Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE CONSERVATORSHIP OF ROY WHITLEY

Transcription

1 Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE CONSERVATORSHIP OF ROY WHITLEY NORTH BAY REGIONAL CENTER Respondent, v. VIRGINIA MALDONADO, as Conservator for Roy Whitely Petitioner. On Appeal from an Unpublished Decision of the Court of Appeal First Appellate District, Division Four, Case No. A Sonoma County Superior Court Case No. SPR The Honorable Elaine Rushing APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND PROPOSED AMICI CURIAE BRIEF OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND THE LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF RESPONDENT NORTH BAY REGIONAL CENTER Jennifer B. Henning (SBN ) California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA Telephone: (916) Facsimile: (916) jhenning@coconet.org Attorney for Amici Curiae California State Association of Counties and League of California Cities

2 TO THE HONORABLE PRESIDING JUSTICE: Pursuant to Rule 8.520, subdivision (f) of the California Rules of Court, the California State Association of Counties and the League of California Cities submit this application to file an amicus brief in support of Respondent North Bay Regional Center. THE AMICI CURIAE CSAC is a non-profit corporation, the membership of which consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels Association of California and is overseen by the Association s Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case involves issues affecting all counties. The League of California Cities is an association of 474 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide or 1

3 nationwide significance. The Committee has identified this case as being of such significance. STATEMENT OF INTERESTS The issue presented in this case is an important one for California s cities and counties whether nonpecuniary interests can ever be used to disqualify a party from eligibility for section attorney fees. The resolution of this issue could have an impact on cities and counties in a variety of circumstances beyond the factual scenario presented in this case. For this reason, amici curiae have a unique perspective on the issue that we believe would be a benefit to the Court. NEED FOR FURTHER BRIEFING Amici curiae are familiar with the issues and the scope of their presentation and believe additional briefing is needed on the statewide public policy ramifications of Petitioner s attempt to create a bright line rule that would find nonpecuniary interests could never be used to disqualify a litigant from private attorney general fees. This proposed per se rule would not only be contrary to decades of case law, but would also be contrary to the fundamental policy underlying the private attorney general statute. The proposed amicus brief reviews that case law and policy in a manner not discussed in the party briefing. The proposed amicus brief also highlights some of the other situations in which nonpencuniary interests may be present in litigation against cities and counties. We 2

4 believe this information will broaden the Court s perspective on the issue presented in this case. Therefore, Amici Curiae hereby request that leave be granted to allow the filing of the accompanying amici curiae brief. Dated: Respectfully submitted, By: JENNIFER B. HENNING Attorney for Amici Curiae California State Association of Counties and League of California Cities 3

5 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii I. INTRODUCTION...1 II. INTEREST AND DESCRIPTION OF AMICUS CURIAE...2 III. ARGUMENT...3 A. Section is Intended to Encourage Suits That Enforce Significant Societal Interests Where Private Interests Not Sufficient to Enforce Rights...3 B. A Litigant s Motivation is Relevant The purpose of the act requires court inquiry into litigant s motive Cases cited by Petitioner do not support a result over motive analysis The weight of case authority supports considering motive in deciding section fee eligibility Section is not intended to fund all meritorious litigation that happens to result in a public benefit...14 IV. CONCLUSION...15 CERTIFICATION OF COMPLIANCE...17 i

6 TABLE OF AUTHORITIES CASES Adoption of Joshua S. (2008) 42 Cal.4th Bowman v. City of Berkeley (2005) 131 Cal.App.4th California Common Cause v. Duffy (1987) 200 Cal. App. 3d California Licensed Foresters Assoc. v. State Bd. of Forestry (1994) 30 Cal.App.4th Carlton Santee Corp. v. Padre Dam Municipal Water Dist. (1981) 120 Cal.App.3d City of Los Angeles v Jeep Cherokee (2008) 159 Cal.App.4th City of Sacramento v. Drew (1989) 207 Cal.App.3d Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005) 127 Cal.App.4th County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1...8, 9 Families Unafraid To Uphold Rural El Dorado County v. El Dorado County Bd. of Supervisors (2000) 79 Cal.App.4th Hammond v. Agran (2002) 99 Cal.App.4th , 13 In re Head (1986) 42 Cal.3d Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th Maria P. v. Riles (1987) 43 Cal.3d Marini v. Municipal Court (1979) 99 Cal.App.3d Nelson v. County of Los Angeles (2003) 113 Cal.App.4th ii

