Supreme Court of California Justia
Docket No. S112862
Graham v. DaimlerChrysler



Filed 12/2/04 (this opn. should precede companion case filed same date, S112943)



IN THE SUPREME COURT OF CALIFORNIA



ROBERT GRAHAM et al.,

Plaintiffs

and

Respondents,

S112862

v.

Ct.App. 2/1 B152928

DAIMLERCHRYSLER CORPORATION, )


Los Angeles County

Defendants and Appellants.

Super. Ct. No. BC 21564



In this case defendant offered to repurchase a truck that had been marketed

with false statements about its towing capacity. This offer came after a lawsuit

plaintiffs filed against defendant seeking this repurchase remedy, but before any

kind of court judgment was rendered. Plaintiffs were awarded substantial attorney

fees under Code of Civil Procedure section 1021.5.1 Defendant raises several

issues regarding those fees. The first is whether we should reconsider the catalyst

theory, recognized by this court in Westside Community for Independent Living,

Inc. v. Obledo (1983) 33 Cal.3d 348 (Westside Community). Under the catalyst

theory, attorney fees may be awarded even when litigation does not result in a

judicial resolution if the defendant changes its behavior substantially because of,

and in the manner sought by, the litigation. We conclude the catalyst theory


1

All statutory references are to this code unless otherwise stated.

1




should not be abolished but clarified. In order to be eligible for attorney fees

under section 1021.5, a plaintiff must not only be a catalyst to defendant’s

changed behavior, but the lawsuit must have some merit, as discussed below, and

the plaintiff must have engaged in a reasonable attempt to settle its dispute with

the defendant prior to litigation. Because these limitations on the catalyst theory

are to some degree new and were not addressed by the parties or the trial court, we

remand for reconsideration of the trial court’s award of attorney fees in this case.

Defendant also contends the trial court erred in concluding that the present

lawsuit substantially benefited a large group of people or the general public, as

required by section 1021.5. We conclude the trial court did not abuse its

discretion in making that conclusion. Finally, defendant, while conceding that a

plaintiff could be awarded attorney fees for attorney fee litigation, contends that

these fees should not be enhanced beyond the “lodestar” amount. We do not

endorse such a categorical rule, but we explain below that fees for fee litigation

usually should be enhanced at a significantly lower rate than fees for the

underlying litigation, if they are enhanced at all. We therefore will remand the

cause to the trial court to recalculate the amount of the fee in light of the principles

discussed below, assuming it finds on remand that plaintiffs are eligible for some

attorney fees.

I. STATEMENT OF FACTS

The facts, taken largely from the Court of Appeal’s opinion, are as follows:

DaimlerChrysler incorrectly marketed its 1998 and 1999 Dakota R/T trucks

as having a 6,400-pound towing capacity when they could actually tow only 2,000

pounds. The error occurred because the Dakota R/T was a sporty version of an

existing truck model, which could tow 6,400 pounds. However, to obtain a sporty

2



design, DaimlerChrysler lowered the suspension on the Dakota R/T, thus reducing

its towing capacity.

The reduced towing capacity was a potential risk factor. The lowered

suspension meant that towing more than 2,000 pounds would cause the suspension

to bottom out, stressing the frame and increasing fatigue and wear. The

DaimlerChrysler response team considered this a potential safety issue.

Buyers who wanted to tow more than 2,000 pounds were told they could do

so only if their Dakota R/T was modified with a trailer hitch costing $300. The

factory installed some of these hitches, while other buyers who wanted to tow had

dealer-installed or after-market hitches attached.

Nationwide, DaimlerChrysler sold or leased fewer than 7,000 of the Dakota

R/T’s in the two relevant years. Fewer than 1,000 affected R/T’s were sold in

California during the two years.

By February 1999, DaimlerChrysler set up a response team to address the

problem. By June 1999, DaimlerChrysler had taken steps to replace the incorrect

marketing materials, owners manuals, and engine and door labels for not-yet-sold

Dakota R/T’s, although public agency investigation revealed that brochures

misrepresenting the trucks’ towing capacity were still being distributed as of

August 1999. DaimlerChrysler also had notified existing buyers of the error, told

them not to attempt to tow more than 2,000 pounds, and provided them with the

same modified materials. Simultaneously, DaimlerChrysler began to address

remedial measures for customers who had bought or leased their Dakota R/T’s

under the incorrect marketing program.

Many Dakota R/T buyers never intended to tow more than 2,000 pounds.

When informed by DaimlerChrysler of the error, most of those customers were

satisfied with DaimlerChrysler’s offers of cash and merchandise.

3



Initially, DaimlerChrysler offered $300 refunds to buyers who had

purchased hitches of that amount. By the summer, DaimlerChrysler authorized

dealers to repurchase or replace Dakota R/Ts on a case-by-case basis, but only for

customers who demanded such a remedy.

On July 29, 1999, the Santa Cruz County District Attorney contacted

DaimlerChrysler about the problem, threatened legal action, and requested

DaimlerChrysler’s input before acting. On August 10, 1999, the California

Attorney General notified DaimlerChrysler it had joined the Santa Cruz County

District Attorney. The public agencies requested a response by the end of August

1999.

Plaintiffs filed their case on August 23, 1999, in Los Angeles County

Superior Court. Plaintiffs alleged they all bought 1999 Dakota R/T’s from various

DaimlerChrysler dealers. Only Graham lived and bought his truck in California.

Plaintiffs alleged DaimlerChrysler marketed, sold, and warranted their 1998 and

1999 Dakota R/T’s as capable of towing 6,400 pounds when the trucks actually

could tow only 2,000 pounds. Plaintiffs alleged DaimlerChrysler acknowledged

the error by letter to all purchasers dated June 16, 1999. Plaintiffs alleged they

notified DaimlerChrysler of their 1) trucks’ failure to comply with the warranted

towing capacity, and 2) revocation of their acceptance of their trucks on July 19,

1999. Plaintiffs sought (but never obtained) class certification for all those who

bought Dakota R/T’s nationwide. Plaintiffs alleged a single breach of express

warranty cause of action. Plaintiffs sought return of their purchase or lease

payments, compensatory damages, and attorney fees. Also on August 23, 1999,

the Detroit News contacted DaimlerChrysler’s legal counsel about plaintiffs’ case.

DaimlerChrysler’s counsel claimed DaimlerChrysler had responded appropriately

to the marketing error, including offering buybacks to customers who requested it.

4



Plaintiffs faxed their complaint to DaimlerChrysler the same day. The next day,

August 24, 1999, DaimlerChrysler’s employee newsletter ran an article on

plaintiffs’ case.

DaimlerChrysler’s response team met throughout August 1999. The team

knew about both public agency inquiries and the response deadline. Indeed,

DaimlerChrysler wrote the public agencies that its internal approval process

prohibited a response by August 31, but promised a response by September 8,

1999. On September 10, 1999, DaimlerChrysler issued its offer to all previous

Dakota R/T buyers of repurchase or replacement. In response to later inquiries,

response team members conceded they were aware of the class action lawsuit filed

in California before DaimlerChrysler’s September 10, 1999, letter offering

repurchase or replacement to all Dakota R/T buyers.

DaimlerChrysler demurred to the complaint. Plaintiffs filed an amended

complaint, acknowledging DaimlerChrysler’s offer of, among other remedies,

repurchase or replacement of the trucks for all previous buyers. The trial court

sustained the demurrer without leave to amend and dismissed the case, finding it

was moot because DaimlerChrysler already had offered all purchasers the relief

plaintiffs sought. Meanwhile, the public agencies continued to pursue legal action

against DaimlerChrysler, pointing to the fact that the erroneous marketing of the

Dakota R/T continued as late as September 1999. In late 2000, DaimlerChrysler

settled the public agency investigations by paying a $75,000 fine and agreeing to

ensure that the marketing error did not reoccur. Nationwide, 2,549 Dakota R/T

buyers opted for repurchase or replacement. Another 3,101 buyers opted for

service contracts and parts coupons. The total value of these offers exceeded $15

million. Fewer than 1,000 of the R/T buyers were Californians.

5



Although plaintiffs’ case was dismissed, the parties continued to litigate

plaintiffs’ entitlement to attorney fees. DaimlerChrysler insisted throughout that

plaintiffs were not entitled to attorney fees, contending plaintiffs had no effect on

DaimlerChrysler’s recognition of the problem and decision to offer all buyers

repurchase or replacement. For over a year, there were hotly contested discovery

and other motions to clarify the facts described above. The court held a lengthy

evidentiary hearing on October 18, 2000. DaimlerChrysler contended that the

Dakota R/T response team was not even aware of the litigation until after

September 10, 1999, when its repurchase offer was made, a position that the trial

court found to lack credibility.

The trial court filed its final order awarding attorney fees on July 6, 2001.

The court concluded after its review of the declarations and documentary evidence

presented that DaimlerChrysler’s “position that the lawsuit was not a catalyst was

largely a transparent fabrication . . . .” It rejected DaimlerChrysler’s argument that

plaintiffs’ action was unnecessary because of the enforcement action of the Santa

Cruz County District Attorney and the California Attorney General. The trial

court found that these agencies “had only made an inquiry and had not

commenced any proceeding when plaintiffs filed this action. Further [those

agencies] were only concerned with DaimlerChrysler’s false advertising materials

and never sought any remedies on behalf of the consumers who acquired these

vehicles while they were being misrepresented.”

In addition to finding that plaintiffs were the successful party, the trial court

found the other requirements of section 1021.5 had been met. It found that the

lawsuit “resulted in the enforcement of an important right affecting the public

interest, . . . the protection and enforcement of consumer rights, including

highway safety,” and that “as a result of the lawsuit, thousands of consumers

6



received pecuniary benefits and enhanced safety. Thousands more are likely to

benefit from it if DaimlerChrysler and/or other manufacturers are deterred from

similar conduct in the future.”

The court also concluded that “DaimlerChrysler should pay plaintiffs

attorneys fees in the interest of justice. Plaintiffs’ attorney fees will otherwise go

unpaid. Fees cannot be paid out of the benefits conferred upon the consumers

because DaimlerChrysler . . . distributed the benefits of [its] offer to the consumers

without any discussion with plaintiffs or their attorneys. Justice is served by

encouraging lawyers to bring meritorious consumer cases, of which this action is

an example.”

The trial court found the lodestar fee amount was $329,620 through the

October 18, 2000, hearing, with a multiplier of 2.25 for the fees incurred until the

October 18, 2000, hearing, including fees for litigating attorney fees, and applied

no multiplier for time thereafter. The court awarded no fees for work after April

23, 2001. The total award was $762,830.

The Court of Appeal affirmed. It observed that the United States Supreme

Court had recently rejected the catalyst theory as a basis for attorney fee awards

under various federal statutes in Buckhannon Board & Care Home, Inc. v. West

Virginia Dept. of Health and Human Resources (2001) 532 U.S. 598

(Buckhannon). But the court declined to follow the United States Supreme

Court’s lead, noting that the catalyst theory has been long recognized in

California. The court also rejected arguments that the litigation was not in the

public interest and that it did not benefit a substantial number of people. Further,

the court concluded that the trial court did not abuse its discretion in awarding fees

for seeking fees, and in permitting those fees to be enhanced over the basic

lodestar amount. We granted review.

7



II. DISCUSSION

A. Whether the Catalyst Theory Should Be Abolished

An important exception to the American rule that litigants are to bear their

own attorney fees is found in section 1021.5.2 As we have stated: “The

Legislature adopted section 1021.5 as a codification of the private attorney general

doctrine of attorney fees developed in prior judicial decisions. [Citation.] Under

this section, the court may award attorney fees to a ‘successful party’ in any action

that ‘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 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.’ . . . [T]he private attorney general doctrine ‘rests upon the recognition that


2

In its entirety, section 1021.5 provides: “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.
With respect to actions involving public entities, this section applies to allowances
against, but not in favor of, public entities, and no claim shall be filed therefor,
unless one or more successful parties and one or more opposing parties are public
entities, in which case no claim shall be required to be filed therefor under Part 3
(commencing with Section 900) of Division 3.6 of Title 1 of the Government
Code.


“Attorneys’ fees awarded to a public entity pursuant to this section shall not

be increased or decreased by a multiplier based upon extrinsic circumstances, as
discussed in Serrano v. Priest, 20 Cal.3d 25, 49.”

8



privately initiated lawsuits are often essential to the effectuation of the

fundamental public policies embodied in constitutional or statutory provisions, and

that, without some mechanism authorizing the award of attorney fees, private

actions to enforce such important public policies will as a practical matter

frequently be infeasible.’ Thus, the fundamental objective of the doctrine is to

encourage suits enforcing important public policies by providing substantial

attorney fees to successful litigants in such cases.” (Maria P. v. Riles (1987) 43

Cal.3d 1281, 1288-1289 (Maria P.).)

In order to effectuate that policy, we have taken a broad, pragmatic view of

what constitutes a “successful party.” “Our prior cases uniformly explain that an

attorney fee award may be justified even when plaintiff’s legal action does not

result in a favorable final judgment. (Westside Community for Independent

Living, Inc. v. Obledo, [supra,] 33 Cal.3d 348, 352; see also Press v. Lucky Stores,

Inc. (1983) 34 Cal.3d 311 [although their action had become moot, plaintiffs were

awarded fees under § 1021.5 because they had achieved the relief they sought

through preliminary injunction].) It is also clear that the procedural device by

which a plaintiff seeks to enforce an important right is not determinative of his or

her entitlement to attorney fees under section 1021.5. (In re Head (1986) 42

Cal.3d 223, 228-229.) Similarly, a section 1021.5 award is not necessarily barred

merely because the plaintiff won the case on a preliminary issue. (Woodland Hills

Resident Assn., Inc. [v. City Council (1979)] 23 Cal.3d [917,] 938.) In

determining whether a plaintiff is a successful party for purposes of section

1021.5, ‘[t]he critical fact is the impact of the action, not the manner of its

resolution.’ (Folsom [v. Butte County Assn. of Governments (1982)] 32 Cal.3d at

[668], 685 (Folsom).) [¶] The trial court in its discretion ‘must realistically assess

the litigation and determine, from a practical perspective, whether or not the action

9



served to vindicate an important right so as to justify an attorney fee award’ under

section 1021.5. (Woodland Hills Residents Assn., supra, 23 Cal.3d at p. 938.)”

(Maria P., supra, 43 Cal.3d at pp. 1290-1291.)

The catalyst theory is an application of the above stated principle that

courts look to the practical impact of the public interest litigation in order to

determine whether the party was successful, and therefore potentially eligible for

attorney fees. We specifically endorsed that theory in Westside Community,

supra, 33 Cal.3d 348. The plaintiffs in that case sued to compel the Secretary of

the Health and Welfare Agency to issue regulations implementing Government

Code section 11135, which bars state funded programs from engaging in various

forms of discrimination. Shortly thereafter, the defendant issued proposed

regulations, thereby mooting the case. Plaintiffs filed for private attorney general

fees pursuant to section 1021.5. (Westside Community, supra, 33 Cal.3d at pp.

351-352.) The defendants argued that there was no evidence the plaintiffs were

successful parties because the litigation had not reached a “final judgment.” (Id. at

p. 352.) We rejected that argument and cited with approval Fletcher v. A.J.

Industries, Inc. (1968) 266 Cal.App.2d 313, 325 (Fletcher), in which the Court of

Appeal upheld an attorney fee award in a shareholder derivative action under the

theory that the plaintiffs were successful in conferring a substantial benefit to the

corporation, even though the litigation “was resolved through a settlement. That

court held that ‘[i]t was not significant that the “benefits” found were achieved by

settlement of plaintiffs’ action rather than by final judgment.’ ” (Westside

Community, supra, 33 Cal.3d at p. 352, quoting Fletcher, supra, 266 Cal.3d at

p. 325.)

We further observed that “[n]umerous federal decisions have reached the

same conclusion, holding that attorney fees may be proper whenever an action

10



results in relief for the plaintiff, whether the relief is obtained through a

‘voluntary’ change in the defendant’s conduct, through a settlement, or otherwise.

(See, e.g., Sullivan v. Com. of Pa. Dept. of Labor, etc. (3d Cir. 1981) 663 F.2d

443, 447-450; Robinson v. Kimbrough (5th Cir. 1981) 652 F.2d 458, 465- 466;

American Constitutional Party v. Munro (9th Cir. 1981) 650 F.2d 184, 187-188.)

[¶] Thus, an award of attorney fees may be appropriate where ‘plaintiffs’ lawsuit

was a catalyst motivating defendants to provide the primary relief sought . . . .’

(Robinson, supra, 652 F.2d at p. 465, italics added.) A plaintiff will be considered

a ‘successful party’ where an important right is vindicated ‘by activating

defendants to modify their behavior.’ ” (Westside Community, supra, 33 Cal.3d at

pp. 352-353.)

Robinson v. Kimbrough, supra, 652 F.2d 458 (Robinson), cited with

approval in Westside Community, provides a useful example of the catalyst

theory’s application. The plaintiffs filed suit in federal district court alleging that

Harris County, Georgia jury commissioners had compiled jury lists, from which

grand and petit juries were summoned, with disproportionately low percentages of

Blacks and women, resulting in their underrepresentation on the county’s juries.

