Opinion
As Modified Dec. 30, 1981.
For Opinion on Hearing, see 185 Cal.Rptr. 232, 649 P.2d 874.
Opinions on pages 211-247 omitted.
Burt Pines, City Atty., Frederick N. Merkin, Senior Asst. City Atty., and Catharine H. Vale, Asst. City Atty., for respondents and appellants and cross-respondents.
Loew & Marr and Cecil W. Marr and Robert J. Loew, Los Angeles, for petitioners and respondents and cross-appellants.
LUI, Associate Justice.
STATEMENT OF THE CASE
Appellants, defendants in the court below, appeal from the judgment and order of the Superior Court of the County of Los Angeles entered July 23, 1980, granting respondents [179 Cal.Rptr. 511] a peremptory writ of mandate commanding appellants to comply fully with the Public Safety Officer's Procedural Bill of Rights Act (hereinafter referred to as "Act", Gov.Code, §§ 3300 et seq. ) and to take no action which will result in a reduction of salary or other punitive action as defined in the Act. The judgment and order further provided that the appellants are restrained and enjoined "(f)rom transferring or reassigning any officer(s) from advanced paygrade assignments to duties at lower paygrades until such officer(s) have been afforded an opportunity for an administrative appeal." The judgment and order followed the granting of a preliminary injunction by the trial court on May 30, 1980.
Hereinafter, all references are to the Government Code unless otherwise indicated.
Respondents cross-appeal from the order of the trial court denying their motion for costs and attorney's fees.
STATEMENT OF FACTS AND BACKGROUND
In this appeal, appellants (Daryl F. Gates, Chief of Police of the City of Los Angeles and the Board of Police Commissioners of the City of Los Angeles) contend that article XI, section 5 of the California Constitution grants exclusive authority to the City of Los Angeles ("City") to govern, by charter and implementing ordinances and regulations, the internal operations of its police department. Appellants contend that the deployment of police officers within the Department is a municipal affairs matter and is not of statewide concern and, accordingly, the Legislature may not interfere with the regulation of matters of municipal concern. Appellants thus argue that the Act may not be constitutionally applied to the City, a chartered city.
Respondents are police officers employed by Los Angeles Police Department ("Department"). Each of them has been continuously assigned to the Firearms and Explosive Unit ("Unit") of the Department's Scientific Investigation Division for periods between five and eleven years. Because of the specialized and hazardous natures of their duties in this Unit, each while so assigned, was compensated at the salary rate of "Police Officer IIIk3".
Beginning in July 1979, an investigation was conducted by the Department's Internal Affairs Division into allegations of improprieties and misconduct involving the respondents and other members of the Unit. Among the allegations asserted were instances of drinking on duty or on police premises, shooting of pellet and BB rifles inside police facilities and into the streets, mishandling of evidence, and various pranks engaged in during duty hours.
We now turn to the allegations against and the interrogation and investigation of each respondent. The allegations relating to respondent Baggett include the failure to report properly, book, control, categorize, or process certain nonexplosive items of evidence. Respondent Zelhart was allegedly observed accepting explosives from an unknown military source without notifying his supervisor. Zelhart is also alleged to have moved the explosives to the Department storage magazine and then to the Los Angeles County Sheriff's Department where they were disposed of in a routine fashion in violation of the Department's policy of requiring approval for and recording of such transactions. The investigation also disclosed that certain of these acts had occurred at periods in excess of one year earlier and that some of the allegations of misconduct were not substantiated.
The motivation to proceed against the respondents by way of a reassignment and not by way of a Board of Rights hearing for misconduct pursuant to the City Charter, section 202, subdivision (1), could be due to the one-year statute of limitations contained therein. In fact, counsel for the appellant inferentially conceded this point during oral argument.
[179 Cal.Rptr. 512]During the course of the Internal Affairs investigation, each of the officers was interviewed at length. Internal Affairs investigators interviewed respondent Zelhart on July 11, 1979, beginning at approximately 2 p. m. This investigation continued until 8 p. m. at which time Officer Zelhart was placed in an outer office of the S.I.D. Division until 10 p. m. and then went to dinner at approximately 11 p. m. At 11 p. m., Officer Zelhart was questioned until 1:30 a. m. the next morning and then was allowed to leave. His normal watch would have ended at 10 p. m. During the interview, he declined permission to have his home searched. He was subsequently informed the next day that he would be placed on loan until a transfer could be effectuated to the Jail Division.