7 Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th People ex rel. Brown v. Tehama County Bd. of Supervisors (2007) 149 Cal.App.4th Plumbers & Steamfitters, Local 290 v. Duncan (2007) 157 Cal.App.4th Punsly v. Ho (2003) 105 Cal.App.4th , 8 Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th Saleeby v. State Bar (1985) 39 Cal.3d , 10 Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th Save El Toro Assoc. v. Days (1979) 98 Cal.App.3d Schmid v. Lovette (1984) 154 Cal.App.3d State Water Resources Control Bd. Cases (2008) 161 Cal.App.4th Unocal Corp. v. United States (2000) 222 F.3d Vasquez v. State of California (2008) 45 Cal.4th Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th STATUTES Code Civ. Proc., passim iii

8 I. INTRODUCTION California s private attorney general statute allows litigants to be eligible for attorney fees when: (1) the action enforces an important right affecting the public interest; (2) a significant benefit is conferred upon the general public or a large class; and (3) the the necessity and financial burden of private enforcement make the award appropriate. (Code Civ. Proc., ) In this case, the Court of Appeal concluded that, as to the third element, an award of attorney fees was not necessary for Petitioner to prosecute this action since her significant nonpecuniary interest was not out of proportion to the financial burden of the case. In granting review, this Court will now consider an issue it left open in Adoption of Joshua S. (2008) 42 Cal.4th 945, 953: whether nonpecuniary interests be used to disqualify a party from eligibility for section attorney fees. In its briefing, Petitioner asks this Court not only to conclude that the lower court s finding that Petitioner was not entitled to fees was in error, but to create a new bright line rule that a litigant s nonpecuniary interest can never be considered in determining eligibility for attorney fees under section CSAC and the League take no position on whether Petitioner in this action is entitled to fees under section under the facts of this particular case. But Petitioner s request for this new rule of law contradicts not only decades of case law interpreting the private attorney general statute, but also its purpose. As such, the California State 1

9 Association of Counties and the League of California Cities urge that, no matter how it rules as to Petitioner s specific claims, the Court reject Petitioner s approach on the relevancy of nonpecuniary interests, and hold instead that such interests can have a place in determining attorney fee awards under section II. INTEREST AND DESCRIPTION OF AMICUS CURIAE The California State Association of Counties (CSAC) is a non-profit corporation. The membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels Association of California and is overseen by the Association s Litigation Overview Committee, comprised of county counsels throughout the State. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case raises issues affecting all counties. The League of California Cities (League) is an association of 474 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide or 2

10 nationwide significance. The Committee has identified this case as being of such significance. CSAC and the League have a very real interest in the Court s ruling on this issue. The relevancy of a nonpecuniary interest in litigation against cities and counties can be raised in any numbers of contexts beyond the facts presented in this case. Because of the wide variety of governmental services provided by cities and counties and the potential for impacting the civil rights of their constituencies, cities and counties will and have seen claims concerning matters potentially impacting public rights. These might include such things as land use decisions, elections, environmental impacts of public projects, social service delivery, and law enforcement policies, where the plaintiff or petitioner does may not have a readily identifiable pecuniary interest in the case. Whether attorney fees are available to plaintiffs in these cases when they have significant nonpecuniary interests in the case is therefore an important issue for cities and counties. III. ARGUMENT A. Section is Intended to Encourage Suits That Enforce Significant Societal Interests Where Private Interests Not Sufficient to Enforce Rights Since the issue presented in the case is principally one of statutory construction, the Court s primary objective is to ascertain the purpose of section , and resolve the issue in favor of furthering that purpose. (Carlton Santee Corp. v. Padre Dam Municipal Water Dist. (1981) 120 3

11 Cal.App.3d 14, 25 [ Statutes should be construed so as to be given a reasonable result consistent with the legislative purpose. [Citations.]... 'The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.' "].) Much is made by Petitioner of the legislative history of section But with or without consideration of that history, what is clear from the decades of court cases considering section is that it is intended to encourage lawsuits that address a significant societal interest, but do not involve private interests to the extent necessary to motivate litigants to enforce the rights on their own. That fact is most readily obvious when considering a pecuniary interest. As is often noted, the fundamental purpose of section , which is to provide some incentive for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit, despite the fact that his or her own financial stake in the outcome would not by itself constitute an adequate incentive to litigate. (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 795 (citing Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 80).) But the fundamental statutory purpose of section to encourage public interest litigation that would not go forward without some incentive 4

