Opinion
WALLIN, J. Eugene R. Atherton appeals from a superior court order denying his motion for attorneys’ fees under section 1021.5 of the Code of Civil Procedure.1
In August of 1981, the Board of Supervisors of the County of Orange (County) approved an amendment to the Orange County general plan which, among other things, added certain corridors as proposed facilities to the transportation element of the plan. Atherton, a medical doctor, filed a pro se petition for writ of mandate in superior court challenging the amendment based on alleged noncompliance with the California Environmental Quality Act. His petition was denied. On appeal we affirmed the judgment insofar as it denied Atherton’s request to set aside certification of the environmental impact report, but reversed with respect to the findings made in connection with that report. (Atherton v. Board of Supervisors (1983) 146 Cal.App.3d 346 [194 Cal.Rptr. 203].)
Shortly thereafter, Atherton filed a motion in superior court requesting attorneys’ fees under section 1021.5 for successfully prosecuting the above mentioned litigation. His motion was denied and this appeal follows.
I
Atherton contends that under the “private attorney general” doctrine codified in section 1021.5, he is entitled to an award of attorneys’ fees because he undertook the underlying litigation in an effort to vindicate important public interests. Section 1021.5 provides in part: “Upon motion, a court may award attorneys’ fees to a successful party ... in any action which has resulted in the enforcement of an important right affecting the public interest . . . .” The court below viewed a license to practice law as a prerequisite to the granting of attorneys’ fees under section 1021.5. Because Atherton was unable to meet this threshold requirement, his request was denied without a determination as to whether the other requirements of section 1021.5 had been met. Similarly, we need only address this issue as we find it dispositive of the case before us.
[436]An argument similar to Atherton’s was rejected in In re Dormio (1981) 127 Cal.App.3d 788 [179 Cal.Rptr. 669]. There Dormio, a jail inmate, filed a pro se petition on behalf of himself and other inmates in superior court seeking improvements in the telephone accommodations afforded inmates. After extended hearings, some of the relief Dormio sought was granted. Thereafter, he filed a motion requesting attorneys’ fees as a “private attorney general” under section 1021.5 and section 1988 of 42 United States Code.2 After an extensive review of the purpose of attorneys’ fees statutes generally and section 1021.5 in particular, the court stated, “It is clear that the statutes with which we are here concerned allow, in proper cases, orders for payment of reasonable attorney fees to the prevailing or successful party of a lawsuit. But just as clear is the implication that such party will thereby be reimbursed for attorney fees paid, or relieved of his personal obligation to pay them, or in any event that the attorney not go unpaid for the services resulting in public benefit . . . .” (Id., at p. 792.)
Similar results have been reached under section 1988. “ ‘Plaintiff appeared in pro. per. It is well settled that no attorney’s fee is allowable in such circumstances.’ (Bone v. Hibernia Bank (N.D.Cal. 1973) 354 F.Supp. 310, 311); ‘In this case, . . . [appellant, a law student], probably due to his new-found expertise, chose to represent himself. However, he was not an attorney and could not provide attorney services. Had Congress wished to compensate non-attorneys for “services” rendered on their own behalf . . . it certainly could have done so.’ (Hannon v. Security Nat. Bank (9th Cir. 1976) 537 F.2d 327, 328-329; fn. omitted) .... ‘The legislative history of Section 1988 reveals that its purpose is not to compensate pro se litigants, but to provide counsel fees to prevailing parties in order to give private citizens a meaningful opportunity to vindicate their rights .... [Section 1988] presupposes a relationship of attorney and client . . . .’ (Davis v. Paratt (8th Cir. 1979) 608 F.2d 717, 718.)” {In re Dormio, supra, 127 Cal.App.3d at pp. 793-794.)
As observed by the court in Pitts v. Vaughn (3d Cir. 1982) 679 F.2d 311, the very use of the term “ ‘attorney fees’ presupposes that the prevailing party has been represented by an attorney.” (Id. at p. 312.) After examining various policy reasons for granting fee awards to litigants represented by counsel, but denying them to pro se litigants, the Pitts court concluded the congressional purpose behind allowing attorneys’ fees “was not to provide an additional reward to pro se litigants but to enable litigants to obtain professional legal representation.” (Id., at p. 313.)
