Filed 8/18/09 In re Marriage Cases CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
In re: MARRIAGE CASES A123634
In one of the most closely watched California cases in recent memory, In re
Marriage Cases (2008) 43 Cal.4th 757, 856 (Marriage Cases), our Supreme Court
held that state statutes denying same-sex couples the right to marry violated the
California Constitution. The Supreme Court also affirmed this court‟s determination
that one of the parties, appellant Campaign for California Families (Campaign), lacked
standing to sue and consequently should have been dismissed from the proceeding by
the trial court. (Id. at pp. 791-792.) The Supreme Court provided that the prevailing
parties were entitled to recover their costs. (Id. at p. 857.)
In this appeal, Campaign challenges two orders directing it to pay costs totaling
slightly more than $12,000.1 Characterizing its role in the litigation as that of an
amicus curiae, Campaign contends it cannot be assessed costs of suit as if it were a
party. We shall affirm the trial court‟s orders directing Campaign to pay costs.
Although this appeal arises out of the Marriage Cases coordinated proceeding, it
concerns only one of the six coordinated cases, Campaign for California Families v.
Newsom (Super. Ct. S.F. City & County, No. 428794).
The origin of the Marriage Cases can be traced back to February 12, 2004,
when the City and County of San Francisco (City) began issuing marriage licenses to
same-sex couples. (Marriage Cases, supra, 43 Cal.4th at p. 785.) The following day,
Campaign filed an action in San Francisco Superior Court, originally entitled
Thomasson v. Newsom and subsequently retitled as Campaign for California Families
v. Newsom (Campaign) (Super. Ct. S.F. City & County, No. 428794). (Marriage
Cases, supra, 43 Cal.4th at p. 785.) The Campaign sought a writ of mandate and
immediate stay to prohibit the issuance of marriage licenses to same-sex couples. On
the same day Campaign filed its lawsuit, the Proposition 22 Legal Defense and
Education Fund (Fund) filed a separate lawsuit seeking the same relief as Campaign in
Proposition 22 Legal Defense and Education Fund v. City and County of San
Francisco (Fund) (Super. Ct. S.F. City & County, No. 503943). (Marriage Cases,
supra, 43 Cal.4th at p. 785.)
After the trial court declined to grant an immediate stay in the Campaign and
Fund actions, the California Attorney General and a number of taxpayers filed two
separate writ petitions in the Supreme Court requesting that court‟s immediate
intervention to halt the issuance of marriage licenses to same-sex couples. (Marriage
Cases, supra, 43 Cal.4th at p. 785.) On March 11, 2004, the Supreme Court agreed to
intervene in the case, which ultimately resulted in the decision contained in Lockyer v.
City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer). At the time it
agreed to take the case, the court issued an order directing City officials to refrain from
issuing marriage licenses to same-sex couples. The court‟s order also stayed all
proceedings in the Campaign and Fund cases then pending in the San Francisco
Superior Court. (Id. at pp. 785-786.) However, the Supreme Court indicated that its
stay order did not preclude the filing of a separate action raising a direct challenge to
the constitutionality of California‟s marriage statutes. (Id. at p. 786.)
Shortly after the Supreme Court issued a stay in the Lockyer action, the City
filed a writ petition and complaint for declaratory relief in the trial court, seeking a
declaration that California statutory provisions limiting marriage to unions between a
man and a woman violate the California Constitution. (Marriage Cases, supra, 43
Cal.4th at p. 786.) A number of same-sex couples filed similar actions challenging the
constitutionality of California‟s marriage statutes. (Ibid.) A judge appointed by the
Chair of the Judicial Council ordered that a total of six actions, including the
Campaign and Fund lawsuits as well as the lawsuits challenging the constitutionality
of California‟s marriage statutes, be coordinated into a single proceeding entitled In re
Marriage Cases (JCCP No. 4365). (Ibid.)
While the Marriage Cases coordination proceeding was pending in the trial
court, the Supreme Court issued its decision in Lockyer, concluding that City officials
lacked authority to issue marriage licenses to same-sex couples in the absence of a
judicial determination that statutory provisions limiting marriage to a union between a
man and a woman were unconstitutional. (Lockyer, supra, 33 Cal.4th at p. 1069.) The
court issued a writ of mandate directing the City to comply with the marriage statutes
then in effect and to notify all same-sex couples who had been married before the
Supreme Court issued its stay that their marriages were invalid and a legal nullity. (Id.
at pp. 1069, 1120.)
