Judge: James C. Chalfant, Case: 23STCP04135, Date: 2025-04-24 Tentative Ruling

Case Number: 23STCP04135    Hearing Date: April 24, 2025    Dept: 85

CCP section 1032(b) states that, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  With respect to the concept of “prevailing party,” section 1032 defines the term as the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, or a defendant who avoids all liability.  Great Western Bank v. Converse Consultants, Inc., (1997) 58 Cal.App.4th 609, 612; Childers v. Edwards, (1996) 48 Cal.App.4th 1544, 1548; Coltrain v. Shewalter, (1998) 66 Cal.App.4th 94, 101-102.  Nonetheless, section 1032(a)(4) provides that when any party recovers other than monetary relief, and in situations other than as specified (i.e., the party with net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains relief, and a defendant against those plaintiffs who do not recover any relief against that defendant), the “prevailing party” shall be as determined by the court, and under those circumstances, the court in its discretion may allow costs or not.  Building Maintenance Services Co. v. AIL Systems, Inc., (1997) 55 Cal.App.4th 1014, 1025.

CCP section 1033.5(a)(10)(B) allows as costs attorney fees authorized by statute.  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.

Any notice of motion to claim attorney fees as an element of costs shall be served and filed within the time for filing a notice of appeal.  CRC 3.1702(b).

C. Statement of Facts

            1. LAPPL’s Evidence

LAPPL is, and was at all relevant times, a recognized employee organization under Govt. Code section 3500, et seq. recognized as the exclusive representative for all police officers, police detectives, sergeants and lieutenants employed by the City with regard to all mattes concerning wages, hours, and working conditions.  Levine Decl., ¶26.  LAPPL represents approximately 9,000 peace officers employed by the City.  Levine Decl., ¶26.

Richard Levine, Esq. (“Levine”) is a partner at Rains Lucia Stern St. Phalle & Silver PC, (“RLS”), law firm of record for LAPPL, and is familiar with the qualifications and work performed by RLS attorneys in this matter.  Levine Decl., ¶2.  RLS is a California firm with over 45 attorneys specializing in the representation of public employees in all areas including civil litigation, collective bargaining, actions for breach of Memoranda of Understanding, petitions for writs of mandamus, criminal and administrative defense, workers’ compensation, and personal injury.  Levine Decl., ¶3.  All attorneys who worked on the case are competent and experienced in public sector labor law.  Levine Decl., ¶14. 

From October 2023 to March 5, 2025, RLS attorneys represented LAPPL in this action.  Levine Decl., ¶12.  Levine spent 249.1 hours at a rate of $801 for a total of $199,529.10.  Levine Decl., ¶12. 

Brian Ross, Esq. (“Ross”), an RLS senior associate admitted in 2010, spent 32.5 hours at a rate of $632 for a total of $20,540.  Levine Decl., ¶12. 

Jacob Kalinski, Esq. (“Kalinski”), an RLS partner admitted in 2004, spent 1.7 hours at a rate of $801, for a total of $1,361.70.  Levine Decl., ¶12. 

Damian Stafford (“Stafford”), an RLS paralegal, spent 5.6 hours at a rate of $276 for a total of $1,5545.60.  Levine Decl., ¶12.

These rates are consistent with the average range of non-contingent market rates charged by Los Angeles attorneys of reasonably comparable experience, skill, and expertise.  Levine Decl., ¶13.  The Real Rate Report by Wolters Kluwer analyzes data from firms, including by practice area, sub-practice area, and metropolitan areas.  Levine Decl., ¶15, Ex. A.  RLS has billed the respective mean rates for partners, associates, and paralegals according to The Real Rate Report.  Levine Decl., ¶15.

Levine directed the RLS billing office to provide detailed records of all billing entries by all RLS attorneys who provided services in this matter.  Levine Decl., ¶16, Ex. B.  Through March 5, 2025, the total hours are 288.9 and the total fees are $222,976.40.  Levine Decl., ¶16.  See also Levine Decl., ¶¶ 20-25, Exs. C-I.

