Government Liability Update

Prevailing Parents in IDEA Action Not Entitled to Attorneys' Fees Unless Child Has Been Determined to Need Special Education Services

In Meridian Joint School Dist. No. 2, v. D.A., published July 7, 2015, the 9th Circuit Court of Appeals reversed an order granting parents in an action under the Individuals with Disabilities Education Act their attorneys' fees.  The 9th Circuit affirmed the district court's rulings that the parents' child was entitled to an independent education evaluation at the taxpayers' expense, and that the parents were prevailing parties.  But the  the IDEA's fee-shifting provision, 14 U.S.C. section 1415(i)(3)(B), provides that attorneys' fees may be awarded to a prevailing party who is the parent of a child with a disability.  Whether the plaintiffs' child had a disability was not decided in the action.  Therefore, under the statute's plain language, the parents were not entitled to their attorneys' fees.

Municipality That Confesses Error in Response to Petition for Writ of Mandate May Be Deemed "Opposing Party" under Private Attorney General Statute

In Animal Protection League v. City of San Diego, published May 27, 2015, the Fourth District Court of Appeal, Division 1, affirmed (with modifications)  a trial court decision awarding petitioners for a writ of mandate attorney fees under Code of Civil Procedure section 1021.5, the Private Attorney General Statute, against the city appellant.  The petitioners petitioned the trial court for a writ of mandate challenging a city planning commission decision denying a permit.  The city filed an answer in which it confessed error and conceded that the planning commission erred in denying the permit.  The answer stated that it did not oppose lawful writ relief.  When the petitioners moved for entry of judgment, the city filed a nonopposition to the motion.  

Section 1021.5 provides that a court may award attorneys fees to a successful against "one or more opposing parties" in an action that has resulted in the enforcement of an important right affecting the public interest.  Interpreting the statute de novo, the appellate court concluded that a municipality that does not contest liability may nevertheless be an "opposing party," defining "opposing party" as the party against whom the suit is brought.  Since, under the catalyst theory, private attorney general fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior because of the litigation, fees should be awarded when an entity confesses error in response to litigation.

Fee Award to Defendants in Special Education Case Appropriate Only If Result Is Obvious or Arguments Wholly Without Merit

In C.W. v. Capistrano Unified School Dist., published March 2, 2015, the Ninth Circuit Court of Appeals affirmed in part and reversed in part a district court order granting attorney fees to a school district as the prevailing defendant in a special education case.  After the district brought a due process hearing over a dispute concerning the subject child's occupational therapy assessment, and prevailed, the parent's attorney wrote the district that the parent would forego an appeal to the district court if the district agreed to fund an independent evaluation and pay the parent's attorney's fees and costs.  The district responded that it reserved the right to seek sanctions against the parent and her attorneys if the parent appealed the administrative decision.  The parent then brought both an appeal from the administrative decision, under the Individuals with Disabilities Education Act,  in the district court; and a retaliation claim under the ADA, Section 504 of the Rehabilitation Act, and 42 U.S.C. section 1983 (under the First Amendment) based on the district's letter threatening sanctions.  The district court affirmed the administrative decision, dismissed the retaliation claim, and awarded the district nearly $100,000 in fees and costs against the parent and her attorneys.

The Ninth Circuit ruled that fee awards to prevailing defendants under the fee provisions of the IDEA, 20 U.S.C. 1414(i)(3)(B)(i)(II)-(III), for frivolous claims should be governed by the standards of fee awards to defendants under 42 U.S.C. section 1988; the portion that allows fees against parents or parents' attorneys if a claim is brought for an improper purpose is governed by the standards of FRCP 11.  A claim may be deemed frivolous only when the result is obvious, or the arguments are wholly without merit.  Where there is very little case law on point and a claim raises a novel question, it is much less likely to be considered frivolous.  A frivolous claim is brought for an improper purpose if brought, to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

Under these tests, the appeal of the administrative decision was not frivolous.  Although the parent's arguments were poorly pled and argued, according to the court, the outcome was not obvious and the arguments raised substantive issues, with little case law on point.  The ADA intimidation claim and section 1983 claim were frivolous.  Section 1983 claims for damages are not permitted against school districts, and no ADA intimidation claim is available regarding exercise of rights under the IDEA, the basis of the parent's claims in this case.  The section 504 retaliation claim was not frivolous.  The district court erred in finding the frivolous claims were brought for an improper purpose (purportedly to extort money the plaintiff would not otherwise be entitled to); the letters exchanged were insufficient to show an improper purpose.  The court remanded the fee award for recalculation.  A dissenting judge would have denied fees entirely.