Following issuance of the remittitur in Lockyer, Campaign and Fund moved to
amend their complaints in the Marriage Cases to include claims for declaratory relief.
The City and other parties opposed the request and moved to dismiss the Campaign
and Fund actions as moot, arguing that the Supreme Court‟s decision in Lockyer had
granted all the relief sought in the lawsuits and that the plaintiffs in those actions
lacked standing to pursue bare claims for declaratory relief. The trial court denied the
request to amend but also denied the motion to dismiss, concluding that the Campaign
and Fund complaints adequately stated claims for declaratory relief concerning the
constitutionality of the marriage laws.2
These facts are based in part on the file and opinion of this court in the prior appeal
consisting of six consolidated cases, docket numbers A110449, A110450, A110451,
A110463, A110651, and A110652. On the court‟s own motion, we take judicial
On April 13, 2005, the trial court issued a decision in the Marriage Cases,
ruling that California statutes defining marriage as a union between a man and a
woman violated the California Constitution. (Marriage Cases, supra, 43 Cal.4th at p.
787.) Campaign, along with other losing parties, appealed the trial court‟s decision to
this court. In the proceedings before this court, Campaign filed an opening and a reply
brief, and was permitted to participate in oral argument as a party. This court reversed
the trial court on the substantive constitutional issue presented, holding that the
marriage statutes then in effect did not violate the California Constitution. (Marriage
Cases, supra, 43 Cal.4th at p. 788.) However, this court also held that the Campaign
and Fund cases should have been dismissed by the trial court following the decision in
Lockyer because Campaign and Fund lacked standing to seek purely declaratory relief.
(Id. at p. 790.)
The Supreme Court granted review in the Marriage Cases.3 Before the
Supreme Court voted to grant review, Campaign had filed an answer brief opposing
review. After review was granted, Campaign filed an opening brief addressing
justiciability issues, an answer brief on the merits, a supplemental brief on
justiciability issues, a supplemental reply brief on the merits, and an answer to amicus
curiae briefs. As in this court, Campaign was permitted time at oral argument to argue
as a party on the merits as well as on the issue of its standing.
On May 15, 2008, the Supreme Court issued its opinion in the Marriage Cases,
holding that marriage statutes violated the California Constitution to the extent they
limited marriage to opposite-sex couples.4 (Marriage Cases, supra, 43 Cal.4th at
notice of the record and our opinion in the prior appeal. (See Forbes v. County of San
Bernardino (2002) 101 Cal.App.4th 48, 50-51; Evid. Code, §§ 452, subd. (d)(1), 459,
On the court‟s own motion, we take judicial notice of the register of actions in In re
Marriage Cases, S147999. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Subsequently, at the general election held on November 4, 2008, a majority of the
voters approved Proposition 8, an initiative measure that amended the California
p. 785.) Although the Supreme Court reversed this court on the substantive
constitutional question, it affirmed this court‟s holding that Campaign and Fund lacked
standing, concluding that “once [the Supreme Court‟s] decision in Lockyer granted the
mandamus relief sought by the Fund and the Campaign in their previously filed
lawsuits against the City and its officials, the superior court should have dismissed
those actions as moot.” (Id. at pp. 791-792, fn. omitted.) The Supreme Court
indicated that the prevailing parties were entitled to recover their costs. (Id. at p. 857.)
The City filed a memorandum of costs on appeal seeking a total of $16,919,
representing costs for the preparation of the reporter‟s transcript and the printing of
briefs. Another set of parties, referred to by the trial court collectively as the
“Rymer/Equality California” parties, filed a memorandum of costs on appeal in which
they sought to recover $16,787.01, composed of filing fees, costs of printing briefs,
expenses of litigation services, and costs of transmitting and filing briefs and other
papers. The Rymer/Equality California parties also sought to recover trial court costs
Campaign filed a motion to strike costs or, in the alternative, to tax costs,
claiming (1) it was not liable for costs on appeal because this court and the Supreme
Court agreed it was “merely an amicus curiae,” and (2) the costs were unreasonable.
