[471]JOHNSON, J. —I respectfully dissent.
I, too, would reverse the trial court’s judgment but for different reasons. Those different reasons would require a remand to the trial court for the purpose of applying the correct standards in fixing the amount of the attorney fee award, a process which inevitably would result in a higher award in this case.
The threshold issue, however, is whether respondent was entitled to an attorney fee award of any kind. The majority says no. I reach the opposite conclusion.
I. As the Trial Court Ruled, the Child Care Home Was Entitled to an Attorney Fee Award Under Code of Civil Procedure Section 1021.5.1
The majority concedes the trial court “reasonably could have determined that the [child care home’s] action involved an important right affecting the public interest.” (Maj. opn., ante, p. 468.) But then it concludes the trial court erred in finding this action involving an important right affecting the public interest conferred a significant benefit, pecuniary or nonpecuniary, on the general public or a large class of persons.
I begin by reiterating the standard on review the majority opinion itself endorses: “The trial court has discretion to determine whether an award of section 1021.5 attorney fees is appropriate. [Citation.] A reversal of the trial court’s determination will lie only if the resultant injury is sufficiently grave to amount to a manifest miscarriage of justice, and no reasonable basis for the action is shown.” (Weissman v. Los Angeles County Employees Retirement Assn. (1989) 211 Cal.App.3d 40, 46-47 [259 Cal.Rptr. 124]; internal quotation marks omitted.)
What the majority opinion says about measuring the significance of a benefit also bears repeating: “The significance of the benefit must be determined from a realistic assessment of all the pertinent circumstances.” (California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 745 [246 Cal.Rptr. 285], internal quotation marks omitted.) A tangible asset or a concrete gain does not have to be present to satisfy the requirement that the action confer a significant benefit; rather, the effectuation of a fundamental constitutional or statutory policy may be present. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 112 [212 Cal.Rptr. 485].) [472]In the instant case, the trial court found that all of the residents of Burbank seeking child care benefited from the action. It is also reasonable to infer that providers of home child care in Burbank, like the Angelhearts, also benefited, because the action caused Burbank to adopt new zoning ordinances which complied with state law. Thus, the impact of the Angelhearts’ action on others similarly situated is a continuing one and establishes the rights of all large family day-care home providers in Burbank. (166 Cal.App.3d 106.)
“In Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, 939-941, the Supreme Court recognized that forcing a city council to comply with the Subdivision Map Act by making proper findings could be a ‘significant benefit’ and presented a factual issue to the trial court.” (Kern River Public Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 1227 [217 Cal.Rptr. 125]; also finding a significant benefit was conferred by litigation forcing local governments to comply with state laws are San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754 [202 Cal.Rptr. 423], and State of California v. County of Santa Clara (1983) 142 Cal.App.3d 608, 614-615 [191 Cal.Rptr. 204].)
The instant litigation, however, accomplished more than “forcing a city council to comply with state laws” in this specific case. Beyond that, it forced Burbank to reform its own ordinances. Thus, the plaintiffs brought about a change in the law which will benefit directly Burbank’s other existing and potential home child care providers, the city’s children, parents, employers, and other citizens for the foreseeable future. Accordingly, the Angelheart litigation presents an even more compelling case of “significant public benefit” than those several cases which have approved attorney fee awards where the litigation only reminded local authorities to obey an existing statutory provision. (See, e.g., the cases cited in the preceding paragraph.)
The facts that only two persons applied for a large family day-care home permit in the last two years under the former regulations and that three persons applied for such permit during the first seven months after enactment of the new ordinance does not support the majority’s position. The trial court reasonably could have inferred from the evidence provided by Burbank that the new ordinance encouraged more people to operate large family day-care homes in Burbank than under the former regulations. Even under the figures the city supplied, an average of only one application a year was submitted under the former regulations, while an average of five or six per year could reasonably be expected to be submitted under the new ordinance. This represents a substantial increase in the availability of large family [473]day-care homes in Burbank and over time probably will benefit hundreds of Burbank children, their parents, and their parents’ employers.