Respondent Baggett was interviewed by the Internal Affairs Division on July 11, 1979. His normal quitting time was at 4 p. m. that day. His interview began at 1:30 p. m. and lasted until 7:30 p. m. During the interview, he was asked for the key to his police vehicle which had been permanently assigned to him and he complied. He was asked specific questions relating to items which had been taken from his permanently assigned desk without his permission. The desk served as his personal locker because members of the Unit were not assigned lockers at their work location. At approximately 9:30 to 9:45 p. m., Officer Baggett was informed that he was the subject of an administrative investigation and of allegations that he was storing evidence of explosives in his home. He granted permission to search his house and garage but was required to remain in the Internal Affairs Division offices while his home was searched in the presence of his wife. The next day he was advised that he would be placed on loan and transferred to another assignment.
Respondent Butler was interviewed on July 13, 1979, while on vacation from the Department. He was asked to come to Department headquarters but responded that he had no transportation and that there was a serious illness in his family. Members of the Internal Affairs Division came to his house that afternoon and interviewed Butler for approximately two and one-half hours. The interview was concluded due to a family death which had resulted from the illness that had prevented Butler from going down to the Department headquarters. No search was conducted of his home although he was asked to consent to a search, which he did. Subsequently, Butler was placed on loan to the Records and Identification Division. He learned that his desk and police vehicle had been searched without his permission and was shown photographs of objects taken from his desk.
On July 11, 1979, Officer Spencer was scheduled to conclude his watch at 4 p. m. At approximately 6 p. m., he was taken to the Internal Affairs Division office and was interviewed beginning at approximately 6:30 p. m. The interview concluded at approximately 11 p. m. At 11:30 p. m., he was asked by a member of the Criminal Conspiracy Section to grant permission to search his home which he declined. Subsequently, Officer Spencer was placed on loan to the Jail Division.
Based upon information developed during the investigations, the respondents' commanding officer concluded that each of the respondents had performed their duties in the Unit negligently and unsatisfactorily. Each of the respondents was ordered transferred from the Unit to lower paying Police Officer II duty assignments in other divisions. At the time of their reassignments, no charges of misconduct had been brought against any of the respondents. The Department [179 Cal.Rptr. 513] did not provide respondents with a hearing before a Board of Rights or any administrative appeal prior to ordering respondents' transfers.
The Department's salary structure, known as the "Jacobs Plan," provides for certain requirements necessary to qualify for paygrade assignments. Police Officer I is a paygrade in which an officer is employed during the first one and one-half years of service. Police Officer II is a paygrade in which a Police Officer I is automatically advanced upon completion of the one and one-half years of service. Police Officer I and II are not considered advance paygrade positions. Police Officer III is an advanced paygrade position. A Police Officer II qualifies for advancement by receiving a qualifying score on a written examination, obtaining a rating by an oral evaluation board, and by selection from an available pool. The "k3" refers to an additional salary bonus paid to the respondents while filling positions of exceptionally hazardous responsibilities. (Los Angeles Administrative Code section 4.159(g) (2).)
Los Angeles Administrative Code section 4.159(g)(2) provides as follows: "The Chief of Police may assign persons in the following described classes and pay grades to those duties set forth hereinbelow. Members of the Police Department shall receive an additional increment of salary whild (sic) so assigned in the amount set forth hereinafter. Such additional increment of salary shall be special pay or hazard pay, over and above the compensation attached to the class and pay grade and shall be paid only while a person is so assigned." Section 4.159(g)(2)(B)(d) of this code provides that "a Police Officer III, when assigned to the Firearms and Explosives Unit, shall be compensated at the corresponding step of Schedule 6." The above quotations and all future references herein to the current content of constitutional provisions, state statutes and city charter or codes are to be understood as indicating that no change has been made in such current content during the period pertinent to this appeal.
Pursuant to the Los Angeles Administrative Code section 4.120(n), the Board of Police Commissioners has established administrative rules and procedures applicable to the assignment of officers to advance and lower paygrade duties. These regulations, promulgated in February 1975, are contained in the Department's manual at sections 3/763 through 3/763.70. Regulation 3/763.55 provides for reassignment of an officer below the rank of Lieutenant in an advanced paygrade position to a lower paygrade position within his classification when one of the following conditions exists: (1) an officer requests reassignment; (2) an officer completes a fixed tour of duty in a position; (3) a position is eliminated; (4) when an officer clearly demonstrates failure or inability to satisfactorily perform the duties of the position. Appellants reassigned respondents to the duties designated as Police Officer II pursuant to the fourth alternative of regulation 3/763.55.
