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MARIA v. RILES

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

MARIA P., etc., et al., Plaintiffs and Respondents, v. Wilson RILES, etc., et al., Defendants and Appellants.

Civ. B004397.

Decided: April 23, 1985

Pearl, McNeill, Gillespie & Standish by Richard M. Pearl, Oakland, for plaintiffs and respondents. John K. Van de Kamp, Atty. Gen., Thomas E. Warriner, Assty. Atty. Gen., Anne S. Pressman and John H. Sanders, Deputy Attys. Gen., for defendants and appellants.

Following dismissal of their suit for injunctive and declaratory relief pursuant to Code of Civil Procedure section 583(b), plaintiffs sought attorneys' fees for challenging a state statute which, during the course of the litigation, was repealed, thus mooting their action before the case was heard on its merits.   Under the private attorney general doctrine (see Code Civ. Proc., § 1021.5;  see also 42 U.S.C., § 1988),1 the trial court awarded plaintiffs $40,000 in fees.   Defendants appeal, contending the trial court erred and abused its discretion in making such an award.   We agree and therefore vacate the order.

The underlying litigation had its origins in April 1975, when plaintiffs Maria de Lourdes P., a seven-year-old child through her mother as guardian ad litem, and Assemblymen Arthur Torres and Richard Alatorre, as state taxpayers, filed suit against defendants Wilson Riles, then Superintendent of Schools for the State of California, the El Centro Elementary School District, and its Board of Trustees.   In a three-count complaint, plaintiffs sought (1) to prevent the local school district from denying Maria admission to school because of her noncitizen immigration status;  (2) to prevent the district from reporting the child's immigration status to the Board of Supervisors, and ultimately to the Immigration and Naturalization Service, as was required by then Education Code section 6957;  and (3) to prevent the State Superintendent of Schools from implementing Education Code section 6957 throughout the state.2

On April 29, 1975, the trial court issued a temporary restraining order prohibiting defendants from reporting the names and addresses of illegal alien children to immigration authorities.   An order to show cause was issued as to both state and local defendants, directing them to justify their reporting practices at a hearing on plaintiffs' motion for a preliminary injunction.

El Centro School District initially opposed the application for preliminary injunction on the ground that Maria's rights had not been infringed and that no infringement had been threatened.   In their opposition papers defendants alleged that Maria had been admitted to school in accordance with pre-existing District policy to admit noncitizen children without immigration status when their parents or guardians were legally residing within the District.   Defendants further alleged that Maria had never been refused admittance to District schools and that the District had at no time been engaged in reporting the identities of noncitizen children without immigration status to federal or state authorities.   In fact, no forms, instructions or regulations had been issued by the State Superintendent to the District pursuant to the dictates of former Education Code section 6957.   The local school district admitted, however, that if such instructions were received it would honor them.

On September 16, 1975, following extensive argument by all parties, a preliminary injunction issued wherein it was found that Education Code section 6957 was in conflict with the federal Family Educational Rights and Privacy Act of 1974 (see Pub.L. 90–247, 20 U.S.C., 1232 et seq.) and was therefore void under the Supremacy Clause of the United States Constitution.3  Defendant Riles was therefore enjoined from furnishing forms, prescribing procedures or adopting rules and regulations requiring school districts to disclose the identities of noncitizen resident children without immigration status to anyone except as provided by the federal Act.   The superintendent also was ordered to issue written instructions to every school district within the state prohibiting each from disclosing to federal authorities the identities of alien children.   El Centro School District was specifically enjoined from disclosing the information required by Education Code section 6957.4

Although defendant Riles informed local school districts of the issuance of the preliminary injunction, his memorandum advised the districts to determine for themselves whether the court's decision had any impact on their “obligation to follow section 6957 as currently written.”   As a result, in September 1976, a further hearing was held before the superior court to assess whether the superintendent had complied with the terms of the injunction.   Following the hearing, Riles was directed to issue a new memorandum requiring the local districts to abide by the court's order and not release any identifying information to federal authorities.   Riles complied and no further action was taken at the trial court level.