Although Fund likewise challenged the cost bills, it did not suggest it was excused
from paying costs as a consequence of the appellate ruling that it lacked standing.
The trial court denied Campaign‟s motion to strike, or in the alternative, to tax
costs. The court chose to divide the City‟s and the Rymer/Equality California parties‟
costs equally among three parties—Campaign, Fund, and the State of California.
Thus, the court ordered Campaign to pay the City $5,639.66 as appellate costs and to
pay the Rymer/Equality California parties $6,442.27 as trial and appellate costs.
Campaign timely appealed the orders awarding costs.
Constitution to provide that “[o]nly marriage between a man and woman is valid or
recognized in California.” (Cal. Const., art. I, § 7.5.)
Campaign does not dispute the amount or allocation of the cost award. Nor
does it contest the determination that the City and the Rymer/Equality California
parties are prevailing parties entitled to an award of costs. Instead, Campaign‟s sole
argument on appeal is that it is not a “party” liable to pay costs in light of the
determination by the Supreme Court that it lacked standing to pursue its lawsuit.5 As
we shall explain, this contention is meritless.
A trial court‟s award of costs is ordinarily reviewed for abuse of discretion.
(See Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 978.) However, when “the
determination of whether costs should be awarded is an issue of law on undisputed
facts, we exercise de novo review. [Citation.]” (City of Long Beach v. Stevedoring
Services of America (2007) 157 Cal.App.4th 672, 678.) Because Campaign‟s appeal
presents a pure question of law based on undisputed facts, de novo review is
The appeal rests on the false premise that Campaign participated in the
Marriage Cases as amicus curiae, with Campaign asserting it “was given status only
as a „friend of the court‟ for briefing and other activities during the underlying
appeals.” The assertion is factually insupportable.
In its reply brief, for the first time on appeal, Campaign suggests that the allocation
of costs was unfair in that Los Angeles County, a party to one of the lawsuits in the
coordinated Marriage Cases proceeding, was not assessed costs, thus causing the
remaining parties to bear an increased share of the overall costs. Because the issue
was raised for the first time in Campaign‟s reply brief and no good reason was offered
to explain the failure to raise the matter previously, we may decline to consider it.
(Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) In any
event, the decision to exclude Los Angeles County from the order awarding costs was
a matter within the trial court‟s discretion, and Campaign has offered no reason for us
to believe the court abused its discretion. Among other things, the trial court noted
that, unlike Campaign, which was an active participant in the trial court and appellate
proceedings, Los Angeles County was not an active participant, becoming a “dormant
party pretty quickly” that “didn‟t participate in the festivities at all.”
The role of a person or entity permitted to file an amicus curiae brief is distinct
from that of a party. “Amici curiae, literally „friends of the court,‟ perform a valuable
role for the judiciary precisely because they are nonparties who often have a different
perspective from the principal litigants. „Amicus curiae presentations assist the court
by broadening its perspective on the issues raised by the parties. Among other
services, they facilitate informed judicial consideration of a wide variety of
information and points of view that may bear on important legal questions.‟
[Citation.]” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1177
Unlike a party to an appellate proceeding, which has a right to file briefs and
participate in oral argument, an amicus curiae has a much more limited involvement.
Amicus curiae briefs may be filed in the Court of Appeal or the Supreme Court only
with the express permission of the presiding justice or the Chief Justice. (Cal. Rules of
Court, rules 8.200(c)(1), 8.520(f)(1).) In addition, amicus briefs generally must be
confined to the issues raised by the appealing parties. (California Highway Patrol v.
Superior Court (2006) 135 Cal.App.4th 488, 498.) Issues raised on appeal for the first
time by amici curiae ordinarily will not be considered. (Ibid.) Also, an amicus curiae
has no right to appear at oral argument. In the Court of Appeal, an amicus curiae may
present oral argument only with the court‟s permission upon written request. (Cal.
Rules of Court, rule 8.256(c)(2).) In the Supreme Court, an amicus curiae is not
entitled to argument time but may ask a party for permission to use a portion or all of
that party‟s allotted time. (Cal. Rules of Court, rule 8.524(g).)
