Wright v. San Francisco Police Officers Ass'n, Not Reported in Cal.Rptr.

3d (2005)

2005 WL 995726
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
Only the Westlaw citation is currently available.
California Rules of Court, rule 8.1115, restricts
citation of unpublished opinions in California courts.
Court of Appeal, First District, Division 1, California.
Gale WRIGHT, Plaintiff and Respondent,
v.
SAN FRANCISCO POLICE OFFICERS
ASSOCIATION, Defendant and Appellant.
No. A106587. | (San Francisco County Super.
Ct. No. CGC-02-404215). | April 29, 2005.
Attorneys and Law Firms
Christopher Wolcott Katzenbach, San Francisco, CA, for
plaintiff-respondent.
Vincent A. Harrington, Weinberg, Roger & Rosenfeld,
Alameda, CA, for defendant-appellant.
Opinion
MARGULIES, J.
*1 Gale Wright successfully sued the San Francisco Police
Officers Association (POA) to prevent his removal as a
director of the POA Board of Directors (Board), and was
awarded attorney fees of $20,800 under Code of Civil
Procedure section 1021.5. The POA appeals from the order
awarding attorney fees, contending that the trial court abused
its discretion in finding that the litigation conferred a
significant public benefit. We find no abuse of discretion, and
affirm the award.

I. BACKGROUND
The POA is organized as a nonprofit mutual benefit
corporation under California law. Wright is a retired police
officer and a member of the Board. He was elected by retired
police officer members of the POA as their sole representative
on the Board. Retired members are not permitted to vote for
the POA's officers, or for the other elected directors of the
POA. The Board is composed of the four elected officers and

31 additional directors elected by designated classes of POA

members. As a director, Wright receives a monthly stipend of
$200 for his attendance at board meetings.
In 2001, the POA negotiated a Memorandum of
Understanding (MOU) with the City and County of San
Francisco (City) under which police officers who possessed
training certificates, known as POST certificates, were
to get wage increases over and above the across-the-board
increases given to other officers. As part of the proposed
MOU, the City agreed, consistent with the 1996-2001
MOU that preceded it, that the increases resulting from the
possession of POST certificates would not be passed on to
retired officers. 1 The 2001-2003 MOU also proposed to
continue in effect a poison pill provision which provided
that if any retiree obtained a court judgment that retirees were
entitled to an adjustment of their allowances as a result of the
establishment of the POST ranks, such judgment would cause
an automatic nullification of the new base pay rate (POST
pay) and reversion to the previous base pay rate.
By unanimous vote, the Board recommended that the
membership approve the proposed 2001-2003 MOU, which
they did by a vote of 1139 to 59. Retired POA members do
not vote on proposed MOU's. When the 2001-2003 MOU
was under consideration by the Labor Committee of the
City's Board of Supervisors (Labor Committee) in August
2001, a separate organization representing retired officersthe Veteran Police Officers Association (VPOA)-decided
to speak in opposition to the poison pill provisions of
the MOU. Wright and other VPOA members addressed the
committee and proposed, among other things, that these
provisions be tabled for further study. The committee rejected
this proposal, and approved the MOU in its entirety.
Following Wright's appearance before the Labor Committee,
the POA's officers sent a letter to the POA membership
describing the events at the committee hearing. The letter
asserted that Wright had acted out of gross disloyalty
to the [the POA] and should resign immediately. The
Board thereafter proceeded with charges against Wright
under the POA's bylaws, which provide a procedure for
fining, suspending, and/or expelling a member by a two-thirds
vote of the Board upon that member being charged, tried, and
found guilty of certain acts specified in article VIII, section 1
of the bylaws. These acts include (1) violating any provision
of the POA's constitution or bylaws, (2) activities tending
to bring the POA into disrepute, or (3) gross disloyalty or
misconduct.

