Connerly v. State Personnel Bd. 5/4/04 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C043329

Case Date: 08/11/2004

Preview:Filed 5/4/04 Connerly v. State Personnel Bd. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

WARD CONNERLY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents; THE CALIFORNIA BUSINESS COUNCIL FOR EQUAL OPPORTUNITY et al., Real Parties in Interest and Appellants. C043329 (Super. Ct. No. 96CS01082)

This is an appeal and cross-appeal from an order awarding attorney fees pursuant to Code of Civil Procedure section 1021.5. (Further section references are to the Code of Civil Procedure unless otherwise specified.) Real parties in interest argue that

they may not be held responsible for attorney fees, and plaintiff

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challenges the trial court's disallowance, as unreasonable, of some of the hours claimed by his attorneys. BACKGROUND This litigation involved state and federal constitutional challenges to five statutory programs that fall within the general rubric of "affirmative action." (2001) 92 Cal.App.4th 16, 27.) (Connerly v. State Personnel Bd. Pete Wilson, in his capacity as We shall affirm the order.

the Governor of California, commenced the litigation by filing, in this court, a petition for writ of mandate against various state agencies and officials with responsibility for implementing the statutory schemes. A group of organizations and associations who were interested in the matter obtained permission from this court to appear as amici curiae. They asserted, among other things, that there was

no justiciable controversy because the action was between the Governor and his subordinate executive officers and agencies, and because no real parties in interest had been named. In response,

the Governor filed an amended petition for writ of mandate naming the amici curiae as real parties in interest. This court denied the petition without a hearing or opinion. Governor Wilson then filed his petition for a writ of mandate in the superior court. In doing so, he named the former amici curiae Later, plaintiff Ward Connerly was

as real parties in interest.1

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Originally, there were 14 organizations and associations who joined together to appear as amici curiae in this court. Only the six groups, who are the appellants in this appeal, actively participated in the litigation on the merits. 2

permitted to join the litigation as a taxpayer litigant. v. State Personnel Bd., supra, 92 Cal.App.4th at p. 27.)

(Connerly Connerly (Ibid.)

continued the litigation after Governor Wilson left office.

Eventually, the trial court entered a judgment finding invalid one of the statutory schemes, as well as a portion of another, but otherwise upholding them. 92 Cal.App.4th at p. 27.) (Connerly v. State Personnel Bd., supra, Plaintiff appealed from the judgment to

the extent that it rejected his challenges to the statutory schemes. (Id. at p. 28.) Real parties in interest cross-appealed to assert

that, with respect to the statutory scheme found invalid, certain data collection and reporting requirements could be severed and upheld. (Ibid.)

The appeal resulted in a lengthy published opinion that found constitutional infirmities in each of the challenged statutory schemes. (Connerly v. State Personnel Bd., supra, 92 Cal.App.4th But the opinion also concluded that certain portions

at p. 28.)

of three of the statutory schemes could be severed and upheld. (Ibid.) The judgment was reversed and the matter remanded to the

trial court with directions to enter a judgment consistent with this court's opinion. (Id. at p. 64.) After further proceedings,

such a judgment was entered. Plaintiff then moved for an award of attorney fees pursuant to section 1021.5, the so-called "private attorney general" fee shifting provision. (See Woodland Hills Residents Assn., Inc. v.

City Council (1979) 23 Cal.3d 917, 925 (hereafter Woodland Hills).) The trial court determined that this is an appropriate case in

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which to make an award of attorney fees pursuant to section 1021.5, a ruling that is not challenged on appeal. In determining the amount of the attorney fee award, the trial court utilized the "lodestar" process (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322), by which the court calculates a "touchstone" or "lodestar" figure based upon careful compilation of the time spent and reasonable hourly compensation of each of the attorneys involved in presentation of the case and then increases or decreases that figure by using a multiplier determined through consideration of other factors concerning the case. (Ibid.)

In calculating the lodestar figure, the trial court determined that the hours claimed were unreasonable in certain respects. First, it found that the hours claimed for work on the motion for judgment on the pleadings were excessive -- in this respect, the court reduced the hours claimed by Attorney Caso by 27 hours, and the hours claimed by Attorney Gallagher by 4 hours. Second, it

found that the hours claimed for work on the judgment proceedings and post judgment proceedings were excessive -- in this respect, the court disallowed 36.5 hours claimed by Attorney Caso, 4.4 hours claimed by Attorney Findley, and 6 hours claimed by Attorney Browne. Finally, it disallowed 13.2 hours claimed by Attorney

Caso for "intervention" that had no apparent connection to the litigation, and 4 hours claimed by Attorney La Fetra for correction of an arithmetical or clerical error in the claim. allowed total attorney time of 1,426.45 hours. The court

From the reasonable

hourly rate for attorney work, the court derived a lodestar figure of $346,957.80. 4

The trial court enhanced the lodestar figure by 30 percent, for a total fee for the merits of the litigation of $451,045.14. To this it added $37,022.50 for work on the motion for attorney fees. The allowance for work on the motion for attorney fees

represented the full amount of the hours and rates claimed, but without an increase in the award through application of a multiplier. The total attorney fee award was thus $488,067.64.

Rejecting the contention of real parties in interest that liability for the attorney fee award should be the responsibility of the state defendants alone, the trial court ruled that, under the circumstances of this case, real parties in interest must bear liability for an equitable share of the attorney fee award. Thus, it ordered that the award shall be the joint and several liability of the state defendants and real parties in interest, to be borne in equal shares by the State Personnel Board, the California Community Colleges, the State Treasurer, the State Lottery, the Department of General Services, and real parties in interest. Real parties in interest appeal, contending they may not be charged with liability for attorney fees in this case. Plaintiff

cross-appeals to challenge the disallowance of some of the hours claimed by his attorneys. DISCUSSION I 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 5

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. 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, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code. [

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