Filed 3/6/14 Cal. Portable Ride Operators v. Cal. Div. of Occupational Safety CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


CALIFORNIA PORTABLE RIDE                                             B242219
OPERATORS, LLC et al.,
                                                                     (Los Angeles County
      Plaintiffs, Respondents, and Cross-                            Super. Ct. No. BC455252)
Appellants,

         v.

CALIFORNIA DIVISION OF
OCCUPATIONAL SAFETY & HEALTH,

      Defendant, Appellant, and Cross-
Respondent.



         APPEALS from a judgment and order of the Superior Court of Los Angeles
County, Alan S. Rosenfield, Judge. Affirmed.
         Amy D. Martin, Chief Counsel, James Dexter Clark, Staff Counsel, for Defendant,
Appellant, and Cross-Respondent.
         Garrett & Jensen, Boyd F. Jensen II, for Plaintiffs, Respondents, and Cross-
appellants, California Portable Ride Operators, LLC, Ray Cammack Shows, Inc., and
Butler Amusements, Inc.
                                    INTRODUCTION
       Defendant, appellant, and cross-respondent Division of Occupational Safety and
Health (Division) appeals from a judgment in favor of plaintiffs, respondents, and cross-
appellants, California Portable Ride Operators, LLC (CalPro), Ray Cammack Shows,
Inc., and Butler Amusements, Inc. (plaintiffs) that declared invalid and unenforceable 8
CCR section 344.18 (section 344.18), a regulation purportedly authorized by Labor Code
section 7904 (section 7904) that set inspection and annual flat fees for portable
amusement rides. Plaintiffs appeal from an order denying their motion for attorney fees
pursuant to Code of Civil Procedure section 1021.5 (section 1021.5). Because section
344.18 exceeded the scope of section 7904, we affirm the judgment. We affirm the order
denying plaintiffs’ attorney fees request because their financial stake in the outcome of
their action was sufficient to justify the litigation in economic terms.


                 FACTUAL AND PROCEDURAL BACKGROUND1
       Portable amusement ride operators, known as carnivals, travel throughout the
Unites States attending county fairs, festivals, rodeos, farmers’ markets, and other
amusement venues. In 1968, the California Legislature enacted the Amusement Rides
Safety Law. (Lab. Code, § 7900.) Under the Amusement Rides Safety Law, the Division
has the authority to formulate “regulations for adoption by the Occupational Safety and
Health Standards Board for the safe installation, repair, maintenance, use, operation, and
inspection of all amusement rides as the division finds necessary for the protection of the
general public using amusement rides.” (Lab. Code, § 7902.) The Division also has the
authority to “fix and collect fees for the inspection of amusement rides that it deems
necessary to cover the actual cost of having the inspection performed by a division safety
engineer.” (§ 7904, subd. (a).)
       In 2009, the Division proposed increases to its amusement ride fee schedule to
cover the cost of its inspection program. On January 20, 2011, following a Division

1     Because we hold that section 344.18 is void on its face, we provide a brief factual
background.

                                              2
Rulemaking Hearing and issuance of a Final Statement of Reasons, the Office of
Administrative Law approved section 344.18 which increased the inspection fee for
portable amusement rides from $125 to $195 per hour and imposed an annual flat fee to
offset the Division’s travel and administrative costs based on a ride’s size or footprint and
other factors. The annual flat fee was $25 for small rides, $365 for medium rides, $740
for large rides, and $1,475 for extra-large rides.
       In February 2011, plaintiffs2 filed a complaint that asserted a cause of action for
declaratory relief that sought a declaration that section 344.18 was invalid and
unenforceable. Plaintiffs requested a preliminary injunction enjoining enforcement of
section 344.18 pending a determination of section 344.18’s validity. Ray Cammack
Shows, Inc. and Butler Amusements, Inc. also asserted a second cause of action for
damages. The trial court granted plaintiffs’ request for a preliminary injunction and
enjoined enforcement of section 344.18.
       After obtaining a preliminary injunction, plaintiffs filed a motion for summary
adjudication with respect to its cause of action for declaratory relief. In their motion,
plaintiffs argued that section 344.18 was invalid under Government Code section 11350,
subdivision (b)(1) because its implementation was not supported by substantial evidence
and it was not authorized by section 7904, subdivision (a); section 344.18 was invalid
under Government Code section 11350, subdivision (b)(2) because the evidence shows
that the regulation would have a “significant statewide adverse economic impact directly
affecting business, including the ability of California businesses to compete with
businesses in other states”; and section 344.18 was invalid under Government Code
section 11350, subdivision (a) because there were substantial failures in the Division’s
compliance with the Administrative Procedure Act (Gov. Code, §§ 11340 et seq.).


