Stanford Law School - Robert Crown Law Library

Filed 11/20/08

IN THE SUPREME COURT OF CALIFORNIA

CRISTINA VASQUEZ,
)

Plaintiff and Respondent,
S143710
v.
Ct.App.
4/1
D045592
STATE OF CALIFORNIA,
San
Diego
County
Defendant and Appellant.
Super. Ct. No. GIC 740832

Under the so-called private attorney general statute (Code Civ. Proc.,
§ 1021.5, sometimes hereafter section 1021.5), a court may award attorney fees to
the successful party in an action that has resulted in the enforcement of an
important right affecting the public interest. In Graham v. DaimlerChrysler Corp.
(2004) 34 Cal.4th 553, 560 (Graham), we held the “catalyst theory” permits a
court to award attorney fees under section 1021.5 “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.” In so holding, we also
adopted “sensible limitations on the catalyst theory” (Graham, at p. 575) to
discourage meritless suits motivated by the hope of fees, “without putting a
damper on lawsuits that genuinely provide a public benefit” (ibid.).
Today we revisit one of the “limitations on the catalyst theory” adopted in
Graham, supra, 34 Cal.4th 553, 575 — specifically, the rule that the plaintiff in a
“catalyst case,” to recover attorney fees under section 1021.5, “must have engaged
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in a reasonable attempt to settle its dispute with the defendant prior to litigation”
(Graham, at p. 561). While this is not a catalyst case (see post, at p. 19),
defendant argues the rule just mentioned should apply whenever fees are sought
under section 1021.5. We hold that no such categorical rule applies in noncatalyst
cases. In all cases, however, section 1021.5 requires the court to determine that
“the necessity and financial burden of private enforcement . . . are such as to make
the award appropriate . . . .” (Ibid., italics added.) In making this determination,
one that implicates the court’s equitable discretion concerning attorney fees, the
court properly considers all circumstances bearing on the question whether private
enforcement was necessary, including whether the party seeking fees attempted to
resolve the matter before resorting to litigation.
I. INTRODUCTION
Defendant and appellant the State of California petitions for review of a
decision affirming an order awarding attorneys’ fees under section 1021.5 to
plaintiff and respondent Cristina Vasquez.
Proposition 139, known as the Prison Inmate Labor Initiative of 1990
(approved by voters, Gen. Elec. (Nov. 6, 1990), and codified as Pen. Code,
§ 2717.1 et seq.), instructs the Secretary of the Department of Correction and
Rehabilitation to establish joint venture programs with private employers within
state prison facilities to employ inmates (id., § 2717.2; see id., § 5050). The law
provides, among other things, that inmates be paid wages “comparable to wages
paid by the joint venture employer to non-inmate employees performing similar
work for that employer” or wages “comparable to wages paid for work of a similar
nature in the locality in which the work is to be performed.” (Pen. Code,
§ 2717.8.) The law also requires the Secretary to deduct up to 80 percent of each
inmate employee’s gross wages for taxes, room and board, restitution to the
victims of crime, and support for the inmate’s family. (Ibid.)
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In August 1999, inmates Charles Ervin and Shearwood Fleming, together
with the Union of Needletrades, Industrial & Textile Employees, AFL-CIO
(UNITE), filed a complaint stating various causes of arising out a joint venture
between the State of California and CMT Blues to manufacture clothing at the
Richard J. Donovan Correctional Facility in San Diego. As subsequently
amended, the complaint named as defendants CMT Blues, its manager Pierre
Sleiman, and several corporations that resold CMT Blues’ products under their
own names. Plaintiffs alleged defendants had committed unfair business practices
by failing to pay comparable wages (Pen. Code, § 2717.8) or minimum wages
(Lab. Code, §§ 1197, 3351, subd. (e)), by directing inmates to remove and replace
“Made in Honduras” labels with others reading “Made in the USA,” and by selling
these garments to consumers throughout California.
In July 2000, a second amended complaint added Vasquez, the international
vice-president of UNITE, as a plaintiff, and added as defendants the State of
California and Noreen Blonien, assistant director of the Department of Corrections
and Rehabilitation for joint venture programs (collectively hereafter the State).
Vasquez, who asserted standing as a taxpayer to prevent the waste of state
property (Code Civ. Proc., § 526a), alleged the State had failed to collect and
disburse payments due from joint venture employers, including CMT Blues. This
failure had occurred, Vasquez alleged, because the State had permitted employers,
in violation of Proposition 139, to require inmates to complete unpaid training
periods of 30 to 60 days and to pay less than comparable wages.
The State successfully demurred to Vasquez’s taxpayer cause of action.
Vasquez appealed, and the Court of Appeal reversed. (Vasquez v. State of
California (2003) 105 Cal.App.4th 849.) The court rejected the State’s argument
that a taxpayer claim for waste lies only to prevent the unlawful expenditure of
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funds, and held that such a claim may also challenge the State’s failure to collect
funds. (Id., at pp. 854-856.)
While Vasquez’s appeal was pending, the inmates’ claims against CMT
Blues were certified as a class action and tried without a jury. In August 2002, the
court entered judgment for the plaintiff class, ordering CMT Blues to pay
$841,188.44 in wages, liquidated damages, waiting time, penalties and interest.
The court also awarded, based on the parties’ stipulation, attorney fees of
$435,000 and costs of $65,000.
The trial of Vasquez’s taxpayer claim commenced in January 2004. The trial
ended, however, when the parties agreed to a stipulated injunction, which the court
approved on February 17, 2004, and later entered as a judgment. The injunction
requires the State to submit written progress reports to the court every 90 days, to
obtain wage plans and duty statements from each joint venture employer, to
comply with all applicable record-keeping requirements, to provide payroll data to
plaintiff’s counsel, to identify comparable wages as required by Proposition 139,
to require joint venture employers to notify inmates of their rights under
Proposition 139 and the Labor Code, to establish wage-related grievance
procedures for inmates, to require joint venture employers to post bonds to secure
the payment of wages, to notify the court and plaintiff’s counsel of defaults in
wage payments, and to take reasonable steps to collect overdue wages. The court
retained jurisdiction to enforce, modify and/or dissolve the injunction for a period
of two years, subject to extension or termination for good cause, and also retained
jurisdiction to award attorneys’ fees.
Vasquez subsequently moved for attorney fees under section 1021.5. On
August 11, 2004, the court awarded $1,257,258.60, based on a lodestar amount of
$967,122 and a multiplier of 1.3. On October 28, 2004, the court entered
judgment on the stipulated injunction and the award of attorney fees.
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On December 2, 2004, we filed our decision in Graham, supra, 34 Cal.4th
553, holding that the plaintiff in a catalyst case, to recover attorney fees under
