Bui v. Trang Kim Nguyen , 179 Cal. Rptr. 3d 523 ( 2014 )

Filed 10/28/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
VIEN T. BUI, H039310
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 110CV161914)
v.
TRANG KIM NGUYEN et al.,
Defendants and Appellants.
When a lawsuit enforces “an important right affecting the public interest” and the
statutory criteria under section 1021.5 of the Code of Civil Procedure are satisfied, a
private litigant may recover his or her attorney fees.1 One criterion under section 1021.5
is that private enforcement of the public right vindicated in the lawsuit was necessary.
(Conservatorship of Whitley (2010) 50 Cal. 4th 1206, 1214.) In this appeal, we conclude
that the plaintiff, who was awarded damages for injuries arising from negligently
performed dental work and who obtained an injunction prohibiting defendant (a dental
technician) from identifying herself as a dentist, was not entitled to attorney fees under
section 1021.5 because he did not show that private enforcement of a public right was
necessary.
A jury found in plaintiff Vien T. Bui’s favor on an intentional misrepresentation
claim and awarded him $150,000 against defendant, Hi-Tech Dental, Inc. (Hi-Tech). It
1
All further statutory references are to the Code of Civil Procedure unless
otherwise specified.
also awarded $50,000 against Hi-Tech’s owner and dental assistant, Trang Kim Nguyen.2
(Nguyen; hereafter, appellants Hi-Tech and Nguyen are sometimes collectively referred
to as Dental Clinic.) About three weeks later and before judgment was entered, Bui
obtained a permanent injunction requiring Nguyen (1) to identify herself as a dental
assistant, not a dentist, in all Hi-Tech advertising, and (2) to refrain from wearing a white
dental lab coat. Bui made a postjudgment motion for more than $500,000 in attorney
fees pursuant to section 1021.5. He claimed he had acted in the role of a private attorney
general in obtaining injunctive relief that was beneficial to a large group of dental
patients potentially seeking the services of Dental Clinic. The court granted Bui’s
motion, awarding $126,974.13.
On appeal, Dental Clinic contends the trial court erred in awarding attorney fees to
Bui under section 1021.5. It asserts (1) there was no substantial evidence the injunctive
relief Bui obtained conferred a significant benefit upon the general public or a large
group of persons; (2) the record does not support the finding there was a necessity of
private enforcement under subdivision (b) of section 1021.5; and (3) there was no
statutory finding that the burden of private enforcement outweighed Bui’s personal stake
in the case.
We conclude the court abused its discretion in granting attorney fees under section
1021.5. Bui failed to establish that private enforcement was necessary to protect the
public from false advertising by Nguyen. Because the necessity of private enforcement is
one of the required elements under section 1021.5, the court erred in awarding attorney
fees under that statute. We will therefore reverse the order.
2
We understand that Vietnamese names generally consist of family name, middle
name, and given name, in that order. Under this convention, defendant’s surname is
Trang. But because the defendant is often referred to in the record as “Nguyen” (see,
e.g., Bui’s complaint), and is so referenced by her own counsel both below and on appeal,
we will also refer to defendant as Nguyen.
2
PROCEDURAL BACKGROUND
On January 22, 2010, Bui filed suit against Hi-Tech and Nguyen (case number
110-CV161914). He alleged seven causes of action, captioned as intentional
misrepresentation, battery, false imprisonment, fraud (concealment), unfair business
practices, intentional infliction of emotional distress, and negligence. The complaint did
not allege that Hi-Tech and Nguyen engaged in false advertising. Nor did it contain a
prayer for any form of injunctive relief.
On February 11, 2010, Bui filed a separate suit (case number 110-CV163603)
against three licensed dentists: Frank Tran (Tran), Doina Balaban (Balaban), and Lien
Hoang (Hoang).3 The first amended complaint was captioned as one for “dental
negligence and fraud.” (Capitalization and emphasis omitted.) Bui alleged that Tran,
Balaban, and Hoang were at all relevant times employed by or had contracts with Hi-
Tech. He alleged that between February 2008 and November 2008, he suffered injuries
as a result of negligent dental treatment performed by Tran. He also alleged a separate
negligence claim against Balaban, as well as dental negligence and fraud claims against
Hoang. Based upon the stipulation of the parties, the court ordered the two cases
consolidated.
Bui’s case against Dental Clinic apparently4 proceeded to trial in early 2012. On
February 28, 2012, the jury returned a verdict awarding Bui (1) $150,000 against High-
3
Hoang was sued by Bui as “Hoang Bich-Lien Thi, D.D.S.” We are aware of
certain matters pertaining to this second suit because of a separate appeal filed by Bui
after summary judgment was granted in favor of Hoang; we affirmed the judgment
entered on summary judgment in that appeal. (See Bui v. Hoang, Oct. 3, 2013, H038182
[nonpub. opn.].) Pursuant to Evidence Code sections 452, subdivision (d) and 459,
subdivision (a), we take judicial notice of this prior unpublished opinion. Judicial notice
of our prior opinion is appropriate because it “help[s] complete the context of this case.”
(Flatley v. Mauro (2006) 39 Cal. 4th 299, 306, fn. 2.)