2      CalPro is a nonprofit entity or association of portable amusement ride operators.
Its 29 members “service all 78 fairs that occur annually in the state of California, and
countless other festivals and events, frequently sponsored by local governments, schools,
churches, shopping malls, and other community organizations.” Ray Cammack Shows,
Inc. and Butler Amusements, Inc. are individual portable amusement ride operators.

                                              3
       The Division moved for summary judgment. In its motion, the Division argued
that section 7904, subdivision (a) is not “self-executing” and section 344.18 is consistent
with section 7904, subdivision (a) and is reasonably necessary to effectuate that section’s
purpose. The Division also argued that substantial evidence supported its determination
that section 344.18 would not result in a statewide adverse economic impact directly
affecting business.
       The trial court simultaneously heard plaintiffs’ summary adjudication motion and
the Division’s summary judgment motion, and ruled in favor of plaintiffs. The trial court
ruled that the annual flat fee travel and administrative cost provision in section 344.18,
subdivision (b), violated section 7904, subdivision (a). The trial court stated that section
7904, subdivision (a) permitted the Division to assess fees that were necessary to cover
the actual cost of an inspection by a Division safety engineer. Subdivision (b) of section
344.18, on the other hand, permitted the Division to assess a yearly flat fee based on the
size of the ride that was inspected. The trial court reasoned that there was no relationship
between the annual flat fee and the Division’s travel and administrative costs because the
inspector’s travel and administrative costs would not vary based on the size of the ride
that was inspected—they would be the same regardless of the ride’s size. Thus, because
the annual flat fee was not directly related to the actual cost of an inspection, the
regulation violated section 7904 and was invalid on its face. Thereafter, on the request of
Ray Cammack Shows, Inc. and Butler Amusements, Inc. the trial court dismissed their
second cause of action for damages and entered judgment in favor of plaintiffs on their
cause of action for a declaration that section 344.18 is invalid and unenforceable.
       Plaintiffs moved for an award of attorney fees pursuant to section 1021.5. The
trial court denied the motion, stating, “I believe that the plaintiff does have the burden to
show that the attorney’s fees for litigation transcend the plaintiffs financial interest, and
that did not occur here. This was brought for their own financial interests, for their own
personal benefits as the ride operators to mitigate those costs. And I don’t believe there
is any real benefit for the public to justify the award of the attorney’s fees, and they’re
denied.”

                                               4
                                       DISCUSSION
I.     Section 7904, Subdivision (a) Did Not Authorize Section 344.18, Subdivision
       (b)
       The Division claims that the trial court erred by “introducing the new issue of the
fee schedule’s relationship to the amount of work the Division does,” thus expanding the
issues beyond those plaintiffs asserted in their complaint, and by requiring the Division to
“show evidence on the record that there is a relationship between the graduated nature of
the size and complexity fee [the ‘Annual Fee’] and the amount of portable inspection
work the Division does.”3 Instead, the trial court narrowly considered whether section
7904, subdivision (a) authorized section 344.18, subdivision (b); properly granted
plaintiffs’ summary adjudication motion; and properly denied the Division’s summary
judgment motion.


       A.     Standards of Review
       “In reviewing an order granting summary adjudication, ‘we apply the same
standard of review applicable on appeal from a grant of summary judgment. [Citation.]’”
(Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “We review the grant of
summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14
Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an independent assessment of the
correctness of the trial court’s ruling, applying the same legal standard as the trial court in
determining whether there are any genuine issues of material fact or whether the moving
party is entitled to judgment as a matter of law.’ (Iverson v. Muroc Unified School Dist.
(1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].)” (Moser v. Ratinoff (2003) 105
Cal.App.4th 1211, 1216.) We must consider all of the evidence and all of the inferences
reasonably drawn therefrom, and must view such evidence and such inferences in the


3      The Division also contends that other grounds that plaintiffs claim support the trial
court’s ruling are without merit. Because we hold that the trial court properly ruled that
section 7904, subdivision (a) did not authorize section 344.18, subdivision (b), we need
not address those other grounds.