section 1021.5, “must have engaged in a reasonable attempt to settle its dispute
with the defendant prior to litigation” (Graham, at p. 561).
On December 17, 2004, the State in this case appealed the award of attorney
fees. In its opening brief on appeal, the State argued Vasquez was not entitled to
recover fees under section 1021.5 because, among other reasons, she had not
engaged in a reasonable attempt to settle before resorting to litigation. The Court
of Appeal affirmed the fee award. Concerning the State’s argument that Vasquez
was required to have attempted to settle her claim, the court observed that Graham
applied only to catalyst cases, that the instant case was not a catalyst case because
Vasquez had obtained a stipulated injunction that was reduced to judgment, and
that the State had in any event waived the argument by failing to raise it in the trial
court and by failing sufficiently to develop the argument in its opening brief.
The State petitioned for review of the judgment to the extent it awarded
attorney fees. We granted review and limited the issue to be briefed and argued as
follows: “Does the rule that, in order to receive attorney fees under Code of Civil
Procedure section 1021.5, the plaintiff must first reasonably attempt to settle the
matter short of litigation, apply to this case? (See Graham[, supra,] 34 Cal.4th
553, 557; Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 966-
967.)”
II. DISCUSSION
Section 1021.5 authorizes a court to “award attorneys’ fees to a successful
party . . . in any action which has resulted in the enforcement of an important right
affecting the public interest . . . .” The Legislature enacted the provision to codify
the private attorney general doctrine previously developed by the courts.
(Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933
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(Woodland Hills); cf. Serrano v. Priest (1977) 20 Cal.3d 25, 42-47 [approving the
doctrine].) The doctrine rests on the recognition that privately initiated lawsuits,
while often essential to effectuate important public policies, will as a practical
matter frequently be infeasible without some mechanism authorizing courts to
award fees. (Graham, supra, 34 Cal.4th 553, 565; see also Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1289.) Accordingly, “ ‘the fundamental objective of the
doctrine is to encourage suits enforcing important public policies by providing
substantial attorney fees to successful litigants in such cases.’ ” (Graham, at
p. 565, quoting Maria P. v. Riles, supra, at p. 1289.)
A court may award attorney fees under section 1021.5 only if the statute’s
requirements are satisfied. Thus, a court may award fees only to “a successful
party” and only if the action has “resulted in the enforcement of an important right
affecting the public interest . . . .” (Ibid.) Three additional conditions must also
exist: “(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.” Section 1021.5 codifies the courts’ “traditional equitable discretion”
concerning attorney fees (Woodland Hills, supra, 23 Cal.3d 917, 938), and within
the statutory parameters courts retain considerable discretion. “[T]he Legislature
has assigned responsibility for awarding fees under section 1021.5 ‘not to
automatons . . . , but to judges expected and instructed to exercise “discretion.” ’ ”
(Graham, supra, 34 Cal.4th 553, 575, quoting Buckhannon Board & Care Home,
Inc. v. West Virginia Dept. of Health and Human Resources (2001) 532 U.S. 598,
640 (dis. opn. of Ginsburg, J.).) In deciding whether to award fees, the court
“must realistically assess the litigation and determine, from a practical perspective,
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whether or not the action served to vindicate an important right so as to justify an
attorney fee award under a private attorney general theory.” (Woodland Hills, at
p. 938.) A reviewing court “will uphold the trial court’s decision to award
attorney fees under section 1021.5, unless the court has abused its discretion.”
(Graham, at p. 578.)
A. May a Court Award Attorney Fees Under Section 1021.5 Only If the
Plaintiff Attempted to Settle Before Resorting to Litigation?
The State argues a court may never award attorney fees under section 1021.5
unless the plaintiff attempted to settle before resorting to litigation. Neither the
language of the statute nor the cases interpreting it impose such a categorical
requirement. In determining, however, whether “the necessity and financial
burden of private enforcement . . . are such as to make the award appropriate”
(§ 1021.5), a court properly takes into consideration whether the party seeking fees
attempted to resolve the matter without litigation.
In construing section 1021.5 we begin with its plain language, affording the
words their ordinary and usual meaning, as the words the Legislature chose to
enact are the most reliable indicator of its intent. (See People v. Watson (2007) 42
Cal.4th 822, 828.) The statute’s relevant language provides the court may award
attorney fees if, among other things, “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 . . . .” (§ 1021.5, subd. (b), italics
added.) This language does not expressly or by necessary implication require that
the plaintiff have attempted to settle the dispute; it requires, instead, only that the
court determine that private enforcement was sufficiently necessary to justify the
award. To be sure, failed attempts to settle can help to demonstrate that litigation
was necessary, but the absence of settlement attempts does not logically or
necessarily demonstrate the contrary. Depending on the circumstances of the case,
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attempts to settle may have been futile, exigent circumstances may have required
immediate resort to judicial process, or prior efforts to call the problem to the
defendant’s attention — perhaps by other parties or in other proceedings — may
have been rebuffed. The language of section 1021.5 is sufficiently flexible to
permit courts to consider these and all other relevant circumstances in determining
whether private enforcement was sufficiently necessary to justify awarding fees.1
The State points to nothing in the legislative history of section 1021.5 that
might support the categorical requirement of a prelitigation settlement demand.
Moreover, the Legislature clearly knows how to require prelitigation demands
unambiguously when that is what it wishes to do. Many statutes illustrate the
point. For example, a plaintiff suing under the Consumers Legal Remedies Act
(Civ. Code, § 1750 et seq.) must notify the defendant of the particular violations
alleged and demand correction, repair, replacement, or other remedy at least 30
days before commencing an action. (Id., § 1782, subd. (a)(1)-(2).) The plaintiff in
an action based on a health care provider’s professional negligence must give the
defendant at least 90 days’ prior notice before commencing an action. (Code Civ.
Proc., § 364, subd. (a).) A private plaintiff under the Safe Drinking Water and
Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.) must give
notice, more than 60 days before commencing an action, to the alleged violator
and to the Attorney General and the district attorney, city attorney, or prosecutor
in whose jurisdiction the violation occurred. (Id., § 25249.7, subd. (d)(1).) A
plaintiff may not sue under the Tort Claims Act (Gov. Code, § 900 et seq.) unless
he or she has first presented a written claim to the governing board of the

