Travis v. Brand

IN THE SUPREME COURT OF
CALIFORNIA
ARNETTE TRAVIS et al.,
Plaintiffs and Appellants,
v.
BILL BRAND et al.,
Defendants and Respondents;
REDONDO BEACH WATERFRONT, LLC, et al.,
Appellants.
ARNETTE TRAVIS et al.,
Plaintiffs and Appellants,
v.
BILL BRAND et al.,
Defendants and Respondents.
S268480
Second Appellate District, Division Eight
B298104, B301479
Los Angeles County Superior Court
BC665330
January 30, 2023
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Cantil-Sakauye* concurred.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
TRAVIS v. BRAND
S268480
Opinion of the Court by Guerrero, C. J.
Several defendants were sued for their alleged failure to
make certain required disclosures under the Political Reform
Act of 1974 (Gov. Code, § 81000 et seq.).1 After prevailing in the
lawsuit, defendants successfully sought attorney’s fees under
section 91003, subdivision (a) (section 91003(a)), which grants
trial courts discretion to award attorney’s fees “to a plaintiff or
defendant who prevails.”2 The question we address here is
whether a trial court’s discretion to award fees to a prevailing
defendant is coextensive with its discretion to award fees to a
prevailing plaintiff. The text of the statute does not specify the
standard that should govern an award of fees to either
prevailing party. Nonetheless, in order to effectuate the purpose
of encouraging private litigation enforcing the Political Reform
Act, we interpret section 91003(a) to impose an asymmetrical
standard, which constrains the trial court’s discretion to award
attorney’s fees to a prevailing defendant. Consistent with the
1
All further statutory references are to the Government
Code unless otherwise specified.
2
The statute applies to actions “for injunctive relief to
enjoin violations or compel compliance with” the act.
(§ 91003(a).) Section 91012, also part of the Political Reform Act
and discussed later in this opinion, contains similar language to
section 91003(a) as it relates to awardable attorney’s fees (see
fn. 5, post) if the plaintiff or defendant “prevails in any action
authorized by this title.”
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Opinion of the Court by Guerrero, C. J.
standard adopted in similar contexts, including the enforcement
of civil rights and fair housing and employment laws, a
prevailing defendant under the Political Reform Act “should not
be awarded fees and costs unless the court finds the action was
objectively without foundation when brought, or the plaintiff
continued to litigate after it clearly became so.” (Williams v.
Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115
(Williams).) Because the Court of Appeal affirmed an award of
attorney’s fees under section 91003(a) in this case without first
considering whether this standard had been met, we reverse the
judgment and remand for further proceedings.
I.
In 2010, residents of the City of Redondo Beach (City)
approved Measure G, which authorized 400,000 square feet of
new development in the City’s King Harbor-Pier area. The City
sought out a private developer to assist with the project and
ultimately entered into an exclusive negotiating agreement with
CenterCal Properties, LLC. (Redondo Beach Waterfront, LLC v.
City of Redondo Beach (2020) 51 Cal.App.5th 982, 988 (Redondo
Beach Waterfront).) In 2016, the project passed several
milestones: the City notified CenterCal Properties that its
application seeking approval of the vesting tentative tract map
was “ ‘deemed complete’ ”; the harbor commission certified the
environmental impact report and approved both a coastal
development permit and a conditional use permit; and the city
council passed a resolution reciting its approval “ ‘shall confer a
vested right to proceed with development.’ ” (Id. at pp. 988–
989.) The City and CenterCal Properties signed an agreement
for lease of property and infrastructure financing the following
year. (Id. at p. 989.)
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Opinion of the Court by Guerrero, C. J.
Meanwhile, some City residents who opposed the
development started soliciting signatures to place a local
initiative — the King Harbor Coastal Access, Revitalization,
and Enhancement Act (later designated Measure C) — on the
ballot for the next general municipal election. Measure C sought
to place zoning restrictions on the highly contested $400 million
waterfront project. Measure C appeared on the March 7, 2017,
ballot, and was approved by the voters. (Redondo Beach
Waterfront, supra, 51 Cal.App.5th at p. 990.)
These events triggered various lawsuits, but we are
concerned here only with one: an action seeking injunctive relief
against certain Measure C supporters to compel their
compliance with the Political Reform Act. The lawsuit was filed
by two City residents who opposed Measure C and supported the
development project, Arnette Travis and Chris Voisey
(collectively, plaintiffs). Plaintiffs alleged that some supporters
of Measure C had violated and continued to violate the Political
Reform Act by failing to disclose the actual identity of entities
who were supporting the ballot measure. These supporters
included Rescue Our Waterfront, a political action committee
(PAC), and Wayne Craig, a principal officer of the committee;
Redondo Beach Mayor Bill Brand and City Councilmember Nils
Nehrenheim; and Brand’s mayoral campaign committee as well
as its treasurer, Linda Moffat (collectively, defendants).
According to the complaint, the Rescue Our Waterfront PAC
was a committee “ ‘primarily formed’ ” to support Measure C
and was therefore required to disclose this information to the
public. (Travis v. Brand (2021) 62 Cal.App.5th 240, 246
(Travis); see Gov. Code, § 84107; Cal. Code Regs., tit. 2,
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Opinion of the Court by Guerrero, C. J.
