Supreme Court of California Justia
Citation 42 Cal. 4th 945, 174 P.3d 192, 70 Cal. Rptr. 3d 372

Adoption of Joshua S., Annette F. v. Sharon S

Filed 1/24/08

IN THE SUPREME COURT OF CALIFORNIA

Adoption of JOSHUA S., a Minor.

ANNETTE F.,
Plaintiff and Respondent,
S138169
v.
Ct. App. 4/1
D045067
SHARON S.,
San
Diego
County
Defendant and Appellant.
Super. Ct. No. JA46053

In
Sharon S. v. Superior Court (2003) 31 Cal.4th 417 (Sharon S.), we
validated a so-called “second parent” adoption, in which the same-sex partner of a
birth mother adopted the mother’s child, while the mother remained a coparent.
Subsequently, the prevailing party in that case, Annette F. (Annette), sought
attorney fees under the “private attorney general” attorney fee statute, Code of
Civil Procedure section 1021.5,1 to be paid by the losing party, Sharon S.
(Sharon). The trial court awarded such fees but the Court of Appeal reversed. As
will be explained at greater length below, the court concluded that because of
Annette’s large personal stake in the outcome of the litigation, she was not acting
as an authentic private attorney general. We granted review to address that issue.

1
All statutory citations are to this code unless otherwise indicated.
1


We subsequently ordered supplemental briefing on the following question: Does
section 1021.5 authorize an award of attorney fees against a litigant who has done
nothing to adversely affect the rights of the public or a substantial class of people
other than raising an issue in the course of litigation over private rights and
interests that results in an important appellate precedent adverse to that litigant?
As explained below, we do not decide whether the trial court abused its
discretion in determining that the extent and scope of the litigation transcended
Annette’s personal stake in its outcome. Rather, we hold that section 1021.5 does
not authorize an award of attorney fees against an individual who has done
nothing to adversely affect the rights of the public or a substantial class of people
other than raise an issue in the course of private litigation that could establish legal
precedent adverse to a portion of the public, and that therefore fees should not be
awarded in the present case. As elaborated below, both the language and
legislative history of section 1021.5 support this interpretation. We therefore
affirm the judgment of the Court of Appeal on that basis.
I. STATEMENT OF FACTS
The facts are for the most part undisputed. Sharon and Annette were in a
committed relationship from 1989 through mid-2000. In 1996 Sharon was
artificially inseminated and gave birth to Zachary. While retaining her parental
rights, Sharon consented to Annette’s adoption of the child. (Sharon S., supra, 31
Cal.4th at p. 422.)
In 1999, Sharon was again artificially inseminated by the same sperm donor
and gave birth to Joshua. Sharon and Annette made the same agreement allowing
Annette to adopt Joshua while Sharon retained her parental rights. Thereafter the
relationship between Sharon and Annette deteriorated and Annette left the family
home. Annette filed a motion for an order of adoption. Sharon moved for court
2
approval to withdraw her consent to adopt and to dismiss Annette’s petition.
Sharon relied on several arguments, including that the form of second parent
adoption sought was unlawful. (Sharon S., supra, 31 Cal.4th at pp. 422-424.)
The trial court denied the motion to dismiss the adoption. Sharon filed and
the Court of Appeal granted a petition for writ of mandate, holding that the form
of second parent adoption sought by Annette was without statutory basis. We
granted Annette’s petition for review and reversed, finding that second parent
adoptions like that sought by her were lawful. We remanded the matter for
resolution of factual issues related to Sharon’s claim that her consent to the
adoption had been gained by fraud and duress and to ensure that the relevant
administrative and statutory requirements of the second parent adoption had been
satisfied. (Sharon S., supra, 31 Cal.4th at pp. 445-446.)
Before the resolution of the other issues, Annette moved for an award of
attorney fees in the amount of $138,939.78 pursuant to section 1021.5. Annette
sought the fees for legal services provided by her counsel, Charles Bird of the firm
Luce, Forward, Hamilton and Scripps (Luce), in the Court of Appeal and Supreme
Court leading to the decision in Sharon S.
Annette’s supporting papers noted that although the matter was not yet
fully resolved, Annette had prevailed in the Supreme Court on the second parent
adoption issue, an issue of benefit to a large class of persons, and argued that she
was therefore entitled to an award of fees pursuant to the private attorney general
provisions of section 1021.5 for that portion of the case.
Bird, Annette’s attorney, filed a declaration stating that he was initially
approached in August of 2001 by someone who had written an amicus curiae brief
or letter brief on Annette’s behalf, when the matter was pending in the Court of
Appeal, out of concern that the outcome of the case may have a far-reaching,
detrimental effect. Bird eventually decided to represent Annette, and argued on
3
her behalf in the Court of Appeal. When the Court decided against Annette solely
on the ground that second parent adoption was without statutory basis, Bird
prepared an unsuccessful petition for rehearing and then a successful petition for
review in this court. He prepared the briefs and argued the case in this court,
which included extensive analysis of the legislative history of the relevant statutes,
a brief responding to the various amici curiae, an answer to Sharon’s petition for
rehearing and an answer to Sharon’s petition for a writ of certiorari in the United
States Supreme Court.
Bird’s declaration further stated that Annette and Luce had entered into a
written engagement agreement providing for payment of a fee at a described rate
and for the reimbursement of expenses, with an estimation that the cost of oral
argument in the Court of Appeal was likely to run between $8,000 and $10,000.
He discussed with Annette that if she lost in the Court of Appeal, the fees from
continuing the litigation would likely outstrip her ability to pay, but that he would
continue to represent her on the second parent adoption issue because of his
concern for the law made by the case. He explained that his firm would take the
chance of prevailing and potentially recovering attorney fees based on the public
benefit resulting from the work.
The trial court awarded $92,049.15 in attorney fees to Annette. The court
found the Supreme Court’s decision conferred a significant nonpecuniary benefit
on a large class of persons and resolved an important issue of law. The trial court
also concluded, for reasons elaborated below, that notwithstanding the fact that
Annette had a personal stake in the outcome of the litigation, the cost of the
litigation was out of proportion to that stake.
The Court of Appeal reversed. While not disputing that the litigation
conferred significant benefits on a large class of persons and resolved an important
issue of law, the court concluded that Annette’s personal stake in the litigation,
4
i.e., the vindication of her rights as an adoptive parent, were so large that a private
attorney general award under section 1021.5 was not justified. In so concluding,
the court rejected Annette’s argument that nonpecuniary interests such as hers
were not to be counted among the personal interests that could defeat a section
1021.5 award.
We granted review and subsequently sought the supplemental briefing
described above.
II.
DISCUSSION
A. The Necessity and Financial Burden Requirement
Eligibility for section 1021.52 attorney fees is established when “(1)
plaintiffs’ action ‘has resulted in the enforcement of an important right affecting
the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary
has been conferred on the general public or a large class of persons’ and (3) ‘the
necessity and financial burden of private enforcement are such as to make the
award appropriate.’ ” (Woodland Hills Residents Assn., Inc. v. City Council
(1979) 23 Cal.3d 917, 935 (Woodland Hills).)
There is no question that the litigation here did yield a substantial and
widespread public benefit. In Sharon S., supra, 32 Cal.4th at page 437, we
estimated that there were between 10,000 and 20,000 second parent adoptions in