12 exists as the purpose of the statute no matter the nature (pecuniary or nonpecuniary) of the private interest of the litigant. Indeed, the focus of the discussion over decades in the courts is that attorney fees are available in true public interest lawsuits rather than those that are self serving. For example, the Third Appellate District, paraphrasing the court in County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, found that where it is clear from the record that an action was not a public interest lawsuit in the sense that it [was] waged for values other than respondent s, that the litigation [was] self-serving, and that for want of the pivotal element of predominant public interest if for no other reason an order awarding fees was in error. (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 838.) Importantly, the court here uses terms to describe the purpose of the statute that are equally relevant to pecuniary and nonpecuniary interests the court looked to the values of the litigants, and whether the case is predominantly for the public interest. Literally dozens of cases have noted that the purpose of the fee is to encourage or provide incentive to litigants to move forward. (See, e.g., Vasquez v. State of California (2008) 45 Cal.4th 243, 250; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1289; In re Head (1986) 42 Cal.3d 223, 225; Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, ; Plumbers & Steamfitters, Local 290 v. 5

13 Duncan (2007) 157 Cal.App.4th 1083, 1096; Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1508; Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 400.) A reading of these cases make clear that what the fee provision is meant to do is to provide incentive to, or encourage as the courts usually phrase it, a litigant to bring cases enforcing public rights where their own private interest does not create sufficient incentive. Not surprisingly, the private interest that often motivates litigants to move forward with a case is pecuniary. There is no question that money is a powerful motivator. But what Petitioner is asking this Court to do is find that nothing else but money could serve as a strong enough personal interest to encourage to litigant to move forward without the incentive of section fees. No other case to consider the issue has come to that conclusion. (Punsly v. Ho (2003) 105 Cal.App.4th 102; Hammond v. Agran (2002) 99 Cal.App.4th 115, 125; Families Unafraid To Uphold Rural El Dorado County v. El Dorado County Bd. of Supervisors (2000) 79 Cal.App.4th 505, 516; Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, ) And for good reason. While financial interests are certainly the more common motivator for bringing litigation, for the Court to rule as Petitioner has requested, it would have to conclude that there are no circumstances imaginable where any person s 6

14 nonpecuniary interests are so strong that they would have litigating the matter without the encouragement of fees under section It simply defies logic, and the purpose of the statute, to conclude those circumstances could never exist. Since the purpose of the statute is to encourage true private attorney generals those pursuing litigation in the public interest to go forward, the courts must have a way of ferreting out those cases that are pursued primarily for a private interest i.e., that they would have gone forward even without the encouragement of section fees. Whether the interest is pecuniary (as is most typical) or not should not determine the answer to that question. B. A Litigant s Motivation is Relevant Petitioner argues that a litigant s motive is not relevant in determining eligibility for attorney fees under section (Pet. Reply Br., p. 12.) She argues that it is the outcome of the case, rather than the motive for pursuing litigation, that is relevant. This reasoning is flawed for several reasons. 1. The purpose of the act requires court inquiry into litigant s motive. As cited above, beginning almost immediately after the adoption of section in 1997, and continuing today, the courts have found that the purpose of the statute is to encourage or allow an incentive for the pursuit of public interest related litigation. (See e.g., Punsly v. Ho (2003) 7

15 105 Cal.App.4th 102, 109; Save El Toro Assoc. v. Days (1979) 98 Cal.App.3d 544, 552.) The commonly understood definition of encourage and incentive is to spur an action or cause a person to act. As such, the inquiry that best furthers the purpose of the statute is what causes the litigant to act, not whether the end result is an opinion that happens to also benefit a public interest. Again, this concept is easily grasped in the context of pecuniary interests the thing that encourages, creates incentive, spurs on, or motivates action is often the fact that the amount of money at risk in the case far exceeds the cost to litigate. But the analysis is very much a consideration of motive. Given the fundamental purpose of the statute, it is no less relevant an inquiry where the court is considering nonpecuniary interest. 2. Cases cited by Petitioner do not support a result over motive analysis. The two cases that Petitioner cites in support of her result over motive argument do not support her position. The first case is Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, However, in that case, the court s discussion of result comes in the context of the second prong in the fee inquiry (whether a significant benefit is conferred upon the general public or a large class), and not the third prong that is as issue in the present case (whether the the necessity and 8

