In identical circumstances, the Minnesota Court of Appeals sustained a demurrer to a complaint seeking to recover the costs of law enforcement associated with civil disobedience in the offices of the Honeywell corporation. (North Star Legal Foundation v. Honeywell Project (Minn.1984) 355 N.W.2d 186.) The North Star Legal Foundation had brought suit on behalf of taxpayers to recover damages for private and public nuisance and civil trespass. The court held that plaintiffs had failed to state a claim upon which relief may be granted, stating, "[l]iberal pleading rules ... are not a substitute for substantive law." (Id., at p. 188.)
1. Real Parties in Interest.
The non-County plaintiffs allege two general categories of harm. They allege that they will suffer increased taxes as a result of expenses for law enforcement and other public expenditures incurred by the plaintiff County and the State of California, [FN7] and they allege that they will experience increased utility rates because PG & E's costs will be passed on to them. These plaintiffs argue that they, or, in the case of the organizations, their members, will "ultimately pay the costs" of the blockade.
Taxpayers do not have the right to sue for public expenditures unless the public agency has: (1) a duty to sue; and (2) refused to so do. (Silver v. Watson (1972) 26 Cal.App.3d 905, 909, 103 Cal.Rptr. 576; Elliott v. Superior Court (1960) 180 Cal.App.2d 894, 897, 5 Cal.Rptr. 116; see generally Dunn v. Long Beach L. & W. Co. (1896) 114 Cal. 605, 609, 46 P. 607.) Here, the County has chosen to sue and plaintiffs have affirmatively alleged that the State has not refused to sue. More important, plaintiffs have not alleged a duty by the State or County to sue.
These non-County plaintiffs' claims of right to sue as ratepayers suffer from the same defect. Their claims are wholly derivative on behalf of PG & E. PG & E is entitled to sue for injuries to the utility. (See, e.g., Pub. Util. Code, ss 7951-7953, ch. 4, "Injury to Public Utility Property.")
Plaintiffs rely on Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 225, 107 Cal.Rptr. 123, for the proposition that taxpayers and ratepayers can sue because they "ultimately pay the costs...." There it was held only that a homeowners' association did not have standing because the individual homeowners were the real parties in interest with respect to the alleged injuries to their real property. (Ibid.)
2. Standing to Sue.
The two organizational plaintiffs allege no harm to themselves. Rather, they seek to recover damages supposedly suffered by their members and rely on a series of cases that suggest liberalizing standing principles in order to insure that issues involving the public interest are resolved. [FN8] The cases relied on by plaintiffs sought declaratory or injunctive relief which would inure to the benefit of the plaintiff organizations' members. [FN9] By contrast, the non-County plaintiffs here seek damages for harm supposedly suffered by their members, but allege no assignment of the damage claims of their members or even that their members would in fact benefit from any award to the organizations. The organizations, which allege no monetary injury to themselves, are therefore not entitled to recover.
[FN9] The only exception is Daniels, supra, which held that a union may sue for libel to recover damages for a wrong done to the organization itself.
3. No Allegation of Special Damage.
An independent problem presented by the complaint of the non-County plaintiffs is that they have not pled, as required, that they were "specially damaged" in a different way than other members of the general public. Section 3493 of the Civil Code provides that "[a] private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise." (Emphasis added.) This requirement has been described as follows: "Where the nuisance alleged is not also a private nuisance as to a private individual he does not have a cause of action [for] public nuisance unless he alleges facts showing special injury to himself ... or property of a character different in kind from that suffered by the general public." (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124, 99 Cal.Rptr. 350.)
4. General Tort Liability.
Plaintiffs attempt to assert a general cause of action for "tort" pursuant to Civil Code section 3523, which states, in its entirety: "For every wrong there is a remedy." This section, however, does not create substantive rights. "[This] wholesome maxim of jurisprudence ... can obviously have no application to any but legal wrongs or those wrongs for which the law authorizes or sanctions redress." (Finch v. Western Nat. Bank (1914) 24 Cal.App. 331, 338, 141 P. 261; see also Fortenbury v. Superior Court (1940) 16 Cal.2d 405, 410, 106 P.2d 411 ("[T]he law does not invariably give relief against damage, because in some circumstances the infliction of damage, though intentional, is without legal remedy.").)
"[T]orts consist of the breach of duties fixed and imposed upon the parties by the law itself, ..." (Prosser & Keeton, Torts, supra, s 1, p. 4.) Whether intentional or negligent, a tort "involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is 'damnum absque injuria' -- injury without wrong." (4 Witkin, Summary of Cal. Law (8th ed. 1974) s 5, p. 2306, and cases cited therein.)