§ 18247.5.)3 The complaint further alleged that the Rescue Our
Waterfront PAC was controlled by candidates Brand and
Nehrenheim, which likewise should have been disclosed to the
public. (Travis, at p. 247; see Cal. Code Regs., tit. 2, § 18521.5.)
Failure to disclose this information, plaintiffs argued, had the
effect of deceiving voters. (Travis, at p. 247.)
Following a five-day bench trial, the trial court ruled in
defendants’ favor on all claims. It determined that the Rescue
Our Waterfront PAC was a general purpose committee
(§ 82027.5) — and therefore not primarily formed to support
Measure C — and that neither Brand nor Nehrenheim exerted
significant control or influence over it. (Travis, supra,
62 Cal.App.5th at pp. 248, 252–253.) The court awarded
defendants costs and attorney’s fees as prevailing parties under
section 91003(a) in the amount of $896,896.60. (Travis, at
p. 253.) In addition to declaring that defendants were the
prevailing parties in the action, the trial court found plaintiffs’
lawsuit “was frivolous, unreasonable and groundless.” The trial
court reasoned that plaintiffs “prosecuted their private
enforcement action in order to punish the [d]efendants for their
3
As summarized by the Court of Appeal: “General purpose
committees support or oppose more than one candidate or ballot
measure. (Gov. Code, § 82027.5.) Primarily formed committees
support or oppose a single candidate, single measure, multiple
candidates in a single election, or multiple measures in a single
election. (Id., § 82047.5.) A committee can be either general
purpose or primarily formed. Either type of committee may also
be candidate-controlled, which means a candidate has
significant influence over the committee. (Id., § 82016.)”
(Travis, supra, 62 Cal.App.5th at p. 246.) “Committees
primarily formed to support or oppose a measure must say so in
their name, for example, ‘No on Measure A.’ ” (Id. at pp. 246–
247.)
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Opinion of the Court by Guerrero, C. J.
free speech and their public support to guard against the
[development] project.”
As relevant here, the Court of Appeal affirmed the trial
court’s award of attorney’s fees to defendants. (Travis, supra,
62 Cal.App.5th at p. 265.) The court held that section 91003(a)
grants trial courts discretion to award attorney’s fees and costs
“ ‘to a plaintiff or defendant who prevails,’ ” such that both
“prevailing plaintiffs and prevailing defendants are to be treated
alike” in determining their entitlement to a fee award. (Id. at
pp. 263, 264.) Because defendants were “unquestionably” the
prevailing parties in this litigation, the Court of Appeal
concluded that the trial court acted within its discretion to
award them attorney’s fees (id. at p. 264), irrespective of any
finding that the lawsuit was frivolous.
In construing the attorney’s fees statute to define a single
standard that applies equally to both prevailing plaintiffs and
defendants, the Court of Appeal rejected two decisions — People
v. Roger Hedgecock for Mayor Com. (1986) 183 Cal.App.3d 810(Hedgecock) and Community Cause v. Boatwright (1987)
195 Cal.App.3d 562 (Boatwright) — which held that a
prevailing defendant seeking attorney’s fees under the Political
Reform Act had to establish that the plaintiff’s claims were
frivolous, unreasonable, or without foundation. (Hedgecock, at
p. 815; Boatwright, at p. 574.)4
4
Those decisions in turn were based on the reasoning of
Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412(Christiansburg), which involved attorney’s fee awards under
title VII of the Civil Rights Act of 1964 (Pub.L. No. 88-352(July 2, 1964) 78 Stat. 241). We discuss these decisions further,
post.
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Opinion of the Court by Guerrero, C. J.
We granted review to resolve the conflict and to determine
whether an asymmetrical standard applies to a prevailing
defendant’s request for attorney’s fees under the Political
Reform Act.
II.
California follows the American rule regarding attorney’s
fees. Under that rule, litigants are ordinarily responsible for
paying their own attorney’s fees, unless a statute or agreement
provides otherwise. (Essex Ins. Co. v. Five Star Dye House, Inc.
(2006) 38 Cal.4th 1252, 1257; Code Civ. Proc., § 1021.) The
statutory exception at issue in this case is set forth in
Government Code section 91003(a). It currently states, in
pertinent part: “Any person residing in the jurisdiction may sue
for injunctive relief to enjoin violations or to compel compliance
with the provisions of this title. . . . The court may award to a
plaintiff or defendant who prevails that party’s costs of
litigation, including reasonable attorney’s fees.” (Ibid.)
The parties agree that this statute gives the trial court
discretion to decide whether to award attorney’s fees in cases
arising under the Political Reform Act. They disagree, however,
about the legal framework governing that discretion.
Defendants, echoing the Court of Appeal, argue that prevailing
plaintiffs and defendants “are to be treated the same” in
determining whether to award attorney’s fees. Plaintiffs, on the
other hand, contend that a defendant’s opportunity to recover
attorney’s fees is more limited than that of a plaintiff: a
prevailing defendant may recover attorney’s fees only when the
plaintiff’s suit was “ ‘frivolous, unreasonable or without
foundation.’ ” A contrary rule, in plaintiffs’ view, would chill
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Opinion of the Court by Guerrero, C. J.
private enforcement of the Political Reform Act and thus
undermine its purpose. We agree with plaintiffs.
