Opinion
D056598 Super. Ct. No. GIC-740832
10-19-2011
CRISTINA VASQUEZ, Plaintiff and Respondent, v. STATE OF CALIFORNIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from orders of the Superior Court of San Diego County, William C. Pate, Judge. (Retired judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
This taxpayer waste action pertains to Proposition 139, the Prison Inmate Labor Initiative of 1990 (Pen. Code, § 2717.1 et seq.). The State of California (State) appeals orders awarding Cristina Vasquez additional attorney fees under the private attorney general statute (Code Civ. Proc., § 1021.5), which were incurred in successfully defending fee awards in three different appeals the State brought, all of which went to the Supreme Court on review.
Further undesignated statutory references are also to the Code of Civil Procedure.
Judge William C. Pate was assigned to this action at its inception, and on his retirement he was assigned to continue handling the action until its completion. The State's primary contention is that Judge Pate should be disqualified. The State asserts he had a financial interest in extending a stipulated injunction because the extension would increase the length of his assignment and his fees. The superior court, however, rejected the State's attempt to disqualify Judge Pate on this ground, the State petitioned for writ relief, which is the only appellate relief available, and this court summarily denied the petition. The matter is closed. Further, the State's attempt to have this court disqualify Judge Pate for a different reason, the purported violation of standards governing the appointed judges program, is not well taken. Judge Pate was assigned under the Chief Justice of California's constitutional authority rather than the appointed judges program. In any event, the issue of disqualification is for the superior court in the first instance, and the State did not bring the issue to that court's attention.
Additionally, the State challenges the court's authority to extend an injunction after its expiration date. The State, however, did not appeal the order on that issue. The State only appealed two subsequent orders awarding Vasquez attorney fees. Thus, the matter is not before us.
The State also contends the court erred by extending the time within which Vasquez could bring one of her attorney fee motions, and by refusing to consider the fees of opposing counsel when calculating the reasonable lodestar amount for Vasquez's attorneys. We conclude these contentions also lack merit. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Previous Appeals
This action has been the subject of numerous appellate proceedings. In our first opinion in the action we held as a matter of first impression that the State has a duty under Proposition 139 to enforce a joint venture employer's duty to pay wages to inmates that are comparable to wages paid in the private sector, given the State's right to a percentage of their wages to defray expenses of incarceration. We reversed a judgment entered for the State after the sustaining of a demurrer to the action. (Vasquez v. State of California (2003) 105 Cal.App.4th 849, 851, 856-857 (Vasquez I).)
The underlying facts are well covered in Vasquez I and the Supreme Court's opinion in Vasquez v. State of California (2008) 45 Cal.4th 243 (Vasquez II), and we need not exhaustively repeat them given the issues in this appeal.
The matter was tried in January 2004, and after two days of testimony the parties entered into a stipulated injunction. The injunction, filed on February 17, 2004, required the State to "make reasonable and good faith efforts" to obtain information from joint venture employers pertaining to wages and to "take reasonable steps to identify the comparable wages required to be paid as required by Penal Code [section] 2717.8." Based on the injunction, the trial court awarded Vasquez $1,257,258.60 in attorney fees under the private attorney general statute. (§ 1021.5.)
The State appealed and we upheld the award. The Supreme Court granted review on the single issue of whether as a prerequisite to receiving fees in a noncatalyst case Vasquez was required to reasonably attempt to settle the matter before filing suit. The court answered the question in the negative and affirmed our opinion. (Vasquez II, supra, 45 Cal.4th at pp. 247-248, 257, 259.)
While Vasquez II was pending before the Supreme Court, the trial court continued to monitor the State's progress in implementing the stipulated injunction. In two hearings, the court granted Vasquez additional attorney fees of $242,055 and $307,338.36, respectively. The State appealed the orders and we affirmed them. The Supreme Court accepted review and deferred briefing pending the resolution of Vasquez II. After it issued Vasquez II, it dismissed the appeals and remanded the matters to this court. (Vasquez v. State of California (May 20, 2009, S153813 (Vasquez III); Vasquez v. State of California (May 20, 2009, S156793) (Vasquez IV).)