2
Section 1021.5 provides 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 in the interest of justice be paid out of the
recovery, if any.”
5


the state that would be jeopardized by the Court of Appeal ruling invalidating such
an adoption. But Sharon and Annette disagree as to whether the third factor
applies in the present case.
As this court has elaborated with respect to this third requirement (hereafter
sometimes referred to as the necessity and financial burden requirement): “ ‘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.” [Citation.]’ ” (Woodland Hills, supra, 23 Cal.3d
at p. 941.) A court generally determines whether the litigation places a
disproportionate burden on the individual by comparing the expected value of the
litigation at the time it was commenced with the costs of litigation. (See Los
Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1,
9-10 (Los Angeles Police Protective League).)
The above method assumes that a plaintiff has a pecuniary interest in the
litigation that is more or less quantifiable. What happens when a plaintiff has no
pecuniary interest? Annette argues that when no pecuniary interest is present, a
plaintiff as a matter of law meets the necessity and financial burden requirement.
She points to language in Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321
(Press), a case in which we determined that a party that enforced a right to gather
signatures for a statewide initiative petition in front of a supermarket was eligible
for section 1021.5. fees. In considering the necessity and financial burden
requirement, the Press court stated: “That plaintiffs’ personal interests in the
outcome of the oil profits initiative were sufficient to induce them to bring this
action is irrelevant. As the statute makes clear, subdivision (b) of section 1021.5
focuses not on plaintiffs’ abstract personal stake, but on the financial incentives
and burdens related to bringing suit. Indeed, in the absence of some concrete
6
personal interest in the issue being litigated, the putative plaintiff would lack
standing to bring an action.” (Press, supra, 34 Cal.3d at p. 321, fn. 11.) Annette
interprets this language as signifying that when a party has no pecuniary interest in
the outcome of the litigation, it will automatically satisfy the necessity and
financial burden requirement.
Sharon
disagrees
with
this interpretation of Press, and points to several
Court of Appeal cases holding that private, nonpecuniary interests of some kind
can disqualify a party from eligibility for section 1021.5 attorney fees. (See
Punsly v. Ho (2003) 105 Cal.App.4th 102, 113-114; Hammond v. Agran (2002) 99
Cal.App.4th 115 (Hammond); Williams v. San Francisco Bd. of Permit Appeals
(1999) 74 Cal.App.4th 961, 970-971; Families Unafraid to Uphold Rural El
Dorado County v. Bd. of Supervisors (2000) 79 Cal.App.4th 505, 516; but see
Families Unafraid, at pp. 527-528 (dis. opn. of Sims, J.).)
Although Annette argues that nonpecuniary interests may not disqualify a
party from eligibility for section 1021.5 attorney fees, her defense of her own
attorney fee award does not depend on that proposition being categorically true.
Rather, the trial court in the present case, while not ruling out that Annette’s
personal interest could render her ineligible for section 1021.5 fees, instead
concluded that the cost of the litigation transcended those interests. Admitting the
difficulty if not impossibility of estimating the monetary value of Annette’s
personal interests in her children, it observed that Annette’s attorney, Charles Bird,
offered to represent her because of the public significance of the litigation and the
importance of second parent adoptions for families and children throughout
California. It also noted that prior to Bird’s entry in the case, Annette had
produced only letter briefs that were inadequate for addressing the second parent
adoption issue. The Court of Appeal, on the other hand, held, and Sharon now
argues, that Bird’s motivation is not relevant, and that Annette’s considerable
7
personal interests in vindicating her parental rights disqualifies her from attorney
fees.
We need not decide whether the trial court abused its discretion in holding
that the costs of the present litigation transcended Annette’s personal interests. As
discussed below, we conclude that even if the trial court was within its discretion
in so holding, section 1021.5 attorney fees may not be awarded in the present case
for a different reason: Sharon is not the type of party on whom private attorney
general fees were intended to be imposed.
B. Sharon’s Litigation Is Not Within the Scope of Section 1021.5
Sharon contends that section 1021.5 attorney fees should not be imposed on
parties such as herself, an individual who has only engaged in litigation to
adjudicate private rights from which important appellate precedent happens to
emerge, but has otherwise done nothing to compromise the rights of the public or
a significant class of people. We agree.
In evaluating Sharon’s claim, we are mindful that section 1021.5 is an
exception to the general rule in California, commonly referred to as the American
rule and codified in section 1021, that each party to a lawsuit must ordinarily pay
his or her own attorney fees. (Trope v. Katz (1995) 11 Cal.4th 274, 278-279.) In
support of the American rule is the argument “that since litigation is at best
uncertain one should not be penalized for merely defending or prosecuting a
lawsuit, and that the poor might be unjustly discouraged from instituting actions to
vindicate their rights if the penalty for losing included the fees of their opponents’
counsel.” (Fleischmann Corp. v. Maier Brewing (1967) 386 U.S. 714, 718.)
Although not explicit in either the statute or case law, it may be supposed
that one unspoken justification for departing from the American rule in the case of
section 1021.5 private attorney general fees is that it is equitable to impose public
8
interest attorney fees on parties that have done something to adversely affect the
public interest. Indeed, although no case has explicitly addressed the matter, our
review of the case law reveals that in virtually every published case in which
section 1021.5 attorney fees have been awarded, the party on whom the fees have
been imposed had done something more than prosecute or defend a private
lawsuit, but instead had engaged in conduct that in some way had adversely
affected the public interest. In Woodland Hills, for example, the plaintiff was
requesting attorney fees for successfully blocking the City of Los Angeles’s
unlawful approval of a subdivision. (Woodland Hills, supra, 23 Cal.3d at pp. 926-
927.) In Serrano v. Priest (1977) 20 Cal.3d 25, in which this court first endorsed
the doctrine of private attorney general fees, the historic underlying litigation
compelled the state to change its method of distributing school funding to comply
with the equal protection clause of the state Constitution. In other words, in both
these cases, public interest litigation obtained a substantial benefit by causing a
change in the defendant’s behavior, whose actions or failure to act was somehow
impairing the statutory or constitutional rights of the public or a significant class
of people. And so it is in the other published cases we have reviewed.3