4
Neither the jury verdict nor any post-trial orders associated with the trial are
included in the record provided by Dental Clinic. It would have been helpful to this court
to have had these documents as part of the record. It does not appear, however, that the
3
Tech for intentional misrepresentation, and (2) $50,000 against Nguyen on the same
cause of action. According to a recital in the court’s permanent injunction, the $50,000
awarded to Bui against Nguyen was “for past non-economic loss, including physical pain
and mental suffering.” The trial court then reduced the verdict to a joint and several
award of $50,000 against Hi-Tech and Nguyen, based upon its conclusion that Hi-Tech’s
liability was founded upon respondeat superior liability.
About three weeks after the jury verdict, on March 23, 2012, Bui filed a motion
for injunctive relief, citing Business and Professions Code section 17535 (injunctive
relief for false advertising) and Business and Professions Code section 17203 (injunctive
relief to address unfair business practices). Based upon the record before us, this motion
was the first indication by Bui that he intended to seek equitable relief concerning alleged
unlawful business practices or false advertising. He requested a permanent injunction
ordering Dental Clinic to (1) modify its radio and television advertisements that featured
Nguyen to include a specific disclaimer that she was not a dentist and that only licensed
dentists could diagnose the consumer’s dental problems; (2) monitor Hi-Tech’s Web site
and affirm the accuracy of its contents; (3) modify Hi-Tech’s Web site to place the names
of Hi-Tech’s dentists on page one and keep the roster up to date; (4) modify the Web site
to include a disclaimer on page one that patients could be treated only by licensed
dentists and that Nguyen was not a licensed dentist; and (5) display at the Hi-Tech
facility photographs of licensed dentists currently practicing at the clinic with an
indication that they were licensed dentists, and to display on the same wall the
photographs and licenses of the dental staff who were not licensed dentists as well as a
sign indicating that status. Bui’s motion also sought an order that Nguyen at all times
comply with the limitations of her license, including that she at all times be under the
basic facts concerning the jury trial as recited in Dental Clinic’s opening brief (i.e., when
it transpired, the nature of the verdict, and the substance of the court’s later order
reducing the verdict) are in dispute.
4
supervision of a licensed dentist, and that she never give a diagnosis or plan of treatment
for any patient’s dental condition. There is nothing in the record indicating that Dental
Clinic opposed Bui’s motion for injunctive relief.
The court granted the motion in part as against Nguyen only on June 12, 2012. It
found that a permanent injunction should issue requiring Nguyen to (1) identify herself as
a dental assistant rather than a dentist in any advertising, and (2) refrain from wearing a
white dentist’s coat at the Hi-Tech facility. The court based its decision on the fact that
the jury had found in favor of Bui, 12-0, on his claim of intentional misrepresentation.
That claim was based in part on allegations that Nguyen had worn a “ ‘doctor’s coat’ ”
and had appeared to Bui to be a dentist. It was also based on Bui’s testimony that he had
believed Nguyen to be a dentist. The court observed that Bui had presented six witnesses
(other patients) “[t]o buttress his claims” and their testimony was “of uneven value.” The
court concluded, however, that one of those witnesses had believed Nguyen to be a
dentist and it could be inferred from the testimony of two other witnesses that they had
also believed Nguyen to be a dentist. The court therefore issued a permanent injunction
against Nguyen pursuant to its ruling on the intentional misrepresentation cause of action
of the complaint.
Bui then filed a motion for attorney fees under section 1021.5, which Dental
Clinic opposed. Both Bui’s motion and Dental Clinic’s opposition to the motion were
supported by numerous declarations. On December 28, 2012, the court granted Bui’s
motion, awarding him a total of $126,974.13 in attorney fees.
DISCUSSION
I. Attorney Fee Awards Under Section 1021.5
In 1977, the California Legislature enacted section 1021.5 to provide courts with
the statutory authority to award attorney fees under a private attorney general theory.
(Woodland Hills Residents Assn., Inc. v. City Council of Los Angeles (1979)
23 Cal. 3d 917, 925 (Woodland Hills).) The enactment occurred at nearly the same time
5
the California Supreme Court held that courts may exercise their equitable authority to
award attorney fees “under a ‘private attorney general’ rationale to litigants who
successfully pursue ‘public interest’ litigation vindicating important constitutional rights .
. . [but] left open the related question ‘whether courts may award attorney[] fees under
[that] theory, where the litigation . . . has vindicated a public policy having a statutory . . .
basis.’ [Citation.]” (Ibid., quoting Serrano v. Priest (1977) 20 Cal. 3d 25, 47, italics
omitted.)
Under section 1021.5,5 fees may be awarded when the action “ ‘has resulted in the
enforcement of an important right affecting the public interest’ regardless of its source—
constitutional, statutory or other.” (Woodland Hills, supra, 23 Cal.3d at p. 925, quoting
§ 1021.5, original italics.) “[T]he fundamental objective of the private attorney general
doctrine of attorney fees is ‘ “to encourage suits effectuating a strong [public] policy by
awarding substantial attorney’s fees . . . to those who successfully bring such suits and
thereby bring about benefits to a broad class of citizens.” ’ [Citations.]” (Id. at p. 933.)
The private attorney general doctrine is an exception to the general rule, commonly
referred to as the “American rule,” that each party to a lawsuit must ordinarily pay his or
her own attorney fees. (In re Adoption of Joshua S. (2008) 42 Cal. 4th 945, 954.)
A litigant is eligible for attorney fees under section 1021.5 “when ‘plaintiffs’
action “ (1) has resulted in the enforcement of an important right affecting the public
interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons,” and (3) “the necessity and
5
Section 1021.5 provides in relevant part: “Upon motion, a court may award
attorneys’ fees to a successful party against one or more opposing parties in any action
which has resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on
the general public or a large class of persons, (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity against another public entity,
are such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.”
