Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

BIRTH CONTROL INSTITUTE, INC., a California corporation et al., Plaintiffs and Appellants, v. BIBLE MISSIONARY FELLOWSHIP et al., Defendants and Respondents.


Decided: July 29, 1986

C. Logan McKechnie and Harold A. Weston, San Diego, for plaintiffs and appellants. Gray, Cary, Ames & Fyre, William McCurine, Jr., James W. Huston and Paul D. Newman, San Diego, for defendants and respondents.

Birth Control Institute, Inc. appeals the order denying a motion for attorneys' fees filed pursuant to Code of Civil Procedure sections 1021.5 and 128.5.1

Plaintiff Birth Control Institute, Inc. (BCI) is a nonprofit California corporation which operates as a medical clinic for women.   BCI provides information on and assistance with birth control and abortions.   Defendant Bible Missionary Fellowship (BMF) is a church located in San Diego.   Defendant Dorman Owens is pastor of BMF.

In early April 1984, Owens and other named defendants (also members of BMF) began picketing and demonstrating in front of the BCI building.   On June 22, 1984, BCI filed a complaint consisting of seven causes of action naming BMF, Owens and others as defendants.   The causes of action pleaded in the complaint are for slander, conspiracy and interference with a business, trespass, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress and injunctive relief.

On July 12, 1984, the superior court granted a preliminary injunction enjoining defendants from, inter alia, (1) trespassing on BCI property;  (2) “shouting or displaying on placards any words such as ‘baby killer’, ‘murderer’, or any other words or phrases intended to induce emotional distress in the employees and clients of [BCI];”  (3) “preventing the entry or exit of any person seeking to use the services of [BCI];”  (4) directly harrassing “face-to-face ․ any person entering or exiting [BCI premises]”;  (5) “violently physically contacting any person entering or exiting the premises of [BCI]”;  (6) “yelling obscenties [sic] at persons inside the clinic during abortion counseling and during abortions performed on the premises”;  and (7) “intimidating, threatening, molesting, assaulting, pushing, elbowing, shouldering, coercing, or in any other manner, physically contacting the person, clothing, or vehicle of any of [BCI's] employees․”  The preliminary injunction was modified two months later, enjoining defendants “from shouting to the extent that defendants can be heard within the building which houses [BCI].”

On October 2, 1984, BCI filed a contempt action alleging defendants' activities in July, August and September violated the preliminary injunction.   Of the twenty-six defendants named in the contempt action, fourteen were found in contempt.   Nine other defendants were found not guilty of contempt and the action was ordered dismissed as to them.   With respect to three other remaining defendants, the matter was taken off calendar as to one for failure to serve notice;  as to the second defendant the charges were dismissed because he was not a party to the action;  and as to the third defendant the charges were simply dismissed.

BCI filed a motion for attorneys' fees incurred in the contempt action.   BCI contended attorneys' fees were authorized by sections 1021.5 and/or 128.5.   After conducting a hearing on the matter, the court denied the motion.

On appeal from the order denying attorneys' fees, BCI contends successful litigation of the contempt action against BFM conferred a significant benefit to the public because the action resulted in “the vindication of the court's dignity and authority of the court, the maintenance of law and order, and the enforcement of the rights determined in the preliminary injunction.”   BCI also contends section 128.5 authorizes an award of attorneys' fees in the present case because defendants' intentional disregard of the preliminary injunction (evidenced by the finding of contempt) “cannot be viewed as anything but a frivolous or delay tactic.”   For reasons discussed below, we reverse the order denying attorneys' fees under section 1021.5.


Section 1021.5

Section 1021.5 codifies earlier judicial precedent establishing the power to award attorneys' fees on the so-called private attorney general theory, which “rests on the policy of encouraging private actions to vindicate important rights affecting the public interest, without regard to material gain.”  (Serrano v. Unruh, 32 Cal.3d 621, 632, 186 Cal.Rptr. 754, 652 P.2d 985.)  Section 1021.5 provides:

“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 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.”