3
(See, e.g., Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1083 [Governor’s
veto of a part of a nonappropriations bill is unconstitutional]; Saleeby v. State Bar
(1985) 39 Cal.3d 547, 568 [State Bar failed to provide adequate procedures for
individuals making claims on the Client Security Fund (Bus. & Prof. Code,
§ 6140.5)]; People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach
(1984) 36 Cal.3d 591, 602 [city council proposed amendments in violation of
“meet and confer” requirement under Gov. Code, § 3505]; Folsom v. Butte County
Assn. of Governments
(1982) 32 Cal.3d 668, 671-673 [county failed to use
transportation funds to create public transit systems required by the Transportation
Development Act of 1971]; Colgan v. Leatherman Tool Group, Inc. (2006) 135
Cal.App.4th 663, 682-683 [corporation labeled products in violation of false
advertising law]; Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 945
[corporation utilized insurance brokers in violation of statutory requirements];

(footnote continued on next page)
9



To determine whether there is in fact an implicit requirement that the party
on whom attorney fees are imposed be responsible for adversely affecting the
public interest, we first look first to the words of the statute, “ ‘because they

(footnote continued from previous page)

Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1359-1363 [state
department discharge of employee for positive drug test violated federal
regulations]; Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 825-826
[landowner retained control over use of a road after the public acquired an
easement]; Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 927-928
[quasi-public agency implemented insurance claim reserve practices resulting in
plaintiff paying higher insurance premiums and receiving lower dividends, in
violation of the implied covenant of good faith]; County of San Diego v. Lamb
(1998) 63 Cal.App.4th 845, 851 [county improperly required the defendant to
reimburse funds received from the Aid to Families with Dependent Children
program]; City of Fresno v. Press Communications, Inc. (1994) 31 Cal.App.4th
32, 43-44 [city enacted an ordinance prohibiting the distribution of advertisements
in violation of the First Amendment]; Planned Parenthood, Inc. v. Aakhus (1993)
14 Cal.App.4th 162, 169-175 [antiabortion protestors engaged in conduct in
violation of plaintiff’s constitutional right to privacy]; Beasley v. Wells Fargo
Bank
(1991) 235 Cal.App.3d 1407, 1412 [bank improperly assessed fees against
credit card customers who failed to make timely payments or exceeded their credit
card limits]; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 240
[mounted patrol engaged in sex discrimination in violation of federal and state
law]; Los Angeles Police Protective League, supra, 188 Cal.App.3d 1, 6 [city
improperly disregarded a ruling of its administrative board]; Citizens Against Rent
Control v. City of Berkeley
(1986) 181 Cal.App.3d 213, 221 [city enacted an
ordinance limiting contribution to campaign committees in violation of the First
Amendment]; Kern River Public Access Com. v. City of Bakersfield (1985) 170
Cal.App.3d 1205, 1225 [city approved subdivision maps in violation of statute];
Slayton v. Pomona Unified School Dist. (1984) 161 Cal.App.3d 538, 541 [school
district engaged in conduct in violation of plaintiffs’ rights under California
statute, state, and federal Constitutions]; Schmid v. Lovette (1984) 154 Cal.App.3d
466, 472-473 [school district required employees to give oath in violation of
plaintiff’s rights under state and federal Constitutions]; Daniels v. McKinney
(1983) 146 Cal.App.3d 42, 48-49 [sheriff failed to comply with a court order
requiring him to provide three hours of exercise time per week to female
inmates].)
10