Appellants rely on Civil Code section 1708 ("Every person is bound ... to abstain from injuring the person or property of another, or infringing upon any of his rights.") to aver that defendants, by their acts of civil disobedience, breached a universal duty to society at large and thus are liable in "tort." Yet the California courts have explicitly rejected the concept of universal duty. "'It must not be forgotten that "duty" got into our law for the very purpose of combatting what was then feared to be a dangerous delusion ... viz., that the law might countenance legal redress for all foreseeable harm.'" (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912, quoting Fleming, An Introduction to the Law of Torts (1967) p. 47.)
Plaintiffs rely on two cases in support of their claim for "tort," Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813, and Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 169 Cal.Rptr. 478. In Laguna Publishing, the court held that a newspaper publisher had a direct right under the California Constitution to recover damages for deprivation of his rights of free speech and free press. The holding was explicitly limited to recovery for infringement of fundamental rights guaranteed by the California Constitution. [FN10] Plaintiff's purported right to unobstructed public roads and right to be free from unnecessary expenditures of public funds under existing contracts are not fundamental rights guaranteed by either the California Constitution or United States Constitution.
Even if plaintiffs were real parties in interest and had established standing to sue, they have not alleged a cause of action in tort, and neither has the County.
C. Attorneys' Fees.
The trial court ordered appellants to pay respondents' attorneys $82,500 as fees pursuant to the private attorney general statute, Code of Civil Procedure section 1021.5. [FN11] Appellants contend that the award was improper because the litigation did not enforce important rights or confer benefits on persons other than defendants. They also argue that section 1021.5 permits fee awards to defendants only if the litigation is frivolous. Moreover, they assert that the amount requested by defendants was so outrageous that no fees should have been awarded.
Appellants contend that respondents did not enforce an important right. First, they assert that no "new concepts" were involved in the litigation. We need not determine whether this contention is correct because there is no such requirement. The Supreme Court in Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 193 Cal.Rptr. 900, 667 P.2d 704, held that enforcement of established rights, as well as creation of new rights, can justify a fee award.
Plaintiffs also urge that because they disclaimed any intent to interfere with lawful protest, it follows that defendants' efforts were unnecessary to protect the lawful right to protest. Plaintiffs' intentions, however, are irrelevant. As the trial court concluded, the inevitable effect of the continuation of this lawsuit would be to chill large protests by substantially escalating the risks involved. A person or organization contemplating a mass protest in which civil disobedience is involved might accept the risk of conviction of a misdemeanor such as trespass. If this suit were successful, however, the risks of monetary loss, jointly and severally imposed on each defendant, could be enormous, and therefore unacceptable.
2. Significant Benefit.
The second requirement of section 1021.5 is that the litigation confer a significant benefit, whether pecuniary or nonpecuniary, on a large class of persons or the general public. Plaintiffs make two arguments on this criterion, one of them procedural and one substantive. Their procedural argument is that the trial court should have made a specific finding that a large class of people was benefited. No finding on this matter was requested and none is required. (Rees v. Department of Real Estate (1977) 76 Cal.App.3d 286, 291, 142 Cal.Rptr. 789, and cases cited therein; Code Civ. Proc., s 634.) A "judgment will not be set aside because of a failure to make an express finding upon [an] issue if a finding on it, consistent with the judgment, results by necessary implication from the express findings which are made." (In re Marriage of Aufmuth (1979) 89 Cal.App.3d 446, 462, 152 Cal.Rptr. 668, overruled on other grounds; In re Marriage of Lucas (1980) 27 Cal.3d 808, 815, 166 Cal.Rptr. 853, 614 P.2d 285.) In this case, the trial court's express finding that defendants' litigation helped to preserve the fundamental right of protest necessarily implies a finding that defendants conferred a benefit on the general public.
Plaintiffs also contend that since only defendants' economic interests were at stake, the litigation did not confer a significant benefit on a large class of persons. This does not mesh with the fact, discussed above, that defendants' success in the litigation confirmed important principles
limiting the risks of political protest. In Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 159 Cal.Rptr. 473, the court affirmed a fee award because of the trial court's finding that important environmental principles ("strong public policies") were involved even though the underlying litigation was settled in terms particularized to one single house and to the plaintiff's participation in further planning activities. [FN12]
The trial court did not abuse its discretion by ruling that both the necessity and financial burden of privately litigating this suit made a fee award appropriate. Since this suit was brought by a public entity (the County), the necessity of private rather than public enforcement is evident. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941, 154 Cal.Rptr. 503, 593 P.2d 200.)
