HomeMy WebLinkAboutMINUTES - 06261990 - 1.33 -033
TO: BOARD OF SUPERVISORS sE -of
Contra
FROM: y� Costa
Phil Batchelor, County Administrator 's
Z• a County
DATE: June 19, 1990 �osra ceuN _
SUBJECT: LEGISLATION: AB 3458 (Friedman)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMATION:
Indicate that the Board of Supervisors continues to OPPOSE AB
3458 by Assemblyman Friedman which would prohibit any party from
making a settlement offer which is conditioned on the plaintiffs
waiving all or substantially all attorney' s fees which may be
available pursuant to a private attorney general ' s statute.
BACKGROUND:
On June 19, 1990 the Board of Supervisors voted to oppose AB
3458. On June 6 , 1990 the bill was amended.
Existing law does not prohibit a party to an action or proceeding
from making a settlement offer conditioned on the counsel for an
opposing party waiving all or substantially all attorney' s fees
in a case in which there may be entitlement to attorney' s fees
pursuant to a private attorney general statute (defined as those
state and federal fee-shifting statutes which are designed to
encourage private enforcement of constitutional and statutory
rights and authorize the plaintiff if successful in a suit to
recover attorney' s fees from the defendant, which is often a
public agency) .
Assemblyman Friedman has introduced AB 3458 which would establish
such a prohibition. As amended June 6, 1990, AB 3458 would
CONTINUED ON ATTACHMENTYpr_YES SIGNATURE: Z //�� .
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON Junee 2 6, 1990 APPROVED AS RECOMMENDED 'y OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
J
CC: ATTESTED UN 2 6 1990
Please see Page 2. PHIL BATCHELOR,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
M382 (10/88) >
BY `� �i DEPUTY
prohibit a party to an action or proceeding in which there may be
an entitlement to attorney' s fees pursuant to a private attorney
general statute from making or presenting a settlement offer
which is conditioned on the counsel for an opposing party waiving
reasonable attorney' s fees which may be appropriate.
The bill provides that if there is a violation of this
prohibition the court may approve the settlement offer but strike
the fee waiver and order the party to pay opposing counsel' s
reasonable fees.
Before invoking the provisions of this bill, a party must take
the following steps:
1. If the defendant is a public agency, the plaintiff must give
written notice to the public agency of the complaint and the
relief that is requested. This is designed to give the
public agency an opportunity to avoid litigation. This
notice must be given at least 30 days before the plaintiff
files a complaint, unless good cause justifies a shorter
time period.
2. If a party believes that a settlement offer has been made
which violates this bill, that party has given written
notice to opposing counsel and has made an effort to confer
in good faith before bringing the request for relief to the
court.
The bill provides that it does not preclude negotiations between
parties to determine reasonable attorney' s fees, nor does it
preclude a party from making or presenting an offer of a lump sum
or structured settlement to settle all claims including
attorney' s fees. The bill also details those factors which
constitute reasonable attorney' s fees and requires the parties
and the court to consider them.
Finally, the bill provides that where the parties are unable to
negotiate a reasonable fee, either party may follow steps or
procedures which are commonly available to resolve other monetary
disputes, including requesting a settlement conference on the fee
dispute and requesting the evaluation of the settlement judge on
what would be a reasonable fee, . submitting the attorney fee
dispute to nonbinding arbitration or submitting the attorney fee
dispute to judicial determination.
County Counsel recommends that the Board of Supervisors join CSAC
and the League of California Cities in opposing AB 3458 on the
basis that it will probably discourage the settlement of disputes
to which the County is a party, encourage the filing of more
litigation and consequently be more costly to counties. If both
parties are willing to settle a dispute and a part of that
settlement involves waiving all or substantially all of the claim
for attorney' s fees, the parties should be entitled to agree to
such a settlement offer.
AB 3458 passed the Assembly Judiciary Committee May 23 , 1990 by a
vote of 7: 3 and is currently on the Third Reading File on the
Assembly Floor.
cc: Assemblyman Terry Friedman
County Administrator
County Counsel
Michael Corbett, Legislative Representative, CSAC
Les Spahnn, SRJ. Jackson, Barish & Associates