Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CVO7-1551
NICHOLSON , J.
Plaintiff Renee Odette Lancaster, formerly employed by defendants as a deputy sheriff, claimed defendants violated her rights under the state Public Safety Officers Procedural Bill of Rights (POBR) (Gov. Code, § 3300 et seq.) when they conducted an in-house investigation that resulted in a report that allegedly contained incriminating information against her but which they would not let her review and rebut, and which she asserts ultimately led to her termination.
The trial court sustained the defendants’ demurrer and entered judgment against plaintiff primarily on the basis of collateral estoppel; that issues essential to plaintiff’s claim had previously been decided against her in a federal action she had filed against the same parties. The trial court also awarded attorney fees to defendants as allowed under the POBR.
Plaintiff appeals, claiming the trial court erred in both sustaining the demurrer and granting attorney fees. Regarding the demurrer, she asserts the court failed to specify its reasoning in its order as required by statute, and it erred by relying on collateral estoppel. As to the attorney fee motion, plaintiff argues the court lacked jurisdiction to award fees, and that the court erred by awarding fees against both of plaintiff’s attorneys of record. Plaintiff’s attorneys also appeal the award of attorney fees. We affirm the trial court’s decisions.
FACTS AND PROCEDURAL HISTORY
Because this is an appeal following a successful demurrer, we accept as true all facts properly pleaded in plaintiff’s complaint. We also incorporate any facts of which we may take judicial notice. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200.)
In 2003, plaintiff filed a complaint in federal district court against defendants County of Yolo (County), the Yolo County Sheriff’s Department (Department), Sheriff Ed Prieto in both his official and individual capacities (collectively defendants), and another deputy sheriff. Her second amended complaint alleged the defendants terminated her employment as a deputy sheriff in violation of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000a), the state Fair Employment and Housing Act (Gov. Code, § 12940 et seq.), the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.), certain federal constitutional rights (42 U.S.C. § 1983), and the state POBR.
In short, plaintiff claimed she was discharged for reporting that one of her superior officers was stalking and harassing her. She asserted an investigation conducted by the Sheriff, referred to by the parties as the Carlson Investigation, was, she thought, an investigation into her complaint, but was actually an investigation into her employment. Specifically with regards to her claim under the POBR, she alleged the Carlson Investigation was used for personnel purposes. However, in violation of the POBR, she was never given the opportunity to review and rebut the Carlson Investigation’s claims against her, even though some of the information contained in the report was used to deny her promotional opportunities.
The district court dismissed plaintiff’s POBR cause of action against the County, ruling that under the language of the statute, plaintiff’s claim could be brought against only the Department and the Sheriff in his official capacity.
Ultimately, the defendants moved for summary judgment against plaintiff’s complaint. The district court granted summary judgment against plaintiff, ruling in favor of the defendants on all of her federal claims. The court also declined to assume supplemental jurisdiction over plaintiff’s POBR claim against the Department and the Sheriff and dismissed it without prejudice.
Plaintiff then filed this state action. She alleged two causes of action, one for a violation of the POBR, and the other for a violation of Penal Code section 832.7, regarding confidentiality of peace officer personnel records. She claimed the interview process used for the Carlson Investigation, and the investigation itself, violated the POBR. She also claimed defendants violated Penal Code section 832.7 by giving confidential personnel records to Carlson to conduct the investigation.
Defendants filed a demurrer, arguing (1) plaintiff failed to allege she complied with the claims presentation requirement of the Tort Claims Act (Gov. Code, § 810 et seq.); (2) plaintiff’s POBR claim was barred by res judicata as against the County, and collateral estoppel as against the Sheriff and the Department based on the federal court’s resolution of issues on summary judgment, and (3) plaintiff stated no cause of action under Penal Code section 832.7.
The trial court sustained the demurrer. It ruled as follows: (1) It granted the County’s demurrer to the POBR action without leave to amend under res judicata. The federal court had already determined plaintiff could not claim against the County under the POBR.