A.
The United States Supreme Court construed a similarly
worded fee statute as imposing an asymmetrical standard in
Christiansburg, supra, 434 U.S. 412, which affirmed the denial
of attorney’s fees to a prevailing defendant in an action under
title VII of the Civil Rights Act of 1964. The fee statute there —
like the one here — was silent on what standard to apply when
awarding attorney’s fees. The statute there provided, “ ‘In any
action or proceeding under this title the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee.’ ”
(Christiansburg, at pp. 413–414, quoting 42 U.S.C.
§ 2000e-5(k).) In analyzing what standard should govern a fee
award to a successful defendant, Christiansburg emphasized
that a private plaintiff in a title VII action “is the chosen
instrument of Congress to vindicate ‘a policy that Congress
considered of the highest priority.’ ” (Christiansburg, at p. 418.)
Christiansburg also recognized that when a court awards fees to
a prevailing plaintiff, the fee is assessed “against a violator of
federal law.” (Ibid.) These two “strong equitable considerations
counseling an attorney’s fee award to a prevailing Title VII
plaintiff . . . are wholly absent in the case of a prevailing
Title VII defendant.” (Ibid.) Indeed, to assess fees against
plaintiffs “simply because they do not finally prevail would
substantially add to the risks inhering in most litigation and
would undercut the efforts of Congress to promote the vigorous
enforcement of the provisions of Title VII. Hence, a plaintiff
should not be assessed [an] opponent’s attorney’s fees unless a
court finds that [the] claim was frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate after it
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Opinion of the Court by Guerrero, C. J.
clearly became so.” (Id. at p. 422.) The Supreme Court
cautioned courts considering these fee requests to “resist the
understandable temptation to engage in post hoc reasoning by
concluding that, because a plaintiff did not ultimately prevail,
his action must have been unreasonable or without foundation.”
(Id. at pp. 421–422, italics omitted.)
B.
Two Court of Appeal decisions subsequently applied the
Christiansburg standard to requests for attorney’s fees under
the Political Reform Act. Before discussing these opinions, we
provide a brief overview of the Political Reform Act.
“The State of California has determined that the [Political
Reform Act] is vitally important to its republican form of
government.” (Agua Caliente Band of Cahuilla Indians v.
Superior Court (2006) 40 Cal.4th 239, 260; see Thirteen
Committee v. Weinreb (1985) 168 Cal.App.3d 528, 532 (Weinreb)
[“The manifest purpose of the financial disclosure provisions of
the [Political Reform] Act is to insure a better informed
electorate and to prevent corruption of the political process”].)
In enacting the Political Reform Act by initiative, the voters
declared that “[p]revious laws regulating political practices have
suffered from inadequate enforcement by state and local
authorities.” (§ 81001, subd. (h).) The Political Reform Act
expressly states that its provisions are to be “liberally construed
to accomplish its purposes.” (§ 81003.) One of its objectives is
that “[a]dequate enforcement mechanisms should be provided to
public officials and private citizens in order that this title will
be vigorously enforced.” (§ 81002, subd. (f).) One method of
enforcement is through private actions for injunctive relief.
(§ 91003(a).)
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Opinion of the Court by Guerrero, C. J.
Both Hedgecock and Boatwright considered the purposes
and objectives of the Political Reform Act when determining
what standard to apply to attorney’s fee requests under the
statute. In Hedgecock, the district attorney filed a civil lawsuit
for injunctive relief based on various defendants’ alleged failures
to report campaign contributions made to a mayoral candidate.
(Hedgecock, supra, 183 Cal.App.3d at pp. 812–813.) The district
attorney later voluntarily dismissed the civil lawsuit, after
deciding to pursue a criminal action and allowing the Fair
Political Practices Commission to file its own civil action against
many of the same defendants. (Id. at pp. 813–815.) Contending
they were the prevailing party, defendants then sought
attorney’s fees from the trial court. (Id. at p. 814.) The trial
court agreed with the district attorney that defendants were not
the prevailing party following the voluntary dismissal, and
denied fees solely on that basis. (Ibid.) The Court of Appeal did
not address this ground for denying fees; instead, the court
denied fees on the ground that “the district attorney’s suit was
not frivolous or groundless” within the meaning of the
Christiansburg standard. (Id. at p. 815.)
The Hedgecock court justified its reliance on the
Christiansburg standard by focusing on the statutory purpose of
encouraging private enforcement of the Political Reform Act.
