Opinion
NOT TO BE PUBLISHED
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506 (Broderick Boys I), we held that four men who had been served with a gang injunction had standing to challenge it and that the injunction was void for lack of proper service. On behalf of three of the men, counsel sought attorney fees under the private attorney general doctrine (Code Civ. Proc., § 1021.5, hereafter § 1021.5). The District Attorney opposed the motion, arguing that (1) he was immune from a fee award, (2) the men did not meet the statutory criteria for a fee award, and (3) the amount sought was excessive.
The trial court denied the motion, finding the fee claimants failed to satisfy the statutory criteria for a fee award. The court did not rule on the immunity claim or the reasonableness of the amount of fees sought. The claimants appeal.
We conclude that (1) the proper standard of review in this case is whether the trial court abused its discretion in denying the motion for attorney fees. Applying that standard, we conclude that the trial court did not abuse its discretion because (2) the litigation did not confer a significant benefit on the public or a large class of persons. This opinion also concludes that (3) the litigation was unnecessary. We therefore affirm.
Given this conclusion, we need not determine whether the District Attorney is immune from an award of attorney fees or whether the amount of fees sought was excessive.
BACKGROUND
A. Broderick Boys I
On December 30, 2004, the Yolo County District Attorney (hereafter District Attorney) filed a civil injunction complaint against a street gang known principally as the Broderick Boys, sued as an unincorporated association in West Sacramento. The complaint sought the creation of a “Safety Zone” in which anti-gang measures, such as a curfew, would be in effect in an effort to stem criminality. The complaint was served on Billy Wolfington, a Broderick Boys member of unknown rank. After interim relief was granted, a default was entered and the court issued a permanent injunction on February 3, 2005. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1512-1514.)
On July 28, 2005, Keith Edwards, Angelo Velazquez, Jason Swearengin and Benjamin Juarez (movants) moved to set aside the default judgment and default. The movants, and many others, had been served with the injunction and one had been arrested for violating its curfew. The movants claimed service on Wolfington was inadequate because the Broderick Boys was not an unincorporated association; even if it was, Wolfington was not a responsible member of the association and serving him alone violated due process principles. (Broderick Boys I, supra, 149 Cal.App.4th at p. 1514.) The trial court (Warriner, J.) found they lacked standing because they did not claim to be members of the Broderick Boys street gang. (Id. at pp. 1515-1516.)
The District Attorney states on appeal that the men denied gang membership. They did not admit gang membership but it does not appear that they denied membership.
On appeal we concluded as follows:
(1) The movants had standing to challenge the injunction once they were served with it, without having to admit that they were gang members, although they could also have challenged the injunction either by filing a declaratory relief action or by defending contempt charges for violating its terms. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1516-1518.)
(2) The injunction was void. We rendered several subsidiary holdings in reaching this conclusion:
(A) The record did not show that the Broderick Boys was an unincorporated association because there was no showing that it was formed for any “common lawful purpose” as provided by Corporations Code section 18035, subdivision (a), and as provided by the common law long predating that statutory language. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1520-1522.)
(B) A statute allowing an unincorporated association with no known agents to be served by service on “one or more” members (Corp. Code, § 18220) does not allow serving “one” member in all cases. Instead, such service is sufficient if that member enjoys a position within the association such that it is reasonable to expect that the member will alert the association to the suit. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1522-1524.) Service only on Billy Wolfington, a gang member of unknown rank, did not satisfy this state statute.
(C) The service also violated federal due process, because other more effective methods were readily available but were not employed. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1524-1528 [describing what readily could have been done].)
We reversed with directions to set aside the void judgment. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1528-1529.)
B. Proceedings on Remand
On July 17, 2007, an amended complaint was filed, naming a number of alleged gang members, but not movants.
On November 5, 2007, the attorneys who now represented only three of the four movants (Edwards, Juarez and Swearengin, hereafter collectively referred to as the movants), sought attorney fees under section 1021.5.
The motion included a description of the work done, the number of hours spent by each attorney and reasons supporting the claimed hourly rates for each attorney. The motion was supported by declarations of other attorneys attesting to the reasonableness of the hourly rates claimed. A lodestar was calculated by multiplying the hourly rates by the hours worked, and a multiplier of 1.5 was proposed; added to that amount were costs, plus estimated fees for the fee motion, handled by two other attorneys (with no multiplier). The total claim exceeded $400,000.
