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Filed 9/26/24 Calvary Chapel San Jose v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

CALVARY CHAPEL SAN JOSE et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SANTA 

CLARA COUNTY,

Respondent;

THE PEOPLE OF THE STAT OF 

CALIFORNIA et al.,

Real Parties in Interest.

 H051276

 (Santa Clara

 Super. Ct. No. 20CV372285)

I. INTRODUCTION

Calvary Chapel San Jose (Calvary Chapel) and its pastors, Mike McClure and 

Carson Atherley, failed to comply with any of public health orders issued by the State of 

California, the County of Santa Clara, and Sara H. Cody, M.D. (collectively, the People) 

during the COVID-19 pandemic.

1 The People obtained restraining orders compelling 

Calvary Chapel to comply with the public health orders, which Calvary Chapel also 

violated. The People then initiated contempt proceedings against Calvary Chapel due to 

1 Atherley is not a party to the present appeal.
2

the violations of court orders. The trial court issued two orders against Calvary Chapel 

and its pastors, the December 17, 2020 and the February 16, 2021 orders of contempt and 

to pay monetary sanctions.

Calvary Chapel sought review of the contempt orders and monetary sanctions. In

two cases, Calvary Chapel v. Superior Court (Aug. 15, 2022, H048734 [nonpub. opn.]) 

and McClure v. Superior Court (Aug. 15, 2022, H048947 [nonpub. opn.]) (collectively, 

Calvary Chapel I), this court annulled the December 17, 2020 and the February 16, 2021 

orders of contempt, and reversed the orders to pay monetary sanctions.

Calvary Chapel and McClure (collectively, Calvary) subsequently brought a 

motion for an award of private attorney general fees pursuant to Code of Civil Procedure 

section 1021.5, based on their success in obtaining annulment of the contempt orders and 

reversal of the orders to pay monetary sanctions.2 In the order of May 19, 2023, the trial 

court denied the motion.

On appeal, Calvary contends that the trial court erred in denying their motion 

because their motion satisfies the section 1021.5 criteria for an award of private attorney 

general fees. For the reasons stated below, we will treat Calvary’s appeal from the 

arguably nonappealable May 19, 2023 order as a petition for writ of mandate, and we will 

deny the petition.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Contempt Proceedings

In 2020 the People issued a series of public health orders to protect the public 

from the spread of COVID-19 during the first year of the COVID-19 pandemic. The 

public health orders included orders restricting indoor gatherings and requiring face 

coverings, social distancing, and submission of a social distancing protocol by 

2 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
3

businesses, including churches. It was undisputed in the proceedings below that Calvary 

Chapel and its pastors had failed to comply with any of these public health orders.

The People filed a complaint for injunctive relief due to the ongoing failure of 

Calvary Chapel and its pastors to comply with the public health orders. The trial court 

issued a November 2, 2020 temporary restraining order, followed by a November 24, 

2020 modified temporary restraining order and preliminary injunction, that enjoined 

Calvary Chapel and its pastors from holding indoor gatherings that did not comply with 

the public health orders’ restrictions on indoor gatherings and requirements that 

participants wear face coverings and socially distance. Calvary Chapel and its pastors 

were also enjoined from operating without submitting a social distancing protocol to the 

County of Santa Clara.

Thereafter, Calvary Chapel and its pastors violated the November 2, 2020 

temporary restraining order, the November 24, 2020 modified temporary restraining 

order, and the preliminary injunction. In response, the People sought an order of 

contempt against Calvary Chapel, which the trial court issued on December 17, 2020, 

based on the violation of the November 2, 2020 temporary restraining order. The 

December 17, 2020 order included fines totaling $22,000 pursuant to section 1218, 

subdivision (a).

The trial court also issued a February 16, 2021 order of contempt based on the 

violation of the November 24, 2020 modified temporary restraining order and 

preliminary injunction. The trial court additionally ordered Calvary Chapel to pay 

$35,000 and MClure to pay $15,000 in monetary sanctions pursuant to section 1218, 

subdivision (a) for contempt of court.