1
In determining whether enforcement was sufficiently necessary to justify
fees, the court also considers “the necessity of private, as compared to public,
enforcement . . . .” (Woodland Hills, supra, 23 Cal.3d 917, 941, italics added.)
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defendant public entity and the board has acted upon the claim or the claim has
been deemed rejected. (Id., § 945.4.) The plaintiff in a derivative action against a
corporation must allege with particularity his or her efforts to secure the desired
relief from the board of directors, or the reasons for not making such efforts, and
also allege that he or she has either informed the corporation or its board in writing
of the facts underlying each cause of action or delivered a copy of the proposed
complaint. (Corp. Code, § 800, subd. (b)(2).) Finally, the plaintiff in an action for
libel in a newspaper or slander by radio broadcast may recover only special
damages unless he or she first demands a correction. (Civ. Code, § 48a, subd. 1.)
Thus, section 1021.5 as written does not require prelitigation demands, even
though the Legislature is familiar with the language that will create such a
requirement and has used such language on many occasions. Under these
circumstances, our own views concerning the theoretical desirability or value of
such a categorical requirement are beside the point. In construing this, or any,
statute, our office is simply to ascertain and declare what the statute contains, not
to change its scope by reading into it language it does not contain or by reading
out of it language it does. We may not rewrite the statute to conform to an
assumed intention that does not appear in its language. (Doe v. City of Los
Angeles (2007) 42 Cal.4th 531, 545.)
We have not interpreted section 1021.5 as imposing a prelitigation settlement
demand requirement in noncatalyst cases. In Graham, supra, 34 Cal.4th 553, we
did require prelitigation demands, but only in catalyst cases. The question before
us was the continuing viability of the catalyst theory, in other words, whether
section 1021.5 permitted an award of attorney fees, as some courts had concluded,
“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.” (Graham, at p. 560.) We held the catalyst theory “should not be
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abolished but clarified.” (Ibid.) To award fees in catalyst cases, we reasoned,
posed a greater risk of rewarding opportunistic litigation than to award fees in
cases that end with court-ordered changes in the parties’ legal relationships,
because a defendant’s voluntary decision to change its behavior necessarily raises
the question whether the plaintiff’s legal work in fact caused the change and thus
deserves to be rewarded with fees. On the other hand, to have abolished the
catalyst theory would have deterred attorneys from taking meritorious public
interest litigation by permitting defendants, even after tenacious litigation, to avoid
paying fees by providing relief voluntarily just before being ordered to do so by
the court. (Id., at pp. 574-575.) To avoid subjecting public interest litigation to
“this increased risk . . . without rewarding a significant number of extortionate
lawsuits,” we “adopt[ed] sensible limitations on the catalyst theory that discourage
the latter without putting a damper on lawsuits that genuinely provide a public
benefit.” (Id., at p. 575, italics added.) We later summarized those limitations as
follows: “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.” (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608
(Tipton-Whittingham).)
That we intended to impose these limitations, including the prelitigation
demand requirement, only in catalyst cases is clear from our discussion of the
point in Graham, supra, 34 Cal.4th 553. There we wrote: “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
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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[, supra,] 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 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, nor is it necessary that the settlement demand be
made by counsel, 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[ (S.D.Ind. 1989)] 705
F.Supp. [1361,] 1363 [letter notifying defendants of plaintiffs’ grievances, plus
discussions over two-month period]; see also Garrison v. Board of Directors
(1995) 36 Cal.App.4th 1670, 1676 [Pub. Resources Code, § 21177, subd. (b)
requires California Environmental Quality Act litigants to inform agency of
objections before litigation to give agency opportunity to respond].) What
constitutes a ‘reasonable’ time will depend on the context.” (Graham, supra, 34
Cal.4th 533, 577, italics added.)
This passage from Graham, supra, 34 Cal.4th 553, does not hold or, given its
context, even suggest that the plaintiff in a noncatalyst case must make a
prelitigation settlement demand in order to preserve the right to recover fees under
section 1021.5. The question was not before us, and “ ‘[i]t is axiomatic that cases
are not authority for propositions not considered.’ ” (People v. Avila (2006) 38
Cal.4th 491, 566, quoting People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
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If we had in Graham, supra, 34 Cal.4th 553, described the prelitigation
demand requirement in catalyst cases as compelled by the language of section
1021.5, then the case for applying the same requirement to all fee awards under
the statute would be stronger. But in Graham we did no such thing. Instead, we
described the requirement as “fully consistent with the basic objectives behind
section 1021.5 and with one of its explicit requirements — the ‘necessity . . . of
private enforcement’ of the public interest.” (Graham, at p. 577, italics added.)
That a rule adopted by this court to guide the exercise of judicial discretion is
consistent with a statute does not mean the rule is compelled by the statute. As
explained above, the language of section 1021.5 cannot fairly be read as requiring
prelitigation demands.
That we did not in Graham, supra, 34 Cal.4th 553, derive the catalyst-case
demand requirement from the language of section 1021.5 is also clear from
Graham’s companion case, Tipton-Whittingham, supra, 34 Cal.4th 604. In
Tipton-Whittingham, we held that plaintiffs seeking attorney fees under the
California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.;
hereafter the FEHA) under the catalyst theory must have attempted to settle before
resorting to litigation, even though the FEHA’s provision concerning attorney fees
(id., § 12965, subd. (b)),2 in contrast to section 1021.5, contains no reference to
“the necessity . . . of private enforcement” (Code Civ. Proc., § 1021.5). Rather
than deriving the demand requirement from the language of the FEHA (Gov.
Code, § 12965, subd. (b)), which would have been impossible, we simply imposed

