Supreme Court of California Justia
Citation 34 Cal. 4th 604; 101 P.3d 174; 21 Cal. Rptr. 3d 371

Tipton-Whittingham v. City of LA


Filed 12/2/04 (this opn. should follow companion case filed same date, S112862)

IN THE SUPREME COURT OF CALIFORNIA

TERRY TIPTON-WHITTINGHAM et al., )

Plaintiffs
and
Appellants,
v.
S112943
CITY OF LOS ANGELES,
Defendant and Appellant.

We granted the request of the United States Court of Appeals for the Ninth
Circuit to answer two related questions of law. (Cal. Rules of Court, rule 29.8.)
(1) May attorney fees as provided for in Code of Civil Procedure section 1021.5
and Government Code section 12965, subdivision (b), be awarded where the
plaintiff has been the “catalyst” in bringing about the relief sought by the
litigation? (2) If the catalyst theory is viable under California law, will that theory
support an award of attorney fees where the plaintiff “activates” the defendant to
modify its behavior; or does California law require a judicially recognized change
in the legal relationship between the parties, such as a judgment on the merits, a
consent decree, or a judicially ordered settlement?
The facts, as described in the request for decision, are as follows: The City
of Los Angeles (the City), appeals from the district court’s order of September 21,
2001, awarding interim catalyst attorney fees and costs, under California law, to
plaintiffs, Terry Tipton-Whittingham, et al.. The case filed in the district court is a
1



class action on behalf of women officers and women civil employees of the Los
Angeles Police Department (LAPD) who allege they have been subjected to
discrimination on the basis of sex and/or race. Plaintiffs sought injunctive relief
and damages pursuant to federal and state constitutional claims, federal and state
statutory claims, and state tort claims.
After the case was filed, the parties entered into settlement discussions
leading to a consent decree that later was revoked by United States District Judge
Keller. Thereafter, plaintiffs began new settlement discussions with the newly
appointed LAPD Chief, Bernard C. Parks. Those talks did not result in any
contractual or court-ordered agreement. Instead, the LAPD voluntarily instituted
several changes directed toward antidiscrimination. Noting that the changes were
very similar to the original consent decree, plaintiffs represented to the district
court that their injunctive relief claims were moot as they had been “resolved
informally through negotiations that have not resulted in a formal agreement
between the parties, but have resulted in comprehensive change sufficient to moot
plaintiffs’ claims.” On a joint motion of the parties, the district court dismissed
plaintiffs’ claims for injunctive relief. Approximately one year later, plaintiffs
moved for attorney fees and costs under California Code of Civil Procedure
section 1021.5 and the Fair Employment and Housing Act (FEHA), Government
Code section 12965, subdivision (b). They asserted they had prevailed on their
state and federal injunctive relief claims as evidenced by the City’s policy
changes, and they contended their efforts had brought about those changes.
United States District Judge Terry J. Hatter, Jr., granted the motion, awarding
plaintiffs costs and more than $1,703,383 in attorney fees. The City did not appeal
from that order and in fact paid the award in the fall of 2000.
2

On July 20, 2001, the City moved for reconsideration of the district court’s
order in light of the United States Supreme Court’s decision in Buckhannon Bd. v.
West Virginia D.H.H.R. (2001) 532 U.S. 598 (Buckhannon), which rejected the
catalyst theory as a legal basis for the recovery of prevailing-party attorney fees
under certain federal statutes. The district court granted the City’s motion for
reconsideration, denied plaintiffs’ attorney fees and costs under federal law, but
upheld the entire award under California law. The Ninth Circuit then certified to
this court the above questions pertaining to the viability of the catalyst theory
under California law.
For the reasons explained in the companion case of Graham v.
DaimlerChrysler Corporation (Dec. 2, 2004, S112862) ___ Cal.4th ___
(Graham), we answer the questions as follows. California law continues to
recognize the catalyst theory and does not require “a judicially recognized change
in the legal relationship between the parties” as a prerequisite for obtaining
attorney fees under Code of Civil Procedure section 1021.5. In order to obtain
attorney fees without such a judicially recognized change in the legal relationship
between the parties, a plaintiff must establish that (1) the lawsuit was a catalyst
motivating the defendants to provide the primary relief sought; (2) that the lawsuit
had merit and achieved its catalytic effect by threat of victory, not by dint of
nuisance and threat of expense, as elaborated in Graham; and, (3) that the
plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit.
Because this case concerns a public entity, we emphasize another critical
limitation first articulated when we originally recognized the catalyst theory over
20 years ago. In Westside Community for Independent Living, Inc. v. Obledo
(1983) 33 Cal.3d 348, we considered a suit demanding the defendant Secretary of
the Health and Welfare Agency establish guidelines implementing legislation that
3

