Purpose and Scope of CCP § 1021.5

Section 1021.5 provides in relevant 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:

1. a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons,
2. 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
3. such fees should not in the interest of justice be paid out of the recovery, if any.”

(Willard v. Kelley (2015) 190 Cal. Rptr. 3d 125, 128.)

The California Supreme Court has explained the main objective of this statute is “to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees ... to those who successfully bring such suits....” (Willard v. Kelley (2015) 190 Cal. Rptr. 3d 125, 128 citing Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.)

Section 1021.5 “provides for a fee award to a ‘successful party’ and draws no distinctions between plaintiffs and defendants.” (Id., citing County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 869.) California courts have construed section 1021.5 as mandating that an attorney fee award be made if the requirements of the statute are met. (Id., citing Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344.)

Section 1021.5 and Elections

The integrity of elections is an important right affecting the public interest. The right to vote is fundamental. (Peterson v. City of San Diego (1983) 34 Cal.3d 225, 229.)

“In Hammond v. Agran (2002) 99 Cal.App.4th 115, 120 Cal.Rptr.2d 646, the court allowed an award of attorneys' fees to the defendant only for his appellate work which resulted in the court issuing an opinion interpreting the scope of Elections Code § 13307. According to the court, that work ‘transcended [Agran's] personal stake in his own candidate statement, and will necessarily inure to every voter who reads a ballot pamphlet in a local election....’ [Citation.] The court contrasted this work, involving ‘the enforcement of an important public right’ [citation], with Agran's trial court litigation over the content of a candidate statement for which no attorneys' fees were awarded. As to that trial court work, the court declined to find it vindicated the public interest, referring to it as ‘typical, mundane squabbles over the factual accuracy of a statement peculiar to one candidate's personal history.’ [Citation.] Because the instant case falls into the latter category, the motion for attorneys' fees is denied.” (Willard v. Kelley (2015) 190 Cal. Rptr. 3d 125, 127.)

A “‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” (Woodland Hills Residents Ass'n v. City Council of L.A. (1979) 23 Cal.3d 917, 939.) “An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.” (Id. at 941.)

Attorneys' fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in (Serrano v. Priest, 20 Cal.3d 25, 49 .)

Self-Representation

In Trope v. Katz (1995) 11 Cal.4th 274, 282, the California Supreme Court made clear that no one who represents himself in an action, not even an attorney, can recover an award of attorney fees because no attorney fees have been incurred. (See also, O’Connell v. Zimmerman (1958) 157 Cal.App.2d 330, 337.)

In applying "the statutory criteria, we must consider whether:

1. plaintiffs' action 'has resulted in the enforcement of an important right affecting the public interest,'
2. 'a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons' and
3. 'the necessity and financial burden of private enforcement are such as to make the award appropriate.'

(Trope v. Katz (1995) 11 Cal.4th 274, 282.)

“[Where] plaintiffs' action has produced no monetary recovery, factor (c) of section 1021.5 is not applicable." (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 934–935 accord, Serrano v. Stefan Merli Plastering Co. (2008) 162 Cal.App.4th 1014 at 1026.)

Cost Recoverable Pursuant to Elections Code and Civil Code

Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 691 states: “Where a statute authorizes an award of fees and costs, but is silent as to which costs are to be awarded, Code of Civil Procedure section 1033.5 provides the courts with guidance as to those costs that may or may not be recovered in a civil action.” Section 14030 authorizes recovery for a prevailing plaintiff of “litigation expenses including, but not limited to, expert witness fees and expenses as part of the costs.” (Id.)

“As originally enacted in 1986, Code of Civil Procedure section 1033.5 allowed recovery of attorney fees as costs only when ‘authorized by statute.’ (Code Civ. Proc., Sec. 1033.5(a)(10), as added by Stats. 1986, ch. 377, Sec. 13, at 1580.) In 1990, that statute was amended to provide that attorney fees are allowable as costs under Code of Civil Procedure section 1032 when authorized by either statute or contract.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 630 citing Code Civ. Proc., Sec. 1033.5(a)(10), as amended by Stats. 1990, ch. 804, Sec. 1, at 3551.)

“Code of Civil Procedure section 1021.5 was intended to provide specific guidelines for the exercise of inherent judicial power to award fees not specifically authorized by statute.” (Common Cause v. Stirling, supra, 119 Cal.App.3d at p. 663.)