Here, Campaign participated as a party, not an amicus curiae, in the
proceedings before the trial court, the Court of Appeal, and the Supreme Court. It was
not required to secure permission to file briefs. It was not confined to arguments
raised by other parties to the proceedings. It was allotted time at oral argument
without having to request the permission of the court or other parties.
The Supreme Court‟s decision in Marriage Cases did not transform Campaign
into an amicus curiae. Citing footnote 10 of the Marriage Cases opinion, Campaign
states the Supreme Court “unequivocally determined that Appellant did not have
standing as a party and Appellant‟s participation was only that of an amicus curiae.”
To the contrary, the Supreme Court simply held that Campaign lacked standing to
pursue its claims in the Marriage Cases after the court‟s decision in Lockyer.
(Marriage Cases, supra, 43 Cal.4th at pp. 790-791.) In the footnote relied upon by
Campaign, the Supreme Court did not declare that Campaign was an amicus curiae.
Rather, the court simply observed that Campaign‟s lack of standing would not have
prevented Campaign from participating as an amicus curiae at both the trial and
appellate level. (Id. at p. 792, fn. 10.) The court‟s observation did not change the fact
that Campaign had, in fact, chosen to assert standing as a party and participate as such
in the trial and appellate proceedings.
In short, Campaign was not an amicus curiae but was instead a party whose
lawsuit was dismissed for lack of a justiciable controversy. California courts routinely
award costs against parties whose lawsuits are dismissed for lack of standing. (See
Larry Menke, Inc. v. DaimlerChrysler Motors Co., LLC (2009) 171 Cal.App.4th 1088,
1095; Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024,
1039; Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 567; Farber
v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1016; Animal
Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 147-148.) Likewise,
when a reviewing court affirms an order denying a party‟s right to intervene in a
lawsuit because the party lacks standing to intervene, the prevailing party is entitled to
costs, unless the court indicates otherwise. (See Royal Indemnity Co. v. United
Enterprises, Inc. (2008) 162 Cal.App.4th 194, 212-213.)
In one appeal arising out of the Marriage Cases, we have already awarded costs
against a party found to lack standing, apparently without objection. Specifically, in
City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030,
we considered an appeal from an order denying Fund‟s motion to intervene as a party
in two actions that were later consolidated into the Marriage Cases. We affirmed the
trial court‟s order and confirmed that Fund did not enjoy status as a party, but we
nonetheless directed Fund to bear costs on appeal. (Id. at pp. 1044-1045.) The
situation here is no different. Campaign lost its appeal on standing grounds and is
liable to pay costs.
In support of its position, Campaign relies primarily upon Connerly, supra, 37
Cal.4th at p. 1172, a case involving an award of attorney fees under the private
attorney general statute, Code of Civil Procedure section 1021.5. There, the Supreme
Court held that advocacy organizations who originally participated as amici curiae in
an already filed case were not liable for attorney fees. (Connerly, supra, 37 Cal.4th at
pp. 1181-1182.) The case is inapposite.
As an initial matter, Connerly does not address liability for costs under Code of
Civil Procedure sections 1032 and 1034, but rather focuses on liability for attorney
fees under Code of Civil Procedure section 1021.5, the private attorney general statute.
The distinction between costs and attorney fees is not without consequence.6 For
example, unless a statute expressly provides otherwise, a prevailing party is entitled
“as a matter of right” to recover its costs. (Code Civ. Proc., § 1032, subd. (b).) By
contrast, a prevailing party has no right to recover its attorney fees from an opposing
party unless expressly authorized by statute or contract. (California Wholesale
Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 604.)
The purpose of fee shifting statutes such as Code of Civil Procedure section 1021.5 is
“ „ “to encourage suits enforcing important public policies by providing substantial
attorney fees to successful litigants in such cases.” ‟ [Citation].” (Connerly, supra, 37
Attorney fees may be awarded as “costs” if authorized by statute, contract, or
applicable law. (Code Civ. Proc., § 1033.5, subd. (a)(10); see also Cal. Rules of Court,
rule 8.278(d)(2).) Thus, attorney fees are technically a potential component of
recoverable costs. However, as a practical matter, an award of costs, such as filing
fees or expenses associated with record preparation, is distinct from an award of
attorney fees. An award of costs is governed by Code of Civil Procedure section 1032,
whereas an award of fees is governed by the statute authorizing the award of fees or, in
the case of a contractual fee-shifting provision, by Civil Code section 1717.