Education Code section 6957 (relabeled section 42911 under the reorganization of the Education Code in 1977) was subsequently amended by the Legislature in 1977 (Stats. 1977, Ch. 1173, § 12.) to omit all reporting requirements, and was repealed completely in 1979 (Stats. 1979, Ch. 1035, § 12).   As a result, plaintiffs' lawsuit languished until September 1980, when defendants moved to dismiss the action for failure to bring it to trial within five years of its filing (Code Civ. Proc., § 583(b)).   Concurrently, plaintiffs moved for a permanent injunction and for summary judgment.   The court granted the motion to dismiss and therefore found it unnecessary to rule on the motion for summary judgment.

Subsequent to the order dismissing the action, plaintiffs filed their motion for award of attorneys' fees and costs pursuant to Code of Civil Procedure section 1021.5 or, in the alternative, the federal Civil Rights Attorney's Fees Awards Act of 1976 (see 42 U.S.C. § 1988).5  Both the state and local defendants opposed any such award, essentially contending that plaintiffs were not a “successful” or “prevailing” party within the meaning of either the state or federal statutes and that the trial court, having dismissed the action, was without jurisdiction to entertain any motion for fees and costs.

Following a succession of hearings on the issue, the court granted plaintiffs' motion as to the state defendants only and awarded $40,000 in attorneys' fees.   In so doing, it found that plaintiffs had conferred a substantial benefit upon a large class of persons and the public at large by obtaining the preliminary injunction;  that the financial burden of private enforcement vindicated by plaintiffs could not feasibly be borne by the class benefited;  that after the issuance of the preliminary injunction the case became moot by the amendment to and the eventual repeal of Education Code section 6957;  and that plaintiffs were entitled to an award of fees for their work in securing the temporary injunction.   The court specifically found, however, that “plaintiffs did not establish a ‘causal relationship’ between the instant action and the legislative amendment of former Education Code section 6957,” and thus declined to award fees for work unrelated to obtaining the preliminary injunction.   This appeal by the state defendants followed.

In reviewing the trial court's award of attorneys' fees, whether made pursuant to state or federal law,6 we apply the well-established rule that such an order will be disturbed on appeal only where there has been a manifest abuse of discretion.  (Baggett v. Gates (1982) 32 Cal.3d 128, 142–143, 185 Cal.Rptr. 232, 649 P.2d 874, Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 835–837, 160 Cal.Rptr. 465;  see generally, 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 244, pp. 4235–4236.)   Having thoroughly reviewed the record, we are convinced that the award made here constituted such an abuse.

The private attorney general doctrine is one of several exceptions to the general rule that each party must pay his own attorney's fees.  (See Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, 198 Cal.Rptr. 551, 674 P.2d 253;  see also Code Civ. Proc., § 1021.)   This exception was created by the courts pursuant to their inherent equitable powers.   It was subsequently given statutory recognition under section 1021.5.  (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200.)

 The doctrine itself “rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, ․  [W]ithout some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible.”  (Woodland Hills Residents Assn., Inc. v. City Council, supra, at p. 933, 154 Cal.Rptr. 503, 593 P.2d 200.)

 Procedurally, section 1021.5 and its federal counterpart (42 U.S.C., § 1988) do not create new causes of action, but are ancillary to the underlying litigation.  (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d at pp. 678–679, 186 Cal.Rptr. 589, 652 P.2d 437.)   The statutes provide “a special motion procedure plainly intended to be initiated after the result of the action is known but subject to no express time limit.”  (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 834, 160 Cal.Rptr. 465;  see also White v. New Hampshire Dept. of Empl. Sec. (1982) 455 U.S. 445, 451, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325.)   Such a motion need not be made and determined “until after the judgment is final.”  (Marini v. Municipal Court, supra, 99 Cal.App.3d at p. 835, 160 Cal.Rptr. 465;  emphasis added.)   In most instances a trial court therefore retains jurisdiction to hear an application for fees after the judgment has become final.  (Id. at p. 835, 160 Cal.Rptr. 465.)

 Defendants acknowledge these general precepts, but argue that they have no application to the facts of the instant case.   They maintain that because the action was dismissed pursuant to Code of Civil Procedure section 583(b) and no “judgment” was entered, the trial court was without jurisdiction to make any award of attorney's fees.   We agree.

