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

WESTSIDE COMMUNITY FOR INDEPENDENT LIVING, INC., Douglas Martin, Petitioners and Respondents v. Mario G. OBLEDO, Secretary of Health & Welfare Agency of the State of California, Respondent and Appellant.

Civ. 60323, Civ. 63241.

Decided: January 20, 1982

Stanley Fleishman, Beverly Hills, for petitioners and respondents. George Deukmejian, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Floyd D. Shimomura, William F. Soo Hoo, Deputy Attys. Gen., for respondent and appellant.

In a mandamus action directed against Mario Obledo, the Secretary of Health & Welfare Agency of the State of California (Secretary) the trial court in two separate orders awarded petitioners Westside Community For Independent Living, Inc. (Westside) attorneys fees in the aggregate sum of $12,407.89. The Secretary noticed a separate appeal from each order. We have consolidated the appeals and we reverse both orders.

The Legislature in its regular session in 1977 enacted a series of measures amending the Government Code and adding thereto section 11135 et seq. designed to prohibit, inter alia, discrimination against the physically or mentally handicapped in any state-funded or state-assisted activity or program. The Governor signed the bill into law in September 1977.

At the heart of the legislative scheme is Government Code section 11135 which provides a blanket prohibition against any person unlawfully discriminating against handicapped persons in state-funded or state-assisted activities. Government Code section 11136 places on all state agencies administering such programs the responsibility for notification to the contractor, grantee or local agency of suspected violations of this prohibition and, where indicated, for instituting a process of administrative adjudication pursuant to Government Code section 11500 et seq.

Germane to this appeal is Government Code section 11139.5 which provides:

“The Secretary of the Health and Welfare Agency, with the advice and concurrence of the Fair Employment and Housing Commission, shall establish standards for determining which persons are protected by this article and guidelines for determining what practices are discriminatory. The secretary, with the cooperation of the Fair Employment and Housing Commission, shall assist state agencies in coordinating their programs and activities and shall consult with such agencies, as necessary, so that consistent policies, practices, and procedures are adopted with respect to the enforcement of the provisions of this article.”

Westside filed its petition for mandate on November 8, 1979, alleging that the Secretary had unreasonably delayed promulgating the regulations and guidelines and that such delay frustrated the purpose of the state's anti-discrimination policy. The petition sought to compel the Secretary to forthwith issue “final regulations.”

No peremptory writ has ever been issued although, as we will discuss infra, an alternative writ was issued May 30, 1980, commanding the Secretary to issue his final regulations by June 30, 1980, an act which the Secretary had previously indicated he would perform. The Secretary in fact promulgated his regulations on June 24, 1980. The matter of the peremptory writ is thus moot.

In February 1980, prior to any ruling by the trial court on the petition and well prior to the issuance of the alternative writ and in fact prior to any hearing or action beyond the filing of the complaint and the response by the secretary, Westside successfully petitioned the trial court to award it $10,870 in attorneys fees pursuant to Code of Civil Procedure section 1021.5.1

That latter statute is a codification of the private Attorney General theory for awarding attorneys fees to a successful litigant to be paid by the opposing party.

Of course the key to invocation of Code of Civil Procedure section 1021.5 is that the litigation instituted by the party seeking attorneys fees was successful in conferring a substantial benefit on the public or a large class of persons or resulted in the enforcement of an important public right.

The trial court's purported justification for awarding attorneys fees to Westside in February 1980 was “this litigation has helped speed promulgation of regulations that will benefit a large class of persons.” In September of 1980, after the Secretary had promulgated his regulations, the trial court ordered yet another $1,537.89 in additional fees presumptively for the same reason.

The record in this matter quite clearly discloses that in February of 1980 when the trial court issued its first order awarding fees to Westside there was not a scintilla of evidence extant to indicate that Westside had been successful in accomplishing anything except the filing of an action.