Even in the absence of specific evidence about how many Burbank citizens had applied to operate “large” family day-care homes as of the time of the hearing on attorney fees, it is feasible for courts to estimate whether there will be enough in the future so the Angelhearts’ legal action conferred “significant benefits.” After all, only seven months had elapsed after the ordinance changed permitting the creation of new “large” home child care facilities or the expansion of existing “small” facilities. It requires time for word to spread about the legal feasibility of this new opportunity. Moreover, for those who hear about this possibility, it takes time to make arrangements to enter a new business or expand an old one. In this, as in many other cases, it would place an intolerable burden on plaintiffs to require them to “prove” how many people will take advantage of the legal change they have brought about at a time shortly after the change has occurred. Yet the majority insists on just that kind of proof in this case, complaining of the lack of specific evidence about known beneficiaries at the time of the hearing.
For obvious reasons, this is not what the law requires. Instead, the courts are to make a “realistic assessment of all the pertinent circumstances” (California Common Cause v. Duffy, supra, 200 Cal.App.3d 730, 745, italics added). Since most of the beneficial actions produced by a legal change will occur in the future—often far in the future—courts often must base their “assessment” of “significant benefits” on the basis of predictions and estimates. (Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1 [232 Cal.Rptr. 697].) In the instant case, it was entirely reasonable for the trial court to predict there would be enough “large” home child care facilities created in Burbank in future years to estimate plaintiffs’ legal action eventually will confer “significant benefits” on a large number of Burbank citizens—children, parents, employers, and other citizens. In a city the size of Burbank, it is far more reasonable to predict many people will decide to start new “large” home child care facilities or expand “small” ones than to assume the Angelhearts are the only ones or that there axe few others who will follow their lead. If the Legislature felt there were only few who could be encouraged to operate “large” home child care facilities, it seems doubtful it would have bothered to pass the legislation freeing these facilities of local land use restrictions. I suspect the Legislature was right about California in general and the trial court was right about Burbank.
Beyond the benefits the trial court expressly found this action to have conferred on residents of Burbank, on appeal we cannot ignore the [474]beneficiaries in other California cities. “The [significant benefit] element of . . . section 1021.5 . . . is often decided as well—if not better—by an appellate court as opposed to a trial court. How many people will receive what kind of benefit, and how much, as a result of a given legal action is usually more of a value judgment than an issue of fact.” (Los Angeles Police Protective League v. City of Los Angeles, supra, 188 Cal.App.3d 1, 9.)
Burbank’s attempt to further resist complying with state law by taking an appeal ended with a dismissal. Thus, the city avoided establishing an appellate precedent which undoubtedly would have been unfavorable to its position and would have directly impacted on all cities in this state. But the fact this case was resolved short of an appellate decision does not mean the result is without practical effect elsewhere.
One would have to be blind to the practicalities of the real world to assume word of this court order would not reach many of the city governments in California, especially the scores of municipalities which share the Los Angeles basin with Burbank. It is probable none of these cities had yet had time to react to this news by changing their own land use regulations as of the date of the hearing on the request for attorney fees. So the plaintiff would have been hard pressed to demonstrate at that hearing there had been a ripple effect beyond the borders of Burbank. Nevertheless, any “realistic assessment of all the pertinent circumstances” (California Common Cause v. Duffy, supra, 200 Cal.App.3d 730, 745, italics added) cannot ignore the probability the Angelhearts’ action will encourage voluntary legal change elsewhere which will confer benefits on home child care providers, parents, children, employers, and other citizens in cities throughout the Los Angeles basin, and beyond.
It cannot be disputed many local jurisdictions had land-use restrictions which prevented large home child care facilities from operating. Indeed, this is the very reason state lawmakers found it necessary to enact legislation preempting those restrictions. The Angelhearts’ litigation serves as an example to these jurisdictions that they must change their land use laws to make them coincide with the new state law in this field.
If other cities do not change their land use regulations voluntarily, moreover, the plaintiffs’ pioneering legal action has made it much easier for similarly situated home child care providers to compel change in their counties and municipalities. The pleadings, briefs, and all the rest the plaintiffs’ lawyers drafted are part of the public record and available to lawyers representing other prospective home child care providers hoping to expand in other cities whose current land use restrictions are inconsistent with state law. So are the court orders compelling Burbank to amend its land [475]use restrictions which lawyers in subsequent lawsuits can bring to the attention of the trial courts in their cases. The time and money plaintiffs’ lawyers were required to invest in bringing the first, path-breaking lawsuit on this issue will redound to the benefit of others who need to follow down that same path in order to open or expand their home health care facilities in jurisdictions beyond Burbank.
