Bare v. LakeShastina Community Services Dist.

Filed 1/29/08 Bare v. Lake Shastina Community Services Dist. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

----

Defendants Lake Shastina Community Services District (the district), Allen Brezinsky, and Stan Beck (collectively defendants) appeal from a judgment in favor of plaintiff Robert Bare on his claim for damages under title 42 United States Code section 1983 (section 1983), as well as from a subsequent award of attorney fees. We conclude that defendants have failed to carry their burden of showing any insufficiency of the evidence or prejudicial trial court error. Accordingly, we will affirm the judgment and the attorney fee award.

FACTUAL AND PROCEDURAL BACKGROUND

Bare came to Lake Shastina in July 1995, when he accepted the position as administrator of the Lake Shastina Mutual Water Company (the water company). Pursuant to the terms of a letter of agreement, the water company shared its employees, including Bare, with the Lake Shastina Property Owners Association, the Rancho Hills Community Association, and the district. Thus, Bare was employed by the water company to serve, in addition to other roles, as the districts general manager.

Brezinsky was a member of the districts board of directors; Beck was an officer with the Lake Shastina Police Department.

Bares tenure in Lake Shastina was anything but smooth. As a result, in June 1998 Bare filed a complaint for damages against Brezinsky, the district, and others alleging numerous causes of action (case No. SCCV CV 98-1143). In January 1999, Bare filed a second amended complaint in case No. SCCV CV 98-1143. Thereafter, in April 2000 Bare filed a complaint in federal court against Brezinsky, Beck, and the district (among others), alleging a claim under section 1983 based on the assertion that Brezinsky and Beck, acting under color of state law, had retaliated against him for filing the second amended complaint in the state court action. Subsequently, the parties stipulated to dismissal of the federal court action, and Bare refiled the section 1983 claim in state court in December 2000 (case No. SCCV CV 00-2076). The gist of Bares section 1983 claim was that Brezinsky and Beck used their respective government positions to accomplish their common goal of retaliating against [Bare] for his protected speech.

Ultimately Bares two state court actions were consolidated and came to trial in June 2005. At the time of trial, the only claims Bare was still pursuing were the section 1983 claim from case No. SCCV CV 00-2076 and an assault claim against Brezinsky from case No. SCCV CV 98-1143. Bare withdrew the assault claim after the close of evidence, however, leaving the jury to decide only the section 1983 claim.

The jury returned special verdicts finding all three defendants liable but awarding compensatory damages (in the sum of $450,000) against Brezinsky only. The jury also found that Brezinsky had acted with malice or oppression and subsequently awarded Bare $45,000 in punitive damages. In July 2005 the court entered judgment on the jurys verdicts.^[1]

Thereafter, Bare filed an application for attorney fees and costs. The court granted that application in the total sum of $1,011,944.28. This included $841,118.75 in lodestar attorney fees and another $92,152.50 in attorney fees for preparing and defending the fee application.

Defendants filed timely notices of appeal from the judgment and the order of attorney fees and costs.

DISCUSSION

I

Matter Of Public Concern

Defendants first argument on appeal is that the first state court action, on which Bares section 1983 claim was based, did not embrace a matter of public concern and therefore no constitutional violation was pled or proved. They contend that because [t]here was . . . no constitutional issue, the matter should never have reached the jury and this court must reverse the decision and remand the matter for dismissal by the trial court.

In making their argument, defendants do not expressly identify any particular trial court ruling on this issue that they contend constituted error, nor do they clearly characterize their public concern argument as a challenge to the sufficiency of the evidence. They do, however, mention in passing their motion for a directed verdict at the close of the presentation of evidence, and Bare responds to their argument as though it were based on the denial of that motion. Since defendants do not argue against this in their reply brief (in fact, they offer no reply on this point), we will accept Bares approach and address the question of whether the trial court erred in denying defendants motion for a directed verdict.