Calvary Chapel and its pastors sought review of the trial court’s contempt orders 

and orders to pay monetary sanctions. In Calvary Chapel I, this court concluded that the 

temporary restraining orders and preliminary injunctions were facially unconstitutional 

with respect to the restrictions on indoor gatherings, pursuant to the then recent guidance 
4

of the United States Supreme Court regarding the First Amendment’s protection of the 

free exercise of religion in the context of public health orders that impact religious 

practice (see, e.g., Tandon v. Newsom (2021) 593 U.S. 61.) We noted that the trial court 

did not have the benefit of the United States Supreme Court’s recent guidance when it 

issued the temporary restraining orders, preliminary injunction, and contempt orders.

However, in Calvary Chapel I, this court assumed, without deciding, that the 

restraining orders were not facially unconstitutional with respect to the public health 

orders’ requirements for face coverings, social distancing, and submission of a social 

distancing protocol. This court noted that the trial court had not imposed discrete fines 

for violations of the unconstitutional restrictions on indoor gatherings and the separate 

violations of the requirements for social distancing, face coverings, and submission of a 

social distancing protocol. Instead, the trial court had imposed a single, aggregate 

punishment for all violations of the temporary restraining orders. This court therefore

annulled the December 17, 2020 and the February 16, 2021 orders of contempt in their 

entirety, and reversed the orders to pay monetary sanctions.

B. Section 1021.5 Motion for Attorney Fees

Calvary subsequently moved for an order awarding them private attorney 

general fees pursuant to section 1021.5 due to their success in obtaining annulment of 

the contempt orders and reversal of the orders to pay monetary sanctions in Calvary 

Chapel I. They argued that they met the statutory criteria for an award of private attorney 

general fees because: (1) they were the successful parties since this court annulled both 

contempt orders and reversed the sanctions orders; (2) their disobedience of the trial 

court’s temporary restraining orders served the important public interest of upholding 

First Amendment rights; (3) their success on appeal conferred a significant benefit on 

churches and people of faith, and therefore society as a whole; (4) private enforcement 

of First Amendment rights was necessary to defend their right to continue worshiping; 

and (5) the County of Santa Clara should pay their attorney fees in the interest of justice. 
5

Calvary also argued that their request for an award of private attorney general fees in the 

amount of $433,905 was reasonable.

C. Opposition to Motion for Section 1021.5 Attorney Fees

In opposition to Calvary’s motion for private attorney general fees, the People 

argued that section 1021.5 does not apply to contempt proceedings. According to the 

People, contempt proceedings concern the enforcement of court orders and the authority 

of the court, and therefore the party that initiated a contempt proceeding should not bear 

its cost. They also emphasized the one-way attorney fees provision in section 1218, 

subdivision (a), which provides that attorney fees may be awarded to the party that 

initiated a successful contempt proceeding, and does not provide that attorney fees may 

be awarded to the party that successfully defended a contempt proceeding.3 Further, the 

People contended that awarding attorney fees to the party that successfully defended a 

contempt proceeding would not be consistent with private attorney general doctrine 

codified at section1021.5, which is intended to encourage public interest litigation.

Alternatively, the People argued that Calvary’s motion for attorney fees did not 

satisfy the statutory criteria for an award of attorney fees pursuant to section 1021.5. 

They maintained that Calvary Chapel’s defeat of the underlying contempt proceedings 

did not result in enforcement of an important right affecting the public interest, did not 

confer a significant benefit on the general public or a large class of persons, and the cost 

of defeating the contempt action did not transcend Calvary Chapel’s personal interest. 

Finally, the People contended that the request for attorney fees was overbroad.

3 Section 1218, subdivision (a) provides in part: “[A] person who is subject to a 

court order as a party to the action, or any agent of this person, who is adjudged guilty of 

contempt for violating that court order may be ordered to pay to the party initiating the 

contempt proceeding the reasonable attorney’s fees and costs incurred by this party in 

connection with the contempt proceeding.”
6

D. Trial Court Order

In the May 19, 2023 order the trial court denied Calvary’s motion for private 

attorney general fees pursuant to section 1021.5. Noting that the language of 

section 1218, subdivision (a) did not support an award of attorney fees to the party that 

successfully avoided a contempt finding, the trial court determined that it was unlikely 

that the requirements for an award of private attorney general fees under section 1021.5 

could be met in the context of a contempt proceeding. The court reasoned that the 

accused would always have an independent incentive to defend a contempt proceeding 

without the incentive of an award of attorney fees if successful.