generally provide the most reliable indicator of legislative intent.’ ” (Murphy v.
Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) Although the
statute does not explicitly address the type of conduct that would make a party
liable for attorney fees, it does suggest what conduct the Legislature had in mind.
Section 1021.5 authorizes fees for “any action which has resulted in the
enforcement of an important right affecting the public interest . . . .” (Italics
added.) The enforcement of an important right affecting the public interest
implies that those on whom attorney fees are imposed have acted, or failed to act,
in such a way as to violate or compromise that right, thereby requiring its
enforcement through litigation. It does not appear to encompass the award of
attorney fees against an individual who has done nothing to curtail a public right
other than raise an issue in the context of private litigation that results in important
legal precedent.
We also find support for this interpretation in the legislative history.
According to one legislative history document, “the purpose of [section 1021.5] is
to provide statutory authority for an award of attorneys’ fees in public interest
litigation.” (Sen. Com. on Judiciary, Rep. on Assem. Bill No. 1310 (1977-1978
Reg. Sess.) as amended May 18, 1977) p. 1.) Testimony before the Senate
Committee on the Judiciary on behalf of section 1021.5 affirmed that the statute
would “effectuate the enforcement of laws enacted by the legislature of the state in
the public interest.” (Sen. Com. on Judiciary, Hearing on Assem. Bill No. 1310
(1977-1978 Reg. Sess.), testimony of John R. Phillips, p. 15 (Aug. 14, 1977).) As
these passages suggest, the Legislature was focused on public interest litigation in
the conventional sense: litigation designed to promote the public interest by
enforcing laws that a governmental or private entity was violating, rather than
private litigation that happened to establish an important precedent.
11
This conclusion is also consistent with our recent holding in Connerly v.
State Personnel Bd. (2006) 37 Cal.4th 1169. In refusing to impose section 1021.5
attorney fees on amici curiae that had unsuccessfully argued in favor of state
affirmative action policies, we noted that “[g]enerally speaking, the opposing party
liable for attorney fees under section 1021.5 has been the defendant person or
agency sued, which is responsible for initiating and maintaining actions or
policies that are deemed harmful to the public interest and that gave rise to the
litigation.” (37 Cal.4th at pp. 1176-1177, italics added.) We noted also that case
law has recognized that attorney fees may sometimes be assessed against “real
parties in interest that had a direct interest in the litigation, the furtherance of
which was generally at least partly responsible for the policy or practice that gave
rise to the litigation . . . .” (Id. at p. 1181, italics added.) In concluding that the
state rather than amici curiae should be assessed attorney’s fees, we found critical
that “the state, through its elected representatives, possessed the power, and indeed
the exclusive power, to abandon or change the statutory scheme [challenged by the
underlying litigation]. Because it declined to do so, the burden of paying . . .
attorney fees is properly imposed on the state, rather than on an amicus curiae
. . . .” (Id. at p. 1183.) Thus, in Connerly we acknowledged that the parties
against whom attorney fees should be assessed should be those responsible for the
policy or practice adjudged to be harmful to the public interest.
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 Real Estate Business Trust v. City Council of San Marcos
(2005) 132 Cal.App.4th 614, 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
12
sought a judgment that would adversely affect the public interest by preventing the
city’s electorate from exercising its power of referendum. (See also Hull v. Rossi
(1993) 13 Cal.App.4th 1763 [§ 1021.5 fees awarded when a party successfully
defended against litigation that would have restricted its ballot arguments for and
against two local initiatives].) Moreover, attorney fees have been awarded to
those defending against suits by public entities, or those purporting to represent
the public, that seek to expand the government’s power to curtail important public
rights. (See County of San Luis Obispo v. Abalone Alliance (1986) 178
Cal.App.3d 848, 866-869 [attorney fees awarded to defendant protesters when suit
by county and private parties to compel protesters to pay for costs resulting from
the protest would have chilled defendants’ right to protest].)
In contrast, Sharon was a private litigant with no institutional interest in the
litigation, and the judgment she sought in the present case would have settled only
her private rights and those of her children and Annette. She simply raised an
issue in the course of that litigation that gave rise to important appellate precedent
decided adversely to her.4

4
The one case that arguably deviates from this rule is Hammond, supra, 99
Cal.App.4th 115. There, Agran’s candidate statement for city council was
challenged by Hammond, a political rival, partly because the statement was
allegedly misleading, and partly because the statement articulating Agran’s
opposition to building an airport was supposedly inconsistent with Elections Code
section 13307, providing that candidate statements speak of the qualifications of
the candidate. Hammond argued that Agran’s views about the airport were not
“qualifications.” The court held that Agran could get attorney fees against
Hammond for his successful litigation establishing that the candidate’s statement
authorized by section 13307 could include candidates’ views of the issues,
although it also held that Agran could not obtain attorney fees for litigation
involving whether or not the statement was misleading, an issue that did not
transcend Agran’s personal interest. (Hammond, supra, at pp. 129, 132-135.)

