Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS097255, Dzintra I. Janavs, Judge.
Lackie & Dammeier and Michal A. McGill for Plaintiff and Appellant.
Liebert Cassidy Whitmore, J. Scott Tiedemann and Jennifer K. Palagi for Defendants and Respondents.
DOI TODD, J.
Plaintiff and appellant John Brumbaugh appeals from an order denying his motion for attorney fees brought pursuant to Title 42 United States Code section 1988 and Code of Civil Procedure section 1021.5. Respondent the City of Torrance (City) terminated appellant’s employment as a police officer in 1998 after appellant suffered a felony conviction. Several years later, appellant’s conviction was overturned and appellant petitioned for writ of mandate to compel the City to set aside his termination and reinstate him. The trial court denied the petition in part and granted it in part, directing the City to conduct a hearing to determine the status of appellant’s revived interest in his employment. Thereafter, the trial court denied appellant’s motion for attorney fees, ruling that it had not found any violation of appellant’s constitutional rights or any public benefit conferred by appellant’s action.
We affirm. The trial court properly exercised its discretion in concluding that appellant was not entitled to attorney fees under federal or state law. Appellant did not establish that he suffered a constitutional deprivation; nor did he establish that his lawsuit resulted in the enforcement of an important right affecting the public interest.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was employed as a police officer with the City. In February 1998, police officers from the City of Lomita responded to a call from appellant’s girlfriend, who reported an incident of domestic violence. An internal affairs investigation also ensued as a result of this incident. The Office of the District Attorney of Los Angeles County filed a seven-count complaint as a result of the incident, and appellant was arrested on February 24, 1998. In August 1998, a jury found appellant guilty of violating Penal Code section 136.1, subdivision (c)(1) (felony dissuading a witness), Penal Code section 243, subdivision (e)(1) (misdemeanor domestic battery) and Penal Code section 136.1, subdivision (b)(2) (misdemeanor dissuading a witness).
The City Municipal Code authorizes a department head, with the city manager’s approval, to discharge an employee for, among other things, misconduct or the failure to observe the City’s rules and regulations. On September 3, 1998, the City Chief of Police wrote to appellant, informing him that the City intended to discharge him for misconduct.
On October 28, 1998, the City held an informal administrative hearing to review the recommendation of the chief of police that appellant be terminated for cause. On November 2, 1998, the assistant city manager notified appellant that the City had determined to uphold the police department’s termination recommendation. Thereafter, appellant filed a request for review of the decision.
In January 1999, the City’s Civil Service Commission (Commission) held a hearing pursuant to appellant’s request, resulting in the issuance of findings of fact and conclusions of law determining that the City properly exercised its discretion in imposing discharge as a disciplinary action against appellant. After outlining the bases of appellant’s conviction, the Commission concluded that appellant “committed misconduct and failed to observe the rules and regulations of the Department when he engaged in each instance of criminal conduct described above.” The Commission rejected appellant’s contention that discharge was premature because appellant had appealed his conviction and reversal would eliminate the basis for the discharge. Appellant appealed, and the city council upheld the Commission’s decision.
Several years later, in January 2005, the United States District Court for the Central District of California granted appellant’s petition for writ of habeas corpus on the basis of prejudicial instructional error and ordered that appellant be retried within 60 days or discharged from any adverse consequences of his conviction. The district attorney’s office determined not to retry appellant.
On June 3, 2005, appellant filed a petition for writ of mandate against the City and the Commission alleging that the Commission had failed to provide him with an appeal hearing from his termination and that it had a “clear, present, and ministerial duty to provide the Petitioner with an administrative appeal under the law.” Appellant sought the issuance of a peremptory writ compelling the City and the Commission to set aside the decision to uphold his termination and provide him with an administrative appeal; to reinstate him to his previous position; to provide him with backpay, benefits and interest; and to remove references to the termination from his personnel file. Thereafter, on June 9, 2005, appellant wrote to the Commission requesting that it reopen his appeal on the basis of his overturned conviction and noting that he had filed the petition for writ of mandate as a “precautionary measure.” The civil service manager responded to appellant on July 18, 2005, stating that the Commission lacked authority to reopen a final decision of the City.