Levine estimates that he will incur an additional 25 hours after March 5, 2025 for finalizing the moving papers, analysis of any opposition, drafting a reply, appearing at court for the hearing, and travel.  Levine Decl., ¶18.  Levine suggests the lodestar amount should be $243,001.40.  Levine Decl., ¶18.

Levine requests a lodestar multiplier of 1.5 in light of the difficulty of the issues, professional skills, the importance of the statutory rights and legislative objective promoted by this litigation.  Levine Decl., ¶19.  With a 1.5 multiplier, the award would be $364,502.10.  Levine Decl., ¶19.

Elizabeth Gibbons, Esq. (“Gibbons”) has been a California licensed attorney since 1990.  Gibbons Decl., ¶2.  Gibbons has principally represented public employees, particularly public safety personnel in Los Angeles County and surrounding jurisdictions, in wage and hour and working condition matters.  Gibbons Decl., ¶3.  Gibbons has represented the Association for Los Angeles Deputy Sheriffs, with approximately 8,000 members.  Gibbons Decl., ¶3.

Gibbons is familiar with RLS and its predecessor Silver Hadden Silver & Levine, which emphasizes and emphasized representing public employees and in particular public safety personnel.  Gibbons Decl., ¶5.  Gibbons is also familiar with Levine, Kalinski, and Ross.  Gibbons Decl., ¶5.

Gibbons has reviewed the 2024 Real Rate Report published by Wolter Kluwer regarding the 2024 hourly rate for labor and employment attorneys in Los Angeles.  Gibbons Decl., ¶6, Ex. A.  Partners Levine’s and Kalinski’s requested rate of $801 per hour is reasonable, as is Senior Associate Ross’s requested hourly rate of $632 per hour, in relation to their skill and experience.  Gibbons Decl., ¶7.

Gibbons has reviewed the billing records and information from RLS and believes the time incurred appears appropriate for this litigation.  Gibbons Decl., ¶8.

2. The City’s Evidence

LAPPL’s contentions in the Petition concerned back wages due but not yet paid in the amount of nearly $27,000,000 and also alleged that the technical correction to the pensionability of the retroactive pay increase may result in underpayment.  Opp. Levine Decl.,[2] ¶2.  Within 48 days of the filing, the City paid the back wages.  Opp. Levine Decl., ¶2.  Subsequently, LAPPL focused exclusively on a breach of contract theory to recover pre-judgment interest.  Opp. Levine Decl., ¶2.

The MOU does not contain a right to recover attorney fees for the prevailing party.  Opp. Levine Decl., ¶3; Levine Decl., Ex. C.

LAPPL did not cause the payment of the retroactive wages to be made faster by virtue of the lawsuit because the City never indicated it would not comply, and also stated that it would pay as soon as the extensive nearly 8,900 calculations were complete.  Opp. Levine Decl., ¶4.

Each party took one deposition after the court denied the City’s motion for judgment.  Opp. Levine Decl., ¶6.  LAPPL added new evidentiary citations and contract arguments, but otherwise reused its motion for judgment brief at trial.  Opp. Levine Decl., ¶6.  RLS billed 43.4 hours for preparing the opposition to City’s motion for judgment, four hours for the reply, and 32.1 hours on legal research for the LAPPL’s opening trial brief, which was largely on the same issues.  Opp. Levine Decl., ¶6. 

RSL also billed for attorneys who were present at hearings and contributed nothing, including Ross who billed 2.5 hours for a court call without any participation.  Opp. Levine Decl., ¶7.  The City also objects to time entries with insufficient explanation, such as “Confer with Attorney Brian [redacted]”, which do not enable the City to determine their relevance.  Opp. Levine Decl., ¶8.  The City objects to Damian Stafford’s time entries because he is referred to as an employee of the union, not the firm.  Opp. Levine Decl., ¶9; Levine Decl., Ex. B.