Overbroad Public Records Request Does Not Warrant Attorney Fee Sanctions Unless Brought for an Improper Purpose Or Wholly Lacking in Merit

In Bertoli v. City of Sebastipol, published January 20, 2015, the First District Court of Appeal, Division 4, reversed a fee award under Government Code section 6259(d) to a city that was based on a request for city and city employees' electronically-stored information via the California Public Records Act.  When the party who sought the information petitioned the trial court for a writ to compel further production in response to the request, the trial court ruled the demand overbroad.  It then awarded the city attorney fees.  

The appellate court noted that the statute awards public agencies attorney fees in Public Records Act disputes only where the plaintiff's case is "completely frivolous."  The court applied the standard of frivolousness used in motions for sanctions for frivolous appeals:  The petition to compel a response to the CPRA request must either have been brought for an improper motive, such as to harass, or be completely lacking in merit.  Although the appellate court agreed with the trial court that the request was overbroad, it ruled that this request, brought to obtain information for a lawsuit, was not brought for an improper purpose.  And because the issues raised by the petition were debatable under the current state of the law, the court ruled, the petition was not wholly without merit.

Public Entity May Recover Reasonable Attorney and Paralegal Fees Incurred Preparing an Administrative Record

In The Otay Ranch, L.P. v. County of San Diego (Flat Rock  Land Co., L.L.C.), published September 29, 2014, the Fourth District Court of Appeal, Division 1, affirmed an award to the respondent county of costs -- including the fees of outside counsel and its paralegals -- for preparing an administrative record for the petitioner's CEQA-related petition for writ of mandate.  The petitioner agreed to prepare the administrative record, but failed to do so for months.  The county then offered to prepare the record, and asserted that the petitioner would be responsible for paying the costs of preparation.  The petitioner did not object.  Because the county department responsible for maintaining the files did not have the manpower or resources to prepare the record, the outside law firm representing it in the litigation prepared the record.  The complexity and scope of the 18,000 page record required the attorney's personal involvement.  One day after it was filed and served, the petition was dismissed.  The trial court concluded that attorney and paralegal fees for preparing the record were part of the cost awardable to the county for the record's preparation.

The appellate court ruled that the trial court acted within its discretion.  Code of Civil Procedure section 1094.5 provides that the cost of preparing the record shall be borne by the petitioner, and that if borne by the prevailing party, the expense is taxable as costs.  Section 1094.6 provides that the agency may recover from the petitioner its actual costs for preparing the record.  In petitions alleging CEQA violations, Public Resources Code section 21167.6 requires payment of any reasonable costs or fees imposed for preparation of the record in conformance with any law.  The trial court properly determined that the attorney and paralegal fees were part of the reasonable and necessary costs the petitioner had to pay, and not an impermissible award of attorney fees.

CCP 1038 Sanctions Cannot Be Awarded Against Attorneys, but Can Be Granted by Different Judge Than the One Who Granted Summary Judgment

In Suarez v. City of Corona, published August 29, 2014, the Fourth District Court of Appeal, Division 1, reversed in part and affirmed in part an award of defense-fee sanctions under Code of Civil Procedure section 1038.  The plaintiff and his counsel maintained an action against the defendant city arising out of the explosion of a compressed natural gas tank in a van in which he rode, while the tank was being filled at a city-owned filling station.  He contended that the city maintained a dangerous condition of public property.  Discovery turned up no evidence of a dangerous condition, as well as evidence that factors unrelated to the city caused the explosion.  The plaintiff rejected demands to dismiss the city, or to provide a theory of liability against the city.  The city won summary judgment.  It then moved for defense fees under section 1038.  Although the judge who granted summary judgment was available, a commissioner heard the motion.  Neither party objected to the commissioner presiding over the motion.  The commissioner awarded defense fees of over $100,000 against the plaintiff and his counsel.

The appellate court reversed the award of fees against the plaintiff's counsel.  It agreed with the recent decision in Settle v. State of California (2014) 228 Cal.App.4th 215 that section 1038 cannot be interpreted to provide for awards of attorney fees against counsel.  It upheld the award against the plaintiff in full.  It rejected the argument that the commissioner had no jurisdiction to hear the motion.  Although a section 1038 motion must be heard by the same judge who granted summary judgment unless that judge is available, parties may stipulate to a commissioner hearing a matter, and the stipulation may be inferred form counsel's conduct.  Plaintiff's counsel could not wait until after the commissioner ruled against him to object to the commissioner hearing the matter.  The appellate court, reviewing the finding of lack of reasonable cause de novo, agreed with the commissioner's finding that the suit against the city lacked reasonable cause.  It rejected the argument that to provide due process the motion for sanctions had to be noticed to be heard at the same time as the summary judgment motion.  The motion need only be filed at the earliest practical time before the entry of judgment.