Bares section 1983 claim asserted that in January 1999 he filed a second amended complaint in case No. SCCV CV 98-1143 alleging claims for relief which included a violation of [his] privacy rights and naming [as] defendant[s] Brezinsky and LCSD [sic] [Lake Shastina Community Services District]. It further asserted that following the filing of that complaint, Brezinsky and Beck met and reached an agreement to use Becks office as a police officer to harass, intimidate and retaliate against [Bare] for the filing of the complaint and each used their respective government positions to accomplish their common goal of retaliating against [Bare] for his protected speech. In essence, it was Bares theory that Brezinsky and Beck harassed him in retaliation for his exercise of his First Amendment rights in filing his second amended complaint in the earlier state court action.^[2]

In moving for a directed verdict, defendants argued that for Bare to have a valid claim under section 1983 for first amend[ment] retaliation, the earlier lawsuit cannot be solely a person[al] grievance between the two parties. It has to embrace a matter of public concern. Bare disagreed, asserting, Its the access to court that matters, not the content of the complaint when you get there. The trial court denied the motion for directed verdict on the ground there was substantial evidence to support a plaintiffs verdict.

In reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. [Citation.] Reversal of the denial of a motion for nonsuit or directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiffs case. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263.) Thus, we must first determine whether the matter of public concern element on which defendants argument is based was one of the elements Bare had to establish to prevail in his case. We conclude it was not.

To support their argument that Bares lawsuit had to embrace a matter of public concern for any resulting retaliation to be actionable under section 1983, defendants cite a number of federal court decisions involving lawsuits brought by public employees who were discharged from their employment in retaliation for exercising their First Amendment rights. In the seminal case -- Pickering v. Board of Education (1968) 391 U.S. 563 [20 L.Ed.2d 811] -- a teacher was dismissed from his position for sending a letter critical of the school board to a local newspaper. (391 U.S. at p. 564 [20 L.Ed.2d at p. 815].) The Supreme Court held that absent proof of false statements knowingly or recklessly made by him, a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. (Id. at pp. 574-575 [20 L.Ed.2d at p. 821], fn. omitted.)

In Connick v. Myers (1983) 461 U.S. 138 [75 L.Ed.2d 708], the court clarified that Pickering was limited to speech on issues of public concern. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employers dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. (Id. at p. 146 [75 L.Ed.2d at pp. 719-720].)

Most of the other cases defendants cite are in the same vein as Pickering and Connick, that is, they involve dismissals from public employment.^[3] (See Martin v. City of Del City (10th Cir. 1999) 179 F.3d 882 [public employee alleging he was terminated for petitioning for redress of grievances was required to show that his petitioning touched on matter of public concern]; Rendish v. City of Tacoma (9th Cir. 1997) 123 F.3d 1216 [same].) The problem with these cases is that they do not speak to the facts of this case. Bare did not sue the district for discharging him from his employment, or any other adverse employment action for that matter;^[4]instead, he sued for various other wrongful, harassing acts that Brezinsky and Beck allegedly perpetrated against him outside of the employment context in retaliation for the second amended complaint he had filed in the earlier action.

Defendants fail to offer any authority establishing that the public concern requirement of Pickering and its progeny applies when the plaintiff is not suing based on an adverse employment action. Indeed, the law is to the contrary. In Connick the Supreme Court explained that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employees behavior. (Connick v. Myers, supra, 461 U.S. at p. 147 [75 L.Ed.2d at p. 720], italics added.) The very point of the decision in Pickeringwas to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. (Pickering v. Board of Education, supra, 391 U.S. at p. 568 [20 L.Ed.2d at p. 817], italics added.) Thus it has been said that [t]he Pickering standard applies to determinations of whether a public employer has properly discharged or disciplined an employee for engaging in speech. (Burnham v. Ianni (8th Cir. 1997) 119 F.3d 668, 678.)