The majority characterizes what I consider a “realistic assessment” of “all the pertinent circumstances” as “speculative assertions . . . that other cities are violating state law and that this case would have ramifications for other cities and family day care providers . . . premised entirely on speculative matters that appear nowhere in this record.
As mentioned earlier in this dissent, the court’s role here is different from the traditional one of reconstructing the facts of what actually happened sometime in the past. When performing the latter more typical function, judges or juries are “fact finders” and are prohibited from “speculating” in the sense of estimating or inferring what might have happened from anything other than hard evidence that is placed in the record. But occasionally the law asks judges to do something quite different—to forecast the future. Section 1021.5 represents one of those occasions—when it requires judges to assess the quantity and quality of “public benefits” a given legal action is likely to generate. Rarely can that assessment be made without peering into the future and predicting what the facts will be as contrasted with finding what they have been.
Of necessity, this sort of assessment brings into play a broader range of information than the already existing facts the parties might produce in the form of evidence. The judge, as predictor, must apply some common sense knowledge about the behavior of individuals and institutions—how they have behaved in the past and how they are likely to behave in the future.
It does not require a great deal of specialized knowledge to forecast many local jurisdictions will turn out to have restrictive land-use regulations like Burbank’s (otherwise why did the Legislature bother passing the law it did). Nor, is it at all “speculative” to predict many of those local jurisdictions will, like Burbank, resist complying with the new state law. Unless we indulge in the unlikely assumption Burbank’s government is uniquely obstinate, the vigor of that city’s opposition in this lawsuit would lead one to forecast there were a number of other jurisdictions which had not spontaneously reformed their land use laws to comply with the new state law prior to the Angelheart decision. For these cities and counties, Angelheart could either be a beacon or a whip. Either way, the Angelhearts’ lawsuit would deserve considerable credit for the benefits flowing when those jurisdictions eliminated their [476]restrictions against large home child care centers. Furthermore, forjudges, as former members of the legal profession, it is reasonable not “speculative,” to forecast lawyers will learn of and use the Angelheart decision, its pleadings and briefs, to the fullest in persuading or compelling these other cities and counties to comply with the state law.
Understandably, there was no hard evidence in the record of a hearing which took place only four months after the Angelheart litigation succeeded as to that litigation’s future impact in persuading or compelling other local jurisdictions to change their land use regulations. There simply was not time for any of these events to have occurred. Any evidence the Angelhearts attempted to introduce at that hearing would have been “speculative” (at least as the majority of this court defines “speculative”) and dismissible as such.
Ironically and sadly, however, my colleagues on this court, after dismissing my “realistic assessment” as “speculative assertions” have closed their eyes and ears to evidence demonstrating this case not only “would have” but has had profound “ramifications for other cities and family day care providers.” Now that enough time has passed for what seemed a reasonable indeed nearly inevitable prediction to be proved or disproved, that prediction has been borne out. But after dismissing the prediction as speculation the majority insists on ignoring reality as well.
The Angelhearts have submitted a motion to take additional evidence under section 9092 of certain declarations and to take judicial notice of changed ordinances. These declarations document—as was predictable—that in the years since it was issued the trial court decision in Angelheart has been used by lawyers throughout the state to persuade or compel local governments to amend their land use laws to allow large home child care facilities.3 [477]Furthermore, those same declarations document—as was predictable—that lawyers have used the pleadings, legal theories, briefs, etc. prepared in the Angelhearts’ litigation as models to follow in preparing their own lawsuits to compel local governments to change their land use laws.4 These lawyers [478]attest the Angelheart decision and the Angelhearts’ lawsuit have been instrumental in efforts, many successful already, to amend local land use laws the length and breadth of the State of California, including the counties of Los Angeles, Plumas, and Amador, the cities of Santa Monica, Pasadena, Hawthorne, Redondo Beach, West Covina, Santa Fe Springs, Corona, Fountain Valley, Stockton, Petaluma, Sunnyvale, Campbell, Fresno, San Leandro, Bakersfield, Orland, Riverside, Santa Barbara, Santa Maria, Santa Rosa, Yuba City, Westminster and Orang5
Notably, the offered declarations also demonstrate why it was impracticable for the Angelhearts’ attorneys to have “proved” these “significant public benefits” at the time of the hearing on the attorney fee award. The “Zoning Project” in Los Angeles County did not even come into existence in Los Angeles County until well into 1990 and as of the present time is less than a third of the way through its review of local ordinances in this county. Likewise, the other presentations before city councils, negotiations, lawsuits and related activities capitalizing on Angelheart started after the attorney fee award hearing. All of these events were reasonably predictable but not “provable” as of the time of the hearing. Now, of course, they are not only predictable but proved.
