Opinion
A153424
09-28-2018
CLARK FRATUS et al., Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSN101322)
This is the second appeal in this case. In the first appeal ((Fratus v. County of Contra Costa (Aug. 23, 2017, A147841) [nonpub. opn.]) (Fratus I)), the trial court's order denying plaintiffs Clark and Karla Fratus's motion for attorney fees was reversed and remanded with directions to award plaintiffs their attorney fees under Government Code section 800, subdivision (a). Following the reversal, plaintiffs renewed their request for attorney fees in the trial court. The court, believing itself to be bound by the narrow scope of our order on remand, awarded plaintiffs the statutory limit of $7,500 in attorney fees under Government Code section 800 and denied their request for further attorney fees pursuant to other provisions of law. Plaintiffs have appealed the order, arguing that our prior opinion did not foreclose other bases for recovering attorney fees. We agree and reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts of this case are well known to the parties and this court, and we therefore will summarize them only briefly here. Plaintiffs successfully pursued a writ of administrative mandamus following protracted administrative proceedings, initiated by the County of Contra Costa (County), against two parcels of real property owned by plaintiffs for alleged zoning and building code violations. Essentially, the trial court found that the County's regulatory findings were not supported by the evidence.
On September 28, 2015, plaintiffs filed a motion for attorney fees, asserting three separate, potentially overlapping, grounds. In their motion, they claimed they were entitled (1) to reimbursement of all attorney fees under Contra Costa County Ordinance section 14-6.426 (section 14-6.426), subdivision (c); (2) to $7,500 in fees for each plaintiff pursuant to Government Code section 800; and (3) to "private attorney general" attorney fees under Code of Civil Procedure section 1021.5. The trial court denied the motion, and plaintiffs appealed to this court. While they raised at least two of these three grounds in their appellate briefing, our disposition was written narrowly, addressing their claim under Government Code section 800 only. We concluded by directing the lower court to award attorney fees to the plaintiffs under that statute.
In the present appeal, plaintiffs do not argue that they are entitled to attorney fees under Code of Civil Procedure section 1021.5. We deem that argument to be forfeited.
On remand, the trial court granted plaintiffs' motion for attorney fees; however, the court limited the award to the statutory maximum under Government Code section 800, which is $7,500. The court declined to consider recovery under section 14-6.426, subdivision (c) because itself believed to be bound by the express terms of our order on remand. Plaintiffs have appealed that ruling.
DISCUSSION
I. Standard of Review
Plaintiffs assert that limiting their recovery to a total of $7,500 in attorney fees would be a miscarriage of justice because they have incurred almost $100,000 in fees for the administrative hearing and judgment alone. We review the trial court's determination as to the legal basis for an attorney fee award under the de novo standard. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213-1214; see Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) II. Government Code Section 25845 and the Local Ordinance
Plaintiffs assert, as they did in their first appeal, that they are entitled to recover reasonable attorney fees under Government Code section 25845 based on section 14-6.426 of the County's local ordinance. Subdivision (c) of Government Code section 25845 provides: "A county may, by ordinance, provide for the recovery of attorneys' fees in any action, administrative proceeding, or special proceeding to abate a nuisance. If the ordinance provides for the recovery of attorneys' fees, it shall provide for recovery of attorneys' fees by the prevailing party, rather than limiting recovery of attorneys' fees to the county if it prevails. The ordinance may limit recovery of attorneys' fees by the prevailing party to those individual actions or proceedings in which the county elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the county in the action or proceeding."
Section 14-6.426 is entitled "Abatement by county." Subdivision (a) of that section provides: "Upon the failure, neglect or refusal to properly comply with the order to abate within the prescribed time period, the county abatement officer may cause to be done whatever work is necessary to abate the public nuisance. An account of the cost of abatement shall be kept for each separate assessor's parcel involved in the abatement." Section 14-6.426, subdivision (c) states: "Attorneys' fees may be recovered in a proceeding under this article if the county elects, at the initiation of the proceeding, to seek recovery of its own attorneys' fees. If the county so elects, attorneys' fees will be recovered by the prevailing party. In no proceeding shall an award of attorneys' fees exceed the amount of reasonable attorneys' fees incurred by the county in the proceeding."
In this appeal, and in the prior appeal, plaintiffs have asserted that they were entitled to attorney fees under these provisions because the County had "brought a proceeding under the relevant article and sought attorney fees" in assessing fines and penalties as to plaintiffs' properties. They correctly note that in our first opinion we did not rule on whether they were entitled to recover fees under Government Code section 25845, based on section 14-6.426. Nor did the trial court rule on whether they were entitled to such fees. Because this claim has yet to be addressed by the lower court, we decline to express an opinion on the merits of plaintiffs' assertions. We also decline to issue an order on their request for attorney fees incurred in their fee motions and on appeal, which they raised in their motion after our remand. However, we do agree with plaintiffs that consideration of these issues is not necessarily foreclosed by our prior opinion. III. Law of the Case
The trial court believed it was bound by the narrow scope of the order on remand. Under the circumstances, the court's belief was not unreasonable. While we did not adequately convey our views, the fact is that we did not intend to limit the proceeding on remand to consideration of Government Code section 800 only.