6
financial burden of private enforcement are such as to make the award appropriate.” ’
[Citation.]” (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1214, quoting Woodland
Hills, supra, 23 Cal.3d at p. 935.) There are in reality four criteria for eligibility, because
the third element involves “ ‘ “two issues: whether private enforcement was necessary
and whether the financial burden of private enforcement warrants subsidizing the
successful party’s attorneys.” ’ [Citations.]” (Conservatorship of Whitley, at p. 1214.)
The moving party bears “[t]he burden [of] establish[ing] each prerequisite to an award of
attorney fees under section 1021.5. [Citation.]” (Ebbetts Pass Forest Watch v.
California Dept. of Forestry & Fire Protection (2010) 187 Cal. App. 4th 376, 381
(Ebbetts); accord, Samantha C. v. State Dept. of Developmental Services (2012) 207
Cal. App. 4th 71, 78 (Samantha C.).)
With respect to the first criterion, although the right that is “important” need not
be constitutional in nature, section 1021.5 does not afford relief for “the enforcement of
‘any’ or ‘all’ statutory rights. [Rather] . . . the statute directs the judiciary to exercise
judgment in attempting to ascertain the ‘strength’ or ‘societal importance’ of the right
involved.” (Woodland Hills, supra, 23 Cal.3d at p. 935; see also id. at p. 939 [“the
Legislature did not intend to authorize an award of attorney fees in every case involving a
statutory violation”].) It is the duty of the trial court, exercising “its traditional equitable
discretion . . . [to] realistically assess the litigation and determine, from a practical
perspective, 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.” (Id. at p. 938.)
The type of “important rights” that may be the subject of litigation in which private
attorney general fees may be awarded include “racial discrimination, the rights of mental
patients, legislative reapportionment and . . . environmental protection.” (Id. at p. 936,
fns. omitted.) A plaintiff may seek attorney fees under section 1021.5 in successfully
prosecuting a claim under the Unfair Competition Law, Business and Professions Code
7
section 17200 et seq. (Yanting Zhang v. Superior Court (2013) 57 Cal. 4th 364, 371, fn.
4.)
The “benefit” required under the second criterion for an attorney fee recovery is
not specifically defined under section 1021.5. But “the explicit terms of the statute
provide that the ‘significant benefit’ conferred by the litigation may be either ‘pecuniary
or nonpecuniary’ in nature; thus, the fact that the chief benefits afforded by an action
have no readily ascertainable economic or monetary value in no way forecloses an
attorney fee award under the statute.” (Woodland Hills, supra, 23 Cal.3d at p. 939.) The
trial court is required to determine the significance of the benefit as well as the size of the
group favorably impacted by making “a realistic assessment, in light of all the
circumstances, of the gains which have resulted in a particular case. [Citation.]” (Id. at
pp. 939-940.)
As to the “necessity” element in the third criterion, “[t]he ‘necessity’ of private
enforcement ‘ “ ‘ “looks to the adequacy of public enforcement and seeks economic
equalization in cases where private enforcement is necessary.” ’ [Citations.]” ’
[Citation.]” (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215, quoting Lyons v.
Chinese Hosp. Assn. (2006) 136 Cal. App. 4th 1331, 1348 (Lyons).) Where the litigation
proceeds against the only agency that would bear the responsibility of complying with the
constitutional or statutory right being asserted, necessity of private enforcement is
manifest. (Woodland Hills, supra, 23 Cal.3d at p. 941; see also Samantha C., supra,
207 Cal.App.4th at p. 81 [necessity of private enforcement clear where action was
directed against two agencies responsible for enforcement of statute].) But an award of
attorney fees under section 1021.5 is not proper “when the public rights in question were
adequately vindicated by governmental action. [Citation.]” (Conservatorship of Whitley,
at p. 1215.) As further explained by the California Supreme Court, “the ‘necessity . . . of
private enforcement’ has long been understood to mean simply that public enforcement is
not available, or not sufficiently available. [Citation.]” (Id. at p. 1217.) Thus, necessity
8
is shown where public enforcement of the right affecting the public interest in the case “is
inadequate. [Citation.]” (Collins v. City of Los Angeles (2012) 205 Cal. App. 4th 140, 154
(Collins).) A court exercising its “equitable discretion concerning attorney fees, . . .
properly considers all circumstances bearing on the question of whether private
enforcement was necessary, including whether the party seeking attorney fees attempted
to resolve the matter before resorting to litigation.” (Vasquez v. State of California
(2008) 45 Cal. 4th 243, 247-248 (Vasquez).)
The fourth criterion of a section 1021.5 award—that “the . . . financial burden of
private enforcement, . . . make[s] the award appropriate” (§ 1021.5, subd. (b))—requires
that “ ‘the cost of the claimant’s legal victory transcends his personal interest, that is, . . .
the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion
to his individual stake in the matter.” [Citation.]’ ” (Woodland Hills, supra, 23 Cal.3d at
p. 941.) In other words, “[s]ection 1021.5 was not designed as a method for rewarding
litigants motivated by their own pecuniary interests who only coincidentally protect the
public interest.” (Beach Colony II v. Cal. Coastal Commission (1985) 166 Cal. App. 3d
106, 114 (Beach Colony II); see also Roybal v. Governing Bd. of Salinas City Elementary
School Dist. (2008) 159 Cal. App. 4th 1143, 1151 [fees under section 1021.5 not
appropriate “ ‘if the enforcement of the public interest is merely “coincidental to the
attainment of . . . personal goals” or is “self serving” ’ ”].)