Alan Schlosser declared that he was the Legal Director for the American Civil Liberties Union Foundation of Northern California, a regional affiliate of the American Civil Liberties Union (collectively, ACLU), a nationwide nonprofit organization dedicated “to preserving and advancing the rights guaranteed by our federal and state constitutions and by federal, state and local laws protecting citizens’ civil rights and civil liberties.” After the ACLU “complaint hotline” received two calls from persons concerned about the gang injunction, the regional office began investigating, including telephone and in-person interviews with “persons served with or otherwise affected by the injunction.” The office also researched other gang injunction cases and decided to attack the injunction by means of a motion to set aside “on jurisdictional grounds.” This included acquiring and analyzing court records showing the methods of service in other gang injunction cases.
We granted judicial notice of those documents and relied in part on them in the prior appeal. (See Broderick Boys I, supra, 149 Cal.App.4th at pp. 1515, 1524-1525.)
The District Attorney opposed the motion for attorney fees, claiming that (1) he was “immune,” (2) the section 1021.5 criteria were not met, and (3) the fees sought were excessive. As to the amount of fees, the District Attorney (1) presented a declaration stating that the claimed hourly rates were too high, (2) argued that much of the work should be severed because it related to ongoing issues about the gang injunction, and (3) argued a multiplier was inappropriate because only “interim” success had been achieved.
The District Attorney also noted that Velazquez, one of the movants, had signed a declaration renouncing his gang membership and had signed a release, which barred the claim for fees as to him. As indicated above, although he was one of the movants, Velazquez is not a fee claimant.
In reply, the ACLU argued that although the injunction case was proceeding, the movants had not been served and their success was not “interim” success. The litigation voided the injunction that the authorities had claimed limited the movants’ conduct. The reply contested the claim of immunity and defended the lodestar and multiplier calculations.
We grant the District Attorney’s unopposed motion for judicial notice of documents showing that on December 19, 2007, the trial court (Fall, J.) issued permanent injunctions against nine Broderick Boys members who had defaulted. None of these were movants in Broderick Boys I.
A separate appeal pending in this court shows that contested hearings were held, resulting in a preliminary injunction issued by Judge White on May 23, 2008, against more Broderick Boys members. (See People ex rel. Reisig v. Broderick Boys; Acuna, case No. C059375.) The notice of appeal in that case lists 11 defendants represented by 10 different attorneys. None of the 11 were movants in Broderick Boys I or are movants herein and it does not appear that any were or are represented by the ACLU.
The unreported fee hearing was held the next day. In a written order filed January 7, 2008, the trial court (Fall, J.) awarded costs, but denied fees because movants did not “demonstrate that: (1) this litigation secured enforcement of important rights affecting the public interest; (2) this litigation conferred a significant benefit on a large class of persons; and (3) their financial burden is out of proportion to their personal stake in this litigation.”
Although the trial court did not rule on the immunity theory, the trial court granted the District Attorney’s request for judicial notice of a legislative analysis of a statutory amendment arguably related to that theory. The movants fault the District Attorney for citing this document because it was not included in his motion for judicial notice on appeal. But the trial court grantedjudicial notice of it, and it is included in the appendix prepared by the movants. (See Cal. Rules of Court, rules 8.122(b)(3)(A), 8.124(b)(1)(B).)
On behalf of the movants, the ACLU timely filed a notice of appeal. (See Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 432 [order appealable as final determination on collateral matter requiring payment of money].)
DISCUSSION
I
Section 1021.5 Elements and Standard of Review
Section 1021.5 states, in pertinent part: “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, or of enforcement by one public entity against another public entity, 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....”
“Section 1021.5 codifies the ‘private attorney general doctrine’ adopted by our Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317; Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629 634; Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39 Cal.App.4th 1561, 1566.) The doctrine is designed to encourage private enforcement of important public rights and to ensure aggrieved citizens access to the judicial process where statutory or constitutional rights have been violated. (Olney v. Municipal Court (1982) 133 Cal.App.3d 455, 463.) In determining whether to award attorney fees under section 1021.5 to the ‘successful party,’ we apply a three-prong test inquiring whether (1) the litigation resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit has been conferred on the general public or a large class of individuals, and (3) the necessity and financial burden of private enforcement renders the award appropriate. (Baggett v. Gates (1982) 32 Cal.3d 128, 142; Family Planning Specialists Medical Group, Inc. v. Powers, supra, 39 Cal.App.4th at p. 1567; Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th 162, 169-170.) Regarding the nature of the public right, it must be important and cannot involve trivial or peripheral public policies. The significance of the benefit conferred is determined from a realistic assessment of all the relevant surrounding circumstances. As to the necessity and financial burden of private enforcement, an award is appropriate where the cost of the legal victory transcends the claimant’s personal interest; in other words, where the burden of pursuing the litigation is out of proportion to the plaintiff's individual stake in the matter. (Olney v. Municipal Court, supra, 133 Cal.App.3d at pp. 463-464.)” (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044.) Each of these requirements must be met to warrant an award of attorney fees under section 1021.5. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 934-935.) In other words, if any one of the elements is missing, an award is unwarranted.