Under this section, the trial court has broad discretion to award attorneys' fees.   Only if there has been an abuse of discretion amounting to a manifest miscarriage of justice or when there is no reasonable basis for the trial court's determination is reversal warranted.  (Baggatt v. Gates, 32 Cal.3d 128, 142–143, 185 Cal.Rptr. 232, 649 P.2d 874;  Beach Colony II Ltd. v. California Coastal Com., 166 Cal.App.3d 106, 113, 212 Cal.Rptr. 485;  Slayton v. Pomona Unified School Dist., 161 Cal.App.3d 538, 545, 207 Cal.Rptr. 785;  see also Westside Community for Independent Living, Inc. v. Obledo, 33 Cal.3d 348, 354–355, 188 Cal.Rptr. 873, 657 P.2d 365.)

Thus, under section 1021.5 the decision to award attorneys' fees under the private attorney general theory rests initially with the trial court.   The trial court,

“utilizing its traditional equitable discretion (now codified in § 1021.5), must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award under a private attorney general theory.”  (Woodland Hills Residents Assn., Inc. v. City Council, 23 Cal.3d 917, 938, 154 Cal.Rptr. 503, 593 P.2d 200.)

Accordingly, the trial court must

“evaluate whether plaintiff's action:  (1) served to vindicate an important public right;  (2) conferred a significant benefit on the general public or a large class of persons;  and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter.”  (Baggett v. Gates, supra, 32 Cal.3d 128, 142, 185 Cal.Rptr. 232, 649 P.2d 874.)

BMF contends the trial court properly denied attorneys' fees because BCI was not a “successful party” within the meaning of section 1021.5.   The factual basis for this claim is only 50% of the defendants named in BCI's contempt action were found guilty of contempt.   In Slayton v. Pomona Unified School Dist., supra, 161 Cal.App.3d 538, 546–547, 207 Cal.Rptr. 785;  a similar argument was rejected.   There, the trial court failed to award attorneys' fees under the private attorney general statute (section 1021.5) in a mandamus action brought by parents and their children initiated in order to end alleged illegal conduct of four school administrators.   The petitioners prevailed on some, but not all, of the litigated issues.   Rejecting the argument attorneys' fees were properly denied, the court of appeal held, “A pragmatic assessment of the outcome of this case can lead to only one conclusion—that petitioners are ‘successful parties' for purposes of an award of attorneys' fees under section 1021.5.”  (Id. at p. 547, 207 Cal.Rptr. 785.)   In arriving at this holding the court relied on Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 685, 186 Cal.Rptr. 589, 652 P.2d 437, in which the California Supreme Court wrote:

“The critical fact is the impact of the action, not the manner of its resolution.   If the impact has been the ‘enforcement of an important right affecting the public interest’ and a consequent conferral of a ‘significant benefit on the general public or a large class of persons' a section 1021.5 award is not barred because the case was won on a preliminary issue (Woodland Hills, supra, 23 Cal.3d at 938 [154 Cal.Rptr. 503, 593 P.2d 200] ) or because it was settled before trial.  (Rich v. City of Benecia (1979) 98 Cal.App.3d 428, 436 [159 Cal.Rptr. 473].)”  (Fns. omitted.)

Thus, the question is not whether BCI prevailed on each and every allegation of contempt in its action against defendant BMF members.   The question is whether the “impact of the [contempt] action ․ [resulted in the] ‘enforcement of an important right affecting the public interest’ and consequently conferred a ‘significant benefit on the general public or a large class of persons.’ ”   (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d 668, 685, 186 Cal.Rptr. 589, 652 P.2d 437.)   To date, there are no cases in which attorneys' fees have been awarded under section 1021.5 as part of the costs incurred in prosecuting a civil contempt proceeding.   Therefore, to determine whether civil contempt litigation is vested with the degree of public interest necessary to award attorneys' fees under section 1021.5, we look to the nature of civil contempt proceedings and to the general rules and policies governing awards of attorneys' fees.

