Judge James C. Chalfant, Case Number: 23STCP00529, Date: 2023-09-28 Tentative Ruling

A.B. v. Rob Bonta et al., 23STCP00529

Tentative decision on motion for attorney’s fees: denied

Petitioner A.B. (“A.B.”) moves for an award of $5,000 in attorney’s fees from Respondent Rob Bonta in his capacity as an Attorney General of the State of California (“DOJ”).

The court has read and considered the moving papers and opposition (no reply was filed),[1] and renders the following tentative decision.

Petitioner A.B. commenced this proceeding against Respondent DOJ on February 23, 2023, alleging a single cause of action for traditional mandamus. The Petition alleges in pertinent part as follows.

The DOJ is responsible for determining whether someone is legally eligible to possess firearms and issuing a Certificate of Eligibility (“COE”). A.B. is a police officer in Alaska, where he has a license to possess firearms as part of his law enforcement duties.

A.B.’s sole arrest was on March 8, 2013 as a juvenile, on suspicion of violation of Penal Code section 245(a)(1). No juvenile case was filed against him. On April 19, 2016, the Los Angeles Superior Court granted a petition to seal his juvenile records, which required any agency that had submitted records to the FBI to recall the same and seal accordingly.

The Guadalupe Police Department (“GPD”) in Santa Barbara County has offered A.B. employment contingent on receiving a COE. He moved to California in reliance on this offer. He then learned that his sealed juvenile arrest still appeared on his DOJ record.

On June 17, 2022, A.B. submitted a Claim of Alleged Inaccuracy or Incompleteness (“Claim”) to the DOJ, which acknowledged receipt of the Claim on June 20, 2022. On December 27, 2022, the DOJ denied the request for a COE because it had identified a record for A.B. in a state or federal database but arrest or disposition information was missing. A.B. needed to have his record updated to include such information.

After multiple exchanges, on February 16, 2023, the DOJ sent a letter thanking him for contacting it about his Claim’s status. The DOJ was still processing the claim and would mail a response once finished.

A.B.’s employment offer remains unsecured, and the GPD could withdraw it any time before he receives a COE. A.B. seeks a writ of mandate compelling the issuance of the COE, plus attorney’s fees and costs.

On March 6, 2023, A.B. served the DOJ the Petition and served a second copy by mail.

On May 11, 2023, the parties stipulated that the case be dismissed with prejudice because the DOJ had granted the requested relief.

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if (a) a significant benefit 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. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp., (“Graham”) (2004) 34 Cal.4th 553, 565. The party seeking attorney’s fees need not prevail on all of its alleged claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. The party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the “successful” party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. A prevailing party who qualifies for an award under section 1021.5 are entitled to compensation for all hours reasonably spent by their counsel. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–33.

Unlike the separate substantial benefit doctrine, “the ‘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 Assn., Inc. v. City Council, (1979) 23 Cal.3d 917, 939. “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–940.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although cases refer to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals. Bowman v. City of¿Berkeley (“Bowman”) (2005) 131 Cal.App.4th 173, 181. The party seeking attorney’s fees bears the burden of establishing that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (“Save Open Space”) (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (“Families Unafraid”), (2000) 79 Cal.App.4th 505, 515.

On March 8, 2013, A.B. was arrested on suspicion of violation of Penal Code section 245(a)(1). A.B. Decl., ¶9, Ex. B. In June 2016, the Los Angeles Superior Court granted a petition to seal his juvenile records and ordered any agency which had submitted records to the FBI to recall them. A.B. Decl., ¶9, Ex. B.

As of March 2022, A.B. had spent a year as a licensed peace officer in Alaska. A.B. Decl., ¶2. He was fully authorized to possess and carry firearms under state and federal law. A.B. Decl., ¶2. He then applied for a position as a GPD police officer. A.B. Decl., ¶3.