“The decision whether the claimant has met his burden of proving each of these prerequisites and is thus entitled to an award of attorney fees under section 1021.5 rests within the sound discretion of the trial court and that discretion shall not be disturbed on appeal absent a clear abuse. (Family Planning specialists Medical Group, Inc. v. Powers, supra, 39 Cal.App.4th at p. 1567; Olney v. Municipal Court, supra, 133 Cal.App.3d at p. 464.) In other words, an attorney fees award under section 1021.5 will only be reversed where ‘“it is clearly wrong or has no reasonable basis.” [Citation.]’ (Gregory v. State Bd. Of Control (1999) 73 Cal.App.4th 584, 598; Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 955.)” (Ryan v. California Interscholastic Federation, supra, 94 Cal.App.4th at p. 1044.)
Despite this well-established abuse of discretion standard of review, the movants would have us disregard the trial court’s findings and conduct a de novo review of the written evidence to determine whether the denial of section 1021.5 fees was proper. They assert that we must conduct a de novo review because (1) the material facts are undisputed, (2) the case resulted in an appellate opinion, and (3) the trial court provided no explanation for its ruling. We conclude that the appropriate standard is abuse of discretion.
The movants merely assert that the material facts are not in dispute. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175 [de novo standard appropriate when facts not disputed].) They offer no reasoning or explanation for this assertion. To the contrary, some of the material facts were in dispute. For example, the extent of the benefit obtained on behalf of others is not readily clear. Also, the parties disagreed concerning whether there was a more expeditious way to resolve the controversy, as we discuss below. These matters required the trial court to draw inferences and reach conclusions concerning factual matters. Accordingly, the existence of factual disputes precludes application of a de novo standard of review.
The fact that we issued an opinion in this controversy also does not justify applying a de novo standard of review. Our opinion dealt with the narrow issues of standing and notice. We did not delve into the factors necessary to making a determination concerning attorney fees. “[A]t least some of the criteria outlined in section 1021.5 entail factual determinations an appellate court is in no position to undertake.” (Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 7.)
And finally, we reject the movants’ assertion that the trial court provided no explanation of the reasoning that led to its conclusion to deny section 1021.5 attorney fees. While the record reflects very limited reasoning in the minute order, the movants did not provide a reporter’s transcript of the hearing. It is reasonable to infer that the trial court discussed the factors involved in the ruling during the hearing. Therefore, the movants cannot be heard to complain that the incomplete record provided to us on appeal establishes that the trial court did not provide such reasoning.
Accordingly, we apply the abuse of discretion standard of review.
II
Conferring Significant Benefit on Public
A realistic assessment of the circumstances surrounding the voiding of the gang injunction in Broderick Boys I reveals that the movants’ efforts did not (A) confer a significant benefit (B) on the general public or a large class of persons, within the meaning of section 1021.5. Instead, Broderick Boys I simply applied existing principles of due process law to the specific facts, affording only temporary relief to the movants. Thus, the trial court did not abuse its discretion in denying attorney fees.
A. Significant Benefit
In determining the significance of the benefit conferred on the public, a court must place a value judgment on the benefit in the context of the litigation. Contextually, the enforcement of due process rights in Broderick Boys I did not confer a significant benefit because it did nothing toward resolving the substantive issues relating to the gang injunction.
Broderick Boys I provided a mere procedural respite and only temporary relief to the movants. While the relief the movants obtained was “secure” in the sense that the injunction was lifted, it did not preclude the District Attorney from correcting the procedural problems and obtaining and serving correctly a new injunction, which he did. Beyond that, our opinion did not establish the principles of due process rights to notice; it simply enforced existing legal principles.
Quoting language from Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at page 939, the movants assert that a significant benefit “‘may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.’” As the passage explicitly states, however, the significant benefit “may” be recognized in such instances. The Supreme Court, in that case, made it clear that section 1021.5 attorney fees are not necessarily justified simply because a constitutional or statutory policy was applied. (Id. at pp. 939-940.)