Defendants offer no reason why the Pickering balancing test would be necessary or appropriate under the facts of this case, where the gravamen of the claim is not the discharge from public employment but (in Bares words) government-sponsored . . . threats, harassment, violence and misuse of power. In the absence of any such authority, we conclude defendants have failed to demonstrate any error in the trial courts denial of their motion for a directed verdict.^[5]

II

Acts Done Under Color Of Law

A section 1983 remedy is available for constitutional injury inflicted by those acting under color of state law. (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1025.) Defendants argue that [d]espite [their] repeated efforts . . . to convince the trial court to identify which acts were accomplished under [their] public authority and which acts were undertaken in their personal capacities, . . . the trial court failed to undertake that effort for purposes of determining the admissibility and proper presentation of evidence, or for the purpose of instructing the jury on the required elements of a claim under section 1983.

At this point in defendants argument, we have a legitimate expectation that defendants will direct us to the place or places in the record where the trial court committed the alleged error or errors. (See, e.g., Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears].) They fail to do so. So far as we can discern, the portion of the reporters transcript that defendants cite is a mere portion of an argument on a motion in limine defendants filed seeking a court trial on certain legal issues, which apparently included the issue of qualified immunity, as well as others. Defendants do not direct us to any written motion in the appendix, they make no attempt to clarify exactly what motion was being argued, and they do not direct us to anywhere, either in the reporters transcript or in the appendix, where the trial court ruled on whatever motion was in fact being argued. This is insufficient to meet their burden of demonstrating trial court error. (See, e.g., Bennett v. McCall (1993) 19 Cal.App.4th 122, 127 [The appellant must affirmatively demonstrate error by an adequate record].) Accordingly, we deem this argument forfeited and will not address it further.

III

Proof Of Municipal Entity Liability

Defendants next argue that Bare failed to prove municipal entity liability. Although defendants fail to make their argument entirely clear, the thrust of it appears to be a challenge to the sufficiency of the evidence necessary to hold the district liable for the acts of the individual defendants, Brezinsky and Beck. As Bare points out, however, if defendants contend some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Defendants have not met this requirement. Not only does the statement of facts in their brief fail to contain any summary of the evidence regarding the allegedly retaliatory acts committed by Brezinsky and Beck, let alone the evidence on which those acts might have been attributable to the district, their summary of the evidence in the relevant portion of their argument amounts to nothing more than this: [Bare] described to the jury acts undertaken by . . . Brezinsky, [citation to the record], and in two particulars by . . . Beck, [citation to the record], that he asserted constituted harassment sufficient to invade his First Amendment interest in petitioning to redress grievances, but he put forward no information from which the jury could determine that the District had a policy of harassment for that purpose or any other, or that it had any custom or practice to engage in harassing activities such as those asserted here. This does not constitute set[ting] forth in their brief all the material evidence on the point. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) Accordingly, this argument has been forfeited.

IV

Qualified Immunity

Before trial, defendants argued that Beck was entitled to qualified immunity for two of the acts that Bare was alleging in support of his section 1983 claim: (1) issuing a loose dog citation to Bare; and (2) shadowing and surveilling Bare in his patrol vehicle. Bare argued that the court should hear all of the evidence before ruling on that issue. When the court said, That certainly makes sense and asked for defense counsels thoughts, counsel responded, If your Honor would like to try this case and then decide it at the end, Im not going to quarrel. Thats fine.

To the extent defendants now suggest that the trial court erred in reserv[ing] the issue of immunity for determination after verdict because [q]ualified immunity affords . . . protection from the burden of going forward with trial, not merely protection from any ultimate verdict, they forfeited that argument by agreeing the trial court could rule at the end of the case.

Defendants go on to argue that Beck was entitled to a ruling that he was qualifiedly immune from the suit; however, they fail to direct our attention to any point in the record where they asked the court for a ruling on the qualified immunity issue after they agreed the court could defer its ruling to the end of the case. Failure to obtain a ruling on an issue precludes an appellant from raising the issue on appeal. (See People v. Vargas (2001) 91 Cal.App.4th 506, 534.) Thus, we need not discuss this issue further.