The majority of this court, however, over my dissent has denied the section 909 motion to accept these declarations as evidence or as justification for taking additional evidence in any form on the question of whether the Angelhearts’ lawsuit and decision conferred a “significant public benefit.6 Accordingly, these declarations are not admitted evidence in this appeal. Nonetheless, they exist in the nature of “offers of proof’ that a “realistic assessment of all the pertinent circumstances” as of the time of the hearing in the trial court and as of the time the appeal was heard in this court should have included the reasonably foreseeable impact the Angelheart case would [479]have in jurisdictions outside Burbank. It was predictable this litigation would confer “significant public benefits” in Los Angeles County and elsewhere throughout the state. The offered declarations merely confirm that it has.
If the majority is concerned these declarations do not capture the full reality I would happily join them in remanding the case to the trial court—or in appointing the trial court as a referee—to consider this and other evidence on the question of whether the Angelheart decision and the Angelhearts’ lawsuit indeed has conferred “significant public benefits” beyond the boundaries of Burbank. On the other hand, I am unwilling to join my colleagues in denying reality.
To sum up, I conclude the trial court’s finding of a “significant public benefit” should be upheld. Even if we focus solely on benefits to the citizens of Burbank the amount of benefit is sufficiently significant to satisfy the standards of section 1021.5. And if we realistically assess all the pertinent circumstances, as prior opinions instruct, we discover this case in all probability has conferred and will continue to confer benefits on citizens in many other cities, large and small, throughout the State of California. With these further benefits factored in, it is undeniable this plaintiffs’ legal action fulfilled the “significant public benefit” requirement. Accordingly, in my opinion, there is no question but that this court should have affirmed an attorney fee award to the plaintiff under the terms of section 1021.5.7
II. The Trial Court Erred in Calculating the Amount of Attorney Fees Awarded.
Once it has been established the plaintiffs’ litigation satisfied all the applicable requirements of section 1021.5 and the party is entitled to attorney, fees the remaining question is whether the trial court’s calculation of attorney fees was correct. In the instant case it was not.
[480]The amount of the award is to be determined according to the guidelines set forth by the California Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25, 48-49 [141 Cal.Rptr. 315, 569 P.2d 1303]. (Serrano III) Serrano III requires the trial court to first determine a “touchstone” or “lodestar” figure based on a Ucareful compilation of the time spent and reasonable hourly compensation for each attorney . . . involved in the presentation of the case.” (Id. at p. 48, italics added; Serrano v. Unruh (1982) 32 Cal.3d 621, 625 [186 Cal.Rptr. 754, 652 P.2d 985] (Serrano IV).) The lodestar figure may then be “increased or reduced by the application of a ‘multiplier’ after the trial court has idered other factors concerning the lawsuit.”8 Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322 [193 Cal.Rptr. 900,'667 P.2d 704].)
The court in Serrano III held the determination of the lodestar figure to be extremely important. Accordingly, the court stated, “ ‘The starting point of every fee award . . . must be a calculation of the attorney’s services in terms of the time he has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.’ ” (Serrano III, supra, 20 Cal.3d at p. 48, fn. 23, quoting City of Detroit v. Grinnell Corp. (2d Cir. 1974) 495 F.2d 448, 470.)