                                              5
light most favorable to the party opposing summary judgment. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) Like a grant of summary adjudication, we
review issues of statutory interpretation de novo. (Barner v. Leeds (2000) 24 Cal.4th
676, 683.)


       B.     Relevant Principles
       The primary goal in construing a statute is to ascertain legislative intent so as to
effectuate the purpose of the law. (Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal.3d 1379, 1386.) “As with any statutory construction inquiry, we must look
first to the language of the statute. ‘To determine legislative intent, a court begins with
the words of the statute, because they generally provide the most reliable indicator of
legislative intent.’ (Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891
P.2d 804].) If it is clear and unambiguous our inquiry ends. There is no need for judicial
construction and a court may not indulge in it. (In re Waters of Long Valley Creek
Stream System (1979) 25 Cal.3d 339, 348 [158 Cal.Rptr. 350, 599 P.2d 656].) ‘If there is
no ambiguity in the language, we presume the Legislature meant what it said and the
plain meaning of the statute governs.’ (People v. Snook (1997) 16 Cal.4th 1210, 1215
[69 Cal.Rptr.2d 615, 947 P.2d 808].)” (Diamond Multimedia Systems, Inc. v. Superior
Court (1999) 19 Cal.4th 1036, 1047.)
       “Of all the activities undertaken by an administrative agency, quasi-legislative acts
are accorded the most deferential level of judicial scrutiny. [Citation.] ‘[A]dministrative
agencies to which the Legislature has delegated regulatory authority in particular areas
often develop a high degree of expertise in those areas and the body of law that governs
them.’ [Citation.]” (Pulaski v. Occupational Safety and Health Standards Board (1999)
75 Cal.App.4th 1315, 1331 (Pulaski).)
       “Generally, ‘“‘[I]n reviewing the legality of a regulation adopted pursuant to a
delegation of legislative power, the judicial function is limited to determining whether the
regulation (1) is “within the scope of the authority conferred” . . . and (2) is “reasonably
necessary to effectuate the purpose of the statute.” . . .’ . . . ‘These issues do not present

                                              6
a matter for the independent judgment of an appellate tribunal; rather, both come to this
court freighted with [a] strong presumption of regularity . . . .’ . . . Our inquiry
necessarily is confined to the question whether the classification is ‘arbitrary, capricious
or [without] reasonable or rational basis.’ . . .”’ [Citation.] [¶] On the other hand,
‘“Administrative regulations that alter or amend the statute or enlarge or impair its scope
are void . . . .”’ [Citation.]” (Pulaski, supra, 75 Cal.App.4th at pp. 1331-1332.)


       C.     Sections 7904 and 344.18
       Labor Code section 7904, subdivision (a) provides:
       “The division may fix and collect fees for the inspection of amusement rides that it
deems necessary to cover the actual cost of having the inspection performed by a division
safety engineer. The division may not charge for inspections performed by certified
insurance inspectors or an inspector for a public entity, but may charge a fee of not more
than ten dollars ($10) to cover the cost of processing the permit when issued by the
division as a result of the inspection. All fees collected by the division under this section
shall be deposited into the Elevator Safety Account to support the division’s portable
amusement ride inspection program.” (Italics added.)
       Section 344.18, subdivision (a)4 permits the Division to charge “Inspection Fees”
of $195 per hour for actual inspection time—i.e., “all on-site work performed in



4      Section 344.18 provides:
       “(a) Inspection Fees.
       “(1) A fee of one hundred and ninety-five dollars ($195.00) per hour shall be
charged for all on-site work performed in connection with audits, inspections,
reinspections, and investigations pertaining to portable amusement rides. The Division
shall bill an inspector’s time in quarter-hour increments, rounded up to the nearest quarter
hour.
       “(2) Fees shall be charged for actual inspection time. Actual inspection time
begins from the time a Division engineer arrives, generally by appointment, in the area
where the Division’s information indicates the inspection is to be conducted, and
continues until the engineer has completed the Division’s report and is ready to leave the
area.