V

Evidentiary Issues

One of the witnesses who testified for Bare was Russell Johnson, a member of the water companys board of directors at the time Bare was hired. Johnson testified that after a burglary of the community district building in which Bares contract was supposedly taken, he went to John Spencer, the chief of police, to talk to him about it. Johnson asserted that Chief Spencer was very noncommittal. He really didnt appear to [be] doing too much about it.

Bares counsel then sought to elicit Johnsons testimony about something Spencer told him during that conversation. After Johnson testified that Spencer told him they had a meeting, counsel asked, Who had a meeting? Johnson responded, Well, I wrote it down who is all involved -- theres another letter that I wrote right after that. At that point, defense counsel had exhibit 26 marked for identification. The court then took a recess, and before the jurors returned, the court and counsel argued about the exhibit and the testimony defense counsel was seeking to elicit.

Defense counsel argued that Bares counsel was about to question Mr. Johnson on a letter I believe that he prepared at some date distant in time from this alleged burglary. Counsel continued, the letter will purport to state that during this conversation Chief Spencer told him that he knew who committed the burglary. And that there was a meeting at Silvas. [] And then the people who went over there and did it w[ere] Jamie Lea, Al Brezinsky and Bill Kalagorgevich, I believe, and Stan Beck stood guard. [] . . . [] If Chief Spencer knows information about who committed that burglary theyre bringing him, let him speak to that. [] But to put it in through this witness is highly prejudicial , and its incompetent hearsay. I dont even know how many levels of hearsay exist[] to Chief Spencers purported knowledge of this event.

The court agreed it was hearsay. Bares counsel argued that because Chief Spencer was one of the bosses of the community services district, this is a conspiracy of the [community services district]. . . . That makes it not hearsay. Counsel also argued that he was not offering it to prove the truth of the matter asserted, but only to show that Chief Spencer was aware of what was going on and was not completing the investigation. And that nobody was completing the investigation [goes] to the heart of the conspiracy. Defense counsel repeated his hearsay objection and his objection under Evidence Code section 352, but the court overruled those objections, finding that the evidence come[s] within the against penal interest exception of the hearsay rule and the probative value outweighs the prejudicial value.

Bares counsel proceeded to elicit Johnsons testimony authenticating exhibit 26 as a note he had prepared that now helped refresh his recollection of his conversation with Chief Spencer, in which the chief told him who had planned and carried out the burglary, including Brezinsky and Beck. Later in the trial, the court admitted the note into evidence as exhibit 26, over defendants renewed hearsay objection, observing that it might be admissible as a prior inconsistent statement (since Chief Spencer had later testified that he didnt recall the incident) or under the exception for statements of a coconspirator.

On appeal, defendants complain that Bare was permitted to introduce Exhibit 26 . . . and testimony about it for which there was no legal support and which was highly prejudicial to the defense. They argue that Chief Spencers statement to Johnson was not admissible under the hearsay exception for admissions of a coconspirator (Evid. Code, 1223) or the exception for declarations against interest (id., 1230). They do not discuss the hearsay exception for prior inconsistent statements (Evid. Code, 1235), which the trial court mentioned in admitting the note into evidence.

Defendants correctly point out that the declarant must be unavailable as a witness for the declarations against interest exception to apply, but here Spencer was available and in fact testified later in the case. Bare responds by asserting that Spencers statement to Johnson was admissible under the hearsay exception for authorized admissions (Evid. Code, 1222), as well as the hearsay exception for prior inconsistent statements. Bare also asserts the testimony was not hearsay because it was not offered for the truth of the matter asserted.

Defendants offer no response to these arguments in their reply brief, which leads us to believe they have no response. In any event, even if we were to conclude that the trial court abused its discretion in admitting this evidence, that conclusion would offer no basis for providing relief to defendants, as they have failed to demonstrate that the admission of this evidence constituted prejudicial error.