would prohibit various types of discrimination by state-funded programs. We
found no causal connection between the lawsuit and the eventual issuance of those
regulations, the process of which was already well underway when the lawsuit was
filed. The majority rejected as a factual matter the dissent’s argument that the
lawsuit expedited the issuance of the regulations, but went on to state that even if
that were true, attorney fees should not be awarded. As this court stated:
“[A]warding attorney fees to plaintiffs on the basis of the expedited [promulgation
of regulations] would have detrimental consequences for the public in future
lawsuits involving similar causes of action against public agencies. Once an
agency was sued, it would refrain from taking any steps that it would normally
take to accelerate the promulgation process, for fear that its actions would be
perceived by the court as having been induced by the litigation. To avoid the
possibility of having to pay attorney fees, the agency would strictly adhere to the
original timetable that it had set for completing its work. This would deprive the
public of the benefit to be gained from a speedier promulgation of the
regulations.” (Id. at p. 354, fn. 6.)
We reiterate Westside Community’s holding. Attorney fees may not be
obtained, generally speaking, by merely causing the acceleration of the issuance of
government regulations or remedial measures, when the process of issuing those
regulations or undertaking those measures was ongoing at the time the litigation
was filed. When a government agency is given discretion as to the timing of
performing some action, the fact that a lawsuit may accelerate that performance
does not by itself establish eligibility for attorney fees.
The City argues that the catalyst theory will deter public agencies from
making voluntary policy changes after litigation has been filed. As noted above,
we have adopted the requirement that a plaintiff attempt to settle its grievance
4

short of litigation. Thus, for example, when the responsible authorities of a public
agency are unaware of a discriminatory policy by their subordinates, prompt
correction of this policy once it is brought to their attention will avoid payment of
attorney fees. Moreover, when a government agency is clearly given discretion to
choose among a number of courses of action, the fact that it chooses to exercise its
discretion in a manner favorable to a plaintiff in a lawsuit filed against it does not
mean that its actions were required by law.
The certified question also asks about the viability of the catalyst theory
under Government Code section 12965, subdivision (b), a part of the FEHA. That
subdivision states, in pertinent part: “In actions brought under this section, the
court, in its discretion, may award to the prevailing party reasonable attorney’s
fees and costs . . . .” The FEHA is, inter alia, a statutory expression of the
fundamental policy against employment discrimination. (Flannery v. Prentice
(2001) 26 Cal.4th 572, 584.) “[S]ection 12965 [attorney] fees are intended to
provide ‘fair compensation to the parties involved in the litigation at hand and
encourage[] litigation of claims that in the public interest merit litigation.’ ”
(Ibid.) In deciding whether to, and how to, award attorney fees under section
12965, subdivision (b), courts will look to the rules set forth in cases interpreting
section 1021.5. (See, e.g., Greene v. Dillingham Construction N.A., Inc. (2002)
101 Cal.App.4th 418, 422; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th
1128, 1172.)
5

In light of similarities in language and purpose between Code of Civil
Procedure section 1021.5 and Government Code section 12965, subdivision (b),
we conclude that the catalyst theory, as articulated above, should apply to the
award of fees under the latter statute. The City’s argument to the contrary is based
primarily on the meaning of the term “prevailing party.” As explained in Graham,
“prevailing party” and “successful party” are synonymous terms, and neither
preclude the application of the catalyst theory in an attorney fee statute nor require
that the successful or prevailing party obtain a court judgment. Nor do we accept
the argument that anything in prior case law or legislative history binds us to
accept the most recent interpretation of similar federal statutes by the United
States Supreme Court. We therefore affirm that the catalyst theory, as articulated
in Graham and above, fully applies to fees awarded under Government Code,
section 12965, subdivision (b).
MORENO, J.

WE CONCUR: GEORGE, C. J.

KENNARD,
J.

WERDEGAR,
J.
6



C O P Y

TIPTON-WHITTINGHAM ET AL. v. CITY OF LOS ANGELES

S112943

DISSENTING OPINION BY CHIN, J.