Section 1209, subdivision (a)5, provides that “[d]isobedience of any lawful judgment, order or process of the court” constitutes a contempt of the authority of the court.   There are two species of contempt—direct and indirect.   Direct contempt “is that committed in the immediate view and presence of the court or of the judge in chambers;  all other contempts ․ which occur outside the presence of the court, are ‘indirect.’ ․”  (Reliable Enterprises, Inc. v. Superior Court, 158 Cal.App.3d 604, 611, 204 Cal.Rptr. 786.)   The power to punish for contempt is inherent in the court because of the necessity for preserving order and enforcing decrees and mandates;  it does not depend upon express statutory sanctions.  (Raskin v. Superior Court, 138 Cal.App. 668, 33 P.2d 55;  see also Raiden v. Superior Court, 34 Cal.2d 83, 206 P.2d 1081, and In re Hallinan, 126 Cal.App. 121, 14 P.2d 797.)

With regard to the policies reflected in contempt proceedings, our state Supreme Court observed in H.J. Heinz Co. v. Superior Court, 42 Cal.2d 164, 177, 266 P.2d 5:

“The enforcement of an order of contempt in this state is not for the vindication of a private right but is for the maintenance of the dignity and authority of the court, and to preserve the peace and dignity of the people of the State of California (citation).”

(See also Safer v. Superior Court, 15 Cal.3d 230, 244, 124 Cal.Rptr. 174, 540 P.2d 14, American Fire etc. Service v. Williams, 171 Cal.App.2d 397, 402, 340 P.2d 644, and Bailey v. Superior Court, 142 Cal.App.2d 47, 54, 297 P.2d 795.)   The United States Supreme Court has also recognized the importance of contempt proceedings.   In Penfield Co. of California v. Securities & Exch. Com'n, 330 U.S. 585, 593–594, 67 S.Ct. 918, 923, the court wrote:

“The dual function of contempt has long been recognized—(1) vindication of the public interest by punishment of contemptuous conduct;  (2) coercion to compel the contemnor to do what the law requires of him.  [Citations.]  ‘The purpose of contempt proceedings is to uphold the power of the court, and also to secure to the suitors therein the rights by it awarded.’ ”

The general rule with respect to attorneys' fees (most frequently referred to as the American rule) is each litigant pays his own attorneys' fees in the absence of a statute or enforceable contract providing otherwise.   This rule is not without exception however.   One of the well-settled exceptions to the American rule prohibiting an award of attorneys' fees is a contempt action.   (Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426–428, 43 S.Ct. 458, 465–466, 67 L.Ed. 719;  Fleischmann Distill. Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 1406, 18 L.Ed.2d 1475;  Copeland v. Martinez (D.C.Cir.1979) 603 F.2d 981, cert. denied, 444 U.S. 1044, 100 S.Ct. 730, 62 L.Ed.2d 729 (1980);  In re Federal Facilities Realty Trust (7th Cir.1955) 227 F.2d 657;  Director, Office of Workers' Comp. v. Robertson (9th Cir.1980) 625 F.2d 873;  and Reiser v. Del Monte Properties Co. (9th Cir.1979) 605 F.2d 1135.)

“The rule to be spelled out from the court decisions is that a party compelled to resort to a civil contempt proceeding to preserve and enforce an adjudicated right is entitled to a decree by way of a fine for injuries actually sustained by him because of the contemptuous act, [citations] which may include, in the discretion of the court, an award of reasonable attorney's fees.  Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 [43 S.Ct. 458, 67 L.Ed. 719], ․”  (In re Federal Facilities Realty Trust, supra, 227 F.2d 657.)

The exception to the rule against awarding attorneys' fees in the absence of statute or enforceable contract is derived from the inherent equitable powers of the court when overriding considerations of justice compel such a result.  (Fleischmann Distill. Corp. v. Maier Brewing Co., supra, 386 U.S. 714, 718, 87 S.Ct. 1404, 1406, 18 L.Ed.2d 1475.)

The general rule against awarding attorneys' fees absent statutory or contractual authorization prevails in California as well.  (§ 1021.)   The California Supreme Court has approved three exceptions to the rule where competing equitable considerations require the need for recovery of attorneys' fees.   These exceptions include the common fund theory, the substantial benefit theory, and the private attorney general theory.