(footnote continued on next page)
13



Annette suggests that a requirement that an individual liable for private
attorney general fees must have done something to compromise the rights of the
public is inconsistent with the well-established principle that a showing of bad
faith is not necessary for an award of section 1021.5 fees. (See, e.g., Citizens
Against Rent Control v. City of Berkeley, supra, 181 Cal.App.3d at p. 231.) Not
so. We impose no such bad faith requirement, but hold only, consistent with the
language and evident intent of the statute, that the party against whom such fees
are awarded must have done or failed to do something, in good faith or not, that
compromised public rights. Nor do we deny that in some cases the litigation
underlying the section 1021.5 award can involve rights or benefits that are
somewhat intangible, such as clarifying important constitutional principles. But
even in such cases, the party against whom the fees are awarded is responsible in
some way for the violation of those rights and principles. (See, e.g., Harbor v.
Deukmejian, supra, 43 Cal.3d at p. 1103 [enforcing limitations on Governor’s veto
power].) Nor does the proposed holding in any way contradict the
incontrovertible proposition that section 1021.5 fees may be sought in the
appropriate case not only against governmental entities and corporations but
against private individuals. (See, e.g., Planned Parenthood, Inc. v. Aakhus, supra,
14 Cal.App.4th 162 [anti-abortion protestors violating privacy rights of clinic
patrons assessed § 1021.5 fees].)

(footnote continued from previous page)

Hammond is distinguishable insofar as election law litigation inherently
implicates public rights. We need not decide whether Hammond is correct that a
suit between political rivals that results in significant election law precedent may
give rise to section 1021.5 fees.
14



Of course, whether litigation generates important appellate precedent is a
factor courts may consider in determining whether the litigation can be said to
enforce an important right affecting the public interest. (See Los Angeles Police
Protective League, supra, 188 Cal.App.3d at p. 12.) But even when an important
right has been vindicated and a substantial public benefit conferred, and when a
plaintiff’s litigation has transcended her personal interest, we conclude that section
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 of an important
appellate case. Because Sharon fits squarely into this category, we affirm the
Court of Appeal’s judgment reversing the trial court’s attorney fee award.5
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.

5
In light of our disposition of the case, we need not address the
constitutional and other issues raised by Sharon.
15


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Adoption of Joshua S.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 132 Cal.App.4th 561
Rehearing Granted

__________________________________________________________________________________

Opinion No. S138169
Date Filed: January 24, 2008
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Cynthia Ann Bashant

__________________________________________________________________________________

Attorneys for Appellant:

Blatchley & Blatchley, William E. Blatchley; John L. Dodd & Associates and John L. Dodd for Defendant
and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Luce, Forward, Hamilton & Scripps and Charles A. Bird for Plaintiff and Respondent.

Jennifer C. Pizer, Brian Chase, Shannon Minter and Courtney Joslin for Children of Lesbians and Gays
Everywhere, Family Pride Coalition, Los Angeles Gay & Lesbian Center, Lambda Legal Defense &
Education Fund, Lesbian & Gay Lawyers Association of Los Angeles, National Center for Lesbian Rights,
Our Family Coalition, Pop Luck Club, San Diego Family Matters and Tom Homann Law Association as
Amici Curiae on behalf of Plaintiff and Respondent.

Rose, Bien & Asaro, Andrea G. Asaro and Amy Whelan for American Civil Liberties Union, Bay Area
Lawyers for Individual Freedom, Legal Services for Children, Western Center on Law & Poverty, Youth
Law Center and Protection & Advocacy, Inc., as Amici Curiae on behalf of Plaintiff and Respondent.

Shute, Mihaly & Weinberger, Ellison Folk, Robert S. Perlmutter and Jenny K. Harbine for Planning and
Conservation League, Natural Resources Defense Council and Baykeeper as Amici Curiae on behalf of
Plaintiff and Respondent.

Manning & Marder, Kass, Ellrod, Ramirez, Scott Wm. Davenport and Jason J. Molnar for Los Angeles
County Bar Association and Beverly Hills Bar Association as Amici Curiae on behalf of Plaintiff and
Respondent.

Judith E. Klein for Minor.
1



Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572

Charles A. Bird
Luce, Forward, Hamilton & Scripps
600 West Broadway, Suite 2600
San Diego, CA 92101-3372
(619) 236-1414

2


Petition for review after the Court of Appeal reversed an order awarding attorney fees in a civil action. This case presents the following issue: Was the plaintiff in a civil action that was brought to confirm the validity of a so-called second parent adoption (see Sharon S. v. Superior Court (2003) 31 Cal.4th 417) entitled to attorney fees under Code of Civil Procedure section 1021.5 for enforcing an important right affecting the public interest, when the plaintiff had a strong and significant, but non-pecuniary, individual private interest in pursuing the litigation?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 01/24/200842 Cal. 4th 945, 174 P.3d 192, 70 Cal. Rptr. 3d 372S138169Review - Civil Appealclosed; remittitur issued

Parties
1F., Annette (Plaintiff and Respondent)
Represented by Charles A. Bird
Luce, Forward, Hamilton & Scripps, LLP
600 W. Broadway, Suite 2600
San Diego, CA

2F., Annette (Plaintiff and Respondent)
Represented by Lorie S. Nachlis
Nachlis & Fink
155 Montgomery Street, Suite1400
San Francisco, CA

