Reset A A Font size: Print

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

CENTER FOR INDEPENDENT LIVING et al., Plaintiffs and Appellants, v. ACT DISTRICT et al., Defendants and Respondents.

Edward V. ROBERTS, etc., Plaintiff and Appellant, v. ACT DISTRICT et al., Defendant and Respondent.

Civ. 42362.

Decided: July 26, 1979

Katharine T. Bartlett, Jennifer Bell, Evelyn R. Frank, Legal Aid Society of Alameda County, Oakland, for plaintiffs and appellants (Center for Independent Living). Evelle J. Younger, Atty. Gen., John J. Klee, Jr., Asst. Atty. Gen., John Davidson, Deputy Atty. Gen., San Francisco, for plaintiff and appellant (Edward V. Roberts, etc.). Paul A. Gordon, Duane B. Garrett, Robert Nisbet, Hanson, Bridgett, Marcus, Milne & Vlahos, San Francisco, for defendants and respondents.

Respondent awarded General Motors a contract for the purchase of 66 new buses.   The initial award was conditioned upon the ability of General Motors to install wheelchair lifts on the buses but, when General Motors said that was impossible, the condition was withdrawn.

Appellants sued for declaratory and injunctive relief, alleging that the purchase was in violation of the rights of handicapped persons guaranteed by Civil Code section 54.1, Government Code section 4500 and sections 38001 and 38002 of the Health and Safety Code.   Two days after appellants filed their suit, the California Department of Rehabilitation, represented by the Attorney General, also filed suit against respondents.   The cases were consolidated, a hearing was held in the superior court, and relief was denied.

Appellants sought supersedeas from this court but the petition was denied.   The Supreme Court, however, granted the relief requested and issued an order prohibiting respondent from taking any steps to acquire the buses pending appeal and returned the matter to this court.

Before the matter could be argued in this court, respondent moved to dismiss the appeal as moot.   In support of that motion respondent said that it had assigned the right to purchase the 66 buses to the Santa Clara County Transit District, thus mooting the present controversy, and had adopted a resolution not to purchase buses unable to accommodate the handicapped in the future, thus foreclosing the possibility of any future controversy.   Respondent furnished this court with a copy of its assignment agreement.   That agreement says that respondent is unable to accept delivery as insisted upon by General Motors because of the writ of supersedeas obtained by appellants and provides that Santa Clara County will indemnify respondent for any attorney's fees awarded appellant in this litigation.   This court granted appellants' motion to dismiss the appeal on the substantive question but agreed to hear appellants' contention that they are entitled to attorney's fees.

Appellants' cause of action was based, in part, on Civil Code section 54.1(a) which provides that the handicapped “shall be entitled to full and equal access, as other members of the general public, to  ․ ․ ․  motorbuses, streetcars, boats or any other public conveyances or modes of transportation  ․ ․ ․ .”  In order to promote enforcement of this law the Legislature adopted Civil Code section 55.   Persons aggrieved by violation of section 54.1 may bring an action to enjoin that violation and the “prevailing party in the action shall be entitled to recover reasonable attorney's fees.”

 Respondent contends that appellants are not entitled to attorney's fees because they did not prevail in the court below and because the matter has become moot.   That appellants did not prevail below is beside the point.   We did not affirm the trial court's ruling.   We did hold that the matter had become moot as the result of actions subsequent to the rendering of the judgment but, in doing so, we did not reach the merits.   The effect of our dismissal was not to affirm the judgment below.  (See Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 19, 81 Cal.Rptr. 440;  Paul v. Milk Reports, Inc. (1964) 62 Cal.2d 129, 134–135, 41 Cal.Rptr. 468, 396 P.2d 924;  Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 636–637, 127 Cal.Rptr. 757.)   And it certainly cannot be said that appellants did not prevail because respondents changed their policy before the matter could be brought to issue in this court.   The purpose of Civil Code section 54.1 is to encourage suits promoting the statutory rights of the handicapped.  (Cf. Woodland Hills Residents Assn. v. City Council of Los Angeles (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 511, 593 P.2d 200, 208.)  “Surely the effectiveness of this incentive for persons of limited means would be greatly diminished if the complainant were forced to bear the expense of his attorneys' fees whenever the Government chose to award the requested relief after a court action had been filed but prior to a judgment or a court order.”  (Foster v. Boorstin (1977) 182 U.S.App.D.C. 342, 344, 561 F.2d 340, 342.)   In Vermont Low Income Advocacy Council, Inc. v. Usery (2d Cir. 1976) 546 F.2d 509, 513, Judge Friendly put it squarely:  “To take an extreme example, Congress clearly did not mean that where a [Freedom of Information Act] suit had gone to trial and developments made it apparent that the judge was about to rule for the plaintiff, the Government could abort any award of attorney fees by an eleventh hour tender of the information requested.”  (See also Northington v. Davis (1979) 23 Cal.3d 955, 960, fn. 2, 154 Cal.Rptr. 524, 527, 593 P.2d 221, 224;  Fletcher v. A. J. Industries, Inc. (1968) 266 Cal.App.2d 313, 72 Cal.Rptr. 146;  Kimbrough v. Arkansas Activities Ass'n (8th Cir. 1978) 574 F.2d 423;  Cuneo v. Rumsfeld (1977), 180 U.S.App.D.C. 184, 553 F.2d 1360;  N. A. A. C. P. v. Bell (D.C.Civ.1978) 448 F.Supp. 1164;  Note, Recovery of Attorney's Fees on Moot Claims (1978) Cornell L.Rev. 880.)

Appellants are entitled to attorney's fees if their litigation was a substantial cause which contributed to the change in respondent's policy.

The judgment is reversed and the cause is remanded to the trial court for proceedings consistent with the views expressed in this opinion.

I dissent.

Civil Code section 55, upon which the majority bases its determination that appellants are entitled to attorneys' fees, permits the recovery of attorneys' fees only to the “prevailing party.”   The only decision on the merits in this litigation was made by the superior court in which appellants did not prevail.   The majority dismisses the adverse judgment as of no consequence because we did not affirm it, a rather mysterious notion at best.   The majority by its holding, in effect, reverses the trial court and makes the appellants the prevailing parties and does this without addressing the merits of the cause.

We cannot assume that the trial court's decision was incorrect.   The appeal became moot through no fault of respondent.   The mootness resulted from the financial squeeze placed upon respondent by the Supreme Court's grant of supersedeas.   General Motors had insisted that respondent accept the buses pursuant to their contract.   Because the writ of supersedeas prohibited that acceptance, respondent assigned its rights to purchase the buses.

The majority's attempted analogy to the language in a freedom of information case is simply not in point.   In that example there had been no judgment.   Here there was a judgment on the merits adverse to appellants.

I would deny attorneys' fees to appellants.

HALVONIK, Associate Justice.

FEINBERG, J., concurs.