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Wright v. San Francisco Police Officers Ass'n, Not Reported in Cal.Rptr.3d (2005)

*2 On October 17, 2001, the POA served Wright with a

statement of charges, alleging that his statements opposing
approval of the MOU by the Labor Committee and his request
to have the item tabled violated the POA's bylaws, tended
to bring the organization into disrepute, and constituted
disloyalty and misconduct. The charges, brought in the name
of Boardmember Brian Olcomendy asserted that Wright's
actions could have delayed approval of the MOU to the
detriment of the POA's membership. Olcomendy sought
Wright's removal from the Board and further requested that
he be barred from running for any POA position during the
next election.
Wright answered the charges through his attorney in
November 2001, asserting that the POA's proceedings to
remove Wright were unlawful under Corporations Code
sections 7221 through 7223. Wright's answer pointed out that
under those sections of the Corporations Code a director of a
nonprofit mutual benefit corporation who is elected by a class
of members cannot be removed from the board of directors by
a vote of the board itself, but only by a recall vote of the class
of members who elected that director, or by an action brought
in the superior court for an adjudication that the director has
been guilty of fraudulent or dishonest acts or gross abuse of
discretion.
Notwithstanding the cited Corporations Code provisions, the
Board tried Wright on the charges and found he had violated
the cited provisions of article VIII, section 1. The Board
removed him from his position as director and barred him
from running for director at the next election. Wright, who
had filed this action before the POA's hearing on the charges
against him, moved for a preliminary injunction to block
his removal as director. In July 2002, the trial court granted
Wright's motion for a preliminary injunction, finding that
Wright's removal violated Corporations Code sections 7221
through 7223.
Following the trial court's order, the Board reconvened and
reconsidered the charges. In September 2002, the Board
issued a new decision modifying the penalty imposed on
Wright to a 90-day suspension from the Board. The POA
president appointed another retired member to serve as
the retiree representative on the Board during Wright's
suspension.
On July 1, 2003, the trial court granted a writ of mandate
pursuant to Code of Civil Procedure section 1094.5 setting

aside the POA's action in suspending Wright from his position

as a director, and awarding him $600 in damages for the
three monthly stipend payments he lost during his suspension.
The trial court found that the statutory provisions governing
removal of a director also controlled the Board's power to
temporarily suspend a director. Since the Board could not
lawfully vote to remove Wright as a director, the court held
that it also could not vote to suspend him as a director.
After prevailing on the merits of his claim, Wright moved for
an award of attorney fees pursuant to Code of Civil Procedure
section 1021.5 (commonly referred to as the private attorney
general statute). 2 The POA opposed the motion on the
grounds that Wright's lawsuit did not confer a significant
benefit on a large class of persons. The trial court found
otherwise, and awarded Wright attorney fees in the amount
of $20,800. This timely appeal followed.

II. DISCUSSION
*3 The POA contends that the fee award must be reversed
because Wright's litigation did not confer any significant
benefits on the public or any large class of persons. According
to the POA, the trial court found only a technical failure by
the union to comply with the Corporations Code. The POA
maintains that, as a private labor organization, it is entitled
to speak with one voice in support of a labor contract that
its members had collectively negotiated and overwhelmingly
ratified. The POA asserts that its right to defend this important
substantive principle should outweigh the purely procedural
error that it committed in penalizing Wright, and should
defeat Wright's contention that his legal action conferred a
significant benefit.
We review an order awarding fees under Code of Civil
Procedure section 1021.5 for abuse of discretion: The trial
court has discretion to determine whether an award of section
1021.5 attorney fees is appropriate. [Citation.] A reversal of
the trial court's determination will lie only if the resultant
injury is sufficiently grave to amount to a manifest
miscarriage of justice, and no reasonable basis for
the action is shown. (Weissman v. Los Angeles County
Employees Retirement Assn. (1989) 211 Cal.App.3d 40,
46-47.) Whether the moving party has proved each of [the]
prerequisites for an award of attorney fees pursuant to section
1021.5 is best decided by the trial court, and the trial court's
judgment on this issue must not be disturbed on appeal
unless the appellate court is convinced that it is clearly

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Wright v. San Francisco Police Officers Ass'n, Not Reported in Cal.Rptr.3d (2005)

wrong and constitutes an abuse of discretion. (Family

Planning Specialists Medical Group, Inc. v. Powers (1995)
39 Cal.App.4th 1561, 1567.)

office, ... do not transcend the candidate's palpable personal

stake in the ... election. (Ibid., quoting Hammond, supra,
99 Cal.App.4th at p. 128.)