3S., Sharon (Defendant and Appellant)
Represented by John L. Dodd
Attorney at Law
17621 Irvine Boulevard, Suite 200
Tustin, CA

4S., Sharon (Defendant and Appellant)
Represented by William E. Blatchley
Blatchley & Blatchley
555 W. Beech Street, Suite 458
San Diego, CA

5S., Joshua (Overview party)
Represented by Judith E. Klein
Attorney at Law
5638 Lake Murray Boulevard, Suite 208
La Mesa, CA

6S., Joshua (Overview party)
Represented by Terence Micheal Chucas
Attorney at Law
3111 Camino Del Rio North, Suite 427
San Diego, CA

7Bay Area Lawyers For Individual Freedom (Amicus curiae)
Represented by Sanford Jay Rosen
Rosen Bien & Galvan
315 Montgomery St 10th Fl
San Francisco, CA

8Bay Area Lawyers For Individual Freedom (Amicus curiae)
Represented by Amy Elizabeth Whelan
Rosen Bien & Galvan
315 Montgomery St 10th FL
San Francisco, CA

9Legal Services For Children (Amicus curiae)
Represented by Sanford Jay Rosen
Rosen Bien & Galvan
315 Montgomery St 10th Fl
San Francisco, CA

10Legal Services For Children (Amicus curiae)
Represented by Amy Elizabeth Whelan
Rosen Bien & Galvan
315 Montgomery St 10th FL
San Francisco, CA

11Western Center On Law & Poverty (Amicus curiae)
Represented by Sanford Jay Rosen
Rosen Bien & Galvan
315 Montgomery St 10th Fl
San Francisco, CA

12Western Center On Law & Poverty (Amicus curiae)
Represented by Amy Elizabeth Whelan
Rosen Bien & Galvan
314 Montgomery St 10th FL
San Francisco, CA

13Youth Law Center (Amicus curiae)
Represented by Sanford Jay Rosen
Rosen Bien & Galvan
315 Montgomery St 10th Fl
San Francisco, CA

14Youth Law Center (Amicus curiae)
Represented by Amy Elizabeth Whelan
Rosen Bien & Galvan
315 Montgomery St 10th FL
San Francisco, CA

15Protection & Advocacy (Amicus curiae)
Represented by Sanford Jay Rosen
Rosen Bien & Galvan
315 Montgomery St 10th Fl
San Francisco, CA

16Protection & Advocacy (Amicus curiae)
Represented by Amy Elizabeth Whelan
Rosen Bien & Galvan
315 Montgomery St 10th FL
San Francisco, CA

17Planning & Conservation League (Amicus curiae)
Represented by Ellison Folk
Shute Mihaly & Weinberger
396 Hayes Street
San Francisco, CA

18Natural Resources Defense Council (Amicus curiae)
Represented by Ellison Folk
Shute Mihaly & Weinberger
396 Hayes Street
San Francisco, CA

19Baykeeper (Amicus curiae)
Represented by Ellison Folk
Shute Mihaly & Weinberger
396 Hayes Street
San Francisco, CA

20Los Angeles County Bar Association (Amicus curiae)
Represented by Scott William Davenport
Manning & Marder et al., LLP
1 Park Plaza, Suite 500
Irvine, CA

21Children Of Lesbians & Gays Everywhere (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

22Family Pride Coalition (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

23Los Angeles Gay & Lesbian Center (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

24Lambda Legal Defense & Education Fund (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

25Lesbian & Gay Lawyers Association Of Los Angeles (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

26National Center For Lesbian Rights (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

27Our Family Coalition (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

28Pop Luck Club (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

29San Diego Family Matters (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

30Tom Homann Law Association (Amicus curiae)
Represented by Jennifer Carol Pizer
Lambda Legal Defense & Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA

31Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Sanford Jay Rosen
Rosen Bien & Galvan
315 Montgomery St 10th Fl
San Francisco, CA

32Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Amy Elizabeth Whelan
Rosen Bien & Galvan
315 Montgomery Street, 10th Floor
San Francisco, CA

33Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

34Beverly Hills Bar Association (Amicus curiae)
Represented by Scott William Davenport
Manning & Marder et al., LLP
1 Park Plaza, Suite 500
Irvine, CA