                                              7
         “(3) The Division shall not bill at the hourly rate for an inspector’s travel time in
connection with routine inspections. However, if the owner or operator of a portable
amusement ride or rides, or his or her designee, fails to appear at the designated site for a
scheduled inspection, or is not ready for the inspection at the designated time, and the
Division is therefore required to reschedule the inspection, the Division may bill for the
time its inspector spends traveling to the site of the rescheduled inspection(s) at the one
hundred and ninety-five dollar ($195.00) hourly rate.
         “(b) Annual Fee. In addition to the hourly fee for inspections, reinspections and
investigations, each portable amusement ride shall pay an annual fee to offset the
Division’s travel and administrative costs. The Division shall base the amount of the
annual fee on the classification of the portable amusement ride as either ‘Class I (Small),’
‘Class II (Medium),’ ‘Class III (Large),’ or ‘Class IV (Extra Large),’ as follows:
         “(1) Small rides—Twenty-five dollars ($25.00)
         “(2) Medium rides—Three hundred and sixty-five dollars ($365.00)
         “(3) Large rides—Seven hundred and forty dollars ($740.00)
         “(4) Extra-large rides—One thousand four hundred and seventy-five dollars
($1,475.00).
         “(c) Classification of Portable Amusement Rides. For purposes of this section,
each portable amusement ride shall be classified according to the criteria set forth below.
A ride will be placed into the largest classification for which it satisfies two or more of
the evaluation criteria. However, if a portable amusement ride satisfies any single
criterion in a classification, then the ride cannot fall into a classification more than one
classification below, even if it satisfies two or more criteria in a lower classification.
         “(1) Class I (Small): A portable amusement ride shall be classified as ‘Small’ if
it:
         “(A) has a footprint of 699 square feet, or less. (For purposes of this section, a
‘ride footprint’ is the surface area, expressed in square feet, that is covered by the ride,
itself, and does not include the passenger waiting area or queuing area);
         “(B) operates at ten or fewer revolutions per minute (‘RPM’);
         “(C) is a ‘Kiddie Coaster’ (a ride designed for children age 12 or younger).
         “(2) Class II (Medium): A portable amusement ride shall be classified as
‘Medium’ if it:
         “(A) has a footprint of greater than 699 square feet and up to and including 2,000
square feet;
         “(B) is a non-elevated ride that carries its own means of propulsion while towing
one or more units (i.e., trains);
         “(C) elevates passengers up to sixty and including 60 feet off the ground.
         “(3) Class III (Large): A portable amusement ride shall be classified as ‘Large’ if
it:
         “(A) has a footprint of greater than 2,000 and up to and including 8,000 square
feet;

                                              8
connection” with portable amusement ride inspections. Subdivision (b) of section 344.18
permits the Division to collect an “Annual Fee” the purpose of which is “to offset the
Division’s travel and administrative costs.” The “Annual Fee,” a graduated flat fee based
on a ride’s size—determined by the square feet of the ride’s footprint and other factors—
is $25 for small rides, $365 for medium rides, $740 for large rides, and $1,475 for extra-
large rides. (§ 344.18, subds. (b) & (c).)


       D.     Analysis
       Section 7904, subdivision (a) authorizes the Division to “fix and collect” an
inspection fee for amusement rides. That inspection fee must be the fee that the Division
deems necessary to cover the “actual cost” of having a Division safety engineer inspect
an amusement ride. Section 344.18, subdivision (a) permits the Division to charge an
inspection fee for portable amusement rides of $195 per hour for actual inspection time.
Subdivision (b) of section 344.18 goes farther. It permits the Division to collect an
additional graduated annual flat fee to offset the Division’s travel and administrative
costs that is based on a ride’s size. The increase in fee in issue only concerns the “travel
and administrative costs” specified in subdivision (b) of section 344.18.
       Section 7904 does not expressly authorize the Division to “fix and collect” an
annual fee to offset the Division’s travel and administrative costs. Under section 7904,

       “(B) elevates passengers higher than 60 feet and up to 120 feet off the ground,
and/or travels a distance of up to and including 1,500 feet;
       “(C) consists of more than 50 units and/or has a capacity equal to, or greater than,
50 passengers;
       “(4) Class IV (Extra-Large): A portable amusement ride shall be classified as
‘Extra-Large’ if it:
       “(A) has a footprint of greater than 8,000 square feet;
       “(B) elevates passengers higher than 120 feet off the ground and/or travels a
distance of greater than 1,500 feet;
       “(C) has complex features or controls (i.e., programmable logic controllers with
safety features that interface with computer controllers or similar features or controls).
       “(d) The Division will charge no fee for an inspection performed by a certified
insurance inspector except a charge of $10.00 to cover the cost of processing the permit
to operate.”