In seeking to demonstrate that there was no reasonable basis

for the trial court's action, the POA primarily relies on two
cases arising in the elections context: Hammond v. Agran
(2002) 99 Cal .App.4th 115 (Hammond ) and Bradley v.
Perrodin (2003) 106 Cal .App.4th 1153 (Bradley ). Neither
case is persuasive in the factual circumstances before this
court.

The POA equates Wright's claim for fees to that of a candidate

for public office who prevails in election litigation. Although
conceding that Wright's direct financial stake-a $200 per
month stipend-was not significant, the POA maintains that
Wright had a strong personal motivation to regain his position
as a board member, and an important reputational interest at
stake since he was disciplined for disloyalty to the union.

In Hammond, a candidate for Irvine City Council, Larry

Agran, successfully defended a lawsuit brought by a
political opponent alleging that the personal statement Agran
submitted for publication in the ballot pamphlet was false
and misleading. (Hammond, supra, 99 Cal.App.4th at p.
119.) The trial court rejected Agran's request for attorney
fees under section 1021.5 on the ground that his personal
stake in winning election was sufficient enough motivation
to pursue the litigation without an award of fees. (Id . at p.
120.) The Court of Appeal agreed in large part with the trial
court's analysis, opining that for a claimant to obtain fees
under section 1021.5, his objective in the litigation must ...
transcend ... those things that concretely, specifically and
significantly affect the litigant ... to affect the broader
world or general public as the statute puts it. (Id. at p.
127.) The appellate court found that Agran had a palpable
personal stake both in his election and in his reputation for
veracity that were directly implicated by Hammond's lawsuit.
(Id. at pp. 128-129.) The court held that Agran's personal
stake outweighed any incidental public benefit in resolving
whether his candidate statement was false or misleading and,
therefore, that he was not entitled to fees for prevailing on that
issue. (Ibid.)

We are not persuaded. Winning a significant public office,

such as mayor or city council member of a large city, brings
many tangible personal rewards. In addition to a salary
considerably larger than Wright's $200 per month stipend,
such posts offer the prestige and power associated with being
an elected official, as well as providing a unique platform
from which to seek higher office or cultivate future business
opportunities. As Wright points out, candidates for elective
public offices have voluntarily assumed the considerable
expense of seeking such offices and it is therefore reasonable
to expect them (or the campaign committees they have
formed for that purpose) to bear the full costs of the election
campaign, including litigation expenses if necessary.

*4 Bradley followed Hammond's reasoning. In Bradley, the

Court of Appeal overturned a trial court decision voiding a
candidate's election as mayor of Compton. (Bradley, supra,
106 Cal.App.4th at p. 1157.) The legal issue in dispute was
whether, under applicable Elections Code provisions, the
two candidates' names should have appeared in a different
order on the ballot. (Id. at pp. 1161-1164.) The candidate
who prevailed on appeal, and had his election as mayor
upheld, sought an award of his attorney fees under Code of
Civil Procedure section 1021.5 in the appellate court. (Id.
at p. 1165.) The court rejected the candidate's fee request.
(Ibid.) Relying on Hammond, the appellate court held that
[a]ttorney fees connected to a candidate's quest for elective

Here, Wright was not campaigning for any office. He was

seeking to prevent the Board from removing him as one of
35 directors on the board of a private labor union, a position
paying a $200 per month stipend and offering none of the
inducements of a visible, public office. The tangible benefits
of being a director could not have been Wright's primary
motivation in pursuing this litigation. Regarding Wright's
reputational interest, it is difficult to see how suing the POA
would have improved Wright's reputation with those active
members of the POA who disapproved of the public position
he took at the Labor Committee hearing, or how the discipline
he received at the Board's hands would have hurt his standing
with retired members. In fact, it appears that Wright spoke
at the Labor Committee hearing with the approval and at
the direction of the VPOA, an organization that specifically
represents retired officers. We find nothing in the record to
indicate that Wright was primarily motivated by palpable
personal benefits associated with holding on to his position
as director or proving the POA wrong in litigation. Wright's
abstract, ideological, or emotional stake in the litigation do
not disqualify him from an award of fees under Code of Civil
Procedure section 1021.5. (Hammond, supra, 99 Cal.App.4th
at pp. 125-126.)