Disposition
Jan 24 2008Opinion: Affirmed

Dockets
Oct 17 2005Petition for review filed
  By counsel for respondent, Annette F.
Oct 20 2005Received Court of Appeal record
  2-doghouses
Oct 25 2005Request for judicial notice received (pre-grant)
  by resp Annette F.
Oct 31 2005Answer to petition for review filed
  by Appellant Sharon S. (Mother) CRC 40.1(b)/FedEx
Nov 14 2005Reply to answer to petition filed
  by respondent.
Dec 14 2005Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Werdegar, Chin, and Moreno, JJ.
Dec 23 2005Certification of interested entities or persons filed
  Attorney Charles A. Bird for respondent Annette F.
Dec 27 2005Certification of interested entities or persons filed
  Sharon S., Appellant by John L. Dodd, Counsel
Jan 10 2006Certification of interested entities or persons filed
  Attorney Judith Klein, for minor.
Jan 13 2006Opening brief on the merits filed
  Respondent, Annette F. by counsel, Charles A. Bird.
Jan 13 2006Request for judicial notice filed (granted case)
  Resondent, Annette F. - second request-. by counsel, Charles A. Bird.
Feb 14 2006Answer brief on the merits filed
  Sharon S., Appellant by John L. Dodd, counsel
Feb 14 2006Request for judicial notice filed (granted case)
  Legislative History Sharon S. Appellant by John L. Dodd, counsel
Feb 23 2006Request for extension of time filed
  Respondent, Annette F., to file the reply brief on the merits. Asking to April 3,2006.
Feb 24 2006Extension of time granted
  to April 3, 2006 to file reply brief on the merits.
Apr 3 2006Reply brief filed (case fully briefed)
  Annette F., respondent by Charles A. Bird, counsel
May 3 2006Received application to file Amicus Curiae Brief
  Children of Lesbians and Gays Everywhere, etal Attorneys Jennifer C. Pizer and Shannon Minter, Retained
May 3 2006Received application to file Amicus Curiae Brief
  Los Angeles County Bar Association and Beverly Hills Bar Association Attorney Scott Wm. Davenport, Retained
May 3 2006Received application to file Amicus Curiae Brief
  American Civil Liberties Union, et al. in support of Respondent, Annette F.
May 3 2006Received application to file Amicus Curiae Brief
  Planning and Conservation League, et al., in support of respondent, Annette F. by counse. Ellison Folk.
May 4 2006Permission to file amicus curiae brief granted
  American Civil Liberties Union, Bay Area Lawyers for Individual Freedom, Legal Services for Children,Western Center on Law &Poverty, The Youth Law Center and Protection & Advocacy, in support of respondent. Answer due within twenty days.
May 4 2006Amicus curiae brief filed
  American Civil Liberties Union, et al., in support of respondent.
May 4 2006Permission to file amicus curiae brief granted
  Planning and Conservation League, Natural Resources Defense Council, and Baykeeper in support of respondent. Answer due within twenty days.
May 4 2006Amicus curiae brief filed
  Planning and Conservation League, et al., in support of respondent.
May 8 2006Permission to file amicus curiae brief granted
  The Los Angeles County Bar Associaiton and The Beverly Hills Bar Association in support of respondent Annette F. Answer due in twenty days.
May 8 2006Amicus curiae brief filed
  The Los Angeles County Bar Association and The Beverly Hills Bar Association in support of respondent.
May 9 2006Change of contact information filed for:
  Alan L. Schlosser, attorney for Amicus Curiae
May 10 2006Permission to file amicus curiae brief granted
  Children of Lesbians and Gays Everywhere, et al., in support of respondent. Answer due within 20 days.
May 10 2006Amicus curiae brief filed
  Children of Lesbians and Gays Everywhere, et al., in support of respondent.
May 15 2006Request for extension of time filed
  to July 2, 2006 for Appellant, Sharon S. to file one consolidated answer to amicus curiae briefs. by counsel, John L. Dodd.
May 16 2006Extension of time granted
  to July 2, 2006 to file appellant's Sharon S., consolidated answer to Amicus Curiae Brief.
May 24 2006Change of contact information filed for:
  attorney William E. Blatchley : associate for appellant Sharon S.
Jun 30 2006Response to amicus curiae brief filed
  Sharon S., appellant by John L. Dodd, counsel Sharon S.' Answer Brief to Briefs of Amici
Mar 23 2007Received:
  letter dated March 15, 2007 from John L. Dodd & Associates
Apr 11 2007Additional issues ordered
  The parties in the above-entitled matter are requested to address these additional issues: (1) Does Code of Civil Procedure section 1021.5 authorize an award of attorney fees against a litigant who done nothing to adversely affect the rights of the public or a substantial class of people other than raising an issue in the course of litigation over private rights and interests that results in an important appellate precedent adverse to that litigant? Would case law and legislative history support such an award? (2) What significance if any to a party's eligibility for section 1021.5 attorney fees in a family law case is the fact that the Family Code contains numerous attorney fee statutes? (See, e.g., Fam. Code, sections 270, 2030, 3028, 7640.) Is there any basis in the Family Code or elsewhere, other than section 1021.5, for Annete's recovery of attorney fees? The parties are to submit simultaneous letter briefs by May 11, 2007, and may submit reply briefs by May 25, 2007.
Apr 24 2007Request for extension of time filed
  to file supplemental briefs: simultaneous first briefs: 6-18-07; simultaneous reply briefs: 7-2-07. Jount application of Appellant and Respondent
Apr 25 2007Note: Mail returned and re-sent
 