(Hedgecock, supra, 183 Cal.App.3d at pp. 815–819.) The
“primary purpose of the prevailing party attorneys’ fee
provisions of the Political Reform Act is to encourage private
litigation enforcing the act.” (Id. at p. 816.) But a rule allowing
the routine award of attorney’s fees to prevailing defendants in
Political Reform Act lawsuits, like a rule allowing the routine
award of fees to prevailing defendants in the civil rights actions
at issue in Christiansburg, “ ‘could discourage all but the most
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Opinion of the Court by Guerrero, C. J.
airtight claims, for seldom can a prospective plaintiff be sure of
ultimate success.’ ” (Hedgecock, at p. 817.) The Hedgecock court
found the Christiansburg analysis persuasive, stating: “ ‘No
matter how . . . meritorious one’s claim may appear at the
outset, the course of litigation is rarely predictable. Decisive
facts may not emerge until discovery or trial. The law may
change or clarify in the midst of litigation. Even when the law
or the facts appear questionable or unfavorable at the outset, a
party may have an entirely reasonable ground for bringing
suit.’ ” (Id. at p. 817.)
The Hedgecock court further held that the need to
incentivize private enforcement is particularly acute for actions
brought under the Political Reform Act. “Where the actionable
wrong is the adulteration of the political process,” the Hedgecock
court observed, “the damage to the citizenry is significant but
the injury to any one citizen is not only nebulous but also
indirect.” (Hedgecock, supra, 183 Cal.App.3d at p. 817.) “The
attorney’s fee provisions of the Political Reform Act are designed
to ameliorate the burden on the individual citizen who seeks to
remedy what is essentially a collective wrong.” (Ibid.; cf. Eddy
v. Colonial Life Ins. Co. of America (D.C. Cir. 1995) 59 F.3d 201,
205 [“the presumption favoring fee-shifting in civil rights cases
reflects the unique importance of the enforcement of these
statutes to the nation as a whole, as well as to their direct
beneficiaries”].)5
5
The Hedgecock court was interpreting section 91003(a) as
well as section 91012, a separate but similarly worded provision
of the Political Reform Act. (Hedgecock, supra, 183 Cal.App.3d
at p. 815.) Section 91012 currently provides in relevant part:
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Opinion of the Court by Guerrero, C. J.
The Boatwright court reached the same result in an action
brought by a nonprofit corporation against a state assemblyman
for alleged reporting violations under the Political Reform Act.
(Boatwright, supra, 195 Cal.App.3d at pp. 565–566.) The Court
of Appeal affirmed the judgment in favor of the defendant, but
reversed the order requiring the plaintiff to pay the defendant’s
attorney’s fees and costs. (Id. at p. 566.) The plaintiff argued
on appeal that a prevailing defendant should be awarded fees
“only if the plaintiff’s claim is frivolous, unreasonable,
malicious, or clearly groundless.” (Id. at p. 574.) The court
acknowledged that section 91012 “[o]n its face . . . contains no
such limitation,” but it concluded that Hedgecock and
Christiansburg supported the plaintiff’s interpretation of the
statute. (Boatwright, at pp. 574–575.) The court noted that
“[t]he statute at issue in Christiansburg was similar to [the
Political Reform Act] in that it contained no limitation on a
prevailing defendant’s right to fees,” but the United States
Supreme Court nonetheless “rejected an argument that the
plain meaning of the statute entitled a prevailing defendant to
fees on the same basis as a prevailing plaintiff.” (Id. at p. 575.)
It was persuaded by Christiansburg’s conclusion that an
asymmetrical fee standard was necessary to encourage private
enforcement actions, and by Hedgecock’s application of this
standard to the Political Reform Act, where encouraging such
claims was “ ‘perhaps even more critical’ ” to “ ‘remedy what is
essentially a collective wrong.’ ” (Boatwright, at p. 575, quoting
Hedgecock, supra, 183 Cal.App.3d at p. 817.)
“The court may award to a plaintiff or defendant other than an
agency, who prevails in any action authorized by this title, that
party’s costs of litigation, including reasonable attorney’s fees.”
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Opinion of the Court by Guerrero, C. J.
C.
The Court of Appeal below expressly disagreed with
Hedgecock and Boatwright. (See Travis, supra, 62 Cal.App.5th
at p. 264.) It believed the high court had “considerably limited”
the scope of the Christiansburg standard in Fogerty v. Fantasy,
Inc. (1994) 510 U.S. 517 (Fogerty). (Travis, at p. 264.) Based on
its view that the fee provision here resembled the one in Fogerty
more than the one in Christiansburg, the Court of Appeal
concluded “prevailing plaintiffs and prevailing defendants are to
be treated alike” under the Political Reform Act. (Travis, at
p. 264.) We conclude the Court of Appeal’s reliance on Fogerty
was misplaced.
Fogerty involved a prevailing defendant in the distinct
context of a private copyright dispute. The fee statute at issue
in Fogerty resembled the one here, insofar as it did not expressly
articulate any particular standard to inform a court’s discretion
in awarding attorney’s fees to a prevailing party, as well as the
fee statute at issue in Christiansburg. (See Fogerty, supra,510 U.S. at p. 519, quoting the Copyright Act of 1976, 17 U.S.C.
§ 505 [“in any copyright infringement action ‘the court
may . . . award a reasonable attorney’s fee to the prevailing
party’ ”].) To determine what standard should apply, the high
court again examined “[t]he goals and objectives” of the
governing statutory scheme. (Fogerty, at p. 524.) It concluded
that the goals and objectives of the Copyright Act differed from
those underlying the Civil Rights Act of 1964 and thus
warranted applying a different standard for awarding attorney’s
fees to prevailing defendants. (Fogerty, at pp. 524–527.)
