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Court of Appeal:
No Error in Denying Attorney Fees Based on Removal of Name From Gang Database
Opinion Says Law Allowing for Recovery in Actions of Public Interest Does Not Apply to Request for Removal Despite Finding Checklist Notice Used by Police Agency Wanting
By Kimber Cooley, associated editor
Div. Four of this district’s Court of Appeal held Friday that there was no error in denying attorney fees—under a statute providing for them to a successful party pursuing an action in the public interest—to a petitioner who successfully challenged the inclusion of his name in a law enforcement gang database, finding that the relief obtained was personal in nature.
The court was not persuaded by the fact that Los Angeles Superior Court Judge Gail Killefer determined that the checklist used by the police to notify potentially thousands of individuals of their inclusion in the database is lacking, as the relief obtained only applied to the petitioner.
At issue is Code of Civil Procedure §1021.5 which provides:
“[A] court may award attorneys’ fees to a successful party…in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit…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….”
Appealing the denial of fees was Anthony Richardson, who petitioned the court to have his name removed from a database of information on suspected gang members shared by law enforcement agencies across the state. When an individual is included in the database, known as “CalGang,” he or she might suffer adverse consequences such as negative notations on housing and employment background checks.
Penal Code §§186.34 and 186.35 allow a person the chance to contest inclusion and, if a law enforcement agency denies the challenge, to petition the court for removal.
In June 2022, the Los Angeles County Sheriff’s Department (“LASD”) notified Richardson that his name had been entered into CalGang. After he unsuccessfully contested the designation with the department, he petitioned the court for relief.
Evidentiary Rulings
Most of the trial court proceedings concerned what records the court could review. Sec. 186.35(c) provides that “[t]he evidentiary record for the court’s determination of the petition shall be limited to the agency’s statement of the basis of its designation” in its initial notice as well as “the documentation provided to the agency by the person contesting the designation.”
Based on the section, Killefer denied LASD’s attempts to introduce proof of Richardson’s gang activities beyond the initial June 2022 notice, which included only a generic checklist of reasons a person might be included in the database. Based on the letter, she found that there was insufficient evidence to justify Richardson’s inclusion in the database.
After Killefer ordered the removal of his information from CalGang, Richardson filed a motion for fees under §1021.5, arguing that LASD has a practice of initially providing nothing more than a bare checklist of possible reasons and that the trial court’s ruling on the merits of his case demonstrates that practice is invalid, suggesting that the trial court’s reasoning would apply to potentially thousands of individuals.
Killefer denied the motion, finding that Richardson had failed to demonstrate that he had enforced an important public right or that he had conferred a significant benefit on a sufficiently large group of people as contemplated by the statute.
Justice Helen Zukin authored the unpublished opinion affirming the denial. Presiding Justice Brian S. Currey and retired Presiding Justice Peter J. Siggins of the First District Court of Appeal, sitting by assignment, joined in the opinion.
Undefined Benefit
Zukin noted that case law has established that the required public benefit under §1021.5 does not need to be monetary and may derive from the implementation of significant constitutional or statutory policy. She explained that “[t]o determine the significance of the benefit and the size of the class receiving the benefit, the trial court must make a ‘realistic assessment’ of the gains achieved in the case.”
In the present case, she said:
“[T]he trial court made that assessment and concluded that the gains achieved in the case were purely personal to Richardson. He was the only person removed from the database. The case generated no binding precedent, nor did it cause or require a material alteration in the behavior of LASD. It simply utilized an existing legal process to confer an authorized remedy.”
The jurist continued:
“Richardson cites nothing in the record demonstrating that LASD has changed the practice to which he refers. In fact, LASD disputed that it had any such practice. Nor did the trial court’s order ‘invalidate’ LASD’s actions by ruling them broadly impermissible or providing a citable precedent for future cases. It made an evidentiary ruling that only the information included with the initial notice was admissible, then determined that evidence insufficient.”
She added:
“This outcome should make LASD aware that if future notices resemble the one sent to Richardson, they may not provide sufficient evidence to survive court challenges. However, the outcome of every case informs the losing party that similar behavior risks a similar result....And as LASD points out, the statute does not authorize a fee award ‘in every case involving a statutory violation.’ ”
Under these circumstances, she declared that “the trial court’s finding that Richardson’s petition conferred no significant benefit on a large class of persons is well within the bounds of reason.”
The case is Richardson v. Los Angeles County Sheriff’s Department, B333555.
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