Disqualification Attempt
Judge Pate was a sitting superior court judge when this action began, and he has handled it from that time. The stipulated injunction was originally to expire on February 17, 2006. At a hearing in January 2006, however, Judge Pate extended the injunction to February 17, 2008, because of the State's noncompliance and intransigence.
The State mistakenly asserts the two-year extension was by Judge Pate sua sponte since Vasquez only requested a one-year extension. The record shows Vasquez requested an open-ended extension until the State demonstrated compliance with the injunction, or alternatively, a one-year extension.
At the same time, Judge Pate advised the parties he planned to retire from the bench in February 2006. He explained: "I'm making application, bringing this case to the attention of the Chief Justice and requesting that I be assigned as the judge on this case, even though I will be retired, which the Chief Justice has authority to do. . . . And then so you will either find me sitting on the case for another couple years or you will find somebody else, that will be at the wisdom of the Chief Justice. That application is in process. I would hope that I would continue to be assigned because it's going to be impossible I think for somebody to come in and understand the history of this case." The State did not object.
In February 2006 the superior court submitted a form requesting that Judge Pate be assigned to complete this case after his retirement. On March 1, 2006, then Chief Justice Ronald George assigned Judge Pate to remain on the case until its completion. Judge Pate continued to handle the case without any objection by the State.
We grant Vasquez's March 9, 2011 request that we take judicial notice of these documents. (Evid. Code, § 452, subd. (c).) We deny the request insofar as it pertains to other documents. We deny the State's December 2, 2010 request for judicial notice.
Even after the extended injunction expired, the parties and Judge Pate continued to appear at the hearings and address substantive issues. At a hearing on November 17, 2008, the State commented, but raised no objection, that "technically, the injunction has expired." Vasquez denied that the injunction had expired, and the State responded, "I'm not sure. We have to go back and see."
Vasquez scheduled a hearing for March 25, 2009, on a motion to confirm the continuing validity of the injunction, or alternatively, for leave to file a motion to extend the injunction. Vasquez's counsel mistakenly believed the injunction had been extended to February 17, 2009, rather than February 17, 2008. Vasquez argued that the State waived any objection to the injunction's continuance, and by implication the court extended it beyond February 17, 2008, by "scheduling progress hearings and briefing schedules with the participation of and sometimes at the request of the State." She also argued that "in view of the recent progress by the State in implementing the Wage Plan Protocol and the improvement of its site visit reports, . . . an additional year of oversight should be adequate to ensure compliance." The State opposed the motion, arguing the court lost jurisdiction when the injunction expired in 2008.
On February 20, 2009, the State filed an objection to Judge Pate presiding at the March 25 hearing or at any further proceeding on the ground he had a financial interest in the subject matter of the proceeding. (§§ 170.1, subd. (a)(3)(A), 170.3, subd. (c).) The State questioned his impartiality because an extension of the injunction, if granted, would also extend his assignment and result in additional compensation. The State was required to personally serve Judge Pate with a copy of the objection. (§ 170.3, subd. (c)(1).) The record does not show he was personally served.
Section 170.3, subdivision (c)(1) provides: "Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers." The appellant's appendix contains an unconformed copy of a proof of service on Judge Pate at an alternative dispute resolution office, but there is no indication he personally received it. Further, the proof of service is dated March 6, 2009, which is after the superior court ruled on the matter.
On February 26, 2009, Judge Kenneth K. So, as presiding judge, issued an order striking the objection on the ground the State's allegations were insufficient to support the disqualification of Judge Pate. The order cites section 170.5, which defines "financial interest" as "ownership of more than a 1 percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value in excess of [$1,500], or a relationship as a director, advisor or other active participant in the affairs of a party," with stated exceptions. The order also cites Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, 826, which cautions that "[c]harges of disqualification should not be made lightly," and a disqualifying interest must be " ' "direct, personal, substantial, [and] pecuniary. The order also states Judge So handled the matter "in light of the fact that Judge Pate is judicially unavailable during the time in which a response to the Objection is legally required." Judge Pate later explained he had been out of state.
