Xavier Becerra was a candidate for California’s Attorney General in November 2018. Previously he served in the U.S. House of Representatives for Los Angeles.

His career was almost cut short by a lawsuit challenging his candidacy as Attorney General.

LAWSUIT CLAIMS BECERRA INELIGIBLE TO BE ATTORNEY GENERAL

Becerra was sued by Eric P. Early seeking to remove him as a candidate for Attorney General on the November 2018 ballot. The lawsuit alleged that Becerra was ineligible for the office because his state bar status was “inactive” during the five years preceding the election and therefore he was not “admitted to practice” in the state as required for that period under Government Code section 12503. That code provides: “No person shall be eligible to the office of Attorney General unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office.”

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Those are the facts. Plain and simple.

BECERRA WINS ROUND ONE

The trial court and later the Third Appellate Court of Appeal held that the phrase “admitted to practice” in the code refers to the event of admission to the bar and the status of being admitted, and does not require engagement in the “actual” or “active” practice of law. A succinct ruling for Becerra.

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The more interesting part of this case, at least according to the Court of Appeal, was what happened next. A question the Court ruled on as a “case of first impression.”

BECERRA SUES FOR ATTORNEY’S FEES UNDER SECTION 1021.5

After winning the Eric Early lawsuit, Becerra brought a motion for attorney’s fees under Code of Civil Procedure section 1021.5. The trial court awarded him $69,718 in fees. The Court of Appeal in time reviewed that decision.

PRIVATE ATTORNEY GENERAL DOCTRINE

Section 1021.5 is a powerful code that allows an award of attorney’s fees to a successful party against an opposing party in any action which has “resulted in the enforcement of an important right affecting the public interest…”

The statute requires that a significant benefit be conferred on the general public for a large class of persons.

The so called “private attorney general doctrine” is aimed at encouraging litigants to pursue meritorious public interest litigation vindicating important rights and benefiting a broad swath of citizens. As such the code achieves this aim by compensating successful litigants with an award of attorney’s fees.

BECERRA BECOMES ATTORNEY GENERAL

The Court of Appeal ruled in Becerra’s favor notwithstanding Becerra was not actually paying attorney’s fees as his lawyers were working pro bono, for free. While a candidate for Attorney General must be “admitted to practice” it does not require them to actively be practicing law. A ruling that governs future Attorney General candidates – thus the larger benefit to the general public resulting in the award of attorney fees.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.