First, “in the civil rights context, impecunious ‘private
attorney general’ plaintiffs can ill afford to litigate their claims
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against defendants with more resources,” so Congress sought “to
provide incentives for the bringing of meritorious lawsuits[] by
treating successful plaintiffs more favorably than successful
defendants in terms of the award of attorney’s fees.” (Fogerty,
supra, 510 U.S. at p. 524.) Litigants in copyright actions, on the
other hand, “ ‘can run the gamut from corporate behemoths to
starving artists.’ ” (Ibid.) And “it is by no means always the
case that the plaintiff in an infringement action is the only
holder of a copyright; often times, defendants hold copyrights
too.” (Id. at p. 526.)
Second, “the policies served by the Copyright Act are more
complex, more measured, than simply maximizing the number
of meritorious suits for copyright infringement.” (Fogerty,
supra, 510 U.S. at p. 526.) The primary purpose of copyright,
after all, is not to incentivize the greatest number of copyright
infringement suits, but to offer a limited exclusive right to the
copyright holder so as “ ‘ “to promote the Progress of Science and
useful Arts.” ’ ” (Id. at p. 527, quoting U.S. Const., art. I, § 8,
cl. 8.) While copyright law grants the holder of a copyright “ ‘the
right to their original expression,’ ” it also “ ‘encourages others
to build freely upon the ideas and information conveyed by a
work.’ ” (Fogerty, at p. 527.) To achieve both of these goals, “it
is peculiarly important that the boundaries of copyright law be
demarcated as clearly as possible. . . . [A] successful defense of
a copyright infringement action may further the policies of the
Copyright Act every bit as much as a successful prosecution of
an infringement claim by the holder of a copyright.” (Ibid.,
italics added.) Accordingly, “defendants who seek to advance a
variety of meritorious copyright defenses should be encouraged
to litigate them to the same extent that plaintiffs are encouraged
to litigate meritorious claims of infringement.” (Ibid.)
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We disagree with the Court of Appeal’s conclusion that
this case is unlike Christiansburg and more like Fogerty.
(Travis, supra, 62 Cal.App.5th at p. 264.) To determine whether
“election law disputes are more like the ordinary civil litigation
setting in Fogerty” (id. at p. 264), we must examine the goals
and objectives of the Political Reform Act. (Accord, Martin v.
Franklin Capital Corp. (2005) 546 U.S. 132, 139–140 [“When
applying fee-shifting statutes, ‘we have found limits in “the
large objectives” of the relevant Act, which embrace certain
“equitable considerations” ’ ”].)
As discussed above, the voters intended for the Political
Reform Act to be robustly enforced to promote the important
public policy of transparency. (See Flannery v. California
Highway Patrol (1998) 61 Cal.App.4th 629, 642 [“the Political
Reform Act expressly encourages enforcement by private citizen
suits”]; Weinreb, supra, 168 Cal.App.3d at p. 538 [the act is
“dependent upon private litigation as a means of enforcement”].)
As the ballot pamphlet explained about the Political Reform Act,
“Proposition 9 will establish standards which give citizens a
basis for the faith and trust which must lie at the heart of our
political process,” undergirded “at last” by “full, fair and
independent enforcement of the law.” (Ballot Pamp., Primary
Elec. (June 4, 1974) rebuttal to argument against Prop. 9, p. 37.)
The policies and objectives of the Political Reform Act are
not analogous to the Copyright Act in the context of attorney’s
fee awards. The Copyright Act “serves the purpose of enriching
the general public through access to creative works” and to that
end seeks to ensure that “the boundaries of copyright law [are]
demarcated as clearly as possible.” (Fogerty, supra, 510 U.S. at
p. 527.) The statute achieves its objectives “by striking a
balance between two subsidiary aims: encouraging and
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Opinion of the Court by Guerrero, C. J.
rewarding authors’ creations while also enabling others to build
on that work.” (Kirtsaeng v. John Wiley & Sons, Inc. (2016)
579 U.S. 197, 204, citing Fogerty, at p. 526.) “That is
why . . . Fogerty insisted on treating prevailing plaintiffs and
prevailing defendants alike — because the one could ‘further the
policies of the Copyright Act every bit as much as’ the other.”
(Kirtsaeng, at p. 204, quoting Fogerty, at p. 527.) We see no
similar need to strike a balance between conflicting aims under
the Political Reform Act. Maximizing the number of meritorious
suits through the Political Reform Act’s private enforcement
mechanism is of primary importance. Encouraging such claims
is the best way to further the act’s objective of ensuring that
“[a]dequate enforcement mechanisms . . . be provided to public
officials and private citizens.” (§ 81002, subd. (f); see also id.,
subd. (a) [finding that “[r]eceipts and expenditures in election
campaigns should be fully and truthfully disclosed in order that
the voters may be fully informed and improper practices may be
inhibited”].) A rule allowing defendants to recover their
attorney’s fees whenever they prevail would discourage a large
number of plaintiffs who may have colorable claims but “ ‘who
dare not risk the financial ruin caused by an award of attorney
fees if they ultimately do not succeed.’ ” (Williams, supra,
61 Cal.4th at p. 103.)
Although the Court of Appeal correctly recognized the
difficulty in generalizing about the relative resources available
to plaintiffs and defendants in Political Reform Act litigation
(Travis, supra, 62 Cal.App.5th at p. 264 [noting the resources
available to either side could “ ‘ “run the gamut” ’ ”]), we do not
believe this is a reason to reject the approach outlined in
Christiansburg. Even if some plaintiffs may have sufficient
resources to pursue their claims, that fact does not undermine
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Opinion of the Court by Guerrero, C. J.