2
Government Code section 12965, subdivision (b), provides in relevant part:
“In actions brought under this section, the court, in its discretion, may award to the
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.”
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the requirement “[f]or the reasons explained in . . . Graham” (Tipton-Whittingham,
at p. 608), namely, that the catalyst theory entailed risks and benefits that, on
balance, justified the adoption of “sensible limitations on the catalyst theory that
discourage [extortionate suits] without putting a damper on lawsuits that genuinely
provide a public benefit” (Graham, at p. 575, italics added).
In the four years since we decided Graham, supra, 34 Cal.4th 553, no
California court has applied Graham’s demand requirement in a noncatalyst case.
In 2005, one federal district court relied on Graham by analogy to impose a
prelitigation demand requirement on motions seeking attorney fees under the
Americans with Disabilities Act (42 U.S.C. § 12101 et seq. (ADA); see id.,
§ 12205 [attorney fees]). (Doran v. Del Taco, Inc. (C.D.Cal. 2005) 373 F.Supp.2d
1028, 1031-1034 (Doran).) But the district court’s decision was reversed for that
reason. The plaintiff in Doran, who had encountered barriers to his wheelchair in
the defendant’s restaurants, sued under the ADA and then settled his claims in an
agreement designating him as the prevailing party for purposes of attorney fees.3
The district court, without noting that we had described the demand requirement
as a “limitation on the catalyst rule” (Graham, at p. 577), misread Graham as
“adopt[ing] the view that, to recover attorneys’ fees in a private attorney general
case, a plaintiff must have engaged in a reasonable attempt to settle his or her
dispute with the defendant before litigation.” (Doran, supra, 373 F.Supp.2d 1028,