Similarly, the movants cite a Court of Appeal opinion for the proposition that publication “‘alone supports a conclusion that the result was of significant statewide public interest.’” (Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 496, fn. 8.) Although we agree that the publication of our opinion in Broderick Boys I is a factor supporting a finding that the movants conferred a significant benefit on the public, it does not necessarily establish that fact. Instead, the circumstances surrounding Broderick Boys I litigation, including the narrow holding and the temporary relief, support the trial court’s finding that the litigation did not confer a significant benefit.
B. Benefit to General Public or Large Class of Persons
The benefit obtained by the movants in Broderick Boys I was narrow, limited almost entirely to the movants. It did not benefit those whom the District Attorney would serve properly with notice of a new action seeking a gang injunction against the Broderick Boys. Therefore, aside from not being sufficiently significant to justify a section 1021.5 attorney fees award, the litigation also did not impose a benefit broad enough to require the court to award such fees.
The movants cite City of Los Angeles v. 2000 Jeep Cherokee (2008) 159 Cal.App.4th 1272 for the proposition that a court may award section 1021.5 attorney fees even if the law at issue in the litigation applies to a narrow class of persons. In that case, the litigants were successful in having invalidated, as preempted by state law, a city ordinance that authorized the seizure and forfeiture of vehicles used to solicit prostitution. (Id. at p. 1275.) Unlike that case, the result here was not a substantive determination that the injunction was invalid. Instead, it merely required the District Attorney to establish that the person who was served was a gang member of sufficient standing within the gang.
Our review of the proceedings leads us to conclude that the voiding of the injunction based on principles of due process involved application of unremarkable due process law to the particular facts of this case. Our opinion did not change the law and did not result in any new due process benefit. Instead, the opinion focused on the unique facts of the government’s notice to the movants. For those reasons, the trial court did not abuse its discretion in denying section 1021.5 attorney fees.
III
Necessity of Private Enforcement
Although the movants achieved some success in having the injunction declared void, a new injunction has already been obtained. The movants could have disengaged from these proceedings completely by declaring their disassociation from the Broderick Boys gang -- a faster and more publicly-desirable result. Therefore, the necessity and financial burden of private enforcement are not such as to make an award appropriate. (§ 1021.5.)
Background
Although we reversed in Broderick Boys I, finding the gang injunction void because the manner of service did not comply with due process, the district attorney returned to the trial court and obtained a new gang injunction. According to District Attorney Jeff Reisig, each of the movants is subject to being served with the new gang injunction if he maintains his affiliation with the Broderick Boys. The voiding of the injunction at issue in the prior appeal did not shield the movants or the gang’s members from that eventuality.
Unlike the dismissal of the prior gang injunction for failure to effect proper service of the complaint, which did not preclude a new gang injunction with proper service, a different, nonjudicial procedure is, and has been, available to the movants to end their entanglement with the law. That procedure, established by the West Sacramento Police Department, allows them to apply to the department to be removed from the enforcement list. It requires them to demonstrate that they have no affiliation with the Broderick Boys, or that they have ended any affiliation.
One of the movants in Broderick Boys I has already availed himself of this procedure. Angelo Velazquez sued the District Attorney for declaratory and injunctive relief. He sought a declaration that he is not an active gang member and, therefore, is not subject to any gang injunction. The case was settled, with Velazquez applying to the West Sacramento Police Department to be removed from the Broderick Boys permanent injunction list and the department’s approval of the application.
The application required Velazquez to initial three factual statements: (1) “I renounce any actual or alleged membership or association with the BRODERICK BOYS...”; (2) “I shall not acquire any new gang related tattoos”; and (3) “I shall not wear or possess any clothing or paraphernalia that specifically identifies the Broderick Boys....” (Capitalization in original.) Velazquez was removed from the injunction list.
The application provided that Velazquez was removed from the injunction list “without prejudice” and the removal “does not prohibit re-service of the injunction in accordance with applicable law.” (Unnecessary capitalization omitted.) Presumably, this means that Velazquez could not be placed on the injunction list without evidence that he had associated himself with the Broderick Boys after being removed from the list.
There is no evidence that the movants have attempted to have their names removed from the West Sacramento Police Department’s Broderick Boys injunction list. While they do not admit membership in the Broderick Boys gang, they have “asserted they had a viable defense to the injunction generally and a defense to being included within its sweep.” (Broderick Boys I, supra, 149 Cal.App.4th at p. 1514.)