The court in Serrano III acknowledged it is the trial judge who ultimately has discretion to determine “the value of professional services rendered in his [or her] court. . . .” (20 Cal.3d at p. 49.) However, the court added, the determination of the lodestar figure is so “fundamental” in calculating the amount of the award, the exercise of discretion must be based on the lodestar adjustment method. (Id. at pp. 48-49.)
In the instant case the plaintiffs submitted a lodestar figure of about $56,000 and requested the figure to be multiplied by a factor of 1.25 for a total of $71,286.62. The application of the multiplier was based on certain factors such as the relatively low-income status of plaintiffs, the unpopular and expensive nature of suing a municipality, and the skills displayed by counsel in obtaining the exact relief sought.
[481]In the ruling the trial court did not make findings regarding the lodestar figure or engage in a Serrano III analysis of the various factors which might justify the modification of the requested sum. Instead, the court devised its own arbitrary formula for determining the amount of fees .awarded. The trial court stated it felt the 441.74 attorney hours claimed was an “incredible accumulation” of attorney hours (for attorneys) of “their asserted competence and experience” and the work “should have” been produced in no more than 150 hours—50 hours less than counsel representing the City of Burbank spent. Thereafter, using the hourly rate of $125, the trial court awarded plaintiffs $18,700. (150 multiplied by $125 equals $18,750.) This award is less than one-third of the amount claimed.
There was no “careful calculation” of hours. The trial court did not question that plaintiffs’ attorneys actually devoted to this litigation the number of hours they claimed to have. The court merely stated in ballpark terms the amount of time it felt the attorneys should have needed to do the work in. With no explanation or justification of the reduction the court cut the number of hours by two-thirds. Somehow these lawyers were expected to research, draft pleadings, prepare legal arguments and briefs, and all the rest required to create and litigate a lawsuit on an issue no one had litigated before and to do so in 50 hours less than Burbank’s lawyers took merely to respond to contentions plaintiffs’ lawyers had to create.
On its face, this appears to be an unjustified “ball park” reduction in the hours allowed for this litigation. Had the trial court identified which specific items of legal work appeared to have required excessive hours to complete and by how much, this appellate court might be in a position to meaningfully review the trial court’s findings, and agree with all or some of those findings. But 150 hours does not appear an adequate allotment for a case of this nature which was resisted as vigorously and at as many stages and in as many forums as this one was.
Not only did the court arbitrarily pick the amount of hours it also arbitrarily chose an hourly rate of $125 which is substantially below what these attorneys traditionally charged. It did not justify this reduction in hourly rate in any way. In this day and age, $125 does not appear to be a fair and reasonable rate for lawyers of this level of experience and competence.
The California Supreme Court has held, “while a trial court has discretion to determine the proper amount of an award, the resulting fee must still bear some reasonable relationship to the lodestar figure and to the purpose of the private attorney general doctrine.” (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 324.) In the instant case there was absolutely no relation between the lodestar figure and the amount of fees awarded. There is no [482]“objectivity” when a court determines the issue decided in the case “doesn’t really contemplate $50,000 attorney fee bills” and then cuts the amount of the attorney fees by two-thirds because the trial court holds an opinion the case was of limited importance. It is improper to intertwine the “determination of the litigation’s importance with the question—which should arise only after it has been concluded that an award is proper—of the amount to be awarded.” (Id. at p. 323.)
What the trial court did here is improper. As expressed in its own rationale, the court was treating this as if section 1021.5 created some sort of “quasi contingent fee” arrangement—the amount of the fee awarded to be proportional to the judge’s perception of the importance of the issue or the amount of the public benefits conferred. Instead, under section 1021.5, once the issue is important enough and the benefits conferred significant enough to pass over the statutory threshold, the amount of the fee award depends solely on the amount of legal work required to litigate the case that produced those benefits adjusted by a multiplier. In deciding the amount to be awarded only the factors set out in footnote 2, ante, should be considered. The calculation devised by the trial court did not follow the guidelines set in Serrano III nor did it account for the Serrano III factors. Instead the calculation was infected by the trial judge’s view of the results achieved.
III. This Is A Particularly Appropriate Case in Which to Require A Local Government to Pay the Plaintiffs’ Full Attorney Fees. To Fail to Do So in Cases of This Nature Not Only Will Deny Common Citizens the Access to Justice Which Section 1021.5 Was Designed to Afford but Could Grant Local Governments Immunity From State Legislative Mandates Designed to Benefit Those Common Citizens.