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Wright v. San Francisco Police Officers Ass'n, Not Reported in Cal.Rptr.3d (2005)

*5 It is of course not sufficient for an award of fees under

Code of Civil Procedure section 1021.5 that the claimant's
tangible stake in the outcome of the litigation was slight
in relation to its cost. We must also determine whether the
trial court abused its discretion in finding that the litigation
involved important issues affecting the public interest, and
conferred a significant benefit on the general public or a
large class of persons. In deciding that question, the trial
court analyzed a series of state and federal cases in which
issues similar to those raised by Wright's suit were found
to implicate the public interest and, in some cases, to
support an award of attorney fees to the prevailing party.
These included the following: Braude v. Automobile Club
of Southern Cal. (1986) 178 Cal.App.3d 994, 1010-1014
[awarding section 1021.5 fees for an action enforcing fair
election procedures in a nonprofit corporation, finding such
procedures implicate important rights affecting the public
interest]; Mitchell v. Internat. Assn. of Machinists (1961) 196
Cal.App.2d 796, 799 [union's government-derived power as
exclusive bargaining agent imposes responsibilities toward
its membership and the public generally that other voluntary
organizations do not bear]; Macias v. Hartwell (1997) 55
Cal.App.4th 669 [campaign statements made during a union
election constituted a public issue]; Hall v. Cole (1973)
412 U.S. 1, 8-9 [union member suing successfully for
reinstatement after he was expelled for criticizing union
management entitled to fees; suit not only vindicated his own
rights of free speech under federal statute, but rendered a
substantial service to his union as an institution and to all of
its members]; Kinney v. International Broth. of Elec. Workers
(9th Cir.1991) 939 F.2d 690, 692-693 [following Hall v. Cole
in upholding fee award to union member in litigation over his
improper removal from elected office in union local].)
The foregoing precedents establish that litigation over
internal union governance may implicate important right[s]
affecting the public interest and may confer significant
benefit[s] ... on the general public or a large class of
persons for purposes of Code of Civil Procedure section
1021.5. Although none of the cases is precisely on all
fours with the matter before us, we cannot say that the
trial court's application of the principles established in
them to Wright's fee claim was clearly wrong or lacked
any reasonable basis. (Weissman v. Los Angeles County
Employees Retirement Assn., supra, 211 Cal.App.3d at pp.
46-47; Family Planning Specialists Medical Group, Inc. v.
Powers, supra, 39 Cal.App.4th at p. 1567.)

