2012-00137464-CU-PO

Barbara Wood vs. Fair Oaks Residential Elderly Care

Nature of Proceeding:   Motion to Strike Portions of Complaint

Filed By:  Beach, Thomas E.
Defendants’ motion to strike portions of the complaint is GRANTED without leave to
amend, as follows.

Moving counsel is admonished because the notice of motion fails to comply with Code
of Civil Procedure §1010 and CRC Rule 3.1110(a).

This is an elder abuse case.  Defendants first move to strike the four (4) photographs
attached to the complaint as exhibits which purport to depict the injuries allegedly
caused to the decedent by defendants’ neglect and abuse.  Defendants argue that the
inclusion of such material in the pleadings is irrelevant, improper and/or inflammatory
particularly since a complaint is to include only the facts and other allegations essential
to state a cause of action.  Defendants also contend that the photographs are not
authenticated and therefore improper for this reason as well.  The Court agrees and
strikes the four (4) photographs without leave to amend.

Defendants next seek to strike the prayer for attorney fees pursuant to Code of Civil
Procedure §1021.5 on the ground the complaint fails to include allegations which
would support an award of fees under this statute, especially since a statutory claim
must be pled with factual specificity.

Code of Civil Procedure §1021.5 provides for an award of attorney fees under the
private attorney general doctrine and it states in pertinent part:

“Upon motion, a court may award attorneys’ fees to a successful party against
one or more opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest if: (a) a significant
benefit, whether pecuniary or nonpecuniary, has been conferred on the general
public or a large class of persons, (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity against another
public entity, are such as to make the award appropriate, and (c) such fees
should not be in the interest be paid out of the recovery, if any.”

This law was enacted in recognition that privately initiated lawsuits are often essential
to the effectuation of the fundamental public policies embodied in constitutional or
statutory provisions and that without some mechanism authorizing the award of
attorney fees, private actions to enforce such important public policies will as a
practical matter frequently be infeasible. (Woodland Hills Residents Assn., Inc. v. City
Council of Los Angeles (1979) 23 Cal.3d 917; Slayton v. Pomona Unified School Dist.
(1984) 161 Cal.App.3d 538.)  Before attorney fees under the statute may be awarded
the Court must determine that the lawsuit vindicated a public policy of constitutional
stature, which establishes the requirement that the action resulted in the enforcement
of an important right affecting the public interest and benefitted a broad class of
citizens. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311; Bartling v. Glendale
Adventist Medical Center (1986) 184 Cal.App.3d 97.)

A central function of the attorney fees provision is to call public officials to account and
to insist that they enforce the law but it is not intended to reward litigants motivated by
their own pecuniary interests and who only coincidentally protect the public interest. (
Bartling, at 102-103; Austin v. Board of Retirement  (1989 (review denied)) 209
Cal.App.3d 1528; Angelheart v. City of Burbank (1991) 232 Cal.App.3d 460.)  Private
attorney general fees are not intended to provide insurance for litigants and counsel
who misjudge the value of their case, and vigorously pursue the litigation in the             expectation of recovering substantial damages, and then find that the jury’s actual
verdict is not commensurate with their expenditure of time and resources. (Satrap v.
Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72.)  Instead, the purpose is to
provide some incentive for a plaintiff who acts as a true private attorney general in
prosecuting a lawsuit that enforces an important public right and confers a significant
benefit, despite the fact that his or her own financial stake in the outcome would not by
itself constitute an adequate incentive to litigate. (Id.)

Moreover, in enacting §1021.5, the Legislature did not intend to authorize an award of
attorney fees in every case involving a statutory violation. (Mandicino v. Maggard
(1989) 210 Cal.App.3d 1413.)  Instead, entitlement to fees under this statute requires a
showing that the litigation (1) served to vindicate an important public right; (2)
conferred a significant benefit on the general public or a large class of persons; and (3)
imposed a financial burden on plaintiffs that was out of proportion to their individual
stake in the matter. (California Licensed Foresters Assn. v. State Bd. of Forestry (1994
(review denied)) 30 Cal.App.4th 562.)  To be sure, attorney fees may be denied where
the potential recovery of damages creates sufficient financial incentive to bring the
lawsuit. (Advanced Micro Devices, Inc. v. National Semiconductor Corp.  (1999, ND
Cal) 38 F.Supp.2d 802.)

Because this Court cannot conclude that the current allegations in this action could
support an award of fees pursuant to Code of Civil Procedure §1021.5, the complaint’s
reference to attorney fees under this statute is stricken without leave to amend.
However, this ruling does not otherwise affect or limit the potential recovery in this
case of enhanced damages or attorney fees as permitted under the elder abuse act.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)