" 'The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.' " (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498, italics omitted; see Benson v. Greitzer (1990) 220 Cal.App.3d 11, 14 ["If the prior appellate opinion expressly ruled . . . upon a party's entitlement to attorney's fees, the trial court is bound to follow the appellate court's expressions on the subject, under principles of law of the case"].) "The rule of 'law of the case' generally precludes multiple appellate review of the same issue in a single case." (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) "When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.)
Arguably, since this court, on the prior appeal did not direct the trial court to determine whether plaintiffs were entitled to their attorney fees on any other ground apart from Government Code section 800, "such a determination would have been in excess of the trial court's jurisdiction on remand and void." (Hanna v. City of Los Angeles (1989) 212 Cal. App. 3d 363, 376, overruled on other grounds in Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, as stated in City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1516-1517, fn. 4.) There is no question that our statements were intended to guide the trial court on remand, and trial court certainly understood itself to be bound by those statements under the doctrine of "law of the case."
In Fratus I, supra, A147841, we did not address plaintiffs' arguments concerning their right to recover attorney fees based on section 14-6.426, even though the argument was raised in their opening brief. In retrospect, this was an oversight on our part. Regardless, the result is that we did not state a determinative "rule of law" as to whether, on remand, plaintiffs' could obtain attorney fees under that alternative ground. And while our failure to explicitly address the alternative ground should have been brought to our attention earlier, we cannot fault plaintiffs for failing to bring a petition for rehearing. Plaintiffs' counsel could reasonably have believed, as she argued below, that she would have the opportunity to argue alternative grounds for recovery because we did not render any opinion as to the availability of attorney fees under section 14-6.426.
It is true that after losing an appeal, a litigant may not try to reach the same goal by different means or bring up new and different points that could have been raised the first time around. "Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court. 'It would be absurd that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.' " (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312, disproved on other grounds in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637.) However, in the present case, plaintiffs did not wait until after Fratus I was decided to raise a new legal issue. They did raise the issue; however, we failed to address it in our opinion. IV. Recovery Under Section 800 is Limited to $7 , 500
The trial court concluded that plaintiffs were limited to $7,500 in attorney fees under Government Code section 800. Plaintiffs asserted that they should have been awarded $30,000, the equivalent of $7,500 per plaintiff and $7,500 for each of the two structures at issue in the administrative proceeding. While we are returning this matter to the lower court for reconsideration of attorney fees, as guidance on remand, we conclude the trial court was correct in awarding only $7,500 under this statute.
Government Code section 800, subdivision (a) provides, in relevant part: "In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, . . . if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded."
In Reeves v. City of Burbank (1979) 94 Cal.App.3d 770, 780 (Reeves), the plaintiff had requested the appellate court to allow additional attorney fees incurred in defending the judgment on appeal. The court refused, stating: "Government Code section 800 limits total recovery to $ 1,500, the amount already awarded plaintiff. At issue is whether, in view of the express limitation of the monetary award contained in the statute, we have the power, by awarding fees on appeal, to in effect exceed that limitation." Noting there was no authority to increase the amount of the award, the court stated: "We conclude that a reasonable construction of the statute limits recovery in any one civil action to which that section applies and of which this appeal is a part of the total sum of $1,500. Any expansion of awards pursuant to the section is a matter for consideration by the Legislature." (Ibid., italics added.) Subsequent to the issuance of that decision, the Legislature has raised the ceiling on the amount of the award, but has not authorized any additional recovery. As noted, the court in Reeves limited the amount of recovery to the "civil action," not to the number of plaintiffs or the matters involved within the action. We are not persuaded that the statute supports plaintiffs' argument that the $7,500 amount can be multiplied to cover additional parties or multiple issues contained within a single civil action.
The statutory amount has since been raised to $7,500.
Also, in Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1311, the appellate court concluded that when the "successful side" is entitled to attorney fees under Government Code section 800, "the Legislature only intended that the party bringing the appeal or writ proceeding, and not any prevailing party, should be eligible for attorney's fees."
Plaintiffs also argue that they are entitled to an award of fees for bringing their fee motions, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130 (Ketchum). That case concerned the calculation of attorney fees under Code of Civil Procedure section 425.16, a statute that does not include a cap on attorney fees. The court in that case did not address Government Code section 800, and we decline plaintiffs' invitation to extend Ketchum to this statute. Also, plaintiffs assert they are entitled to recover fees incurred on appeal under this statute. We see no reason to depart from Reeves and agree with its view that any expansion of awards authorized by Government Code section 800 must be left to the Legislature.
We express no opinion as to whether plaintiffs may be entitled to either or both of these additional fee requests should the trial court decide on remand to award attorney fees under Government Code section 25845.
DISPOSITION
The order filed on January 11, 2018, awarding plaintiffs $7,500 in attorney fees is reversed. The parties shall bear their own costs on appeal.
While we are reversing the trial court's order, we note that any subsequent order should award plaintiffs no less than the $7,500 amount that is available to them under Government Code section 800. --------
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.