The City asserts that the court should not apply a lodestar multiplier because the case was not novel or complex.  Opp. Levine Decl., ¶10.  There were few witnesses, simple arguments, and the court found the law and facts both relatively straightforward.  Opp. Levine Decl., ¶10.  The case was mostly decided at the motion for judgment.  Opp. Levine Decl., ¶10.

D. Analysis

Petitioner LAPPL moves for an award of attorneys’ fees consisting of a $243,001.40 lodestar and a 1.5 multiplier, for a total of $364,502.10.

To qualify for an award of fees under section 1021.5, the moving party must be successful and must establish that: (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.  Each of these three elements must be proved.  Serrano v. Stefan Merli Plastering Co., Inc., (2010) 184 Cal.App.4th 178, 184-185.

1. Successful Party

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., (2004) 34 Cal.4th 553, 565.  The party seeking attorney fees need not prevail on all its claims 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. 

LAPPL argues that it is clearly the successful/prevailing party because the Petition specifically sought pre-judgment interest on all increases of wages, new or increased specialty compensation, and overtime, inclusive of the increased base rate of pay, retroactive from July 16, 2023, as required under the MOU.  Levine Decl., ¶20.  As a consequence of LAPPL’s prosecution of this litigation, the court entered judgment on January 21, 2025 against the City and its officials, ordering the City, inter alia, to: “[p]ay prejudgment interest at the statutory rate, for the period of August 23, 2023 to December 27, 2023, to LAPPL’s represented employees who received retroactive compensation which was to be effective July 16, 2023 under the 2023-2027 Memorandum of Understanding between the City and LAPPL.”  Levine Decl., ¶23, Ex F.  Mot. at 10-11.

To the extent that the Petition also sought to compel the City’s disbursement of the contractually promised wage and special compensation increases, LAPPL also was the successful party because the City ultimately paid the MOU’s compensation increases in the sum of $25,798,226.56 on December 27, 2023, which was a just a few weeks after completion of the filing and service of the lawsuit.  Mot. at 11.

The City argues that LAPPL has not proved that the action was necessary to compel payment of the money due under the MOU, which is a contract.  Courts should exercise caution against awarding attorney fees under the catalyst theory where the defendant’s voluntary behavior changes raise the question whether the plaintiff’s legal work actually caused the result.  Graham v. DaimlerChrysler Corp., (2004) 34 Cal.4th 553.  If the plaintiff’s legal work did not cause the behavior change, the plaintiff should not be rewarded” by receiving attorney fees.  The City argues that it always intended to pay the compensation increase and did in fact pay at the outset of the action.  Opp. at 5.

The court agrees that the City always intended to pay, and did so three weeks after the Petition was filed, on December 27, 2023.  The court need not decide whether the catalyst theory applies to this payment because the case went to trial on the issue of pre-judgment interest, where LAPPL prevailed.  LAPPL is a successful party for purposes of section 1021.5.

2. Important Public Interest

Section 1021.5 does not provide a “concrete standard or test against which a court may determine whether the right vindicated in a particular case is sufficiently 'important' to justify a private attorney general fee award.”  Woodland Hills v. City Council of Los Angeles, (“Woodland Hills”) (1978) 23 Cal.3d 917, 935.  The right may be either constitutional or statutory and is not limited to any particular field, but has been applied in a wide variety of contexts.  Id. at 936.  Courts must exercise their discretion in determining the “societal importance” or “strength” of a right for purposes of section 1021.5.  Ibid.

LAPPL argues that public employees' rights under the MMBA are important rights affecting the public interest within the meaning of the attorney fees award in section 1021.5.  Indio Police Command Unit Assn. v. City of Indio, (“Indio”) (2014) 230 Cal App 4th 521, 542 (citing People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach, (“Seal Beach”) (1984) 36 Cal.3d 591, 594 and Los Angeles Police Protective League v. City of Los Angeles, (“LAPPL”) (1986) 188 Cal.App.3d 1, 12–13)).  Mot. at 12.

