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 of Occupational Safety CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 OPERATORS, LLC et al.,

Plaintiffs, Respondents, and CrossAppellants,

v.

CALIFORNIA DIVISION OF OCCUPATIONAL SAFETY & HEALTH,

Defendant, Appellant, and CrossRespondent. B242219

(Los Angeles County Super. Ct. No. BC455252)

APPEALS from a judgment and order of the Superior Court of Los Angeles County, Alan S. Rosenf ield, Judge. Affirmed. Amy D. Martin, Chief Counsel, James Dext er Clark, Staff Counsel, for Defendant, Appellant, and Cross-Respondent. Garrett & Jensen, Boyd F. Jensen II, for Plaintiffs, Respondents, and Crossappellants, California Portable Ride Oper ators, LLC, Ray Cammack Shows, Inc., and Butler Amusements, Inc.2 INTRODUCTION Defendant, appellant, and cross-responde nt Division of Occupational Safety and Health (Division) appeals from a judgment in favor of plain tiffs, respondents, and crossappellants, California Portable Ride Oper ators, 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 regulati on purportedly authorized by Labor Code section 7904 (section 7904) that set insp ection 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 sec tion 7904, we affirm the judg ment. We affirm the order denying plaintiffs’ attorney fees request becau se their financial stak e in the outcome of their action was sufficient to justif y the litigation in economic terms.

FACTUAL AND PROCED URAL BACKGROUND 1 Portable amusement ride operators, known as carnivals, travel throughout the Unites States attending county fairs, festival s, rodeos, farmers’ markets, and other amusement venues. In 1968, the Californi a Legislature enacted the Amusement Rides Safety Law. (Lab. Code, § 7900.) Under th e 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 installati on, repair, maintenance, use, operation, and inspection of all amusement ride s 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 co st of having the inspection pe rformed 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 vo id on its face, we provide a brief factual background.3 Rulemaking Hearing and issuance of a Fi nal 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 pe r 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, plaintiffs 2 filed a complaint that asse rted a cause of action for declaratory relief that sought a declara tion that section 344.18 was invalid and unenforceable. Plaintiffs requested a pre liminary injunction enjoining enforcement of section 344.18 pending a determination of section 344.18’s validity. Ray Cammack Shows, Inc. and Butler Amusements, Inc. al so asserted a second cause of action for damages. The trial court granted plainti ffs’ 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 acti on for declaratory relief. In their motion, plaintiffs argued that secti on 344.18 was invalid under Gove rnment 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); secti on 344.18 was invalid under Government Code section 11350, subd ivision (b)(2) because the evidence shows that the regulation would have a “significant statewide adve rse 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 Administ rative 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, In c. are individual portable am usement ride operators.4 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 reas onably necessary to effectuate that section’s purpose. The Division also argued that substa ntial evidence support ed its determination

that section 344.18 would not result in a statewide adverse economic impact directly affecting business. The trial court simultaneously heard pl aintiffs’ summary adjudication motion and the Division’s summary judgment motion, and rule d in favor of plaintiffs. The trial court

ruled that the annual flat fee travel and admi nistrative cost provision in section 344.18, subdivision (b), violated secti on 7904, subdivision (a). The trial court stated that section 7904, subdivision (a) pe rmitted 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, permitt ed the Division to assess a y early flat fee based on the size of the ride that was inspected. The tria l court reasoned that there was no relationship

between the annual flat fee and the Division’ s travel and administra tive costs because the inspector’s travel and administ rative 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 Amusemen ts, 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 secti on 344.18 is invalid and unenforceable.

Plaintiffs moved for an award of attorn ey fees pursuant to section 1021.5. The trial court denied the motion, stating, “I belie ve that the plaintiff doe s have the burden to show that the attorney’s fees for litigation transcend the plai ntiffs financial interest, and that did not occur here. This was brought fo r their own financial interests, for their own personal benefits as the ride operators to miti gate 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.”5 DISCUSSION I. Section 7904, Subdivision (a) Did No t 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 thei r complaint, and by requi ring the Division to

“show evidence on the record that there is a relationship betw een the graduated nature of the size and complexity fee [the ‘Annual F ee’] 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; an d properly denied the Division’s summary judgment motion.