ISSUES ON APPEAL
The issues to be resolved in this appeal are as follows:
1. Is the Act a matter of statewide concern and thus applicable to chartered cities?
2. If the Act is applicable, was the trial court correct in its finding that the action of downgrading each respondent from Police Officer IIIk3 to Police Officer II paygrades was a "punitive action" as defined in Government Code section 3303?
3. Did the trial court properly refuse respondents' request for costs and attorney's fees?
I
A. The Act Is a Matter of Statewide Concern and Applicable to the City
Appellants contend that article XI, section 5, of the California Constitution [179 Cal.Rptr. 514] grants exclusive authority to the City to govern the internal operations of its police department. Appellants urge that this section of the Constitution grants exclusive authority to the City in matters involving the appointment, assignment, transfer, compensation and discipline of personnel of the Department. Appellants cite section 80(a) of the City Charter which grants to appellant Chief of Police the power and duty to "appoint, discharge, suspend, or transfer the employees of the (D)epartment," subject only to the provisions of the charter, the rules of the Department, the instructions of the appellant Board of Police Commissioners and the City's civil service rules. Appellants thus contend that the reassignment of the respondents to the lower paygrade Police Officer II positions is a matter solely of municipal concern, governed by the Department's regulation 3/763.55 and within the quoted "home rule" provisions of article XI, section 5 of the California Constitution.
Article XI, section 5 of the California Constitution provides in pertinent part as follows: "(a) It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith. (P) (b) It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for : (1) the constitution, regulation, and government of the city police force ... and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein ... the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be ... appointed, and for their removal, and for their compensation, ..." (Emphasis added.)
On the other hand, respondents urge that the reassignment of the respondents to lower paygrades constituted "punitive action" as defined in the Act and that the transfers of the respondents which resulted in reductions in their salary were matters of "statewide concern" pursuant to the Act. We are thus faced with deciding the question of whether the transfer of respondents which resulted in a downgrading of their salaries is a matter of state or municipal affairs.
"If resolution of that question requires a determination as to whether the matter regulated is a state or a municipal affair, then, as declared in Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 294 (32 Cal.Rptr. 830, 384 P.2d 158), 'Because the various sections of article XI fail to define municipal affairs, it becomes necessary for the courts to decide, under the facts of each case, whether the subject matter under discussion is of municipal or statewide concern.' In other words, 'No exact definition of the term "municipal affairs" can be formulated, and the courts have made no attempt to do so, but instead have indicated that judicial interpretation is necessary to give it meaning in each controverted case. The comprehensive nature of the power is, however, conceded in all the decisions....' Butterworth v. Boyd (1938) 12 Cal.2d 140, 147 (82 P.2d 434, 126 A.L.R. 838); see also City of Pasadena v. Charleville (1932) 215 Cal. 384, 392(5) (10 P.2d 745).) Further, the 'constitutional concept of municipal affairs ... changes with the changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state. (Citations.)' (Pacific Tel. & Tel. Co. v. City & County of San Francisco, supra, 51 Cal.2d 766, 771, 775-776 (336 P.2d 514); Butterworth v. Boyd, supra.)
"In exercising the judicial function of deciding whether a matter is a municipal affair or of statewide concern, the courts will of course give great weight to the purpose of the Legislature in enacting general laws which disclose an intent to preempt the field to the exclusion of local regulation (see Ex parte Daniels (1920) 183 Cal. 636, 639-640 (192 P. 442, 21 A.L.R. 1172)), and it may well occur that in some cases the factors which influenced the Legislature to adopt the general laws may likewise lead the courts to the conclusion that the matter is of statewide rather than merely local concern. However, the fact, standing alone, that the Legislature has attempted to deal with a particular subject on a statewide basis is not determinative of the issue as between state and municipal affairs, nor does it impair the constitutional authority of a home rule city or county to enact and enforce its own regulations to the exclusion of general laws if the subject is [179 Cal.Rptr. 515] held by the courts to be a municipal affair rather than of statewide concern ; stated otherwise, the Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern." (Fn. omitted; emphasis added.) (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 62-63, 81 Cal.Rptr. 465, 460 P.2d 137.) (See also Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 316, 152 Cal.Rptr. 903, 591 P.2d 1; Baron v. City of Los Angeles (1971) 2 Cal.3d 535, 539, 86 Cal.Rptr. 673, 469 P.2d 353.)