Section 583(b) has been held to be jurisdictional and the provision for dismissal of an action unless brought to trial within five years is mandatory.  (See White v. Renck (1980) 108 Cal.App.3d 835, 166 Cal.Rptr. 701;  King v. State of California (1970) 11 Cal.App.3d 307, 89 Cal.Rptr. 715.)

We think it obvious that once a case is dismissed in its entirety, a trial court loses jurisdiction to handle any matter that may be related to the abated action.  (See generally, 1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 218, p. 751.)   Although we recognize there exists certain exceptions and qualifications to this general rule (see Marini v. Municipal Court, supra, 99 Cal.App.3d at p. 834, 160 Cal.Rptr. 465), none apply here.   While a request for attorney's fees under section 1021.5 or 42 U.S.C., section 1988, may be considered an “ancillary” or “collateral” matter following a final judgment on the merits, the same is not true where the action is dismissed for failure to prosecute.

A plaintiff whose action is dismissed for failure to prosecute cannot be characterized as a “prevailing” or “successful” party within the meaning of either the state or federal private attorney general statutes.   As we see it, there must be a judgment based upon the merits of the case before a court may assess whether the action “has resulted” in the enforcement of an important right and that a significant benefit “has been conferred.”  (See fn. 1, ante.)

Plaintiffs' reliance on the general rule that a court retains jurisdiction to entertain a motion for fees and costs after a final judgment is misplaced.   Here, the preliminary injunction issued in 1975 was dissolved when the underlying action was dismissed pursuant to the five-year statute.   Following this dismissal, no “judgment” was entered, and the time for appeal ran before the motion for fees was filed.   Accordingly, there was no “final judgment” based upon the merits of the case that would entitle the trial court to retain jurisdiction for purposes of ruling on a motion for fees and costs under the private attorney general statutes.

Even were we to conclude that the court possessed jurisdiction to entertain a motion for fees, we would find the award improper because plaintiffs were not “successful” or “prevailing” litigants within the meaning of section 1021.5 or 42 U.S.C. section 1988.

 The California Supreme Court has made it clear that the determination of success under section 1021.5 must depend upon more “than mere appearance.”  (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d at p. 685, 186 Cal.Rptr. 589, 652 P.2d 437.)   Thus, the trial court, and this court on review, must realistically assess the litigation from a practical perspective in order to determine whether it vindicates an important right.   (Ibid.;  Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 938, 154 Cal.Rptr. 503, 593 P.2d 200.)   The inquiry may go outside the merits of the precise underlying dispute and focus on the condition that the plaintiffs and their attorneys sought to change.  (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d at p. 685, 186 Cal.Rptr. 589, 652 P.2d 437.)

 To justify a fee award, however, there must exist a causal connection between the lawsuit and the relief obtained.  “ ‘[N]o award is required if the court determines that plaintiff's suit was completely superfluous in achieving the improvements undertaken by defendants on plaintiff's behalf.’ ”  (Westside Community For Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353, 188 Cal.Rptr. 873, 657 P.2d 365.)   At the same time, a plaintiff will be considered a “successful” party where an important right is vindicated “ ‘by activating defendants to modify their behavior.’ ”  (Id.)

 After a thorough review of the record, we are convinced that there is no clear, causal relationship between the litigation and the practical result which obtained.   While it is true that plaintiffs did succeed in having the trial court issue a preliminary injunction, their success in this regard was transitory and a token victory at best.   Prior to plaintiffs' suit, neither Maria nor other similarly situated alien children had been excluded from school with the El Centro School District.   Nor was the District reporting the identities of such children to federal or state authorities.   Moreover, it was never alleged or proved that State Superintendent Riles had issued forms, instructions, or regulations requiring school districts within the state to follow the provisions of then Education Code section 6957.