I dissent.
The United States Court of Appeals for the Ninth Circuit has asked us to
answer two related certified questions of California law: (1) May attorney fees as
provided for in Code of Civil Procedure section 1021.5 and Government Code
section 12965, subdivision (b), be awarded where the plaintiff has been the
“catalyst” in bringing about the relief sought by the litigation? (2) If the catalyst
theory is viable under California law, will that theory support an award of attorney
fees where the plaintiff “activates” the defendant to modify its behavior; or does
California law require a judicially recognized change in the legal relationship
between the parties, such as a judgment on the merits, a consent decree, or a
judicially ordered settlement?
The certification request (Tipton-Whittingham v. City of Los Angeles (9th
Cir. 2003) 316 F.3d 1058, 1060-1061) informs us that plaintiffs filed this action as
a class action seeking injunctive relief and damages against the City of Los
Angeles (City) on behalf of women officers and women civil employees of the
Los Angeles Police Department (LAPD). The suit alleges they have been
subjected to racial or sexual discrimination, or both. The parties entered into
settlement discussions leading to a consent decree that the district court later
revoked. The plaintiffs then began new settlement negotiations with the newly
1



appointed Los Angeles Police Chief, Bernard C. Parks. Those talks did not result
in any contractual or court-ordered agreement. Instead, the LAPD voluntarily
instituted several changes directed toward anti-discrimination. Noting that the
changes were similar to the original consent decree, the plaintiffs told the district
court that their injunctive relief claims were moot as they had been “resolved
informally through negotiations that have not resulted in a formal agreement
between the parties, but have resulted in comprehensive change sufficient to moot
plaintiffs’ claims.” On the parties’ joint motion, the court dismissed the claims for
injunctive relief.
Plaintiffs moved for attorney fees. They claimed they had prevailed on
their injunctive relief claims due to the City’s policy changes, and that their efforts
had brought about those changes. The court granted the motion and awarded
plaintiffs costs and more than $1,703,383 in attorney fees. Later the City moved
for reconsideration of the award in light of Buckhannon Board & Care Home, Inc.
v. West Virginia Dept. of Health and Human Resources (2001) 532 U.S. 598. The
district court granted the motion for reconsideration. It denied attorney fees and
costs under federal law but upheld the entire award under California law. The
City appealed.
For the reasons explained in my dissent in the companion case of Graham
v. DaimlerChrysler Corporation (December 2, 2004, S112862) ___ Cal.4th ___,
___(Graham), we should reject the catalyst theory. I would answer the
certification questions as follows: (1) The catalyst theory alone will not support
an award of attorney fees under California law. (2) California law requires a
judicially recognized change in the legal relationship between the parties to
support an award of attorney fees.
2

This case differs from Graham in one significant respect that makes the
catalyst theory especially pernicious here: The defendant is a governmental entity.
Plaintiffs are seeking $1.7 million in attorney fees from the taxpayers of Los
Angeles. Obviously, it is not for this court to decide whether a federal court
should award attorney fees under a state statute that federal law does not permit
and, if so, how to apply the majority’s catalyst jurisprudence to this case. The
federal court will have to struggle with these questions. But the majority has
certainly opened the door to attorney fee awards of this kind.
Thus, the taxpayers may ultimately bear the cost even though, judging from
what the Ninth Circuit has informed us, no court has found that the City or any
City official ever violated the law. A city can finance a lot of municipal services
for $1.7 million. It can pay for law enforcement officers, fire trucks and
firefighters, parks, libraries, mental health care, and much more, all of which is
actually beneficial to society. A large award like this against a school district
could consume tax resources needed for teachers, textbooks, computers, music,
art, and sports programs. Such an award could devastate, even bankrupt, a smaller
governmental entity. Taxpayers should not have to pay millions of dollars to
attorneys who never established that any public official violated the law. We
should not endorse this raid on the public fisc.
In this case, the LAPD, under a newly appointed police chief, instituted
voluntary changes that triggered a $1.7 million award of attorney fees against the
City of Los Angeles. The threat of such large awards of attorney fees will
“discourage[] public officials from taking initiatives to revise outmoded
ordinances or to improve institutional conditions, because [the catalyst] theory
expressly recognizes ‘voluntary actions taken by a defendant’ as a proper basis for
a fee award . . . whether or not the court could have ordered that change in
3

conduct. In this way, catalyst theory serves to disable public officials, who may
come to fear that worthwhile changes may be retroactively linked to a lawsuit and
result in a hefty bill for attorneys’ fees.” (S-1 By and Through P-1 v. State Bd. of
Educ. (4th Cir. 1993) 6 F.3d 160, 172 (dis. opn. of Wilkinson, J.).)
We expressed a similar concern ourselves in Westside Community for
Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, where we overturned an
award of attorney fees against a governmental agency predicated on the catalyst
theory. In a discussion that argues against the entire catalyst theory, and not just
its application in that case, we rejected the argument that attorney fees were
appropriate because the lawsuit had caused the public agency to accelerate the
process of issuing certain regulations: “[A]warding attorney fees to plaintiffs on
the basis of the expedited fiscal study would have detrimental consequences for
the public in future lawsuits involving similar causes of action against public
agencies. Once an agency was sued, it would refrain from taking any steps that it
would normally take to accelerate the promulgation process, for fear that its
actions would be perceived by the court as having been induced by the litigation.”
(Id. at p. 354, fn. 6.) This concern can be expressed more broadly. Awarding
attorney fees on the basis of a governmental agency’s voluntary actions would
have detrimental consequences for the public in future lawsuits against
governmental agencies. Once sued, an agency may hesitate to take steps that
might be good policy, although not legally required, for fear that its actions will
expose it to substantial attorney fee awards.
4

We should reject the entire catalyst theory, not extend it to governmental
defendants.
CHIN,
J.
WE CONCUR: BAXTER, J.