16 financial burden of private enforcement make the award appropriate). Contrary to Petitioner s presentation of the case, the court in Estrada makes clear that the plaintiff s motive is a factor to be considered. The court notes that the action was brought as a class action lawsuit, and in that way plaintiff was carrying the burden of litigation not only for himself, but for 209 other class members. Thus, the fact that he may have had some personal motive, his motivation to pursue the action for his class members showed the public purpose of the litigation. (Ibid.) Certainly, the court would not have looked at why the action was pursued if motivation were not relevant. Instead, the court would only have looked at the eventual outcome on the merits to see if a public interest was served. But the court did not do so. As such, the case does not support Petitioner s argument. More poignant is the second case cited by Petitioner in support of the result over motive argument. (Saleeby v. State Bar (1985) 39 Cal.3d 547.) Petitioner points the Court to pages of that case for the proposition that fees were awarded to Mr. Saleeby s even though his motive was purely personal. (Pet. Reply Br., p. 12.) However, a review of those pages reveals them to be only a recitation of the procedural history of the case. In the discussion of the legal issue of section fees, the court makes clear that Mr. Saleeby s motives were not purely personnel, (a quote used by Petitioner, but not in the opinion) but that petitioner here 9

17 sought to vindicate personal rights and his claim to a particular sum in addition to challenging the general regulatory scheme utilized by the bar. (Id. at p. 574 (emphasis added).) In fact, rather than being purely personnel, the court describes Mr. Saleeby s personal interest as some degree involved in the litigation. (Ibid.) At best, this case stands for the proposition that so long as the court finds a general public interest motivation for pursuing the litigation, the fact that the litigant s personal interest may be involved to some degree does not preclude fees. For CSAC and the League, the importance of the present case is not whether Petitioner s own personal interest or motive in pursing this case was involved to such a degree as to preclude her requested fees, but whether any litigant s motive could ever be so great as to preclude fees. The cases cited by Petitioner simply do not support that such motive should not be considered. 3. The weight of case authority supports considering motive in deciding section fee eligibility. Contrary to Petitioner s argument, the weight of case law authority makes clear that a litigant s motive is a factor in considering fees. While the result of the litigation may be important in determining whether the second benefit to the general public prong is met, motive is relevant in determining whether the litigant s personal interest in pursuing the 10

18 litigation is so strong that the prospect of fees was not required to encourage the action. Courts have expressed this concept in a variety of ways. For example, courts have considered the goal of the litigation to measure the litigant s personal interest against the public interest. (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1047 [disallowing fee where enforcement of the public interest is merely coincidental to the obtaining of personal goals ].) Certainly, evaluating the goal of litigation looks to the litigant s motive in bringing the case, and not the eventual outcome of the court s decision. In other cases, the concept of motive is more explicit. For example, the First Appellate District has found that while some concrete personal interest in the issue being litigated is expected, the public interest motivation for pursuing the case is highly relevant. (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173.) In Bowman, the action involved an alleged due process violation in the city s land use approval process. Fees were awarded because the court found that the petitioners were concerned as much with the process by which the city approved the project as with the project itself.... (Id. at p. 182.) Indeed, the court went on to include in a footnote a quote from a declaration that petitioners were highly motivated...to resist, for the public benefit, blatant violations of state and local laws. (Id. at p. 182, fn. 1. (emphasis added).) 11

19 In City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, the court noted the pertinence of a litigant s motivation. The issue is not the mere coincidence of private and public interest, but whether the individual stake of the litigant would have been sufficient in its own right to have motivated his participation in the litigation. (Id. at p (emphasis added).) A mere coincidence of private and public interest can be measured by looking at the result of the litigation to see whether in succeeding in the case, the litigant also happened to benefit the public interest. But determining whether the motivation existed to encourage the litigation in the first place requires the court to look beyond the result in a case. Similarly, in City of Los Angeles v Jeep Cherokee (2008) 159 Cal.App.4th 1272, the court found that petitioner s motivation transcended his own interest in the case as evidenced by his pursuit of the challenge even after the matter as to his personal interest had been informally resolved in his favor. (Id. at p ) The court in Schmid v. Lovette (1984) 154 Cal.App.3d 466, was also concerned with the motive of the litigant and not merely the outcome. There, the court granted section fees in a challenge to an employment loyalty oath. The court noted that plaintiff had already taken the oath and been hired by defendant employer. As such, the action was taken solely to prevent loyalty oaths in the future. (Id. at p. 478 [ This is not a case where the public value of 12