A. Standards of Review “In reviewing an order granting summa ry 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. Hollywoo d Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rp tr.2d 356].) We make ‘an i ndependent 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 issu es 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, 2 22 [38 Cal.Rptr.2d 35].)” ( Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216.) We mu st consider all of the eviden ce and all of the inferences reasonably drawn therefrom, and must view su ch evidence and such inferences in the

3 The Division also contends that other groun ds 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 author ize section 344.18, subdivision (b), we need not address those other grounds.6 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 legisla tive 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 c onstruction inquiry, we must look first to the language of the st atute. ‘To determine legislativ e intent, a court begins with the words of the statute, because they genera lly provide the most reliable indicator of legislative intent.’ ( Hsu v. Abbara (1995) 9 Cal.4th 863, 87 1 [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 System s, Inc. v. Superior

Court (1999) 19 Cal.4th 1036, 1047.)

“Of all the activities undertak en by an administrative ag ency, quasi-legislative acts

are accorded the most deferentia l level of judicial scrutiny. [Citation.] ‘[A]dministrative agencies to which the Legislat ure 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 review ing the legality of a regula tion adopted pursuant to a delegation of legislative power, the judicial function is limited to de termining whether the regulation (1) is “within the sc ope of the authority conferred” . . . and (2) is “reasonably necessary to effectuate the purpose of the statute.” . . .’ . . . ‘These issues do not present7 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 ame nd 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 co llect 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 ch arge 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 fe es collected by the divi sion 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 tim e—i.e., “all on-site work performed in

4 Section 344.18 provides: “(a) Inspection Fees. “(1) A fee of one hundred and ninety-fi ve 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, ro unded 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 arrive s, 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.8 “(3) The Division shall not bill at the hour ly rate for an inspec tor’s travel time in connection with routin e 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 th e 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 trave ling to the site of the resche duled 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 eith er ‘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 hund red and forty dollars ($740.00) “(4) Extra-large rides—One thousand four hundred and seventy-five dollars ($1,475.00). “(c) Classification of Portable Amusemen t 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 classifi cation for which it satisfies two or more of the evaluation criteria. However, if a por table amusement ride satisfies any single criterion in a classification, then the ride can not 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 amusemen t 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 passe nger waiting area or queuing area); “(B) operates at ten or fewe r revolutions per minute (‘RPM’); “(C) is a ‘Kiddie Coaster’ (a ride designed for children age 12 or younger). “(2) Class II (Medium): A portable am usement 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;9 connection” with portable amus ement 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 gr aduated 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 ride s, $740 for large rides, and $1,475 for extralarge rides. (§ 344.18, subds. (b) & (c).)

D. Analysis Section 7904, subdivision (a) authorizes the Division to “f ix and collect” an inspection fee for amusement rides. That insp ection 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, subdivis ion (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 farthe r. It permits the Division to collect an additional graduated annual flat fee to offs et 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 expr essly authorize the Division to “fix and collect” an

annual fee to offset the Divi sion’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 portabl e amusement ride shall be classified as ‘Extra-Large’ if it: “(A) has a footprint of great er than 8,000 square feet; “(B) elevates passengers higher than 1 20 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 fo r an inspection perfo rmed by a certified insurance inspector except a ch arge of $10.00 to cover the cost of processing the permit to operate.”10 the Division can charge a fee for travel and ad ministrative costs only if those costs reflect

the “actual cost” of those activ ities in connection w ith an amusement ride inspection. The fee the Division implemented with subdivi sion (b) of section 344.18, however, is an

annual flat fee that is not based on the “actua l cost” of a ride’s inspection but on the ride’s

size. The Division’s cost of travel illustrates th is 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 th e inspector is to inspec t a large ride rather than a small ride. Accordingly, section 344 .18, subdivision (b) improperly enlarges the scope of section 7904, subdivision (a) and th e 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 Disc retion In Denying Pl aintiffs’ Attorney Fees Request

Plaintiffs contend that the trial court a bused 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 entitle d 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.)11 B. Application of Relevant Principles