"Doubt whether regulation relates only to a municipal affair or to a broader concern must be resolved in favor of the legislative authority of the state. (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681 (3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385); Younger v. Berkeley City Council (1975) 45 Cal.App.3d 825, 830 (119 Cal.Rptr. 830).)" (City of Los Angeles v. Department of Health (1976) 63 Cal.App.3d 473, 480, 133 Cal.Rptr. 771.)
The Act, section 3301, states that "(t)he Legislature hereby finds and declares that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern. The Legislature further finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers. In order to assure that such stable relations are continued throughout the state and to further assure that effective services are provided to all people of the state, it is necessary that this chapter be applicable to all public safety officers, as defined in this section, wherever situated within the State of California." (Emphasis added.)
In the present case, it is clear from the just quoted provisions of section 3301 that the Legislature intended the Act to be a matter of statewide concern. The protections provided by section 3303 to peace officers under investigation and subject to interrogation which could lead to punitive action is of utmost concern to morale of peace officers throughout this state, because of their apparent lack of right to strike. (See Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 105-107, 140 Cal.Rptr. 41.) Section 3303 provides officers under investigation and subject to interrogation specific rights which, if violated by any public safety department, could be protected by an injunction issued by the superior court. (§ 3309.5.) We view the morale and efficient functioning of peace officers in this state to be a matter of concern to every citizen of this state. The concern of the citizenry of this state for the maintenance of high morale and stable employer-employee relations among its peace officers cannot be said to be localized and is of statewide interest. Thus, the Act is constitutionally applicable to the City.
The Attorney General has opined that "matters regulated by the Act are matters of statewide concern" and that the Act "is applicable to charter counties and can be applied to such counties in contravention of county charter provisions on the same subject." (61 Ops.Cal.Atty.Gen. 31, 36 (1978).) Section 3301 states that "the term public safety officer means all peace officers, ... including peace officers who are employees of a charter city or county." (Emphasis added.) The inescapable conclusion is that the Act applies to peace officers of this state whether employed by a chartered city or county.
II
Government Code Section 3304, Subdivision (b), Provides for an Administrative Appeal for Officers Who Are Subject to Punitive Action Which Is Solely or Substantially Motivated For Purposes of Punishment
In the present case, the trial court specifically made no finding upon the merits of the Department's decision that respondents had failed to satisfactorily perform their duties in the Unit. The trial court's determination [179 Cal.Rptr. 516] that the reassignments of the respondents were punitive actions was based on its conclusion that the transfers of respondents caused a reduction in salary. But, the trial court failed to make any finding as to whether the reassignments were based on lack of merit, i.e., incompetency or deficiency of duties, but found the reassignments not to be based on discipline or punishment. The trial court's ruling was that any action, regardless of whether for punishment or for lack of merit would be a punitive action under the Act if it caused a reduction in salary. We hold this interpretation of the Act to be erroneous for the reasons discussed below.
Finding of Fact No. 13 states: "The Court specifically makes no findings upon the merits of the (appellants') determination that the (respondents) had failed to satisfactorily perform their duties in the Unit." Further, the trial court's Conclusion of Law No. 3 was that the reassignments of the respondents "were not undertaken for purposes of punishment, nor in the context of disciplinary proceedings." The court concluded in its Findings of Fact and Conclusions of Law that "(i)f any of the ... conclusions of law contains a statement which is a finding of fact, such statement should be deemed a finding of fact by this Court."
Conclusion of Law No. 4 states: "As defined in Government Code section 3303, 'punitive action' includes any action which may lead to reduction in salary. The transfers of the (respondents) to lower paying assignments are, therefore, 'punitive actions' within the definition of section 3303." (Emphasis added.)
The aforementioned section 3303 states "(w)hen any public safety officer is under investigation and subjected to interrogation by his commanding officer, or any other member of the employing public safety department, which could lead to punitive action, such interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (Emphases added.)
The likewise aforementioned section 3304, subdivision (b), states that "(n)o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal." (Emphasis added.)