Generally, an order granting or denying attorney fees under section 1021.5 is
reviewed for abuse of discretion. (Baggett v. Gates (1982) 32 Cal. 3d 128, 142-143.)
Although this standard is deferential, a court abuses its discretion “where no reasonable
basis for the action is shown. [Citation.]” (Westside Community for Independent Living,
Inc. v. Obledo (1983) 33 Cal. 3d 348, 355.) Determination of the proper amount of the
award under section 1021.5 is within the trial court’s discretion, but the ultimate award
“must still bear some reasonable relationship to the lodestar figure and to the purpose of
the private attorney general doctrine.” (Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311,
9
324.) Since attorney fee awards are generally reviewed for abuse of discretion, the award
will be upheld unless “ ‘there is no substantial evidence to support the trial court’s
findings or when there has been a miscarriage of justice. If the trial court has made no
findings, the reviewing court will infer all findings necessary to support the judgment and
then examine the record to see if the findings are based on substantial evidence.’ ” (Frei
v. Davey (2004) 124 Cal. App. 4th 1506, 1512 (Frei), quoting Finney v. Gomez (2003) 111
Cal. App. 4th 527, 545.)
The California Supreme Court has clarified that in some instances review of a fee
award under section 1021.5 is de novo: “ ‘On review of an award of attorney fees after
trial, the normal standard of review is abuse of discretion. However, de novo review of
such a trial court order is warranted where the determination of whether the criteria for an
award of attorney fees and costs in this context have been satisfied amounts to statutory
construction and a question of law.’ ” (Connerly v. State Personnel Bd. (2006)
37 Cal. 4th 1169, 1175; accord, Serrano v. Stefan Merli Plastering Co., Inc. (2011)
52 Cal. 4th 1018, 1025-1026.)
II. The Court Erred in Granting Bui’s Motion for Attorney Fees
A. The Motion for Attorney Fees
1. Bui’s Motion
Bui’s motion for attorney fees included seven supporting declarations: the
declarations of Bui, four of Bui’s attorneys, and two attorney experts. Bui sought “to
have his counsel compensated for all work related to obtaining the injunction.” He
claimed a total of $257,807 of attorney fees actually incurred. In addition to this lodestar
amount, he requested that the court apply a multiplier of two in determining the fee
award.
Bui argued in his motion that the posttrial injunction conferred a significant
benefit upon the public. He asserted that the “action exonerated the substantial policy” of
Business and Professions Code section 17500 to prohibit false and misleading
10
advertising. He also contended that “Defendants’ misleading advertisements directly
threatened the public by enabling the unlicensed practice of dentistry.” And he argued:
“The unlicensed practice of dentistry not only threatens the substantial community
targeted by the advertisements (the Vietnamese population of the Bay Area is over
150,000 people), but also, the many people who are indirectly harmed when both the
economics and reasonably expected outcomes of responsible practices are undercut by
irresponsible promises.”
As to the necessity of private enforcement, Bui argued that “[i]t is extremely
difficult to interest a public enforcement agency in claims such as Mr. Bui’s.” He
contended that the financial burden of the case greatly exceeded its estimated value.
Because Bui had no economic losses and the existing medical records contradicted his
testimony, Bui argued that any anticipated financial recovery “seemed extremely
limited.” He asserted that “[a]gainst the slim prospect of financial recovery, Mr. Bui’s
counsel could expect to devote hundreds of hours to the case and substantial costs.” Bui
argued that, in fact, he was required to bring two separate cases against the various
parties he claimed were responsible for his losses, and those two cases were consolidated.
In addition to the attorney fees incurred, he had to engage both a handwriting expert to
prove the dental records “had been adulterated” and a dentistry expert to opine that the
treatment plan proposed by Nguyen was inappropriate.
Bui acknowledged that he did not prevail on all of his claims. But he argued there
should be no proration of fees because he prevailed on the intentional misrepresentation
claim, and because the related claims were “inextricably linked” to the claim upon which
he prevailed. In his view, this justified an award of the full amount of fees incurred. He
also asserted that a multiplier of 2.0 times the lodestar was appropriate in view of the
complexity of the case, the fact that the dental records contradicted his testimony, the
insubstantial nature of his economic damages, and the unlikelihood of settlement of the
case.
11
2. Dental Clinic’s Opposition
Dental Clinic opposed the motion for section 1021.5 attorney fees. The opposition
consisted of a memorandum of points and authorities and declarations from Nguyen, as
well as Dental Clinic’s former counsel and eight people who were acquainted with
Nguyen (seven of whom had been dental patients at Hi-Tech).
