Opinion
B221912
10-03-2011
CITY OF LOS ANGELES, Plaintiff and Respondent, v. WENDY GREUEL, as City Controller, etc., Defendant and Appellant.
Strumwasser & Woocher, Frederic D. Woocher and Beverly Grossman Palmer for Defendant and Appellant. Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney and Gerald M. Sato, Deputy City Attorney, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC402345)
APPEAL from the judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge. Reversed with directions.
Strumwasser & Woocher, Frederic D. Woocher and Beverly Grossman Palmer for Defendant and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney and Gerald M. Sato, Deputy City Attorney, for Plaintiff and Respondent.
This appeal concerns a dispute that arose between plaintiff City of Los Angeles (the City), and defendant Los Angeles City Controller Wendy Greuel (the Controller). The Controller sought to audit the City Attorney's workers' compensation program to determine the efficiency and effectiveness of the City Attorney's management and oversight of claims. The City Attorney's office, under former City Attorney Rockard Delgadillo, filed suit to prevent the audit based on the argument that the Controller had no authority under the City Charter to audit the office of any elected official.
The case was tried to the court on June 1, 2009. The court issued its proposed statement of decision in favor of the City on June 22, 2009, finding the Controller could not audit the office of an elected city official. The Controller submitted lengthy objections to the proposed statement of decision. The trial court considered the Controller's objections and issued its final statement of decision on December 11, 2009. The court entered judgment in favor of the City on January 7, 2010.
Meanwhile, one month after the trial, on July 1, 2009, Carmen Trutanich took office as the new City Attorney. The Controller asked us to take judicial notice of significant events that took place after Mr. Trutanich took office. The City did not oppose the request that we take judicial notice, and we granted the request. The judicially noticed facts include the October 12, 2010 audit report of the City Attorney's workers' compensation and subrogation program and an October 13, 2010 press release from City Attorney Trutanich's office. The press release announced that on July 1, 2009, his first day in office, Mr. Trutanich invited the Controller to initiate "a complete and thorough performance audit of the City Attorney's Workers' Compensation Division as it has operated since before July 2009." Moreover, "[t]he City Attorney's Office personnel assigned to the Workers' Compensation Division took considerable time over the past 12 months [i.e., October 2009 to October 2010] to discuss the program and provide detailed information to the audit team. Throughout the process, the City Attorney's team worked to disclose the many problems the Office faces in the difficult area of Workers' Compensation law." The press release reported that "City Attorney Trutanich has already initiated many of the recommendations."
Because the performance audit that gave rise to the appeal was well underway with the full cooperation of the City Attorney three months before the court entered judgment in its January 2010 ruling, and it was completed by October 2010, this court requested, on March 28, 2011, further briefing on why the appeal should not be dismissed as moot. The Controller filed a letter brief on April 11, 2011. On April 19, 2011, this court dismissed the appeal as moot.
The Controller filed a petition for rehearing on May 4, 2011, and the City answered on May 16, 2011. Rehearing was granted on May 18, 2011. The petition for rehearing referenced authorities not previously cited. For example, in Giles v. Horn (2002) 100 Cal.App.4th 206, 229, the court held:
" ' "Where an appeal is disposed of upon the ground of mootness and without reaching the merits, in order to avoid ambiguity, the preferable procedure is to reverse the judgment with directions to the trial court to dismiss the action for having become moot prior to its final determination on appeal. [Citations.]" [Citations.]' (County of San Diego v. Brown (1993) 19 Cal.App.4th 1054, 1090 [].) Therefore, we reverse that portion of the judgment that is based upon the County's failure to make a finding of economy and efficiency and direct the court to dismiss that portion of plaintiffs' claim as moot."9 Witkin, California Procedure (5th ed. 2008) section 761, page 834, states:
"Neither a moot action nor a moot appeal should normally be decided. There is, however, one situation in which the reviewing court should refuse to decide the merits but not dismiss the appeal: Where the action itself is moot, and the judgment was therefore improperly rendered below, dismissal of the appeal operates as an affirmance of the judgment (see infra, § 762), the exact opposite of the reviewing court's intention. The correct order is reversal of the judgment with directions to the lower court to dismiss the action."
We requested that the parties specifically address whether the proper remedy would be reversal of the trial court judgment with instructions to dismiss the case as moot. We find this case was rendered moot before entry of judgment in the trial court. Although the audit report was not released until October 2010, 10 months after entry of judgment, it was plain by at least October 2009 that City Attorney Trutanich supported the Controller's audit and was fully cooperating with the auditors. On his first day in office, Mr. Trutanich had reversed the position of the former City Attorney and invited the Controller to conduct the audit. He remained true to his word, not only cooperating with the auditors but providing City Attorney's office staff to support the audit team. It appears judgment was unnecessarily rendered below because the parties failed to ask the trial court to dismiss the case as moot. Our reversal of the judgment below does not imply the judgment was erroneous on the merits, as we have not considered the merits, but is merely the necessary procedural step to properly dispose of this moot case. (Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 943.)
DISPOSITION
The judgment is reversed as moot. This reversal does not imply that the judgment was erroneous on the merits, but is solely for the purpose of returning jurisdiction over the case to the superior court by vacating the otherwise final judgment solely on the ground of mootness. The superior court is directed to dismiss the underlying action as moot. Each party is to bear its own respective costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.