Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Kern County Superior Court No. S-1500-CV-259869-NFT, Arthur E. Wallace, Judge.
Jones & Mayer and Paul R. Coble for Plaintiff and Appellant.
Kuhs & Parker, William C. Kuhs and Robert G. Kuhs for Defendant and Respondent and Real Party in Interest and Respondent.
OPINION
Levy, Acting P.J.
Appellant, Carl Sparks, challenges the trial court’s order denying his motion for attorney fees. However, the issues raised by Sparks are not related to the motion he has appealed from. Accordingly, the order will be affirmed.
BACKGROUND
Sparks served as the elected sheriff of the County of Kern (County) from 1991 through 2002. The County subsequently sued Sparks for alleged misconduct occurring while Sparks was in office. (Kern Co. Super. Ct. case No. 254074 [Case No. 254074].)
In July 2005, Sparks filed an ex parte application under Government Code section 31000.6 for appointment of independent legal counsel to defend him in Case No. 254074, the misconduct action. (Kern Co. Super. Ct. case No. 255904 [Case No. 255904].) Sparks alleged that respondent, Kern County Board of Supervisors (Board), was required to provide him with a defense. The trial court denied Sparks’s application on the ground that section 31000.6 did not apply to former sheriffs. Sparks appealed.
All further statutory references are to the Government Code unless otherwise indicated.
On September 22, 2006, while the appeal in Case No. 255904 was pending, the Legislature amended section 31000.6 to make it applicable to former sheriffs. We denied Sparks’s request to apply the amended section 31000.6 retroactively and affirmed the trial court’s decision. (Sparks v. Kern County Bd. of Supervisors (Oct. 20, 2006, F049188) [nonpub. opn.].)
Shortly after this court’s decision in Sparks v. Kern County Bd. of Supervisors, supra, became final, Sparks renewed his request for appointment of separate counsel under section 31000.6, as amended. When the Board denied his request, Sparks filed a second application for an order requiring the Board to appoint separate counsel to defend him in the misconduct case. (Kern Co. Super. Ct. case No. 259869 [Case No. 259869].) On February 13, 2007, the trial court ruled on Sparks’s application. The court held that section 31000.6 applied to Sparks but not retroactively. The Board filed, but later abandoned, an appeal from that ruling.
Thereafter, Sparks filed a series of postjudgment motions seeking attorney fees and costs incurred in both litigating the second section 31000.6 application (Case No. 259869) and defending the misconduct action (Case No. 254074). Sparks filed a motion for contempt on September 20, 2007, a memorandum of costs claiming attorney fees on March 13, 2008, and a motion to confirm attorney fees on May 19, 2008. These attorney fee claims were denied on November 30, 2007, April 21, 2008, and June 24, 2008, respectively, and no appeals were taken.
On October 6, 2008, Sparks again sought attorney fees and costs through a motion filed under section 996.4. On January 15, 2009, the trial court denied Sparks’s motion on the ground that Sparks failed to satisfy the government claims presentation requirement. This is the order that Sparks has appealed from.
DISCUSSION
Sparks contends that he is entitled to recover his attorney fees under Code of Civil Procedure section 1032 as authorized by section 31000.6 as well as under the “private attorney general” theory set forth in Code of Civil Procedure section 1021.5. However, this appeal is from the January 15, 2009, ruling on Sparks’s motion to recover attorney fees pursuant to section 996.4. Accordingly, this appeal is limited to issues relating to that order, i.e., whether Sparks can recover attorney fees under section 996.4. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) We lack jurisdiction to review the other issues raised by Sparks. (Ibid.)
Sparks makes no argument regarding section 996.4, and for good reason. In May 2006, Sparks filed a petition for writ of mandate under section 996.4 seeking reimbursement of the attorney fees and costs incurred by him in defending Case No. 254074, the misconduct action. In general, section 996.4 requires a public entity to reimburse reasonable attorney fees and costs to an employee or former employee who retains counsel following the public entity’s refusal to provide a defense to a civil action or proceeding brought against that employee on account of an act or omission in the scope of employment. Nevertheless, the trial court denied this May 2006 petition because Sparks had not presented a claim to the County before filing the petition as required by the Government Claims Act. (§ 810 et seq.) Sparks appealed.
During the pendency of the appeal on the May 2006 petition, Sparks filed the underlying motion to recover attorney fees pursuant to section 996.4, the trial court denied the motion, and Sparks filed this appeal. However, approximately one month later, this court filed its opinion affirming the trial court’s ruling on the May 2006 petition. We held that Sparks was required to, but did not, comply with the claims presentation requirement and therefore his claim for reimbursement of attorney fees and costs was barred. (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 800.)
This rule applies to the section 996.4 motion that is the subject of this appeal as well. Since Sparks did not present a claim to the County before filing the motion, his claim for reimbursement of attorney fees and costs is barred. As discussed above, we lack jurisdiction to review the issues raised by Sparks.
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: Dawson J., Kane J.