Case Number: BC487936 Hearing Date: March 21, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

elaina novoa, et al.

Plaintiff,

vs.

california department of mental health, et al.

Defendants.

Case No.:

BC 487936

Hearing Date:

March 21, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION FOR FEES

Background

Plaintiff Elaina Novoa, individually and as personal representative of the estate of Alyssa Gomez (“Plaintiff”), filed this action on July 6, 2012. Plaintiff filed the operative Third Amended Complaint (“SAC”) on October 28, 2016 against Defendants California Department of Mental Health (now Department of State Hospitals “DSH”), Pamela Ahlin (“Ahlin”), California Department of Corrections (“CDCR”), Scott Kernan (“Kernan”), Board of Parole Hearings (“BPH”), and Jennifer Shaffer (“Shaffer”) (collectively, “Defendants”). Plaintiff alleges that in 2007, DSH unlawfully cleared Gilton Pitre, a convicted rapist, to be released into the public. Plaintiff alleges that only four days after his release from prison, Pitre raped and murdered Plaintiff’s fifteen-year-old sister Alyssa Gomez. Plaintiff alleges that Gomez’s rape and murder was caused by Defendants’ failure to discharge mandatory duties imposed by the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (“SVPA”).

The initial, First, and Second Amended Complaints filed by Plaintiff asserted causes of action for breach of mandatory duty under Government Code section 815.6, wrongful death, survivorship, and negligence in addition to seeking a writ of mandate for violations of the SVPA. DSH appealed the ruling on the demurrer to the Second Amended Complaint, and the California Supreme Court ultimately held that Plaintiff could only pursue her writ of mandate claim. Though the California Supreme Court held that the personal injury cause of action failed for inability to show proximate cause, the Supreme Court did find that a mandatory duty existed to use two independent psychiatrists or psychologists to conduct evaluations of sexually violent predators pursuant to Welfare and Institutions Code section 6601.

After the case was remanded to the trial court, Plaintiff sought and obtained leave to file the TAC to allege that the CDCR and the BPH assisted the DSH in violating obligations under the SVPA (and adding CDCR and BHP and their individual directors as defendants). The TAC also asserted a new cause of action for declaratory relief to invalidate a Memorandum of Understanding (“MOU”) under which DSH performed the clinical portion of the screening of potential sexually violent predators – a function that, under Welfare and Institutions Code section 6601, subdivision (b), was the responsibility of CDCR and BPH. (TAC, ¶ 6.)

In May 2017, the parties reached a settlement in which DSH, CDCR, and BPH agreed to transfer the screening function from DSH to CDCR and BPH, in exchange for dismissal with prejudice and a general release.

Plaintiff now moves for an award of attorneys’ fees on the basis that she successfully litigated a private attorney general action pursuant to Code of Civil Procedure section 1021.5. Defendants oppose.

Discussion

Code of Civil Procedure section 1021.5 provides: “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…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, if any….” ((Code Civ. Proc., § 1021.5.) “The party seeking attorney fees has the burden of proving that the litigation warranted an award of attorney fees and that the hours expended and the fees sought were reasonable.” ((Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1184.) “A plaintiff will be considered a ‘successful party’ where an important right is vindicated ‘by activating defendants to modify their behavior.’” ((Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 567.)

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. … The reasonable hourly rate is that prevailing in the community for similar work. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” ((PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted].) With regard to the number of hours reasonably expended, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” ((Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the “burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar.” ((MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. ((Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

Defendants oppose an award of fees on the following grounds: (1) the only litigation objective achieved by Plaintiff as a result of the settlement was the objective to transfer the screening function under Welfare and Institutions Code section 6601, subdivision (b) from DSH to CDCR and BPH, and this did not become one of Plaintiff’s litigation objections until the filing of the TAC; (2) transferring the screening function did not vindicate an important right or confer a significant benefit on the public; (3) the financial burden of this litigation did not far exceed Plaintiff’s personal financial stake in the outcome; (4) Plaintiff did not attempt to settle before suing for the transfer of the screening function; and (5) Plaintiff grossly overstates her claim for fees. The Court discusses each of these grounds in turn.