Consistent with common parlance, the term “costs” as used in this opinion refers to
recoverable costs of suit excluding attorney fees.
Cal.4th at p. 1182.) Cost recovery statutes serve no such purpose. Among other
things, recoverable costs are typically modest in comparison to attorney fees, and cost
recovery is available without regard to the purpose of the litigation. Further, the
determination of a “successful party” for purposes of awarding attorney fees under
Code of Civil Procedure section 1021.5 may be different from the determination of a
“prevailing party” under Code of Civil Procedure section 1032 for purposes of
awarding costs. (See Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165
Cal.App.4th 1207, 1235.) Thus, there is at least some reason to question whether the
attorney fee analysis in Connerly applies to a determination of whether an individual
or entity that has actively participated in litigation should bear costs.
Even assuming Connerly applies to an award of costs, that case does not
suggest a party found to lack standing should be excused from paying costs. In
Connerly, the plaintiff challenged affirmative action programs of six state agencies.
(Connerly, supra, 37 Cal.4th at p. 1173.) A group of organizations and associations
generally in favor of affirmative action, including the California Business Council,
obtained permission to appear as amici curiae. (Ibid.) Only one of the state agencies
defended its programs on the merits. (Id. at p. 1174.) Because the state agencies for
the most part opted not to defend on the merits, it fell to the amici curiae to defend the
state programs and statutes, and at some point in the litigation they were redesignated
as real parties in interest. (Id. at p. 1172.) The California Business Council acted in
many respects as lead counsel in defending the state agencies‟ affirmative action
programs. (Id. at p. 1182.) However, as the Supreme Court explained, “[i]t played
this active role . . . at plaintiff‟s invitation and with the encouragement of the trial
court, in order to conduct litigation that would otherwise not have been adversarial.”
(Ibid., fn. omitted.) The court held that the California Business Council was not liable
for attorney fees even though it actively participated in the litigation. According to the
court, the California Business Council had only an ideological or policy interest
typical of an amicus curiae, and its active participation alone, without a direct interest
in the litigation, was not a sufficient ground for imposing attorney fees. (Id. at pp.
This case presents almost the opposite factual scenario from that in Connerly.
Unlike the amicus groups in Connerly, the Campaign was a plaintiff from the outset
that brought its own suit. Campaign chose an active role in the litigation on its own
and not at the invitation of the court or opposing parties. There was no lack of
adversity in the Marriage Cases that required Campaign to step in and assume a more
active role. Campaign steadfastly argued at every level that it had standing to sue as a
party and refused to participate solely as an amicus. It claimed to have a direct interest
in the litigation even though it was ultimately found to have no such interest. At no
stage of the litigation did Campaign ever seek leave to participate as an amicus or file
an amicus brief. Nor was it ever designated as an amicus by any court. Just as the
participation of the amicus groups in Connerly did not “convert an amicus curiae into a
real party in interest liable for attorney fees” (Connerly, supra, 37 Cal.4th at p. 1182),
the Supreme Court‟s ultimate dismissal of the Campaign complaint did not “convert”
the Campaign into an amicus immune from liability for costs.
Contrary to what Campaign and amici curiae suggest, our decision does not
discourage organizations with purely ideological or policy interests in litigation from
participating as amicus curiae and offering their points of view for courts to consider.
The Supreme Court received 45 amicus curiae briefs in the Marriage Cases.
(Marriage Cases, supra, 43 Cal.4th at p. 792, fn. 10.) We likewise received a
substantial number of amicus briefs when the matter was pending before this court.
As far as we are aware, none of the entities or individuals who participated solely as
amicus curiae in the proceedings before this court or the Supreme Court has had to
bear any other party‟s costs or fees. Campaign could have participated as an amicus
curiae but chose not to, electing instead to assert its standing as a party until the issue
was finally resolved by the Supreme Court. As a party whose case was ultimately
dismissed for lack of a justiciable controversy, Campaign is liable for costs.
The orders directing Campaign for California Families to pay costs are
affirmed. City and County of San Francisco and the Rymer/Equality California parties
are entitled to costs on appeal.