3
The federal courts have not awarded attorney fees under the catalyst theory
since 2001, when the high court rejected that theory in Buckhannon Board & Care
Home, Inc. v. West Virginia Dept. of Health and Human Resources, supra, 532
U.S. 598, 605-606. The court in Doran, supra, 373 F.Supp.2d 1028, relied on a
Ninth Circuit decision holding that a settlement agreement, as a legally
enforceable instrument, can serve as a proper basis for awarding fees under federal
law even after Buckhannon. (Barrios v. Cal. Interscholastic Federation (9th Cir.
2002) 277 F.3d 1128, 1134, fn. 5, cited in Doran, at p. 1029.)
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1032.) Purporting to adopt a similar rule as a matter of federal law under the
ADA, the district court denied the plaintiff’s motion for fees. (Doran, at pp. 1033-
1034.) The Ninth Circuit reversed, holding that the district court had “denied fees
by subjecting [the plaintiff] to a requirement not found in the ADA or the case
law.” (Doran v. Del Taco, Inc. (9th Cir. 2007) 237 F.Appx. 148, 149.)
The State argues that a 1985 lower court decision, Grimsley v. Board of
Supervisors, supra, 169 Cal.App.3d 960 (Grimsley), established the general rule
that no plaintiff may ever recover fees under section 1021.5 without having
attempted to settle before resorting to litigation, and that 19 years later in Graham
we merely “applied the holding of Grimsley to catalyst cases.” Nothing in
Graham, supra, 34 Cal.4th 553, however, suggests we believed that a generally
applicable demand requirement existed or that we were merely applying a
generally applicable requirement to catalyst cases. Instead, in announcing the
demand requirement we described it as a “limitation on the catalyst rule.” (Id., at
p. 577, italics added; see also id., at p. 575 [“limitation[] on the catalyst theory”].)
Nor did we discuss Grimsley in our opinion; we cited the case without comment in
describing the Attorney General’s suggestion that we adopt a demand requirement
in catalyst cases. (Graham, at p. 577.)
The plaintiff in Grimsley, supra, 169 Cal.App.3d 960, sought attorney fees
under section 1021.5 after winning a judgment setting aside a county’s approval of
a general plan and mandating compliance with certain statutory procedural
requirements the county had neglected. The trial court denied the motion for fees,
reasoning that the plaintiff had won “ ‘on the narrowest grounds’ ” (Grimsley, at
p. 965), had brought about no substantive change in the general plan, and had not
enforced an important right affecting the public interest, as required by section
1021.5 (ibid.). On appeal, the reviewing court affirmed, emphasizing that trial
courts’ decisions concerning fees under section 1021.5 are “discretionary”
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(Grimsley, at p. 965) and “ ‘may be guided by equitable principles’ ” (ibid., italics
added). Applying its equitable discretion to the facts of the case, the Court of
Appeal concluded that “it [was] a near certainty that had Grimsley timely pointed
out to an appropriate county official or agency, the respects in which [the relevant
procedural statutes] had not been followed, appropriate corrective action would
have been promptly forthcoming.” (Id., at p. 966, italics added.) The Grimsley
court concluded its analysis by holding that “attorney fees under . . . 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.’ ” (Ibid.)
As we have explained, section 1021.5 does not require prelitigation
settlement demands in noncatalyst cases. To the extent Grimsley, supra, 169
Cal.App.3d 960, might be read to interpret the statute differently, the decision
would be incorrect. No opinion published in the 19 years between Grimsley and
Graham, supra, 34 Cal.4th 553, however, cites Grimsley as authority for denying
a motion for attorney fees under section 1021.5 on the ground that the plaintiff
failed to make a prelitigation settlement demand. Only one decision published
before Graham even cites Grimsley on this point, and the court in that case
declined to rely on Grimsley as a basis for withholding fees. (Phipps v.
Saddleback Valley Unified School Dist. (1988) 204 Cal.App.3d 1110, 1123, fn. 9.)
Grimsley, supra, 169 Cal.App.3d 960, does usefully illustrate the narrower
principle that a court, in exercising its equitable discretion concerning attorney
fees under section 1021.5, properly takes into consideration whether the party
seeking fees attempted to resolve its dispute before resorting to litigation.
Grimsley thus restates the statutory requirement that the party seeking fees under
section 1021.5 must demonstrate that “the necessity and financial burden of
private enforcement . . . are such as to make the award appropriate.” (§ 1021.5,
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subd. (b).) As the Grimsley court correctly observed, “ ‘courts may be guided by
equitable principles when awarding attorney’s fees.’ ” (Grimsley, at p. 965,
quoting Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704,
717; see also Woodland Hills, supra, 23 Cal.3d 917, 938 [§ 1021.5 codifies courts’
traditional equitable discretion]; Graham, supra, 34 Cal.4th 553, 575 [judges are
expected to exercise discretion under § 1021.5].) While we did not in Graham,
supra, 34 Cal.4th 553, go so far as to require prelitigation settlement demands in
noncatalyst cases, we acknowledged the general principle that prelitigation efforts
to resolve a dispute, or their absence, properly inform the court’s decision whether
to award fees under section 1021.5. As we explained, “[a]warding attorney fees
for litigation when those rights could have been vindicated by reasonable efforts
short of litigation does not advance [section 1021.5’s] objective and encourages
lawsuits that are more opportunistic than authentically for the public good.”
(Graham, at p. 577.)
Other decisions also recognize that prelitigation efforts to resolve a dispute
properly inform a court’s exercise of discretion under section 1021.5. The court in
Baxter v. Salutary Sportsclubs, Inc. (2004) 122 Cal.App.4th 941, for example,
affirmed an order denying attorney fees to a plaintiff who had successfully sued a
health club to require trivial changes in its membership contracts, both because the
suit had conferred no benefit on the public (id., at p. 946) and because the
litigation did not appear to have been necessary. Concerning the suit’s necessity,
the court found “no evidence that [the plaintiff had] notified [the defendant] of the
deficiencies in its contracts, or demanded their correction, before filing this action.
Since [the defendant] corrected those minor deficiencies shortly after the suit was
filed, it appears the litigation and the consequent attorney fees were largely, if not
entirely, unnecessary.” (Id., at pp. 946-947, fns. omitted.)
16

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Similarly, the court in Schwartz v. City of Rosemead (1984) 155 Cal.App.3d
547, affirmed an order denying the plaintiff’s motion for fees after the plaintiff
successfully sued to require a city to conduct environmental review of a plan to
construct a cogeneration plant on property adjacent to his own. The court reached
this conclusion both because the financial burden plaintiff undertook in suing was
not out of proportion to his personal interest in the case (id., at p. 559), and also
because the plaintiff had neglected his statutory duty to inform the Attorney
General of the action within 10 days of its filing (id., at pp. 560-561; see Code
Civ. Proc., § 388, and Gov. Code, § 21167.7). While the relevant statutes did not
make such notification a prerequisite to recovering fees, the plaintiff’s failure to
give notice tended to show that private enforcement had not been necessary: “If
the Attorney General had been promptly notified of [the plaintiff’s] action and had
decided to intervene, [the plaintiff] may not have been required to pursue his
lawsuit to the extent he ultimately did. The service of pleadings on the Attorney
General has the effect of informing that office of the action and permits the
Attorney General to lend its power, prestige, and resources to secure compliance
with CEQA and other environmental laws, perhaps without the necessity of
prolonged litigation. If the Attorney General is properly served and elects not to
intervene, then a plaintiff’s pursuit of a lawsuit becomes presumptively
‘necessary.’ ” (Schwartz v. City of Rosemead, supra, at p. 561.)
The State argues that policy considerations weigh against adopting different
rules for catalyst and noncatalyst cases. The State suggests that a uniform demand
requirement would encourage settlements, which the law generally favors (Folsom
v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 677), and that
different rules might create confusion for plaintiffs, who cannot know in advance
whether any given case will settle and thus become a catalyst case subject to
Graham, supra, 34 Cal.4th 553. Our holding, however, neither discourages
17

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settlement nor creates confusion. As we have explained, settlement efforts (or
their absence) are relevant in every case to show that “the necessity and financial
burden of private enforcement . . . are such as to make the award appropriate . . . .”
(§ 1021.5, italics added.) In assessing such information in a particular case to
determine whether private enforcement was sufficiently necessary to justify an
award of fees, the trial court exercises its equitable discretion in light of all the
relevant circumstances.4 That a plaintiff for tactical reasons might choose not to
propose, or not to accept, a reasonable settlement offer is thus, in every case, a
circumstance that potentially weighs against an award of fees. In Graham, we
simply identified a set of cases at one end of the equitable spectrum that appeared
to justify a bright-line rule because, in those cases, no court-ordered change in the
parties’ legal relationship exists to show that the public benefit supposedly
meriting fees was caused by the plaintiff’s litigation rather than by the defendant’s
voluntary action.
For all of these reasons, we answer in the negative the question on which we
granted review: No rule applicable to this case required plaintiff, in order to
recover attorney fees under Code of Civil Procedure section 1021.5, first to
attempt to settle the matter short of litigation.5