BROWN,
J.
5



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

Name of Opinion Tipton-Whittingham v. City of Los Angeles
__________________________________________________________________________________

Unpublished Opinion


Original Appeal XXX (on certification pursuant to rule 29.8, Cal. Rules of Court)
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S112943
Date Filed: December 2, 2004
__________________________________________________________________________________

Court:


County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of Carol A. Sobel, Carol A. Sobel; Litt & Associates, Barrett S. Litt, Paula A. Daniels; English,
Munger & Rice, Constance L. Rice; NAACP Legal Defense and Educational Fund, Theodore Shaw; ACLU
Foundation of Southern California, Mark D. Rosenbaum; Schonbrun, Desimone, Seplow, Harris &
Hoffman and Paul L. Hoffman for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief
Assistant Attorney General, Theodora Berger, Assistant Attorney General, and Edward G. Weil, Deputy
Attorney General, as Amici Curiae on behalf of Plaintiffs and Appellants.

F. Paul Bland, Kerry-Ann T. Powell, Victoria W. Ni, Arthur H. Bryant; Michael Schuster, Deborah
Zuckerman; and Mark Savage for Trial Lawyers for Public Justice, AARP, ACLU of Northern California,
ACLU of San Diego and Imperial Counties, Asian Law Caucus, Asian Pacific American Legal Center of
Southern California, Bet Tzedek-The House of Justice, California League for Environmental Enforcement
Now, California Women’s Law Center, Consumers Union of U.S., Inc., Disability Rights Advocates,
Disability Rights Education and Defense Fund, Inc., The First Amendment Project, The Impact Fund, Law
Offices of Joaquin G. Avila, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal
Aid Foundation of Los Angeles, Mexican American Legal Defense and Educational Fund, National
Association of Consumer Advocates, National Center for Youth Law, Prison Law Office, Protection and
Advocacy, Inc., Public Advocates, Inc., Public Citizen, Public Counsel, Public Interest Law Project, Rosen,
Bien & Asaro, Western Center on Law and Poverty, Western Law Center for Disability Rights and Youth
Law Center as Amici Curiae on behalf of Plaintiffs and Respondents.
__________________________________________________________________________________

Attorneys for Respondent:

Rockard Delgadillo, City Attorney, Claudia McGee Henry and Gary G. Geuss, Assistant City Attorneys,
Angel Manzano, Jr., Deputy City Attorney; Bergman & Dacey, Gregory M. Bergman, Mark W. Waterman
and Beth D. Orellana for Defendant and Appellant.


1

Page 2 - counsel continued - S112943

Attorneys for Respondent:

Marsha Jones Moutrie, City Attorney (Santa Monica), for League of California Cities and California State
Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

Somach, Simmons & Dunn, Timothy M. Taylor, Erica R. Arceo and Nicholas A. Jacobs for Western Placer
Waste Management Authority as Amicus Curiae on behalf of Defendant and Appellant.
2



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

Carol A. Sobel
Law Office of Carol A. Sobel
429 Santa Monica Boulevard, Suite 550
Santa Monica, CA 90401
(310) 393-3055

Beth D. Orellana
Bergman & Dacey
10880 Wilshire Boulevard, Suite 900
Los Angeles, CA 90024-4101
(310) 470-6110

3


Opinion Information
Date:Citation:Docket Number:
Thu, 12/02/200434 Cal. 4th 604; 101 P.3d 174; 21 Cal. Rptr. 3d 371S112943

Parties
1Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Barrett S. Litt
Litt & Marquez
3435 Wilshire Blvd #1100
Los Angeles, CA

2Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Carol A. Sobel
Law Offices
429 Santa Monica Blvd #550
Santa Monica, CA

3Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Paula A. Daniels
Litt & Associates
3435 Wilshire Blvd #1100
Los Angeles, CA

4Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Paul L. Hoffman
Schonbrun Desimone Seplow Harris & Hoffman, LLP
723 Ocean Front Walk
Venice, CA

5Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Constance Lamay Rice
English, Munger & Rice
1545 Wilshire Blvd #800
Los Angeles, CA

6Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

7Tipton-Whittingham, Terry (Plaintiff and Appellant)
Represented by Theodore Michael Shaw
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson St 16th Fl
New York, NY

8Davilier, Kathy (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

9Doe, Jane (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

10Gonzalez, Teresa (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

11Lewis, Myrna (Plaintiff and Appellant)
12Moore, Neadie (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

13Nichols, Debbie (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

14Peyton, Joseph M. (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

15Roberts, Pam (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

16Santos, Eleanor (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

17Simpson, Kathy (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

18Tomlinson, Zina (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

19Castruita, Connie (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

20Guel, Catherine (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

21James, Alicia (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

22Sullivan, Julie (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

23Age, Kathy (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

24Shuman, Cathy (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

25Juarez, Cynthia (Plaintiff and Appellant)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

26Abella, Lita (Plaintiff)
Represented by Bradley C. Gage
Goldberg & Gage
23002 Victory Blvd
Woodland Hills, CA

27City Of Los Angeles (Defendant and Appellant)
Represented by Gregory Mark Bergman
Bergman & Dacey, Inc.
10880 Wilshire Blvd #900
Los Angeles, CA

28City Of Los Angeles (Defendant and Appellant)
Represented by Rockard John Delgadillo
City Attorney
200 N Main St #1800
Los Angeles, CA

29City Of Los Angeles (Defendant and Appellant)
Represented by Angel Manzano
Office of the City Attorney
200 N Main St 17FL
Los Angeles, CA

30City Of Los Angeles (Defendant and Appellant)
Represented by Beth Danielle Orellana
Attorney at Law
10880 Wilshire #900
Los Angeles, CA

31City Of Los Angeles (Defendant and Appellant)
Represented by Mark William Waterman
Bergman & Dacey, Inc.
10880 Wilshire Blvd #900
Los Angeles, CA

32Los Angeles Police Protective League (Defendant)
Represented by Rockard John Delgadillo
City Attorney
200 N Main St #1800
Los Angeles, CA

33United States Court Of Appeals For The Ninth Circuit (Overview party)
95 Seventh Street
P. O. Box 193939
San Francisco, CA 94119

34Lockyer, Bill (Amicus curiae)
Represented by Edward G. Weil
Ofc Attorney General
1515 Clay St 20FL
Oakland, CA

35League Of California Cities (Amicus curiae)
Represented by Marsha Jones Moutrie
City Attorney, Office of the City Attorney
1685 Main St 3FL
Santa Monica, CA

36Western Placer Waste Management Authority (Amicus curiae)
Represented by Timothy Taylor
Somach Simmons & Dunn
813 Sixth Street, Third Floor
Sacramento, CA

37Trial Lawyers For Public Justice (Amicus curiae)
Represented by Victoria Wei-Chi Ni
Trial Lawyers Publ Justice
555 Twelfth St., Suite 1620
Oakland, CA

38American Association Of Retired Persons (Amicus curiae)
Represented by Arthur H Bryant
TLPJ
555 Twelfth St., Suite 1620
Oakland, CA

39California State Association Of Counties (Amicus curiae)
Represented by Marsha Jones Moutrie
Ofc City Attorney
1685 Main St 3FL
Santa Monica, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
DissentJustice Ming W. Chin