Dental Clinic argued the “case was nothing more than a private and isolated
personal injury claim to potentially recover a 3 million dollar award.” It asserted that
Bui’s motion should be denied because (1) Bui’s sole motivation for the suit was to
advance his private personal injury claim and there was nothing in the complaint
indicating that he was bringing the action to promote the public interest; (2) there was no
significant benefit conferred upon the public, because “[t]he benefits of the injunction
[were] narrow in nature and corrective in application . . . [and the injunction was] a
precautionary measure to the extent that there [was] any confusion as to [Nguyen’s] role
in the dental office”; (3) Bui did not show that “public enforcement was . . . unavailable
or that public agencies have vigorously denied enforcement throughout the almost
20 years [Dental Clinic had been in] business”; (4) Bui was “only motivated by
substantial financial incentive”; and (5) “the resources expended and fees incurred in
prosecuting [the] case were reasonable and proportional in relation to the potential and
expected 3 million dollar recovery [that Bui’s counsel had requested during the jury
trial].” Dental Clinic argued further that Bui’s lawsuit was motivated by a “personal
vendetta” of one of his attorneys, whose husband had previously and unsuccessfully sued
Nguyen and Hi-Tech. In the event any fees were awarded, Dental Clinic contended the
amount should be significantly discounted “to allow for only those fees expended on the
facts supporting the claim of intentional misrepresentation.”
3. Bui’s Reply
Bui submitted a reply to the opposition that consisted of a memorandum of points
and authorities and four declarations. He reiterated his position that the permanent
12
injunction resulted in a significant benefit by providing “protection of dental patients’
physical health from the unlawful practice of dentistry in the Vietnamese community.”
Bui also reasserted that the financial burden of private enforcement made an attorney fee
award appropriate because his “case was not financially viable,” submitting a new
declaration from an attorney specializing in dental malpractice who formed that opinion
after reviewing the case.
4. The Court’s Order
After hearing argument and submitting the case, the court granted Bui’s motion.
The court found that a significant public benefit resulted from enjoining further violations
of Business and Professions Code sections 17200 and 17500: “Those code provisions are
designed to prevent misleading and untrue advertising aimed at the general public. This
seems particularly true given that the advertising in this case was pointedly aimed at the
first-generation Vietnamese immigrant community.” The court also found that private
enforcement was necessary, and that “in the interest of justice[,] the attorneys’ fees
[incurred by Bui] should not be paid out of the recovery” from his successful trial and
jury verdict. And while the court acknowledged that information between the two
consolidated lawsuits overlapped, it concluded the lawsuits had different goals such that
the attorney fees claimed in the motion should be apportioned between the two suits.
Accordingly, it concluded that attorney fees of $126,974.13 would be awarded in the case
against Dental Clinic. In so doing, it rejected Bui’s request to apply a multiplier in
making the award.
B. Necessity of Private Enforcement Finding Is Unsupported
As noted, one of the elements required in seeking an award of attorney fees under
section 1021.5 is the “necessity . . . of private enforcement.” (§ 1021.5, subd. (b);
Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215.) Dental Clinic argues the
attorney fee award cannot stand because there was no evidence to support the court’s
finding that this element had been satisfied. It contends this finding was based on the
13
erroneous “conclusion that there were actual complaints filed [with] public agencies
against [Dental Clinic] that were ignored,” when there was no evidence presented of any
such complaints.
In its order awarding attorney fees, the court specifically found: “There was
evidence presented of various unsuccessful efforts to involve the dental regulatory
authorities. There had apparently been prior complaints filed, all of which had resulted in
no action being taken or insufficient evidence being adduced to allow action to be taken.”
We find, however, that the record does not support this conclusion, even if we credit all
inferences that may be reasonably drawn from the evidence favoring the trial court’s
decision. (See In re Marriage of Taschen (2005) 134 Cal. App. 4th 681, 691.)
The evidence relied on by Bui in his motion and reply papers in support of the
necessity of private enforcement element were the declarations of Scott Maurer and
William Kennedy. Maurer, an associate clinical law professor at Santa Clara University
School of Law, opined that based upon his 16-year legal career, “low-income, non-
English speaking consumers are extremely hesitant to file complaints with police or
public agencies.” He opined that, based upon his familiarity with the allegations in the
case, “it is extremely unlikely that any public entity would have sought or obtained the
injunction [that] was obtained in this case.” (Original italics.) Kennedy, a consumer
protection attorney, opined: “In my experience, instances of fraudulent conduct such as
was exhibited by Hi-Tech Dental are rarely challenged in court, particularly when the
offending conduct is directed towards immigrant communities.”
Neither declaration offers any support for the court’s factual finding that there had
been “ . . . various unsuccessful efforts to involve the dental regulatory authorities” or
that “[t]here had apparently been prior complaints filed, all of which had resulted in no
action being taken or insufficient evidence being adduced to allow action to be taken.”
Instead, the declarations contain only conclusory assertions that the fraudulent conduct
allegedly perpetrated upon Bui is the type of conduct rarely challenged in court,
14
particularly by low-income, non-English speaking members of the immigrant
community. And while Maurer’s declaration contains the opinion that it was very
unlikely that any public entity would have sought or obtained an injunction in the kind of
case presented by Bui, neither declarant provided specific information about attempts of
any kind to involve governmental entities in seeking injunctive relief against Dental
Clinic for the type of conduct allegedly perpetrated upon Bui or upon any other member
of the public.
Two of the declarations submitted to the trial court along with Bui’s reply papers
also touched upon the issue of enforcement. Paul Nathan, an attorney who has handled a
number of dental malpractice cases, stated that “the risk to patients of misleading
advertising is grave and is rarely the subject of enforcement actions.” Richard Kinsel,
Bui’s dental expert at trial, opined that Bui’s case was “an example of the inadequate
enforcement efforts of the California Dental Board towards advertising by non-dentists.”6
Neither declaration provided any factual support for the court’s conclusion that there had
been efforts to involve governmental entities to enforce false advertising and unfair
business practice claims asserted by Bui (or others) against Dental Clinic. We conclude
there is no support in the record for the court’s specific factual finding that there had been
prior unsuccessful efforts to obtain public enforcement by dental regulatory authorities.