Three principles are relevant here. First, Appellant has the burden of demonstrating both that the evidence at issue was erroneously admitted, and that the error was prejudicial. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1122.) Second, we cannot reverse a judgment based on the erroneous admission of evidence unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, 13; Evid. Code, 353, subd. (b).) Third, to find a miscarriage of justice, we have to conclude, after an examination of the entire cause, including the evidence, that a result more favorable to defendants would have been reached in the absence of the error. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)

Taken together, what these principles mean here is that defendants bear the burden of convincing us, based on an examination of the entire cause, including the evidence, that they would have achieved a more favorable result if the evidence of what Chief Spencer told Johnson about the participants in the burglary had been excluded. Defendants have not carried that burden. Rather than explain how, in light of the entire record, the evidence of which they now complain tipped the scale against them, they simply assert that the prejudicial nature of the evidence cannot be gainsaid. That ipse dixit is not enough to show a miscarriage of justice. Accordingly, we reject defendants claim that the trial court prejudicially erred in admitting evidence of what Chief Spencer told Johnson about the participants in the burglary.

VI

Dismissal Of A Juror

The trial court instructed the jurors on July 6, 2005, and sent them out to deliberate. The next afternoon, the jury foreperson sent a note that Juror No. 10 wanted to be excused. The court called the juror in and inquired about the problem. Juror No. 10 described the deliberations as an exercise in futility and pointless. When asked if it was a situation in which you have one view of either the law or the evidence and other jurors have other views, the juror responded, Thats kind of it, and the futility of my opinion being extremely futile. Later, the court asked the juror if he could continue to deliberate with the other jurors or are you in such a position that you could go back there but you would not take part in the discussions, you would not express your views and so on? The juror responded, Exactly, that is the futility of it. I am sitting there. There is no deliberation. When the court asked if it was correct to say you would not continue to deliberate, the juror replied, Well, other than I mean, deliberation is a give-and-take. Its pretty much -- I dont think anything is going to change. When the juror then expressed uncertainty about what the definition of deliberation is, and the court described it as the ability of jurors to exchange ideas, Juror No. 10 said, They are very well versed in their views and I am well versed in mine, and there is an opinion nothing is going to change. Its -- I can sit there and be a body . . . . That led to this final exchange:

The Court: Let me ask you this: If you were to go back in there and stay with the jury, would it be -- a way to describe your participation would be you would merely be a body sitting in the jury room without any exchange of views and evidence?

Juror: That would be my opinion, yes.

The Court: All right. . . . You are excused.

Defense counsel subsequently objected to the juror being excused because he believed no refusal to deliberate had been shown, only a difference of opinion.

On appeal, defendants contend it was reversible error to dismiss Juror No. 10. We disagree.

The trial court may discharge a juror who is unable to perform his or her duty, which includes the refusal to deliberate. (Pen. Code, 1089; People v. Cleveland (2001) 25 Cal.4th 466, 475.) We review the trial courts ruling for abuse of discretion; as long as there is any substantial evidence supporting the trial courts ruling, we will uphold it, but the jurors inability to perform as a juror must appear in the record as a demonstrable reality. (Cleveland, at p. 474.)

A refusal to deliberate consists of a jurors unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. (People v. Cleveland, supra, 25 Cal.4th at p. 485.) Defendants contend there was no showing of a refusal to deliberate here, only an expression by Juror No. 10 of his disagreement with a significant number of his fellow panel members. The flaw in that argument is that it is based only on the jurors responses to the courts initial questions and fails to account for the jurors later responses, including, in particular, his final response, set forth above.^[6] Giving the trial court the deference required by the abuse of discretion standard of review, we cannot conclude that the trial court abused its discretion in determining Juror No. 10 had indicated his intent not to deliberate further when he asserted that if he went back he would merely be a body sitting in the jury room without any exchange of views and evidence. Although this statement might be understood as an expression of deadlock, the trial court did not act unreasonably in determining that it instead indicated that Juror No. 10 would not participate in further discussions. Accordingly, we find no abuse of discretion in the trial courts dismissal of the juror.