Disposition
Dec 2 2004Opinion filed

Dockets
Jan 21 2003Request to answer question of state law filed
  by counsel for petitioners
Jan 21 2003Received:
  from U.S. Ninth Circuit Court of Appeals certified record containing: Opening Brief (1), Answering & Opening Brief (1), Reply/Answer Brief (1) plus Notice of Errata to Reply/Answer Brief (1), and Reply Brief (1). 2-vols. of Excerpts of Record on Appeal and 2-vols. of Supplemental Excerpt of Record on Appeal.
Feb 7 2003Received letter from:
  City of Los Angeles, letter is dated February 7, 2003 and urges a grant
Feb 10 2003Received letter from:
  Gibson, Dunn & Crutcher LLP, letter dated Feb 10, 2003. advising the court the questions to be considered in "Graham" and "Tipton-Whittingham" are identical.
Feb 10 2003Received letter from:
  counsel for appellant Tipton-Whittingham. letter urges court not to grant certification on either question presented by ninth circuits's order. letter is dated February 10, 2003.
Feb 10 2003Received letter from:
  non party; attorneys for petitioners Daimler Chrysler Corpo & DaimlerChrysler Motors Corp., case no. S112862. letter urges court to grant/hold in either matter.
Feb 18 2003Received letter from:
  appellant City of Los Angeles dated Feb. 18, 2003
Feb 20 2003Received letter from:
  applntt, City of L.A., in reply to applnt., Terry Tipton-Whittingham's letter in opposition, etc. / letter is dated Feb. 20, 2003./
Mar 19 2003Letter sent to:
  All counsel enclosing a copy of the grant order and the Certification of Interested Entitles or Persons Form
Mar 19 2003Request for certification granted
  The request, made pursuant to California Rules of Court, rule 29.8, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. The questions presented are: (1) Under California law, may attorneys' fees as provided for in California Code of Civil Procedure ? 1021.5 and the California Fair Employment and Housing Act ? 12965(b) be awarded where the plaintiff has been the "catalyst" in bringing about the relief sought by the litigation? (2) If the catalyst theory is viable under California law, will that theory support an award of attorneys' fees where the plaintiff "activates" the defendant to modify his behavior? See Maria P. v. Riles, 43 Cal.3d 1281, 1291-92 (1987)(citations omitted). Or, does California law require a judicially recognized change in the legal relationship between the parties, such as a judgment on the merits, a consent decree, or a judicially-ordered settlement? For purposes of briefing and oral argument, Appellant City of Los Angeles is deemed petitioner in this court.
Apr 1 2003Certification of interested entities or persons filed
  Counsel for appellant, CITY OF LOS ANGELES.
Apr 1 2003Request for extension of time filed
  to file opening brief/merits asking to May 5, 2003.
Apr 2 2003Certification of interested entities or persons filed
  counsel for plaintiff, Lita Abella
Apr 4 2003Extension of time granted
  On application of defendant and appellant City of Los Angeles and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including May 5, 2003.
May 5 2003Opening brief on the merits filed
  appellant CITY OF LOS ANGELES
May 5 2003Request for judicial notice filed (in non-AA proceeding)
  appellant, CITY OF LOS ANGELES,
May 8 2003Received:
  amended proof of service re: the City's Opening Brief on the Merits, Request for Judicial Notice.
May 29 2003Request for extension of time filed
  applnts ACLU FOUNDATION OF SO. CALIFORNIA and MARK D. ROSENBAUM to file Answer Breif.merits asking to July 8, 2003
May 30 2003Received:
  FAX from L.A. Office re E.O.T. by plaintiffs and appellants (Tipton-Whittingham et al) asking to 7/8/2003, to file the answer brief on the merits. [brief is due 6/4/2003] Request granted as requested. Prepared order.
Jun 4 2003Extension of time granted
  On application of plaintiffs and appellants and good cause appearing, it is ordered that the time to serve and file their Answer Brief on the Merits is extended to and including July 8, 2003.
Jul 3 2003Request for extension of time filed
  appellant Terry Tipton-Whittingham to file opening brief/merits asking to July 23, 2003.
Jul 9 2003Extension of time granted
  On application of plaintiffs and appellants and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including July 23, 2003.
Jul 23 2003Request for extension of time filed
  answer brief/merits to 8-1-03>>appellants Terry Tipton-Whittingham
Jul 30 2003Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including August 1, 2003.
Aug 1 2003Answer brief on the merits filed
  by counsel for resps' Terry Tipton-Whittingham, et al.
Aug 1 2003Request for judicial notice filed (in non-AA proceeding)
  by counsel for respondents' Terry Tipton-Whittingham, et al.
Aug 21 2003Reply brief filed (case fully briefed)
  appellant City of Los Angeles.
Sep 22 2003Received application to file amicus curiae brief; with brief
  (in Sacramento) by Western Placer Waste Management Authority in support of defendants and appellants (City of Los Angeles et al)
Sep 22 2003Received application to file amicus curiae brief; with brief
  under same cover supporting appellant; City of Los Angeles, submitted by League of California Cities and California State Association of Counties.
Sep 22 2003Amicus curiae brief filed
  by the Attorney General in support of plaintiffs and respondents
Sep 26 2003Permission to file amicus curiae brief granted
  The application of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of appellant City of Los Angeles is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 26 2003Amicus curiae brief filed
  League of California Cities and California State Association of Counties in support of Appellant City of Los Angeles.
Sep 26 2003Permission to file amicus curiae brief granted
  On application of Western Placer Waste Management Authority for permission to file an amicus curiae brief in support of appellants City of Los Angeles et al. is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 26 2003Amicus curiae brief filed
  Western Placer Waste Management Authority in support of Appellants City of Los Angeles et al.
Oct 7 2003Received:
  Late application and amicus curiae brief of the Trial Lawyers for Public Justice, and other entities in support of plaintiffs and appellants (Tipton-Whittingham et al). [17 days late]
Oct 8 2003Filed:
  appellant, Tipton-Wittingham's application for extension of time to file consolidated response to amicus briefs [app. refers to this matter and Graham v. Daimler Chrysler-S112862] asking to Nov. 24, 2003.
Oct 14 2003Response to amicus curiae brief filed
  to ac brief of Atty General Lockyer>>apellant City of Los Angeles
Oct 14 2003Request for judicial notice filed (in non-AA proceeding)
  w/response to ac brief of Atty General Lockyer >>appellant City of Los Angeles
Oct 15 2003Extension of time granted
  On application of plaintiffs and appellants Tipton-Whittingham et al., and good cause appearing, it is ordered that the time to serve and file plaintiffs' and appellants' consolidated Response to all Amici Curiae Briefs filed is extended to and including November 24, 2003.
Oct 15 2003Permission to file amicus curiae brief granted
  The application of Trial Lawyers for Public Justice, AARP, and several other entities for permission to file an amicus curiae brief in support of plaintiffs and appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 15 2003Amicus curiae brief filed
  Trial Lawyers for Public Justice, AARP. and several other entities in support of plaintiffs and appellants.
Oct 28 2003Request for extension of time filed
  to file response to ac brief of Lawyers for Public Justice to 11-14-03 >>appellant City of Los Angeles
Nov 4 2003Extension of time granted
  On application of defendant and appellant City of Los Angeles and good cause appearing, it is ordered that the time to serve and file appellant City's Response to the Amici Curiae brief filed by Trial Lawyers for Public Justice et al. in support of respondents is exetnded to and including November 14, 2003.
Nov 8 2003Received:
  City of Los Angeles' answer brief to amicus curiae brief. re: a.c. in Daimerler Chrysler
Nov 14 2003Response to amicus curiae brief filed
  appellant City of Los Angeles' answer brief to amicus briefs, >> Trial Lawyers for Public Justice.
Nov 24 2003Request for extension of time filed
  to file consolidated response to ac briefs to 12-16-03>> appellants Tipton-Whittingham, et al
Nov 26 2003Extension of time granted
  On application of Plaintiffs and Appellants Terry Tipton-Whitingham et al and good cause appearing, it is ordered that the time to serve and file Appellants' Consolidated Response to various amicus curiae briefs is extended to and including December 16, 2003. No further extensions of time will be granted.
Dec 8 2003Received:
  appellant City of Los Angeles' response to amicus brief filed in S112862 -> Graham v Daimler filed by The Legal Aid Society-Emp Law Ctr., etc.]
Dec 16 2003Response to amicus curiae brief filed
  appellant Terry Tipton-Whittingham's consolidated answering brief in response to amici curiae.
Dec 16 2003Filed:
  City of Los Angeles' answering brief to A/C of the Legal Aid Society - Employment Law Center and Disability Rights Education and Defense Fund filed in S112862, Graham v. Daimler Chrysler. (PERM)
Dec 23 2003Received:
  appellant Tipton-Whittingham's corrected p.o.s. for consolidated answering brief in response to amici curiae.
Aug 11 2004Case ordered on calendar
  9-8-04, 9am, S.F.
Aug 20 2004Change of contact information filed for:
  attys. Arthur Bryant and Victoria Ni for A/C Trial Lawyers for Public Justice.
Aug 23 2004Received:
  change of name notice for attorney Beth d. Orellana.
Sep 8 2004Cause argued and submitted
 