Apr 30 2007Extension of time granted
  On application of respondent, Annette F., and appellant, Sharon S., and good cause appearing, it is ordered that the time to serve and file the supplemental letter briefs is extended to and including June 18, 2007. The simultaneous filing of the reply briefs is extended to and including July 2, 2007. No further extensions of time will be granted.
Jun 18 2007Supplemental brief filed
  Respondent, Annette F. by counsel, Charles A. Bird
Jun 18 2007Request for judicial notice filed (granted case)
  Respondent, Annette F. by counsel, Charles A. Bird
Jun 18 2007Supplemental brief filed
  Appellant, Sharon S. by counsel, John L. Dodd.
Jul 2 2007Supplemental brief filed
  Supplemental reply brief of respondent, Annette F. by counsel, Charles A. Bird.
Jul 2 2007Supplemental brief filed
  Appellant Sharon S.' reply to supplemental brief of Annette F. by counsel, John L. Dodd.
Jul 11 2007Supplemental brief filed
  Amicus Curiae - Lambda Legal supplemental letter brief of amicus curriae in support of Annette F. by Jennifer Pizer with permission
Jul 11 2007Request for extension of time filed
  Appellant Sharon S.,asking to July 26, 2007 to respond to amicus letter filed 7-11-07. by counsel, John L. Dodd.
Jul 12 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the response to the supplemental letter brief filed by Lambda Legal is extended to and including July 26, 2007.
Jul 23 2007Filed:
  Appellant, Sharon S.' response to Lambda's supplemental letter brief. by counsel, John L. Dodd.
Jul 26 2007Notice of substitution of counsel
  Sanford Jay Rosen and Amy Whelan of Rosen, Bien & Galvan, LLP replacing Angdrea G. Asara with The American Civil Liberties Union, Bay Area Lawyers for Individual Freedom, Legal Services for Children Western Center on Law & Poverty, The Youth Law Center, and Protection and Advocacy.
Aug 17 2007Filed:
  notice of unavailability of counsel by Charles A. Bird, attorney for respondent
Aug 17 2007Request for judicial notice granted
  In the above-entitled matter, the court grants Annette F.'s Request for Judicial Notice, filed Ocotber 25, 2005; Annette F.'s Second Request for Judicial Notice, filed January 13, 2006; Sharon S.'s Request for Judicial Notice of Legilative History, filed February 14, 2006; and Annette F.'s Request for Judicial Notice Accompanying Opening Letter Brief, filed June 18, 2007.
Oct 2 2007Case ordered on calendar
  to be argued on Tuesday, November 6, 2007, at 1:30 p.m., in Sacramento.
Nov 6 2007Stipulation filed
  Counsel for the parties in the above-entitled action, having been informed by the Clerk of the Court that Justice Corrigan will not be present at oral argument because of illness, but will review the tape recording of the oral argument, hereby stipulate that they have no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Nov 6 2007Cause argued and submitted
 
Jan 24 2008Opinion filed: Judgment affirmed in full
  Opinion by Moreno, J. ----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Corrigan, JJ.
Feb 27 2008Remittitur issued (civil case)
 
Mar 3 2008Received:
  receipt for remittitur CA 4/1.

Briefs
Jan 13 2006Opening brief on the merits filed
 
Feb 14 2006Answer brief on the merits filed
 
Apr 3 2006Reply brief filed (case fully briefed)
 
May 4 2006Amicus curiae brief filed
 
May 4 2006Amicus curiae brief filed
 
May 8 2006Amicus curiae brief filed
 
May 10 2006Amicus curiae brief filed
 
Jun 30 2006Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 8, 2009
Annotated by admin.ah

Written by: Mark Gaber
SUMMARY

The present case is a determination of whether plaintiff‐respondent Annette F. should be
awarded attorney fees for her successful litigation in Sharon S. v. Super. Ct. of San Diego
County. That case involved Sharon S. and Annette F., a same‐sex couple, who were in a
relationship from 1989 through mid‐2000. The couple met while they were both attending
Harvard Business School and moved to California in 1990.1 Sharon was artificially
inseminated in 1996 and gave birth to a son, Zachary, whom Annette adopted (with Sharon
also retaining parental rights). Through the same sperm donor, Sharon was again
artificially inseminated in 1999, giving birth to Joshua. Sharon again consented to
Annette’s adoption of Joshua. Shortly thereafter, Sharon an Annette ended their
relationship, and Annette moved out of the home.
After Annette sought a court order of adoption, Sharon sought court approval to rescind
her adoption consent, arguing in part that “second‐parent” adoptions, such as Annette’s
adoptions of Zachary and Joshua, were not legal. While Annette prevailed at the trial court,
the appeals court sided with Sharon. The California Supreme Court reversed, holding that
second‐parent adoptions, of which there are 10,000 to 20,000 in the state, are legal. The
present case arises from this matter. In Adoption of Joshua S., Annette is seeking attorney
fees from Sharon, arguing that she was litigating a matter of important public concern, and
that the costs of the litigation transcended her private interest in the case.
California follows the “American Rule,” which provides that each party to a suit pays its
own attorney fees. This rule recognizes the uncertainty of litigation outcomes, and
encourages parties, many of whom have limited financial resources, to defend actions
without the fear that they may also be responsible for their opponent’s costs. But CAL. CIV.
PROC. CODE § 1021.5 provides an exception for “private attorney general actions”—actions
that lead to enforcement of an important right affecting the public interest, grant a
significant pecuniary or nonpecuniary benefit on the general public or a large class of
persons, and make the award of fees necessary based on the action’s necessity and financial
burden.
The trial court awarded Annette attorney fees, finding that her litigation costs transcended
her private benefit. The appeals court reversed, holding that Annette’s strong personal
interest in obtaining the adoption order disqualified her from receiving attorney fees. The
California Supreme Court affirmed, but on other grounds. The court found that Sharon was
not within the class of litigants contemplated by § 1021.5. The court found that in cases
where the attorney fees have been granted, the party assessed the fees acted or failed to act
in a way that affected the public interest. Here, Sharon was simply a private party seeking
resolution of her private rights—the fact that the decision yielded important appellate
precedent does not bring her under the purview of § 1021.5.

Jan 8, 2009
Annotated by admin.ah

HOLDING IN BRIEF

Attorneys fees under CAL. CIV. PROC. CODE § 1021.5 may not be assessed against a party who
does nothing to adversely affect the public interest and is seeking only a determination of
her private rights.

STATUTE IN QUESTION

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 in the interest of justice be paid out of the recovery, if any.