Altmann v. CityofAgouraHillsCity Council

Filed 11/14/08 Altmann v. Cityof Agoura Hills City Council CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from orders of the Superior Court for Los Angeles County, James C. Chalfant, Judge. Affirmed.

Mary Altmann, in pro. per., for Plaintiff and Appellant.

Craig A. Steele, City Attorney; Richards, Watson & Gerson and T. Peter Pierce for Defendant and Appellant.

Plaintiff Mary Altmann, in propria persona, successfully petitioned for a writ of mandate against the City of Agoura Hills City Council (the City), and sought her costs and attorney fees as the prevailing party under Code of Civil Procedure[1]section 1021.5. The trial court awarded Altmann some of her costs and attorney fees for legal work done by a retained attorney (who did not appear in the action), but denied other costs and fees for legal work Altmann (who is not a licensed attorney) did herself. Altmann appeals from the post-judgment orders, contending that she was entitled to all of her costs and fees because she was acting as a private attorney general. The City cross-appeals, contending that Altmann was not entitled to any attorney fees under section 1021.5. Neither partys contention has merit. Accordingly, we affirm the orders.

BACKGROUND

In 2006, Altmann filed the instant lawsuit challenging the Citys certification of an environmental impact report (EIR) for a 135 acre project calling for development of up to 293 residential units, 576,485 square feet of new office space, retail restaurant and hotel buildings on vacant land, and re-zoning of the existing office and retail space to permit greater density. Altmanns petition sought a writ of mandate setting aside the certification of the EIR, the Citys statement of overriding interests and resolution adopting the project, and the zoning changes accompanying the project. The trial court granted the petition and ordered issuance of the writ.

Altmann filed a memorandum of costs and moved for attorney fees.[2] She sought as costs $400 in filing and motion fees, $4,804.12 for the cost of the original and a copy of the administrative record, and $75,864.57 as Attachment expenses. Included in those Attachment expenses are copying costs for various documents; computer research costs; food ($240 per month); office/utilities ($600 per month); telephone and cell phone costs ($60 per month); mileage and parking for trips to the library, court appearances, or attorney offices; cost of filing and/or serving various documents; purchase of a suit and shoes for a court appearance ($976.41); Intellectual property value of various briefs and paralegal services related to those briefs (a total of $60,000); and other miscellaneous expenses.

The City moved to tax costs and opposed Altmanns request for attorney fees. The court granted the Citys motion to tax costs, and allowed Altmann to recover only the cost of the original administrative record ($3,729.24) and various filing fees and service of process costs, for a total amount of $4,360.74. In a separate order, the court also granted in part Altmanns motion for attorney fees. The court found that Altmanns action conferred a significant public benefit in that the certification of the subject EIR was set aside. It awarded her $4,975.45 in attorney fees Altmann incurred for the services of attorneys who assisted her in her prosecution of the case, but denied Altmanns request for attorney fees for her own work (listed in her memorandum of costs as Intellectual property value and paralegal services), finding that she was not an attorney and did not incur attorney fees for her work on the case.

Altmann timely filed a notice of appeal from both orders, and the City timely filed a cross-appeal.

DISCUSSION

A. Altmanns Appeal

Altmann contends on appeal that the trial court erred by denying her attorney fees for her own work on this case and by declining to award her all of the costs she requested. We find no merit to her contentions.

We begin with the courts ruling on her costs. Section 1033.5 sets forth the items of costs that may or may not be recoverable by the prevailing party in a civil action. Subdivision (a) of that section lists costs that are allowable, while subdivision (b) lists items that are not allowable. An item that is not listed in either subdivision (a) or subdivision (b) may be recoverable in the courts discretion if it is reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. ( 1033.5, subd. (c)(2).) If items appearing on a cost bill are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.] (Ladas v. CaliforniaState Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).)

In the present case, the City objected to many of the cost items Altmann listed in her memorandum of costs, which were either not listed as allowable costs under section 1033.5, subdivision (a), or expressly not allowable under section 1033.5, subdivision (b). Although the record on appeal does not contain any written opposition to the Citys motion to tax costs, Altmann argued in her motion for costs and attorney fees that the office expenses listed in her cost bill are keepers fees purportedly allowed under section 1033.5, subdivision (a)(5), and that the clothing costs, postage, mileage, copying, and other costs were necessary to the prosecution of the action. On appeal, she argues that she was entitled to be reimbursed for the copy of the administrative record and that the other costs are allowable as keepers fees under section 1033.5, subdivision (a)(5). We disagree.