The State filed a petition for writ of mandate to challenge the order striking its objection. This court summarily denied the petition.
On March 30, 2009, Judge Pate entered an order confirming the continuing application of the stipulated injunction to April 30, 2009, or beyond that date if certain criteria were not met. The order explains: "Both parties sought relief from the court since the time when [the State] contends the injunction terminated. [The State] has admitted it has still not fully complied with the injunction. Numerous reports and records have yet to be provided [Vasquez] for her compliance review."
Fee Awards Challenged in Current Appeal
In April 2009 Vasquez moved for fees on Vasquez II. She sought $391,862.50 for work on appeal and $1,462,236.25 for work on review before our high court. These amounts included a 2.5 multiplier on the work of two attorneys. In June 2009 Vasquez moved for $724,430 in attorney fees incurred in litigating Vasquez III, and $404,167.50 incurred in litigating Vasquez IV. These amounts included a 2.5 multiplier on the fees of three attorneys.
After a two-day hearing, the court issued an order on August 27, 2009. Based on numerous reductions, the court awarded Vasquez $682,261.10 for work before the Supreme Court and $125,361.50 for work on appeal in Vasquez II;$264,314.85 for work on appeal in Vasquez III; and $162,712.35 for work on appeal in Vasquez IV. Thus, the court reduced her fee request by approximately 59 percent.
Vasquez brought a motion for reconsideration on the ground the court did not rule on attorney fees incurred in briefing and litigating the fee applications. Vasquez sought an additional $78,953.50 in fees. The court awarded her an additional $78,578.50 in fees.
DISCUSSION
I
Disqualification of a Judge
A
The State's principal contention is that Judge Pate is disqualified from ruling on the attorney fees motions. The State asserts Judge So erred by striking its objection to Judge Pate's continued participation. The State complains there was a procedural irregularity since Judge So rather than Judge Pate responded to the written objection (see § 170.3, subd. (c)(3), (4)); Judge So "ignored the financial realities" since Judge Pate "had every incentive to extend the injunction and prolong the litigation"; and Judge So erred by applying the definition of "financial interest" in section 170.5, subdivision (b), since it concerns a financial interest in a party rather than a "financial interest in the subject matter in a proceeding," the ground on which the State relied in attempting to disqualify Judge Pate. (§ 170.1, subd. (a)(3)(A).)
As a matter of law, the State may not challenge Judge So's ruling on appeal. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by writ of mandate from the appropriate court of appeal." (§ 170.3, subd. (d).) The State petitioned for writ relief and we summarily denied it. The State has received the appellate review to which it is entitled, and the matter is closed. (People v. Panah (2005) 35 Cal.4th 395, 445.) The State's assertion that this appeal "does not concern the same subject matters, facts, or legal issues" already considered by this court in the writ proceeding is erroneous. The State's writ petition raised the identical challenges to Judge So's order it attempts to raise on appeal. Even if the State were raising new arguments about Judge So's order, it is not appealable.
B
Additionally, the State contends Judge Pate must be disqualified for reasons other than the financial interest allegation raised in its written objection. The State asserts his assignment after his retirement in March 2006 was "highly irregular" because of purported violations of procedural standards governing the assigned judges program. For instance, the State claims the standards were violated because the presiding judge of the superior court did not request Judge Pate's appointment after evaluating the superior court's needs, he solicited his own appointment, he did not adhere to the application process, and he participated in private dispute resolution activities while serving as an assigned judge.
The record establishes, however, that Judge Pate never participated in the assigned judges program. Rather, his appointment was made under article VI, section 6 of the California Constitution, which provides: "The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. . . . A retired judge who consents may be assigned to any court." The State cites no apposite authority for the proposition that for obvious reasons of efficiency the Chief Justice cannot appoint a retired superior court judge outside of the appointed judges program to continue handling a complex case. The State's argument is substantively infirm.