4
We presume the trial court, in exercising its discretion to award fees, was
aware of the requirements of section 1021.5 and specifically of the requirement
that “the necessity and financial burden of private enforcement . . . [be] such as to
make the award appropriate.” (Id., subd. (b).) The State does not argue to the
contrary, except to urge that section 1021.5 requires prelitigation settlement
demands in every case.
5
Because section 1021.5 imposes no categorical settlement demand
requirement, we need not consider whether any such requirement would admit an
exception for futility. However, the claim that settlement efforts would have been
futile is logically relevant to a trial court’s determination of the question whether
private enforcement was sufficiently necessary to justify an award of fees.
18

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B. This Is Not a Catalyst Case.
The State argues in the alternative that we should treat this case as a catalyst
case and, thus, hold that the prelitigation settlement demand requirement adopted
for such cases in Graham, supra, 34 Cal.4th 553, 577, applies. The argument
lacks merit.
While we did not in Graham, supra, 34 Cal.4th 553, expressly define
“catalyst case,” a definition of the term is necessarily implicit both in Graham and
in its companion case, Tipton-Whittingham, supra, 34 Cal.4th 604. In Graham,
we described “the catalyst theory” as permitting attorneys fees to 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.” (Graham, at p. 560, italics added.) Similarly, in Tipton-Whittingham
we held that Graham’s “limitations on the catalyst theory” (Graham, at p. 575) set
out the factual prerequisites that a plaintiff must establish “[i]n order to obtain
attorney fees without . . . a judicially recognized change in the legal relationship
between the parties . . . .” (Tipton-Whittingham, at p. 608, italics added.)6
Accordingly, and of necessity, a plaintiff who has not succeeded in obtaining “a
judicial resolution” (Graham, at p. 560) or “a judicially recognized change in the
legal relationship between the parties” (Tipton-Whittingham, at p. 608) must
obtain attorney fees under the catalyst theory, or not at all.
This case is not a catalyst case because Vasquez successfully obtained a
stipulated injunction that was entered as a judgment and thus brought about a

6
The quoted language from Tipton-Wittingham, supra, 34 Cal.4th 604, 608,
derives indirectly from the high court’s definition of the term “prevailing party” in
Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources, supra, 532 U.S. 598, 604, 605. (See Graham, supra, 34
Cal.4th 553, 569-570.)
19

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judicially recognized change in the parties’ legal relationship. (See Tipton-
Whittingham, supra, 34 Cal.4th 604, 608.) As noted, the stipulated injunction
imposes substantial continuing obligations on the State with respect to its joint
venture programs with private employers. (See ante, at p. 4.) Cases decided since
Tipton-Whittingham and Graham, supra, 34 Cal.4th 553, in which the plaintiffs
have obtained injunctions or stipulated injunctions have not been treated as
catalyst cases. (County of Colusa v. California Wildlife Conservation Bd. (2006)
145 Cal.App.4th 637, 657-658 [preliminary injunction and stay]; Lyons v. Chinese
Hospital Assn. (2006) 136 Cal.App.4th 1331, 1341-1342, 1345-1348 [stipulated
judgment and injunction].) A stipulated injunction approved by a court and
entered as a judgment is, in effect, a consent decree. Even the federal courts,
which reject the catalyst theory, recognize a consent decree as a sufficient basis for
awarding attorney fees. (Buckhannon Board & Care Home, Inc. v. West Virginia
Dept. of Health and Human Resources, supra, 532 U.S. 598, 604; see also
Graham, at p. 576, fn. 7.)
The State, citing Westside Community for Independent Living, Inc. v. Obledo
(1983) 33 Cal.3d 348, 352, contends that a catalyst case is simply one in which
“ ‘relief is obtained through a “voluntary” change in the defendant’s conduct,
through a settlement, or otherwise.’ ” The State points to its voluntary conduct in
agreeing to the stipulated injunction and in beginning, however slowly and
incompletely, to implement the requirements of Proposition 139 before Vasquez
became a party to the instant litigation. We have, however, never adopted the
formula the State offers as the definition of a catalyst case. In Westside
Community, we held simply that a voluntary change by the defendant can justify
an award of attorneys’ fees “where ‘plaintiffs’ lawsuit was a catalyst motivating
defendants to provide the primary relief sought . . . .’ ” (Id., at p. 353, quoting
Robinson v. Kimbrough (5th Cir. 1981) 652 F.2d 458, 465.) We quoted the same
20

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language in Graham, supra, 34 Cal.4th 553, 567, to make the same point. In
neither case, however, did we hold that a case in which the plaintiff has
successfully obtained a judicially recognized change in the parties’ legal
relationship must be treated as a catalyst case simply because the defendant took
some voluntary step towards resolving the litigation.
Accordingly, we agree with the Court of Appeal that this is not a catalyst
case and that the “limitations on the catalyst theory” adopted in Graham, supra, 34
Cal.4th 553, 575-577, do not properly apply here.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
21

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

Name of Opinion Vasquez v. State of California
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 138 Cal.App.4th 550
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S143710
Date Filed: November 20, 2008
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: William C. Pate

__________________________________________________________________________________

Attorneys for Appellant:

Archer Norris, Thomas S. Clifton, Colin C. Munro, Sonny T. Lee; Niddrie, Fish & Buchanan and Martin N.
Buchanan for Defendant and Appellant.