Section 1021.5 is a legislative response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, which held that courts may not fashion far-reaching new exceptions to the American rule regarding attorneys' fees, since that is a matter reserved for Congress.   (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d 668, 680, fn. 20, 186 Cal.Rptr. 589, 652 P.2d 437.)   Although foreclosing the creation of new equitable exceptions, the court approved the existing exceptions as “unquestionably assertions of inherent power in the courts to allow attorneys' fees in particular situations․”  (Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141.)   The court found none of the established exceptions applicable, and held the federal courts are not free to “fashion drastic new rules with respect to the allowance of attorneys' fees․”  (Id. at p. 269, 95 S.Ct. at 1627.)   Alyeska rejected the private attorney doctrine for use in the federal courts, thus prompting codification of this equitable doctrine in section 1021.5.

 Bearing in mind the foregoing, we turn to the case before us.   A practical assessment of the outcome of the contempt proceeding leads to the conclusion BCI was a successful party within the meaning of section 1021.5.  (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d 668, 684–685, 186 Cal.Rptr. 589, 652 P.2d 437.)   As the cases above establish, contempt proceedings successfully prosecuted by private litigants such as BCI promote both the dignity and authority of the court and the peace and dignity of the public at large.   Punishment of defendants' contemptuous acts served to vindicate the public interest in upholding the power of the court in addition to securing for BCI the right to conduct its public service business without the intrusions proscribed by the preliminary injunction.   Further, the purported purpose of the preliminary injunction issued in the underlying action purportedly ensured not only BCI's right to conduct its business with as little interference as possible by BMF member activities to protect BMF's right to free speech but was also intended to protect the public's right to privacy as well.   We conclude, therefore, BCI was a successful party within the meaning of section 1021.5.

We also conclude the second statutory requirement of section 1021.5—that the action resulted in the enforcement of an important right affecting the public interest—was satisfied.   As was observed in Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, 935, 154 Cal.Rptr. 503, 593 P.2d 200:

“[S]ection 1021.5 provides no concrete standard to test against which a court may determine whether the right vindicated in a particular case is sufficiently ‘important’ to justify a private attorney general fee award, ․”

The private attorney general doctrine applies to vindicate both statutory and constitutional rights.  (Ibid.)  In determining the importance of the particular rights vindicated “courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.”  (Id. at p. 936, 154 Cal.Rptr. 503, 593 P.2d 200.)

BCI correctly argues the contempt proceedings resulted in the vindication of the dignity and authority of the court and enforced the rights determined by the preliminary injunction.   Such results serve the public interest.   The question then becomes just how important is the public interest in this case?   BMF argues although the public interest may have benefitted from the contempt proceedings, the major benefit inured to BCI and therefore BCI should not be entitled to attorneys' fees.  (See Marini v. Municipal Court, 99 Cal.App.3d 829, 837, 160 Cal.Rptr. 465;  plaintiff not successful for purposes of fee awards under section 1021.5 where the public benefit derived from the action is wholly coincidental to attainment of plaintiff's personal goals.)   BMF also argues section 1021.5 was intended to apply to only a very few cases and allowing attorneys' fees in this contempt proceeding will open the proverbial floodgates to awards of attorneys' fees in derogation of the legislative intent of section 1021.5.   Specifically, BMF refers to the testimony of John R. Phillips presented to the Senate Judiciary Commission on August 16, 1977, in support of Assembly Bill 1310 (forerunner to section 1021.5).   In his testimony, Mr. Phillips urged the committee to support the bill for the following reasons:

“(1) It will encourage more effective implementation and enforcement of important laws that you as legislators enact to benefit the public.

“(2) It will make government agencies and corporate entities more accountable and responsive to important legislative measures.

“(3) It will act as an additional incentive for the private bar to fulfill its professional responsibility by engaging in meritorious pro bono litigation where your legislative will is being thwarted.

“(4) It is consistent with the American system of jurisprudence which spreads the cost of enforcement to the public at large where a significant benefit has been conferred on the general public.”

Mr. Phillips emphasized the bill would have a “rather narrow application.”