(2) It granted the Department’s and Sheriff’s demurrers to the POBR action with leave to amend. The complaint alleged facts that had been adjudicated against her in the federal action. The court granted leave to allow plaintiff to amend as to violations of the POBR that did not rely on facts previously adjudicated against her in the federal action.
(3) It granted all parties’ demurrers to plaintiff’s second cause of action, as plaintiff conceded she could not state a separate cause of action against any of the defendants under Penal Code section 832.7.
After the time to amend the complaint had expired, and pursuant to an ex parte application by defendants, the trial court dismissed the complaint and entered judgment in favor of defendants due to plaintiff’s failure to amend. (Code Civ. Proc., § 581, subd. (f)(2); Cal. Rules of Court, rule 3.1320(h).)
Thereafter, defendants filed a motion for attorney fees pursuant to the POBR (Gov. Code, § 3309.5, subd. (d)(2)), on the basis that plaintiff’s action was a bad faith or frivolous action or was filed for an improper purpose. Plaintiff did not oppose the motion. The trial court granted the motion and awarded defendants $34,487.50 in fees and costs.
Defense counsel forwarded to plaintiff’s attorney a proposed order and judgment on the attorney fees motion for approval as to form. After receiving no comment, defense counsel forwarded the proposed order to the court.
The next day, plaintiff’s attorney presented written objections to the court that went to the merits of the motion. The court, however, entered judgment against plaintiff and her counsel of record.
Plaintiff timely appeals from both judgments and her attorneys appeal from the fee judgment. Plaintiff asserts the trial court erred when it sustained the demurrer, and she and her attorneys claim the court erred when it granted the motion for attorney fees.
DISCUSSION
I
The Demurrer
Plaintiff contends the trial court committed two errors when it sustained defendants’ demurrer: (1) It allegedly violated Code of Civil Procedure section 472d by failing to include in its order the specific grounds on which its decision was based; and (2) it erred by concluding her POBR claim against the Department and the Sheriff rested upon facts that were adjudicated in the federal action, i.e., collateral estoppel. We review, and reject, each argument.
A. Adequacy of order sustaining demurrer
Code of Civil Procedure section 472d requires a court sustaining a demurrer to “include in its decision or order a statement of the specific ground or grounds upon which the decision or order is based....” This requirement may be waived by the party against whom the demurrer was sustained.
The trial court’s order stated the court sustained the demurrer as to the County without leave to amend based on “the doctrine of res judicata, as the federal court dismissed plaintiff’s POBR claim against the County holding that it was not properly asserted against the County.” The court sustained the demurrer against the Department and the Sheriff with leave to amend because “plaintiff’s complaint alleges facts which have already been adjudicated against plaintiff in the federal action.” It granted leave to amend to allege facts that had not been previously adjudicated.
Plaintiff claims these statements fail to satisfy the requirement of section 472d and the order is “per se defective.”
Plaintiff has forfeited this argument by failing to raise her objection first to the trial court. Failure to notify the trial court of its failure to state reasons for sustaining the demurrer forfeits the requirement of Code of Civil Procedure section 472d. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1128, fn. 4.) At no time did plaintiff take any action to raise her claim of a defective order to the trial court.
Plaintiff asserts she has not forfeited her argument because she requested a “statement of reasons for sustaining the demurrer.” Plaintiff’s request, made before the court ruled on the demurrer, did not inform the court that its yet-to-be-issued order may be defective. It simply requested the court to express its order in writing. This did not satisfy plaintiff’s obligation to object to the court’s order in some form upon its issuance. Having failed to object first to the trial court, plaintiff has forfeited the objection here.
Even if we were to consider plaintiff’s argument, we would reject it. “Code of Civil Procedure section 472d does not mandate a detailed statement explaining the court’s reasons for sustaining the demurrer on the ground specified. (Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 943.)” (Mautner v. Peralta (1989) 215 Cal.App.3d 796, 801-802.) The trial court stated its grounds for sustaining the demurrer. Nothing more was required.