It is well established that a prevailing party in a case seeking review of administrative orders or decisions is entitled to recover the cost of preparing the administrative record, but not the cost of a copy of the record. Section 1094.5 provides that [i]f the expense of preparing all or any part of the [administrative] record has been borne by the prevailing party, the expense shall be taxable as costs. ( 1094.5, subd. (a).) As the court in Cooper v. State Board of Public Health (1951) 102 Cal.App.2d 926 stated, We think it patent that the statute refers to the record of the proceeding filed in the superior court and not to a copy of the record obtained for the use of counsel. (Id. at p. 933; accord, Escrow Guarantee Co. v. Savage (1963) 213 Cal.App.2d 595, 598.) Thus, the trial court in this case properly denied Altmanns request to be reimbursed the cost of her copy of the administrative record.

Similarly, the trial court properly denied Altmanns request for reimbursement for copying costs, telephone, fax, and cell phone costs, and computer research costs, because those costs are expressly not allowed under section 1033.5, subdivision (b)(2) and (3). (See also Ladas, supra, 19 Cal.App.4th at pp. 775-776.)

The remaining costs rejected by the trial court are neither expressly allowed under section 1033.5, subdivision (a) nor expressly not allowed under subdivision (b). Therefore, those costs may be awarded only if the court, in its discretion, determines they were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. ( 1033.5, subd. (c)(2).) Altmann does not attempt on appeal to demonstrate how her travel expenses, food, and clothing were reasonably necessary rather than merely convenient or beneficial, and thus fails to establish the trial court abused its discretion by denying those costs. Instead, she argues she should have been awarded some of her costs, including her office expenses, as keepers fees under section 1033.5, subdivision (a)(5), because all of the documents needed to be housed and kept for the duration of the lawsuit. Her reliance on that provision is misplaced. That subdivision allows recovery of [e]xpenses of attachment including keepers fees. By the plain language of the statute, the reference to keepers fees necessarily relates to fees incurred in maintaining property that was subject to attachment. (See  488.050 [governing deposits for costs related to attachments]; 16A Cal.Jur.3d (2003) Creditors Rights and Remedies,  175 [discussing keepers fees].) As there was no attachment in this case, the trial court could not award any of Altmanns costs as keepers fees.

We now turn to Altmanns argument regarding attorney fees. She contends she is entitled under section 1021.5 to receive reimbursement for her time spent litigating this case as a private attorney general. She is incorrect

This same argument was raised in Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, in which the plaintiff, appearing in propria persona, successfully litigated a petition for writ of mandate challenging a public entitys approval of a general plan. The trial court denied the plaintiffs motion for attorney fees under section 1021.5, and a majority of the appellate court affirmed. The majority held that a pro se plaintiff is not entitled to fees under section 1021.5, based upon the statutory language, which permits a trial court to award attorneys fees to a successful party under certain circumstances.[3] As the majority observed, the very use of the term attorney fees presupposes that the prevailing party has been represented by an attorney. (Id. at p. 436.)

Altmann argues that, because she litigated the case as a private attorney general, she is an attorney -- albeit a non-licensed one -- and therefore she should be allowed to recover her fees. She is mistaken. The term private attorney general was coined by Judge Jerome Frank in the context of a challenge to a private persons standing to bring a lawsuit to vindicate the public interest. (County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 88, fn. 1, citing Associated Industries v. Ickes (2d Cir. 1943) 134 F.2d 694, 704.) It is meant to convey the concept that a private citizen may stand in the shoes of the Attorney General, not in the sense of an attorney representing a party in court, but in the sense of a government official advancing the public interest in a lawsuit. Indeed, in most instances, a private attorney general is a private citizen represented by counsel in court.