The public has a general interest in ensuring that LAPPL’s members receive just compensation, including pre-judgment interest, but there is no public interest within the meaning of section 1021.5 in a public union’s enforcement of a contract, which is what the MOU is.  The cases cited by LAPPL are distinguishable because they concern statutory procedural police officer protections and labor meet-and-confer requirements, not the payment of money pursuant to contract.  See Indio, supra, 230 Cal.App.4^th at 542 (meet and confer requirement under MMBA was important public interest); Seal Beach, supra, 36 Cal.3d at 594; LAPPL, supra, 188 Cal.App.3d at 5, 12–13 (meet and confer requirement under MMBA and citing case law finding important right for enforcement of statutory procedural or constitutional rights).  LAPPL cites no authority that enforcement of an MOU compensation provision, or pre-judgment interest associated with that compensation, is an important right affecting the public interest.

LAPPL has not shown that it enforced an important right affecting the public interest.

3. Significant Benefit on a Large Class of Persons

“[T]he ‘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, supra, 23 Cal.3d at 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 939-40.

LAPPL argues that it represents approximately 9,000 police officers, peace detectives, sergeants, and lieutenants employed by the City for all matters concerning wages, hours and working conditions.  Levine Decl., ¶26.  This action has resulted in a significant pecuniary benefit to a large class of persons who were awarded pre-judgment interest on the $25,798,226.56 in MOU required compensation increases paid on December 27, 2023.  Levine Decl. ¶25.  Mot. at 11-12.

The City does not directly address this issue.  There is no doubt that LAPPL secured a financial benefit totaling “hundreds of thousands of dollars” of pre-judgment interest (see Opp. at 6) benefiting a large class of persons -- namely, LAPPL’s approximately 9000 members.

4. Necessity and Burden of Private Enforcement

“The necessity of private enforcement looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.”  In re Conservatorship of Whitley, (“Whitley”) (2010) 50 Cal.4th 1206, 1214-15 (internal quotations omitted).  In determining the financial burden on the petitioner, courts have focused not only on the costs of the litigation but also any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield.”  Whitley, supra, 50 Cal.4th at 1215.  This prong evaluates “incentives rather than outcomes.”  See id. at 1220.  The party seeking attorneys’ 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. 

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., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348.  The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations.  Id.; see Woodland Hills, supra, 23 Cal.3d at 941.  The financial burden of private enforcement is met when the cost of the claimant’s legal victory transcends his personal financial interest.  Woodland Hills, supra, 23 Cal.3d at 941.  Non-financial motivations are irrelevant.  Whitley, supra, 50 Cal.4^th at 1216-17.  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, (2000) 79 Cal.App.4th 505, 515.

The City does not dispute the necessity of private enforcement and the court agrees that it was necessary for LAPPL to file suit.  This leaves the issue of financial burden.

LAPPL argues an award of attorney fees under section 1021.5 is appropriate even where a labor union successfully litigates against public agencies on behalf of adversely affected individuals who will derive a financial benefit from such litigation when the financial burden involved is probably too great for any individual claimant to carry.  American Federation of Labor v. Employment Dev. Dept., (“American Federation”) (1979) 88 Cal. App. 3d 811, 815, 822 (affirming award of section 1021.5 attorney fees to labor unions for due process challenge to Employment Development Department (“EDD”) practice of suspending unemployment insurance benefits to claim recipients appealing unfavorable EDD decisions).  The financial condition of a labor union to pay the costs of litigation on behalf of individual claimants is irrelevant because section 1021.l5 does not make the financial state of the prevailing party a criterion for attorney fees.  Id. at 822.  Mot. at 13.

The court believes that LAPPL has focused on the wrong financial burden.   As stated, the party seeking attorney fees bears the burden of establishing that its litigation costs transcend its personal financial interests.  Woodland Hills, supra, 23 Cal.3d at 941.  Non-financial motivations are irrelevant.  Whitley, supra, 50 Cal.4^th at 1216-17. 