Analysis
Although section 1021.5 does not categorically require a prelitigation settlement demand as a prerequisite for an award of attorneys fees, “a court, in exercising its equitable discretion concerning attorney fees under 1021.5, properly takes into consideration whether the party seeking fees attempted to resolve its dispute before resorting to litigation. [This principle] restates the statutory requirement that the party seeking fees under section 1021.5 must demonstrate that ‘the necessity and financial burden of private enforcement... are such as to make the award appropriate....’ (§ 1021.5, subd. (b).)... ‘“[C]ourts may be guided by equitable principles when awarding attorney’s fees.”’ [Citations.]... [P]relitigation efforts to resolve a dispute, or their absence, properly inform the court’s decision whether to award fees under section 1021.5.... ‘[a]warding attorney fees for litigation when those rights could have been vindicated by reasonable efforts short of litigation does not advance [section 1021.5’s] objective and encourages lawsuits that are more opportunistic than authentically for the public good.’ [Citation.]” (Vasquez v. State of California (2008) 45 Cal.4th 243, 257.)
Despite the simple procedure for seeking removal from the Broderick Boys injunction list, the movants, in their own words, “litigated a complex motion to vacate a permanent injunction....” As we noted in Broderick Boys I, [t]he evidence reveals a level of gang criminality plaguing West Sacramento which might well justify injunctive relief. [Citation.]” (Broderick Boys I, supra, 149 Cal.App.4th at p. 1511.) Therefore, if the movants are Broderick Boys gang members, an injunction against them may well be justified and in the public interest. If they are not, the quickest resolution was, and is, to apply to the West Sacramento Police Department to be taken off of the Broderick Boys injunction list.
From this, it is apparent that the movants have not shown that “the necessity and financial burden of private enforcement... are such as to make the award appropriate....” (§ 1021.5.) If they are Broderick Boys gang members, challenging the injunction may, in the end, be futile because they may be subject to the terms of the new gang injunction. If they are not Broderick Boys gang members, it was unnecessary to engage in complex and expensive litigation instead of applying for removal from the injunction list.
Equitable considerations and public policy weigh heavily against an award of attorney fees for two reasons:
First, using the opt-out procedure would have had the dual benefit of (1) prompting the movants to disassociate themselves from the Broderick Boys gang and (2) disentangling the movants from the anti-gang efforts of the West Sacramento Police Department. The end result of the movants’ strategy was to preserve, for a time, the movants’ ability to participate in the Broderick Boys criminal street gang, if the movants are indeed members of the gang.
And second, by pursuing the lengthy process of attacking the gang injunction on due process grounds, the movants unnecessarily prolonged the litigation and, in the end, provided no practical benefit, other than requiring the District Attorney to jump through the correct hoops to get to the same destination.
These equitable principles support the trial court’s decision to deny section 1021.5 attorney fees. Therefore, the trial court did not abuse its discretion.
DISPOSITION
The order is affirmed. The District Attorney is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
NICHOLSON , J.
I concur in the lead opinion’s conclusion that the trial court did not abuse its discretion in denying the request for private attorney general fees because appellant’s victory in overturning the first injunction did not confer a significant benefit on the general public or a large class of persons, as required by Code of Civil Procedure section 1021.5. Since we must affirm the judgment on this ground alone, I find it unnecessary to weigh in on the lead opinion’s conclusion that appellant has failed to demonstrate that there was sufficient necessity for the lawsuit and that the financial burden of private enforcement of rights was such to support an award of private attorney general fees.
SCOTLAND , P. J.
MORRISON, J.
I respectfully dissent.
On the record in this case, the ACLU is entitled to a reasonable fee award on behalf of three of the four men who moved to set aside the void gang injunction. Code of Civil Procedure section 1021.5 encourages lawyers to take on unpopular causes in order to defend rights guaranteed to all. In this case, the ACLU enforced the right to due process under the United States Constitution. This lawsuit resulted in a published opinion that declared a gang injunction void and also clarified the law regarding service of process on unincorporated associations generally. The three men seeking fees for their counsel have not been shown to be members of the gang. They had no financial incentive to protect. This lawsuit was the only reasonable way to relieve them of the burdens of the void injunction.
We should reverse, remand and order the trial court to make a reasonable fee award.