Altmann also is mistaken in her assertion that denying attorney fees to unlicensed private attorneys general while allowing licensed attorneys to recover their fees violates the equal protection clause of the federal and state Constitutions. The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530.) Unlicensed private attorneys general and licensed attorneys are not similarly situated. Licensed attorneys are required to go through training and pass a bar exam before they may practice law, and are subject to certain rules and laws governing their practice. Unlicensed private attorneys general are not. Thus, the equal protection clause does not apply to prohibit the state from allowing the former group to recover their fees while not allowing fees to the latter group.

B. The Citys Cross-Appeal

In its cross-appeal, the City challenges the award of attorney fees to Altmann for services rendered by non-appearing attorneys who assisted her as she prosecuted her case in propria persona. Conceding that several appellate courts have held that pro se plaintiffs who were assisted by attorneys who did not appear before the court may recover the attorney fees they incurred (see, e.g., Witte v. Kaufman (2006) 141 Cal.App.4th 1201; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318; West Coast Development v. Reed (1992) 2 Cal.App.4th 693), the City nevertheless argues that the those cases do not apply when attorney fees are sought under section 1021.5.

The Citys argument is as follows: (1) section 1021.5 fees can be awarded only if the successful litigant enforc[es] a right affecting the public interest by conferring a benefit on the general public or a large class of persons (quoting section 1021.5; (2) the California Supreme Court, describing the private attorney general doctrine (which was codified in section 1021.5), stated that it permits the award of fees when the litigant, proceeding in a representative capacity, obtains a decision resulting in the conferral of a substantial benefit of a pecuniary or nonpecuniary nature (Serrano v. Priest (1977) 20 Cal.3d 25, 38 (Serrano III), italics added); (3) a person without a license to practice law cannot represent another person in court; (4) because Altmann does not have a license to practice law, she could not have vindicated anyones interest but her own and therefore she cannot meet the section 1021.5 criteria for an award of attorney fees.

The Citys reasoning is faulty because its reliance upon the Supreme Courts language in Serrano III, supra, 20 Cal.3d 25 is misplaced. That case was brought as a class action (see Serrano v. Priest (1971) 5 Cal.3d 584, 589), rather than as an individual action as in the present case, and thus the plaintiffs expressly served in a representative capacity. The plaintiffs sought their attorney fees under three nonstatutory theories. The quotation relied upon by the City described attorney fee awards under one of those theories -- the substantial benefit theory -- which the court expressly distinguished from the private attorney general theory. (See Serrano III, supra, 20 Cal.3d at p. 45, fn. 16.) The Supreme Court explained that under the substantial benefit theory, when an action brought by a litigant proceeding in a representative capacity results in a substantial benefit being conferred on those the litigant represents, the court may decree that under dictates of justice those receiving the benefit should contribute to the costs of its production. (Id. at p. 38.) The quotation does not stand for the proposition put forth by the City, i.e., that a party seeking attorney fees under a private attorney general theory must bring the action in a representative capacity.

But more importantly, the Supreme Court in Serrano III, supra, 20 Cal.3d 25, did not address section 1021.5, which was enacted shortly before the Courts opinion was filed. (See 7 Witkin, Cal. Procedure (2008) Judgment,  259, p. 841.) Section 1021.5 does not require a representative action. It simply requires that the lawsuit resulted in the enforcement of an important right affecting the public interest and that a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons. An individual, such as Altmann, need not join other plaintiffs or bring the action as a class action, to enforce a right affecting the public interest and confer a significant nonpecuniary benefit on the general public. Had Altmann been represented by counsel of record, there would be no question that she met the criteria under the statute and would be entitled to recover the attorney fees she incurred. There is no reason the result should be any different simply because Altmann represented herself, but with the assistance of counsel who did not make a formal appearance in court. The trial court properly awarded Altmann attorney fees for her counsels services.

DISPOSITION

The orders are affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] Further undesignated statutory references are to the Code of Civil Procedure.

[2] Altmanns original memorandum of costs sought total costs of $26,509.52. She later filed an amended memorandum of costs seeking total costs of $81,128.69. As noted in the Citys respondents brief, although the trial court indicated it did not receive the amended memorandum, the court discusses items that appeared only in the amended memorandum. Therefore, our discussion of the requested costs refers to the costs requested in the amended memorandum.

[3] 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: (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.