VII

Jury Instructions And Verdict Forms

Defendants offer various complaints about the jury instructions and verdict forms. First, they assert the trial court never reviewed [their] proffered instructions, and they contend this fact alone shows a defect that merits reversal and remand. Defendants offer no authority in support of this argument, and on that basis alone it is waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived].) In addition, however (as Bare notes), the trial court specifically stated in denying defendants new trial motion that it did consider all of the defendants proposed instructions and changes submitted before it ruled on the final set.

Defendants next complaint is more difficult to pin down. They first assert that the jury instructions and the verdict forms fail[ed] . . . to identify whether the individual defendants were acting within the course and scope of their employment when they committed the acts alleged to have violated [Bares] rights, or whether they were acting for their own personal purposes. Ultimately, however, defendants appear to argue that the trial court erred in rejecting an instruction that would have informed the jury that an employee cannot conspire with his employer. But, as Bare points out, the court gave the instruction defendants offered on this point.

To some extent, defendants appear to complain that the trial court erred in instructing the jury that Brezinsky, Chief Spencer, and another individual (Alan Johns) were policy-making officials of the District in its instruction relating to the liability of the district.^[7] They also complain that one of the questions on the verdict forms included [t]he concept of legitimate public purpose, which is a legal standard that bears little if any relationship to the claim that has been tried. Neither of these arguments is particularly well-developed, however, and in neither case do defendants offer any argument about how they were prejudiced by the alleged errors. [W]hen the jury receives an improper instruction in a civil case, prejudice will generally be found only [w]here it seems probable that the jurys verdict may have been based on the erroneous instruction . . . . [Citation.] That assessment, in turn, requires evaluation of several factors, including the evidence, counsels arguments, the effect of other instructions, and any indication by the jury itself that it was misled. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Having made no attempt to address these factors in connection with their claims of instructional error, defendants have waived the point. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)

Defendants next complain that by accepting Bares jury instructions and verdict forms, the court effectively allowed Bare to amend his complaint on the eve of giving the case to the jury, in contravention of another judges earlier denial of a motion for leave to amend the complaint. Defendants do not explain how the jury instructions or verdict forms achieved this result, and indeed their argument appears to morph into a complaint about the scope of the evidence the trial court admitted. Moreover, they offer not a single authority in support of this claim of instructional/evidentiary error. Like many of their previous arguments, this one too is forfeited because it is not properly developed and supported. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)

Defendants final complaint about the jury instructions is that they allowed Bare to recover for conduct barred as a matter of law. Immediately under this heading, however, defendants argue that the trial court erred by allowing [Bare] to introduce extensive evidence related to the shooting of his dogs. Thus, defendants have conflated a claim of instructional error with a claim of evidentiary error. Later, the argument turns to the suggestion that the court erred in allow[ing] the jury to award damages for the dog shooting by means of [Bare]s special verdict forms. Ultimately, the gist of defendants position appears to be that Bare was barred by the statute of limitations from recovering any damages for the shooting of his dogs because he voluntarily dismissed a federal lawsuit based on the dog shooting, with prejudice, and failed to refile that claim in state court within 30 days.

Whether intended as a claim of evidentiary error, instructional error, or error in the special verdict forms, this argument fails not only because defendants do not identify exactly what they contend the error was, but also because they have not made an adequate showing of prejudice from the alleged error. It is not enough to argue, as defendants do, that the shooting of [Bares] dogs could easily have aroused the jurors sympathies and passions, and influenced their determinations. By constitutional mandate, we cannot reverse a judgment based on instructional error, evidentiary error, or procedural error unless, based on an examination of the entire cause, including the evidence, we are of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.) A miscarriage of justice occurs when it appears that a result more favorable to the appealing party would have been reached in the absence of the alleged errors. [Citations.] The burden is on the appellant in every case to show that error has resulted in a miscarriage of justice. [Citation.] Further, appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945.) Defendants have not done that here.^[8]

In summary, we conclude defendants have failed to make any proper showing of prejudicial error in the jury instructions or verdict forms.