This conclusion notwithstanding, we must still determine whether the court
properly made an implied finding that Bui established the necessity of private
enforcement. (See Mejia v. City of Los Angeles (2007) 156 Cal. App. 4th 151, 157 (Mejia)
[implied findings that plaintiff was “successful party and that this proceeding has
6
In his reply memorandum, Bui did not reference either Nathan’s or Kinsel’s
declarations to support his position that private enforcement was necessary. On appeal,
Bui refers to Kinsel’s declaration (as well as Maurer’s declaration)—but not to the
Kennedy or Nathan declarations—to argue that this element of a claim under section
1021.5 was satisfied.
15
vindicated an important public right and conferred a significant benefit on the general
public or a large class of persons”].) We conduct this analysis even though Dental Clinic
asserts that, to the extent the court failed to make express findings concerning any of the
requisite elements for an attorney fee claim under section 1021.5, the trial court’s order
must be reversed. Case authority does not support Dental Clinic’s position. (See, e.g.,
Mejia, supra, 156 Cal.App.4th at p. 157; Ciani v. San Diego Trust & Savings Bank
(1994) 25 Cal. App. 4th 563, 577 & fn. 13 [finding substantial evidence supporting
implied finding of lack of causation]; Citizens Against Rent Control v. City of Berkeley
(1986) 181 Cal. App. 3d 213, 234 [court impliedly found against defendant’s position that
fees should be adjusted downward due to lack of novelty or complexity of issues];
County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal. App. 3d 848, 867 [no
express finding requested or required on issue of whether litigation benefited large class
of persons or the general public].)
In assessing whether the necessity of private enforcement criterion is satisfied, the
court “ ‘ “ ‘ “looks to the adequacy of public enforcement and seeks economic
equalization in cases where private enforcement is necessary.” ’ [Citations.]” ’
[Citation.]” (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215.) The criterion is
met if “public enforcement is not available, or not sufficiently available. [Citation.]” (Id.
at p. 1217.) Thus, for example, the necessity of private enforcement was established in
environmental litigation in which it was established that “no public agency was willing or
able to contest the [California Coastal] Commission’s decision.” (Beach Colony II,
supra, 166 Cal.App.3d at p. 112.) Similarly, in a validation proceeding by a municipality
to declare the validity of a special tax assessment, the court held that the necessity of
private enforcement had been shown by the defendant challenging the legality of the
assessment because there was “no public attorney general available to litigate the issue.”
(City of Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1299.)
16
This court affirmed an award of attorney fees under section 1021.5 in an action in
which the plaintiffs sought declaratory and injunctive relief concerning a controversy
over whether a developer was required to pay prevailing wage rates to workers on a
construction project. (Monterey/Santa Cruz etc. v. Cypress Marina Heights LP (2011)
191 Cal. App. 4th 1500.) In that case, this court concluded, among other things, that the
evidence supported the trial court’s finding that “[the] plaintiffs enforcement action was
necessary because no public agency was willing to pursue this litigation.” (Id. at p. 1523;
see also Robinson v. City of Chowchilla (2011) 202 Cal. App. 4th 382, 401 [because no
government action was being taken to vindicate plaintiff’s rights, and the agency subject
to the statute under which plaintiff was asserting rights had denied responsibility, private
enforcement was plaintiff’s “only realistic way to enforce his [statutory] rights”].)
When a court “looks to the adequacy of public enforcement” (Conservatorship of
Whitley, supra, 50 Cal.4th at p. 1215, internal quotations omitted), it must consider
whether the evidence shows that public enforcement is inadequate. The declarations
submitted on behalf of Bui in support of his assertion of the necessity of private
enforcement are nonspecific and conclusory. (Cf. Toigo v. Town of Ross (1998) 70
Cal. App. 4th 309, 328-329 [summary judgment proper where evidence to support futility
exception to general requirement that agency’s development decision cannot be
challenged until final consisted of “unsupported conclusions and opinions”]; Bollengier
v. Doctors Medical Center (1990) 222 Cal. App. 3d 1115, 1130 [physician’s mandamus
petition challenging disciplinary action of medical center properly denied; petitioner
produced no “solid objective evidence” that exhaustion of administrative remedies would
have been futile].) There is, for instance, no evidence (1) Bui made any inquiry to any
governmental agency in an effort to address Dental Clinic’s alleged false advertising or
unfair business practices; (2) Bui or anybody else made any attempts to involve
governmental agencies in remedying Dental Clinic’s business practices; (3) the California
Dental Board routinely turns a blind eye to complaints about the unlicensed practice of
17
dentistry; or (4) the California Attorney General routinely ignores citizens’ complaints
concerning false advertising and unfair business practices. The declarations submitted,
therefore, amount to implied general statements, without evidentiary support, that public
enforcement of laws against false advertising and unfair business practices was
unavailable because it would have been futile to ask any governmental agency to pursue
the matter against Dental Clinic. This is not evidence that “public enforcement of the
‘important right affecting the public interest’ (§ 1021.5) at issue is inadequate.
[Citation.]” (Collins, supra, 205 Cal.App.4th at p. 154.)