our conclusion that the statutory scheme here, which depends
on an individual acting as a private attorney general to enforce
a law for a public benefit, is more like the antidiscrimination
laws at issue in Christiansburg (and those laws discussed post)
than the copyright scheme at issue in Fogerty. Indeed, a rule
subjecting unsuccessful plaintiffs to substantial financial risk in
Political Reform Act cases, where the plaintiff often will have
suffered no particularized harm, would discourage all but a few
from seeking to enforce laws vital to ensuring transparency in
the political process. We therefore cannot say that the factors
justifying the Christiansburg rule are “absent” here. (Fogerty,
supra, 510 U.S. at p. 523.)
The Court of Appeal’s ruling below does not accurately
capture the distinct interests of plaintiffs under the two
statutory schemes, either. While the typical plaintiff in a
copyright suit will generally be pursuing that plaintiff’s own
interests, the typical plaintiff under the Political Reform Act
represents broader interests. As the Hedgecock court aptly
recognized, the award of attorney’s fees under the Political
Reform Act is “designed to ameliorate the burden on the
individual citizen who seeks to remedy what is essentially a
collective wrong.” (Hedgecock, supra, 183 Cal.App.3d at p. 817.)
A defendant’s interests under the Copyright Act are also
distinguishable from a defendant’s interests under the Political
Reform Act. The high court emphasized that the successful
defense of a copyright action “may further the policies of the
Copyright Act every bit as much” as the successful prosecution
of an infringement claim. (Fogerty, supra, 510 U.S. at p. 527.)
A successful defense of an action under the Political Reform Act,
by contrast, merely confirms that the action lacks merit. As
plaintiffs note, whereas a nonprevailing defendant in a Political
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Reform Act lawsuit has violated the law and the public policy
underlying the statutory scheme, a nonprevailing plaintiff is
“guilty only of bringing an unsuccessful suit.” There is no
overriding equitable reason to award fees to a prevailing
defendant in a Political Reform Act action unless the lawsuit
“was objectively without foundation when brought, or the
plaintiff continued to litigate after it clearly became so.”
(Williams, supra, 61 Cal.4th at p. 115.)6
This court interpreted yet another similarly worded fee
statute as articulating an asymmetrical standard in Williams,
supra, 61 Cal.4th 97. The statute at issue in that case, a
provision of the California Fair Employment and Housing Act
(§ 12900 et seq.; FEHA), provided that “ ‘the court, in its
discretion, may award to the prevailing party . . . reasonable
attorney’s fees and costs . . . .’ ” (Williams, at p. 101.)7 Williams
recognized that the Legislature in enacting the FEHA fee
provision, like Congress in enacting the similar title VII
provision discussed in Christiansburg, had “sought ‘to
encourage persons injured by discrimination to seek judicial
6
Defendants contend plaintiffs in this case are pursuing
their own self-interest rather than seeking to protect the public.
We express no opinion on the merits of this factual claim, and
we are not persuaded that this claim should alter how we
interpret section 91003(a). Even when a plaintiff does have a
distinct stake in the Political Reform Act enforcement action, a
prevailing defendant’s interests can be protected by an award of
fees if the action is determined to be frivolous.
7
Our opinion in Williams cited to former section 12965,
subdivision (b). (Williams, supra, 61 Cal.4th at p. 101.)
Effective January 1, 2022, the Legislature renumbered former
subdivision (b) of section 12965 as current subdivision (c)(6).
(Stats. 2021, ch. 278, § 7; see Stats. 2022, ch. 420, § 25.) The
language of this subdivision was left unaltered.
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TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
relief.’ ” (Williams, at p. 112, quoting Assem. Off. of Research,
3d reading analysis of Assem. Bill No. 1915 (1977–1978 Reg.
Sess.) as amended Jan. 18, 1978, p. 1.) This policy, we went on
to observe, would be “frustrated if attorney fee awards were
routinely made to prevailing defendants.” (Williams, at p. 112;
see id. at pp. 113–114.) To promote the legislative goal of
private enforcement, we found it “inescapable” that the
Legislature intended a trial court’s discretion in awarding fees
to a prevailing defendant in FEHA cases “to be bounded by the
Christiansburg rule, or something very close to it.” (Williams,
at p. 112.) Although the FEHA statute “did not ‘distinguish
between awards to FEHA plaintiffs and to FEHA defendants,’
we concluded on the basis of legislative history and public policy
that ‘the Legislature intended trial courts to use the
asymmetrical standard of Christiansburg . . . as to both fees and
costs.’ ” (Pollock v. Tri-Modal Distribution Services, Inc. (2021)