VIII

Attorney Fees And Costs

Defendants contend that in awarding Bare attorney fees, the trial court erred in two significant ways. First, they contend the trial court erred in determining the prevailing rate on which the fee award was based; and second, they contend the trial court failed to reduce fees for unsuccessful efforts that contributed nothing to the final outcome of the case. We find no merit in defendants arguments.

Title 42 United States Code section 1988(b) provides that [i]n any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs.

For United States Code section 1988 fees, we review the [trial] courts decision for abuse of discretion because of its superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 323-324.)

According to the United States Supreme Court, reasonable fees under 1988 are to be calculated according to the prevailing market rates in the relevant community. (Blum v. Stenson (1984) 465 U.S. 886, 895 [79 L.Ed.2d 891, 900].) Although defendants assert that the trial judge confused the prevailing rates of the attorneys who handled the case who were not from the relevant community, with the prevailing rates in the community, it is apparent from the record that this is not true. The trial court was not confused about what the prevailing rate in the relevant community was; instead, the trial court specifically awarded fees at San Francisco rates, even though the case was tried in Siskiyou County, because Bare satisfactorily demonstrated that he made reasonable and good faith efforts to locate qualified local counsel . . . and was unsuccessful and [i]t was therefore reasonable to retain experienced counsel in San Francisco.

[A] number of circuits have held that rates, other than those of the forum, may be employed if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case. (Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1405.)

In an effort to show the unavailability of local counsel and thereby justify his hiring of a San Francisco firm, Bare submitted a declaration attesting to the following facts: (1) his original attorney informed him that the case was too much for her to handle; (2) a Sacramento attorney then represented him for about a year but withdrew because he was unable to keep up with the litigation and he was leaving private practice; (3) Bare interviewed roughly five attorneys, none of whom were able or willing to take the action, before he located a sole practitioner (from Redding) who eventually could not continue to represent [him] without experienced civil rights counsel; and (4) he was ultimately referred to the San Francisco firm that took the case to trial. He also submitted a declaration from his Sacramento attorney who attested that [d]espite [his] best efforts, [he] could not find experienced civil rights counsel to represent Mr. Bare in the County of Siskiyou or nearby, or in Sacramento.

Defendants argue that [t]he issue in determining the unavailability of local counsel is not that [Bare] inquired of several counsel and was rebuffed as was shown in this case. . . . Rather it is the unavailability of local counsel due to lack of experience or expertise. They contend that Bare made no effort to show that there were no experienced counsel with sufficient expertise to handle his case within the forum of Siskiyou County or within the Eastern District bar. Defendants do not explain how Bare could have made such a showing. In any event, we are persuaded that if a plaintiff makes a good faith effort to obtain local counsel but is unable to do so and hires counsel from another legal market with a higher prevailing rate, the trial court does not abuse its discretion in awarding attorney fees at that higher prevailing rate, absent some other relevant circumstance. (See Horsford v. Board of Trusteesof California State University (2005) 132 Cal.App.4th 359, 399 [we doubt a plaintiff needs to make anything more than a good-faith effort to find local counsel [citation] in order to justify the fees of out-of-town counsel].) The ultimate question under the governing statute is whether the fees awarded were reasonable. (42 U.S.C. 1988(b).) Where a plaintiff has tried to hire a local attorney who can handle the case at a lower prevailing rate but has not succeeded, then it may well be reasonable for the plaintiff to hire more expensive, out-of-town counsel. And where, as here, the trial court determines that it was reasonable to do so, then it falls to the defendant, as the appellant, to convince us the trial court abused its discretion in making that determination. Defendants have not carried that burden here. Accordingly, we find no abuse of discretion in the trial courts decision to award fees based on San Francisco rates.

Defendants final argument is that the court erred in not reducing the number of hours claimed by Bares attorney. They complain generally that the trial court failed altogether to weigh the impacts of the procedural history of this case, but they fail to identify specifically what fees they contend the trial court should not have awarded and why, let alone show that they made these arguments to the trial court. Instead, they argue abstractly that the trial court did not reduce the hours or the overall bill to account for limited success and/or a failure of proof and complain that neither the oral argument on the matter [n]or the ultimate order issued regarding award of fees suggest that [the trial court] even bothered to weigh them in any meaningful way.