Dec 2 2004Opinion filed
  Majority Opinion by Moreno, J. -- joined by George C.J., Kennard & Werdegar Jj. Dissenting Opinion by Chin, J. -- joined by Baxter & Brown, JJ.
Jan 4 2005Letter sent to counsel re finality of opinion
 

Briefs
May 5 2003Opening brief on the merits filed
 
Aug 1 2003Answer brief on the merits filed
 
Aug 21 2003Reply brief filed (case fully briefed)
 
Sep 22 2003Amicus curiae brief filed
 
Sep 26 2003Amicus curiae brief filed
 
Sep 26 2003Amicus curiae brief filed
 
Oct 14 2003Response to amicus curiae brief filed
 
Oct 15 2003Amicus curiae brief filed
 
Nov 14 2003Response to amicus curiae brief filed
 
Dec 16 2003Response 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
Jul 2, 2011
Annotated by atticus honore

KEY PLAYERS AND PARTIES:

Terry Tipton-Whittingham

The City of Los Angeles/The Los Angeles Police Department

FACTS:

Class action was filed in district court on behalf of women officers and civil employees of the Los Angeles Police Department who alleged they were subjected to discrimination on the basis of sex and/or race. Plaintiffs sought injunctive relief and damages pursuant to federal and state constitutional claims, federal and state statutory claims, and state tort claims.
After the case was filed, the parties entered into settlement discussions, which resulted in a consent decree, which was revoked by the district court judge. Thereafter, the parties began new settlement discussions. The new discussions did not result in any contractual or court-ordered agreement. Instead, the LAPD voluntarily instituted several changes directed toward anti-discrimination that were very similar to the original consent decree.