At oral argument, Burbank made a fervent plea against allowing an attorney fee award in this case, in effect characterizing plaintiffs’ request as a raid on the public fisc. Why should Burbank taxpayers have to pay lawyers who sued Burbank? And, especially, why should the city’s taxpayers have to pay “so much” to those lawyers?
The answers to both those questions are obvious in the purposes of the private attorney general doctrine which was codified in section 1021.5 and the behavior of the City of Burbank government in this case. Indeed, the instant case illustrates perfectly why that doctrine came into existence and was eventually codified by the California Legislature. Here that Legislature passed a law to effectuate a critically important public goal, the expansion of desperately needed child care facilities in this state. The law expressly stated this statewide public goal was so important it superseded local land use [483]regulations which might otherwise limit the size of home child care facilities. Despite the clear language of this state law and its underlying public policy, Burbank, among other jurisdictions, insisted on retaining and enforcing old land use restrictions which directly conflicted with the state code.
At considerable cost to the state treasury the State Attorney General’s Office might have initiated a series of enforcement actions against Burbank and other counties and municipalities compelling them to change their zoning regulations to bring them into compliance with the new state laws. But the State Attorney General’s Office has limited resources and many laws to enforce. So those local restrictions remained on the books in Burbank when plaintiffs applied to expand their home child care center as permitted —indeed as encouraged—by the California Legislature. Even then, Burbank could have chosen to comply with state laws and simply not enforced the superseded land use restrictions. But instead the city elected to deny plaintiffs their rights under state law to operate a 12-child home care facility.
If home child care was a different sort of enterprise it might not have been necessary for the Angelhearts to take Burbank to court. For instance, were this a land-use regulation adversely affecting the grocery business in violation of a new state law, “Mom and Pop” stores could sit back and wait for one of the major “chains” in the food business to file an action compelling the city to comply with the state code. These chain stores have enough at stake and enough money in the bank to finance this litigation themselves without resort to section 1021.5. But by its very nature, the home child care field has no large “chain” operations. Rather it consists of small—very small—businesses operated in the owners’ homes. It would be impossible for them to be able to afford the legal fees required to sue a recalcitrant city like Burbank. It will be five or ten years or possibly more before the Angelhearts earn enough additional profit from the expanded clientele in their home child care facility to amass the more than $50,000 in legal work required to force Burbank to abide by the clear mandate of California state law.
What this means, of course, is that were it not for the private attorney general doctrine codified in section 1021.5 city governments like Burbank could ignore state laws when the only ones affected by those laws are small businesses or modest income citizens like the Angelhearts.
Thus the answer to the question of why Burbank taxpayers should have to pay the Angelhearts’ legal fees is obvious: This is the only practical way Burbank’s government can be brought into line with state law. For that [484]reason, it is the only way to enforce the public right which state law created for the Angelhearts and other citizens located in Burbank and similar jurisdictions. To deny the Angelhearts’ their court awarded fees under section 1021.5 in this case will mean that in the future other small businesses and modest income individuals will be hard pressed to find lawyers willing to represent them in actions compelling local government to comply with state laws.
As to the question why Burbank’s taxpayers should have to pay legal fees in the neighborhood of $50,000 to $70,000 that, too, has an easy answer. The blame falls squarely at the feet of the Burbank government. If Burbank had obeyed the new state law at the outset there would have been no legal fees to pay at all. The superseded local land-use restrictions would have been amended or ignored and the city would have granted the Angelhearts their permit immediately. Having failed to abide by the law at the beginning, there were many other opportunities during the enforcement process that followed for Burbank to stop resisting the inevitable. If it had, the Angelhearts’ lawyers would not have had to spend so much time litigating this lawsuit and their bill would have been smaller. The Angelhearts’ expenditures grew in direct proportion to Burbank’s stubbornness.
The facts which have emerged during this appeal serve to underscore a truism—the right to vote has little value to those who lack access to legal counsel. Voters can elect the legislators who will enact the laws that give them rights. But more often than not those remain rights in theory and not in practice. It is only when these same voters are able to obtain legal counsel that the theoretical rights become real. For, under our system of government, only then can those citizens pursue a lawsuit to compel obedience to the laws which provide the rights.