In August 2005, appellant filed an amended petition for writ of mandate (petition) which raised the same claims as in the original petition.
Almost two years later, in April 2007, appellant filed a motion for hearing on his petition. The city manager and City Chief of Police intervened to oppose the petition. Following a June 1, 2007 hearing, the trial court issued a judgment denying appellant’s petition pursuant to Code of Civil Procedure section 1085 to the extent it sought reinstatement and pursuant to Code of Civil Procedure section 1094.5, as the decision to terminate was not an abuse of discretion. However, it granted the petition pursuant to Code of Civil Procedure section 1085 to compel a hearing “as set forth in Tuffli v. [Governing Board (1994)] 30 Cal.App.4th 1398, to determine the status of Petitioner’s revived interest in employment with the City of Torrance in light of the reversal of Petitioner’s felony conviction.”
After judgment was entered, appellant filed a motion for an award of attorney fees in the amount of $47,677.50, asserting entitlement under both Title 42 United States Code section 1988 (section 1988) and Code of Civil Procedure section 1021.5. The City and the interveners opposed, arguing that appellant was not entitled to attorney fees under section 1988 because he was not a prevailing party and, alternatively, because he neither suffered a constitutional deprivation nor established a violation of an unconstitutional practice, policy or custom as required by Title 42 United States Code section 1983 (section 1983). They further argued that appellant failed to establish that his lawsuit enforced a significant public right or conferred a public benefit as required by Code of Civil Procedure section 1021.5.
The trial court heard and denied the motion on August 27, 2007. With respect to the fee request under section 1988, the trial court ruled that no cause of action pursuant to section 1983 was alleged or determined; that appellant did not prevail on his request for reinstatement and backpay; and that it did not find the City had violated appellant’s constitutional rights. As to the fee request pursuant to Code of Civil Procedure section 1021.5, the trial court ruled that the action did not involve an important right affecting the public interest. Rather, appellant brought the action to vindicate his personal financial interest and it enforced his individual right to a hearing under “extremely unusual and limited circumstances.”
This appeal followed.
DISCUSSION
Appellant contends that he was entitled to an award of attorney fees under both federal and state law. He incorrectly asserts that we must conduct a de novo review of the trial court’s denial of his motion. As explained in City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 82: “Decisions awarding or denying attorneys’ fees are reviewed under an abuse of discretion standard. The trial court’s discretion ‘“‘is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citations.]’”’ [Citation.] The discretion is subject to the limitations of the legal principles governing the subject of the action.”
We review a trial court’s denial of a request for attorney fees pursuant to section 1988 for an abuse of discretion. (Board of Administration v. Wilson (1997) 57 Cal.App.4th 967, 973; accord, Kreutzer v. County of San Diego (1984) 153 Cal.App.3d 62, 75 [“Fee denials under section 1988 are reviewable under an abuse of discretion standard”].) Likewise, the denial of attorney fees requested pursuant to Code of Civil Procedure section 1021.5 is reviewed for an abuse of discretion. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 544; Crawford v. Board of Education (1988) 200 Cal.App.3d 1397, 1406.) To determine whether the trial court properly exercised its discretion, “we first determine whether the court understood the appropriate legal standard. If it did, we then determine whether the application of that standard to the facts was within the scope of its discretion under the statute. [Citations.]” (City of Santa Monica v. Stewart, supra, 126 Cal.App.4th at p. 83.)
I. The Trial Court Properly Exercised Its Discretion in Denying Appellant’s Request for Attorney Fees Under 42 U.S.C. Section 1988.
A trial court may, in its discretion, award attorney fees to the prevailing party in an action under section 1983. (42 U.S.C. § 1988, subd. (b); Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1610.) Section 1988, subdivision (b)—the Civil Rights Attorney’s Fees Awards Act of 1976—provides in part: “In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .”