Quoting from a treatise authored by Richard M. Pearl, Bui argues: “There is no
requirement that a party attempt to obtain public enforcement before filing a lawsuit for
which fees will be sought; the private enforcement requirement limits fees only when
private enforcement is demonstrably unnecessary. [Citation.]” (1 Pearl, Cal. Attorney
Fee Awards (Cont.Ed.Bar 3d ed. 2014) § 3.62, pp. 3-59 to 3-60.)7 In support of this
statement, Professor Pearl cites Committee to Defend Reproductive Rights v. A Free
Pregnancy Center (1991) 229 Cal. App. 3d 633 (Committee to Defend). In that case, the
plaintiffs sought injunctive relief against a reproductive counseling center for alleged
7
Bui also includes in this argument a purported quote from Lyons, supra,
136 Cal.App.4th at p. 1349 to the same effect. But the quotation does not appear in
Lyons. Nor does it appear in any published California decision. In any event, Lyons is
inapposite. There, the appellate court reversed an order denying attorney fees because,
among other reasons, the trial court had erred in finding that the necessity of private
enforcement was “ ‘questionable’ ” (id. at p. 1348) where there was a parallel prosecution
of the defendants that achieved the same result obtained by the private litigant. (Id. at
pp. 1348-1351.) In Lyons, the plaintiff “repeatedly sought to involve public authorities in
prosecution of the defendants . . .[, and there was] no reason to believe that there would
have been any prosecution without plaintiffs’ efforts. Not only did plaintiffs’ initiate the
action that resulted in the district attorney becoming involved nearly a year after plaintiffs
had first sought the district attorney’s assistance, but they also shared with the district
attorney the voluminous information they had obtained during a lengthy discovery
process in [their] civil action.” (Id. at p. 1349.) Lyons is factually distinguishable and
does not support Bui’s position that he established a necessity of private enforcement.
18
false advertising and unfair business practices. (Id. at p. 635.) A parallel action was filed
by the San Francisco District Attorney’s Office four months later, and the deputy district
attorney handling that case gave credit to the private plaintiffs’ attorneys for prompting
the litigation brought on behalf of the People. (Id. at p. 636.) The trial court rejected the
plaintiffs’ motion for private attorney general fees, in part, because the plaintiffs did not
contact the district attorney before bringing suit and, therefore, the private suit was “
‘unnecessary.’ ” (Id. at p. 640.) But the appellate court reversed, concluding: “[T]he
necessity of appellants’ private pursuit of the present action is not foreclosed merely
because they failed to obtain the approval of the district attorney before or after they filed
the same, or solely on the basis of whether a subsequent similar action was filed by the
People.” (Id. at p. 641, fn. omitted, italics added.) The court remanded the case for
further consideration by the trial court, concluding the trial court had construed the
necessity of private enforcement criterion too narrowly. (Id. at pp. 645-646.)8
We agree with Professor Pearl and with the court in Committee to Defend that the
failure to seek public enforcement does not necessarily preclude a private litigant’s
subsequent request for attorney fees under section 1021.5. But, contrary to Bui’s
suggestion, Committee to Defend did not hold that it is not relevant for the court to
consider a private litigant’s presuit efforts to contact governmental authorities concerning
public enforcement before filing a lawsuit. Although inquiry into such presuit contacts
may not be as germane when the defendant is a public agency that is itself responsible for
8
A significant legal issue resolved by the appellate court in Committee to
Defend—a circumstance not presented here—was whether the fact that a government
entity had brought a separate action, one in which the private plaintiffs provided
significant cooperation, barred the plaintiffs from recovering section 1021.5 attorney
fees, irrespective of the significance of the plaintiffs’ contribution in achieving the
ultimate successful outcome of the litigation. The court concluded that such
circumstance did not automatically bar the plaintiffs’ recovery of attorney fees, and that
the trial court had therefore misinterpreted the necessity of private enforcement element
of section 1021.5. (Committee to Defend, supra, 229 Cal.App.3d at pp. 641-645.)
19
enforcing the law being challenged (see Woodland Hills, supra, 23 Cal.3d at p. 941), it is
a relevant factor where, as here, a private litigant sues another private litigant for a matter
that, on its face, is a suit for damages to redress a personal wrong. Whether a private
litigant sought public enforcement to remedy alleged wrongful conduct before filing suit
is not dispositive on the question of whether the private litigant may obtain attorney fees
under section 1021.5. But it is relevant to determining whether private enforcement was
necessary: A court in exercising its “equitable discretion . . . properly considers all
circumstances bearing on the question of whether private enforcement was necessary.”
(Vasquez, supra, 45 Cal.4th at pp. 247-248.)9
Bui asserted at oral argument (and in his brief) that under Graham v.
DaimlerChrysler Corp. (2004) 34 Cal. 4th 553 (Graham), the necessity of private
enforcement prong is not a required element to be established by the party moving for
section 1021.5 fees, but “can be presumed by the enforcement of important consumer
protection statutes.” Graham involved legal issues concerning section 1021.5 attorney
fee awards not relevant to this case. The major issues decided by the California Supreme
Court there were whether (1) under the “catalyst theory” (where attorney fees may be
awarded even when litigation does not result in a judicial resolution if the defendant
substantially changes its behavior because of, and in the manner sought by, the litigation),
9
The second part of the above quoted sentence from Professor Pearl’s treatise—
that “the private enforcement requirement limits fees only when private enforcement is
demonstrably unnecessary” (1 Pearl, Cal. Attorney Fee Awards, supra, § 3.62, pp. 3-59
to 3-60, italics added)—is not supported by the law. To the extent the author suggests
there is a low threshold that the attorney fee claimant must meet to satisfy this criterion—
or, more to the extreme, that it is the opponent’s burden to demonstrate that “private
enforcement is demonstrably unnecessary”—we disagree. The applicant bears the
burden of establishing each criterion required for an attorney fee award under section
1021.5, including the necessity of private enforcement (Ebbetts, supra, 187 Cal.App.4th
at p. 381), and the court must “consider[] all circumstances bearing on the question of
whether private enforcement was necessary.” (Vasquez, supra, 45 Cal.4th at p. 248.)
