San DiegoCounty Deputy Sheriffs Assn. v. County of San Diego

Filed 3/21/08 San Diego County Deputy Sheriffs Assn. v. County of San Diego CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Reversed.

The San Diego Deputy Sheriffs' Association (the Association) and Deputy Sheriffs Cesario Avila and Rosemarie Kurupas (collectively with the Association, the claimants) sued the County of San Diego and certain related parties (collectively, the County), contending that the County had failed to afford the officers the rights to which they were entitled under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code,  3300 et seq. (the Act) relating to performance-related memoranda and e-mails. The court found in favor of the claimants and, after finding that the County acted with malice, imposed certain penalties and awarded the claimants their attorney fees under the Act. On appeal, this court reversed the judgment as to the award of fees and penalties and otherwise affirmed in an unpublished opinion. (San Diego County Deputy Sheriffs' Association v. County of San Diego, D046774, May 31, 2006 [unpub. opn.].)

On remand, the trial court granted a motion by the Association to recover its attorney fees pursuant to Code of Civil Procedure section 1021.5. (All further statutory references are to this code except as otherwise noted.) The County appeals, contending that the statutory criteria for granting an award of fees on a "private attorney general" theory were not satisfied. We agree that the statutory requirement of a significant benefit to the public or a large group of people has not been met and reverse the judgment on that basis.

FACTUAL AND PROCEDURAL BACKGROUND

The following recitation of the factual and procedural background of the case is taken, in part, from this court's unpublished opinion from the prior appeal.

The claimants filed this action against the County seeking damages, declaratory relief and a writ of mandamus, alleging in part that the County had adopted a policy of using temporary "documents of discussion" to criticize a deputy's performance (which documents would be kept for less than a year and then destroyed either without record or after being incorporated into the officer's employee performance review) in an attempt to deprive the officer of his or her right to administratively appeal "punitive actions" pursuant to the Act. The complaint further alleged that the County's use of e-mails to communicate performance criticisms, without the knowledge of the officer being criticized, also violated the Act. (San Diego County Deputy Sheriffs' Association v. County of San Diego, supra, at pp. 8-9.)

In a bench trial, the court concluded that (1) the County's documents of discussion relating to Avila's performance constituted "punitive actions" for purposes of the Act and (2) although e-mails relating to Kurupas's performance evaluation were not also "punitive actions," they were "adverse comments" that Kurupas had a statutory right to review, sign and rebut. The court found that the County's violations of the Act were malicious and imposed civil penalties of $15,000 and awarded the claimants $100,017 in attorney fees pursuant to the Act. (San Diego County Deputy Sheriffs' Association v. County of San Diego, supra, at p. 10.)

On appeal, this court affirmed the trial court's determinations that the County had violated the claimants' rights under the Act, although we reversed the award of civil penalties and attorney fees. (San Diego County Deputy Sheriffs' Association v. County of San Diego, supra, at pp. 2, 20.) On remand, the Association moved to recover $154,357.50 in attorney fees pursuant to section 1021.5; the trial court granted the request in part, awarding fees of $91,850. The County again appeals.

DISCUSSION

1. General Principles

Section 1021.5 codifies the "private attorney general" doctrine of attorney fees established by judicial precedent. (See Serrano v. Priest (1977) 20 Cal.3d 25; Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634.) The statute authorizes the court to award fees to a successful party in an action that "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 . . . 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." ( 1021.5; see also In re Adoption of Joshua S. (2008) 42 Cal.4th 945, 949 [holding that section 1021.5 does not authorize an award of attorney fees against an individual who has done nothing to adversely affect the rights of the public or a substantial class of people other than raise an issue in the course of private litigation that could establish legal precedent adverse to a portion of the public].)

The doctrine is based on "' . . . 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.'" (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham), quoting Maria P. v. Riles (1987) 43 Cal.3d 1281, 1288-1289.) "'[T]he fundamental objective of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases." (Graham, supra, 34 Cal.4th at p. 565, quoting Maria P. v. Riles, supra, 43 Cal.3d at pp. 1288-1289.)

2. Standard of Review

Although an order granting or denying an award of attorney fees is generally reviewed pursuant to an abuse of discretion standard, the determination of whether the statutory criteria for an award of attorney fees have been met presents a question of law. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; compare Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584, 598 [upholding the trial court's award of fees on an abuse of discretion standard].) In this regard, we note that the parties did not introduce evidence independent of that presented at trial to establish whether the statutory criteria were met and the trial court did not make any factual findings in that regard, but determined the issue as one of law. Accordingly, we exercise de novo review of the court's determination that the prerequisites for a fee award were met here.

3. Significant Benefit to the Public or a Large Group of People

The County contends in part that this action did not result in the enforcement of an important right affecting the public interest because it did not meet the first criteria under section 1021.5, that it confer "a significant benefit . . . on the general public or a large class of persons[.]" Although there are a number of published appellate cases that have upheld awards of attorney fees to public safety officers who have sued to enforce rights under the Act, we agree with the County that those cases are distinguishable and that the rights sought to be enforced in this action did not rise to such a level as to confer a significant benefit on the public.