In concluding that appellant was not a prevailing party entitled to an award of attorney fees, the trial court reasoned: “This was a mandamus case and no causes of action pursuant to 42 U.S.C. were alleged or determined. Petitioner was granted a hearing to determine the status of his revived interest in employment. Petitioner did not prevail as regards his claims for reinstatement and backpay. In fact, the Court found that he was not entitled to automatic reinstatement because there was no duty on behalf of the City to reinstate Petitioner to his former position. Furthermore, the Court did not find that Respondents violated Petitioner’s 42 U.S.C. constitutional rights. Thus, Petitioner was not the prevailing party in an action to enforce constitutional rights pursuant to 42 U.S. Code. Attorneys’ fees pursuant to 42 U.S.C. § 1988 are denied.”
The City concedes that appellant’s failure to plead a cause of action under section 1983 is not determinative of the issue. In Kreutzer v. City of San Diego, supra, 153 Cal.App.3d at page 69, the court addressed the plaintiff’s failure to label any claims as arising under section 1983 and explained: “In California, however, the nature and character of a pleading are to be determined from its allegations, regardless of what they may be called, and the subject matter of the action and the issues involved are determined from the facts alleged rather than from the title of the pleading [citation].” Nonetheless, even assuming that appellant alleged a violation of section 1983, the trial court properly exercised its discretion in denying attorney fees under section 1988 because appellant did not prevail on the basis that the City violated his constitutional due process rights.
In pertinent part, section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
“An individual ‘has a constitutionally protected property interest in continued employment . . . if he has a reasonable expectation or a “legitimate claim of entitlement” to it, rather than a mere “unilateral expectation.”’ [Citation.]” (Sonoda v. Cabrera (9th Cir. 2001) 255 F.3d 1035, 1040.) “A legitimate claim of entitlement arises if it is created by ‘existing rules or understandings that stem from an independent source such as state law.’ [Citation.] Thus ‘[s]tate law defines what is and what is not property’ that is subject to the due process clause of the Fourteenth Amendment. [Citations.]” (Brady v. Gebbie (9th Cir. 1988) 859 F.2d 1543, 1548, fn. omitted.)
Here, the trial court expressly premised its partial grant of appellant’s petition on state law, directing the City to provide appellant with a hearing according to Tuffli v. Governing Board (1994) 30 Cal.App.4th 1398 (Tuffli) “to determine the status of [appellant’s] revived interest in employment with the City of Torrance in light of the reversal of [appellant’s] felony conviction.” In Tuffli, a school district terminated a teacher who had been convicted of a sex offense in violation of Penal Code section 288a. The district based its decision on Education Code section 44836, subdivision (a)(1), providing that “[t]he governing board of a school district shall not employ or retain in employment persons in public school service who have been convicted . . . of any sex offense . . . .” (Tuffli, supra, at p. 1401.) The teacher appealed his conviction; it was reversed for instructional error and the charges dismissed. (Id. at p. 1402.) He thereafter filed a petition for writ of mandate seeking to set aside the district’s termination and reinstatement with backpay. (Ibid.)
In concluding that the teacher was entitled to a hearing to determine his revived interest in continued employment, the court relied on Education Code section 44836, subdivision (a)(2), which states: “If a person’s conviction of a sex offense . . . is reversed and the person is acquitted of the offense in a new trial or the charges against him or her are dismissed, this section does not prohibit his or her employment thereafter.” In light of this provision, the Tuffli court reasoned: “Upon the dismissal of the charges, Tuffli essentially became eligible once again for continued employment, and is entitled to the protections of dismissal for cause proceedings, since the predicate for his summary dismissal no longer exists. As we read current section 44836, on reversal of a conviction and acquittal in a new trial or dismissal of the charges, a district has discretion to reemploy the teacher thereafter, for a new term of employment. This procedure would be adequate to deal with a nonpermanent employee’s employment rights; however, it does not suffice to protect a permanent employee’s rights to continued employment, where no cause for dismissal has been found and the predicate for a summary dismissal no longer exists. Thus, Tuffli’s case does not fit neatly into section 44836 and its reemployment provision, due to the reversal of his conviction, and the consequent lack of any continuing basis for his dismissal. Section 44836 must be interpreted to provide due process protections for those in Tuffli’s situation.” (Tuffli, supra, 30 Cal.App.4th at p. 1408.)