Jarvis, Fay, Doporto & Gibson, Jarvis, Fay & Doporto and Andrea J. Saltzman for League of California
Cities and California State Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Manuel M. Medeiros, State Solicitor General, Tom Greene,
Chief Assistant Attorney General, Theodora Berger, Assistant Attorney General, and Edward G. Weil,
Deputy Attorney General, as Amici Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Altshuler, Berzon, Nussbaum, Rubin & Demain, Altshuler Berzon, Michael Rubin, Katherine M. Pollock;
Law Offices of Robert Berke, Robert Berke, Joseph A. Pertel; Law Offices of Robert S. Gerstein, Robert S.
Gerstein; Law Offices of Janet Herold and Janet Herold for Plaintiff and Respondent.

Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiff and Respondent.

The Impact Fund, Brad Seligman, Julia Campins; Litt, Estuar, Harrison & Kitson, Barret S. Litt and Paul J.
Estuar as Amici Curiae on behalf of Plaintiff and Respondent.

Richard Rothschild; Law Offices of Richard M. Pearl and Richard M. Pearl for Los Angeles County Bar
Association as Amicus Curiae on behalf of Plaintiff and Respondent.

---

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

Martin N. Buchanan
Niddrie, Fish & Buchanan
750 B Street, Suite 2640
San Diego, CA 92101
(619) 238-2426

Robert Berke
Law Offices of Robert Berke
1717 Fourth Street, 3rd Floor
Santa Monica, CA 90401
(310) 917-5599

---

Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court limited review to the following issue: Does the rule that, in order to receive attorney fees under Code of Civil Procedure section 1021.5, the plaintiff must first reasonably attempt to settle the matter short of litigation, apply to this case? (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 557; Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 966-967.)

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 11/20/2008	43 Cal.4th 243 original opinion 45 Cal.4th 308a modification	S143710	Review - Civil Appeal	closed; remittitur issued	VASQUEZ v. STATE OF CALIFORNIA (S114640) VASQUEZ v. STATE OF CALIFORNIA (S153813) VASQUEZ v. STATE OF CALIFORNIA (S156793)