An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.  Board of Teamsters & Auto Truck Drivers v. Unemployment Ins. Appeals Bd., (1987) 190 Cal.App.3d 1515, 1521-24. 

A public union has standing to sue in its own name to enforce the employment rights of its members.  California School Employees Assn. v. Wilits Unified School District, (1966) 243 Cal.App.2d 776, 780.  It is well-established that a plaintiff association, as the recognized representative of city employees, may sue in its own name to enforce a MOU.   Glendale City Employees’ Ass’n. v. Glendale, (1975) 15 Cal 3d 328, 341 (citing Professional Fire Fighters, Inc. v. City of Los Angeles, (1963) 60 Cal.2d 276, 283-84).  In doing so, the union is suing “as an entity for the wrong done to itself; such an action is not a class action but a direct one by the union.”  Id. (emphasis added).  A union can file a mandamus action to compel an agency to pay benefits as a ministerial act fixed by the MOU.  Id. at 344.

In the instant case, LAPPL sued to enforce the ministerial rights of its members to the compensation and pre-judgment interest that LAPPL had negotiated in the MOU.  In doing so, LAPPL is enforcing its own contract to the benefit of its members.  The City’s failure to adhere to the MOU wronged LAPPL.   That is why it was permitted to sue in its own name and not as a representative class action.  See Glendale, supra, 15 Cal.3d at 341. 

Consequently, the financial interest at issue in the mandamus claim are not those of LAPPL’s members, but of LAPPL itself.  LAPPL fails to address its stake in this case, which is unlikely to be the same as the interest of any party seeking to enforce a contract benefitting a third party.  As such, LAPPL’s burden of enforcement may not exceed its own financial stake in the case.

This conclusion is not inconsistent with American Federation, which discussed the financial burden of individual unemployment benefit claimants in awarding attorney fees to the unions.  88 Cal.App.3d at 822.  First, the discussion of the section 1021.5 issues in American Federation is only summary in nature.  Second, the case did not address the financial burden on the unions versus the benefit received; it only ruled that the overall financial condition of the moving party is not a criterion for section 1021.5 fees.  Id.  Third, in American Federation the financial burden of enforcing the due process rights of the unions’ members exceeded any benefit to the unions.  The case was a due process challenge to the EDD’s practice of suspending unemployment benefits to union members denied eligibility for those benefits.  The award of such benefits was statutory in nature, and the unions had no direct interest in the EDD benefits procedure.  In contrast, LAPPL has a direct interest in the enforcement of the MOU it negotiated.

LAPPL has not shown that the financial burden of private enforcement warrants payment of its attorney fees.

5. Special Circumstance

The City argues that, even if the criteria are met, however, fees may be denied “if special circumstances render the award unjust,” which remains in the sound discretion of the trial court. See Bartling v. Glendale Adventist Med. Ctr., (1986) 184 Cal.App.3d 97, 104 (remanding for consideration of claim that fees would be unjust because defendant hospital and doctors were diligently seeking to preserve life); see also Vasquez v. State of California, (2008) 45 Cal.4th 243 (courts are vested with considerable equitable discretion regarding attorney fees awards under section 1021.5). The award is clearly unjust and a further expenditure of taxpayer dollars on top of a generous raise that was negotiated.  The police officers should pay their lawyers from the common fund recovery rather than from additional City funds.  Opp. at 6.

The court does not view the circumstance as special, but rather as LAPPL enforcing a contract which it negotiated to benefit its members.

E. Conclusion

LAPPL has not shown that it meets all the section 1021.5 elements.  Therefore, the motion is denied.  If the court were to award attorney fees in this case, then a fee award would be required every time a public union prevails on a breach of contract claim pursuant to a MOU where employee benefits are involved.  That is not the purpose of section 1021.5.