In Tuffli, Education Code section 44836 provided the teacher with a legitimate claim to employment. But there is no corresponding state law providing a police officer in similar circumstances with a legitimate claim to employment. In relevant part, Government Code section 1029, subdivision (a)(1) states that “each of the following persons is disqualified from holding office as a peace officer or being employed as a peace officer of the state, county, city, city and county or other political subdivision . . . . (1) Any person who has been convicted of a felony.” Unlike Education Code section 44836, Government Code section 1029 creates no exception for a felony conviction which has been reversed. For this reason, the court in Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 881 (Adams), declined to imply such an exception, holding “the disability imposed upon convicted felons by section 1029, subdivision (a) is not affected by expungement or setting aside of the conviction.”
In reaching this conclusion, the Adams court examined the language of Government Code section 1029, subdivision (a), which omits any reference to expunged or set aside convictions. The court then observed that Government Code section 1029, subdivision (b) provided a limited exception, allowing a convicted felon who has both demonstrated an ability to assist persons in rehabilitation programs and received a full and unconditional pardon to serve as a parole or probation officer. (Adams, supra, 235 Cal.App.3d at p. 879.) On the basis of these provisions, the court determined: “It is a familiar maxim of construction that where a statute provides a specific exception to a general rule, other exceptions are necessarily excluded. [Citations.] Had the Legislature intended an exception similar to that of section 1029, subdivision (b) to apply to peace officers generally as distinct from a limited category of peace officer [citation], or to convictions which have been expunged or set aside as distinct from those remitted by full and unconditional pardon, it could have so provided. That it did not demonstrates a contrary intent.” (Id. at p. 880.) The court further relied on the public policy considerations supporting Government Code section 1029, explaining that precluding convicted felons from serving as peace officers “is intended for the protection of the public, not as further punishment of the convicted felon. . . . [The prohibition] is designed ‘to assure, insofar as possible, the good character and integrity of peace officers and to avoid any appearance to members of the public that persons holding public positions having the status of peace officers may be untrustworthy.’ [Citation.]” (Adams, supra, at p. 881.)
On the basis of these state law provisions, the trial court properly exercised its discretion in concluding that the failure to provide appellant with a hearing was not a violation of his constitutional rights. Indeed, although the trial court granted appellant a hearing as provided by Tuffli, it expressly distinguished the level of appellant’s entitlement from that in Tuffli. It ordered that the hearing was to determine the “status of [appellant’s] revived interest in employment,” thereby recognizing that the hearing would involve the threshold question of whether appellant possessed a revived interest in employment by reason of his conviction being reversed. The trial court’s order expressly allowed for the possibility that appellant did not retain any constitutionally protected property interest in continued employment and possessed only a “unilateral expectation” not afforded constitutional protection. (See Sonoda v. Cabrera, supra, 255 F.3d at p. 1040.) Because the trial court’s grant of a hearing was not premised on any due process violation under section 1983, appellant was not a prevailing party entitled to seek attorney fees under section 1988.
II. The Trial Court Properly Exercised Its Discretion in Denying Appellant’s Request for Attorney Fees Under Code of Civil Procedure Section 1021.5.
In relevant part, Code of Civil Procedure section 1021.5 (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, or of enforcement by one public entity against another public entity, 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.” The objective of section 1021.5 is to encourage suits that successfully effectuate a strong public policy and benefit a broad class of citizens. (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 647 (County of Colusa).)