11 Cal.5th 918, 949 (Pollock), quoting Williams, at p. 109.)
Applying the Christiansburg standard, and restating it without
substantive revision, we held that “an unsuccessful FEHA
plaintiff should not be ordered to pay the defendant’s fees or
costs unless the plaintiff brought or continued litigating the
action without an objective basis for believing it had potential
merit.” (Williams, at pp. 99–100; id. at p. 115 [“A prevailing
defendant . . . should not be awarded fees and costs unless the
court finds the action was objectively without foundation when
brought, or the plaintiff continued to litigate after it clearly
became so”].) Thus, both the United States Supreme Court and
this court have adopted the same asymmetrical fee-shifting
standard for certain attorney’s fee awards in similar contexts
involving enforcement of important public rights.
18
TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
In light of the foregoing authorities, defendants’ insistence
that the Political Reform Act’s fee statute “says what it means
and means what it says” rings hollow. The United States
Supreme Court rejected this plain meaning argument as applied
to a similarly worded attorney’s fees statute. The high court
reasoned that the statutory language “does not even invite, let
alone require” the “mechanical construction” that prevailing
plaintiffs and defendants are entitled to fee awards on the same
basis. (Christiansburg, supra, 434 U.S. at p. 418.)
Christiansburg counsels that simply because a statute affords
discretion to award attorney’s fees to the prevailing party does
not mean that discretion must be exercised in the same way for
plaintiffs and defendants. (See ibid. [statute granting discretion
to award fees to the prevailing party “provide[s] no indication
whatever of the circumstances under which either a plaintiff or
a defendant should be entitled to attorney’s fees”].) We apply
the same analysis here to section 91003(a) and reject a
mechanical construction that awards fees to a prevailing
defendant “ ‘on the same basis as a prevailing plaintiff.’ ”
(Christiansburg, at p. 418.) Identifying the appropriate
standard to guide the trial court’s discretion depends instead on
a construction of the statutory text in conjunction with the
purpose underlying the governing statutory scheme. (See id. at
pp. 418–419; Fogerty, supra, 510 U.S. at p. 527; accord,
Williams, supra, 61 Cal.4th at pp. 103, 113–114.) Federal case
law provides persuasive support for our conclusion that “even a
neutrally-worded fee statute does not necessarily have an
identical application to every prevailing party. Rather, when
the statute establishes a flexible standard, a consideration of
policy and [legislative] intent must guide the determination of
the circumstances under which a particular party, or class of
19
TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
parties (such as plaintiffs or defendants), is entitled to fees.”
(Dorn’s Transp. v. Teamsters Pension Trust Fund (3d Cir. 1986)
799 F.2d 45, 49.)
We also find it significant that our application of the
Christiansburg standard in Political Reform Act cases is
consistent with the standard used for numerous public laws
designed to be enforced by individuals acting as private
attorneys general and in other similar contexts. (See, e.g.,
Browder v. City of Moab (10th Cir. 2005) 427 F.3d 717, 723
[applying the Christiansburg standard to a claim for attorney’s
fees by a defendant prevailing on claims under the Clean Water
Act (Federal Water Pollution Control Act) and the Resource
Conservation and Recovery Act]; Lane v. Residential Funding
Corp. (9th Cir. 2003) 323 F.3d 739, 748 [applying the
Christiansburg standard to an action under the Real Estate
Settlement Procedures Act]; Bercovitch v. Baldwin School,
Inc. (1st Cir. 1999) 191 F.3d 8, 10–11 [applying the
Christiansburg standard to attorney’s fees awarded to a
prevailing defendant under the Americans with Disabilities
Act]; Marbled Murrelet v. Babbitt (9th Cir. 1999) 182 F.3d 1091,
1095 [applying the Christiansburg standard to a defendant’s
claim for fees under the Endangered Species Act because that
act and the Civil Rights Act of 1964 “have a common purpose”];
Com’rs Court of Medina Cy., Tex. v. U.S. (D.C. Cir. 1982)
683 F.2d 435, 439 [declaring that the Christiansburg standard
generally applies to fee awards under the Voting Rights Act,
except “where the procedural posture of a particular case
renders the general rule inapplicable”]; Consol. Edison Co. v.
Realty Investment Assoc. (S.D.N.Y. 1981) 524 F.Supp. 150, 153
[“Congress’ design of encouraging citizen suits [under the Clean
Air Act] would be substantially frustrated were [the statute]
20
TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
read to permit prevailing defendants to recover attorneys’ fees
with the same relative ease that successful plaintiffs enjoy”];
accord, Arcese v. Daniel Schmitt & Co. (Mo.Ct.App. 2016)
504 S.W.3d 772, 789 [applying the Christiansburg standard to
actions under the Missouri Merchandising Practices Act, a
consumer protection statute].) In those contexts, as here,
plaintiffs would be discouraged from bringing colorable claims
to enforce laws for the benefit of the public if they faced the
prospect of paying a defendant’s attorney’s fees whenever their
suit ultimately proved unsuccessful. (See generally Weinreb,
supra, 168 Cal.App.3d at p. 538 [“These decisions provide an
impressive array of authority in aid of interpretation of a
political reform enactment which is similarly dependent upon
private litigation as a means of enforcement”].)