On May 3, 2022, GPD conditionally hired A.B. contingent on the DOJ’s issuance of a COE. A.B. Decl., ¶4. The COE would show A.B. has no criminal history that would disqualify him from firearms possession. A.B. Decl., ¶4. A.B. was reasonably assured nothing on his record would prevent that from occurring, so he relocated to California. A.B. Decl., ¶5. The GPD submitted the request for A.B.’s COE in May 2022. A.B. Decl., ¶6.

On December 27, 2022, the DOJ denied A.B.’s request for a COE. A.B. Decl., ¶7, Ex. A. It had identified a record for him in a state or federal database but there was missing arrest or disposition information. A.B. Decl., ¶7, Ex. A. A.B. needed to have his record updated to include such information. A.B. Decl., ¶7, Ex. A.

The 2013 incident was A.B.’s only arrest or conviction. A.B. Decl., ¶9. He was shocked to learn that his GPD employment was in jeopardy. A.B. Decl., ¶10. In an email to the DOJ on February 9, 2023, he asked what issues prevented issuance of the COE and what information the DOJ needed. A.B. Decl., ¶11, Ex. C. This was the latest in a series of emails and phone calls on the issue. A.B. Decl., ¶12, Ex. C.

On February 16, 2023, the DOJ replied that it was still reviewing or researching A.B.’s Claim. A.B. Decl., ¶12, Ex. C. It would mail a response to the address on file once finished. A.B. Decl., ¶12, Ex. C.

Desperate to keep his GPD employment, A.B. hired counsel and filed the Petition on February 23, 2023. A.B. Decl., ¶13, Ex. D. The DOJ was served with the Petition on March 6, 2023. A.B. Decl., ¶13, Ex. D.

On March 16, 2023, the DOJ sent A.B. a letter verifying that nothing in his record would disqualify him from owning or purchasing a firearm. A.B. Decl., ¶14, Ex. E. It therefore approved the request for certification to attend a basic training course. A.B. Decl., ¶14, Ex. E.

A.B. requests $5,000 in attorney’s fees based on 2.5 hours for the pre-filing investigation and review of applicable law, 3.5 hours to draft the Petition, 1.5 hours to communicate with the DOJ to resolve the matter, 1 hour to draft a stipulation, 4 hours to draft this motion for attorney’s fees, and 3.5 anticipated hours to review the opposition and draft a reply thereto. Kosnett Decl., ¶¶ 5-6. Counsel has not billed A.B. for clerical or paralegal fees. Kosnett Decl., ¶7.

A.B. moves for $5,000 in attorney’s fees under CCP section 1021.5. The DOJ does not dispute that $5,000 would be a reasonable fee award if A.B. is entitled to it.

As a threshold issue, A.B. cannot sign a declaration without using his name. An affidavit is a written declaration made under oath, made without notice to the adverse party. CCP §2003. The true test of the sufficiency of an affidavit is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained in the affidavit is false. People v. Thompson, (1935) 5 Cal. App. 2d 655; Application of Behymer, (1933) 130 Cal. App. 200; Gee Chong Pong v. Harris, (1918) 38 Cal. App. 214. Whenever an affidavit is required, such matter may like force and effect be supported by a declaration under penalty of perjury, “subscribed by him or her and, if executed within this state, states that date and place of execution.” CCP §2015.5.

Thus, a declaration must be signed by the declarant in a manner that he or she could be prosecuted for perjury. Although signed by him, A.B.’s declaration does not identify who he is and does not subject him to perjury prosecution. As a result, he has presented no evidence. The proper procedure would have been for A.B. to identify his name in his declaration and separately apply for it to be sealed. CRC 2.550-51. A.B. has presented no evidence.

If, arguendo, the court should consider A.B.’s declaration, the analysis is as follows.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham, supra, 34 Cal.4th at 565. A successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, supra, 43 Cal.3d at 1292.

The “catalyst theory” permits an award of attorneys’ fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. A plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit. Tipton-Whittingham v. City of Los Angeles, (2004), 34 Cal. 4th 604, 608.