20
the plaintiff’s lawsuit must have had some merit and the plaintiff must have made a
reasonable attempt at presuit settlement; (2) the trial court abused its discretion in
concluding that the lawsuit substantially benefited a large group of people or the general
public; and (3) a plaintiff in a lodestar case is precluded from having its lodestar fees
enhanced. (Graham, supra, 34 Cal.4th at pp. 560-561.) There is nothing in Graham that
supports Bui’s sweeping statement that the necessity of private enforcement can be
presumed by the enforcement of consumer protection statutes. More importantly, such a
presumption would be contrary to the established principle that the moving party bears
the burden of establishing each element of a motion for attorney fees under section
1021.5. (See Ebbetts, supra, 187 Cal.App.4th at p. 381.) Bui’s position that he is entitled
to such a presumption is without merit.
Lastly, Bui argues that Dental Clinic failed to present an adequate record for this
court’s review of the attorney fee order. It is the appellant’s burden to produce a record
that demonstrates claimed error; failure to present such a record mandates that the
claimed error be resolved against appellant. (Maria P. v. Riles (1987) 43 Cal. 3d 1281,
1295-1296 [appellants’ failure to procure adequate record of attorney fee proceedings
mandated that their challenge be resolved against them].)
Dental Clinic here did not furnish a record of the trial proceedings, an omission
about which we have commented above. (See fn. 4, ante.) Were this appeal a challenge
to the reasonableness of the amount of fees awarded, this failure would be fatal to such a
challenge. (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal. App. 4th 440,
447-448 [affirming award of attorney fees under Government Code § 12965, where
entitlement to fees not challenged and “the record provided by defendant is inadequate to
conclude the trial court abused its discretion in determining the fee was reasonable”].)
But this appeal concerns whether Bui was entitled to private attorney general fees, and
Dental Clinic specifically challenges the absence of evidence supporting the element of
the necessity of private enforcement. As to that question, the appellate record provided is
21
adequate, because the court’s conclusion on the issue was based upon what was presented
in the moving, opposition, and reply papers concerning the motion for attorney fees.10
There is no indication that either the court’s express findings that there had been prior
governmental complaints about Dental Clinic that had not been acted upon, or its implied
finding that public enforcement was inadequate, was based upon matters outside the
record of the attorney fee motion. We therefore reject Bui’s contention that the appellate
record is inadequate to resolve this question.
C. Conclusion
In the context of reviewing a trial court’s decision whether to award private
attorney general fees under section 1021.5, the California Supreme Court has explained: “
‘[D]iscretion may not be exercised whimsically and, accordingly, reversal is appropriate
“where no reasonable basis for the action is shown.” [Citation.]’ [Citations.]” (Baggett
v. Gates, supra, 32 Cal.3d at p. 143.) Here, there was no reasonable basis for the court’s
finding that Bui was entitled to private attorney general fees under section 1021.5. Bui
was required to meet his burden of establishing each of the four criteria essential to a
claim for section 1021.5 fees. (Ebbetts, supra, 187 Cal.App.4th at p. 381.) There was no
substantial evidence presented from which the court could have reasonably concluded
that the third criterion—necessity of private enforcement—had been met. (See Frei,
supra, 124 Cal.App.4th at p. 1512 [abuse of discretion in attorney fee award will be
found where no substantial evidence supports court’s express or implied findings
10
We express no view as to whether the appellate record is adequate to decide
whether the trial court erred in finding that the other elements of a claim under section
1021.5 were satisfied, i.e., (1) whether Bui’s obtaining injunctive relief conferred a
significant benefit upon the general public or a large group of persons, and (2) whether
the burden of private enforcement outweighed Bui’s personal stake in the case.
22
necessary for its decision].)11 The court therefore abused its discretion in awarding Bui
private attorney general fees under section 1021.5.
DISPOSITION
The order awarding attorney fees pursuant to section 1021.5 is reversed.
11
Because we hold that the court abused its discretion in finding that Bui had
satisfied his burden of showing the necessity of private enforcement, we need not address
Dental Clinic’s remaining arguments that the court erred because of an absence of
evidence supporting the other criteria of an attorney fee award under section 1021.5.
(Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 845, fn. 5.)
23
Márquez, J.
WE CONCUR:
Rushing, P.J.
Premo, J.
Trial Court: Santa Clara County Superior Court
Superior Court No.: 1-10-CV-161914
Trial Judge: The Honorable
Franklin Bondonno
Attorneys for Plaintiff and Respondent Dumont Law Offices
Vien T. Bui: Mary T. Dumont
Attorneys for Defendants and Appellants Jaurigue Law Group
Trang Kim Nguyen et al.: Michael J. Jaurigue
Nam H. Le
Christine M. Pham
Abigail Ameri Zelenski