The trial court further determined that Calvary had not met the requirements for 

an award of section 1021.5 attorney fees because opposing the contempt action was not 

necessary for Calvary to assert First Amendment rights. The court reasoned that Calvary 

could have asserted its First Amendment rights by complying with the orders restricting 

indoor gatherings while at the same time challenging those orders. Finally, the trial court 

found it significant that this court in Calvary Chapel I “did not entirely absolve Calvary 

of its failure to follow the Court’s orders as Calvary asserts.”

III. DISCUSSION

Calvary contends that the trial court erred in denying their motion for private 

general attorney fees pursuant to section 1021.5. We will begin our review with the 

threshold issue of appealability.

A. Appealability

The People have not challenged the appealability of the May 19, 2023 order 

denying Calvary’s motion for private attorney general fees pursuant to section 1021.5. 

However, “[t]he existence of an appealable judgment is a jurisdictional prerequisite to an 

appeal. A reviewing court must raise the issue on its own initiative whenever a doubt 

exists as to whether the trial court has entered a final judgment or other order or judgment 

made appealable by Code of Civil Procedure section 904.1. [Citations.]” (Jennings v. 
7

Marralle (1994) 8 Cal.4th 121, 126–127.) Thus, “[a] trial court’s order is appealable 

when it is made so by statute. [Citations.]” (Griset v. Fair Political Practices Com. 

(2001) 25 Cal.4th 688, 696.) Section 904.1, subdivision (a)(2) provides that a 

postjudgment order is appealable where it was “made after a judgment made appealable 

by [section 904.1, subdivision (a)(1)].”

In the present case, there is a doubt as to whether the May 19, 2023 order denying 

Calvary’s motion for private attorney general fees is appealable as a postjudgment order 

because the order was made in the context of contempt proceedings, following this 

court’s decision in Calvary Chapel I annulling the underlying contempt orders. It is well 

established that a judgment or order in a contempt proceeding is not appealable. (§ 1222; 

§ 904.1, subd. (a)(2); Bermudez v. Municipal Court (1992) 1 Cal.4th 855, 861, fn. 5.) 

Calvary’s statement in its opening brief that the May 19, 2023 order denying attorney 

fees is appealable as a postjudgment order is not persuasive, since it relies on the decision 

in Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222, which did not involve a 

nonappealable order or judgment in a contempt proceeding.

However, it has been held that “an order denying attorney fees may be appealable 

as a final judgment, even when the underlying order or judgment is not appealable.” 

(Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 

Cal.App.4th 1381, 1388. Other appellate courts have ruled that “[a]n order denying a 

motion for attorneys’ fees under section 1021.5 is appealable. [Citation.]” (Williams v. 

San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, 964, disapproved on 

another ground in Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 4 

(Whitley).)

In this case, we need not determine whether the May 19, 2023 order denying 

Calvary’s motion for private attorney general fees pursuant to section 1021.5 is an 

appealable order. The California Supreme Court has instructed that courts have the 

power to treat a purported appeal from a nonappealable postjudgment order as a 
8

petition for writ of mandate, although “we should not exercise that power except under 

unusual circumstances.” (Olson v. Cory (1983) 35 Cal.3d 390, 401 (Olson).) The Olson

court “found it appropriate to treat an appeal as a petition for a writ of mandate when it 

concluded that there was no adequate remedy at law, ‘the issue of appealability was far 

from clear in advance,’ the records and briefs included the necessary elements for a 

petition for a writ of mandate, there was no indication that the trial court would appear 

separately or become more than a nominal party, and dismissing the appeal rather than 

exercising the court’s discretion to reach the merits through a writ of mandate proceeding 

would be ‘ “ ‘unnecessarily dilatory and circuitous.’ ” ’ [Citation.]” (Shrewsbury

Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221 ; see also 

Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142 [treating a purported appeal 

as a petition for writ of mandate is appropriate where there is uncertainty about an order’s 

appealability.].)

