Filed 11/18/14 Flynn v. Vinson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEPHEN FLYNN,
Plaintiff and Respondent, E058128
v. (Super.Ct.No. RIC1208403)
A. KAY VINSON et al., OPINION
Defendants;
DIANA SERAFIN et al.,
Real Parties in Interest and
Appellants.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.
Affirmed in part; reversed in part with directions.
Lepiscopo & Associates, Peter D. Lepiscopo, William P. Morrow, James M.
Griffiths and Michael W. Healy for Real Parties in Interest and Appellants.
1
Bell, McAndrews & Hiltachk, Charles H. Bell, Jr., Thomas W. Hiltachk and Paul
T. Gough for Plaintiff and Respondent.
No appearance for Defendants.
INTRODUCTION
Real parties in interest and appellants Diana Serafin and Robin Nielson
(collectively Serafin)1 succeeded in opposing a preelection challenge to Measure N, the
Murrieta Prohibition of Automated Traffic Enforcement Systems Act, which was a local
ballot initiative they proposed for the removal of red light cameras in the City of
Murrieta. Although the superior court initially granted a mandamus petition filed by
plaintiff Stephen Flynn against the city clerk and other city and county officials, and
ordered Measure N removed from the ballot, Serafin successfully petitioned this court for
a writ of mandate directing the trial court to deny Flynn’s petition and allow Measure N
to remain on the November 6, 2012, ballot. (Diana Serafin et al. v. Superior Court
(Flynn) (Sept. 18, 2013, E056868) [nonpub. opn.] (Serafin II).)
After we issued our remittitur, Serafin filed a motion seeking attorney fees under
the private attorney general doctrine codified in Code of Civil Procedure section 1021.5,2
and filed memorandums of costs. In postjudgment proceedings, the trial court denied
1 We use “Serafin” for ease of reference with respect to real parties in interest.
No disrespect is intended toward Ms. Nielson.
2 Unless otherwise indicated, all undesignated statutory references are to the Code
of Civil Procedure.
2
Serafin their fees without prejudice, concluding Serafin’s request was premature and they
did not show that they were the prevailing party because the validity of Measure N had
not yet been litigated in a postelection challenge. The trial court also granted motions to
tax costs filed by the city and county defendants, finding Serafin had not prevailed
against defendants because they had not opposed or supported Flynn’s preelection
challenge and had not participated in the writ proceedings in this court.
We have jurisdiction to hear an appeal from a postjudgment order denying
attorney fees, so we deny Flynn’s request that we dismiss the appeal. On the merits, we
conclude Serafin was not required to establish that Measure N survived a postelection
challenge before moving for attorney fees. Serafin’s main goal in opposing Flynn’s
preelection challenge was to ensure that the voters of Murrieta had the opportunity to
exercise their right to vote on a ballot initiative. Serafin was entirely successful in that
endeavor and, in the process, they vindicated an important public right. We also
conclude Flynn interfered with the exercise of an important right, and he is the type of
party who is liable for attorney fees under section 1021.5. Therefore, we reverse the
order denying Serafin’s motion for attorney fees and taxing their costs with respect to
Flynn, and remand for the trial court to conduct a hearing on the merits of the requests for
attorney fees and costs from Flynn. However, because Serafin provides no argument for
reversing the court’s separate orders taxing costs with respect to the city and county
parties, we affirm those orders.
3
I.
FACTS AND PROCEDURAL BACKGROUND
In his petition in the superior court filed on June 5, 2012, Flynn prayed for a writ
of mandamus directing defendants (the Murrieta city clerk and city council) to remove
Measure N from the ballot for the November 6, 2012, general election and, if necessary,
directing defendants (the county board of supervisors and registrar of voters) to not
conduct an election on Measure N.3 The petition named Diana Serafin and Robin
Nielson as real parties in interest, and alleged they were the proponents of Measure N
who had collected the signatures necessary for placing the initiative on the ballot.