One month after the complaint was filed, the jury commissioners, in a

nonadversarial proceeding that did not involve the plaintiffs, requested a county

judge to order them to recompile jury lists to obtain a more representative cross-

section. The court order was required because the jury commissioners were not

authorized to revise jury lists other than biennially, and the regular revision had

been recently completed. The court granted the order and the jury lists were

revised. The district court then dismissed the plaintiffs’ suit as failing to raise a

substantial constitutional question. The plaintiffs appealed and the court of

appeals held that, in light of the revised jury lists and certain statutory changes

11



during the pendency of the appeal, the plaintiffs’ challenge was moot. The

plaintiffs therefore never received judicial relief. (652 F.2d at pp. 460-462.)

Nonetheless, the court of appeals in subsequent proceedings affirmed that

plaintiffs may be entitled to an award of attorney fees pursuant to the Civil Rights

Attorney’s Fees Award Act of 1976 (42 U.S.C. § 1988). Rejecting the argument

that the plaintiffs were not a “prevailing party,” the court agreed with other federal

appellate courts that recovery of attorney fees under the Act “is not dependent

upon plaintiffs’ ability to secure formal judicial relief by way of injunction or

otherwise. Rather, these opinions have focused upon the type of relief obtained

from the defendants as a result of the lawsuit. [Citations.] Common to these

decisions is the recognition that plaintiffs may recover attorneys’ fees if their

lawsuit is a substantial factor or a significant catalyst in motivating the defendants

to end their unconstitutional behavior.” (Robinson, supra, 652 F.2d at pp. 465-

466.) The court therefore remanded the case for “the purpose of determining

whether plaintiffs’ lawsuit was a substantial factor or significant catalyst in

bringing about an end to the unconstitutional underrepresentation of blacks and

women in the Harris County jury lists.” (Id. at p. 467.)3


3

There have been a number of other federal cases in which attorney fees

were granted or found potentially available, despite the absence of a judicial
decree altering the legal relationship between the parties. (See, e.g., Baumgartner
v. Harrisburg Housing Authority
(3d Cir. 1994) 21 F.3d 541 [lawsuit causes
housing authority to consult with plaintiffs-tenants regarding newly restrictive
residence rules]; DeMier v. Gondles (4th Cir. 1982) 676 F.2d 92 [lawsuit was
significant factor behind sheriff’s cessation of blanket strip search policy];
Pembroke v. Wood County, Texas (5th Cir. 1993) 981 F.2d 225 [fees warranted
where lawsuit triggered immediate and extensive improvements to substandard jail
conditions]; Citizens Against Tax Waste v. Westerville City School District Board
of Education
(6th Cir. 1993) 985 F.2d 255 [lawsuit spurred revision of policy
regulating speakers at school board meetings]; Zinn v. Shalala (7th Cir. 1994) 35


(footnote continued on next page)

12



The

Westside Community court, although endorsing the catalyst theory

found in Robinson and other federal cases, nonetheless went on to conclude that

no attorney fees were owed in that case because there was no demonstrable causal

connection between the lawsuit and the government’s action. (Westside

Community, supra, 33 Cal.3d at pp. 353-354.)

We continue to conclude that the catalyst theory, in concept, is sound. The

principle upon which the theory is based  that we look to the “impact of the

action, not its manner of resolution” (Folsom, supra, 32 Cal.3d at p. 685)  is

fully consistent with the purpose of section 1021.5: to financially reward attorneys

who successfully prosecute cases in the public interest, and thereby “ ‘prevent

worthy claimants from being silenced or stifled because of a lack of legal

resources.’ ” (Folsom, supra, 32 Cal.3d at p. 683.) We therefore reaffirm our

endorsement of the catalyst theory.

DaimlerChrysler argues that we should reevaluate that endorsement in light

of the rejection of the catalyst theory by the United States Supreme Court in



(footnote continued from previous page)

F.3d 273 [lawsuit spurs defendants to repeal contested Medicaid eligibility rules];
DeGidio v. Pung (8th Cir. 1990) 920 F.2d 525 [lawsuit prompted officials to take
corrective action regarding prison tuberculosis epidemic]; Foremaster v. City of St.
George
(10th Cir. 1989) 882 F.2d 1485 [plaintiff’s suit contributed to City’s
decision to discontinue 44-year-old practice of subsidizing Mormon Temple’s
electrical bills]; Luethje v. Peavine School District of Adair County (10th Cir.
1989) 872 F.2d 352 [lawsuit prompted school board to amend rule impermissibly
curtailing employees’ free speech rights]; Southwest Center for Biological
Diversity, et al. v. Carroll
(C.D.Cal. 2001) 182 F.Supp.2d 944, [plaintiff
environmental groups caused Army Corps of Engineers to conduct biological
assessment of dam project pursuant to the Endangered Species Act]; S.D. v.
Faulkner
(S.D.Ind. 1989) 705 F.Supp 1361 [lawsuit prompted correctional school
officials to remedy allegedly abusive treatment programs].)

13



Buckhannon, supra, 532 U.S. 598. At the outset we state what hardly needs

stating: that United States Supreme Court interpretation of federal statutes does

not bind us to similarly interpret similar state statutes. Indeed, in the realm of

attorney fees for private attorneys general, this court has markedly diverged from

United States Supreme Court precedent. In Serrano v. Priest (1977) 20 Cal.3d 25

(Serrano III), an opinion that predated the effective date of section 1021.5 (see

Serrano v. Unruh (1982) 32 Cal.3d 621, 624, fn. 1 (Serrano IV)), this court

rejected the holding of Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S.

240 that attorney fees cannot be awarded on a private attorney general theory

absent express statutory authorization. (Serrano III, supra, 20 Cal.3d at pp. 46-

47.) More recently, we unanimously declined to follow the United States Supreme

Court’s rejection of the use of a contingency fee multiplier in calculating private

attorney general fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137-1139

(Ketchum).) We reaffirmed that the “ ‘fashioning of equitable exceptions’ to the

California rule that parties must bear their own costs ‘is a matter within the sole

competence of this court.’ ” (Id. at p. 1137.) As explained below, we do not find

the reasoning of the five-to-four majority in Buckhannon persuasive, and decline

to apply its holding to section 1021.5.

In

Buckhannon, the plaintiffs sued alleging that certain state law

requirements imposed on its assisted living facility violated the Fair Housing

Amendments Act of 1988 (42 U.S.C. § 3601 et seq.) and the Americans with

Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). After the state legislature

changed the requirements in a way that vindicated the plaintiffs position, the

plaintiffs sought attorney fees under the relevant statutes, both of which permit

attorney fees for the “prevailing party.” (See 42 U.S.C. § 3613(c)(2) [“[T]he

court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s

14



fee and costs”] and 42 U.S.C. § 12205 [“[T]he court . . . , in its discretion, may

allow the prevailing party . . . a reasonable attorney’s fee, including litigation

expenses, and costs”].)

A good deal of the Buckhannon court’s reason for rejecting the catalyst

theory turns on the definition of “prevailing party.” The Buckhannon majority

found the term “ ‘prevailing party’ ” to be “a legal term of art,” defined according

to Black’s Law Dictionary (7th ed. 1999) at page 1145 as “ ‘[a] party in whose

favor a judgment is rendered, regardless of the amount of damages awarded <in

certain cases, the court will award attorney’s fees to the prevailing party>.--Also

termed successful party.” (Buckhannon, supra, 532 U.S. at p. 603.) This

definition, together with prior court decisions, led the Buckhannon majority to

conclude that a “prevailing party” must be a party that has brought about a

“ ‘material alteration of the legal relationship of the parties,’ ” (id. at p. 604) which

could include both a “judgment[ ] on the merits,” and a settlement agreement

“enforced through a consent decree.” (Ibid.)

The

Buckhannon majority concluded that “the ‘catalyst theory’ falls on the

other side of the line from these examples. It allows an award where there is no

judicially sanctioned change in the legal relationship of the parties. Even under a

limited form of the ‘catalyst theory,’ a plaintiff could recover attorney’s fees if it

established that the “complaint had sufficient merit to withstand a motion to

dismiss for lack of jurisdiction or failure to state a claim on which relief may be

granted.” [Citation.] This is not the type of legal merit that our prior decisions,

based upon plain language and congressional intent, have found necessary. . . . A

defendant’s voluntary change in conduct, although perhaps accomplishing what

the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial

imprimatur on the change. Our precedents thus counsel against holding that the

15



term ‘prevailing party’ authorizes an award of attorney’s fees without a

corresponding alteration in the legal relationship of the parties.” (Buckhannon,

supra, 532 U.S. at p. 605.)

We agree with DaimlerChrysler that the terms “prevailing party” and

“successful party,” as used in section 1021.5, are synonymous. (Schmier v.

Superior Court (2002) 96 Cal.App.4th 873, 877; Urbaniak v. Newton (1993) 19

Cal.App.4th 1837, 1843, fn. 4; see also Maria P., supra, 43 Cal.3d at pp. 1291-

1292 [using the two words interchangeably].) We also agree that in the context of

section 1021.5, the term “party” refers to a party to litigation, and therefore

precludes an award of attorney fees when no lawsuit has been filed. (See Black’s

Law Dict. (4th rev. ed. 1968) at p. 1278 [“ ‘Party’ ” is a technical term having a

precise meaning in legal parlance; it refers to those by or against whom and

lawsuit is brought . . . , the party plaintiff or defendant . . . .”]; see also Flannery v.

Prentice (2001) 26 Cal.4th 572, 578 [the word “party” as part of a prevailing party

fee statute refers to litigant or litigant’s attorney].) But we are aware of no judicial

construction or legislative usage in California that limits the terms “prevailing

party” or “successful party” to the meaning found in the most recent edition of

Black’s Law Dictionary to the exclusion of other meanings, as DaimlerChrysler,

following the Buckhannon majority, argues. (Cf. Sullivan v. Delta Air Lines, Inc.

(1997) 15 Cal.4th 288, 302 [the Legislature uses the phrase “ ‘action or

proceeding’ . . . virtually as a term of art” “whenever it wishes to refer

comprehensively to all the judicial remedies available under our law”].)4


4

Moreover, if DaimlerChrysler is arguing that Black’s Law Dictionary

defines “successful party” as a term of art, identical to “prevailing party,” and that
the Legislature was aware of the definition, then the definition that should be
consulted is not from the most recent edition of the dictionary, but the one current


(footnote continued on next page)

16



We therefore turn to the “usual and ordinary meaning” of the statutory

language in order to discern legislative intent. (Lenanne v. Franchise Tax Bd.

(1994) 9 Cal.4th 263, 268.) The term “successful party,” as ordinarily understood,

means the party to litigation that achieves its objectives. We agree with the

dissenting opinion in Buckhannon: “In everyday use, ‘prevail’ means ‘gain

victory by virtue of strength or superiority: win mastery: triumph.’ Webster’s

Third New International Dictionary 1797 (1976). There are undoubtedly

situations in which an individual’s goal is to obtain approval of a judge, and in

those situations, one cannot ‘prevail’ short of a judge’s formal declaration. In a

piano competition or a figure skating contest, for example, the person who prevails

is the person declared winner by the judges. However, where the ultimate goal is



(footnote continued from previous page)

when the Legislature adopted section 1021.5 in 1977. (Stats. 1977, ch. 1197, § 1,
p. 3979.) Black’s Law Dictionary, 4th ed., supra, at page 1352, employs a number
of alternative definitions of “prevailing party.” “That one of the parties to a suit
who successfully prosecutes the action or successfully defends against it,
prevailing on the main issue, even though not to the extent of his original
contention. [Citation.] [¶] The one in whose favor the decision or verdict is
rendered and judgment entered. [Citations.] The party ultimately prevailing when
the matter is finally set at rest. [Citation.] The party prevailing in interest, and not
necessarily the prevailing person. [Citation.] To be such does not depend upon
the degree of success at different stages of the suit, but whether, at the end of the
suit, or other proceeding, the party who has made a claim against the other, has
successfully maintained it. [Citation.] Thus, where the court grants defendant a
new trial after verdict for plaintiff, defendant is the ‘prevailing party’ on that trial,
and entitled to costs, although the plaintiff again gets verdict on retrial.
[Citation.]” Only one of the alternate definitions set forth above specifies that a
“prevailing party” is the one for whom the verdict or judgment is rendered. The
above definitions do not exclude the possibility that a party may be considered to
be prevailing “when the matter is finally set at rest” by means other than a
judgment or verdict. (Ibid.)

17



not an arbiter’s approval, but a favorable alteration of actual circumstances, a

formal declaration is not essential. . . . [¶] A lawsuit’s ultimate purpose is to

achieve actual relief from an opponent. Favorable judgment may be instrumental

in gaining that relief. Generally, however, ‘the judicial decree is not the end but

the means. At the end of the rainbow lies not a judgment, but some action (or

cessation of action) by the defendant . . . .’ [Citation.] On this common

understanding, if a party reaches the ‘sought-after destination,’ then the party

‘prevails’ regardless of the ‘route taken.’ [Citation.] (Buckhannon, supra, 532

U.S. at pp. 633-634 (dis. opn. of Ginsburg, J.).)

This practical definition of prevailing or successful party is consistent with

our construction of the meaning of “prevailing party” within the context of Civil

Code section 1717, which provides that when a contract specifically provides for

attorney fees for one party, fees are to go to the prevailing party “whether he or

she is the party specified in the contract or not.” In Santisas v. Goodin (1998) 17

Cal.4th 599, we held that although a defendant who has received the benefit of a

voluntary dismissal of an action against it is not necessarily a prevailing party, it

may be under some circumstances. In discussing the meaning of the term

“prevailing party” when it is undefined by contract, we stated that “a court may

base its attorney fees decision on a pragmatic definition of the extent to which

each party has realized its litigation objectives, whether by judgment, settlement,

or otherwise.” (Id. at p. 622, italics added.) If, as is clearly the case, a defendant

can be a prevailing or successful party after a plaintiff has voluntarily dismissed

the case against it, it is difficult to fathom why a plaintiff cannot be considered a

prevailing or successful party when it achieves its litigation objectives by means of

defendant’s “voluntary” change in conduct in response to the litigation. When a

creditor sues a debtor to collect a debt, and the debtor pays the debt before a

18



judgment is entered against it, the creditor has been a “successful party” by any

conventional understanding of that term.

DaimlerChrysler also contends that the catalyst theory must be rejected

because section 1021.5 requires that the party achieve success in an “action which has

resulted in the enforcement of an important right.” It points to Black’s Law

Dictionary’s definition of “enforcement” as “[t]he act or process of compelling

compliance with a law, mandate, or command” (Black’s Law Dict., 7th ed., supra,

p. 549), and also Merriam-Webster’s Collegiate Dict. (10th ed. 1998) at page 383,

which defines “enforce” as to “constrain, compel,” or “to carry out effectively.” But

neither definition requires the compulsion or constraint inherent in the term

“enforcement” to entail a judicial decision. For example, in Belth v. Garamendi

(1991) 232 Cal.App.3d 896, the government initially refused the plaintiff’s California

Public Record Act request and complied only after the plaintiff filed a writ of

mandate. The Court of Appeal held that attorney fees should be awarded under

Government Code section 6259, subdivision (d), which mandates an award to

plaintiffs who “prevail in litigation” under the Public Records Act. (Belth, supra, 232

Cal.App.3d at p. 902.) It appears plain that the plaintiff in that case had “enforced” its

right of access to public records, compelling the public agency to do what it would not

do short of litigation. It would be perverse, and contrary to the basic public interest

objectives of section 1021.5, to hold that a plaintiff who obtains a final judgment has

“enforced” a right, but not a plaintiff whose litigation position is so strong that it

achieves the same result by compelling the defendant to change its conduct rather

than face a probable judgment against it.5

5

Both sides cite legislative history in support of their position. The

legislative history is inconclusive. DaimlerChrysler cites legislative testimony by
some of Code of Civil Procedure section 1021.5’s proponents, but we generally


(footnote continued on next page)

19



DaimlerChrysler also makes a number of policy arguments. Like the

Buckhannon majority, it argues that “[a] request for attorney’s fees should not

result in a second major litigation,” (Buckhannon, supra, 532 U.S. at p. 609), and

that the catalyst theory would require a complex causal determination. “Among

other things, a ‘catalyst theory’ hearing would require analysis of the defendant’s

subjective motivations in changing its conduct, an analysis that ‘will likely depend

on a highly factbound inquiry and may turn on reasonable inferences from the

nature and timing of the defendant’s change in conduct.’ ” We find persuasive the

argument of the Buckhannon dissent that although some time may be expended in

fact finding under the catalyst theory, it is at least as likely as not that that the

catalyst rule “ ‘saves judicial resources,’ [citation] by encouraging ‘plaintiffs to

discontinue litigation after receiving through the defendant’s acquiescence the


(footnote continued from previous page)

will not consider such evidence in determining legislative intent. “Material
showing the motive or understanding of an individual legislator, including the
bill’s author, his or her staff, or other interested persons, is generally not
considered. [Citations.] This is because such materials are generally not evidence
of the Legislature’s collective intent.” (Metropolitan Water Dist. v. Imperial
Irrigation Dist.
(2000) 80 Cal.App.4th 1403, 1426.) Plaintiffs cite an earlier
version of section 1021.5 that provided for attorney fees only “if judgment is
entered in” the plaintiff’s favor. Later the provision was completely rewritten.
The new language made no reference to a “judgment” but instead referred to a
“prevailing plaintiff.” (Compare Sen. Bill No. 664 (1975-1996 Reg. Sess.) as
introduced Mar. 31, 1975, § 1, and as amended Sept. 11, 1975, § 2.) Plaintiffs
argue that this change shows that no judgment is required for a plaintiff to be
considered a prevailing party. The argument does not especially advance
plaintiffs’ position. “Unpassed bills, as evidence of legislative intent, have little
value.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d
1379, 1396.) This is particularly true when, as here, the bill was rewritten so
extensively. Nor do we find other legislative materials cited by the parties, none
of which focus on the question at issue, particularly helpful.