B. Collateral estoppel
Plaintiff claims the court erred when it determined her POBR claim against the Department and the Sheriff was based on facts that had already been decided against her in the federal action. Because the federal court did not rule on her POBR claim against the Department and the Sheriff, she asserts the trial court could not rely on facts that were adjudicated for her other federal claims, and she is not barred from pursuing her POBR claim in state court.
Plaintiff misunderstands the operation of collateral estoppel. Although a former judgment does not preclude a second action between the same parties on a different cause of action, the first judgment “operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” (Todhunter v. Smith (1934) 219 Cal. 690, 695.) Even if the second state action involves different causes of action than those resolved in federal court on summary judgment, “[w]here dispositive factual issues are actually litigated and resolved in the federal action, the losing party is estopped to relitigate those issues in a subsequent state action....” (Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1232.)
Thus, contrary to plaintiff’s assertion, the federal court’s determination not to entertain the POBR claim does not prevent application of collateral estoppel if the factual issues dispositive under the state POBR claim were resolved in the federal action against plaintiff on any of the claims pending before that court. We thus turn to ascertain the dispositive issues in plaintiff’s POBR cause of action against the Department and the Sheriff and whether the federal court resolved them.
As best as can be discerned from plaintiff’s complaint, she alleges the County’s development and use of the Carlson Investigation violated the POBR because she was subjected to an interrogation that could lead to punitive action without being provided interrogation rights granted her under Government Code section 3303, and because the report constituted comments adverse to her that were maintained for personnel purposes without notice to her or without providing her an opportunity to read and comment on them, in violation of Government Code sections 3305 and 3306.
In the federal action, however, the district court made determinations of fact that defeat plaintiff’s allegations. It determined plaintiff was not the subject of an investigation or interrogation that could lead to punitive action, and it determined the Carlson Investigation was not performed or maintained for personnel purposes.
The federal court specifically found the Carlson Investigation was performed as “an assessment of the internal working environment of the Department, specifically in regard to issues of trust, communications, morale, and any perceived hostility or harassment.” The Sheriff did not instruct the investigator to investigate plaintiff or any specific allegations by or against her. “The report was intended for [the Sheriff’s] own internal review of his department, specifically related to morale issues, and it was not to be used for any personnel purposes related to any of the individuals interviewed.” “[T]he investigation was a general ‘morale investigation,’ performed for [the Sheriff’s] personal benefit to assess the state of his Department. [Citation.] Indeed, defendants did not use the report or any of the employees’ statements as a basis to terminate plaintiff.”
Thus, the federal court determined the Carlson Investigation was not used for potential punitive action and it was not performed for any personnel purposes. Because these findings defeat essential elements of plaintiff’s claim under the POBR against the Department and the Sheriff, they foreclose her from pursuing her claim in a different court. The trial court correctly sustained defendants’ demurrer on the basis of collateral estoppel.
Defendants also argue we should affirm the trial court’s action because plaintiff failed to comply with the claims filing requirements of the Tort Claims Act (Gov. Code, § 810 et seq.). Because we affirm on the basis of collateral estoppel, we need not discuss this argument.
II
Hereafter, all references to plaintiff are to Lancaster and her attorneys of record.
Plaintiff claims the trial court lacked subject matter jurisdiction to award attorney fees because the statute through which it acted was inoperative. Alternatively, plaintiff argues the judgment is invalid as to one of her attorneys, Daniel Karalash, because defendants allegedly failed to notify Karalash he was the subject of the motion, and, because Karalash had not presented a filing in this matter, the court lacked jurisdiction to impose sanctions against him. Plaintiff also argues that the trial court’s judgment is inadequate because it failed to identify by name which attorneys were being sanctioned. We reject each of her arguments.