To the extent defendants do address fees relating to an unsuccessful motion to amend the complaint which they did challenge in the trial court, the trial court explained that it was rejecting that challenge because it was convinced that the time devoted to this amendment was useful in developing [Bare]s ultimately successful litigation and trial strategy. The court also cited authority in support of its ruling. (See Cabrales v. County of Los Angeles (9th Cir. 1991) 935 F.2d 1050, 1052 [the general rule [is] that plaintiffs are to be compensated for attorneys fees incurred for services that contribute to the ultimate victory in the lawsuit].) Defendants make no effort to challenge the trial courts ruling, asserting only that this ruling alone suggests strongly that the trial judge did not fulfill his duty to weigh carefully the issues brought before him with regard to the fee award. Why this should be so, we are left to wonder, which is fatal to defendants challenge. Defendants bear the burden of convincing us that what the trial court did was wrong or unreasonable, and they cannot carry that burden just by saying it is so. Thus, we conclude defendants have failed to show any abuse of discretion in the trial courts award of attorney fees and costs to Bare.

DISPOSITION

The judgment and the order awarding Bare attorney fees and costs are affirmed. Bare shall recover his costs on appeal. (Cal. Rules of Court, rule 8.276(a).)

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

HULL, J.

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^[1] Because of the jurys finding of liability but no damages, the court awarded nominal damages of $1.00 each against Beck and the district.

^[2] The right of free access to the courts is as an aspect of the First Amendment right of petition. (California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 339.)

^[3] The third case -- Thaddeus-X v. Blatter (6th Cir. 1999) 175 F.3d 378 -- involved not public employees, but state prison inmates. The court there found that there is no authority for subjecting a prisoners constitutional right to access the courts, an aspect of the First Amendment right to petition the government for redress of grievances, to the public concern limitation described in Connick v. Myers. Nor would such a holding make sense as a policy matter. (Thaddeus-X, at p. 392.) That holding is of no assistance to defendants here.

^[4] Indeed, as defendants themselves admit in their opening brief, the vote that effectively terminated Bares employment with the district occurred well before the filing of his Second Amended Complaint [in the earlier action] on January 5, 1999. Accordingly, his termination could not have been in retaliation for filing the complaint.

^[5] In a related argument, defendants argue that the trial court erred in denying an otherwise unidentified posttrial motion based on the determination that [Bare]s speech touched on matters of public concern . . . , and that [Bare]s interests outweighed the governments interests. This argument, like the one we have just rejected, rests on the premise that the public concern element from Pickering and its progeny applied to Bares section 1983 claim. Since we have rejected that premise already, we need not address this argument further.

^[6] In recounting the facts leading up to the jurors dismissal, defendants summarize the jurors responses to the courts questions only through page 2507 of the reporters transcript. The courts inquiry, however, continues through page 2510, where the jurors final response -- which was immediately followed by the courts dismissal -- is found. Defendants ignore this portion of the inquiry entirely.

^[7] The trial court instructed the jury as follows on this point: To establish that the District is liable for any acts that may have violated Bares civil rights, Bare must prove that such acts occurred as a result of an official decision or policy of the District. [] In this context, an act that results from an official decision or policy means an act or an omission that was done by or at the discretion or the direction of a policy-making official or an act or omission that was subsequently approved by such official. [] A policy-making official is one whose acts or decisions may fairly be said to represent the official policy of an entity. [] I instruct you that in this case Alan Johns, Allen Brezinsky, and Chief John Spencer were policy-making officials for the District.

^[8] Bare points out that although he argued the jury should award over $12,000 in economic damages for the shooting of the dogs, the jury awarded no economic damages, thereby suggesting that the jury did not impose any liability based on the shooting of the dogs.