20



remedy initially sought.’ ” (Buckhannon, supra, 532 U.S. at p. 640 (dis opn. of

Ginsburg, J.).)

Nor are we persuaded that cases decided under a catalyst theory will

inevitably give rise to complex and time-consuming litigation over the issue of

causality. Case law, as well as our own judicial experience, suggests that catalyst

theory cases may be resolved by relatively economical, straightforward inquiries

by trial court judges close to and familiar with the litigation. (See, e.g., Southwest

Center for Biological Diversity, et al. v. Carroll, supra, 182 F.Supp.2d at

pp. 951-952 (opn. of Moreno, J.).) Moreover, the defendant in such cases knows

better than anyone why it made the decision that granted the plaintiff the relief

sought, and the defendant is in the best position to either concede that the plaintiff

was a catalyst or to document why the plaintiff was not. We are unpersuaded that

DaimlerChrysler’s inability or unwillingness to do either in the present case,

thereby prolonging the litigation, is necessarily attributable to the inherent

difficulty of catalyst theory cases.

DaimlerChrysler further argues that overall, the benefits that the catalyst

rule are supposed to possess are dwarfed by the harms the rule will engender. It

contends the evil to which the catalyst rule is addressed  that meritorious

plaintiffs and plaintiffs’ attorneys will be deprived of attorney fees by a favorable

settlement  will be a relatively rare occurrence. It quotes the Buckhannon

majority that “ ‘[I]t is well settled that a defendant’s voluntary cessation of a

challenged practice does not deprive a federal court of its power to determine the

legality of the practice’ unless it is ‘absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.’ ” (Buckhannon, supra, 532

U.S. at p. 609.) On the other hand, DaimlerChrylser argues the catalyst rule could

encourage nuisance suits by unscrupulous attorneys hoping to obtain fees without

21



having the merits of their suit adjudicated. It quotes with approval from Justice

Scalia’s concurrence in Buckhannon, joined by Justice Thomas: “If the [catalyst

theory] sometimes rewards the plaintiff with a phony claim (there is no way of

knowing), [its absence] sometimes denies fees to the plaintiff with a solid case

whose adversary slinks away on the eve of judgment. But it seems to me the evil

of the former far outweighs the evil of the latter. There is all the difference in the

world between a rule that denies the extraordinary boon of attorney’s fees to some

plaintiffs who are no less ‘deserving’ of them than others who receive them, and a

rule that causes the law to be the very instrument of wrong—exacting the payment

of attorney’s fees to the extortionist.” (Buckhannon, supra, 532 U.S. at p. 618

(con. opn. of Scalia, J.).)

We, of course, have no way of quantifying the magnitude of the potential

and actual abuses by plaintiffs under a catalyst rule or by defendants under its

absence. DaimlerChrysler and the Buckhannon majority’s prediction  that

defendants’ change of behavior depriving worthy plaintiffs of attorney fees will be

relatively rare  is one we cannot verify. But as plaintiffs argue, what is

objectionable about elimination of the catalyst theory is not only that in a given

case an attorney will be unjustly deprived of fees, but that attorneys will be

deterred from accepting public interest litigation if there is the prospect they will

be deprived of such fees after successful litigation. (See Chemerinsky, Closing the

Courthouse Doors to Civil Rights Litigants (2003) 5 U.Pa. J.Const.L. 537, 547.)

As matters stand now, public interest attorneys often take a considerable risk that

they will not be paid at all because they will not prevail in the litigation or because

they will be deemed ineligible for fees under section 1021.5, as when the suit is

adjudged not to be sufficiently in the public interest. Abolition of the catalyst

theory will increase an already considerable risk. As plaintiffs’ attorney succinctly

22



states: “[I]t defies common sense to think attorneys who take meritorious public

interest cases with the expectation that they will be compensated if they obtained

favorable results for their clients will not be deterred from doing so if the

defendant can litigate tenaciously, then avoid paying their fees by voluntarily

providing relief before a court order is entered.”6

Nor do we believe that avoiding this increased risk of public interest

litigation must inevitably come at the expense of rewarding a significant number

of extortionate lawsuits. We can adopt sensible limitations on the catalyst theory

that discourage the latter without putting a damper on lawsuits that genuinely

provide a public benefit. Our starting point in this endeavor is the observation that

the Legislature has assigned responsibility for awarding fees under section 1021.5

“not to automatons unable to recognize extortionists, but to judges expected and

instructed to exercise ‘discretion.’ ” (Buckhannon, supra, 532 U.S. at 640 (dis.

opn. of Ginsburg, J.).) These judges are in a good position to make the

determination, as one court has expressed it, that the lawsuit have achieved their

result “ ‘by threat of victory,’ not ‘by dint of nuisance and threat of expense.’ ”

(Buckhannon, supra, 532 U.S. at p. 628 (dis. opn of Ginsburg, J.), quoting

Marbley v. Bane (2d Cir. 1995) 57 F.3d 224, 234-235.) In order to make this

6

The dissent theorizes that under the private attorney general doctrine,

plaintiffs already have a “great advantage” over defendants in settlement
negotiations because plaintiffs face merely the risk they will not be compensated
for attorney fees whereas defendants face the near certainty of incurring such fees.
(Dis. opn, post, at p. 19.) This assertion substantially oversimplifies a complex
matter. The prospect of attorney fees is only one factor in determining settlement
advantage, and other factors often weigh in defendants’ favor in public interest
litigation, including the possession of superior information about their own
conduct (see Farmer & Pecorino, Issues of Informational Asymmetry in Legal
Bargaining
, in Dispute Resolution: Bridging the Settlement Gap (Anderson edit.,
1996) 79-80.), as well as greater material resources.

23



determination, the court is to inquire not into a defendant’s subjective belief about

the suit but rather to gauge, objectively speaking, whether the lawsuit had merit.

(See Tyler v. Corner Const. Corp., Inc. (8th Cir. 1999) 167 F.3d 1202, 1206.) A

number of circuits of the United States Court of Appeals, prior to Buckhannon,

adopted a version of the catalyst theory that required not only a causal connection

between the lawsuit and the relief obtained but also a determination that

defendant’s conduct was required by law. (Nadeau v. Helgemoe (1st Cir. 1978)
581 F.2d 275 (Nadeau); see also Powder River Basin Resource Council v. Babbitt

(10th Cir. 1995) 54 F.3d 1477, 1486; Zinn v. Shalala, supra, 35 F.3d 273, 274 ;

Sablan v. Dept. of Finance for the Commonwealth of the Northern Mariana

Islands (9th Cir. 1988) 856 F.2d 1317 (Sablan); Premachandra v. Mitts (8th Cir.

1984) 727 F.2d 717, 721-722.) Generally speaking, the “required by law” prong

was tantamount to a finding that the lawsuit was “not frivolous, unreasonable, or

groundless.” (Stivers v. Pierce (9th Cir. 1995) 71 F.3d 732, 752, fn. 9.)

This court has not explicitly adopted the above two-pronged test. (See

Wallace v. Consumer Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836,

843-844 [noting that some federal circuits focus only on the causal prong and that

this court had not considered the Nadeau test].) We now do so. The trial court

must determine that the lawsuit is not “frivolous, unreasonable or groundless”

(Stivers v. Pierce, supra, 71 F.3d at p. 752, fn. 9), in other words that its result was

achieved “by threat of victory, not by dint of nuisance and threat of expense.”

(Marbley v. Bane, supra, 57 F.3d at pp. 234-235.) The determination the trial

court must make is not unlike the determination it makes when asked to issue a

preliminary injunction, i.e., not a final decision on the merits but a determination

at a minimum that “ ‘the questions of law or fact are grave and difficult.’ ” (Wilms

24



v. Hand (1951) 101 Cal.App.2d 811, 815; 6 Witkin Cal. Procedure (4th ed. 1997)

Provisional Remedies, § 357, p. 288.)

Although the catalyst rule is sometimes formulated to permit an award of

attorney fees as long as a lawsuit can survive a motion to dismiss or for judgment

on the pleadings (see Buckhannon, supra, 532 U.S. at p. 605), we see no reason to

limit a trial court’s inquiry regarding the merits of the case to an examination of

whether the pleadings state a cause of action. When a lawsuit has been mooted by

a defendant’s change in conduct, some development of the factual record is

required in order to prevail on a catalyst theory. At the very least, a plaintiff must

establish “the precise factual/legal condition that [it] sought to change or affect” as

a prerequisite for establishing the catalytic effect of its lawsuit. (Folsom, supra,

32 Cal.3d at p. 685.) Sometimes this factual background will have been developed

in the course of litigation. (See, e.g., DeGidio v. Pung, supra, 920 F.2d 525;

Pembroke v. Wood County, Texas, supra, 981 F.2d 225) When the suit is mooted

early in its prosecution (as occurred in the present case), it may generally be

established during the attorney fee proceeding by declarations, or, at the discretion

of the trial court, by an abbreviated evidentiary hearing. (See Sablan, supra, 856

F.2d at pp. 1322-1323; Pearl, Cal. Attorney Fee Awards (Cont. Ed. Bar, 2d ed.

1998 & 2003 supp.) § 14.39, pp. 444-445.) The trial court may review this factual

background not only to determine the lawsuit’s catalytic effect but also its merits.

Attorney fees should not be awarded for a lawsuit that lacks merit, even if its

pleadings would survive a demurrer. We believe that trial courts will be able to

conduct an abbreviated but meaningful review of the merits of the litigation

designed to screen out nuisance suits without significantly increasing attorney fee

25



litigation costs.7 On the other hand, the abolition of the catalyst theory, thereby

giving plaintiffs the incentive to prolong the litigation until a judicial

determination is made, is not necessarily a recipe for judicial efficiency.

In addition to some scrutiny of the merits, we conclude that another

limitation on the catalyst rule proposed by the Attorney General, appearing as

amicus curiae, should be adopted by this court. The Attorney General proposes

that a plaintiff seeking attorney fees under a catalyst theory must first reasonably

attempt to settle the matter short of litigation. (See Grimsley v. Board of

Supervisors (1985) 169 Cal.App.3d 960, 966-967.) We believe this requirement is

fully consistent with the basic objectives behind section 1021.5 and with one of its

7

The dissent states that plaintiffs “have not shown that DaimlerChrysler was

legally required to offer a full refund in addition to the steps it had already taken
regarding plaintiffs, which included full disclosure, prospective correction, and
offers to pay for a hitch that, so far as this lawsuit demonstrates, would have cured
all harm.” (Dis. opn., post, at p. 24.) The trial court is obviously not bound by the
dissent’s characterization of the facts. Moreover, the dissent appears to interpret
our requirement that a lawsuit have merit as further requiring that the settlement or
the action taken by defendant to moot the lawsuit must be legally required. But no
such scrutiny of settlement terms has ever been required, not even under
Buckhannon. For example, Buckhannon acknowledges that a consent decree is a
valid basis for awarding private attorney general fees. (Buckhannon, supra, 532
U.S. at p. 604, citing Maher v. Gagne (1980) 448 U.S. 122.).) In a consent decree,
“[t]he parties waive their right to litigate the issues involved in the case and thus
save themselves the time, expense, and inevitable risk of litigation. Naturally, the
agreement reached normally embodies a compromise; in exchange for the saving
of cost and elimination of risk, the parties each give up something they might have
won had they proceeded with the litigation.” (United States v. Armour & Co.
(1971) 402 U.S. 673, 681.) In other words, a consent decree gives effect to a
compromise that is not necessarily required by law. So too, with regard to a
settlement that does not result in a consent decree, or unilateral action that moots
pending litigation, it is not necessary to determine that the precise remedy chosen
was required by law in order for a plaintiff to be eligible for attorney fees under
section 1021.5. Rather, a plaintiff’s suit must have merit, as that term is defined
above.

26



explicit requirements  the “necessity . . . of private enforcement” of the public

interest. Awarding attorney fees for litigation when those rights could have been

vindicated by reasonable efforts short of litigation does not advance that objective

and encourages lawsuits that are more opportunistic than authentically for the

public good. Lengthy prelitigation negotiations are not required, but a plaintiff

must at least notify the defendant of its grievances and proposed remedies and

give the defendant the opportunity to meet its demands within a reasonable time.

(See, e.g., S.D. v. Faulkner, supra, 705 F.Supp at p. 1363 [letter notifying

defendants of plaintiffs grievances, plus discussions over two-month period].)

What constitutes a “reasonable” time will depend on the context.

Applying the catalyst rule, as discussed above, to the present case, the trial

court applied the first prong of the rule to conclude that the lawsuit was in fact a

substantial causal factor in DaimlerChrysler’s change in policy with respect to its

willingness to repurchase or replace the Dakota R/T or to offer consumers

substantial discounts. DaimlerChrysler does not contend that the trial court’s

ruling on that point is unsupported by substantial evidence. But it is unclear

whether the trial court considered the merits of the suit, and the trial court did not

consider whether plaintiffs attempted to reasonably settle the matter short of

litigation. We therefore remand the matter for a determination of whether

plaintiffs are eligible for attorney fees under the catalyst rule as articulated above.8


8

The dissent contends that plaintiffs have “failed to satisfy” these two latter

prongs of the catalyst rule. (Dis. opn., post, at p. 23.) The dissent does not point
to any trial court finding indicating that the court considered and ruled on either of
these questions, probably because, as explained above, our previous iterations of
the catalyst theory did not clearly established that either were at issue. Remand is
therefore appropriate so that the parties may litigate and the trial court may
determine these two issues.

27



B. Trial Court Did Not Abuse Its Discretion in Finding the

Substantial Benefit And Public Interest Prongs of Section 1021.5
Were Met


DaimlerChrysler also contends that the attorney fee award must be

overturned in its entirety because it failed to confer “a significant benefit . . . on

the general public or large class of persons” as required by section 1021.5. This

contention need not detain us long. We will uphold the trial court’s decision to

award attorney fees under section 1021.5, unless the court has abused its

discretion. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 544.)

It is well settled that attorney fees under section 1021.5 may be awarded for

consumer class action suits benefiting a large number of people. (Beasley v. Wells

Fargo Bank (1991) 235 Cal.App.3d 1407, 1417-1418 [upholding an award of

section 1021.5 attorney fees for class action against bank charging excess credit

card fees].) As Beasley recognizes, section 1021.5 requires both a finding of a

significant benefit conferred on a substantial number of people and a

determination that the “subject matter of the action implicated the public interest.”

(Beasley, supra, at p. 1418.)

In the present case, the trial court found that the problem addressed by the

lawsuit implicated an issue of public safety, and that the lawsuit benefited

thousands of consumers and potentially thousands more by acting as a deterrent to

discourage lax responses to known safety hazards. In light of the facts reviewed in

the first part of this opinion, we conclude the trial court did not abuse its discretion

in finding that the lawsuit met the substantial benefit and public interest

requirements of section 1021.5.9


9

The dissent appears to question the rule stated in Beasley that a consumer

class action suit conferring significant benefits on a large number of people
vindicating a right of substantial societal importance can be the basis of an award


(footnote continued on next page)

28



C. Whether There Should Be A Multiplier for Attorney Fees for

Litigating Attorney Fees

In the present case, a large percentage of the attorney fees were awarded for

litigation to obtain fees under section 1021.5. As noted, the lodestar amount

calculated by the trial court was $329,620, and that amount was multiplied by an

enhancement of 2.25, for a total $762, 830. The trial court based the enhancement

on “the contingency nature [of the litigation], the delay in payment and the quality

of the result.” DaimlerChrysler argues that there should be no enhancement for

fees for fee-related litigation, or “fees on fees.” Assuming the trial court

concludes on remand that plaintiffs are entitled to some attorney fees, we address

for its benefit whether it appropriately awarded enhancements for fees on fees.

We conclude that, while fees for attorney fee litigation under section 1021.5 may

be enhanced under some circumstances, that enhancement should generally be

lower than fees awarded in the underlying litigation.

We first review some general principles regarding the calculation of

attorney fees in public interest litigation. As we recently explained, under our

decision in Serrano III, “a court assessing attorney fees begins with a touchstone



(footnote continued from previous page)

of section 1021.5 attorney fees. Its cites in support of its position Flannery v.
California Highway Patrol
(1998) 61 Cal.App.4th 629, 635-636, a case involving
a single plaintiff’s lawsuit under the Fair Employment and Housing Act. But
Flannery merely held that a plaintiff who enforces a statutory right is not
necessarily entitled to section 1021.5 fees when the primary effect of the suit is to
vindicate an individual economic interest. Flannery does not contravene the rule
in Beasley. Nor does the dissent’s reweighing and recharacterization of the
evidence persuade us that the trial court’s conclusion  that the lawsuit itself
furthered the public interest by resulting in extensive consumer remedies, which
served as a deterrent to future conduct jeopardizing public safety  was
unsupported by substantial evidence.