According to Flynn, Measure N improperly asked the voters to exercise authority over
automated traffic enforcement systems (ATES) that the Legislature squarely addressed to
the city council and, even if the electors could adopt an initiative addressing the adoption
or removal of an ATES, Measure N was improper because it did not actually adopt an
ordinance removing an ATES, but directed the city council to adopt one. Finally, Flynn
argued his preelection challenge was the appropriate means of addressing the legality of
Measure N, and that the trial court should not exercise discretion to permit the election to
go forward and wait for a postelection challenge.
3The defendants in the superior court mandamus proceeding made no
appearances in this appeal.
4
In their opposition, Serafin’s main contention was that the trial court should permit
Measure N to remain on the November 6, 2012, ballot, and that the validity of the
initiative should be tested in a postelection challenge. Serafin also argued the petition
should be denied because Flynn did not identify a mandatory or ministerial duty that
defendants failed to exercise, for purposes of mandamus relief under Code of Civil
Procedure section 1085 or Elections Code section 13314. Serafin’s final argument in
opposition to the petition addressed the legality of Measure N, but even in that context
Serafin continued to argue that the election should go forward and the measure’s validity
should be tested in a postelection challenge.
After taking the matter under submission, on August 3, 2012, the trial court
granted the petition. The court agreed with Flynn that removal of an ATES was not a
proper subject for a ballot initiative and, even if it were proper, Measure N did not
actually adopt an ordinance to that effect. The court also concluded that a preelection
challenge was appropriate, especially when the illegality of the measure was so clearly
demonstrated.
On August 8, 2012, Serafin filed a petition for writ of mandate in the California
Supreme Court and requested an immediate stay of the trial court’s order. The same day,
the Supreme Court ordered the case transferred to this court (Serafin v. Superior Court
(Flynn) (Aug. 8, 2012, S204561) 2012 Cal. Lexis 7600 (Serafin I)). Two days later, we
granted a stay. After receiving an opposition from Flynn, we concluded that, although it
was not necessarily improper for the trial court to entertain a preelection challenge to
5
Measure N, it was nonetheless unwise under the facts of this case, especially in light of
Flynn’s substantial delay in filing his petition in the superior court. (Serafin II, supra,
E056868.) We therefore granted Serafin’s petition and ordered that a peremptory writ of
mandate issue directing the superior court to set aside its order granting Flynn’s petition
and to enter a different order, and we awarded Serafin their costs. (Ibid.) On October 9,
2012, we granted Serafin’s motion for early issuance of the remittitur, which the trial
court received the next day.
On October 15, 2012, Serafin filed a motion for attorney fees under
section 1021.5, and filed a memorandum of costs and a memorandum of costs on appeal.
Serafin argued they were entitled to recover attorney fees under the private attorney
general doctrine because they were the prevailing party and succeeded in enforcing an
important public right, to wit, the right of the electors of Murrieta to vote on Measure N.
Serafin sought fees and costs against Flynn and the city and county defendants, jointly
and severally, because defendants had refused to defend Measure N and allegedly
abdicated their duty to defend the initiative. In the motion and supporting declarations
and billing statements, Serafin contended they had incurred $86,895 in reasonable
attorney fees opposing Flynn’s petition in the superior court, and an additional $42,525 in
reasonable attorney fees in the original proceeding filed in the Supreme Court, which was
transferred to this court for decision. Serafin also argued they were entitled to a
multiplier of their lodestar by a factor of 2 or 3. Finally, Serafin contended they had
6
incurred $1,344.94 in costs in the superior court, and $1,093.15 in costs in the Supreme
Court and in this court.
The trial court entered an order on October 24, 2012, vacating its prior order
granting Flynn’s petition. Two days later, the trial court entered a judgment denying
Flynn’s petition. The judgment left the matter of attorney fees and costs to be determined
at a later date.
Flynn opposed the motion for attorney fees, primarily contending (1) he did not
interfere with the exercise of a legal right, (2) he was not the type of party who was liable
for attorney fees under section 1021.5, (3) Serafin was not a prevailing party because they
had not yet established Measure N’s validity in a postelection proceeding, and (4) Serefin
had not succeeded in enforcing an important public right. Flynn also opposed Serafin’s
request for attorney fees as unsupported by the evidence and excessive, and argued that a
multiplier was unwarranted. The city and county defendants each filed two motions to
tax Serafin’s costs (including attorney fees) at the trial and appellate levels, primarily
contending they did not oppose or support Flynn’s petition and, as a result, Serafin cannot
be said to have prevailed against them.