“‘Entitlement to fees under section 1021.5 requires a showing that the litigation: “(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) [was necessary and] imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter.” [Citation.]’ [Citation.]” (Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 511.) Each of the statutory criteria must be established to justify a fee award. (County of Colusa, supra, 145 Cal.App.4th at p. 648; Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, 510.) The trial court’s role is to determine whether the statutory criteria have been met, and we review that determination to assess “‘whether the court applied the proper legal standards under section 1021.5 and, if so, whether the result was within the range of the court’s discretion [citation], i.e., whether there was a reasonable basis for the decision [citation].’ [Citation.]” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344.)
The trial court articulated a reasonable basis for its denial of appellant’s fee request under section 1021.5, reasoning that appellant’s action satisfied none of the three requisite elements. It ruled: “There is no important right affecting the public interest in this case as the Court’s ruling does not confer a significant benefit on the general public or a large class of persons. Rather, this action enforced Petitioner’s individual right to a hearing in light of his revived interest in employment, in extremely unusual and limited circumstances. There is no evidence whatsoever that any large class of persons is benefited by the Court’s narrow ruling. Petitioner has [a] financial interest in this case and brought the Petition to vindicate that interest.”
Though appellant contends that his lawsuit served to vindicate an important public right—specifically, the right to a hearing under similar circumstances—the trial court properly exercised its discretion in concluding that the primary objective of the lawsuit was to vindicate appellant’s personal rights. (See, e.g., Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 637 [while plaintiff’s successful lawsuit alleging gender-based discrimination and retaliation “was based on the important right to be free from unlawful discrimination, its primary effect was the vindication of her own personal right and economic interest”]; City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1518 [officer who successfully petitioned for writ of mandate to exclude statements he made when he was unaware he was under investigation was not entitled to attorney fees under section 1021.5 because he did “not establish an important right that benefited a large class of persons. Instead, he sought to exercise a right already established for his personal benefit”].) The court in Flannery v. California Highway Patrol, supra, at page 636 flatly rejected appellant’s position “that each time an important right affecting the public interest is enforced, a benefit is conferred on the public in that future wrongdoers are warned that enforcement is not an empty threat.” The court explained that “[c]arried to its logical conclusion, th[is] reasoning . . . would make the private attorney general doctrine applicable in every case in which a plaintiff successfully sued a public agency for some wrongful conduct, because every such lawsuit would communicate a message to the losing party. Such an expansive reading of the statutory requirement is untenable.” (Ibid.)
For similar reasons, the trial court properly exercised its discretion in finding that its ruling did not confer a significant benefit on a large class of persons. Rather, the effect of the trial court’s ruling is limited, applying only to peace officers who have been convicted of a felony and that conviction is later overturned on appeal and the charges dismissed. Where a trial court’s ruling is “governed by its unique factual circumstances,” the lawsuit serves only to vindicate the plaintiff’s personal interests and not those of a large class of persons. (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1045–1046 [reversing an attorney fee award under section 1021.5 to a foreign high school student who received an order rescinding the defendant’s determination that he was ineligible to participate in interscholastic athletics, noting that the fact the defendant may act differently in the future was insufficient to warrant the imposition of fees].)
Nor was the financial burden criterion satisfied here. “This element is met if the cost of the claimant’s legal victory transcends his personal interest—that is, when the burden of the litigation was disproportionate to the plaintiff’s individual stake in the matter. [Citations.]” (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1151 .) But “‘[i]f the enforcement of the public interest is merely “coincidental to the attainment of . . . personal goals” [citation] or is “self serving” [citation], then this requirement is not met.’ [Citations.]” (Ibid.) Appellant’s petition sought relief that was purely personal—reinstatement and backpay—under unique circumstances appellant failed to show the City had faced in the past and were not shown likely to recur. As summarized in Ryan v. California Interscholastic Federation, supra, 94 Cal.App.4th at page 1047, “this is not a case where [appellant] has shown the cost in bringing it is disproportionate to his personal stake in its outcome, but rather one where the enforcement of the public interest is merely coincidental to the obtaining of personal goals.”
DISPOSITION
The order denying appellant’s motion for attorney fees is affirmed. The City is entitled to its costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.