For example, in Otto v. Los Angeles Unified School Dist. (2003) 106 Cal.App.4th 328, 334-335 (Otto II), the Court of Appeal for the Second Appellate District, Division Three, reversed a trial court order denying attorney fees to a school public safety officer who successfully challenged his employer's refusal to afford him an administrative appeal from a memo that contained criticisms regarding his performance. The court concluded that the underlying action, which involved the issue of what constituted a "punitive action" for purposes of the Act, had widespread implications for law enforcement agencies and their employees across the state and thus had conferred a significant public benefit by "furthering the public's interest in effective law enforcement." (Id. at pp. 334-335.)

Further, the Association directs our attention to Riverside Sheriff's Ass'n v. County of Riverside (2007) 152 Cal.App.4th 414 (Riverside Sheriff's Association). There, a sheriff's association filed an action after the county denied certain deputy sheriffs, who were the subject of a criminal investigation regarding their conduct toward female jail inmates, access to union representatives as required under section 3300 of the Act. The trial court found in the association's favor and awarded it attorney fees pursuant to section 1021.5, the latter of which the county challenged on appeal. The appellate court held that the trial court did not abuse its discretion in awarding fees to the association and that the action resulted in a significant benefit to the general public or a large group of people because:

"[t]he rights and protections afforded by [the Act] benefit not only public safety officers but the public in general. By promoting stable employer-employee relations, [the Act] fosters a solid and secure public safety work force. . . . It also encourages peace officer cooperation in investigations of possible wrongdoing. . . . Alleged violations of [the Act] therefore implicate duties 'which inure[] to the benefit of the public at large' . . . , transcending the employer-employee relationship . . . ." (Riverside Sheriff's Ass'n, supra, 152 Cal.App.4th at p. 422, quoting Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1150.)

However, although we agree with Riverside Sheriff's Association's observations that the Act promotes such beneficial goals as stable employer-employee relations, a secure public safety work force and peace officer cooperation in investigations, we do not agree with the suggestion that any action alleging violations of the Act necessarily confers a significant benefit to the public, regardless of the nature of the alleged violations or the underlying circumstances. Although the fact that an action seeks to enforce existing rights "does not mean that a substantial benefit to the public cannot result" (Otto II, supra, 106 Cal.App.4th at p. 335, citing Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318), the flipside argument, that every action to enforce existing rights does give rise to such a benefit, is likewise inaccurate. (See Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935-936; also Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31, 50 [recognizing that the fact that an action rectifies illegal private or public conduct, standing alone, does not establish that the action conferred a significant benefit on the public].)

Here, we conclude that the claimants' case against the County did not confer a significant benefit on the public within the meaning of section 1021.5 because the issue involved here was virtually identical to the issue resolved in Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985 (Otto I). As noted briefly above, that case involved a school public safety officer's petition for a writ of mandate, seeking to compel the school district to afford him an administrative appeal from a "summary of conference" memo, which summarized performance criticisms made to him orally by his supervisor and was placed in his personnel file. Accepting the district's argument that the memo was not a "punitive action" for purposes of the Act, the trial court denied the officer's petition. On appeal, the Court of Appeal for the Second District, Division Three, reversed, concluding that because the comments in the memo were of the type that might provide the basis for an adverse employment action against the officer in the future, they were punitive in nature and thus the officer was entitled to an administrative appeal arising therefrom. The officer was thereafter awarded fees under section 1021.5 and the award was upheld on a second appeal because the action sought to vindicate rights that "further[ed] the public's interest in effective law enforcement" by clarifying the scope of what constitutes a punitive action under the Act, which in turn had widespread implications for law enforcement agencies and their employees across the state. (Otto II, supra, 106 Cal.App.4th at pp. 334-335.)

As in Otto I, the County here sought to use temporary "documents of discussion" as a means of communicating criticisms about an officer's job performance without affording the officer an opportunity to administratively appeal from it. This action sought to enforce an officer's existing rights under the Act, rights that were clearly established by the language of the Act itself and by Otto I. Because the rights the claimants sought to enforce were essentially coextensive with those involved in Otto I, this action did not confer a significant benefit on the public or a large group of people, but instead benefitted only the named officers and other Association members, if any, who received documents of discussion that were critical of their job performances. (Compare Baggett v. Gates (1982) 32 Cal.3d 128, 143 [recognizing that an action to enforce a safety officer's right to an administrative appeal under the Act before being reassigned to lower paying positions based on poor performance conferred a substantial benefit on the named officers and "many others"].)

For the foregoing reason, we conclude that this action did not confer a significant benefit on the public or a large group of people for purposes of section 1021.5 and thus that the claimants have not met the criteria for obtaining an award of attorney fees under that statute.

DISPOSITION

The judgment is reversed. The County is to recover its costs of appeal.

McINTYRE, J.

WE CONCUR:

McCONNELL, P.J.

IRION, J.

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