“It would not apply to more than 99% [sic] of the civil cases filed in California where the disputes revolve around property or personal rights between two private litigants.   This bill would give judges discretion to award attorneys' fees in only those very few number of cases where the judge finds that the issues involved are currently regarded as being of extreme importance (such as environmental and consumer protection) and where a favorable final judgment will affect not only the plaintiffs who initiate the action but a substantial number of individuals.”

In the contempt proceeding under scrutiny here, the public interest is sufficiently important to warrant an award of attorneys' fees under section 1021.5.   The object of the contempt proceedings was to enforce the injunction enjoining defendants, inter alia, from harrassing or violently physically contacting clients of BCI and from shouting words intended to induce emotional distress in clients of BCI.   The injunction benefited the public at large by protecting prospective patients' rights to privacy which includes a woman's fundamental right to choose whether to bear children.  (See People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96, and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147.)   The obvious goals of defendants' previously unrestrained picketing activities outside the BCI premises were to chill and curtail the exercise of the public's right to be informed of and right to choose birth control.   It seems a strong argument could be made in support of an award of attorneys' fees to BCI under section 1021.5 in connection with the granting of the injunction.  (See Save El Toro Assn. v. Days, 98 Cal.App.3d 544, 159 Cal.Rptr. 577, where plaintiff was awarded attorneys' fees under section 1021.5 for bringing an action to enjoin the assessment district and subdivision for failing to comply with Gov. Code, §§ 65560–65570.)   Contempt proceedings instituted by BCI to enforce the injunction similarly served to confer a significant benefit to a large class of persons.   In view of the facts and circumstances of the present case, there was no reasonable basis for the trial court to deny BCI's motion for attorneys' fees incurred in prosecuting the contempt action against defendants.

Section 128.5

BCI also sought recovery of attorneys' fees under section 128.5.   Section 128.5 provides in pertinent part:

“(a) Every trial court may order a party ․ to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay․

“(b) For purposes of this section:

“(1) ‘Actions or tactics' include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint․

“(2) ‘Frivolous' means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.”

 BCI's request for attorneys' fees under this section is based on defendants' picketing activities which violated the preliminary injunction.   BCI contends “[t]he intentional disregard of a court's orders—which a finding of contempt evidences—cannot be viewed as anything but a frivolous or delay tactic.”   BCI contends defendants' activities were frivolous because those activities required BCI to prosecute the contempt action and also argues such activities were also delay tactics because they delayed the “successful imposition of the court's order.”   BCI argues the trial court abused its discretion in rejecting these arguments and denying the motion for attorneys' fees.

“In 1981, the Legislature intended to broaden the power of trial courts to impose monetary sanctions for ‘tactics or actions not based on good faith which are frivolous or which cause unnecessary delay.’  (Code Civ.Proc., § 128.5;  Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 648 [192 Cal.Rptr. 57] ․;  Atchison, Topeka & Santa Fe Ry. Co. v. Stockton Port Dist. (1983) 140 Cal.App.3d 111, 117 [189 Cal.Rptr. 208]․)  Hence, the trial court must abuse the broad discretion accorded it by the Legislature to justify our interference with a sanction award.  [Citation.]” (Luke v. Baldwin-United Corp., 167 Cal.App.3d 664, 667–668, 213 Cal.Rptr. 654.)

Sanctions under section 128.5 should not be imposed except where the conduct of the parties is egregious and should not be imposed except in the clearest of cases.  (Luke v. Baldwin-United Corp., 167 Cal.App.3d at pp. 668–669, 213 Cal.Rptr. 654.)

Upon this record, we are unable to conclude denial of BCI's request for attorneys' fees under section 128.5 constituted a manifest abuse of discretion.   As BMF points out, the fact some of the defendants were not found in contempt of court evidences lack of bad faith or attempts to delay obedience to the conditions of the preliminary injunction.


The order denying BCI's motion for attorneys' fees incurred in prosecuting the contempt action against BMF is reversed and cause remanded for further hearing as to the amount of such fee.


1.   All statutory references are to the Code of Civil Procedure unless otherwise specified.

STANIFORTH, Acting Presiding Justice.

BUTLER and LEWIS, JJ., concur.