29



or lodestar figure, based on the ‘careful compilation of the time spent and

reasonable hourly compensation of each attorney . . . involved in the presentation

of the case.’ [Citation.] We expressly approved the use of prevailing hourly rates

as a basis for the lodestar, noting that anchoring the calculation of attorney fees to

the lodestar adjustment method ‘ “is the only way of approaching the problem that

can claim objectivity, a claim which is obviously vital to the prestige of the bar

and the courts.” ’ [Citation.] In referring to ‘reasonable’ compensation, we

indicated that trial courts must carefully review attorney documentation of hours

expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject

to compensation. [Citation.]

“Under

Serrano III, the lodestar is the basic fee for comparable legal

services in the community; it may be adjusted by the court based on factors

including . . . : (1) the novelty and difficulty of the questions involved, (2) the

skill displayed in presenting them, (3) the extent to which the nature of the

litigation precluded other employment by the attorneys, (4) the contingent nature

of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the

fair market value for the particular action. In effect, the court determines,

retrospectively, whether the litigation involved a contingent risk or required

extraordinary legal skill justifying augmentation of the unadorned lodestar in order

to approximate the fair market rate for such services. The ‘ “experienced trial

judge is the best judge of the value of professional services rendered in his court,

and while his judgment is of course subject to review, it will not be disturbed

unless the appellate court is convinced that it is clearly wrong.” ’ ” (Ketchum,

supra, 24 Cal.4th at pp. 1131-1132.)

One of the most common fee enhancers, and one used by the trial court in

the present case, is for contingency risk. We reaffirmed the propriety of a

30



contingency risk enhancement in Ketchum: “The economic rationale for fee

enhancement in contingency cases has been explained as follows: ‘A contingent

fee must be higher than a fee for the same legal services paid as they are

performed. The contingent fee compensates the lawyer not only for the legal

services he renders but for the loan of those services. The implicit interest rate on

such a loan is higher because the risk of default (the loss of the case, which

cancels the debt of the client to the lawyer) is much higher than that of

conventional loans.’ (Posner, Economic Analysis of Law (4th ed. 1992) pp. 534,

567.) ‘A lawyer who both bears the risk of not being paid and provides legal

services is not receiving the fair market value of his work if he is paid only for the

second of these functions. If he is paid no more, competent counsel will be

reluctant to accept fee award cases.’ ” (Ketchum, supra, 24 Cal.4th at

pp. 1132-1133.)

Turning to the question of compensation for fee-related litigation, we first

note it is well established that plaintiffs and their attorneys may recover attorney

fees for fee-related matters. (Serrano IV, supra, 32 Cal.3d at pp. 632-633, 639.)

As we stated: “the [private attorney general] doctrine will often be frustrated,

sometimes nullified, if awards are diluted or dissipated by lengthy, uncompensated

proceedings to fix or defend a rightful fee claim.” (Serrano IV, supra, 32 Cal.3d

at p. 632; see also Ketchum, supra, 24 Cal.4th at p. 1141.)

While DaimlerChrysler does not dispute that fees for fee-related litigation

may be awarded, it asks this court to hold that there should be no multiplier for

fees on fees. It cites to several out-of-state cases that have disallowed such

multipliers, principally because fee litigation is tangential to the primary litigation

and of less social value. (See City of Birmingham v. Horn (Ala. 2001) 810 So.2d

667, 684 [“While the law clearly allows for a fee award with respect to [fee

31



litigation], we do not consider this time to be vital to the true purpose of the

litigation”]; Bakinski v. Northwestern University (Ill.Ct.App. 1992) 595 N.E.2d

1106, 1114 [“the fee litigation in this case is not part of the class action litigation,

and . . . confers no benefit on the class” and is therefore “not the type of litigation

warranting the application of multiplier”]; see also Indiana Hospital Licensing

Council v. Women’s Pavilion of South Bend (Ind.Ct.App. 1985) 486 N.E.2d 1070,

1080.) DaimlerChrysler argues that as a policy matter, enhancements of fees will

serve only to encourage a “satellite” litigation of dubious social utility. (See

Hensley v. Eckerhart (1983) 461 U.S. 424, 437; see also id. at p. 442 (conc. opn.

of Brennan, J.) [referring to attorney fee litigation as “one of the least socially

productive types of litigation imaginable”].)

As plaintiffs point out, our Court of Appeal adopted a contrary position in

Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d

983 (Downey Cares). In that case, the plaintiffs overturned an amendment to the

city’s general plan that had been brought about by a conflict of interest on the part

of one of the city council members. The trial court awarded attorney fees under

Government Code section 91003 and applied a 1.5 multiplier to the entire lodestar

amount, including fees for fee litigation. The Court of Appeal upheld the

judgment. After reviewing the justification stated above for awarding fees for fee

litigation, it stated: “Considering the numerous factors a trial court might

legitimately weigh in determining the multiplier [citation], it is certainly

conceivable that some of these factors might apply to the main litigation but not to

the fee litigation. For instance, the underlying suit might involve complex issues,

lengthy proceedings, and unusual skill, while at the same time the fee related

motions might be routine and short. Under such circumstances, a trial court would

not abuse its discretion if it chose to distinguish the two categories and apply a

32



different multiplier to each. [Citation.] On the other hand, a trial court would not

necessarily abuse its discretion if it chose not to distinguish the two categories but

to apply the multiplier to the whole lodestar. For instance, if the contingency of

receiving any fee and the long delay in receiving the fee . . . were important to the

trial judge’s calculation, they seem equally applicable to the award for fee-related

services.” (Downey Cares, supra, 196 Cal.App.3d at pp. 997-998.) Echoing

Downey Cares, plaintiffs argue that there is no principled basis for categorically

precluding appropriate enhancements for fees for fee litigation.

We noted the holding in Downey Cares in Ketchum, supra, 24 Cal.4th at

page 1141, footnote 6. But in Ketchum, we declined to apply the contingency fee

enhancement to fees for fee litigation. We reasoned that under the statute

authorizing attorney fees at issue in that case, section 425.16, subdivision (c), the

fees were mandatory once a party prevailed on the underlying anti-SLAPP motion,

and there was at that point no contingent risk to the pursuit of attorney fees that

would justify an enhancement for the fees on fees. (Ketchum, supra, 24 Cal.4th at

pp. 1141-1142.) We had no occasion to decide whether fees for fee litigation

should be enhanced under section 1021.5.

In light of the above discussion, we reject DaimlerChrysler’s argument that

fees for fee litigation can never be enhanced. Such a rule does not appear

harmony with the principle that the awarding of attorney fees and the calculation

of attorney fee enhancements are highly fact specific matters best left to the

discretion of the trial court. (See Ketchum, supra, 24 Cal.4th at pp. 1131-1132.)

Although we agree with DaimlerChrysler that the reduction of attorney fee

litigation is a desirable objective, it is not clear that a categorical rule barring

enhancements for fee litigation will accomplish that objective. It is not clear that

the unnecessary prolongation of fee litigation is a significant problem, given that

33



trial courts have the capacity to distinguish between reasonable and unreasonable

attorney fee charges and the discretion to disallow the latter. Nor is it clear that, if

there is such a problem, it is caused mainly by avaricious plaintiffs rather than

recalcitrant defendants.

Furthermore, “[w]hen the Legislature has determined that the lodestar

adjustment approach is not appropriate, it has expressly so stated. Thus, in 1993,

it amended Code of Civil Procedure section 1021.5 to provide that attorney fees

awarded to a public entity under the section ‘shall not be increased or decreased by

a multiplier based upon extrinsic circumstances, as discussed in [Serrano III,

supra,] 20 Cal. 3d 25, 49.’ (Stats. 1993, ch. 645, § 2, p. 3747.) Its express

restriction on the use of fee enhancements therein ‘can be read as an implicit

endorsement of their use in other contexts.’ ” (Ketchum, supra, 24 Cal.4th at p.

1135.) One of those “other contexts” is for fees for fee litigation, as recognized

six years prior to the 1993 amendments in Downey Cares.

Nonetheless, building on the discussion quoted above in Ketchum and

Downey Cares, we recognize that the enhancement justified for fees in the

underlying litigation may differ from the enhancement warranted in the fee

litigation, and that a lower enhancement, or no enhancement, may be appropriate

in the latter litigation. In fact, a closer examination of the enhancement factors set

forth in Serrano III leads to the conclusion that in most cases, the enhancement for

the fee litigation should be lower than the enhancement for the underlying

litigation, if one is applied at all.

This is especially true of the “results obtained” factor that the trial court

relied on in part to justify its multiplier. “The ‘results obtained’ factor can

properly be used to enhance a lodestar calculation where an exceptional effort

produced an exceptional benefit.” (Thayer v. Wells Fargo Bank (2001) 92

34



Cal.App.4th 819, 838.) While the trial court may have legitimately concluded that

the underlying litigation had produced an exceptional benefit for consumers in the

present case, the same cannot be said of the fee litigation itself, which simply

produced fees to compensate plaintiffs’ attorneys for their efforts. We conclude

fees for fee litigation should not be enhanced on that basis.

Moreover, while this factor often takes into account the exceptional skill

exhibited by the attorney (Leaolo v. Beneficial Cal. Inc. (2000) 82 Cal.App.4th 19,

50; Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1363; City of

Oakland v. Oakland Raiders (1988) 203 Cal.App.3d 78, 85), an enhancement on

that basis is rarely justified for fee related litigation. This litigation, as discussed

above, is for the most part simpler than litigation on the merits. On the other hand,

while attorney fees may not be used to punish defendants (Ketchum, supra, 24

Cal.4th at p. 1141), fees for fee litigation may be enhanced when a defendant’s

opposition to the fee motion creates extraordinary difficulties. (See e.g. Edgerton

v. State Personnel Bd., supra, 83 Cal.App.4th at p. 1363; Crommie v. P.U.C.

(N.D.Cal. 1994) 840 F.Supp. 719, affd. sub nom. Mangold v. P.U.C. (9th Cir.

1995) 67 F.3d 1470 [lodestar enhanced in part by increased difficulty due to

defendant’s “excessively vexatious and often unreasonable opposition”].)10

Courts awarding attorney fees under section 1021.5 also may generally

differentiate between the contingency risk undertaken during the litigation on the

merits and the risk undertaken for litigation on fees. The risk that an attorney

takes in the underlying public interest litigation has two components: the risk of

not being a “successful party,” i.e., of not prevailing on the merits, and the risk of


10

In the present case, the trial court expressly stated that it was not enhancing

the fees because of the “novelty or difficulty of the issues.”

35



not establishing eligibility for an attorney fee award. (Serrano III, supra, 20

Cal.3d at p. 49.) As discussed, in Ketchum we declined to award a contingency

enhancement for fee litigation because under section 425.16, award of the fee was

mandatory once a party had prevailed on the underlying motion, and therefore

neither of the two risk components were implicated. Generally speaking, by the

time of the commencement of fee litigation in section 1021.5 cases, the first and

perhaps most substantial component of risk, that of not being a successful party,

has been eliminated. What remains is the second component, that plaintiffs may

not be able to establish eligibility for fees, i.e., to establish that the litigation

confers “a ‘significant benefit’ . . . ‘on the general public or a large class of

persons’ ” (Beasley v. Wells Fargo Bank, supra, 235 Cal.App.3d at pp. 1417-

1418) or that there was the “ ‘necessity and financial burden of private

enforcement,’ ” making the award appropriate (Hammond v. Agran (2002) 99

Cal.App.4th 115, 121). Although in the present case, as in other catalyst theory

cases, plaintiffs had not established themselves as the successful party at the

beginning of the fee litigation, and some enhancement for that risk may be

justified, the achievement of their litigation objective before fee litigation would

reduce somewhat the uncertainty over their “successful party” status. The fact that

the risk of fee litigation is generally less than the risk of litigation on the merits of

the suit justifies a lower attorney fee multiplier for the former, if one is given at

all. We do not believe a lower multiplier on fees for less risky fee litigation will

deter attorneys from accepting worthwhile public interest cases. (See Ketchum,

supra, 24 Cal.4th at pp. 1132-1133, 1141-1142.)

36



One enhancement factor that would be as applicable for fees on fees as for

fees on the merits is a significant delay in the payment of the fees. (See Serrano

III, supra, 20 Cal.3d at p. 49.) “Court-awarded fees normally are received long

after the legal services are rendered. That delay can present cash-flow problems

for the attorneys. In any event, payment today for services rendered long in the

past deprives the eventual recipient of the value of the use of the money in the

meantime, which use, particularly in an inflationary era, is valuable. A percentage

adjustment to reflect the delay in receipt of payment therefore may be

appropriate.” (Copeland v. Marshall (D.C. Cir. 1980) 641 F.2d 880, 893.) But

this enhancement, which is tantamount to an interest rate, is by itself quite small

and may be reduced or eliminated if the lodestar rate is based on the present

hourly rate rather than the lesser rate applicable when the services were rendered.

(Id. at p. 893, fn. 23, see also Pearl, Cal. Attorney Fee Awards, supra, § 13.10,

p. 390.)

In the present case, the trial court made its initial decision regarding the fee

multiplier before our decision in Ketchum and then, after further briefing, reduced

the multiplier from 3.0 to 2.25, not differentiating between the fees in the

underlying litigation and the fees on fees. It appears the court over-enhanced the

fees on fees by inappropriately using the “results obtained” factor to arrive at the

multiplier. On remand the court should also reexamine its use of the risk factor.

While it was not required to explain how it calculated that factor, and we will

generally presume the attorney fee award was correct “ ‘on matters as to which the

record is silent’ ” (Ketchum, supra, 24 Cal.4th at p. 1140), it would be appropriate

for the trial court to reassess its calculation of a risk enhancement for fees on fees

in light of this opinion’s conclusion that the risk multiplier for those fees generally

should be lower than for fees in the underlying litigation. The trial court is

37



therefore directed on remand to recalculate the proper multiplier if it concludes

that plaintiffs are eligible for some attorney fees.

III. DISPOSITION

The judgment of the Court of Appeal affirming the award of attorney fees

in the present case is reversed, and the cause is remanded for proceedings

consistent with the views expressed in this opinion.

MORENO, J.






WE CONCUR: GEORGE, C. J.

KENNARD,

J.


WERDEGAR,

J.



38













DISSENTING OPINION BY CHIN, J.




I dissent.

Plaintiffs filed a simple seven-page complaint alleging a single cause of

action for breach of warranty after the defendant had already acknowledged its

marketing mistake and was taking steps to correct it, and while the Santa Cruz

County District Attorney and the California Attorney General were investigating

the matter and preparing to take appropriate action. The complaint constituted

plaintiffs’ entire legal effort regarding the underlying lawsuit. They obtained no

judicial ruling of any kind in their favor. Nevertheless, to date, plaintiffs have

parlayed this complaint into an award of attorney fees of $762,830, most of it for

work unrelated to the underlying lawsuit. Now the majority remands the matter

for yet more litigation. I disagree for several reasons.

This court has never awarded attorney fees to a party with no judicial ruling

in its favor. We should not start now. Relying solely on federal cases that have

been overruled and California cases that either denied attorney fees or involved a

plaintiff with a judicial ruling in its favor, the majority permits an award of

attorney fees to the plaintiffs as the “prevailing” or “successful” party. To do so, it

adopts the so-called catalyst theory, a theory that was once prevalent in federal

courts, but that the United States Supreme Court has now repudiated. We should

not resurrect it.

1



Moreover, plaintiffs do not qualify for attorney fees even under the

majority’s catalyst theory. Their lawsuit was unnecessary when filed, it was moot

within days of its filing, and it conferred no substantial public benefit. Plaintiffs

have also failed to show their suit had any merit in light of the corrective steps

defendant had already taken. The majority implicitly recognizes that plaintiffs

failed to justify their award of attorney fees, but it inexplicably remands the matter

for yet more litigation, which will undoubtedly increase plaintiffs’ attorney fee

demand to a truly astronomic amount. I disagree here also. No reason appears to

give plaintiffs a second chance to try to prove what they failed to prove the first

time. Courts should seek to resolve litigation, not perpetuate it.

Finally, the majority permits qualifying plaintiffs to receive not only (1)

attorney fees for litigating the underlying lawsuit, but also (2) a multiplier on those

fees, and also (3) attorney fees for litigating their entitlement to attorney fees, and

also (4) a multiplier on the fees for litigating entitlement to fees. I disagree on the

final point. Surely, awarding fees for the underlying litigation, with a potential

multiplier, plus fees for litigating entitlement to fees, is sufficient. A multiplier for

litigating fees on fees is excessive and can only lead to outrageously inflated

awards like the one here, where a simple complaint is transformed into an award

of over three-quarters of a million dollars.

The majority today goes farther than this court has ever gone before—

indeed, so far as I can tell, further than any other court has ever gone—in

permitting plaintiffs to win large attorney fee awards. I cannot agree. Lest

California truly become a mecca for plaintiffs and plaintiffs’ attorneys throughout

the country, we need to be at least somewhat in step with the rest of the country.