20 plaintiff s action was wholly coincidental to the attainment of her personal gains. Plaintiff clearly acted as a private attorney general in the purest sense of the term. ].) If motivation were not a relevant factor, the court would have no reason to consider whether personal gains or public value drove plaintiff to pursue the case. A final example is Hammond v. Agran (2002) 99 Cal.App.4th 115. That case challenged defendant s action related to a ballot pamphlet candidate s statement. The court noted that the reason plaintiff pursued the case was central to his eligibility for fees under section : And on that issue, Agran s appeal was the quintessential undertaking of litigation in the public interest removed from one s own immediate lifestyle benefits. The election was over. Agran had won. He could just as easily have gone fishing as undertaken the task of litigating in the appellate court the question of whether a candidate any candidate, not just Agran has the right under section to express his or her views in a ballot pamphlet candidate s statement. That was litigation over a point that readily transcended his personal stake in his own particular candidate s statement, and will necessarily inure to every voter who reads a ballot pamphlet in a local election wondering what policies a candidate intends to pursue in office. (Id. at p See also Unocal Corp. v. United States (2000) 222 F.3d 528, 544 [In determining whether to exercise its discretion to award fees under the doctrine, the court should consider whether the plaintiff s own interests are sufficient to motivate such a suit, or whether plaintiffs in actions of this kind require the additional carrot of shifted fees to ensure that the public interest will be vindicated. ].) 13

21 No matter what decision the Court makes as to whether Petitioner s motive in this case makes her ineligible for fees, the Court should not adopt Petitioner s argument that motive has no bearing in the analysis. The weight of case law authority makes clear that results are not the only consideration in the fee analysis. Motivation counts. 4. Section is not intended to fund all meritorious litigation that happens to result in a public benefit. Petitioner notes for this Court that she is a person of limited financial resources who is not able to reimburse her pro bono counsel for their efforts in the litigation. (Pet. Opening Br., p. 7; Pet. Reply Br., p. 11.) Petitioner also argues that uncertainty about the availability of fees may prevent some cases from ever being filed. (Pet. Reply Br., p. 7.) While both of these things are undoubtedly true, the question before this Court is only when the fee shifting provisions of section are applied. The fact of the matter is that some potentially meritorious cases never get filed for lack of resources. Some of these perhaps have the potential for rulings that would have public benefits beyond the individual litigants. But section is not intended to fund litigation that cannot otherwise go forward for lack of funds, however laudable a goal that might be. It is a private attorney general provision. It is designed to offer a bounty for those who are enforcing the rights of the public and acting as a true private attorney general. (State Water Resources Control Bd. Cases 14

22 (2008) 161 Cal.App.4th 304, 317; People ex rel. Brown v. Tehama County Bd. of Supervisors (2007) 149 Cal.App.4th 422, 454 [ Thus, an award of attorney fees under Code of Civil Procedure section has always served as a bounty for pursuing public interest litigation, not a reward for litigants motivated by their own interests who coincidentally serve the public. (quoting California Licensed Foresters Assoc. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 570)].) Thus the inquiry concerning a litigant s resources is not done in isolation. Instead, the availability of section is limited to those cases where the driving force is the public interest at stake. (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1151 [ Thus, [i]f the enforcement of the public interest is merely coincidental to the attainment of personal goals [citation] or is self-serving [citation], then this requirement is not met. (quoting California Common Cause v. Duffy (1987) 200 Cal. App. 3d 730, )].) IV. CONCLUSION This case presents an opportunity for the Court to pronounce what the purpose of the statute and case law already make clear: nonpecuniary interests can disqualify a litigant from attorney fee eligibility under section Three decades of case law has already established that the statute s purpose is not to fund all cases that happen to benefit the public, but rather to encourage litigants not already motivated by private interests to pursue 15

23 public interest litigation. There is nothing about that purpose that makes it applicable only to a litigant s pecuniary interest. Rather, the general principle is furthered by considering pecuniary and nonpecuniary interests alike. Such consideration requires an inquiry into what motivated the litigant to pursue the litigation in the first place, and can not be determined simply by looking at the eventual outcome of the case. CSAC and the League take no position on how those principles ultimately come to bear on Petitioner s claim for fees, though Respondent has ably argued that the Court of Appeal decision be affirmed. Either way, Petitioner s request that this Court adopt a bright line rule that nonpecuniary interests could never be used to deny private attorney general fees should be rejected. Instead, the Court should affirm the role of nonpecuniary interests as one of the relevant factors in deciding fee eligibility. Dated: Respectfully Submitted, Jennifer B. Henning, SBN Attorney for Amici Curiae California State Association of Counties and League of California Cities 16

24 CERTIFICATION OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE 8.204(c)(1) I hereby certify that this brief has been prepared using proportionately double-spaced 13 point Times New Roman typeface. According to the word count feature in my Microsoft Word software, this brief contains 3,844 words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this day of April, 2010 in Sacramento, California. Respectfully submitted, By: JENNIFER B. HENNING Attorney for Amici Curiae 17