A. Additional background information
The POBR provides for an award of attorney fees against a party who brings a bad faith or frivolous action. The relevant provision of the POBR, Government Code section 3309.5, subdivision (d)(2), reads as follows:
“If the court finds that a bad faith or frivolous action or a filing for an improper purpose has been brought pursuant to this chapter, the court may order sanctions against the party filing the action, the party's attorney, or both, pursuant to Sections 128.6 and 128.7 of the Code of Civil Procedure. Those sanctions may include, but not be limited to, reasonable expenses, including attorney’s fees, incurred by a public safety department as the court deems appropriate. Nothing in this paragraph is intended to subject actions or filings under this section to rules or standards that are different from those applicable to other civil actions or filings subject to Section 128.6 or 128.7 of the Code of Civil Procedure.”
On April 7, 2008, defendants filed a motion for attorney fees under this statute. They argued the court should grant fees pursuant to the standards set forth in Code of Civil Procedure section 128.6, a statute which by its terms has not become operative. (See Stats. 1998, ch. 121, § 1; Stats. 2005, ch. 706, § 9.) Defendants served their motion by mail on both of plaintiff’s attorneys of record, Gary Gorski and Daniel Karalash.
Plaintiff filed no opposition to the motion.
The trial court issued its tentative ruling granting the motion. Because no party requested argument, the tentative ruling became the court’s order. The court granted the motion and awarded defendants $34,487.50 in fees and costs.
Defense counsel forwarded to both of plaintiff’s attorneys by mail a proposed order and judgment for their approval as to form. The proposed order awarded the fees and costs “against Plaintiff and her counsel of record, jointly and severally....”
Neither of plaintiff’s attorneys returned the proposed order. After the five-day period expired, defense counsel forwarded the proposed order to the court on May 14, 2008.
The following day, May 15, 2008, attorney Gorski hand-delivered to the court a letter objecting to the proposed order. Initially, he claimed he had not seen the proposed order until May 14. Substantively, he objected not to the order’s form, but to its effect. He argued the court lacked subject matter jurisdiction to grant the motion because defendants had relied on Code of Civil Procedure section 128.6, an inoperative statute. He asked the court to reconsider its ruling “sua sponte” to correct an error of law.
On May 27, 2008, the trial court signed the order as proposed and entered judgment against plaintiff on the attorney fees motion.
B. Subject matter jurisdiction
Plaintiff claims the trial court lacked subject matter jurisdiction to award attorney fees because defendants sought them via Code of Civil Procedure section 128.6, and that statute is inoperative. Plaintiff is incorrect.
Initially, we note that plaintiff’s argument does not raise a question of subject matter jurisdiction. The trial court obviously had jurisdiction to award attorney fees under Government Code section 3309.5, subdivision (d)(2). Rather, plaintiff’s attack focuses on whether the trial court exceeded its jurisdiction by awarding fees pursuant to an inoperative statute.
Plaintiff failed to raise this argument before the trial court made its order. Her failure to oppose the motion and raise the argument below forfeits the argument here. (Law Offices of Ian Herzog v. Law Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th 672, 680 [“The doctrines of [forfeiture] and estoppel apply to acts in excess of a court’s jurisdiction.”].)
Her attempt to raise the argument under the guise of an objection to the order’s form and as a request for sua sponte reconsideration does not save her. The trial court was under no obligation to reconsider the motion under its inherent judicial authority. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)
Even were we to consider the argument, we would reject it out of hand. Although Code of Civil Procedure section 128.6 is not operative and cannot be invoked in its own right, it is still effective for purposes of awarding attorney fees under the POBR. Government Code section 3309.5’s cross-reference to Code of Civil Procedure section 128.6 “‘means a court must use the procedures and apply the substantive standards of [the inoperative statute] in deciding whether to award attorney fees’ under the other statute. [Citation.]” (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 817, original italics.)