7
At the November 6, 2012, general election, Measure N was approved by
57.26 percent of the Murrieta electors who cast votes.4 Before Serafin’s request for
attorney fees and costs was heard, Flynn filed a notice of related case and requested that
the trial court take judicial notice of the petition in Safe Streets for Murrieta, No on
Proposition N v. City Council of the City of Murrieta (Super. Ct. Riverside County, 2012,
case No. RIC1217545) (Safe Streets for Murrieta), which was filed soon after the
election.
During the hearing5 on Serafin’s motion for attorney fees and memorandums of
costs, the trial court stated its tentative decision that it would deny Serafin their attorney
fees because the motion was “not yet ripe” and Serafin had not shown they were a
prevailing party, in that the substantive merits of Flynn’s challenge to Measure N had not
yet been determined in Safe Streets for Murrieta. The court also stated its tentative
decision to grant defendants’ four motions to tax costs because they had not litigated in
the superior court writ proceedings, and they were not parties to the original proceeding
4 Riverside County election results from the Consolidated Presidential Election,
held on November 6, 2012. ( [as of Nov. 18, 2014].)
5 When Serafin filed the notice of appeal, they did not designate any reporter’s
transcripts to be made part of the record on appeal. By order dated July 9, 2013, this
court granted Serafin’s motion to augment the record on appeal with the reporter’s
transcript of the hearing conducted on December 13, 2012. (Cal. Rules of Court,
rule 8.155(a)(1)(B).)
8
filed in the Supreme Court and decided in this court. The court granted Flynn’s request
to take judicial notice of the petition filed in Safe Streets for Murrieta.
Serafin argued they were entitled to attorney fees because they were “100 percent”
successful in the trial court and in this court by achieving their goal of “protect[ing] the
electoral and the initiative process and ensur[ing] that the people of the city of Murrieta
would be able to exercise their franchise to vote.” Flynn argued he was not liable for
attorney fees under section 1021.5 because: (1) the “substantive issues in the case” had
not yet been decided, to wit, the legality of Measure N; (2) he was not the type of party
liable for such fees in that he “did not engage in any conduct which violated the rights of
the other parties”; and (3) Serafin’s defense of Measure N in a preelection challenge only
resulted in their “enforcing [a] private right at that point in time.” After hearing
additional argument, the trial court took the motion for attorney fees and the four motions
to tax costs under submission.
The trial court subsequently entered orders denying Serafin’s motion for attorney
fees and granting the city and county defendants’ motions to tax costs. In a written
ruling, the trial court stated: “The Court finds that, although Real Parties in Interest
Serafin and Nielson enforced an important public right by appealing this matter to ensure
that the initiative remained on the ballot, the Request for Attorneys Fees is premature
because the Courts have not yet ruled on the substantive merit of Petitioner’s claim.
Hence, Serafin and Nielson cannot be deemed ‘successful parties’ for purposes of
CCP § 1021.5.” The court noted that, if Serafin were to successfully defend Measure N
9
in Safe Streets for Murrieta, they “would be entitled to attorney fees, which would
include fees for work performed on this Petition as well.” Finally, the trial court stated
that Serafin was not entitled to recover attorney fees and costs from defendants because
the city and county “were not parties to the appeal and did not . . . support the writ.
Hence, Serafin and Nielson did not prevail against these parties.”
Serafin timely filed a notice of appeal from the orders denying the motion for
attorney fees and taxing their costs.
Serafin chose not to intervene in Safe Streets for Murrieta to defend the
substantive merits of Measure N and, in that case, the trial court granted the petition for
writ of mandate and entered a judgment preventing the City of Murrieta from enforcing
or implementing Measure N.6 No appeal was filed in that case.
