Attorneys Can Intervene in Clients' Action and Move for Attorneys' Fees Under C.C.P. 1021.5

In Lindelli v. San Anselmo (2006) 139 C.A.4th 1499, 43 C.R.3d 707, an individual and a waste management company filed a petition for a writ of mandamus, challenging respondent town's award of an interim contract to another waste management company. On appeal in that action, the Court of Appeal concluded that respondent had violated the Elections Code by awarding the interim contract before a referendum election challenging a long-term contract could be held. The action was remanded to the trial court to determine whether petitioners were entitled to attorneys' fees under C.C.P. 1021.5, the private attorney general statute. A few days before petitioners' attorneys intended to file a fee motion, however, both petitioners informed the attorneys that they no longer wished to be moving parties in the fee request. The attorneys filed a motion to intervene under C.C.P. 387(a) to request reasonable attorneys' fees and costs under C.C.P. 1021.5. The waste management company that had received the interim contract and the town opposed the motion, and the trial court denied it, concluding that the attorneys lacked standing to seek an award of fees on their own behalf. Held, reversed.

(a) Flannery v. Prentice (2001) 26 C.4th 572, 110 C.R.2d 809, 28 P.3d 860, 7 Cal. Proc. (4th), Judgment, Supp., §199, established that attorneys' fees awarded under Govt.C. 12965 of the Fair Employment and Housing Act (FEHA) "belong, absent . . . an enforceable agreement to the contrary, to the attorneys who labored to earn them. . . . In other words, the fee award belongs to the attorney in the first instance and only belongs to the client if an agreement so specifies." (139 C.A.4th 1506.) Govt.C. 12965 authorizes an attorneys' fee award to a "prevailing party" in an action to enforce FEHA and C.C.P. 1021.5 authorizes one for a "successful party" in an action to enforce an important right affecting the public interest. The two statutes share similar language and purposes, and there is no reason to distinguish between them in the construction of the word "party." (139 C.A.4th 1508.) Moreover, "we have found nothing in the language of section 1021.5 or its legislative history clearly indicating that the Legislature intended 'party' to refer only to a litigant. . . . Accordingly, we do not construe 'successful party' in Code of Civil Procedure section 1021.5 more narrowly than the Flannery court construed 'prevailing party' in Government Code section 12965." (139 C.A.4th 1509.) Attorneys' fees awarded under C.C.P. 1021.5 belong, absent an enforceable agreement to the contrary, to the attorneys. (139 C.A.4th 1510.)

(b) California cases that have rejected intervention or fee requests from attorneys in marital dissolution proceedings or in actions involving claims for fees arising out of contracts between attorneys and their clients are distinguishable. "The parties have not cited and we have not found any California court" that has denied intervention to counsel seeking fees under C.C.P. 1021.5, or any other provision authorizing fee shifting in cases that vindicate fundamental public policies. (139 C.A.4th 1511.) Because the fee provision in the marital dissolution context is intended for the spouses' benefit, the attorney's claim for fees arises from the attorney's employment relationship, and it is the attorney who must enforce a contractual lien on the recovery through an independent action against the client. In contrast, the attorneys' interest in the fee award here arises from C.C.P. 1021.5 itself. That interest will be directly and adversely affected if a final judgment issues before a motion for fees, and the attorneys will forever lose the right to collect fees under C.C.P. 1021.5. Thus, the attorneys have a sufficiently direct and immediate interest to permit intervention and a motion for an award of fees. (139 C.A.4th 1512.)

(c) The attorneys here are entitled to an award of fees under C.C.P. 1021.5. By obtaining a declaration that the interim contract violated Elections Code stay provisions, petitioners enforced an important right and conferred a significant benefit on the general public. Furthermore, because petitioners did not seek removal of the winner of the interim contract, their appeal provided little potential individual benefit to them. Thus, the necessity and financial burden of private enforcement make an award appropriate. The amount of fees, however, is a factual issue more properly considered by the trial court on remand. (139 C.A.4th 1517.)

Witkin References

On availability of attorneys' fees in actions under C.C.P. 1021.5 generally, see 7 Cal. Proc. (4th), Judgment, §225 et seq.

On amount of attorneys' fees in actions under C.C.P. 1021.5 generally, see 7 Cal. Proc. (4th), Judgment, §264 et seq.

On permissive intervention under C.C.P. 387(a), see 4 Cal. Proc. (4th), Pleading, §195.