We are mindful of the financial burden that an action
under the Political Reform Act can impose on some defendants,
who are themselves participants in the political process. But
the expense of defending against a lawsuit that has objective
merit under the Political Reform Act, even when the lawsuit is
ultimately unsuccessful, is fairly characterized “as a cost of
political participation.” (Hedgecock, supra, 183 Cal.App.3d at
p. 818.) California’s campaign disclosure laws, after all, were
enacted to “give citizens a basis for the faith and trust which
must lie at the heart of our political process.” (Ballot Pamp.,
Primary Elec., supra, rebuttal to argument against Prop. 9,
p. 37.) Faith, trust, and transparency are vital aspects of self-
government, and measures to promote these values serve
compelling interests. Given the number of state and local
campaigns and the multiplicity of PACs, the voters were aware
as early as 1974 that meaningful compliance with these
disclosure laws depended on private enforcement actions. We
21
TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
agree with Hedgecock that “the need to avoid discouraging
enforcement of the act must be deemed paramount. . . . While
we understand the financial burden a suit such as this can
impose, in view of the fundamental need to enforce high
standards of political ethics we do not believe it unfair to treat
the price of defending against a reasonably grounded but
ultimately unsuccessful allegation as a ‘cost of doing business’
in politics which is appropriately borne by the political
participant.” (Hedgecock, at pp. 818–819.) Moreover, as
previously noted (see fn. 6, ante), a prevailing defendant is not
entirely without recourse. When a trial court determines that
an action was objectively without foundation, the prevailing
defendant may still recover attorney’s fees. (See Williams,
supra, 61 Cal.4th at p. 115.)
In sum, we conclude the Christiansburg standard applies
to discretionary awards of both attorney’s fees and costs to
prevailing defendants under the Political Reform Act. The
statute at issue here is not comparable to the one discussed in
Fogerty. Instead, we conclude applying an asymmetrical
standard to fee awards under the Political Reform Act is
consistent with the principles outlined by our high court in
Christiansburg. To reiterate, under the asymmetrical standard,
a prevailing defendant “should not be awarded fees and costs
unless the court finds the action was objectively without
foundation when brought, or the plaintiff continued to litigate
after it clearly became so.” (Williams, supra, 61 Cal.4th at
p. 115; accord, Christiansburg, supra, 434 U.S. at p. 421
[prevailing defendants may recover only when “the plaintiff’s
22
TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith”].)8
III.
The trial court awarded defendants attorney’s fees under
both Government Code section 91003(a) as well as Code of Civil
Procedure section 1021.5. The Court of Appeal upheld the
award under Government Code section 91003(a) (Travis, supra,
62 Cal.App.5th at p. 263) but never considered whether
plaintiffs objectively brought their suit without foundation or
continued to prosecute it after it clearly became so. (See
Williams, supra, 61 Cal.4th at p. 115.) Nor did the Court of
Appeal consider the award’s validity under Code of Civil
Procedure section 1021.5.
Whether defendants have demonstrated that plaintiffs’
lawsuit was objectively groundless — or whether the fee award
could instead be upheld under Code of Civil Procedure section
1021.5 — is a matter for the Court of Appeal to determine in the
first instance. We express no view on the merits of awarding
attorney’s fees under either statute. We reverse the judgment
of the Court of Appeal and remand for further proceedings
consistent with this opinion. (See Pollock, supra, 11 Cal.5th at
pp. 929, 951.)
8
We perceive no material difference between the standard
set forth in Williams, supra, 61 Cal.4th at p. 115 and the
standard in Christiansburg, supra, 434 U.S. at p. 422. Although
they use slightly different phrasing, they are functionally
equivalent and embody a single standard which we apply here.
23
TRAVIS v. BRAND
Opinion of the Court by Guerrero, C. J.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
24
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Travis v. Brand
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 62 Cal.App.5th 240Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S268480
Date Filed: January 30, 2023
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Malcolm H. Mackey
__________________________________________________________
Counsel:
The Sutton Law Firm, Bradley W. Hertz, James R. Sutton, Nicholas L.
Sanders; Shumener, Odson & Oh, Betty M. Shumener, John D.
Spurling and Daniel E. French for Plaintiffs and Appellants.
Carlson & Messer and Jeanne L. Zimmer for Defendant and
Respondent Nils Nehrenheim.
Gabriel & Associates and Stevan Colin for Defendants and
Respondents Bill Brand, Brand for Mayor 2017 and Linda Moffat.
Law Offices of Bobak Nayebdadash and Bobak Nayebdadash for
Defendants and Respondents Wayne Craig and Rescue Our
Waterfront, P.A.C.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Betty M. Shumener
550 South Hope Street, Suite 1050
Los Angeles, CA 90071
(213) 344-4201
Jeanne L. Zimmer
5901 West Century Boulevard #1200
Los Angeles, CA 90045
(310) 265-2699
Stevan Colin
1709 Haynes Lane
Redondo Beach, CA 90278
(310) 379-8655