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As the justices of the California Supreme Court sprayed out questions in two major attorney fee cases Wednesday, it was apparent that there was plenty of passion on the main issue — and plenty of disagreement. A breakdown of 4-3 could easily be the result when the ruling finally comes down, with Justice Ming Chin leading one side and Justice Joyce Kennard on the other. Who will win remains the question. The much-watched cases involve the state’s private attorney general statute, which allows successful parties to seek fees if their suits act as a catalyst in producing changes beneficial to the public. The U.S. Supreme Court abolished the so-called “catalyst theory” from federal law three years ago, saying that a prevailing party cannot recover fees if the disputes are resolved without need for a judicial order. Defendants in the two cases on Wednesday urged the California Supreme Court to follow suit. The cases were appealed by one private and one public defendant that have been hit with big attorney fees in cases brought under California Code of Civil Procedure � 1021.5. In Graham v. DaimlerChrysler Corp., S112862, Los Angeles County Superior Court Commissioner Bruce Mitchell hit the automaker with more than $760,000 in fees in 1999 after finding that it hadn’t responded to complaints about the towing capacity of its Dakota R/T truck brand until a class action was filed by three owners. In Tipton-Whittingham v. City of Los Angeles, S112943, U.S. District Judge Terry Hatter Jr. slapped L.A. with almost $2 million in fees in 2001 after finding that the plaintiffs’ suit had prompted the city to respond to sexual discrimination claims by female employees of the police department. But in both cases the trial court jurists issued no orders demanding change and dismissed the suits as moot after the defendants addressed the problems. And in both cases the defendants claimed they had resolved the problems voluntarily, not because of the plaintiffs’ suits, and therefore no fees should have been awarded. Chin seemed the most enthusiastic about following the U.S. Supreme Court’s precedent in Buckhannon Board & Care Home Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598. He pointed out several times that the plaintiffs won no favorable judicial ruling in either of the cases before the court on Wednesday. Justice Marvin Baxter gave indications that he sided with Chin. Justice Janice Rogers Brown, who said nothing during the arguments, often joins both in matters involving corporate or governmental issues. Kennard seemed to argue a more centrist position. The catalyst theory accomplishes a noble purpose, she noted, and ensures that lawyers get rewarded for taking cases that benefit the public interest. But she also cited the occasional suit that abuses the process with a less-than-meritorious claim. She questioned lawyers from both sides in both cases about whether the court should restrict fees to cases in which the trial court judge finds that the litigation indeed caused the change, the case had merit, and the plaintiffs had made other attempts to resolve the dispute before resorting to a suit. Kennard’s suggestions closely tracked those recommended by state Attorney General Bill Lockyer in amicus curiae briefs filed on behalf of the plaintiffs in both cases. Meanwhile, Chief Justice Ronald George and Justice Carlos Moreno questioned whether the court should defer to the federal judge and state court commissioner who presided over the cases at the trial level and supported awarding the fees. George also hammered Beth Orellana, who represented the city of Los Angeles, asking her if she really believed that the city would have addressed the discrimination allegations if a suit had not been filed. Orellana, an associate at L.A.’s Bergman & Dacey, responded that a number of factors led to the final consent decree. “But,” George continued, “didn’t [the city] choose to voluntarily sit down and spend hours and hours and hours working out an agreement” that the plaintiffs had wanted all along? “Are you saying that everything could have turned out the same way if [the plaintiffs] hadn’t taken the position they took?” Justice Kathryn Mickle Werdegar was harder to read, but her few questions seemed friendlier to the plaintiffs. Interest in the cases was massive. In the DaimlerChrysler case, 37 amici curiae, mostly civil rights and environmental groups, sided with the plaintiffs. DaimlerChrysler had two allies — the Washington Legal Foundation and the Civil Justice Association of California. The plaintiffs’ amici curiae said a ruling favoring DaimlerChrylser could lead to fewer private attorney general suits because lawyers would fear getting no compensation for huge amounts of work. The carmaker’s allies said an adverse ruling could create extensive satellite litigation over fees and dissuade plaintiffs from accepting reasonable settlement offers. The plaintiffs in DaimlerChrysler were represented Wednesday by Berkeley, Calif., solo practitioner Richard Pearl. The plaintiffs in Tipton-Whittingham were represented by Santa Monica, Calif., solo Carol Sobel. Theodore Boutrous Jr., a partner at L.A.’s Gibson, Dunn & Crutcher, argued for DaimlerChrysler. The arguments were attended by a group of law students from Osaka, Japan, who watched the proceedings with a mix of fascination and boredom. A few notably nodded their heads while trying to stay awake.

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