6 The parties filed separate applications requesting that we take judicial notice of
various pleadings and documents filed in the superior court in Safe Streets for Murrieta,
supra, case No. RIC1217545. By orders dated May 20 and July 9, 2013, we deferred
ruling on those requests. Although we conclude the result in Safe Streets for Murrieta is
not determinative in this appeal, see post pages 16-19, we nonetheless take judicial notice
of the reporter’s transcript and of the judgment in that case simply for purposes of
providing the conclusion to the story of Measure N. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).) We deny the remainder of the requests for judicial notice because those
documents are not relevant to the issues raised in this appeal. (Gonzalez v. Department of
Corrections & Rehabilitation (2011) 195 Cal.App.4th 89, 97, fn. 8 [Fourth Dist., Div.
Two]; see Cal. Rules of Court, rule 8.252(a)(2)(A).)
10
II.
DISCUSSION
A.
This Court Has Jurisdiction to Hear an Appeal from a Postjudgment Order
Denying Attorney Fees
As a threshold matter, Flynn contends this court lacks jurisdiction to hear Serafin’s
appeal and should dismiss it because the order denying Serafin’s motion for attorney fees
was an interlocutory order or judgment, and hearing this appeal now would run afoul of
the one final judgment rule. (§ 904.1, subd. (a)(1).) Serafin responds that the order
denying their motion for attorney fees came after the trial court entered a final judgment
denying Flynn’s petition, and that this court has jurisdiction to hear an appeal from a
postjudgment order under section 904.1, subdivision (a)(2). We agree with Serafin.
“The right to appeal is conferred by statute. (Dana Point Safe Harbor Collective
v. Superior Court (2010) 51 Cal.4th 1, 5 . . . .) Code of Civil Procedure section 904.1,
subdivision (a) lists appealable judgments and orders. These include ‘an order made after
a judgment made appealable by paragraph (1).’ (Code Civ. Proc., § 904.1, subd. (a)(2)
(section 904.1(a)(2)).) Under section 904.1(a)(2), postjudgment orders granting or
denying motions for attorney fees are deemed to be appealable. (Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 648 . . .; see Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 2:156, p. 2-72.15 (rev.# 1,
2013).)” (Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1014-1015.)
11
On October 9, 2012, this court issued its remittitur in Serafin II, supra, E056868,
and the superior court received it the next day. Serafin filed their motion for attorney
fees and memorandums of costs on October 15, 2012. On October 24, 2012, the trial
court entered an order vacating its prior order granting Flynn’s petition. Two days later,
the trial court entered a final judgment denying the petition. After taking under
submission Serafin’s motion for attorney fees and memorandums of costs, on January 10,
2013, the trial court entered its orders denying Serafin’s motion for attorney fees and
taxing their costs. Serafin timely filed a notice of appeal on February 14, 2013.
The order denying Serafin’s motion for attorney fees came after the entry of
judgment, so Flynn’s characterization of that order as a nonappealable interlocutory order
or judgment is simply incorrect. Because we have jurisdiction to hear appeals from
postjudgment orders denying attorney fees, we deny Flynn’s request to dismiss the
appeal.
B.
Serafin Was Entitled to Attorney Fees from Flynn Once the Superior Court
Entered Its Judgment in This Case Because They Enforced an Important
Public Right by Successfully Opposing Flynn’s Preelection Challenge
Serafin argues the trial court erred by denying the motion for attorney fees under
section 1021.5, as premature, because they were completely successful in opposing
Flynn’s preelection challenge and had enforced an important right of the electors of
12
Murrieta to vote on a ballot initiative.7 Serafin contends the trial court incorrectly
interpreted section 1021.5 to require that the proponent of a ballot initiative must show
the initiative was adopted by the electorate, and that the ballot initiative must survive a
postelection challenge before Serafin can move for attorney fees incurred in a preelection
challenge. Finally, in their reply brief, Serafin argues that an award of attorney fees
against Flynn is appropriate because, by prosecuting a preelection challenge to
Measure N, he interfered with the voters’ franchise rights. We agree and reverse the
order denying Serafin their attorney fees from Flynn.