While we must review the denial of the motion for an abuse of discretion, that discretion must be controlled by applicable legal standards. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) In this case, the matter was submitted on the moving and opposing papers and there is no indication any evidence was taken at the unreported hearing. The moving and opposing papers reveal no relevant factual disputes; therefore, whether the trial court’s order comported with the relevant legal standards is a question of law. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176.) Further, the appellate court does not always defer to the trial court in assessing the class benefitted or the significance of the victory achieved, particularly where the victory resulted in a published case, that is, where, as in this case, the success was in the appellate court. (See Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 7-13 (Los Angeles).)
The fee statute encourages suits to enforce public policies and to force officials to comply with the law. (See Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2008) The Private Attorney General Statute, § 4.2, pp. 88-90 [discussing cases].)
The district attorney did not argue in the trial court and does not argue on appeal that the rights enforced in People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506 (Broderick Boys I) were not important enough or that the public benefit was not significant enough to merit fees.
These criteria are interrelated. (See Pearl, Cal. Attorney Fee Awards, supra, § 4.41, p. 138.5.) “How many people will receive what kind of benefit, and how much, as a result of a given legal action is usually more of a value judgment than an issue of fact. And most often it is a value judgment about legal effects and the like which appellate courts are well situated to make.” (Los Angeles, supra,188 Cal.App.3d at p. 9; cf. Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1138 [number of firearm dealers aided by suit unknown, matter remanded for trial court to determine whether the class of persons benefitted by the lawsuit was sufficient for an award of fees].)
The lead opinion reasons that Broderick Boys I provided these three men only temporary relief and in any event did not benefit a significant class. I disagree.
Before the litigation, the three men were subject to an injunction that restricted their liberty. This litigation enforced their federal due process rights to adequate notice and voided the injunction. They obtained a tangible victory. (See Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 877 [“a judicially sanctioned or recognized change in the legal relationship of the parties”].)
A new gang injunction has been issued, but these men are not subject to this injunction. If in the future the authorities seek to apply it to them, they will have the benefit of notice and an opportunity to be heard. These are central principles of our legal system. They have their due process victory in hand. (See Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177-179 [party successfully overturned building approvals based on lack of fair hearing, but failed to stop the project; fees proper].)
The fact that Broderick Boys I did not expand due process protections is not a basis to deny fees: Fees may be earned by actions that enforce existing rights. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318-319 (Press).) I am not aware of any case that has denied fees where federal due process rights were enforced by litigation resulting in a published decision.
I agree with the lead opinion that the fact that we published Broderick Boys I does not of itself show it conferred a significant benefit, but it is a factor to consider in the circumstances of this case. The trial court’s order cannot be upheld based on lack of a significant benefit.
Broderick Boys I did not merely benefit three men, the decision interpreted service of process on unincorporated associations generally. Specifically, we held that where only one member of an unincorporated association is served, that member must be a responsible member, not just any member. (Broderick Boys I, supra, 149 Cal.App.4th at pp. 1522-1524.) This holding benefits all Californians who belong to unincorporated associations, including “churches, lodges, clubs, labor unions, and business and professional societies” that “carry on virtually every kind of commercial, charitable, and social activity.” (Recommendation: Suit by or Against an Unincorporated Association (Oct. 1966) 8 Cal. Law Revision Com. Rep. (1967) p. 907.)
The good motives of the district attorney in trying to control criminal street gangs must not cause us to take an unduly crabbed view of the underlying litigation. The public interest was served by invalidating a void injunction that impacted the community of West Sacramento. (See City of Los Angeles v. 2000 Jeep Cherokee (2008) 159 Cal.App.4th 1272, 1279-1281 [suit invalidating ordinance discouraging prostitution served public interest and met all fee criteria]; Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 231-232 [“good faith” does not bar fees].) A void judgment does not serve the public interest.
No reasonable steps short of litigation would have resolved this matter. The lead opinion’s view is that if these men are gang members it was socially desirable to curb their activities and the new injunction may eventually be applied to them; therefore, equity should not aid them by awarding them fees, and if they are not gang members, they should have gone to the police and openly declared that they did not belong to a gang.
It is not reasonable to compel a person to go to the police and declare that he is not a gang member, in order that he be relieved of the effects of a void injunction.
Further, the police procedures identified by the lead opinion state no standards for the police to follow and include no method to review the application of any standards. It would be unfair to deny fees because the men did not invoke this discretionary procedure: This litigation was necessary because the police would have continued enforcing the voidinjunction until it was set aside. (See Press, supra, 34 Cal.3d at p. 320 [“Defendant persistently adhered to its established policy” and therefore litigation was necessary].)
The ACLU’s victory satisfied the statutory requirements for an award of reasonable attorney fees. Accordingly, the trial court abused its discretion in denying fees.