The California Legislature recently passed a series of anti-gun laws that are likely unconstitutional, and in order to insulate those laws and all other California gun laws from legal challenges, the legislature passed an oppressive fee-shifting statute creating an enormous hurdle to any would-be litigant who might consider initiating a legal action.
California SB 1327, sponsored by Governor Gavin Newsom and passed in the 2022 legislative session, contains numerous anti-gun measures, including provisions which allow private individuals to sue for the allegedly illegal manufacture or sale of guns in California. The controversial bill is expressly meant as a response to “SB 8,” Texas’ abortion ban. Texas’ SB 8 creates a “bounty” scheme that allows the public to bring lawsuits against persons who participate in performing or aiding abortions, similar to California’s SB 1327 provisions allowing individuals to sue over gun manufacturing and sales. Texas’s SB 8 is widely considered to be an attempt to prevent court protection of a constitutional right (or a formerly constitutional right, to the extent abortion was constitutionally protected prior to Dobbs v. Jackson). California’s SB 1327 is likely unconstitutional for that same reason (and even more so in-so-far as the right to bear arms is an enumerated right in the constitution, whereas the ostensible constitutional protections on abortion were never expressly set forth).i
In order to insulate the dubious constitutional validity of SB 1327 – as well as all of California’s other anti-gun laws – SB 1327 contains an attorney’s-fee shifting mechanism intended to scare litigants away from court challenges. Newly enacted Code of Civil Procedure Section 1021.11 – part of SB 1327 – provides that any person who seeks declaratory relief or an injunction to prevent any person from enforcing SB 1327 or “any other type of law that restricts firearms,” will be liable to pay attorneys costs and fees to the “prevailing party.”
It is not unusual for a statute to provide for an award of attorney’s fees from the losing party to the prevailing party. It is not even necessarily unusual for a statute to allow for an attorney’s fee award to a prevailing defendant. However, most fee-shifting statutes require more scrutiny to be applied when awarding attorney’s fees to a prevailing defendant because prevailing party fee awards are generally seen as a device to provide court access to plaintiffs who otherwise would lack the resources to have their day in court. Generally, both California and federal law hold that a prevailing defendant should only be awarded attorney’s fees when a plaintiff’s claim is frivolous, unreasonable, or without foundation. See, e.g., Christiansburg Garment Co. v. EEOC (1978) 434 US 412, 420; Leek v. Cooper (2011) 194 Cal.App.4th 399, 420.
In contrast, Code of Civil Procedure Section 1021.11, stacks the deck almost entirely in favor of the defendant – who would be enforcing California gun laws – and creates a risk of ruinous liability for most people who would consider challenging the validity of a gun law in California. Code of Civil Procedure Section 1021.11 accomplishes this by redefining what a “prevailing party” is. The statute defines it as follows:
(b) For purposes of this section, a party is considered a prevailing party if a court does either of the following:
- Dismisses any claim or cause of action brought by the party seeking the declaratory or injunctive relief described by subdivision (a), regardless of the reason for the dismissal.
- Enters judgment in favor of the party opposing the declaratory or injunctive relief described by subdivision (a), on any claim or cause of action.
Code of Civil Procedure Section 1021.11(b).
In order to prevent a defendant from being deemed a “prevailing party,” a plaintiff must proceed through the entirety of a lawsuit and obtain a judgement in its favor. A defendant need not show any recovery or success on the merits of any issue to be deemed the prevailing party. If, for instance, the action is dismissed for jurisdictional reasons, or questions of standing, the defendant will be deemed a prevailing party.
This re-defining of the term “prevailing party” creates results contrary to policy and law. Federal law generally disfavors attorney’s fees granted in favor of a defendant. Both federal and state law and policy highly disfavor an award of attorney’s fees granted to a defendant where a case is dismissed for non-merits-based reasons, such as a jurisdictional defect. Hon v. Marshall (1997) 53 Cal.App.4th 470, 477 [surveying federal cases; and, denying a fee award to defendants where dismissal was based on lack of jurisdiction].
California law favors the settlement of disputes without litigation. Generally, courts consider it part of their duty to encourage compromise to reduce litigation expenses. See, e.g., Joel v. Valley Surgical Ctr., 68 Cal. App. 4th 360, 369 [“The courts are empowered to encourage settlements, thereby discouraging needless litigation and its attendant expense.”]. By discouraging any result other than a judgment and forcing a plaintiff to litigate to the bitter end, Code of Civil Procedure Section 1021.11 runs contrary to that duty and practice.
It is unclear whether a voluntary dismissal based on a settlement agreement would trigger an award of attorney’s fees to the defendant under Code of Civil Procedure Section 1021.11. But under the black letter language of the statute, a dismissal “regardless of the reason” renders the defendant a prevailing party. A defendant would be a “prevailing party” even after entering an arms-length settlement agreement. Notably, Code of Civil Procedure Section 1021.11 does not require a “prevailing” defendant to pursue its attorney’s fees through a motion in the case in which it “prevailed.” Rather, it allows a new and separate action to be filed within three years for recovery of the attorney’s fees. Thus, a plaintiff seeking an injunction or declaratory relief from California’s gun laws must do so with the expectation of proceeding all the way to a trial or other form of judgment in its favor, or else be subject to attorneys’ fees regardless of whether the defendant offers to settle.
As if that were not enough to dissuade a plaintiff from challenging California gun laws, SB 1327 and Code of Civil Procedure Section 1021.11 further discourage a potential action by adding that a plaintiff can never be deemed a “prevailing party” even if they do get a judgment in their favor. Code of Civil Procedure Section 1021.11(e). All the risk weighs against the plaintiff. The defendant is deemed a “prevailing party” unless the plaintiff gets a favorable judgment, and the plaintiff is never deemed a prevailing party, even when the plaintiff gets a favorable judgment.
The fee-shifting of Code of Civil Procedure Section 1021.11, as well as its prohibition on allowing a plaintiff to obtain an award of attorney’s fees is likely unconstitutional all by itself. Ordinarily, laws are subject to challenge in the civil courts for unconstitutionality. The First Amendment to the United States Constitution prevents the government from making laws that abridge the freedom of speech and the right to petition the government for redress of grievances. By creating a hurdle so high and forbidding any reciprocal benefit to a plaintiff challenging a California gun law, SB 1327 effectively deprives a person of the right to petition the government.
Whether a brave petitioner will be held liable to pay attorney’s fees to the State of California for merely seeking an injunction or declaratory relief against one of the many state gun laws remains to be seen.
In the 2021 United States Supreme Court 2021 decision Whole Woman’s Health v. Jackson (2021) 142 S.Ct. 522, 531, the question of whether the mechanics of SB 8 are unconstitutional was expressly not considered.