We will exercise our discretion to treat Calvary’s appeal as a petition for a writ of 

mandate since the issue of appealability of the May 19, 2023 order was not clear in 

advance, there is no indication that the trial court would appear separately, and the 

records and briefs are sufficient for a petition for writ of mandate.

B. Section 1021.5

We next turn to the merits of Calvary’s contention that the trial court erred in 

denying their motion for attorney fees pursuant to section1021.5, beginning our analysis 

with the statutory criteria for an award of private attorney general fees. We will assume, 

without deciding, that private attorney general fees may be awarded to the alleged 

contemnor who succeeds in defending a contempt proceeding that involves a First 

Amendment issue.4

4 We note that “[i]t is well established that an appellate decision may provide the 

basis for a fee award even when the trial court ruling does not. [Citations.]” (Serrano v. 

Stefan Merli Plastering Co. (2011) 52 Cal.4th 1018, 1029–1030, fn. omitted.)
9

1. Statutory Criteria

Section 1021.5 provides in 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.”

“[T]he fundamental objective of the private attorney general doctrine of attorney 

fees is ‘ “to encourage suits effectuating a strong [public] policy by awarding substantial 

attorney’s fees . . . to those who successfully bring such suits and thereby bring about 

benefits to a broad class of citizens.” ’ [Citations.] 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.]” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 

933.)

In other words, the purpose of section 1021.5 is “to financially reward attorneys 

who successfully prosecute cases in the public interest, and thereby ‘ “prevent worthy 

claimants from being silenced or stifled because of a lack of legal resources.” ’ 

[Citation.]” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 568.)

2. Standard of Review

An order awarding attorney’s fees under section 1021.5 is generally reviewed for 

abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) 

However, where, as here, the material facts are undisputed and the question is whether 
10

the criteria for an award of attorney’s fees have been satisfied, the issue involves 

statutory construction and a question of law, which we review de novo. (Id. at pp. 1175-

1176.)

C. Analysis

Calvary contends that the trial court erred in denying the motion for private 

attorney general fees under section 1021.5 because the one-way attorney fees provision 

of section 1218, subdivision (a) does not preclude an award of fees to the alleged 

contemnor who successfully defends a contempt proceeding, and its motion satisfies all 

statutory criteria for an award of private attorney general fees.

The People respond that section 1021.5 is inapplicable to contempt proceedings, 

since section 1218, subdivision (a) expressly provides for an award of attorney fees only 

to the party that initiated the contempt proceedings in order to incentivize private parties 

to assist the court. Additionally, the People argue that the policies underlying 

section 1021.5 are inconsistent with contempt proceedings, since the alleged contemnors 

in contempt proceedings have sufficient incentive to mount their own defense without the 

incentive of an attorney fees award. Alternatively, the People maintain that Calvary’s 

motion failed to meet all statutory requirements for an award of private attorney general 

fees under section 1021.5.

As we will discuss, we determine that Calvary’s motion does not satisfy the 

statutory criteria for an award of private attorney general fees; specifically, the second 

criterion of section 1021.5, which is: “the necessity and financial burden of private 

enforcement.” (Id., subd. (b).) The second criterion “ ‘ “really examines two issues: 

whether private enforcement was necessary and whether the financial burden of private 

enforcement warrants subsidizing the successful party’s attorneys.” ’ [Citations.] The 

‘necessity’ of private enforcement ‘ “ ‘ “looks to the adequacy of public enforcement and 

seeks economic equalization of representation in cases where private enforcement is 

necessary.” ’ [Citations.]” ’ [Citation.]” (Whitley, supra, 50 Cal.4th at pp. 1214–1215.)
11

Thus, “ ‘ “ ‘[a]n award on the ‘private attorney general’ theory is appropriate when 

the cost of the claimant’s legal victory transcends his [or her] personal interest, that is, 

when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of 

proportion to his [or her] individual stake in the matter.’ [Citation.]” ’ [Citation.] A 

court generally determines whether the litigation places a disproportionate burden on the 

individual by comparing the expected value of the litigation at the time it was 

commenced with the costs of litigation. [Citation.]” (Adoption of Joshua S. (2008) 42 

Cal.4th 945, 952.)