Disposition
Nov 20 2008	Opinion: Affirmed

Dockets
May 22 2006	Petition for review filed   State of California, Appellant by Martin N. Buchanan, counsel Filed in San Diego
May 25 2006	Received Court of Appeal record   One doghouse
Jun 8 2006	Received:   amended proof of service
Jun 12 2006	Answer to petition for review filed   respondent, Cristina Vasquez
Jul 20 2006	Time extended to grant or deny review   to 8-18-06
Aug 16 2006	Petition for review granted; issues limited (civil case)   Petition for review GRANTED. The issue to be briefed and argued are limited to the following: Does the rule that, in order to receive attorney fees under Code of Civil Procedure section 1021.5, the plaintiff must first reasonably attempt to settle the matter short of litigation, apply to this case? (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 557; Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 966-967.) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 28 2006	Certification of interested entities or persons filed   counsel for aplt. (State of Calif)
Aug 30 2006	Certification of interested entities or persons filed   counsel for resp. (Vasquez)
Aug 30 2006	Association of attorneys filed for:   Robert S. Gerstein for respondent Cristina Vasquez
Sep 13 2006	Opening brief on the merits filed   Appellant, State of California by counsel, Martin N. Buchanan.
Oct 10 2006	Request for extension of time filed   Respondent Cristina Vasquez to file Answer Brief/Merits [30 days] to November 13, 2006
Oct 12 2006	Extension of time granted   to and including November 13, 2006 to file respondent's answer brief on the merits.
Oct 23 2006	Request for extension of time filed   respondent's Answer Brief/Merits to 12-13-06
Oct 23 2006	Association of attorneys filed for:   Michael Rubin and Altshuler, Berzon, Nussbaum, Rubin & Demain respondent Cristina Vasquez
Nov 9 2006	Extension of time granted   On application of respondent 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 December 13, 2006. No further extensions are contemplated.
Dec 13 2006	Application filed to:   exceed the word limit of The Answer Brief/Merits respondent Cristina Vasquez [submitted with brief]
Dec 13 2006	Motion to dismiss filed (non-AA)   respondent Cristina Vasquez attorney Robert Berke
Dec 19 2006	Answer brief on the merits filed   counsel for respondent w/permission
Dec 27 2006	Request for extension of time filed   Counsel for aplt. requests extension of time to 1-8-07 to file the Opposition to Motion to Dismiss Review.
Jan 2 2007	Extension of time granted   Appellant's time to serve and file the opposition to motion to dismiss is extended to and including January 8, 2007.
Jan 5 2007	Opposition filed   counsel for aplt. to Motion to Dismiss Review w/Declaration of Robert F. Helfland
Jan 5 2007	Application to file over-length brief filed   counsel for appellant State of Calif.
Jan 5 2007	Received:   Oversized Reply Brief on the Merits, counsel for aplt. State of Calif.
Jan 9 2007	Reply brief filed (case fully briefed)   w/permission counsel for appellant (State of Calif.)
Jan 23 2007	Application filed to:   File Reply Memorandum in Support of Plf-Resp.'s Motion to Dismiss Review by counsel for respondent (Vasquez)
Jan 23 2007	Received:   counsel for resp. Reply in support of Motion to Dismiss.
Jan 23 2007	Received:   from counsels for resp. (Vasquez) Declarations of Della Bahan, Robert Berke, Janet Herold, Joseph A. Pertel, Robert L. Shipley in support of Motion to Dismiss Review as Improvidently Granted.
Jan 25 2007	Filed:   by counsel for resp. Reply in Support of Motion to Dismiss Review as Improvidently granted w/permission.
Jan 30 2007	Change of contact information filed for:   counsel for plf/resp. (Vasquez) to Altshuler Berzon, LLP
Feb 2 2007	Opposition filed   by counsel for respondent to appellant's Request for Judicial Notice.
Feb 6 2007	Filed:   counsel for State of Calif. amended Declaration of Service.
Feb 6 2007	Amicus curiae brief filed   by Attorney General, Edmund G. Brown, Jr. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 7 2007	Received application to file Amicus Curiae Brief   The Impact Fund, et al in support of plf./resp. (Vasquez)
Feb 7 2007	Received application to file Amicus Curiae Brief   Pacific Legal Foundation in support of plf/resp.
Feb 7 2007	Received application to file Amicus Curiae Brief   League of California Cities et al., in support of appellant.
Feb 8 2007	Received application to file Amicus Curiae Brief   Los Angeles County Bar Association in support of respondent.
Feb 15 2007	Permission to file amicus curiae brief granted   Pacific Legal Foundation in support of respondent.
Feb 15 2007	Amicus curiae brief filed   Pacific Legal Foundation in support of respondent, Cristina Vasquez, is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Feb 15 2007	Permission to file amicus curiae brief granted   League of California Cities and the California State Association of Counties in support of appellant.
Feb 15 2007	Amicus curiae brief filed   League of California Cities and the California Association of Counties in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 15 2007	Permission to file amicus curiae brief granted   Los Angeles County Bar Association in support of respondent.
Feb 15 2007	Amicus curiae brief filed   Los Angeles County Bar Association in support of respondent. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Feb 15 2007	Permission to file amicus curiae brief granted   The Impact Fund, et al., in support of respondent
Feb 15 2007	Amicus curiae brief filed   The Impact Fund, et al., in support of appellant. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Feb 27 2007	Response to amicus curiae brief filed   Respondent Cristina Vasquez responding to amicus brief of A.G. Edmund G. Brown Jr., and League of California Cities and California State Association.of Counties.
Mar 2 2007	Response to amicus curiae brief filed   counsel for aplt. State of Calif. to a/c brief of The Impact Fund, et al.
Apr 24 2007	Change of contact information filed for:   Law Offices of Robert S. Gerstein, counsel for Respondent Cristina Vasquez.
Apr 24 2007	Received:   from Law Offices of Robert S. Gerstein, letter advising court of his unavailability.
Jun 22 2007	Request for judicial notice filed (granted case)   Cristina Vasquez, Respondent Attorney Robert Berke
Jul 17 2007	Opposition filed   counsel for aplt. (State of Calif.) to Motion for Judicial Notice: Exhibits A-C
Jul 26 2007	Filed:   reply to opposition to request for judicial notice Cristina Vasquez, Respondent
Nov 9 2007	Filed letter from:   counsel for respondent Cristina Vasquez of recent Ninth Circuit decision [letter dated 11-7-2007]
Jun 4 2008	2nd record request   Remaining records,, Overnight Mail
Jun 6 2008	Received Court of Appeal record   3 boxes
Jul 30 2008	Case ordered on calendar   to be argued Wednesday, September 3, 2008, at 9:00 a.m., in San Francisco
Aug 4 2008	Motion to dismiss denied   Respondent's "Request for Judicial Notice," filed on June 22, 2007, is denied. Respondent's "Motion to Dismiss Review," filed on December 13, 2006, is denied.
Aug 5 2008	Change of contact information filed for:   counsel for amicus curiae League of Calif. Cities., new firm name Jarvis, Fay, Doporto & Gibson, LLP
Aug 8 2008	Request for judicial notice filed (granted case)   counsel for resp. Cristina Vasquez
Aug 12 2008	Opposition filed   counsel for aplt. State of California to Request for Judicial Notice.
Aug 13 2008	Received:   respondent Cristina Vasquez's document entitled: 'reply in support of request for judicial notice'
Aug 18 2008	Note: Mail returned and re-sent   Address for Robert Berke updated per telephone call (now noted on Party tab as 1717 Fourth Street, 3rd Floor, Santa Monica, CA 90401).
Aug 19 2008	Application filed   to divide oral argument time; two counsel for respondent Vasquez asking to split time 15 minutes/15 minutes.
Aug 21 2008	Order filed   The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to counsel Michael Rubin 15 minutes and counsel Robert Berke 15 minutes of respondent's 30-minute allotted time for oral argument is granted.
Aug 22 2008	Filed:   counsel for resp. Notice of Supplemental Authorities.
Aug 27 2008	Request for judicial notice denied
Sep 3 2008	Cause argued and submitted
Nov 19 2008	Notice of forthcoming opinion posted
Nov 20 2008	Opinion filed: Judgment affirmed in full   OPINION BY: Werdegar, J. ----- joined by: George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Dec 1 2008	Request for modification of opinion filed   The Sturdevant Law Firm (non-party) James Sturdevant, counsel
Dec 17 2008	Opinion modified - no change in judgment   THE COURT: On the court's own motion, the opinion herein filed November 20, 2008, and published at 45 Cal.4th 243, is modified as follows: On page 252 of 45 Cal.4th, the sentence beginning, "For example, a plaintiff suing under the Consumers Legal Remedies Act," is modified to read as follows: For example, a plaintiff under the Consumers Legal Remedies Act (Civ. Code, ? 1750 et seq.) must notify the defendant of the particular violations alleged and demand correction, repair, replacement, or other remedy at least 30 days before commencing an action for damages. This modification does not affect the judgment. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Dec 17 2008	Request for modification granted   The opinion is modified.
Dec 17 2008	Remittitur issued (civil case)
Dec 24 2008	Received:   receipt for remittitur from CA 4/1

Briefs
Sep 13 2006	Opening brief on the merits filed
Dec 19 2006	Answer brief on the merits filed
Jan 9 2007	Reply brief filed (case fully briefed)
Feb 6 2007	Amicus curiae brief filed
Feb 15 2007	Amicus curiae brief filed
Feb 15 2007	Amicus curiae brief filed
Feb 15 2007	Amicus curiae brief filed
Feb 15 2007	Amicus curiae brief filed
Feb 27 2007	Response to amicus curiae brief filed
Mar 2 2007	Response to amicus curiae brief filed

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