The "financial burden" criterion of section 1021.5 is met when "the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff 'out of proportion to his individual stake in the matter.'" (County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89, 144 Cal.Rptr. 71, quoted with approval in Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 941, 154 Cal.Rptr. 503, 593 P.2d 200.) Appellants, citing Woodland Hills, argue that the trial court's failure to make a specific finding on financial burden requires reversal. In Woodland Hills, however, the Supreme Court remanded the case because the trial court had made no ruling at all on the plaintiffs' entitlement to fees under section 1021.5, which was enacted while the case was on appeal. (Woodland Hills, supra, 23 Cal.3d at p. 925, 154 Cal.Rptr. 503, 593 P.2d 200.) In this case, the trial court considered all the criteria imposed by section 1021.5 before concluding that defendants were entitled to fees. Plaintiffs' failure to request a specific finding on the "financial burden" criterion waives any objection to the lack of a finding. (Rees v. Department of Real Estate, supra, 76 Cal.App.3d at p. 291, 142 Cal.Rptr. 789.)
As stated in one of the exhibits submitted by plaintiffs to the trial court, "PLF's purpose in bringing the suit was threefold: (1) to insure that illegal means did not prevent the proper regulatory process of testing and review; (2) to prevent taxpayers and consumers from having to subsidize the group's [defendant Abalone Alliance] illegal actions; and (3) to protect the public interest, including the right of an employee to report for lawful work."
Similarly, the motivation for defending this lawsuit cannot reasonably be attributed exclusively to a desire by defendants to protect their own pocketbooks. This is not a garden variety damage suit. Just a few weeks after filing suit, plaintiffs moved for a preliminary injunction to prevent defendant Abalone Alliance from planning or conducting any future blockades of Diablo Canyon. If respondents had been interested solely in avoiding pecuniary loss, they could readily have agreed to an injunction. Instead, by vigorously resisting appellants' motion, they indicated that their goals were not merely financial.
The file shows that defendants are anti-nuclear and environmental activists concerned with a political goal -- "the termination of the Diablo Canyon facility as a nuclear power plant." Since defendants' goal in litigating this suit transcends their personal self-interests, the "financial burden" criterion is met.
4. Awarding Attorneys' Fees to Defendants.
Plaintiffs also suggest that defendants should be denied fees because they were defendants rather than plaintiffs in the court below. Section 1021.5, however, provides for a fee award to a "successful party" and draws no distinctions between plaintiffs and defendants. In the only California case on point, fees were awarded to a successful defendant. (Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 216 Cal.Rptr. 649.) While the defendant was also a cross-complainant, fees were awarded for all time spent on the case, including time spent on defending plaintiff's separate action for civil penalties, not just for litigating the cross- complaint. The award of fees was upheld as a reasonable exercise of discretion.
Allowing section 1021.5 fees only to complainants would not be consistent with the express wording or purposes of the statute.
5. Amount of Award.
Plaintiffs also contend that the fee award was excessive.
Defendants submitted to the trial court comprehensive records, which itemized and explained time devoted to the case by attorneys and paralegals for whom fees were claimed. They multiplied the hours spent by each attorney and paralegal by a reasonable hourly rate. The resulting "lodestar" figure was $146,846.25, which defendants requested should be augmented by a "multiplier" of 50 percent (see Serrano v. Priest (1977) 20 Cal.3d 25, 49, 141 Cal.Rptr. 315, 569 P.2d 1303), resulting in a total fee claim for $220,269.37. The trial court, after reviewing the record, awarded $82,500 in attorneys' fees -- $75,000 for work on the merits of the case, plus $7,500 for time spent establishing entitlement to fees. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 639, 186 Cal.Rptr. 754, 652 P.2d 985.) The court reasoned that defendants had not yet been completely successful because some plaintiffs (the plant workers) remained in the suit even though it had been dismissed insofar as appellants were concerned. Therefore, the trial court concluded, defendants should recover only for the time reasonably spent against the County, which the court determined was valued at $75,000. The reduction was made without prejudice to the right of defendants to move for fees against the undismissed plant worker plaintiffs if defendants subsequently are successful against them. The court did not use a multiplier.
This case was both complex and vigorously litigated. It was ultimately resolved by demurrer, but not before extensive litigation on a variety of issues, ranging from motions to strike, to a request for preliminary injunction, to extensive discovery litigation. In all, there were approximately 113 pleadings filed by the time the fee motion was decided.
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.'" (Serrano v. Priest, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) Here, the trial judge reviewed the record and exercised his discretion reasonably. We find that he did not abuse it.
The judgment dismissing the second amended complaint insofar as appellants are concerned is affirmed. Likewise, the judgment ordering appellant County of San Luis Obispo to pay respondents' attorneys' fees of $82,500 is affirmed.
STONE, P.J., and ABBE, J., concur.