Reading these last two quoted sections of the Act together, we conclude that the Act is intended to afford the protections contained therein to peace officers who are being punished or disciplined and in connection therewith are subjected to investigation and interrogation. The term "punitive action" as used in the Act must be interpreted in the context of punishment and discipline. The provisions of section 3303 dealing with rights of officers during investigation and interrogation makes sense only if construed in this context.
If an officer is transferred or reassigned because he does not possess the technical skills of his position and the transfer results in a downgrading of his paygrade and is effectuated without an investigation or interrogation, the Act does not apply to the transfer. The transfer would not constitute "punitive action" because the transfer was not motivated by punishment or discipline.
We are cognizant that many actions such as a transfer or reassignment of an officer may be the result of a combination of facts of punishment or discipline on one hand and incompetency or deficient performance on the other hand. Consequently, the framing of any "test" to determine the motivation behind such actions must of necessity be stated in general terms. When the transfer or reassignment of an officer results in a reduction in his salary and he [179 Cal.Rptr. 517] commences proceedings in the superior court under the Act (specifically section 3309.5), the trial court must find that the facts demonstrate that the officer was transferred or reassigned solely or substantially for the purpose of punishment or discipline in order for the Act to be applicable and thereby entitle him to an administrative appeal under section 3304, subdivision (b).
We were informed by counsel at oral argument that representatives of the Department and the Department's officers bargaining unit were unsuccessful in their attempts to arrive at a mutually acceptable definition of punitive action which would have covered "downgrading" situations as are present in this appeal. Their inability to agree has led to litigation such as this action. While it would obviously have been more practical and economical for the Department and its officers to have mutually resolved this question and thus avoid the time and expense of litigation, their failure to do so has placed this burden on the courts. We attempt to provide an answer in general terms to this difficult question and hopefully the parties can, with the benefit of our views, reach some compromise on the subject consistent therewith.
Actions which are not solely or substantially motivated by punishment or discipline are not covered by the Act. If this court were to rule otherwise, and hold that any transfer which results in reduction in salary is covered by the Act regardless of whether it is motivated solely or substantially by lack of merit, the holding might well interfere with the appellant Chief of Police's ability to manage and deploy the Department's officers on the basis of performance, skill and competency. The Department's regulation 3/736.55 previously quoted set forth three situations in which downgrading of officers would not invoke the provisions of the Act. If the officer requests reassignment, or completes a fixed tour of duty in a position, or the position is eliminated, the Act would not be applicable. Similarly, transfers or reassignments unaccompanied by an investigation and interrogation of the officers which result in reductions in salary and which are not personalized or individualized to the officer are not "punitive actions" within the meaning of the Act. An action which is not a "punitive action" within the meaning of the Act occurs, for example, when a position is eliminated due to budgetary reasons or for purposes of reorganization.
These nondisciplinary changes of course may be challenged through the invocation of grievance procedures, where applicable.
The record in the present case reflects that the transfers of the respondents from the Unit to other Police Officer II paygrade assignments were based upon allegations of improprieties and misconduct. Each of the respondents was subjected to investigation and interrogation prior to the determination by their commanding officer to recommend reassignment. The trial court's Conclusion of Law No. 3, footnote 6, is not supported by the record to the extent it concludes that the transfers "were not undertaken for purposes of punishment, nor in the context of disciplinary proceedings." Respondents were subject to lengthy interrogations by the commanding officer, members of their department, and members of the Internal Affairs Division. They were subject to the searches of their desks, police vehicles, and their homes. There is no basis upon which the trial court could have concluded that the transfers were not for purposes of punishment or discipline.
If findings support a judgment it will be affirmed, regardless of whether the findings support the conclusions, whether the conclusions are consistent or properly stated, or even if the conclusions are omitted. (Estate of Grimble (1974) 42 Cal.App.3d 741, 750, 117 Cal.Rptr. 125.) We hold that within the context of the facts in the present case the reassignments of respondents were punitive actions which resulted in "reductions in salary" as defined in section 3303. We conclude that the reassignments and downgrading of respondents based on Department regulation 3/763.55 on the basis that respondents clearly "demonstrate failure or inability to satisfactorily perform the duties of the position" constituted, under the facts of this case, "punitive actions" which the Act covers.