PROCEDURAL HISTORY:

A class action was filed in district court on behalf of women officers and civil employees of the Los Angeles Police Department who alleged they were subjected to discrimination on the basis of sex and/or race.
The parties entered into settlement discussions and came to a consent decree, which was revoked by the district court judge. New settlement discussions were undertaken by the parties, which led to no contractual or court-ordered agreement, but rather led the LAPD to institute changes very similar to the original consent decree.
Plaintiffs represented to the district court that their injunctive relief claims were moot on account of the informal agreement resulting in change sufficient to moot the injunctive relief claims. Parties successfully jointly moved to dismiss plaintiffs’ injunctive relief claims. One year later, plaintiffs moved for attorney fees and costs under Californian Code of Civil Procedure § 1021.5 and Fair Employment and Housing Act (FEHA) Government Code § 12965(b) asserting that they had prevailed on their injunctive relief claims as evidenced by the LAPD’s changes. The district court awarded plaintiffs fees and costs, which were paid by the City of Los Angeles. The City did not appeal the grant of fees and costs.
The City later moved for reconsideration of the district court’s award of fees and cost in light of the United States Supreme Court’s decision in Buckhannon Bd. v. West Virginia D.H.H.R., 532 U.S. 598 (2001) rejecting the catalyst theory as a legal basis for the recovery of prevailing-party fees under certain federal statutes. The district court granted the City’s motion for reconsideration, denying plaintiffs’ fees and costs under federal law, but upholding the entire award under California law.
The Ninth Circuit certified questions to the California Supreme Court pertaining to the viability of the catalyst theory under California law.

ISSUES:

(1) May attorney fees as provided for in Cal. Code Civ. Proc. § 1021.5 and FEHA Government Code § 12965(b) be awarded where the plaintiff has been the “catalyst” in bringing about the relief sought by the litigation?

(2) If the catalyst theory is viable under California law, will that theory support an award of attorney fees where the plaintiff “activates” the defendant to modify its behavior; or does California law require a judicially recognized change in the legal relationship between the parties, such as a judgment on the merits, a consent decree, or a judicially ordered settlement?

RELEVANT STATUTORY LANGUAGE:

FEHA Gov. Code § 12965(b): “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs….”

HOLDING:

California law recognizes the catalyst theory and does not require “a judicially recognized change in the legal relationship between the parties” as a prerequisite for obtaining attorney fees under the Cal. Code Civ. Proc. § 1021.5 and FEHA Gov. Code § 12965(b).

ANALYSIS:

California law recognizes the catalyst theory and does not require “a judicially recognized change in the legal relationship between the parties” as a prerequisite for obtaining attorney fees under the Cal. Code Civ. Proc. § 1021.5. In California, in order to obtain attorney fees without a judicially recognized change in the legal relationship between the parties, a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint o f the nuisance and threat of expense, and (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit.
FEHA Gov. Code § 12965(b) states “in actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs….” In deciding whether to, and how to, award attorney fees under section 12965(b), courts will look to the rules set forth in cases interpreting Cal. Code Civ. Proc. §1021.5. In light of the similarities between Cal. Code Civ. Proc. § 1021.5 and FEHA Gov. Code § 12965(b), the court concluded that the catalyst theory should apply to the award of fees under FEHA Gov. Code § 12965(b).
More generally, the court found that a “prevailing party” and a “successful party” are synonymous terms, and neither preclude the application of the catalyst theory in an attorney fee statute nor require that the successful or prevailing party obtain a court judgment.

KEY RELATED CASES AND STATUTES:

Cal. Code Civ. Proc. §1021.5
FEHA Gov. Code § 12965(b)
Buckhannon Bd. v. West Virginia D.H.H.R., 532 U.S. 598 (2001)
Graham v. DaimlerChrysler Corp., 34 Cal.4th 553 (2004)
Westside Community for Independent Living, Inc. v. Obledo, 33 Cal.3d 348 (1983)
Flannery v. Prentice, 26 Cal.4th 572 (2001)
Greene v. Dillingham Construction N.A., Inc., 101 Cal.App.4th 418 2002)
Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128 (1998)

TAGS:

Catalyst Theory
Attorney Fees
Fees and Costs
Change in legal relationship
Settlement
Discrimination
LAPD
City of Los Angeles
Class Action
FEHA
Gov. Code § 12965(b)
Cal. Code Civ. Proc § 1021.5
Prevailing Party
Successful Party