Atherton v. Board of Supervisors

CROSBY, J.,

Dissenting.—Code of Civil Procedure section 1021.5 codifies the judicially developed “private attorney general” attorneys fee doctrine and “rests upon the 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[s] 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 (1979) 23 Cal.3d 917, 933 [154 Cal.Rptr. 503, 593 P.2d 200].) Because this provision is intended to encourage plaintiffs to assert their civil rights, attorneys fees are appropriate even if the successful plaintiff was represented by public interest lawyers and did not actually incur any legal expenses. (Schmid v. Lovette (1984) 154 Cal.App.3d 466, 476 [201 Cal.Rptr. 424].)

Nevertheless, the majority here refuses to consider whether the litigation promoted a significant public policy simply because the successful plaintiff *439was a nonattorney who represented himself. In my view, to interpret section 1021.5 as authorizing attorneys fees only where the prevailing party is represented by counsel does violence to the spirit and purpose of the statute.

Interpreting similar statutes, other courts have agreed. For example, the District of Columbia Circuit for the United States Court of Appeals and the United States District Court in Connecticut have awarded attorneys fees to nonlawyers. (Cox v. United States Dept, of Justice (D.C.Cir. 1979) 601 F.2d 1, 5-6; Marschner v. Dept. of State (D.Conn. 1979) 470 F.Supp. 196, 201 [attorneys fees under the Freedom of Information Act (5 U.S.C. § 552)].) And while the Fifth Circuit does not yet embrace the notion, a lone dissenting judge in that circuit has observed, “One cannot justifiably assert that an attorney representing himself is more entitled to a fee than a lay person representing himself. The courts are open to everyone—those who can afford to pay an attorney and those who have to do it themselves. The latter are just as entitled to be paid as the former are to be reimbursed.” (Lovell v. Alderete (5th Cir. 1980) 630 F.2d 428, 438 (dis. opn. of Clark, J.) [again, an action under 5 U.S.C. § 552].) I agree.

And the grass closer to home could yet green. Our Supreme Court has held that a nonattorney who represents himself before the Public Utilities Commission is entitled to “compensation for his services” under the common fund theory. (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891 [160 Cal.Rptr. 124, 603 P.2d 41].) In reaching this conclusion, the majority engaged in a two-part analysis: First, the commission’s own rules permit lay litigants to represent themselves and others in commission proceedings. Thus, the argument that only licensed attorneys could competently appear before the commission had no merit.

Second, the majority questioned “the logic of past decisions that do not allow an attorney to recover fees when he appears on his own behalf .... Although such an attorney does not pay a fee or incur any financial liability therefor to another, his time spent in preparing and presenting his case is not somehow rendered less valuable because he is representing himself rather than a third party. Accordingly, it would appear he should be compensated when he represents himself if he would otherwise be entitled to such compensation, absent a showing in a particular case that such an award would place his interests in conflict with those whom he represents.” (Id., at p. 915, fn. 13; see also Renfew v. Loysen (1985) 175 Cal.App.3d 1105 [222 Cal.Rptr. 413] [attorney representing himself entitled to fees under Civ. Code, § 1717] and Leafy. City of San Mateo (1984) 150 Cal.App.3d 1184 [198 Cal.Rptr. 147] [attorney in pro. per. awarded fees in an inverse condemnation action under Code Civ. Proc., § 1036].)

*440In permitting the recovery of attorneys fees, the Supreme Court concluded it would be unfair not to reimburse the lay litigant who created the common fund for the benefit of so many others. This can be interpreted to mean the court considered the term “attorneys fees” to be descriptive not of the person who performs a particular service but of the service performed.

Here, Atherton, a nonattorney, represented only himself, as he had every right to do. There is no suggestion his action involved the unauthorized practice of law, and his stake in the outcome was no more or less than the millions of other residents of the state and county. Yet he invested considerable time and expense and, by his own account, virtually abandoned his medical practice to the endeavor when he was unable to locate an attorney willing to pursue the matter. Is he to be denied reimbursement solely on the basis that he has not been admitted to practice law before the courts of this state? I would hold not.

The notion that a nonattorney litigant who represents himself should be compensated for the loss of income he could generate if he pursued his regular occupation finds support in legal scholarship. One law review commentator, for example, has suggested that since attorneys fees provisions are enacted to remove the barriers of access to the court, it makes as much sense to award fees to the pro. per. lay litigant as to an attorney-litigant or attorney representing a litigant. (See Note, Pro Se Can You Sue ?: Attorney Fees for Pro Se Litigants (1981-1982) 34 Stan.L.Rev. 659.)

The Second Circuit agrees in principle that one could be entitled to attorneys fees if pursuit of the action caused him “to forgo an opportunity to earn [his] regular income for a day or more in order to prepare . . . .” (Crooker v. U.S. Dept, of the Treasury (2d Cir. 1980) 634 F.2d 48, 49.) Fees were disallowed in Crooker, however, because the successful nonattorney litigant, a federal prisoner, could not establish any loss of income: “But we do not believe that Congress intended to permit an award of attorney’s fees to pro se litigants like Crooker who have made no showing that prosecuting their lawsuits caused them to divert any of their time from income-producing activity. The Freedom of Information Act was not enacted to create a cottage industry for federal prisoners.” (Ibid., fn. omitted.)

The majority’s interpretation of Code of Civil Procedure section 1021.5 provides attorneys with an incentive to prosecute public interest lawsuits, but needlessly couples this benefit with an unnecessary disincentive to lay litigants to represent themselves. I find no justification for this perversion of section 1021.5 into an “Attorneys’ Unemployment Act.”

Access to the courts by all litigants, even those who choose, or have no choice but, to represent themselves is to be fostered, not frustrated. The *441Legislature has determined that litigants who succeed in ensuring enforcement of certain laws or vindicating particular fundamental rights should not bear the legal expense of so doing. In the vast majority of those cases qualifying for an award of attorneys fees, the litigant will have been represented by counsel. But there is no reason to consider the professional status of the individual achieving the socially beneficial result in determining whether his or her effort ought to be reimbursed. If the right vindicated is important enough to justify an award of fees to an attorney, a layman who is able to accomplish the same laudable end, despite the lack of a legal education, ought not to be penalized for that irrelevant reason.

A petition for a rehearing was denied January 24, 1986, and appellant’s petition for review by the Supreme Court was denied March 26, 1986.