2



I. THE FACTS AND PROCEDURAL HISTORY

DaimlerChrysler Corporation (DaimlerChrysler) incorrectly marketed its

1998 and 1999 Dakota R/T trucks as having a 6,400-pound towing capacity when

they actually could tow only 2,000 pounds. The error occurred because the

Dakota R/T was a sporty version of an existing truck model, which could tow

6,400 pounds. However, to obtain a sporty design, DaimlerChrysler lowered the

suspension on the Dakota R/T, thus reducing its towing capacity. During these

two years, DaimlerChrysler sold or leased fewer than 7,000 of the Dakota R/T’s

nationwide, including fewer than 1,000 in California.

DaimlerChrysler became aware of the mistake by early 1999. By February

1999, it had set up a response team to address the problem. By June 1999,

DaimlerChrysler had replaced the incorrect marketing materials, owners manuals,

and engine and door labels for not-yet-sold Dakota R/T’s. DaimlerChrysler had

also notified existing buyers of the error, told them not to attempt to tow more than

2,000 pounds, and provided them with the same modified materials. It told buyers

who wanted to tow more than 2,000 pounds they could do so only if their Dakota

R/T was modified with a trailer hitch costing $300. DaimlerChrysler also began to

address remedial measures for customers who had bought or leased their Dakota

R/T’s under the incorrect marketing program. Many R/T buyers never intended to

tow more than 2,000 pounds. When informed by DaimlerChrysler of the error,

most of those customers were satisfied with DaimlerChrysler’s offers of cash and

merchandise. Initially, DaimlerChrysler offered buyers who had bought the

hitches refunds of the $300 cost. By the summer 1999, DaimlerChrysler

authorized dealers to repurchase or replace Dakota R/T’s on a case-by-case basis

for customers who demanded such a remedy.

3



On July 29, 1999, the Santa Cruz County District Attorney contacted

DaimlerChrysler about the problem, threatened legal action, and requested

DaimlerChrysler’s input before acting. On August 10, 1999, the California

Attorney General notified DaimlerChrysler that it had joined the Santa Cruz

County District Attorney. The public agencies requested a response by the end of

August 1999.

On August 23, 1999, plaintiffs filed the seven-page complaint underlying

this appeal. They alleged that they had bought 1999 Dakota R/T’s from various

DaimlerChrysler dealers. One of the plaintiffs lived and bought his truck in

California. Plaintiffs alleged a single cause of action for breach of express

warranty based on the mistake regarding the trucks’ towing capacity. They

alleged that DaimlerChrysler acknowledged the error by letter to all purchasers

dated June 16, 1999. They alleged that they had previously notified

DaimlerChrysler of their trucks’ failure to comply with the warranted towing

capacity and that they were revoking their acceptance of their trucks. They

sought, but never obtained, class certification for all buyers of Dakota R/T’s

nationwide. They also sought return of their purchase or lease payments,

compensatory damages, and attorney fees. Nothing in the complaint referred to

any threat to public safety or requested any remedy related to public safety.

The day the lawsuit was filed, the Detroit News contacted

DaimlerChrysler’s legal counsel about the lawsuit. DaimlerChrysler’s counsel

claimed DaimlerChrysler had responded appropriately to the marketing error,

including offering buybacks to customers who requested them. Plaintiffs faxed

their complaint to DaimlerChrysler the same day. The next day, August 24, 1999,

DaimlerChrysler’s employee newsletter ran an article on the plaintiffs’ case.

DaimlerChrysler’s response team met throughout August 1999. The team knew

4



about both public agency inquiries and the response deadline. DaimlerChrysler

wrote to the public agencies that its internal approval process prohibited a

response by August 31, but promised a response by September 8, 1999. On

September 10, 1999, DaimlerChrysler informed all buyers of Dakota R/T’s that,

among other options, DaimlerChrysler would repurchase or assist in replacing

their 1998 or 1999 Dakota R/T. Evidence showed that the response team was

aware of plaintiffs’ lawsuit before September 10, 1999.

DaimlerChrysler demurred to the complaint. Plaintiffs filed an amended

complaint, acknowledging DaimlerChrysler’s offer of, among other remedies,

repurchase or replacement of the trucks for all previous buyers. The trial court

sustained the demurrer without leave to amend and dismissed the case as moot

because DaimlerChrysler had already offered all purchasers the relief plaintiffs

sought.

The public agency investigation continued. That investigation revealed that

some brochures containing the error were distributed as late as August 1999. In

late 2000, DaimlerChrysler settled the public agency investigation by paying a

$75,000 fine and agreeing to continue to assure that the marketing error did not

reoccur.

Although the court dismissed plaintiffs’ case, the parties continued to

litigate plaintiffs’ entitlement to attorney fees. As the Court of Appeal described

it, “Over a year of hotly-contested discovery and other motions occurred to clarify

the facts described above.” The trial court held three contested hearings on the fee

request. On October 18, 2000, the court held a lengthy evidentiary hearing and

made factual findings rejecting DaimlerChrysler’s claim that it had at least

decided to offer all buyers repurchase or buybacks before plaintiffs filed their

case. The court found plaintiffs’ case was a catalyst for DaimlerChrysler’s

5



eventual offer. It found that this action was necessary despite the public agency

investigation because the public agencies had not yet commenced any actual

proceeding against plaintiffs, and they “were only concerned with

DaimlerChrysler’s false advertising materials and never sought any remedies on

behalf of the consumers . . . .” It also found that plaintiffs’ action enforced

“consumer rights, including highway safety,” and conferred a significant public

benefit, including pecuniary benefits for consumers and “enhanced safety.” It

found an additional benefit “if DaimlerChrysler and/or other manufacturers are

deterred from similar conduct in the future.”

The court found the “lodestar” fee amount (i.e., the number of hours of

work multiplied by a reasonable hourly compensation; see Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1131-1132) was $329,620 through the October 18, 2000,

hearing. It awarded a 2.25 multiplier for the fees until the October 18, 2000,

hearing to account for risk and success. Ultimately, it awarded a total of $762,830

in attorney fees. It did not distinguish how much of this total was due to the

underlying litigation and how much of it to litigating entitlement to attorney fees.

However, DaimlerChrysler states and, at oral argument, plaintiffs agreed that

roughly 90 percent of this award was for fees plaintiffs generated while seeking

fees.

DaimlerChrysler appealed limited to the question of attorney fees. The

Court of Appeal affirmed the judgment, and we granted DaimlerChrysler’s

petition for review.

II. DISCUSSION

A. California should not adopt the catalyst theory.

“California follows what is commonly referred to as the American rule,

which provides that each party to a lawsuit must ordinarily pay his own attorney

6



fees. [Citations.] The Legislature codified the American rule in 1872 when it

enacted Code of Civil Procedure section 1021, which states in pertinent part that

‘Except as attorney’s fees are specifically provided for by statute, the measure and

mode of compensation of attorneys and counselors at law is left to the agreement,

express or implied, of the parties . . . .’ ” (Trope v. Katz (1995) 11 Cal.4th 274,

278-279.)

Code of Civil Procedure section 1021.5, enacted in 1977, provides an

exception to this American rule. As relevant, it states that, “[u]pon 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” certain requirements are met.1 Although not at

issue here, Government Code section 12965, subdivision (b), part of the California

Fair Employment and Housing Act, is similar. That section provides as relevant:

“In actions brought under this section, the court, in its discretion, may award to the


1

In its entirety, Code of Civil Procedure section 1021.5 provides today:

“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. With respect to actions involving public
entities, this section applies to allowances against, but not in favor of, public
entities, and no claim shall be required to be filed therefor, unless one or more
successful parties and one or more opposing parties are public entities, in which
case no claim shall be required to be filed therefor under Part 3 (commencing with
Section 900) of Division 3.6 of Title 1 of the Government Code.


“Attorneys’ fees awarded to a public entity pursuant to this section shall not

be increased or decreased by a multiplier based upon extrinsic circumstances, as
discussed in Serrano v. Priest, 20 Cal.3d 25, 49.”

7



prevailing party reasonable attorney’s fees and costs, including expert witness

fees, except where the action is filed by a public agency or a public official, acting

in an official capacity.” (Ibid.)

The issue here is what it takes to be a “successful” or “prevailing” party

within the meaning of these statutes. (I agree with the majority that these terms

are synonymous for these purposes.) (Maj. opn., ante, at p. 16.) Although

plaintiffs did not obtain any judicial ruling in their favor, they claim entitlement to

attorney fees as the successful party because their lawsuit was a “catalyst” that

caused DaimlerChrysler to offer the relief they sought. We have never awarded

attorney fees predicated on the catalyst theory, but we have discussed it. As we

explained in Westside Community for Independent Living, Inc. v. Obledo (1983)

33 Cal.3d 348 (Westside Community) (a case that reversed an award of attorney

fees), “Numerous federal decisions have . . . [held] that attorney fees may be

proper whenever an action results in relief for the plaintiff, whether the relief is

obtained through a ‘voluntary’ change in the defendant’s conduct, through a

settlement, or otherwise. [Citations.] [¶] Thus, an award of attorney fees may be

appropriate where ‘plaintiffs’ lawsuit was a catalyst motivating defendants to

provide the primary relief sought . . . .’ [Citation.] A plaintiff will be considered a

‘successful party’ where an important right is vindicated ‘by activating defendants

to modify their behavior.’ [Citation.]” (Id. at pp. 352-353.)

Although, as we explained in Westside Community, supra, 33 Cal.3d 348,

lower federal courts had generally recognized the validity of the catalyst theory,

the United States Supreme Court recently rejected it as a basis for awarding

attorney fees to a “prevailing party.” (Buckhannon Board & Care Home, Inc. v.

West Virginia Dept. of Health and Human Resources (2001) 532 U.S. 598

(Buckhannon).) In that case, Buckhannon Board and Care Home, Inc.

8



(Buckhannon), operated care homes that provided assisted living to their residents.

It failed a state inspection because some of the residents were incapable of “self-

preservation” as required under state law. (Id. at p. 600.) After receiving cease-

and-desist orders requiring closure of its facilities, it brought suit in federal court

against the State of West Virginia and others claiming that the “self-preservation”

requirement violated the Fair Housing Amendments Act of 1988 (42 U.S.C § 3601

et seq.) and the Americans with Disabilities Act of 1990 (42 U.S.C § 12101 et

seq.). The defendants agreed to stay enforcement of the cease-and-desist orders

pending resolution of the case and the parties began discovery. In the meantime,

the West Virginia Legislature enacted legislation eliminating the “self-

preservation” requirement. The district court then dismissed the case as moot.

Buckhannon requested attorney fees under two statutes that permitted the court to

award attorney fees to the “prevailing party.” (Buckhannon, supra, at pp. 600-

601; see 42 U.S.C. § 3613(c)(2) [“[T]he court, in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee and costs”]; 42 U.S.C. § 12205

[“[T]he court . . . , in its discretion, may allow the prevailing party . . . a reasonable

attorney’s fee, including litigation expenses, and costs”].) Buckhannon argued, as

plaintiffs argue here, “that they were entitled to attorney’s fees under the ‘catalyst

theory,’ which posits that a plaintiff is a ‘prevailing party’ if it achieves the desired

result because the lawsuit brought about a voluntary change in the defendant’s

conduct.” (Buckhannon, supra, at p. 601.)

The high court began its analysis by noting that in the United States parties

ordinarily must bear their own attorney fees, but Congress has authorized the

award of such fees to the “prevailing party” in numerous statutes. (Buckhannon,

supra, 532 U.S. at pp. 602-603.) “In designating those parties eligible for an

award of litigation costs, Congress employed the term ‘prevailing party,’ a legal

9



term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines ‘prevailing party’

as ‘[a] party in whose favor a judgment is rendered, regardless of the amount of

damages awarded <in certain cases, the court will award attorney’s fees to the

prevailing party>. —Also termed successful party.’ This view that a ‘prevailing

party’ is one who has been awarded some relief by the court can be distilled from

our prior cases.” (Id. at p. 603.) “In addition to judgments on the merits, we have

held that settlement agreements enforced through a consent decree may serve as

the basis for an award of attorney’s fees. [Citation.] Although a consent decree

does not always include an admission of liability by the defendant [citation], it

nonetheless is a court-ordered ‘chang[e] [in] the legal relationship between [the

plaintiff] and the defendant.’ [Citations.] These decisions, taken together,

establish that enforceable judgments on the merits and court-ordered consent

decrees create the ‘material alteration of the legal relationship of the parties’

necessary to permit an award of attorney’s fees. [Citations.]” (Id. at p. 604, fn.

omitted.)

The court recognized that some of its cases contain dicta supporting the

catalyst theory but noted that its holdings have never applied it; its cases awarding

attorney fees involved a judgment on the merits or at least a consent decree.

(Buckhannon, supra, 532 U.S. at pp. 603-604 & fns. 5, 7.) It concluded that “the

‘catalyst theory’ falls on the other side of the line from these examples. It allows

an award where there is no judicially sanctioned change in the legal relationship of

the parties. . . . A defendant’s voluntary change in conduct, although perhaps

accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the

necessary judicial imprimatur on the change. Our precedents thus counsel against

holding that the term ‘prevailing party’ authorizes an award of attorney’s fees

without a corresponding alteration in the legal relationship of the parties.” (Id. at

10



p. 605.) In response to the dissent’s suggestion that it suffices if the plaintiff

shows that the lawsuit stated a “colorable” and not “groundless” claim (id. at p.

627 (dis. opn. of Ginsburg, J.)), the court disagreed “that the term ‘prevailing

party’ authorizes federal courts to award attorney’s fees to a plaintiff who, by

simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will

never be determined), has reached the ‘sought-after destination’ without obtaining

any judicial relief.” (Id. at p. 606.)

In response to the policy arguments that the catalyst theory was necessary

to prevent defendants generally from unilaterally mooting actions before judgment

to avoid paying attorney fees and to not deter those plaintiffs with meritorious but

expensive cases from bringing suit, the court cited contrary policy arguments. It

noted “the disincentive that the ‘catalyst theory’ may have upon a defendant’s

decision to voluntarily change its conduct, conduct that may not be illegal.” (Id. at

p. 608.) It also noted “that ‘[a] request for attorney’s fees should not result in a

second major litigation,’ [citation], and [the court has] accordingly avoided an

interpretation of the fee-shifting statutes that would have ‘spawn[ed] a second

litigation of significant dimension,’ [citation]. Among other things, a ‘catalyst

theory’ hearing would require analysis of the defendant’s subjective motivations in

changing its conduct, an analysis that ‘will likely depend on a highly factbound

inquiry and may turn on reasonable inferences from the nature and timing of the

defendant’s change in conduct.’ [Citation.] Although we do not doubt the ability

of district courts to perform the nuanced ‘three thresholds’ test required by the

‘catalyst theory’—whether the claim was colorable rather than groundless;

whether the lawsuit was a substantial rather than an insubstantial cause of the

defendant’s change in conduct; whether the defendant’s change in conduct was

motivated by the plaintiff’s threat of victory rather than threat of expense [citation

11



to the dissenting opinion]—it is clearly not a formula for ‘ready administrability.’

[Citation.]” (Id. at pp. 609-610.) Ultimately, “[g]iven the clear meaning of

‘prevailing party’ in the fee-shifting statutes,” the court did not “determine which

way these various policy arguments cut.” (Id. at p. 610.) It concluded that “the

‘catalyst theory’ is not a permissible basis for the award of attorney’s fees under”

these statutes. (Ibid.)

I agree with the majority that we are not required to follow the high court’s

interpretation of these federal statutes in interpreting California’s statutes. (Maj.

opn., ante, at p.14.) But federal decisions have persuasive value. “Since both this

court and the Legislature have relied on federal cases in framing the private

attorney general theory, we regard the federal precedent in this area as

persuasive.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290.) Because this court

has never awarded attorney fees on a catalyst theory, but only recognized the

existence of the federal rule, I see no reason suddenly to go an independent route

for the first time after the federal courts have abandoned that theory.

In the companion case of Tipton-Whittingham v. City of Los Angeles

(December 2, 2004, S112943) ___ Cal.4th ___ (Tipton-Whittingham), the United

States Court of Appeals for the Ninth Circuit certified to this court questions

similar to the one presented in this case. (See Tipton-Whittingham v. City of Los

Angeles (9th Cir. 2003) 316 F.3d 1058.) In its certification order, it summarized

our cases in this regard: “California cases preceding Buckhannon, while

containing dicta that endorses the catalyst theory for the award of prevailing-party

attorneys’ fees, have involved circumstances where there has been a judicially

enforceable change in the legal relationship between the parties. See Maria P. v.

Riles, 43 Cal.3d 1281, 1290-91 (1987) (determining plaintiffs qualified as

prevailing parties under [Code of Civil Procedure section] 1021.5 on the basis of

12



their preliminary injunction against defendants); In re Head, 42 Cal.3d 223, 225

(1986) (awarding attorneys’ fees after petitioners prevailed on their habeas corpus

claims); Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 675-76

(1982) (awarding attorneys’ fees where the court entered partial summary

judgment and an injunction against one defendant); Northington v. Davis, 23

Cal.3d 955, 960 (1979) (upholding plaintiffs’ fee award where the trial court

granted summary judgment against the defendants).” (Id. at p. 1062.)