It further appears, and the trial court so found, that the preliminary injunction had little, if any impact on the Legislature's repeal of the statute.  (Cf. American Constitutional Party v. Munro (9th Cir.1981) 650 F.2d 184.)   As far as the litigation was concerned, plaintiffs' success, if the matter had gone to trial, was not at all certain.   The trial court's reasoning in issuing the preliminary injunction was open to question.   Put quite simply, there is no evidence in the record to indicate that this lawsuit served as a catalyst for change or served to vindicate any important right.   It was the repeal of the statute and not the preliminary injunction which enabled plaintiffs to achieve their apparent objective.  (See Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 811–812, 204 Cal.Rptr. 727.)

The action, having become moot, was properly dismissed for failure to bring it to trial within five years of its filing.   Under the circumstances, plaintiffs were neither successful nor prevailing parties.   The award of fees therefore constituted an abuse of the trial court's discretion.

The order appealed from is vacated.

FOOTNOTES

1.   Code of Civil Procedure section 1021.5 provides:  “Upon motion, a court may award attorney's 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 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.   With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor.”   ¶ 42 U.S.C. section 1988 (the federal Civil Rights Attorney's Fees Award Act of 1976) provides in pertinent part:  “ ‘In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.’ ”

2.   Former Education Code section 6957 provided:  “The State Superintendent of Public Instruction may furnish the forms and shall provide the procedures required of school districts and county superintendents of schools under this chapter, and shall adopt all rules and regulations necessary for carrying out its provisions.   ¶   Such rules and regulations shall require the county superintendent of schools to list the nonimmigrant children and noncitizen children without immigration status by name and address and submit such list to the board of supervisors.   The board of supervisors shall forward a copy of such list to the appropriate regional office of the United States Immigration and Naturalization Service.”

3.   The trial court's reasoning on this issue was as follows:  “1. Sections 6950, et seq., of the California Education Code requires defendant Wilson Riles, as State Superintendent of Public Instruction, to furnish forms, prescribe procedures and adopt rules and regulations pursuant to a statutory scheme whereby each school district seeking reimbursement for the cost of educating noncitizen children without immigrant status lists such children by name and address so that such information may then be transmitted by the County Superintendent of Schools to the County Board of Supervisors.   The Board of Supervisors is then required by Education Code section 6957 to submit the list of names and addresses to the appropriate regional office of the U.S. Immigration and Naturalization Service.   ¶  2. Section 1232g(b)(1)(E) of the federal Family Educational Rights and Privacy Act of 1974 (P.L. 90–247) prohibits, with certain exceptions not here applicable, the disclosure of educational information, including the names and addresses of noncitizen children without immigration status except to ‘state and local officials and authorities.’   The U.S. Immigration and Naturalization Service is not a state or local official or authority within the meaning of the Act.   Therefore the statutory scheme described above, as well as any other policies or procedures whereby school districts or officials, directly or indirectly, transmit the names and addresses of noncitizen children without immigration status, attending or seeking to attend school within their districts, to the Immigration and Naturalization Service is in conflict with the federal Family Educational Rights and Privacy Act and is therefore void under the Supremacy Clause of the United States Constitution.”

4.   Prior to the issuance of the preliminary injunction, plaintiffs withdrew their allegation that Maria and other similarly situated noncitizen resident children without immigration status had been wrongfully excluded from El Centro School District schools.   The trial court found, however, that Maria was subject to having her identity disclosed to the Immigration and Naturalization Service contrary to federal law and to suffer irreparable injury therefrom.

5.   Plaintiffs, represented by public interest law firms throughout the course of the litigation, sought a total “lodestar” or “touchstone” award of $45,171, augmented by a factor of 1.50 to reflect “the novelty and difficulty of the legal issues presented, the skill displayed in presenting them, and the contingent nature of recovery.”   The total fee claim was therefore $67,757.

6.   The trial court failed to state for the record whether its award of fees was made under federal and/or state authority.   The criteria for awarding attorneys' fees under either Code of Civil Procedure section 1021.5 or 42 U.S.C. § 1988 are essentially similar.  (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685–686, 186 Cal.Rptr. 589, 652 P.2d 437;  Green v. Obledo (1984) 161 Cal.App.3d 678, 683, 207 Cal.Rptr. 830.)   Accordingly, our analysis of the court's exercise of discretion, though frequently discussed in terms of section 1021.5, is applicable to any award made under the federal Act.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.

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