Here, elected representatives created new statutory rights for the Angel-hearts and thousands of other voters. Those rights were not self-executing, however. As is too often true, others in society—this time city governments one might expect to be more obedient to state law—refused to honor the new rights voluntarily. In this case the Angelhearts were very fortunate voters. They were able to find lawyers willing to undertake an expensive, path-breaking lawsuit without charging them the cost of that representation. The lawyers did so in the hope, if successful, they could recover attorney fees under section 1021.5. Without this special dispensation, the state statutes the Angelhearts’ right to vote helped make possible would have had no more [485]meaning for them than a worthless scrap of paper.9 Less fortunate are the multitudes of other small businesses and modest-income individuals—to say nothing of poor people—who need to mount a lawsuit of this nature and cost in order to enforce the otherwise purely theoretical rights their elected officials have enacted in hundreds of other statutes. Under the majority’s application of section 1021.5, they will remain disenfranchised—not of their right to vote, but of their right to make that vote meaningful.
The majority opinion, thus, has two unfortunate consequences. First, the criteria it applies deny small businesses and modest income individuals the opportunity to vindicate important public rights intended to benefit them and others in society. Secondly, these same criteria allow local governments to ignore state mandates when those laws only benefit small businesses or others whose resources and economic interests are inadequate to pay for lawsuits to compel obedience.
For the reasons set forth earlier in this opinion, I would affirm the case insofar as it establishes plaintiffs are entitled to an award of fees under section 1021.5. As to the amount awarded, however, I would reverse the judgment and remand for further proceedings consistent with Serrano III.
A petition for a rehearing was denied August 14, 1991, and the petition of plaintiffs and appellants for review by the Supreme Court was denied October 24, 1991. Mosk, J., was of the opinion that the petition should be granted.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
Code of Civil Procedure section 909 provides:
“In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.”
For instance, in describing the zoning project of the Child Care Law Project of Public Counsel which was not started in Los Angeles County until 1990, Pegine Grayson, Esq., offers a declaration that: “The goal of the Zoning Project is to review and analyze the family day care zoning ordinances of all 86 cities in Los Angeles County. ... I have thus far reviewed and analyzed the family day care zoning ordinances of at least 25 Los Angeles [477]County cities. With one exception, I have found the Municipal Codes of the cities reviewed to date to contain provisions which, . . . violate State law and serve as substantial barriers to the establishment of these facilities, in direct contradiction of the express legislative mandate. ... I have informed the group of volunteer attorneys assigned to work with cities . . . targeted by the Zoning Project of the court’s ruling in the Angelheart case, and have encouraged them to share the information with city attorneys who may not be entirely convinced of the degree of State preemption in the area of family day care regulations. As a direct result of these volunteers’ efforts, three of the targeted cities have enacted new family day care zoning ordinances that comply with State law. Several others have drafted amendments that are slated for public hearings in the near future, and still others are in the process of drafting such amendments. ... I headed the effort in 1990 to bring the County’s family day care zoning ordinance into compliance with State law. I discussed the Angelheart decision with County planning staff on numerous occasions, and succeeded in convincing them to amend their regulatory process. The new, lawful ordinance went into effect in February of this year [1991]. . . . I firmly believe that the clear, positive ruling obtained by the petitioners in Angelheart has already had and will continue to have a broad impact throughout the County of Los Angeles and the State of California. Child care advocates have been making extensive use of the decision, and as other cities become aware of it, they should be encouraged to bring their family day care zoning ordinances voluntarily into compliance with State law.” (Declaration of Pegine E. Grayson, executed July 31, 1991, at pp. 2-5.)