A.B. presents evidence that from December 2022 through February 2023, he communicated with the DOJ multiple times about his pending request for a COE. A.B. Decl., ¶12, Ex. C. He asserts that his attempts to compel issuance of the COE and address the mysterious obstacle thereto failed and he therefore had no choice but to file and serve the Petition. A.B. Decl., ¶13, Ex. D. Ten days later, the DOJ issued the firearms clearance. A.B. Decl., ¶14, Ex. E.

The DOJ cites Graham, supra, 34 Cal.4th at 571, which held that a plaintiff seeking attorney’s fees under section 1021.5 need not engage in lengthy negotiations but must at least notify the defendant agency of his grievances and proposed remedies and give it the opportunity to meet its demands within a reasonable time. Opp. at 8.

A.B.’s February 9 email states it was the latest of several attempts to resolve the issue. A.B. Decl., ¶12, Ex. C. However, the email does not indicate anything about his proposed remedies. Instead, he asked what the issue was that was affecting his eligibility clearance. Ex. C. The DOJ’s response was that it was still processing the application and would contact A.B. when finished. A.B. Decl., ¶12, Ex. C. The DOJ did not suggest that it would deny the application. A.B. did not make a reasonable attempt to settle the dispute.

A.B. asserts his career was in jeopardy for as long as the DOJ kept his COE application undecided. A.B. Decl., ¶13. Mot. at 8. This fact bears on A.B.’s sense of urgency but not the reasonableness of his attempt to resolve the dispute.

A.B. is not a successful party under a catalyst theory for purposes of section 1021.5.

The first prong of the section 1021.5 test — whether a petitioner’s action has resulted in the enforcement of an important right affecting the public interest — requires a determination of the strength or societal importance of the right involved. Roybal v. Governing Bd. of Salinas City Elementary School Dist., (2008) 159 Cal.App.4th 1143, 1148. The right, whether constitutional or statutory, must be an important right affecting the public interest, not something involving trivial or peripheral public policies. Ibid. The societal importance of a right generally is determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.

A.B. ties the DOJ’s failure to issue a COE before he filed a Petition to the important right to follow a lawful occupation. Those who work in law enforcement or other fields requiring firearm possession rely on the DOJ to fairly, accurately, and timely determine firearms eligibility. Undue delay or unreasonable refusal may and likely has led to denial of employment to which an applicant would otherwise be entitled. Mot. at 8-9.

The court will assume that the right to bear a firearm as a policeman is an important right.

The second prong of the section 1021.5 test is whether plaintiff’s action has conferred a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. The trial court is required to determine the significance of the benefit as well as the size of the group favorably impacted by making a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case. Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

A.B. asserts his action could conceivably benefit the general public by ensuring that the DOJ makes determinations of eligibility fairly, accurately, and in a reasonably timely manner in individuals with dependent employment interests. Mot. at 9.

The word “could” highlights the argument’s deficiency. A.B. did not enforce any rights other than his own and conferred no benefit on the general public or a large group of persons.

The third prong asks whether the necessity and financial burden of private enforcement are such as to make the award appropriate. This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys. Lyons v. Chinese Hospital Assn., (2006) 136 Cal.App.4th 1331, 1348.

A.B. asserts that he was unemployed and could not begin his job with the GPD until the DOJ granted the COE. The $5,000 in fees he paid was significant. Kosnett Decl., ¶¶ 5-6. Mot. at 10;

A.B. misunderstands this requirement. At issue is whether the cost of the litigation outweighs A.B.’s financial stake in bringing this action. See Millview County Water Dist. v. State Water Resources Control Bd., (2016) 4 Cal.App.5th 759, 768. A.B. admits that his financial stake was his whole livelihood. The $5,000 that he incurred is not disproportionate to his stake in the case. A.B. has not shown that the financial burden of private enforcement outweighs his stake in the litigation.

A.B. has not presented admissible evidence. He also does not meet the definition of a successful party under a catalyst theory, the Petition did not yield a significant benefit to the public or a large class of persons, and his financial burden in the litigation stems from his private interests. The motion for attorney’s fees is denied.

[1] The DOJ failed to lodge a courtesy copy of its opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.