency Formation Com., 13 Cal.3d 483, 119 Cal.Rptr. 215, 531 P.2d 783.) Although the private attorney general theory was not pursued by respondents on appeal, they nonetheless argued that theory to the trial court, sometimes equating it with the substantial benefit theory.

5.  Even this assumes a true ‘saving.’ Eliminating a needed or useful part is no saving. It is merely buying less tha. necessary. ‘Saving’ here would be buying the same product or service for less money.

BEACH, Associate Justice.

FLEMING, Acting P. J., and COMPTON, J., concur.