                                              9
the Division can charge a fee for travel and administrative costs only if those costs reflect
the “actual cost” of those activities in connection with an amusement ride inspection.
The fee the Division implemented with subdivision (b) of section 344.18, however, is an
annual flat fee that is not based on the “actual cost” of a ride’s inspection but on the ride’s
size. The Division’s cost of travel illustrates this point. A ride’s size is not a factor in the
“actual cost” to travel to a site to inspect a ride. That is, the cost to travel from point A to
point B to inspect a ride does not increase if the inspector is to inspect a large ride rather
than a small ride. Accordingly, section 344.18, subdivision (b) improperly enlarges the
scope of section 7904, subdivision (a) and the trial court did not err in ruling that the
regulation is “facially invalid.” (Pulaski, supra, 75 Cal.App.4th at p. 1332.)


II.    The Trial Court Did Not Abuse Its Discretion In Denying Plaintiffs’ Attorney
       Fees Request
       Plaintiffs contend that the trial court abused its discretion in denying their request
for $164,812.37 in attorney fees pursuant to section 1021.5. The trial court did not err in
ruling that plaintiffs were not entitled to recover their attorney fees.


       A.     Standard of Review
       “We review an attorney fee award under section 1021.5 generally for abuse of
discretion. Whether the statutory requirements have been satisfied so as to justify a fee
award is a question committed to the discretion of the trial court, unless the question turns
on statutory construction, which we review de novo. [Citations.]” (Collins v. City of Los
Angeles (2012) 205 Cal.App.4th 140, 152.)




                                              10
       B.     Application of Relevant Principles
       Section 1021.55 “codifies the ‘private attorney general’ doctrine under which
attorney fees may be awarded to successful litigants. ‘The doctrine rests upon the
recognition that privately initiated lawsuits are often essential to the effectuation of the
fundamental public policies embodied in constitutional or statutory provisions, and that,
without some mechanism authorizing the award of attorney fees, private actions to
enforce such important public policies will as a practical matter frequently be infeasible.
[Citations.]’ [Citation.] Entitlement to fees under section 1021.5 requires a showing that
the litigation: ‘(1) served to vindicate an important public right; (2) conferred a
significant benefit on the general public or a large class of persons; and (3) imposed a
financial burden on plaintiffs which was out of proportion to their individual stake in the
matter.’ [Citation.]” (California Licensed Foresters Assn. v. State Bd. of Forestry (1994)
30 Cal.App.4th 562, 568-569, fn. omitted (California Licensed Foresters Assn.).)
       “[T]he purpose of section 1021.5 is not to compensate with attorney fees only
those litigants who have altruistic or lofty motives, but rather all litigants and attorneys
who step forward to engage in public interest litigation when there are insufficient
financial incentives to justify the litigation in economic terms.” (Conservatorship of
Whitley (2010) 50 Cal.4th 1206, 1211.) “The method for weighing costs and benefits [of
litigation] is illustrated in Los Angeles Police Protective League v. City of Los Angeles
(1986) 188 Cal.App.3d 1 [232 Cal.Rptr. 697] (Los Angeles Police Protective League ).
‘The trial court must first fix—or at least estimate—the monetary value of the benefits
obtained by the successful litigants themselves. . . . Once the court is able to put some
kind of number on the gains actually attained it must discount these total benefits by

5       Section 1021.5 provides, in relevant part, “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, or of enforcement by one public entity against another public entity,
are 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.”

                                              11
some estimate of the probability of success at the time the vital litigation decisions were
made which eventually produced the successful outcome. . . . Thus, if success would
yield . . . the litigant group . . . an aggregate of $10,000 but there is only a one-third
chance of ultimate victory they won’t proceed—as a rational matter—unless their
litigation costs are substantially less than $3,000. [¶] After approximating the estimated
value of the case at the time the vital litigation decisions were being made, the court must
then turn to the costs of the litigation—the legal fees, deposition costs, expert witness
fees, etc., which may have been required to bring the case to fruition. . . . [¶] The final
step is to place the estimated value of the case beside the actual cost and make the value
judgment whether it is desirable to offer the bounty of a court-awarded fee in order to
encourage litigation of the sort involved in this case. . . . [A] bounty will be appropriate
except where the expected value of the litigant’s own monetary award exceeds by a
substantial margin the actual litigation costs.’ (Los Angeles Police Protective League,
supra, 188 Cal.App.3d at pp. 9-10.)” (Conservatorship of Whitley, supra, 50 Cal.4th at
pp. 1215-1216; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321 [when the plaintiff
has no pecuniary interest in outcome of the litigation, the financial burden element has
been established].)
       In their motion for attorney fees, plaintiffs did not estimate the financial benefit of
their victory. In its opposition to plaintiffs’ motion, the Division estimated the present
value of the victory to CalPro members—the estimate projected the financial benefit over
a number of years—to be $1,277,785.6 In their reply in support of their motion, plaintiffs
argued that CalPro alone was responsible for attorney fees in this case, CalPro did not
pay inspection fees because it was not a portable amusement ride operator, and, thus,
CalPro did not financially benefit from the litigation. As stated above, the trial court
denied plaintiff’s motion for attorney fees on the grounds that plaintiffs failed to show
that the attorney fees “transcended” their financial interest in the litigation and the public
did not benefit from the litigation.