Section 1021.5 5 “codifies the ‘private attorney general’ doctrine under which attorney fees may be awarded to successf ul litigants. ‘The doctrine rests upon the recognition that privately initiated lawsuits ar e often essential to the effectuation of the fundamental public policies embodied in cons titutional or statutory provisions, and that,

without some mechanism author izing 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 As sn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 5 68-569, fn. omitted ( California Licensed Foresters Assn. ).) “[T]he purpose of section 1 021.5 is not to compensate with attorney fees only those litigants who have altruistic or lofty mo tives, but rather all litigants and attorneys who step forward to engage in public inte rest litigation when there are insufficient financial incentives to justify the litigation in economic terms.” ( Conservatorship of Whitley (2010) 50 Cal.4th 1206, 12 11.) “The method for weighing costs and benefits [of litigation] is illustrated in Los Angeles Police Protective Lea gue 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 va lue 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 successf ul party against one or more opposing parties in any action which has resulted in the enforc ement of an important right affecting the public interest if: (a) a significant benefit, whether pecu niary or nonpecuniary, has been conferred on the general public or a large class of person s, (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.”12 some estimate of the probability of success at the time the vital litigation decisions were made which eventually produc ed the successful ou tcome. . . . Thus, if success would yield . . . the litigant group . . . an aggregat e 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 $3,00 0. [¶] After approximating the estimated

value of the case at the time th e vital litigation decisions were being made, the court must

then turn to the costs of th e litigation—the legal fees, deposition costs, expert witness fees, etc., which may have been required to br ing the case to fruition. . . . [¶] The final step is to place the estimated value of the cas e beside the actual cost and make the value judgment whether it is desirabl e 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 va lue of the litigant’s own monetary award exceeds by a substantial margin the act ual 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 plainti ffs’ 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 a ttorney fees in this case, CalPro did not pay inspection fees because it was not a port able amusement ride operator, and, thus, CalPro did not financially bene fit from the litigation. As st ated above, the trial court denied plaintiff’s motion for atto rney fees on the grounds that plaintiffs failed to show that the attorney fees “transcended” their fina ncial interest in the litigation and the public did not benefit from the litigation.

6 For reasons unclear from the record, the Di vision based its calculation on a CalPro membership of 19 ride operators as opposed to CalPro’s stated 29 ride operators.13 On appeal, CalPro argues th at the trial court erred in fi nding that plaintiffs had a

financial interest in this case and that plaintiffs failed to sh ow 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 di d not financially benefit from this litigation because it was not a portable amusement ri de 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 prop erly is analyzed considering only CalPro’s financial interest in the litig ation because it alone was responsible for paying the attorney fees. The Court of Appeal in California Licensed Fore sters Assn., supra, 30 Cal.App.4th 562 considered and rejected plain tiffs’ argument that CalPro, by virtue of its status as a nonprofit entity or association of portable ride opera tors, did not have a financial interest in the litigati on. In that case, the plaintiff, California Licensed Foresters Association (CLFA), a nonpro fit association of registered professional foresters, challenged emergency regulatio ns 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 reversi ng the award of attorney fees, the Court of Appeal rejected CLFA’s argument that “it ha d no personal motivation for bringing this action because, as an entity separate from it s 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 me mbers. CLFA’s very existence depends upon the ec onomic vitality of its members and any benefit or burden derived by CLFA from this lawsuit ultimat ely redounds to the membership.” ( Ibid. )

7 Plaintiffs also argue that the trial c ourt 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 de cide whether plaintiffs’ action benefited the public.14 CalPro is funded by its 29 memb ers. 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 ha d the same financial stake in pursuing this case as its members. ( Id. at p. 570.) Because CalPro had a financial incentive to pursue the litigati on—overturning the annual fl at fee assessed its members

under section 344.18—t hat was not out of proportion to the attorney fees incurred, 8 the

trial court did not abuse its discretion in rulin g 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 reco rd of the financial benefit of plaintiffs’ victory to CalPro’s membership is the Division’s estimat e 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 s ection 344.18’s enactmen t, estimated that section 344.18’s “Proposed Billing Fee Stru ctures” would result in a $16,300 annual increase in fees to large ride operators su ch as Ray Cammack Shows, Inc. and Butler Amusements, Inc.15 DISPOSITION The judgment and order are affirmed. Plai ntiffs 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 Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.