[437]In our view, the decision to limit an award of attorneys’ fees to individuals licensed to practice law is consistent with Business and Professions Code sections 6125 and 6126, which restrict the practice of law to active members of the State Bar and make the unauthorized practice of law a misdemeanor. Awarding Atherton attorneys’ fees would grant him the status without the license.
Although our dissenting colleague, with a paucity of authority on his side, characterizes this licensing requirement as “irrelevant,” his view has enjoyed little favor. Finding no support in California law, the dissent relies on two federal cases involving prisoners who filed pro se petitions for attorneys’ fees under the Freedom of Information Act (5 U.S.C. § 552.) (Cox v. United States Dept, of Justice (D.C.Cir. 1979) 601 F.2d 1; Marschner v. Dept, of State (D.Conn. 1979) 470 F.Supp. 196.) Disapproving the reasoning of these cases, the court in Barrett v. United States Customs Service (E.D.La. 1980) 482 F.Supp. 779, emphasized, “The statute provides for an award of an attorney fee. There is no attorney involved in this case. Nor is there a fee involved. . . . [H]ad Congress wished to compensate non-attorneys for the time spent on their own behalf in litigating their claims, it could have and would have done so explicitly. Congress certainly knows how to encourage litigation, pro se and otherwise. Courts should not do so where Congress has not. To read the statute as [our dissenting colleague] urges is to ignore the statute’s clear language.” (Id., at p. 780.)
Moreover, assuming arguendo that the dissent is correct in predicting that decisions such as ours and those cited herein provide attorneys with an incentive and nonattorneys with a disincentive to prosecute public interest lawsuits, so be it! We find nothing sinister in such an outcome. Here, Atherton’s claim to attorneys’ fees arises solely from the action to enforce “an important right affecting the public interest.” (§ 1021.5.) Hence, Atherton has not “only represented himself” as the dissent suggests. For if he had, he would have no statutory basis to claim an entitlement to attorneys’ fees. In order to invoke section 1021.5, Atherton is, of necessity, asserting the rights of the general public. As far as we know, a license is still required to represent anyone other than oneself in a court of law. And until the Legislature deems a legal education and/or license to practice law “needless,” we find nothing disturbing in creating a disincentive to those tempted to so practice without a license.
II
Finally, the cases cited by Atherton do not advance his cause. Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891 [160 Cal.Rptr. 124, 603 P.2d 41], involved an award of attorneys’ fees [438]to a nonattorney representative of a consumer group. The Supreme Court clearly stated it was dealing with the exception, rather than the rule: “Non-attorneys are generally not permitted to participate in judicial proceedings; rather, with a few limited exceptions, a person must be licensed as an attorney before he can appear in court. [Fn. omitted.] In Public Utilities Commission proceedings, by contrast, the participants are not required to be licensed attorneys, and it is common for such persons to make appearances on behalf of others. The commission’s own rules explicitly acknowledge this practice.” (Id., at pp. 913-914.)
In Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184 [198 Cal.Rptr. 447], plaintiff, an attorney, brought an inverse condemnation action on behalf of himself and his wife. His request for attorneys’ fees was denied on the basis that no costs were “actually incurred” since he was acting on his own behalf. {Id., at p. 1188.) The Court of Appeal found such reasoning illogical and was quick to point out: “. . . [the] commitment of time and skills—a lawyer’s only ‘stock-in-trade’—[have] a substantial economical value which realistically could have been available for other gainful application.” (Id., at p. 1189.)
Here, Atherton’s “stock-in-trade” is more apropos to the medical, rather than the legal, profession. While we do not impugn his right to advance these noble causes, unless and until Dr. Atherton becomes a member of the bar, his time and energy are not compensable in the legal marketplace.
Judgment is affirmed. Respondent to recover costs on appeal.
Trotter, P. J., concurred.
References hereinafter are to the Code of Civil Procedure unless otherwise specified.
42 United States Code section 1988 provides in part: “In any action or proceeding to enforce a provision [of the Civil Rights Act], the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.”