The Secretary, in responding to the petition by way of an answer, had denied the allegations contained therein and chronicled the steps he had taken pursuant to the mandate of Government Code section 11139.5. A sixty-three page draft of proposed regulations and guidelines had been developed by September 9, 1979, prior to the filing of this action.

The trial court took no action on the petition other than twice to continue hearings on the matter to dates corresponding with the Secretary's proposed time table. Thus, prior to May 30, 1980, when the alternative writ was issued, any claim for attorneys fees was at least premature.

The important public benefit of preventing discrimination against handicapped persons in governmentally supported activities was achieved by the enactment of the legislation. Westside claims no credit for that. While administrative regulations are a significant part of implementing the legislative intent, the delay in promulgating those regulations did not prevent that legislative policy from being implemented by other state agencies. (Gov.Code, s 11136.)

Furthermore, Government Code sections 11426 and 11427 (now ss 11347, 11347.1) provides an administrative procedure by which any interested person may request the adoption or modification of a regulation by any state agency.

For his part, the Secretary, in promulgating regulations, was required to consult with the Fair Employment Practices Commission and to follow the rather involved procedures set forth in Government Code section 11420 et seq., (now s 11346 et seq.) which include the holding of noticed public hearings and the filing of a cost impact estimate.

We can conceive of no more difficult or complex task of legal draftsmanship than that of preparing the regulations envisioned by Government Code section 11139.5, a fact which the trial court apparently recognized when it twice continued the hearing on the petition.

Mandamus cannot be employed to control the discretionary acts of a public official. (Faulkner v. Cal. Toll Bridge Authority, 40 Cal.2d 317, 253 P.2d 659.) Government Code section 11139.5 invested the Secretary with broad discretion in promulgating the regulations. Westside's petition did not allege that the Secretary was refusing to exercise his discretion (Hollman v. Warren, 32 Cal.2d 351, 196 P.2d 562) or that he was abusing his discretion. (State Farm Etc. Ins. Co. v. Superior Court, 47 Cal.2d 428, 304 P.2d 13.) Implicit in that grant of discretion was the authority to take a measured, reasonable and adequate time to insure that the regulations were comprehensive, fair, consistent and were based upon evidence and findings that would withstand judicial review. (Gov. Code, s 11350(a); California Hotel & Motel Assn. v. Industrial Welfare Com., 25 Cal.3d 200, 157 Cal.Rptr. 840, 599 P.2d 31.)

Hence, Westside's petition appears to have been fatally flawed from the inception in that it sought relief that was not available to it, to wit, the immediate promulgation of regulations, and further Westside had failed to exhaust the administration remedies which were available.

Turning now to the alternative writ of mandate, that writ is interesting in its form in that it was signed on May 30, 1980, yet it contains an assertion that “As of June 2, 1980, final regulations have not been forthcoming.”

The writ further asserts that the Secretary had represented that final regulations would be promulgated on or before June 30, 1980, and thus the writ commands that the Secretary simply do what he had said that he would do in the ordinary course of events.

In early February, prior to the issuance of the alternative writ, the Secretary had advised the court of the fact that he had published notice of public hearings throughout the state for the month of April 1980 as he was required to do.

In summary, the alternative writ appears to us to have been nothing more than an attempt to justify the prior award for fees and a recognition that that prior award was made at a time when it could not possibly be contended that Westside was the prevailing party.

Our conclusion is that the instant litigation conferred no benefit on anyone and from the beginning was an improper attempt to interfere with the Secretary's discretion. Westside did not prevail in the action. Our reading of the record leads us inexorably to the conclusion that the Secretary was not guilty of any unreasonable delay and in any event the pendency of the litigation did not alter the Secretary's time table by even a single day.

It would be an abuse of the private Attorney General theory to reward a litigant for the mere filing of an action, however lacking in merit, simply because that action coincides with governmental action which benefits a substantial number of persons.

The orders appealed from are vacated.


1.  Code of Civil Procedure 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.”

COMPTON, Associate Justice.

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