6    For reasons unclear from the record, the Division based its calculation on a CalPro
membership of 19 ride operators as opposed to CalPro’s stated 29 ride operators.

                                               12
       On appeal, CalPro argues that the trial court erred in finding that plaintiffs had a
financial interest in this case and that plaintiffs failed to show that the attorney fees for
the case exceeded that financial interest.7 CalPro argues that it was the only plaintiff
responsible for paying attorney fees and it did not financially benefit from this litigation
because it was not a portable amusement ride operator that was subject to section
344.18’s fees. For purposes of our analysis, we will assume, without deciding, that the
trial court’s ruling on plaintiffs’ motion for attorney fees properly is analyzed considering
only CalPro’s financial interest in the litigation because it alone was responsible for
paying the attorney fees.
       The Court of Appeal in California Licensed Foresters Assn., supra, 30
Cal.App.4th 562 considered and rejected plaintiffs’ argument that CalPro, by virtue of its
status as a nonprofit entity or association of portable ride operators, did not have a
financial interest in the litigation. In that case, the plaintiff, California Licensed Foresters
Association (CLFA), a nonprofit association of registered professional foresters,
challenged emergency regulations and guidelines adopted by the California State Board
of Forestry without notice or public hearing and, as the prevailing party, was awarded its
attorney fees under section 1021.5. (California Licensed Foresters Assn., supra, 30
Cal.App.4th at pp. 565, 567-568.) In reversing the award of attorney fees, the Court of
Appeal rejected CLFA’s argument that “it had no personal motivation for bringing this
action because, as an entity separate from its members, CLFA had no financial stake in
the outcome.” (Id. at p. 570.) The court held, “In its representative capacity, CLFA had
a financial stake in pursuing this matter to the same extent as its members. CLFA’s very
existence depends upon the economic vitality of its members and any benefit or burden
derived by CLFA from this lawsuit ultimately redounds to the membership.” (Ibid.)


7       Plaintiffs also argue that the trial court erred in finding that their action did not
benefit the public. Because we affirm the trial court’s denial of attorney fees based on its
finding that plaintiffs failed to demonstrate the requisite financial burden to justify an
award of attorney fees, we do not need to decide whether plaintiffs’ action benefited the
public.

                                              13
       CalPro is funded by its 29 members. Thus, like the plaintiff in California
Licensed Foresters Assn., supra, 30 Cal.App.4th 562, CalPro’s very existence depended
upon the economic vitality of its members, and it thus had the same financial stake in
pursuing this case as its members. (Id. at p. 570.) Because CalPro had a financial
incentive to pursue the litigation—overturning the annual flat fee assessed its members
under section 344.18—that was not out of proportion to the attorney fees incurred,8 the
trial court did not abuse its discretion in ruling that CalPro was not entitled to an award of
its attorney fees. (Collins v. City of Los Angeles, supra, 205 Cal.App.4th at p. 152;
Conservatorship of Whitley, supra, 50 Cal.4th at p. 1211.)




8      The only estimate in the record of the financial benefit of plaintiffs’ victory to
CalPro’s membership is the Division’s estimate of $1,277,785. Plaintiffs noted in their
reply brief in support of their motion for attorney fees that the Division, in the
Rulemaking File submitted in support of section 344.18’s enactment, estimated that
section 344.18’s “Proposed Billing Fee Structures” would result in a $16,300 annual
increase in fees to large ride operators such as Ray Cammack Shows, Inc. and Butler
Amusements, Inc.

                                             14
                                    DISPOSITION
      The judgment and order are affirmed. Plaintiffs and the Division are to bear their
own costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                MOSK, J.

We concur:



             TURNER, P. J.



             MINK, J.




     Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                           15