i. Serafin Was the Successful Party in This Case
“Section 1021.5 provides, in pertinent part, that ‘[u]pon motion, a court may
award attorneys’ fees to a successful party . . . in any action which has resulted in the
enforcement of an important right affecting the public interest if . . . a significant benefit
. . . has been conferred on the general public . . . .’ Section 1021.5 is one of many
‘statutory exceptions’ that authorize a trial court to deviate from the generally applicable
‘American rule’ that each party bears its own costs and attorney fees. [Citation.]” (Olson
v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) “The
7 Serafin presents no arguments on appeal for reversing the trial court’s orders
denying their attorney fees and costs with respect to the city and county defendants. It is
a “cardinal rule of appellate review that a judgment or order of the trial court is presumed
correct and prejudicial error must be affirmatively shown.” (Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187, citing Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) We therefore affirm the orders granting defendants’
motions to tax costs.
13
Legislature enacted the provision to codify the private attorney general doctrine
previously developed by the courts. [Citations.] The doctrine rests on the recognition
that privately initiated lawsuits, while often essential to effectuate important public
policies, will as a practical matter frequently be infeasible without some mechanism
authorizing courts to award fees. [Citations.] Accordingly, ‘“the fundamental objective
of the doctrine is to encourage suits enforcing important public policies by providing
substantial attorney fees to successful litigants in such cases.”’ [Citation.]” (Vasquez v.
State of California (2008) 45 Cal.4th 243, 250.)
“The terms ‘prevailing party’ and ‘successful party,’ as used in section 1021.5, are
synonymous. [Citation.]” (McGuigan v. San Diego (2010) 183 Cal.App.4th 610, 625
(McGuigan).) In order to effectuate the public policy behind the private attorney general
doctrine, the courts “have taken a broad, pragmatic view of what constitutes a ‘successful
party.’” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) “‘The term
“successful party,” as ordinarily understood, means the party to litigation that achieves its
objectives.’ [Citation.] ‘“A lawsuit’s ultimate purpose is to achieve actual relief from an
opponent. . . . On this common understanding, if a party reaches the ‘sought-after
destination,’ then the party ‘prevails’ regardless of the ‘route taken.’”’” (Wal-Mart Real
Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614, 621
(Wal-Mart).) Recovery of attorney fees under section 1021.5 is not limited to successful
plaintiffs or petitioners, and a successful defendant or real party in interest may recover
14
their fees. (Id. at p. 622; 1 Cal. Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2014) Fee-
Shifting Statutes, § 3.19, p. 3-19.)
“‘On review of an award of attorney fees after trial, the normal standard of review
is abuse of discretion. However, de novo review of such a trial court order is warranted
where the determination of whether the criteria for an award of attorney fees and costs in
this context have been satisfied amounts to statutory construction and a question of law.’
[Citation.] Although ‘the decision whether to award attorney fees under section 1021.5
rests initially with the trial court’ [citation], the court does not have the discretion to
award such fees unless the statutory criteria have been met as a matter of law. Where the
material facts are undisputed, and the question is how to apply statutory language to a
given factual and procedural context, the reviewing court applies a de novo standard of
review to the legal determinations made by the trial court. [Citation.]” (McGuigan,
supra, 183 Cal.App.4th at pp. 622-623.)
The trial court concluded Serafin was not the prevailing party, and their motion for
attorney fees was not ripe because the legality of Measure N had not yet been established
in a postelection challenge. Although Flynn made this argument in his opposition to the
15
attorney fee motion, he does not repeat it in the brief he filed in this court.8 We find no
support whatsoever in the actual language of section 1021.5 or in the published decisions
for the trial court’s conclusion that Serafin had to successfully defend Measure N in a
postelection challenge before moving for attorney fees.
In Wal-Mart, the city of San Marcos, California, approved land use amendments
to permit the development of a second Wal-Mart store. In response, two city residents
submitted to the city clerk the necessary signatures for a voter referendum challenging
the city’s decision and putting approval of the second store to a vote of the electors, and
thereafter the city clerk delivered the signatures to the county registrar of voters for
verification. (Wal-Mart, supra, 132 Cal.App.4th at p. 618.) Wal-Mart Real Estate
Business Trust responded to the proposed referendum by filing suit against the city, the
city clerk, and the county registrar of voters, seeking a writ of mandate to prevent or
postpone a vote on the referendum based on alleged Elections Code violations. (Ibid.)