The majority says we “endorsed” the catalyst theory in Westside

Community, supra, 33 Cal.3d 348. (Maj. opn., ante, at p. 10.) But, as the Ninth

Circuit recognized, any such endorsement was dictum, because we denied attorney

fees in that case. (Westside Community, supra, at p. 355.) Moreover, our dictum

did not endorse the rule so much as merely recognize what “federal decisions”

(since overruled) had done. (Westside Community, supra, 33 Cal.3d at p. 352.)

Indeed, as I explain in my separate dissent in Tipton-Whittingham, supra, ___

Cal.4th at p. ___ [p. 4] (which, like Westside Community, involves a governmental

entity as defendant), Westside Community reversed an award of attorney fees in

part for reasons that argue against the catalyst theory as a whole, not merely its

application in that case. Now that we have occasion to examine the question

ourselves, we should not make the catalyst theory our own.

In Buckhannon, supra, 532 U.S. 598, the high court relied on the plain

meaning of the word “prevailing” to reject the catalyst theory. Here, the language

of Code of Civil Procedure section 1021.5 militates much more strongly against

the catalyst theory. The federal statutes simply give trial courts discretion to allow

the “prevailing party” attorney fees. (See Buckhannon, supra, at p. 601.) Code of

Civil Procedure section 1021.5, however, permits an award only to a “successful”

(which is synonymous with “prevailing”) party in an action “which has resulted in

13



the enforcement of an important right affecting the public interest . . . .” (Italics

added.) The italicized words means that the plaintiffs must have compelled the

defendant’s conduct to protect some “right.” (See Black’s Law Dict., supra, at p.

549 [defining “enforcement” as “[t]he act or process of compelling compliance

with a law, mandate, or command”].)

But voluntary action is not compelled action. Without some judicially

enforceable order, there is no way to know whether the action was voluntary or

compelled. Persons and entities act voluntarily in response to a lawsuit for many

reasons, some unrelated to the lawsuit’s merits: to avoid the expense of litigation

or bad publicity, to foster good public relations, to make an improvement or take

other useful action not required by law, perhaps simply to put the litigation behind

and move on. The pressure to yield voluntarily to a lawsuit’s demands, even if not

legally required, is exacerbated by the circumstance that historically attorney fee

awards have not gone in both directions. Although the statutes do not prohibit

awards to prevailing defendants, the private attorney general doctrine has

generally resulted only in attorney fee awards to the prevailing plaintiffs and not

also to the prevailing defendants. Thus, unlike the plaintiffs who can hope to be

reimbursed for their attorney fees, the defendants generally cannot expect to

receive compensation from the plaintiffs for their attorney fees. Those defendants

who choose to fight a lawsuit lose even when they win; they must pay their

attorneys themselves, which can be very expensive even for the victor. This

circumstance places the defendants under great pressure to settle a lawsuit, even if

unmeritorious, as soon as possible.

A “judicial imprimatur” (Buckhannon, supra, 532 U.S. at p. 605) on a

defendant’s change in conduct is thus necessary to show that the plaintiff actually

enforced a legal right. Merely eliciting a voluntary action is not enforcing a legal

14



right. But the catalyst theory simply assumes the defendant’s action was required

to right a legal wrong; it assumes the defendant had acted unlawfully. This

assumption is contrary to the requirements of Code of Civil Procedure section

1021.5.

The majority, as well as plaintiffs and supporting amici curiae, argue that

not adopting the catalyst theory might discourage lawsuits like this one, and

lawsuits like this one are so beneficial to society that courts must not do anything

that might discourage them. They claim the catalyst theory is necessary to provide

plaintiffs a full incentive to undertake the cost of public interest litigation. (E.g.,

maj. opn., ante, at p. 22.) I agree that the private attorney general doctrine serves a

valuable purpose. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23

Cal.3d 917, 933.) But it can also impose a substantial cost in a litigious world,

especially as extended by the catalyst theory. The majority confidently asserts that

the catalyst theory requires only “relatively economical, straightforward

inquiries . . . .” (Maj. opn., ante, at p. 21.) It bases this assertion partly on “our

own judicial experience,” although it does not identify what that judicial

experience might be. (Ibid.) Our only judicial experience with the catalyst theory

consists of this case and Westside Community, supra, 33 Cal.3d 348. Our

experience in this case is far from comforting and does not support the majority’s

confident assertion. Here, plaintiff filed a seven-page complaint stating a single

cause of action. Then, after a year of “hotly-contested discovery,” various

contested hearings, and a lengthy evidentiary hearing, the trial court awarded

plaintiffs $762,830 in attorney fees, about 90 percent of which was for litigating

the catalyst theory. And we are not done yet, as the majority remands the case for

yet more litigation. Our experience in Westside Community, supra, 33 Cal.3d 348,

is also not very comforting. There we reversed a grant of attorney fees predicated

15



on the catalyst theory in our own hotly contested four-to-three decision, which

also hardly suggests the doctrine is as easy to apply as the majority asserts.

In Tipton-Whittingham, supra, ___ Cal.4th at p. ___ [p. 3], the majority

summarizes its catalyst theory requirements: “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 . . . ; and, (3) that the plaintiffs reasonably attempted to settle the

litigation prior to filing the lawsuit.” These requirements can be complex, not

straightforward.

The first of these requirements—causation—can itself be difficult to

establish. The mere coincidence of lawsuit followed by action is not enough under

the majority’s catalyst theory. “[I]n order to justify a fee award, there must be a

causal connection between the lawsuit and the relief obtained.” (Westside

Community, supra, 33 Cal.3d at p. 353 [reversing the award of attorney fees for

want of causation].) This requirement generally forces an inquiry into the

motivation behind the defendant’s actions, actions often undertaken by public or

corporate officials. (See Folsom v. Butte County Assn. of Governments (1982) 32

Cal.3d 668, 686 [phrasing the question as “ ‘whether or not the local politicians

would have done what they have done absent the lawsuit’ ”].) The Attorney

General persuasively argues that the catalyst theory should never be based on a

change in legislation because of the difficulty and impropriety of delving into

legislators’ subjective motivation in enacting legislation. (See County of Los

Angeles v. Superior Court (1975) 13 Cal.3d 721, 726-727 & fn. 5.) But similar

concerns apply to actions of public officials in the executive branch or even

16



corporate decision makers and other persons. “Obviously it can be difficult to

prove causation where as here plaintiff seeks to recover on a catalyst theory.”

(Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d

961, 968.) In this case, for example, to show causation, plaintiff had to establish

that DaimlerChrysler adopted its policy, announced on September 10, 1999, due to

this lawsuit and not due to the ongoing efforts of the response team it had already

created to address the problem or the investigations of the Santa Cruz District

Attorney and California Attorney General that had begun before the lawsuit.

The second of these requirements forces a court that has entered no judicial

ruling in the plaintiff’s favor (otherwise the catalyst theory would not come into

play) to make some sort of ruling regarding the merits of the underlying lawsuit.

It is not clear to me exactly what the majority means in this regard, or how the trial

court is supposed to go about making this determination, but here, after more than

a year of litigating the catalyst theory, no court has yet made the ruling the

majority demands. Future courts will have to struggle mightily to decide how to

determine whether a moot lawsuit had merit when filed. Finally, the majority

requires the plaintiffs to establish that they attempted to settle the litigation

without a lawsuit (a requirement that, as I explain below, has long existed). This,

too, is a factual question of some complexity, as today’s remand for yet more

litigation demonstrates.

Thus, permitting attorney fees on a catalyst theory, with no objective

manifestation, in the form of judicial action, that the lawsuit vindicated a legal

right, may, as here, “ ‘result in a second major litigation.’ ” (Buckhannon, supra,

532 U.S. at p. 609.) “[T]he catalyst theory of fee recovery engenders confusion

and unnecessary litigation. . . . Too frequently, legal battles over attorneys’ fees

merely add another round of protracted litigation to what already has been

17



protracted litigation on the merits of a claim. . . . This collateral litigation over

attorneys’ fees is often more heated, more arcane, and over far higher monetary

stakes than the underlying lawsuit. The relationship of all of this activity to the

larger public good is becoming increasingly difficult to discern.” (S-1 By and

Through P-1 v. State Bd. of Educ. (4th Cir. 1993) 6 F.3d 160, 171 (dis. opn. of

Wilkinson, J.).)2

I can perceive of few things less useful to society than generating great

amounts of attorney fees litigating the catalyst theory. In another attorney fee

case, we stated that “scarce judicial resources should not be used to try the merits

of voluntarily dismissed actions merely to determine which party would or should

have prevailed had the action not been dismissed.” (Santisas v. Goodin (1998) 17

Cal.4th 599, 621.) In this case, scarce judicial resources should not be used to

litigate the various requirements of the catalyst theory.3


2

The Fourth Circuit adopted this dissenting opinion after in bank review. (S-

1 and S-2 v. State Bd. of Educ. of N.C. (4th Cir. 1994) 21 F.3d 49, 51 (in bank).)
The high court later cited the in bank decision with approval. (Buckhannon,
supra, 532 U.S. at pp. 602, 608.)
3

The majority suggests that Santisas v. Gooden, supra, 17 Cal.4th 599,

supports adoption of the catalyst theory. (Maj. opn., ante, at pp. 18-19.) That case
does not do so. It involved the interplay of several statutes and certain contractual
language not relevant here. The issue was under what circumstances, if any, a
defendant might be considered a prevailing party when the plaintiff voluntarily
dismisses the action. When a plaintiff voluntarily dismisses an action, the court
ultimately issues the order, which is a judicial action favorable to the defendant.
We had to decide whether it was the type of favorable action that supported an
award of attorney fees. To simplify a complex analysis (and one irrelevant here),
we held that it might be so in some circumstances. We relied in part on a statute
that defines “prevailing party” as including “a defendant in whose favor a
dismissal is entered.” (Code Civ. Proc., § 1032, subd. (a)(4); see Santisas, supra,
at p. 621.) No equivalent statute exists for a plaintiff in whose favor no order of
any kind
is entered.

18



The majority argues the catalyst theory is needed to eliminate risk in public

interest litigation. (Maj. opn., ante, at p. 22.) But there will always be risk.

Indeed, one of the requirements for any plaintiff seeking attorney fees is that the

plaintiff must have attempted to settle the dispute without litigation. (Grimsley v.

Board of Supervisors (1985) 169 Cal.App.3d 960, 966; see maj. opn., ante, at pp.

25-26.) Carried to its logical conclusion, however, the majority’s catalyst

rationale should extend to attorney fees expended in seeking relief short of

litigation. If the threat of litigation causes the prospective defendant to provide the

relief sought, why should attorney fees be denied merely because no lawsuit was

needed? Denying attorney fees when the desired result is obtained without a

lawsuit can deter those plaintiffs who will have to expend attorney fees that they

may never recover. Yet even the majority is forced to admit that no one can be

deemed to be a successful party without a lawsuit. (Maj. opn., ante, at p. 16.)

The private attorney general doctrine inherently contains both a risk and a

cost. A line must be drawn somewhere to balance this risk and this cost. I would

hold that the statute here draws the necessary line by requiring some kind of a

judicial imprimatur before a plaintiff can be considered to be a successful or

prevailing party that enforced an important public right.

The potential for awards of this kind can also greatly increase the

possibility of undue pressure to settle meritless claims. If DaimlerChrysler had

simply paid the requested fees at the outset rather than litigate the question, it

could have spared itself most of the award (as well as its own attorney fees, which

are no doubt substantial). But surely plaintiffs’ entitlement to attorney fees was,

and is, not so clear that DaimlerChrysler could not, and cannot, reasonably litigate

it. The threat of a huge award of attorney fees generated while litigating the

catalyst theory permits the plaintiffs to extort attorney fees from businesses no

19



matter how weak their entitlement to them may be. With this case as a warning,

future defendants may surrender to attorney fee demands, no matter how

unmeritorious, rather than risk a substantial award of attorney fees down the road.

Indeed, the private attorney general doctrine, even without the catalyst

theory and multipliers on fees on fees (see pt. II. C.), gives the plaintiffs a great

advantage in settlement negotiations. The defendants generally have to pay their

own attorney fees. Thus, those defendants who litigate rather than sell out as

cheaply as possible as soon as possible face not the risk, but the near certainty,

that they will incur attorney fees they will not recover. They also risk incurring a

potentially substantial award for the opponents’ attorney fees. The plaintiffs, by

contrast, merely face the possibility they will not be compensated for their own

attorney fees; they run little risk of having to pay their opponent’s attorney fees.

And to compensate for even this possibility, the private attorney general doctrine

permits courts to add a multiplier to the plaintiffs’ attorney fees, which can be very

rewarding, as this case illustrates. The plaintiffs thus have relatively little

incentive to settle, defendants a very strong need to settle. I see no need for the

catalyst theory to provide yet more incentive to plaintiffs.

For all of these reasons, I would not adopt the catalyst theory as a basis for

awarding attorney fees. I would conclude that before a party can be considered to

be a successful or prevailing party under Code of Civil Procedure section 1021.5

or Government Code section 12965, subdivision (b), there must be some court-

ordered change in the legal relationship between the plaintiff and the defendant in

the plaintiff’s favor.

20



B. Plaintiffs have not established entitlement to attorney fees even

under the majority’s catalyst theory.

Even accepting the majority’s catalyst theory, plaintiffs have failed to

establish entitlement to attorney fees for several reasons.

For any plaintiff (including those who actually win their lawsuit) to receive

attorney fees, the action must have “resulted in the enforcement of an important

right affecting the public interest . . . .” (Code Civ. Proc., § 1021.5.) “A decision

which has as its primary effect the vindication of the litigant’s personal rights is

not one which brings into play the attorney fees provision of [Code of Civil

Procedure] section 1021.5.” (In re Head (1986) 42 Cal.3d 223, 228.) Plaintiffs’

complaint was solely for breach of warranty. It sought only class certification

(which plaintiffs never obtained), an award of “compensatory damages for breach

of warranty,” and attorney fees. This action was, at most, a vindication of

personal rights, not an important right affecting the general public.

In reaching the opposite conclusion, the trial court and the majority of this

court claim that the lawsuit “implicated an issue of public safety, and that the

lawsuit benefited thousands of consumers and potentially thousands more by

acting as a deterrent to discourage lax responses to known safety hazards.” (Maj.

opn., ante, at p. 27.) Neither the trial court nor the majority gets more specific, but

they must be referring to the incorrect advertising, not any failure to fully

compensate the consumers for their damages; whether the consumers were made

whole does not implicate public safety. I agree there is some evidence that

DaimlerChrysler’s mistake regarding the towing capacity implicated public safety

at one time. (See id. at p. 3 [“The reduced towing capacity was a potential risk

factor.”].) I also agree that the public agency investigation revealed that brochures

containing the mistake were distributed as late as August 1999. (Ibid.) But

entirely missing is any relationship between public safety concerns and this

21



lawsuit. The plaintiffs expressly alleged that in June 1999, DaimlerChrysler

admitted its error in a letter sent to owners of the affected trucks. They alleged

nothing regarding any continuing misrepresentations or any other public safety

concerns, whether in the past or present. The only remedies the lawsuit sought

were individual damages and attorney fees. No evidence whatever supports the

conclusion that this lawsuit affected any public safety concerns. All that this

lawsuit implicated was the truck owners’ parochial financial interests.

Maximizing plaintiffs’ pecuniary gain does nothing to enhance public safety.

In trying to distinguish this lawsuit from the public agency investigation,

and thus respond to DaimlerChrysler’s argument that this was an unnecessary

“tagalong” lawsuit, the trial court said that the public agencies “were only

concerned with DaimlerChrysler’s false advertising materials and never sought

any remedies on behalf of the consumers who acquired these vehicles while they

were being misrepresented. Private enforcement was needed.” But it was the

false advertising, not plaintiffs’ ability to maximize their monetary recovery, that

implicated public safety. Plaintiffs (and the majority here) cannot have it both

ways. They cannot assert that this lawsuit was more than a tagalong lawsuit

because the public agencies were solely interested in public safety, and then also

claim that plaintiffs conferred a substantial public benefit in enhancing public

safety. The public agency investigation took care of public safety. The private

attorney general doctrine is not necessary when the real Attorney General was

protecting the public interest.4


4

The majority says I question the rule of Beasley v. Wells Fargo Bank

(1991) 235 Cal.App.3d 1407, 1417-1418, that Code of Civil Procedure section
1021.5 requires a finding that the lawsuit conferred a significant benefit on a
substantial number of people and that the action’s subject matter implicated the


(footnote continued on next page)

22



The trial court also said that the Santa Cruz District Attorney and the

Attorney General “had only made an inquiry and had not commenced any

proceeding when plaintiffs filed this action.” But the private attorney general

doctrine should not reward someone merely for winning the race to the

courthouse, especially given the long-standing requirement that the plaintiff must

have attempted to settle the matter before filing the lawsuit, which the public

agencies were doing.

The trial court and majority also suggest the attorney fee award was

appropriate because this action served as a deterrent to others who might otherwise

have a lax response to safety concerns. This suggestion fails for two reasons, one

legal, one factual. First, “Carried to its logical conclusion, the reasoning adopted

by the trial court and espoused by plaintiff would make the private attorney

general doctrine applicable in every case in which a plaintiff successfully sued a

public agency [or, as here, a large business] for some wrongful conduct, because

every such lawsuit would communicate a message to the losing party. Such an

expansive reading of the statutory requirement is untenable.” (Flannery v.