We find the decision in In re Head (1986) 42 Cal.3d 223 (Head)to be instructive

with regard to the application of the section 1021.5, subdivision (b) criterion of financial 

burden. In considering whether prison inmates who successfully challenged the 

constitutionality of the Department of Corrections’ work furlough program could be 

awarded private attorney general fees under section 1021.5, our Supreme Court addressed 

section 1021.5 in the context of criminal defendants: “Both the language of 

section 1021.5 and the history of the private attorney general doctrine which it codifies 

reflect a legislative purpose of encouraging the initiation of actions to vindicate statutory 

and constitutional rights, as well as important public policies, in circumstances in which 

the expense of litigation would otherwise deter private parties from doing so. The 

criminal defendant does not initiate the action, and his self interest provides incentive 

enough to assert available defenses. The criterion of section 1021.5 that ‘the necessity 

and financial burden of private enforcement are such as to make the award appropriate’

is not met simply because establishing the availability of the defense which is offered 

incidentally benefits other defendants in similar cases. A decision which has as its 

primary effect the vindication of the litigant’s personal rights is not one which brings into 

play the attorney fees provisions of section 1021.5. [Citation.]” (Head, supra, at p. 228; 

see also In re Nicole S. (2019) 39 Cal.App.5th 91, 104 [“the financial incentives integral 

to [§] 1021.5 are unnecessary in the dependency context”].)
12

We determine that under the circumstances of this case, Calvary has not shown 

that the financial incentives provided by section 1021.5 were necessary to assert its 

constitutional defense to the contempt proceedings. This court’s annulment of the 

contempt orders and reversal of thousands of dollars in monetary sanctions in Calvary 

Chapel I “ha[d] as its primary effect the vindication” of Calvary Chapel’s personal rights 

to avoid contempt findings and significant monetary sanctions. (Head, supra, 42 Cal.3d

at p. 228.) Consequently, Calvary Chapel’s self-interest was sufficient incentive to assert 

constitutional defenses in the contempt proceedings, and the financial incentive of an 

award of private attorney general fees was not necessary. (See ibid.)

Moreover, we are not persuaded by Calvary’s contention that their motion 

satisfied the section 1021.5, subdivision (b) criterion of financial burden. Calvary makes 

the conclusory arguments that: “[p]rivate enforcement was necessary here. Calvary 

chose to continue worshiping in adherence to its sincerely held religious beliefs and to 

help the hurting in its community;” and “[t]he economic burden of enforcement justifies 

subsidizing Calvary’s attorneys.” Calvary also asserts that it was not motivated by 

pecuniary interests, thereby satisfying the financial burden criterion.5

However, as this court has noted, “section 1021.5 attorney fees serve ‘ “as a 

‘bounty’ for pursuing public interest litigation, not a reward for litigants motivated by 

their own interests who coincidentally serve the public” ’. . . . Thus, ‘[i]f the enforcement 

of the public interest is merely “coincidental to the attainment of . . . personal goals”

[citation] or is “self serving” [citation], then this requirement is not met.’ [Citations.]” 

(Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 

Cal.App.4th 1143, 1151.)

5 We understood counsel for Calvary to elaborate on this argument during oral 

argument, asserting that Cavalry Chapel is not a for profit institution and will not receive 

a financial benefit from bringing a section 1021.5 motion for private attorney general

fees. However, the financial status of Calvary Chapel is irrelevant to our analysis of the 

section 1021.5, subdivision (b) criterion of financial burden.
13

We therefore determine that Calvary’s motion for private attorney general fees 

does not satisfy the section 1021.5 subdivision (b) financial burden criterion for an award 

of private attorney general fees, and for that reason we conclude that the trial court did 

not err in denying the motion. Having reached this conclusion, we need not address the 

parties’ remaining arguments on appeal. We will therefore deny the petition for writ of 

mandate challenging the trial court’s May 19, 2023 order.

IV. DISPOSITION

The petition for writ of mandate challenging the May 19, 2023 order denying 

Calvary Chapel of San Jose and Mike McClure’s motion for private attorney general fees 

is denied. Costs in this original proceeding are awarded to the People of the State of 

California, County of Santa Clara, and Sara H. Cody, M.D.
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

DANNER, J.

WILSON, J.

Calvary Chapel San Jose et al. v. Superior Court (People et al.)

H051276