The defendants did not oppose the petition, but the proponents of the referendum, who
8 Likewise, Flynn no longer contends Serafin’s motion was premature because it
was filed before the voters had adopted Measure N. The trial court did not rely on that
ground when it denied Serafin’s motion, for the obvious reason that the hearing on the
motion took place after Measure N’s passage at the November 6, 2012, election. For the
same reasons that we conclude Serafin was not required to obtain a favorable result on
the legality of the initiative before moving for attorney fees, we also conclude Serafin
was not required to show the measure was actually adopted before moving for attorney
fees. (Cf. Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 316 [ballot initiative
proponents were entitled to attorney fees for enforcing their First Amendment right to
gather signatures in front of a supermarket, notwithstanding subsequent defeat of the
ballot initiative by voters].)
16
were named as real parties in interest, did. (Id. at pp. 618-619.) Among other things, the
real parties in interest argued “a pre-ballot challenge to a referendum is a disruption of
the electoral process the court should not permit absent a compelling showing the
substantive provisions of the referendum are invalid . . . .” (Id. at p. 619.) The trial court
agreed, and entered a judgment denying the petition for writ of mandate. (Ibid.) Sixty-
one percent of the electors subsequently disapproved of the city’s actions, and neither
Wal-Mart nor the owner of the property brought a postelection challenge. (Ibid.)
The real parties in interest then moved for their attorney fees under section 1021.5,
contending their opposition to the mandate petition enforced important rights of the
general public or a large class of persons. (Wal-Mart, supra, 132 Cal.App.4th at p. 619.)
A different superior court judge heard the motion. The second judge “denied the motion
on the ground the judge who denied Wal-Mart’s petition for lack of ripeness ‘did not
make any substantive rulings on this case,’ and ‘it would be a stretch to then . . . conclude
that something that was not adjudicated . . . leads to a significant benefit.’” (Ibid.)
On appeal, Wal-Mart supported the denial of attorney fees, arguing the real parties
in interest “were not ‘successful parties’ within the meaning of section 1021.5 because in
denying Wal-Mart’s petition for writ relief ‘all . . . they achieved . . . was the [t]rial
[c]ourt’s acknowledgment . . . that Wal-Mart’s suit had come too early, and needed to
await the results of the referendum elections.’” (Wal-Mart, supra, 132 Cal.App.4th at
p. 621.) The appellate court disagreed. “In bringing its petition, Wal-Mart sought to
keep the referendum off the ballot. In opposing the petition, on ripeness and other
17
grounds, [real parties in interest] sought dismissal of the petition to allow a vote on the
City’s action to proceed, and that is precisely the relief they obtained.” (Ibid.)
We find Wal-Mart persuasive and conclude it is controlling here. As Serafin
argued at the hearing on the attorney fee motion, the objectives of their opposition to
Flynn’s petition, and their objective in petitioning the Supreme Court for a writ of
mandate, was “to maintain the integrity of the electoral and initiative processes and to
secure and protect the public’s constitutional right to vote and power to directly enact
laws.” Serafin presented a defense to the validity of Measure N in the alternative, but
that argument was clearly subordinate to their main contentions that the trial court should
permit the election to go forward and, if needed, address the validity of the measure in a
postelection challenge.
In our opinion granting Serafin’s petition for writ of mandate, we concluded that,
while the trial court had the authority to address the legality of Measure N in a
preelection challenge, it was unwise to do so in this case because of Flynn’s substantial
delay in filing his lawsuit. (Serafin II, supra, E056868.) In light of Serafin’s limited
objectives in this case and the result that was ultimately obtained—a judgment denying
Flynn’s preelection challenge and allowing Measure N to go before the voters at the
November 6, 2012, election—Serafin clearly meets the definition of a prevailing party.
(Wal-Mart, supra, 132 Cal.App.4th at pp. 621-622.) In short, Serafin was not required to
wait until the trial court determined the substantive merits of Flynn’s challenge to
Measure N before moving for attorney fees.