(footnote continued from previous page)

public interest. (Maj. opn., ante, at p. 29, fn. 9.) I do not question that rule.
Instead I question the majority’s assertion that this lawsuit implicated public
safety, the only ground it provides for awarding plaintiffs attorney fees.


The majority also accuses me of “reweighing and recharacteriz[ing]” the

evidence. (Maj. opn., ante, at p. 29, fn. 9.) However, no evidence exists that this
lawsuit
implicated public safety that can be reweighed or recharacterized. The
majority has not even attempted to identify any such evidence. It merely refers the
reader to unspecified “facts reviewed in the first part of this opinion.” (Id. at p.
27.) But the majority’s factual recitation shows that the public agencies, not
plaintiffs, addressed public safety concerns. (See id. at p. 3 [the “public agency
investigation revealed that brochures misrepresenting the trucks’ towing capacity
were still being distributed as of August 1999”].)

23



California Highway Patrol (1998) 61 Cal.App.4th 629, 636.) Second, even if the

deterrence rationale could be used in some cases, this is not one of those cases.

The public agencies, not plaintiffs, took steps to ensure that this mistake will not

recur. The public agencies, not plaintiffs, forced DaimlerChrysler to pay a

$75,000 fine. For plaintiffs to seek credit for what the public agencies did proves

the truth of DaimlerChrysler’s claim that, for purposes of the private attorney

general doctrine, plaintiffs’ lawsuit was, indeed, merely a tagalong action.

In addition to erroneously seeking and obtaining credit for what the public

agencies did, plaintiffs have failed to satisfy two other requirements: (1) they have

failed to show that the lawsuit had any merit; and (2) they have failed to show that

they reasonably attempted to settle the matter short of litigation.5 The majority

implicitly recognizes this failure. (Maj. opn., ante, at pp. 24-25.) But, determined

to reward these plaintiffs no matter how unwarranted the reward may be, it

remands the matter for yet more litigation. It does so by a clever bit of judicial

sleight-of-hand. It says that “these limitations on the catalyst theory are to some

degree new.” (Maj. opn., ante, at p. 2, italics added.) Implicit is the argument that

it would be unfair to deny the plaintiffs the opportunity to prove newly minted

requirements.

I agree that, because the majority adopts the catalyst theory for the first

time today, it has just invented some of the rules—in particular, the rule that a

court that has never ruled on the merits should do so as part of the attorney fee

litigation. Accordingly, to some degree, the limitations are new. But one critical

requirement—that plaintiffs show the lawsuit was actually necessary—is not new.

5

Indeed, as noted, the trial court awarded plaintiffs attorney fees in part

because they filed their lawsuit while the public agencies were trying to settle the
matter short of litigation.

24



The majority tries to obfuscate this circumstance by saying the “Attorney General

proposes” this rule. (Maj. opn., ante, at p. 25.) It hopes, no doubt, that the reader

will infer that the Attorney General is proposing something new. But the Attorney

General is not proposing something new. Rather, he is merely citing a

requirement that has long existed. “[A]ttorney fees under Code of Civil Procedure

section 1021.5, will not be awarded unless the plaintiff seeking such fees had

reasonably endeavored to enforce the ‘important right affecting the public

interest,’ without litigation and its attendant expense.” (Grimsley v. Board of

Supervisors, supra, 169 Cal.App.3d at p. 966 [denying attorney fees for failure to

satisfy this requirement even though the plaintiff had won a final judgment].) This

language is quite clear, and it was written in 1985, long before the events of this

case. Accordingly, plaintiffs have always been on notice of this requirement. I

see no reason, and the majority supplies none, to permit plaintiff to relitigate this

question.

Even in the course of the proceedings in this court, plaintiffs have not

attempted to show their action had any merit. They have not shown that

DaimlerChrysler was legally required to offer a full refund in addition to the steps

it had already taken regarding plaintiffs, which included full disclosure,

prospective correction, and offers to pay for a hitch that, so far as this lawsuit

demonstrates, would have cured all harm. The majority suggests that the “precise

remedy chosen” need not be legally required and hypothesizes the existence of

some other remedy that plaintiffs sought and that DaimlerChrysler was legally

required to provide, and for which the actual remedy of a full refund was a

“compromise.” (Maj. opn., ante, at p. 26, fn. 7.) I cannot imagine what that

remedy might be, and neither plaintiffs nor the majority suggests any, but I

suppose plaintiffs can attempt to prove one on remand if they choose. But for the

25



lawsuit to have any merit there must be some “primary relief sought” (Tipton-

Whittingham, supra, ___ Cal.4th at p. ___ [p. 3]) that DaimlerChrysler was

required to provide. Plaintiffs will have to make this showing on remand, and the

trial court will have to make this determination.

The court will also have to determine whether plaintiffs can show that they

attempted to settle the matter short of litigation. Because at least waiting until

DaimlerChrysler had responded to the public agencies’ inquiry before filing a

complaint would have been eminently reasonable, plaintiffs will not be able to

make this showing, which is no doubt why they have not yet tried to do so despite

the long-standing existence of Grimsley v. Board of Supervisors, supra, 169

Cal.App.3d 960. I also hope that on remand, the court will reconsider its

contradiction in (1) finding this lawsuit different from the public agency

investigation and (2) predicating the actual award of attorney fees on what the

public agencies had accomplished. The court should look instead to what this

lawsuit accomplished, which had nothing to do with public safety.

I can only hope that future courts apply the catalyst theory with more care

than the majority does its own creation.

C. Plaintiffs should not receive a multiplier for litigating fees on fees.

The majority also holds that a plaintiff may recover, as attorney fees, not

only its fees incurred prosecuting the underlying litigation, with a multiplier, and

its fees incurred litigating its entitlement to attorney fees (i.e., fees on fees), but

also a multiplier on fees on fees. I appreciate the majority’s attempt to limit the

size of such multipliers. The majority’s efforts might help reduce the instances of

the tail wagging the dog like here, where the fee for litigating fees on fees is nine

times greater than the fee for litigating the underlying lawsuit. But I would hold

that a multiplier is never appropriate for litigating fees on fees. The majority

26



disagrees with courts from other states that have considered this question and,

tellingly, cites no out-of-state cases supporting its conclusion. (Maj. opn., ante, at

p. 30.) If, as the majority claims, the private attorney general doctrine is intended

to encourage societally useful lawsuits (like the majority finds this one to be), and

not merely to swell attorneys’ coffers, permitting fees for work expended on the

actual lawsuit plus a multiplier, and permitting attorneys to be paid for their efforts

in obtaining those fees plus that multiplier, is a sufficient incentive. A multiplier

on fees generated litigating fees, which, as here, can make the overall reward truly

absurd compared to the effort regarding the underlying litigation, is not necessary.

Permitting this second multiplier further stacks settlement leverage in the

plaintiffs’ favor. Not only must a defendant be concerned about paying its own

attorney fees, and about having to pay for the plaintiffs’ attorney fees incurred in

the underlying litigation, with a potential multiplier, and about having to pay

attorney fees the plaintiff incurred in seeking fees, it must also worry about paying

a multiplier on that amount. All this greatly increases the pressure on the

defendants to buy their way out of lawsuits as cheaply as possible no matter how

meritless they may be.

I must also comment on the irony, no doubt unintended, of the majority’s

statements that a multiplier often takes into account the attorney’s “exceptional

skill,” and that litigating fees on fees “is for the most part simpler than litigation

on the merits.” (Maj. opn., ante, at p. 33.) Plaintiffs exhibited no exceptional skill

in litigating the underlying lawsuit. Because DaimlerChrysler had long since

voluntarily informed plaintiffs of its mistake, plaintiffs had to undertake little or

no investigation. Plaintiffs’ attorneys merely filed a simple seven-page complaint

alleging a single cause of action and containing largely boilerplate language.

Ironically, these attorneys’ best lawyering came when litigating their entitlement

27



to attorney fees, including their ability to convince the trial court both to find that

their action was distinct from the public agency investigation and to credit them

with what the public agencies had accomplished. Although I hesitate to suggest

this lest the court on remand take me seriously, in a perverse way, under the

majority’s analysis, plaintiffs’ effort while litigating their entitlement to fees might

be entitled to a larger multiplier than their effort regarding the underlying lawsuit.

Thus is the topsy-turvy world of catalyst theory and fees plus multipliers

plus fees on fees plus more multipliers for fees on fees.

III. CONCLUSION

At a time when Californians are increasingly concerned about extortionate

lawsuits against businesses, large and small, and worried that the legal climate in

California is so unfriendly to businesses that many are leaving the state and others

are deterred from coming here in the first place,6 today’s ruling goes in exactly the

wrong direction. And it goes further in that direction than this court has ever gone

before. We should interpret and apply California’s private attorney general

statutes sensibly to encourage responsible litigation while also keeping attorney

fee judgments within reasonable bounds and maintaining some semblance of

balance between the litigation positions of the plaintiffs and the defendants.


6

On November 2, 2004, for example, the voters approved Proposition 64,

which places limitations on private enforcement of California’s unfair competition
law. The supporting ballot argument urged a yes vote to “protect small businesses
from frivolous [shakedown] lawsuits” that “make businesses want to move to
other states where lawyers don’t have a legal extortion loophole. When businesses
leave, taxpayers who remain pick up the burden.” (Ballot Pamp., General Elec.
(Nov. 2, 2004) argument in favor of Proposition 64, p. 40.)

28



Because the majority does not do so, I dissent. I would reverse the

judgment of the Court of Appeal.

CHIN,

J.






WE CONCUR:

BAXTER, J.





BROWN,

J.

29



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

Name of Opinion Graham V. Daimler-Chrysler
__________________________________________________________________________________

Unpublished Opinion
NP opn. filed 12/6/02 - 2d Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

_________________________________________________________________________________

Opinion No.
S112862
Date Filed: December 2, 2004
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Bruce Mitchell, Temporary Judge*
__________________________________________________________________________________

Attorneys for Appellant:

Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., DoHoang T. Duong, Gregory D. Brown, Dominic
Lanza; Bryan Cave, Sheldon Eisenberg, Charles A. Newman, John W. Rogers; Robert E. Norton II and
Mary E. Waldrup for Defendants and Appellants.

Somach, Simmons & Dunn, Timothy M. Taylor, Nicholas A. Jacobs, Christian C. Scheuring for Western
Placer Waste Management Authority as Amicus Curiae on behalf of Defendants and Appellants.

Ruth Sorensen and Jennifer B. Henning for California State Association of Counties as Amicus Curiae on
behalf of Defendants and Appellants.

Fred J. Hiestand for Civil Justice Association of California as Amicus Curiae on behalf of Defendants and
Appellants.

Daniel J. Popeo, Paul D. Kamenar; Latham & Watkins, Jennifer F. Ziegaus and Daniel P. Brunton for
Washington Legal Foundation as Amicus Curiae on behalf of Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Richard M. Pearl, Richard M. Pearl; Kemnitzer, Anderson, Barron & Ogilvie, Andrew J.
Ogilvie, Mark F. Anderson and Bryan A. Kemnitzer for Plaintiffs and Respondents.

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 Respondents.



*Pursuant to California Constitution, article VI, section 21.


1






Page 2 - counsel continued S112862


Attorneys for Respondent:

F. Paul Bland, Kerry-Ann T. Powell, Victoria W. Ni and Arthur H. Bryant for Trial Lawyers for Public
Justice, AARP, ACLU of Northern California, ACLU of San Diego and Imperial Counties, ACLU of
Southern California, 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, 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.

Esner & Chang, Stuart B. Esner; Rohde & Victoroff and Stephen F. Rohde for Los Angeles County Bar
Association and Beverly Hills Bar Association as Amici Curiae on behalf of Plaintiffs and Respondents.

Chavez & Gertler, Mark A. Chavez and Kim E. Card for The Bar Association of San Francisco as Amicus
Curiae on behalf of Plaintiffs and Respondents.

The Sturdevant Law Firm, James C. Sturdevant; Ian Herzog; Michael Adler; Sharon J. Arkin; Stuart B.
Enser; Brian S. Kabateck, David A. Rosen; Daniel U. Smith; Christine D. Spagnoli; Lea-Annn Tratten;
Steven B. Stevens; and Scott H. Z. Sumner for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiffs and Respondents.

Mark Savage for Consumers Union of U.S., Inc., as Amicus Curiae on behalf of Plaintiffs and
Respondents.

Fazio & Micheletti, Jeffrey L. Fazio and Dina E. Micheletti for Friends of the Earth, Inc., as Amicus Curiae
on behalf of Plaintiffs and Respondents.

Claudia Center, Elizabeth Kristen; and Linda Kilb for The Legal Aid Society-Employment Law Center and
Disability Rights Education and Defense Fund as Amici Curiae on behalf of Plaintiffs and Respondents.



2







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

Theodore J. Boutrous, Jr.
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000

Richard M. Pearl
Law Offices of Richard M. Pearl
1816 Fifth Street
Berkeley, CA 94710
(510) 649-0810


3

Opinion Information
Date:Docket Number:
Thu, 12/02/2004S112862

Parties
1Daimlerchrysler Corporation (Defendant and Appellant)
Represented by Sheldon Eisenberg
Attorney At Law
120 Broadway #300
Santa Monica, CA

2Daimlerchrysler Corporation (Defendant and Appellant)
Represented by Theodore J. Boutrous
Gibson, Dunn & Crutcher
333 S Grand Ave
Los Angeles, CA

3Daimlerchrysler Motors Corporation (Defendant and Appellant)
Represented by Sheldon Eisenberg
Attorney At Law
120 Broadway #300
Santa Monica, CA

4Daimlerchrysler Motors Corporation (Defendant and Appellant)
Represented by Theodore J. Boutrous
Gibson, Dunn & Crutcher
333 S Grand Ave
Los Angeles, CA

5Graham, Robert (Plaintiff and Respondent)
Represented by Andrew J. Ogilvie
Kemnitzer Anderson Barron & Ogilvie LLP
445 Bush St 6FL
San Francisco, CA

6Graham, Robert (Plaintiff and Respondent)
Represented by Richard M. Pearl
LAW OFFICE OF RICHARD M. PEARL
1816 5th St
Berkeley, CA

7Trekell, Truman (Plaintiff and Respondent)
Represented by Andrew J. Ogilvie
Kemnitzer Anderson Barron & Ogilvie LLP
445 Bush St 6FL
San Francisco, CA

8Trekell, Truman (Plaintiff and Respondent)
Represented by Richard M. Pearl
LAW OFFICE OF RICHARD M. PEARL
1816 5th St
Berkeley, CA

9Hawkins, Daniel (Plaintiff and Respondent)
Represented by Andrew J. Ogilvie
Kemnitzer Anderson Barron & Ogilvie LLP
445 Bush St 6FL
San Francisco, CA

10Hawkins, Daniel (Plaintiff and Respondent)
Represented by Richard M. Pearl
LAW OFFICE OF RICHARD M. PEARL
1816 5th St
Berkeley, CA

11Western Placer Waste Management Auhority (Amicus curiae)
Represented by Timothy Taylor
Somach Simmons & Dunn
813 6th St 3FL
Sacramento, CA

12Bar Association Of San Francisco (Amicus curiae)
Represented by Kim E. Card
Chavez & Gertler LLP
42 Miller Ave
Mill Valley, CA

13Friends Of The Earth, Inc. (Amicus curiae)
Represented by Jeffrey L. Fazio
Fazio Micheletti LLP
1900 South Norfolk Street, Suite 350
San Mateo, CA

14Friends Of The Earth, Inc. (Amicus curiae)
Represented by Dina Elizabeth Micheletti
Fazio Micheletti LLP
1900 South Norfolk Street, Suite 350
San Mateo, CA

15Beverly Hills Bar Association (Amicus curiae)
Represented by Stuart B. Esner
Esner & Chang
523 W 6th St #524
Los Angeles, CA

16Beverly Hills Bar Association (Amicus curiae)
Represented by Stephen F. Rohde
Rohde & Victoroff
1880 Century Park East, #411
Los Angeles, CA

17Los Angeles County Bar Association (Amicus curiae)
Represented by Stuart B. Esner
Esner & Chang
80 South Lake Avenue Suite 720
Pasadena, CA

18Washington Legal Foundation (Amicus curiae)
Represented by Daniel Popeo
Washington Legal Foundation
2009 Massachusetts Avenue., NW
Washington, DC

19Washington Legal Foundation (Amicus curiae)
Represented by Jennifer Faith Ziegaus
Latham & Watkins
701 B Street #2100
San Diego, CA

20Consumers Union Of The United States, Inc. (Amicus curiae)
Represented by Mark Savage
Consumers Union Of US Inc
1535 Mission Street
San Francisco, CA

21California State Association Of Counties (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
1100 K Street, Suite 101
Sacramento, CA

22Trial Lawyers For Public Justice (Amicus curiae)
Represented by Victoria Wei-Chi Ni
Trial Lawyers Publ Justice
555 12TH Street # 1620
Oakland, CA

23American Association Of Retired Persons (Amicus curiae)
Represented by Arthur H Bryant
Trial Lawyers for Public Justice
1 Kaiser Plz #275
Oakland, CA