Appellants cite this Division's opinion in the case of Baird v. City of Los Angeles (1975) 54 Cal.App.3d 120, 126 Cal.Rptr. 295. In Baird, the officers contended that their nondisciplinary demotions involved removal of them from their positions as Police Officer III to Police Officer II and that the City improperly denied their right to a board of rights hearing for misconduct pursuant to section 202 of the City's charter. Section 202 provided for a board of rights hearing in the event that the officer shall be " 'suspended, removed, deprived of his office or position, or otherwise separated from the [179 Cal.Rptr. 518] service of the Police Department (other than by resignation), except for good and sufficient cause shown upon a finding of "guilty" of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Rights ....' " (Baird, supra, 54 Cal.App.3d 120, 122, 126 Cal.Rptr. 295.) This Division concluded that section 202 of the charter was inapplicable in that the charter section applied only to disciplinary proceedings for misconduct and to separations from service of the Department. In the instant case, we have concluded instead that the Department's actions of reassigning the respondents were disciplinary in nature. The situation here is thus the opposite of that presented in Baird. Also, Baird was decided two years prior to the enactment of the Act and was based on an interpretation of section 202 of the City charter.
Finally, appellants contend that the just-mentioned charter section 202 provides the City's police officers with full, substantive and due process protections when their position and compensation are in jeopardy due to charges of misconduct. Appellants rely on Government Code section 3310, which provides that "(a)ny public agency which has adopted, through action of its governing body or its official designee, any procedure which at a minimum provides to peace officers the same rights or protections as provided pursuant to this chapter shall not be subject to this chapter with regard to such a procedure." Section 202 of the city charter was last amended in 1935. As we indicated in Baird, the section applies only to " 'separations from the service of the police department,' i.e., suspensions or discharge.... No provision is found therein with respect to demotion or reduction in rank or salary." (Baird, supra, at p. 123, 126 Cal.Rptr. 295.) Section 202 thus makes no provisions for the downgrading of an officer from Police Officer III to Police Officer II or to any transfers for discipline which do not amount to a suspension, removal, deprivation of officer position or separation otherwise from the service of the Department. We have concluded that downgrading of respondents from Police Officer III to Police Officer II was a transfer for purposes of punishment. Section 202 of the City charter provides no administrative appeal comparable to that provided in section 3304, subdivision (b).
At oral argument, counsel indicated that there presently is no existing procedures either in the City Charter, the City Administrative Code, or in the Department regulations for a departmental administrative appeal as set forth in the Act at section 3304, subdivision (b). Counsel also argued that a Board of Rights hearing under Charter section 202 may not be necessary.
III
The Trial Court Improperly Denied Respondents' Motions for Attorney's Fees
Respondents' cross-appeal contends that they are entitled to costs and attorney's fees pursuant to Code of Civil Procedure section 1021.5. Appellants urge that the present case involves "important rights affecting the public interest" and that both "the necessity and financial burden of private enforcement are such to make the award appropriate." We agree with respondents' contention.
Code of Civil Procedure section 1021.5 provides: "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 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. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor."
It is a general rule that absent a controlling statute or an agreement between the parties, attorney fees are not awarded to successful litigants in American courts. [179 Cal.Rptr. 519] (Code Civ.Proc., § 1021; Camp v. Swoap (1979) 94 Cal.App.3d 733, 746, 156 Cal.Rptr. 600.) Code of Civil Procedure section 1021.5, however, provides an exception to this general rule and provides for a "private attorney general" doctrine which has been recognized in Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200; Marini v. Municipal Court (1980) 99 Cal.App.3d 829, 160 Cal.Rptr. 465.
