Opinion
H023932.
7-2-2003
BOARD OF CHIROPRACTIC EXAMINERS, Plaintiff and Respondent, v. MITCHELL J. PEARCE, Defendant and Appellant.
Defendant Mitchell J. Pearce appeals from the superior courts order denying him recovery of his attorneys fees under 42 U.S.C. section 1988 after the court granted his writ of administrative mandate against plaintiff Board of Chiropractic Examiners (the Board). He claims that the superior court was required to award him his fees. We find no abuse of discretion and affirm the superior courts order.
I. Background
After the Board revoked Pearces license to practice chiropractic, he filed a petition for a writ of administrative mandate (the first petition) in the superior court alleging both that the Boards decision was not supported by the evidence and that his due process rights had been violated by the Board. In August 1997, the superior court issued a writ of mandate remanding the matter to the Board for further evidentiary hearing. The court "declined to rule on the procedural and substantive issues" Pearce had raised in the first petition, and the court "encouraged" the Board to consider those issues on remand. The courts judgment awarded Pearce his costs but did not award him his attorneys fees. Pearce did not challenge the courts refusal to award him his attorneys fees.
On remand, the Board again revoked Pearces license. Pearce filed another writ petition (the second petition). In the second petition, he asserted that he had been denied a fair hearing by the Board because the administrative law judge (ALJ) who heard the matter was biased and prejudiced against him. As evidence of the ALJs bias and prejudice, he pointed out that (1) her findings closely resembled the factual allegations in the accusation, (2) some of her findings were not supported by any evidence and (3) her findings did not mention the evidence he had presented challenging the allegations. Pearce also argued to the superior court that the Board had denied him a fair hearing (before the remand) by adding new allegations during the original hearing on the original accusations. The superior court denied the second petition. Pearce appealed to this court. This court reversed solely on the ground that the record indicated that the superior court deferred to the ALJs credibility determinations rather than exercising independent judgment.
On remand, the superior court held a de novo hearing on the second petition in May and June 2001 and exercised its independent judgment. In September 2001, the superior court granted the second petition. The court issued a statement of decision finding that many of the Boards factual findings were not supported by the weight of the evidence. These were findings "IV through VIII, X through XXIII, XXV, XXVI, XXXIII and XXXVII." The court explained the basis for its decision. "In arriving at this conclusion, the court finds that Dr. Pearces testimony is more credible and corroborated than that of the complaining witnesses in all material respects; that the testimony of the lay and expert witnesses called by Dr. Pearce is more convincing and persuasive than that of the Boards witnesses as to substantive matters; and that the documentary evidence produced by Dr. Pearce is more reliable and determinative than that produced by the Board."
The court ordered the Board to "set aside its decision and dismiss the proceedings against Dr. Pearce." The court concluded that "the remaining findings (XXVII though XXXI, XXXV and XXXVI), which involve issues of due process, fair hearing, discriminatory prosecution and various affirmative defenses such as laches, collateral estoppel and res judicata" were "either supported by the weight of the evidence or are in accordance with law." "The court concludes, in short, that Dr. Pearce had a fair hearing but an unfair result."
Pearce thereafter filed a motion seeking recovery of nearly $ 400,000 in attorneys fees. He maintained that he was entitled to recover these fees under 42 U.S.C. section 1988 (hereafter § 1988), which allows a court, "in its discretion," to award the prevailing party its attorneys fees "in any action or proceeding to enforce a provision of sections . . . 1983 . . . of this title." 42 U.S.C. section 1983 prohibits "the deprivation of any rights, privileges, or immunities secured by the [federal] Constitution and laws . . . ." Pearce argued that the superior courts granting of the second petition was a ruling that Pearce "did not get adequate notice" in violation of his federal constitutional right to due process because of the courts "reversal of finding 37." He claimed that, if adequate notice had been given, the proceedings would have been completed in "months" rather than spawning litigation that lasted for eight years. In October 2001, the court denied Pearces attorneys fees motion. The basis for the courts denial was its conclusion that "the court has at no time found that his civil rights have been violated by the Board, as required by section 1988." Pearce filed a timely notice of appeal from the order denying his attorneys fees motion.
II. Analysis
Pearce asserts that the superior court either failed to exercise or abused its discretion in refusing to award him his attorneys fees under § 1988.
The superior courts decision is reviewed under a deferential abuse of discretion standard. (McFadden v. Villa (2001) 93 Cal.App.4th 235, 237.) "If a plaintiff wins a state law claim but loses an express federal claim, he may not obtain attorneys fees under section 1988." (McFadden at p. 239.) In this case, Pearces victory was limited to his contention that the Boards decision was not supported by the evidence. The superior court expressly rejected his claims that he had been denied due process or deprived of a fair hearing by the Board. Because he did not succeed on his claim that the Boards action violated his federal constitutional right to due process, the only claim that he contends could have supported a claim under 42 U.S.C. section 1983, Pearce could not properly claim to be a "prevailing party" within the meaning of § 1988.
Nevertheless, Pearce maintains that the superior courts ruling granting the second petition necessarily found that his federal constitutional rights had been violated because it reversed finding XXXVII. Not so. That finding, which was made by the Board after the remand to the Board, read: "The Findings of Fact were not materially different from the allegations set forth in the Accusation in this matter. No prejudice flowed against the respondent. All the facts were fully litigated. The type of changes in this case did not require an amendment or amendments to the Accusation. For instance, certainly modesty was an issue set forth in the Accusation when respondent is charged with failure to supply a gown to his patients; respondents over-involvement in his patients life shows lack of judgment which certainly underlies the accusation in this case and can be considered in aggravation with regards to the disciplinary action taken."
Pearce characterizes the reversal of the above finding as a holding by the superior court that "Appellant did not receive adequate notice of the accusations against him . . . ." The record does not support Pearces claim that the courts reversal of this finding reflected the courts conclusion that Pearce had been deprived of due process. The finding that was reversed contained numerous conclusions including that Pearces "over-involvement in his patients life shows lack of judgment . . . ." As the superior court explicitly rejected Pearces due process claim and found that he had been given a fair hearing, it cannot be reasonably inferred that the superior courts reversal of this finding amounted to a finding of a violation of due process rather than a conclusion that the weight of the evidence did not support a finding that Pearces conduct showed a "lack of judgment."
Pearce has failed to show that the superior court abused its discretion in denying him his attorneys fees under § 1988.
III. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., and Wunderlich, J. --------------- Notes: This ruling was qualified "except as they [the findings] are contrary to the reversal of Findings VII and XVI-XVIII."