The provisions of the Corporations Code that Wright relied

upon are not, as the POA contends, simply procedural
technicalities. They are plainly intended to protect substantive
rights, namely, the right of each class of voting members to be
represented on the board by a director of their own choosing.
As the trial court recognized, allowing Wright's co-directors
to remove him, even temporarily, is inconsistent with the
statutory rule that the authority to remove a director rests
with those who elected him. The resulting disenfranchisement
of the retired members was not mitigated by the Board's
appointment of a replacement because the replacement
director was ultimately answerable to the directors who
appointed him, not to the retired members who had elected
Wright to represent them. The right of members to be
represented by a person who they have the exclusive power to
elect and remove cannot be brushed off as a mere technicality.
*6 Moreover, the interests vindicated by the trial court's
decision transcended those of Wright or the retired officers
who had elected him to the Board. First, a majority of active
POA members will one day be retired officers. Contentious
issues dividing the interests of retired and active officers are
likely to arise in the future. Protecting the right of currently
retired officers to choose their own director may one day
redound to the benefit of all currently active POA members
and future members. Second, allowing directors the power
to remove or suspend a codirector representing any class of
members undermines the ability of each director to faithfully
represent the interests of the members who elected him. All
POA members, active or retired, vote to elect directors who
represent their class. 3 Had the present litigation turned out
differently, each director elected to the Board would have
to be concerned with the possibility of removal by Board
vote if he aggressively advocated a position that was at
odds with the Board majority. A ruling abrogating the rights
provided by the Corporations Code would have adversely
affected all POA members by compromising the ability of
their elected directors to faithfully and vigorously represent
their interests. Finally, the pleadings filed in this case, and the
rulings obtained, are part of the public record and may assist
others in enforcing the Corporations Code provisions in issue
within other unions or non-union mutual benefit corporations.
(See Angelheart v. City of Burbank (1991) 232 Cal .App.3d
460, 471 (dis. opn. of Johnson, J.).)
Based on a realistic assessment of all of the pertinent
circumstances' (California Common Cause v. Duffy (1987)
200 Cal.App.3d 730, 745), the trial court did not abuse
its discretion in finding that the litigation implicated an

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Wright v. San Francisco Police Officers Ass'n, Not Reported in Cal.Rptr.3d (2005)

important right affecting the public interest and conferred a

significant benefit on a large class of persons.
As the trial court found, there was no serious dispute as
to whether the financial burden of the litigation was out of
proportion to Wright's individual stake in the matter. (Baggett
v. Gates (1982) 32 Cal.3d 128, 142.) The court also noted that
Wright's small financial recovery of $600 did not provide a
common fund from which to pay fees. On appeal, the POA
makes no argument that the trial court's findings as to these

makes it clear that the Board was not authorized to remove or

suspend Wright as a director, even for his perceived disloyalty
to the union. Even assuming for the sake of analysis that
this perception was correct, Wright's actions were not so
grave that they justified his unlawful removal as a director or
warrant the reversal of his fee award.
*7 The trial court did not abuse its discretion in awarding
fees to Wright under Code of Civil Procedure section 1021.5.

requirements were erroneous. 4

III. DISPOSITION
Both sides address the issue of whether the POA was
substantively justified in taking punitive action against
Wright. Wright maintains that he was punished for exercising
his free speech right to speak out in a public forum on a matter
of concern to retired officers. The POA insists that Wright
violated his obligations as a POA director by imperiling final
approval of a contract that the union had negotiated. We
need not decide between these views. The Corporations Code

The order awarding attorney fees is affirmed. We further grant

Wright's request for attorney fees on appeal, the amount to be
decided by the trial court.

We concur: MARCHIANO, P.J., and STEIN, J.

Footnotes

1
2

3
4

Under section A8.559-6 of the San Francisco City Charter, half of any pay increase given to active police officers would otherwise
have to be passed on to retired tier 1 officers, i.e., retired officers hired prior to November 2, 1976. (See Mason v. Retirement
Board (2003) 111 Cal.App.4th 1221.)
Code of Civil Procedure section 1021.5 provides in relevant part as follows: 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 ... [is] 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.
The 31 directors elected to the Board represent 17 classes of members. The nonretiree classes are comprised of POA members who
are assigned to the same station, bureau, or division of the police force.
We also note that the Board voted to remove Wright despite rather clear provisions of the Corporations Code prohibiting its intended
course of action. The POA's apparent goal here was to punish Wright by forcing him to choose between accepting his removal or
having to bear the financial burden of going to court to fight it. These circumstances also militate in favor of a fee award. One of
the premises of Code of Civil Procedure section 1021.5 is that without some mechanism authorizing a fee award, private actions that
effectuate important polices may be infeasible. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 637; see also,
Kinney v. International Broth. of Elec. Workers, supra, 939 F.2d at p. 695 [absent fee award, union officials could willfully violate
the law since their membership lacked funds to challenge such violations in court].)

End of Document

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2014 Thomson Reuters. No claim to original U.S. Government Works.