Litigation Objective

The Court finds that Plaintiff’s litigation objective was not just to transfer the screening function but also generally to secure Defendants’ compliance with the SVPA. Therefore, there is no basis for limiting Plaintiff’s award of fees, if any, to only those fees incurred after the filing of the TAC.

Vindicating an Important Right/Conferring a Significant Benefit on the Public

The Court also finds that Plaintiff vindicated an important right through this litigation, namely, securing Defendants’ compliance with the SVPA. “The SVPA’s purposes are to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders.” ((State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344 [internal quotations omitted].) Securing compliance by state agencies with procedural requirements codified by statute is an important right. ((See County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 654 [“In these circumstances, the County’s action against the State Agencies significantly promoted the Williamson Act’s legislative goals of allowing local governmental input and control over the preservation of agricultural land and open spaces…by seeking to compel the State Agencies to comply with the procedural requirements of the Williamson Act.”].)

Financial Burden of Litigation vs. Personal Financial Stake in the Outcome

“An award on the ‘private attorney general’ theory is appropriate 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.’” ((Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941.) Defendants assert that at the time the decision was made to pursue this action (i.e., when Plaintiff was seeking monetary damages), the estimated value of the case was significantly high because similar wrongful death actions resulted in recoveries of millions of dollars. (Opp’n, p. 16: 20 – 17: 5.) Plaintiff counters by stating that her wrongful death claim was always weak, as it was based on a tenuous link between Plaintiff’s sister’s death and Defendants’ failure to comply with the SVPA. (Reply, p. 7: 4-8.) The Court finds that, though close, Plaintiff has demonstrated that the financial burden of this litigation outweighed her personal financial stake in the outcome.

Attempts to Settle Under Catalyst Theory

The catalyst theory provides that “attorney fees may be proper whenever an action results in relief for the plaintiff, whether the relief is obtained through a ‘voluntary’ change in the defendant’s conduct, through a settlement, or otherwise.” ((Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at pp. 566-567.) However, the plaintiff must have “reasonably attempted to settle the litigation prior to filing the lawsuit.” ((Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608.) Defendants contend that Plaintiff did not attempt to settle the case after filing the TAC and that Plaintiff’s letters to then-Attorney General Jerry Brown and State Auditor Elaine M. Howle regarding DSH’s policies were not settlement attempts. Plaintiff asserts that attorney fees may still be awarded if there is a finding that further demands would have been futile. ((See Cates v. Chiang (2013) 213 Cal.App.4th 791, 813-814 [holding that any more detailed notice would have been futile because “defendants continued to insist for several years after Cates filed the lawsuit that they were doing nothing wrong and that they were fully complying with their duties”].) The Court agrees. The evidence shows that Defendants’ attempts to stop certain practices relating to the screening of violent offenders with mental disorders were met with different and continued attempts by Defendants to avoid full compliance with the SVPA. (Johnson Decl., Exs. C, D, and E.)

Reasonableness

Plaintiff submits one declaration, the Declaration of Chris A. Johnson, in support of her motion for fees. It is true that the “moving party may satisfy its burden through its own affidavits, without additional evidence.” ((MBNA America Bank, N.A. v. Gorman, supra, 147 Cal.App.4th at p. 13.) Mr. Johnson’s declaration, however, fails to set forth any facts about the hourly rates of the different attorneys working on the instant matter, the experience or skill of the attorneys that justifies their hourly rates, or that the hourly rates are the prevailing rate within the community for similar work, etc. In fact, in Plaintiff’s memorandum, she references these facts as being “broken down below,” but no such facts are actually presented in either the memorandum or Mr. Johnson’s declaration. (Memorandum, p. 13: 12-14.) Although Defendants did not contest these items, the Court finds that additional information must be provided to the Court regarding these items for it to do its job in determining the reasonableness of the fees requested. Additionally, Exhibit B is impossible to read due to the minute size of the font; a readable version of the Exhibit must be provided. Finally, an explanation must be provided with regard to the category “Pre-litigation” to support the claim to such fees.

Conclusion

Because additional information must be provided, the Court sets a new hearing date on __________, 2018 at 8:30 a.m. in Dept. 50; the date for Plaintiff to file and serve the additional information identified above is __________, 2018, and the date for Defendants to file and serve their response thereto is __________, 2018.

Defendants are ordered to provide notice of this ruling.

DATED: March 21, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court