From Miller v. Bonta, decided yesterday by Judge Roger Benitez (S.D. Cal.):
Plaintiffs seek injunctive relief from a newly-enacted California state law adding an attorney's fees and costs shifting provision codified at California Code Civ. Procedure § 1021.11….
Fee shifting provisions are not unusual in American law. But this one is. This provision applies only to suits challenging a law that regulates or restricts firearms. And while the provision entitles a prevailing party to be awarded its attorney's fees and costs, by the statute's definition, a plaintiff cannot be a prevailing party…. [T]he provision remarkably also makes attorneys and law firms that represent non-prevailing plaintiffs jointly and severally liable to pay defense attorney's fees and costs.
After these Plaintiffs filed the instant actions, the Defendant Attorney General announced his commitment not to seek attorney's fees or costs under this provision "unless and until a court ultimately holds that the fee-shifting provision in [a similar Texas law provision] is constitutional and enforceable…." In view of his commitment, the Defendant Attorney General asserts that this Court lacks Article III jurisdiction. He contends that because of his current commitment to not enforce the fee-shifting provision, the Plaintiffs have not suffered an injury in fact, and the case is not ripe.
This Court takes a different view. The recent commitment by the Office of the Attorney General is not unequivocal and it is not irrevocable. On the contrary, it evinces an intention to enforce the statute if a somewhat similar Texas statute is found to be constitutionally permissible. Consequently, it appears from the pleadings and the Plaintiffs' declarations that there is a ripe case and controversy that is not made moot by the Defendant Attorney General's announcement of non-enforcement….