Meanwhile, Carol S. Stevens, Esq., staff attorney of the Child Care Law Center in San Francisco, declares that in attempting to “change local ordinances to meet state law mandates” in northern California counties and cities her organization found that “municipal ordinances in many of these cities contained provisions analogous to those found to be unlawful by the Angelheart court. ... In many communities we encountered significant resistance to compliance. . . . Although it does not establish a precedent, the trial court decision in Angelheart has been useful to strengthen our advocacy position. . . . Our experience has been that many city governments and planning departments achieve compliance with state law requirements only when lawyers become involved in advocacy efforts and the potential for legal action, such as that brought by plaintiffs in Angelhart [íic ], is imminent. Currently, approximately twenty percent of the requests for legal assistance we receive in California involve family day care zoning issues. There remain hundreds of California municipalities where the mandates of state law have yet to be reflected in municipal zoning ordinances. The ruling in Angelhart [ríe ] has been and will continue to be beneficial to counsel. . . as we represent individual family day care providers and provide information and technical assistance to providers in communities where we cannot undertake individual representation.” (Declaration of Carol S. Stevens, executed July 31, 1991, at pp. 2-3.)
As to Orange County, Kristine Adams-Charton, Esq., offered a declaration that the Poverty Law Center in that county “provides . . . child care advocates [appearing before planning department hearings and city council hearings] with the legal arguments and results of the Angelheart case. This information has provided advocates with persuasive authority of a past judicial determination on these family day-care issues.” (Declaration of Kristine AdamsCharton in Support of Motion for Reconsideration, executed on July 31, 1991, at p. 2.)
For instance, the declaration offered by Kristine Adams-Charton, Esq., director of litigation of the Poverty Law Center of Orange County, states: “The Angelheart case has been the basis of writs of mandamus filed against the Cities of Westminster and Orange. In both cases [lawyers] relied on arguments made in the Angelheart pleadings to shape their legal strategies [478]and protect the rights of their clients. . . . [T]he pleadings and briefs from Angelheart et. al. vs. the City of Burbank have been the cornerstone of child care advocacy in Orange County and has provided important authority for advocates in their efforts to bring city ordinances into compliance with State law.” (Declaration of Kristine Adams-Charton in Support of Motion for Reconsideration, executed on July 31, 1991, at pp. 2-3.)
The declarations cited in the preceding footnotes mentioned these specific jurisdictions. They also referred to many other jurisdictions where the Angelheart litigation was used to persuade or compel compliance, but did not name those cities and counties.
It is true these declarations were not submitted until the Angelhearts filed their petition for rehearing. But it should be recalled they were the respondents in this appeal. The trial court had found, correctly I believe, that the benefits conferred solely on Burbank’s citizens were “significant” enough by themselves to satisfy the standards of section 1021.5. Accordingly, the Angelhearts had no reason to attempt to document the benefits their lawsuit had conferred beyond the boundaries of Burbank until the majority filed its opinion. Thus, the Angelhearts’ motion under section 909 was not only proper—and the accompanying declarations material and convincing evidence—but this motion was timely in the circumstances of this case.
The majority opinion does not reach nor challenge the trial court’s implicit finding the plaintiff satisfied the “financial burdens of private enforcement” requirement of 1021.5(b). This requirement is fulfilled when “the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’ ” (County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89 [144 Cal.Rptr. 71], quoted with approval in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 941 [154 Cal.Rptr. 503, 593 P.2d 200].) Suffice it to say, this plaintiff clearly lacked the resources and did not have enough to gain in personal monetary terms to incur the legal expense (perhaps in excess of $50,000 and no less than $15,000) required to prosecute this case to a successful conclusion. Indeed, this plaintiff would have been unable to litigate this case had there not been a “public interest” law firm such as this available to undertake cases of this nature without expecting a fee from the client.
A number of factors were set forth by Serrano III which the trial court may consider in adjusting the lodestar figure. Among these factors were: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing lawsuits of the character here involved; (6) the fact that the monies awarded would inure not to the benefit of the attorneys involved but the organizations by which they are employed.” (20 Cal.3d at p. 49, fn. omitted.)
If we were to consider the declarations offered by leaders of several pro bono law firms, it apparently has taken legal representation and often lawsuits to enforce this new statutory right in most local jurisdictions throughout the state. (See fns. 3-5, ante.) Thus, pro bono programs have been forced to divert limited resources donated by volunteer lawyers to persuade or compel these reluctant cities and counties to obey a statewide mandate. Inevitably, this means other citizens with other cases must be denied legal help by these volunteer lawyers. Their rights remain unenforced and thus nonexistent.