18
ii. Serafin Enforced an Important Public Right
Flynn argues that, even if Serafin was the prevailing party, they still are not
entitled to attorney fees because they only succeeded in enforcing their private, personal
rights, and not the important rights of a broader class of persons. We disagree.
Flynn relies exclusively on Perry v. Brown (2011) 52 Cal.4th 1116 (Perry) for the
proposition that defense of a ballot initiative in a preelection challenge only implicates
the proponent’s private rights.9 In Perry, the California Supreme Court answered a
question of state law certified to it by the United States Court of Appeals, Ninth Circuit,
to wit, whether the official proponents of a ballot initiative have a recognized interest in
the validity of the initiative, such that they may defend the initiative in court when public
officials otherwise tasked with defending the initiative decline to do so. (Id. at p. 1124.)
The Ninth Circuit believed—incorrectly it turned out (Hollingsworth v. Perry
(2013) __ U.S. , [133 S.Ct. 2652, 2662-2663])—that resolution of its certified
question was determinative of whether the proponents of Proposition 8 had standing
under article III of the United States Constitution to appeal a federal court order declaring
Proposition 8 to be unconstitutional. (Perry, at pp. 1132-1133.)
9 During oral argument before this court, Flynn addressed problems he perceived
in our tentative decision by citing to a published appellate decision and an unpublished
order from the California Supreme Court that were not addressed in either of his briefs.
Generally, arguments raised for the first time during oral argument are waived. (Roberts
v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1408.) Moreover, if Flynn
believed the authority he now cites mandated a modification of our tentative decision, he
should have informed this court of that authority before oral argument. (Cal. Rules of
Court, rule 8.254(a).) Therefore, we decline to address those newly cited authorities.
19
Perry had nothing whatsoever to do with attorney fees under section 1021.5, yet in
his brief Flynn quotes the following from that decision: “In the preelection setting, when
a proposed initiative measure has not yet been adopted as state law, the official
proponents of an initiative measure who intervene or appear as real parties in interest are
properly viewed as asserting their own personal right and interest—under article II,
section 8 of the California Constitution and the California statutes relating to initiative
proponents—to propose an initiative measure and have the measure submitted to the
voters for approval or rejection. In preelection cases, the official initiative proponents
possess a distinct interest in defending the proposed initiative because they are acting to
vindicate their own right under the relevant California constitutional and statutory
provisions to have their proposed measure—a measure they have submitted to the
Attorney General, have circulated for signature, and have the exclusive right to submit to
the Secretary of State after signatures have been collected—put to a vote of the people.
Because in the preelection context the initiative measure has not been approved and
enacted into law, the state’s interest in defending the validity of an enacted state law does
not come into play.” (Perry, supra, 52 Cal.4th at pp. 1146-1147, fn. omitted.)
The language from Perry that Flynn quotes cannot be divorced from its proper
context—the ability of a ballot initiative proponent to defend the initiative when public
officials abandon their duty to do so. The court in Perry was only concerned with an
initiative proponent’s interests in appearing as a party in preelection and postelection
challenges, and the court had no occasion to decide whether the voters of the State of
20
California had an interest in voting on Proposition 8. “‘“It is axiomatic that cases are not
authority for propositions not considered.”’” (McWilliams v. City of Long Beach (2013)
56 Cal.4th 613, 626.)
There is no doubt that the voters of Murrieta had an interest in the result of this
case because at stake was their constitutional right to vote on a ballot initiative. (Cal.
Const., art II, §§ 8, subd. (a), 11, subd. (a).) “Voter action by initiative is so fundamental
that it is described ‘not as a right granted the people, but as a power reserved by them.’
[Citation.] ‘Declaring it “the duty of the courts to jealously guard the right of the people”
[citation], the courts have described the initiative and referendum as articulating “one of
the most precious rights of our democratic process” [citation].’ [Citation.] Thus, courts
are required to liberally construe this power [citation] and accord it ‘extraordinarily broad
deference.’” (Native American Sacred Site & Environmental Protection Assn. v. City of
San Juan Capistrano (2004) 120 Cal.App.4th 961, 965-966.)