Plaintiff argues Government Code section 3309.5’s statement that it is not “intended to subject actions or filings under this section to rules or standards that are different from those applicable to other civil actions or filings subject to Section 128.6 or 128.7 of the Code of Civil Procedure” means that Code of Civil Procedure section 128.6 cannot be used to impose fees under the POBR because it is not effective, i.e., because other civil actions or filings that seek attorney fees cannot use Code of Civil Procedure section 128.6.
The sentence in Government Code section 3309.5 means nothing of the kind. By its plain language, the sentence means a court is not to apply any procedures and standards for determining an award of fees under the POBR other than those provided in Code of Civil Procedure section 128.6 or 128.7. The sentence does not, as plaintiff would have us decide, excise Government Code section 3309.5’s reliance on Code of Civil Procedure section 128.6 for the requisite standards and procedures for awarding attorney fees under the POBR.
Plaintiff claims that if we interpret Government Code section 3309.5 as allowing attorney fee actions pursuant to Code of Civil Procedure section 128.6, we render Government Code section 3309.5 unconstitutionally void for vagueness. To the contrary, we simply interpret and enforce the statute’s clear and unambiguous meaning.
C. Application of judgment to Karalash
Plaintiff claims the attorney fee judgment cannot lie against Karalash because defendants failed to state his name in their motion as one of the attorneys who could be liable for the fees, and because the trial court lacked jurisdiction to impose the sanction against Karalash because he had not made a presentation in the court.
Defendants’ motion for fees did not mention any of plaintiff’s attorneys by name. Instead, it alleged defendants were entitled to sanctions “against Plaintiff and her attorney.” From this, plaintiff asserts Karalash was not on notice that he could be liable for the fees.
This simply cannot be true. Karalash was named as one of plaintiff’s attorneys on all of her papers. Defendants served Karalash with a copy of the notice of motion and its supporting memorandum. The motion informed Karalash they were seeking fees under Government Code section 3309.5, which expressly provides for an award from the party’s attorney in a case brought under the POBR. The motion’s supporting memorandum, in arguing that plaintiff’s complaint was brought for an improper purpose, stated Karalash had 13 years of experience practicing law, and used that fact as part of the evidence showing the underlying action was filed for an improper purpose. It is impossible for Karalash to argue credibly from this record that he was not put on notice of the need to defend himself and his actions or else face possible sanctions.
The fact that Karalash had not signed any of plaintiff’s papers also did not deprive the trial court of jurisdiction to award the sanction against him. Plaintiff’s argument on this point is derived from Code of Civil Procedure section 128.7, which authorizes an award of sanctions against an attorney who violates the certifications he makes by presenting a paper to the court, whether by signing, filing, submitting, or advocating a paper.
Code of Civil Procedure section 128.7 does not apply here because defendants brought their motion under Government Code section 3309.5 pursuant to the standards set forth in Code of Civil Procedure section 128.6. That statute does not require an attorney to present a paper to the court before the court may impose sanctions. Instead, it authorizes a court to impose sanctions on any attorney as a result of bad faith actions or frivolous tactics. By representing plaintiff in this action, Karalash was subject to the court’s jurisdiction to award sanctions under the POBR pursuant to Code of Civil Procedure section 128.6.
We note that Karalash would have been liable for fees had defendants brought their motion pursuant to Code of Civil Procedure section 128.7. By being named as one of plaintiff’s attorneys of record on her papers filed with the court, Karalash certainly qualified as an attorney who presented a paper to the court and, by so doing, certified plaintiff’s claim was warranted and not frivolous.
D. Adequacy of court’s order
Plaintiff faults the trial court’s order for not identifying which attorneys were being sanctioned and for not explaining the basis of the sanction imposed. Plaintiff has forfeited this argument. She did not file an opposition to the motion, request a hearing on the motion, or timely object to the proposed order. Even when she did object, she did not raise these points. Her failure to do so forfeits the arguments here.
DISPOSITION
The judgments are affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SIMS , Acting P. J., BUTZ , J.