24Civil Justice Association Of California (Amicus curiae)
Represented by Fred James Hiestand
Attorney at Law
1121 L St #404
Sacramento, CA

25Consumer Attorneys Of California (Amicus curiae)
Represented by James C. Sturdevant
The Sturdevant Law Firm
475 Sansome Street, Suite 1750
San Francisco, CA

26Legal Aid Society-Employment Law Center (Amicus curiae)
Represented by Claudia Center
Employment Law Ctr
1663 Mission St #400
San Francisco, CA

27Legal Aid Society-Employment Law Center (Amicus curiae)
Represented by Elizabeth Kristen
Legal Aid Soc-Emp Law Ctr
600 Harrison Street, Suite 120
San Francisco, CA

28Disability Rights Education & Defense Fund (Amicus curiae)
Represented by Linda D. Kilb
DREDF
2212 6th St
Berkeley, CA


Disposition
Dec 2 2004Opinion: Reversed

Dockets
Jan 15 2003Petition for review filed
  appellants DaimlerChrysler Corporation, etal
Jan 16 2003Received:
  certificate of word count
Jan 17 2003Received Court of Appeal record
  1 doghouse
Feb 5 2003Answer to petition for review filed
  by plaintiffs/respondents (Robert Graham, Truman C. Trekell and Daniel Craig Hawkins) CRC 40k
Feb 6 2003Received:
  Respondent's Certificate of Word Count
Feb 13 2003Received letter from:
  Gibson, Dunn & Crutcher [Appellants DaimlerChrysler], dated 2/13/2003 (letter received in L. A. Office)
Feb 19 2003Letter sent to:
  All Counsel enclosing a copy of the grant order and the Certificate of Interested Entities or Persons form.
Feb 19 2003Petition for Review Granted (civil case)
  Votes: George, C.J.,Kennard, J.,Baxter, J.,Werdegar, J.,Chin,J.,Brown, J.,and Moreno,J.
Feb 20 2003Received Court of Appeal record
  one doghouse - 2 of 2.
Feb 20 20032nd record request
  Additional record -- Vol. 2 of 2 sent overnight Received Appellant's Appendix Vols. 2 thru 6.
Feb 28 2003Received letter from:
 
Mar 6 2003Certification of interested entities or persons filed
  cousel for appellant DaimlerChrysler Corporation
Mar 13 2003Request for extension of time filed
  appellant Daimlerchrysler Corp., and DaimlerChrysler Motores Corp. asking to April 20, 2003.
Mar 14 2003Certification of interested entities or persons filed
  by Respondents Graham et al
Mar 24 2003Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file Appellants' Opening Brief on the Merits is extended to and incuding April 20, 2003.
Apr 18 2003Opening brief on the merits filed
  appellant, DaimlerChrysler Corp., and Daimlerhrysler Motors Corp
Apr 18 2003Request for judicial notice filed (in non-AA proceeding)
  appellant, DaimlerChrysler Corp., and DaimlerChrysler Motors Corp.,
May 13 2003Request for extension of time filed
  by counsel for Respondents to file Answer Brief on the Merits.
May 14 2003Extension of time granted
  Respondents granted to and including June 23, 2003 to file answer brief on the merits.
Jun 19 2003Request for extension of time filed
  by plaintiffs/respondents to July 23, 2003 to file their answer brief on the merits.
Jun 23 2003Extension of time granted
  On application of respondents 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 14 2003Received application to file amicus curiae brief; with brief
  (in Sacramento) Western Placer Waste Management Authority in support of defendants/appellants
Jul 17 2003Permission to file amicus curiae brief granted
  The application of Western Placer Waste Management Authority for permission to file an amicus curiae brief in support of defendants 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.
Jul 17 2003Amicus Curiae Brief filed by:
  Western Placer Waste Management Authority in support of defendants and appellants.
Jul 22 2003Request for extension of time filed
  (Third) for a final seven-day extension to 7-30-2003, to file respondent's opening brief/merits
Jul 24 2003Extension of time granted
  On application of Resopndent 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 30, 2003.
Jul 31 2003Received:
  Untimely (one day late) Respondents' Answer Brief on the Merits with application to file brief in excess of length limit (containing 68 pages and 17,723 words.) CRC rule 29.1(c) -- 50 page limit or 14,000 words See also Corrected Table of Authorities
Aug 1 2003Order filed
  Respondents' application to file their Answer Brief on the Merits containing 17,723 words, in excess of the word count limit of 14,000 words (Cal. Rules of Court, rule 29.1(c)), is hereby GRANTED.
Aug 1 2003Answer brief on the merits filed
  Respondents'
Aug 4 2003Received:
  Respondents' Proof of Service of the answer brief on the merits, etc. sent to Theodore J. Boutrous, Jr.
Aug 6 2003Request for extension of time filed
  Respondents' answer to amicus curiae brief of Western Placer Waste Manaement Authority to be at the same time that responses to other amici will be due. If not granted, respondents request an extension to August 18, 2003.
Aug 11 2003Extension of time granted
  On application of respondents and good cause apeparing, it is ordered that the time to serve and file Respondents' Response to the Amicus Curiae Brief filed by Western Placer Waste Management Authority in support of defendants and appellants is extended to and including 8-18-2003.
Aug 13 2003Request for extension of time filed
  to file aplnt/DaimlerChrysler/DaimlerChrysler Motors corp. for Reply Brieg/Merits [to Sept.4th]
Aug 18 2003Request for extension of time filed
  by respondents for an additional seven (7) days to 8/25/2003, to file their answer to Western Placer's Amicus Brief
Aug 19 2003Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file appellants' reply brief on the merits is extended to and including September 4, 2003.
Aug 21 2003Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file Respondents' Answer to the Amicus Curiae Brief filed by Western Placer Waste Management Authority in support of appellants is extended to and including August 25, 2003.
Aug 26 2003Response to amicus curiae brief filed
  Respondents' Answer to Amicus Curiae Brief of Western Placer Waste Management Authority (40K/FedEx)
Sep 4 2003Reply brief filed (case fully briefed)
  appellants DaimlerChrysler Corp. and DaimlerChrysler Motors Corp.
Sep 16 2003Request for extension of time filed
  by the Bar Association of San Francisco (BASF) to file the application and amicus curiae brief in support of respondents to November 10, 2003.
Sep 17 2003Extension of time granted
  On application of Amicus Curiae Bar Association of San Francisco (BASF) and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondents herein is extended to and including November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 23 2003Amicus curiae brief filed
  by the Attorney General in support of plaintiffs and respondents (Graham, et al)
Sep 24 2003Request for extension of time filed
  by Friends of the Earth, Inc. [FoE] to file the application and amicus curiae brief in support of Respondent Graham to and including November 10, 2003.
Sep 26 2003Request for extension of time filed
  Los Angeles County Bar Assn & Beverly Hills Bar Assn to file ac brief to 11-10-03
Sep 26 2003Extension of time granted
  On application of amicus curiae Friends of the Earth, Inc. (FoE), and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondent Robert Graham herein is extended to and including November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 30 2003Extension of time granted
  On application of amicus curiae Beverly Hills Bar Association and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of Respondents Robert Graham et al. herein is extended to and including November 10, 2003. An Answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 30 2003Request for extension of time filed
  (in San Diego) Amicus Curiae Washington Legal Foundation to file their application and amicus curiae brief in support of Appellants Daimler Chrysler Corporation et al., to and including Nov. 10, 2003
Sep 30 2003Request for extension of time filed
  Amicus Curiae Consumers Union of U. S., Inc. in support of Respondents Robert Graham et al., to and including November 10, 2003, to file their brief
Oct 1 2003Extension of time granted
  On application of amicus curiae Los Angeles County Bar Association and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondents Robert Graham et al. herein is extended to and including November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 2 2003Request for extension of time filed
  (in Sacramento) by amicus California State Association of Counties to file the application and amicus curiae brief, asking to and including Nov. 10, 2003.
Oct 3 2003Extension of time granted
  On application of amicus curiae Washington Legal Fouindation and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of Appellants DaimlerChrysler Corporation et al. herein is extended to and including November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 3 2003Extension of time granted
  On application of amicus curiae Consumers Union of U. S., Inc. and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of Respondents Robert Graham et al. herein is extended to and includng November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 6 2003Request for extension of time filed
  to and incuding 11-10-2003, to file the application and amicus curiae brief by Civil Justice Association of California (CJAC) in support of appellants. (CRC40k/FedEx)
Oct 6 2003Received application to file amicus curiae brief; with brief
  Amici Curiae Trial Lawyers for Public Justice, AARP and several other entities, in support of respondents. (amici brief separate)
Oct 8 2003Extension of time granted
  On application of amicus curiae California State Associciation of Counties and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of appellants herein is extended to and including November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 14 2003Request for extension of time filed
  by plaintiffs and respondents to file their Response to the Attorney General's amicus curiae brief at the same time responses to all other amici curiae briefs are due. If not granted, respondents are requesting an e.o.t. to 11-10-2003.
Oct 14 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 Respondents Robert Graham 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.
Oct 14 2003Amicus curiae brief filed
  Trial Lawyers for Public Justice, AARP, and several other entitles in support of Respondents Robert Graham et al.
Oct 14 2003Extension of time granted
  On application of Amicus Curiae Civil Justice Association of California and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of appellants herein is extended to and including November 10, 2003. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 14 2003Request for extension of time filed
  by defendants and appellants (DaimlerChrysler) for 48 calendar days, to and including 11-30-2003, to file their response to the Attorney General's amicus curiae brief.
Oct 17 2003Extension of time granted
  On application of both counsel for appellants and respondents, and good cause appearing, it is ordered that the time to serve and file both parties' Responses to all Amici Curiae Briefs filed is extended to and including November 30, 2003.
Nov 10 2003Received application to file amicus curiae brief; with brief
  ac Beverly Hills Bar Association [in support of respondents]
Nov 10 2003Received application to file Amicus Curiae Brief
  of California State Association of Counties in support of Appellants. Application and Brief under same cover.
Nov 10 2003Received application to file Amicus Curiae Brief
  of Consumer Attorneys of California in support of Respondent. Application and brief under same cover.
Nov 10 2003Received application to file Amicus Curiae Brief
  of Washington Legal Foundation in support of appellants. Application and brief under same cover.
Nov 10 2003Received application to file Amicus Curiae Brief
  by The Legal Aid Society - Employment Law Center and Disability Rights Education and Defense Fund in support of respondents. *Submitted late - was due by 10/4/03.*
Nov 10 2003Request for extension of time filed
  by amicus Consumer Union of U.S., Inc. requesting 2 day extension, to Nov. 12, 2003, to submit application and amicus brief. (**granted - order being prepared)
Nov 12 2003Received application to file Amicus Curiae Brief
  Consumers Union of U.S., INC., in support of Respondent. Application and brief under separate covers.
Nov 12 2003Received application to file Amicus Curiae Brief
  Of Friends of the Earth, INC., in support of Respondent. / 40(K). Application and brief under same cover.
Nov 12 2003Received application to file Amicus Curiae Brief
  of The Bar Association of San Francisco in support of respondents. / 40(K). Application and brief under same cover.
Nov 12 2003Received application to file Amicus Curiae Brief
  of The Civil Justice Association of California in support of Appellants. / 40(K). Application and Brief under same cover.
Nov 12 2003Extension of time granted
  On application of amicus curiae Consumer Union of U.S., Inc. and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondents herein is extended to and including November 12, 2003. An answer may be filed by any party within 20 days of the filing of the brief.
Nov 14 2003Permission to file amicus curiae brief granted
  Consumer Attorneys of California in support of respondents.
Nov 14 2003Amicus curiae brief filed
  Consumer Attorneys of California in support of Respondents. Answer is due within twenty days.
Nov 14 2003Permission to file amicus curiae brief granted
  Beverly Hills Bar Association in support of Respondents.
Nov 14 2003Amicus curiae brief filed
  Beverly Hills Bar Association in support of Respondents. Answer is due within twenty days.
Nov 14 2003Permission to file amicus curiae brief granted
  The Civil Justice Association of California in support of Appellants.
Nov 14 2003Amicus curiae brief filed
  The Civil Justice Association of California in support of Appellants. Answer is due within twenty days.
Nov 14 2003Permission to file amicus curiae brief granted
  Washington Legal Foundation in support of Appellants.
Nov 14 2003Amicus curiae brief filed
  Washington Legal Foundation in support of Appellants. Answer is due within twenty days.
Nov 14 2003Permission to file amicus curiae brief granted
  Friends of the Earth, Inc., in support of Respondents.
Nov 14 2003Amicus curiae brief filed
  Friends of the Earth, Inc., in support of Respondents. Answer is due within twenty days.
Nov 14 2003Request for judicial notice filed (in non-AA proceeding)
  By AC Friends of the Earth, Inc.,
Nov 14 2003Permission to file amicus curiae brief granted
  California State Association of Counties.
Nov 14 2003Amicus curiae brief filed
  California State Association of Counties in support of appellants. Answer is due within twenty days.
Nov 14 2003Permission to file amicus curiae brief granted
  Consumers Union of U.S., Inc. in support of Respondents.
Nov 14 2003Amicus curiae brief filed
  Consumers Union of U.S., Inc., in support of Respondents. Answer is due within twenty days.
Nov 14 2003Permission to file amicus curiae brief granted
  The Bar Association of San Francisco in support of Respondents.
Nov 14 2003Amicus curiae brief filed
  The Bar Association of San Francisco in support of Respondents. Answer is due within twenty days.
Nov 14 2003Request for judicial notice filed (in non-AA proceeding)
  By AC Bar Association of San Francisco.
Nov 17 2003Permission to file amicus curiae brief granted
  The application of The Legal Aid Society-Employment Law Center and the Disability Rights Education and Defense Fund for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Nov 17 2003Amicus curiae brief filed
  The Legal Aid Society-Employment Law Center and the Disability Rights Education and Defense Fund in support of respondent.
Dec 1 2003Response to amicus curiae brief filed
  consolidated response to ac briefs>>appellants DaimlerChrysler
Dec 1 2003Request for extension of time filed
  by counsel for plaintiffs/respondents (Graham et al) for e.o.t. to 12/22/2003, to file respondents' response to all amicus curiae briefs. Order prepared granting e.o.t. as requested. No further e.o.t. will be granted.
Dec 4 2003Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file Respondents' Response to Various Amicus Curiae Briefs is extended to and including 12-22-2003. No further extensions of time will be granted.
Dec 23 2003Response to amicus curiae brief filed
  Respondents' Consolidated Response to Briefs of Amicus Curiae (40k/FedEx)
Jan 14 2004Notice of substitution of counsel received
  Filed "Substitution of Attorney" for Jeffrey L. Fazio/Dina E.Micheletti (Fazio &n Micheletti) in place of Hancock Rothert & Bunshoft as counsel for Amicus Friends of the Earth
Feb 23 2004Received letter from:
  Fazio & Micheletti, LLP, counsel for Amicus Friends of the Earth, Inc. dated February 20, 2004.
Aug 4 2004Request for judicial notice granted
  The requests for judicial notice of defendants and appellants DaimlerChrysler Corporation et al., filed April 18, 2003, of amicus curiae Friends of the Earth, Inc., filed November 14, 2003, and of amicus curiae Bar Association of San Francisco, filed November 14, 2003, are granted.
Aug 11 2004Case ordered on calendar
  9-8-04, 9am, S.F.
Aug 18 2004Note: Mail returned (unable to forward)
 
Aug 20 2004Change of contact information filed for:
  Arthur Bryant and Victoria Ni, counsel for AC Trial Lawyers for Public Justice.
Aug 27 2004Filed:
  Additional Authorities>>appellants DaimlerChrysler Corporation, etal
Sep 8 2004Cause argued and submitted
 
Dec 2 2004Opinion filed: Judgment reversed
  Opinion by Moreno, J. -----joined by George, C.J., Kennard, & Werdegar, JJ. Dissenting opinion by Chin, J. -----joined by Baxter, & Brown, JJ.
Dec 20 2004Change of contact information filed for:
  ESNER & CHANG ( Amicus Curiae LA County Bar Assoc.) to Pasadena.
Dec 27 2004Filed:
  late request for modification>Planning & Conservation League, etal
Dec 27 2004Filed:
  request for modification of opinion ( amicus curiae The Impact Fund)
Dec 30 2004Order filed
  Finality of the opinion in the above-entitled case is hereby extended to and including January 28, 2005.
Jan 7 2005Filed:
  Respondent's ( Graham) response to requests for modification of opinion.
Jan 12 2005Opinion modified - no change in judgment
 
Jan 12 2005Remittitur issued (civil case)
 
Jan 20 2005Returned record
 
Jan 28 2005Returned record
 
Feb 3 2005Received:
  complete record from LA - four doghouses

Briefs
Apr 18 2003Opening brief on the merits filed
 
Jul 17 2003Amicus Curiae Brief filed by:
 
Aug 1 2003Answer brief on the merits filed
 
Aug 26 2003Response to amicus curiae brief filed
 
Sep 4 2003Reply brief filed (case fully briefed)
 
Sep 23 2003Amicus curiae brief filed
 
Oct 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 14 2003Amicus curiae brief filed
 
Nov 17 2003Amicus curiae brief filed
 
Dec 1 2003Response to amicus curiae brief filed
 
Dec 23 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