Again, the decision in Wal-Mart is instructive. In that case, the court held that
“opposition to Wal-Mart’s petition ‘resulted in the enforcement of an important right
affecting the public interest,’ and conferred ‘a significant benefit’ on a large class of
persons within the meaning of section 1021.5.” (Wal-Mart, supra, 132 Cal.App.4th at
p. 622.) “The electorate’s constitutional right to a referendum vote is . . . an important
right under section 1021.5, and [the real parties’ in interest] opposition to Wal-Mart’s
petition to thwart the vote, or at least delay it, protected the rights of thousands of
registered voters to proceed in accordance with state law.” (Id. at p. 623.)
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So too here. Flynn delayed filing his preelection challenge until well into the
initiative process, and by that time the right of the voters to have their say on Measure N
was clearly implicated. By successfully opposing Flynn’s petition, Serafin enforced that
important right of the electors.
iii. Flynn Is the Type of Party Liable for Fees Under Section 1021.5
Relying on Adoption of Joshua S. (2008) 42 Cal.4th 945 (Joshua S.), Flynn also
contends he is not the type of party who is liable for attorney fees under section 1021.5
because he did not interfere with the exercise of an important right. Once again, we
disagree.
“In Joshua S., [the California Supreme Court] carved out a limited exception to
[the three] qualifications” under section 1021.5, “to be applied in cases where all three
factors are satisfied . . . .” (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th
1018, 1026, 1027.) “[S]ection 1021.5 was not intended to impose fees on an individual
seeking a judgment that determines only his or her private rights, but who has done
nothing to adversely affect the public interest other than being on the losing side . . . .”
(Joshua S., supra, 42 Cal.4th at p. 958.) “This is not to say that a party cannot be held
liable for section 1021.5 attorney fees for engaging in litigation. When a party initiates
litigation that is determined to be detrimental to the public interest, attorney fees have
been imposed. In [Wal-Mart], for example, Wal-Mart attacked on technical grounds a
referendum that was to decide whether it could locate within the city, and the city was
awarded attorney fees after it prevailed in the litigation. Wal-Mart thus sought a
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judgment that would adversely affect the public interest by preventing the city’s
electorate from exercising its power of referendum. [Citation.]” (Id. at p. 957.)
As in Wal-Mart, Flynn brought a preelection challenge to Measure N and sought a
writ of mandate directing the city to remove the initiative from the ballot. Flynn
contends, essentially, that by doing so he was merely protecting the integrity of the ballot
initiative process by ferreting out an illegal ballot measure before it could be submitted to
the voters in the first place. Had Flynn filed his preelection challenge earlier, his
contention may have had merit. But by delaying filing his petition for almost eight
months after the city clerk and county registrar of voters certified the sufficiency of the
signatures to place Measure N on the ballot, Flynn’s lawsuit necessarily implicated and
interfered with the right of the voters in Murrieta to vote on the measure. Therefore, we
conclude Flynn does not fall within the limited exception recognized in Joshua S., and he
is the type of party liable for attorney fees under section 1021.5.
iv. Flynn’s Additional Arguments
Finally, Flynn contends that, if we reverse the order denying Serafin’s motion for
attorney fees, we should make no findings of fact regarding the reasonableness of the
attorney fees Serafin seeks, the evidentiary basis for their request, or the appropriateness
of a multiplier. With this argument we agree. (See Bombardier Recreational Products,
Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 605 [authority to make
findings of fact on appeal under § 909 and Cal. Rules of Court, rule 8.252(b) should be
used sparingly and only in exceptional circumstances].) On remand, the trial court shall
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conduct a hearing and make findings of fact on these additional questions in the first
instance. As necessary, and in the trial court’s discretion, the trial court may take
additional evidence.
III.
DISPOSITION
The order denying Diana Serafin and Robin Nielson’s motion for attorney fees
against Stephen Flynn is reversed. The cause is remanded for further proceedings on the
amount of reasonable attorney fees and costs, and to determine whether a multiplier of
attorney fees is appropriate. Diana Serafin and Robin Nielson shall also recover from
Stephen Flynn their costs incurred in this appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
The orders granting A. Kay Vinson et al.’s motions to tax costs are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.
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