Determination of the propriety of an award is within the discretion of the trial court, which "is in the best position to realistically assess the litigation from a practical perspective under the private attorney general theory." (Lucchesi v. City of San Jose (1980) 104 Cal.App.3d 323, 336, 163 Cal.Rptr. 700.) "As defined in Serrano (v. Priest), supra, and in section 1021.5, and carefully analyzed in Woodland Hills Residents Assn., Inc. ... the private attorney general theory is clearly designed to encourage private enforcement of important public rights (citations): true public-interest litigation conducted by protagonists who are truly private attorneys general. Each of the three pivotal elements of California's private attorney general theory directly implements the general requirement that the benefit provided by the protagonist's action must inure primarily to the public and be substantial in a doctrinal if not a material sense: (P) (1) The public right which the private protagonist invokes must be important : The award cannot be based on trivial or peripheral public policies (citation). Trial courts are empowered and expected to 'ascertain the "strength" or "societal importance" of the right involved' (citation). (P) (2) The benefit which the action confers must be significant and must inure to the general public or a large class of persons : Again, the trial court must 'determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case' (citation). (P) (3) The necessity and financial burden of private enforcement must be 'such as to make the award appropriate.' It is not enough that the protagonist has limited financial resources: 'An award on the " private attorney general" theory is appropriate when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff "out of proportion to his individual stake in the matter. " ' (Citations.) (P) Determination of the existence of these three pivotal elements is to be entrusted to the trial court's discretion (citation). To warrant reversal on the ground of abuse of discretion ' "... it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice," ' but discretion may not be exercised whimsically and, accordingly, reversal is appropriate 'where no reasonable basis for the action is shown.' (6 Witkin, Cal. Procedure, Appeal, supra, §§ 242-244, at pp. 4234-4235.)" (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 835-837, 160 Cal.Rptr. 465.) (Latter emphasis added; other emphases in original.)
In this action, respondents have contested the Act's application to the Department in situations not governed by the existing provisions of the City Charter and Department Regulations. We have determined this question to be of statewide interest. There has been no reported decision of the appellate courts on this question directly. Respondents have therefore litigated this question not only for themselves but for the many members of their Department, other public safety officers of the state and in the interests of the citizens of this state generally. We conclude that the respondents were entitled to attorneys' fees in that the question of tranquil relations between peace officers and their departments are matters of important and substantial concern to every citizen of this state. Such matters are of general public interest and transcend the personal interests of the respondents in this action. (Serrano v. Priest, supra, and Woodland Hills Residents Assn. v. City Council, supra.) Disposition on Remand To The Superior Court
The matter is remanded to the trial court for a determination of respondents' attorneys' fees and costs. In said determination, the court shall consider, but is not limited to the following areas of inquiry: (1) the novelty and difficulty of the questions presented, and the quality of the work displayed by counsel in presenting such questions to the trial and appellate courts; (2) the extent the attorneys prevailed in the litigation and the benefit bestowed by respondents' counsel to their clients and others similarly situated; (3) the attorneys' hours expended and the reasonable value of such hours and any costs related to the action with due consideration of the customary fees for similar services provided in this locality; (4) the attorneys' hours expended in pursuing the successful issues of the case as contrasted with any unsuccessful issues; (5) the fact that the monies awarded will not inure to the benefit of the attorneys but to the respondents' organization, the Los Angeles Police Protective League; and (6) the fact that an award against the City would ultimately fall upon the taxpayers. Accordingly, The order of July 16, 1980, regarding attorneys' fees and costs is reversed and remanded for proceedings consistent with this opinion.
The judgment and order of July 23, 1980, is affirmed and remanded with directions for the court to modify its judgment and order as follows: (1) paragraph 1(a) shall be amended to read as follows: "To comply fully with the Public Safety Officers Procedural Bill of Rights Act; to establish procedures and guidelines, by Charter provision, City codes or Department regulations, for officers' procedural rights during investigation and interrogation as set forth in section 3303; and to establish a procedure for an administrative appeal as provided in section 3304, subdivision (b)"; (2) paragraph 2(b) shall be amended to read as follows: "From transferring or reassigning any officer(s) from advanced paygrade assignments to duties at lower paygrades solely or substantially for purposes of punishment until such officer(s) have been afforded an opportunity for an administrative appeal."
POTTER, Acting P. J., and COBEY, J., concur.
Section 202, subdivision (1), of the Charter of the City of Los Angeles reads as follows: "The right of an officer or employee of the Police Department to hold his office or position and to the compensation attached to such office or position is hereby declared to be a substantial property right of which he shall not be deprived arbitrarily or summarily, nor otherwise than as herein in this section provided. No officer or employee of the Police Department shall be suspended, removed, deprived of his office or position, or otherwise separated from the service of the Police Department (other than by resignation), except for good and sufficient cause shown upon a finding of 'guilty' of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Rights (except as otherwise specifically provided in paragraphs two (2) and seven (7) of this section). Such charges must be based upon some act committed or omitted by such officer or employee within one (1) year prior to the filing of the complaint referred to herein. No case of suspension with loss of pay shall be for a period exceeding six (6) months."