In any event, the forum for moving to disqualify a judge is the superior court, not the appellate court. "Chapter 3 of title 2 of part 1 of the Code of Civil Procedure, entitled 'Disqualification of Judges,' prescribes the means by which a party may challenge an assigned judge 'for cause' (§ 170.1) or may exercise a peremptory challenge against the judge (§ 170.6)." (People v. Hull (1991) 1 Cal.4th 266, 269.) It is not our province to consider a disqualification request in the first instance. A party must formally pursue the matter in the superior court, after which it may petition for writ relief. An appeal is never allowed. (§ 170.3, subd. (d).)
The State merely argued in opposition to Vasquez's motions for attorney fees that Judge Pate could not simultaneously handle this action through the assigned judges program and participate in alternative dispute resolution activities. The State did not employ the formal procedure applicable to the disqualification of a judge. (§ 170 et seq.) At the hearing Judge Pate advised the parties he never participated in the assigned judges program.
Further, a party must file an objection "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (§ 170.3, subd. (c)(1).) "[I]f a party is aware of grounds for disqualification of a judge but waits until after a pending motion is decided to present the statement of objection, the statement may be stricken as untimely." (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1338.) Judge Pate was assigned to continue handling the action in March 2006, and the State could have then discovered the procedural facts surrounding his appointment. At oral argument, we asked the State's counsel why the State did not challenge Judge Pate on the ground of purported procedural irregularity years ago. Counsel candidly responded, "It never even crossed our mind."
II
Continuation of Stipulated Injunction
The State submits that the court's order continuing the injunction after it lapsed on February 17, 2008, violates the law. We may not consider the issue, however, because the State did not appeal the March 30, 2009 order continuing the injunction. The State's notices of appeal are of the August 27 and November 16, 2009 orders on attorney fees. "Jurisdiction of the Court of Appeal is limited in scope to the notice of appeal and the judgment [or order] appealed from." (Dakota Payphone, LLC v.Alcaraz (2011) 192 Cal.App.4th 493, 504.)
III
Timeliness of Motion for Attorney Fees on Appeal in Vasquez II
Additionally, the State contends Vasquez's motion for attorney fees on Vasquez II was untimely. The State argues the court lost jurisdiction over the case on April 17, 2008, when the injunction lapsed after its first extension. Again, however, the validity of the court's order further continuing the injunction is not an issue on appeal. Thus, we do not consider the merits of the contention.
The State also claims the court erred by granting Vasquez relief to file a late motion for fees in Vasquez II. Ordinarily, a motion for attorney fees on appeal must be served and filed within the time for serving and filing a memorandum of costs on appeal, which is within 40 days after the clerk sends notice of the issuance of the remittitur. (Cal. Rules of Court, rules 8.278(c)(1), (d)(2), 3.1702(c).)
All further rule references are also to the California Rules of Court.
The remittitur in Vasquez II was issued on December 22, 2008, and Vasquez did not move for attorney fees within the 40-day period. In late March she moved for an order for relief from the deadline. In its March 30, 2009 order, the court granted Vasquez leave to file a late motion for fees based on good cause. The order cites rule 3.1702(d), which provides: "For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation." The rule does not define the term "good cause." It is commonly defined as a "legally sufficient reason." (Black's Law Dict. (8th ed. 2005) p. 182.)
The order states that following the Supreme Court's decision in Vasquez II, "the parties engaged in settlement discussions. [Citation.] There is a dispute as to whether the settlement negotiations were global or not, however, it is clear the parties were attempting to settle the issue of attorneys' fees. These settlement discussions concluded on or about February 6, 2009. [Citation.] Due to the settlement discussions, [Vasquez] deferred preparing a motion for attorneys' fees in an effort to avoid increasing the settlement amount as an incentive for settlement. [Citation.] [Vasquez] and [the State] also agree there was a tolling agreement as to the injunction during the pendency of the settlement negotiations. Although the tolling agreement did not encompass the request for attorneys' fees, [Vasquez] was reassured by [the State] the settlement talks would not be prejudicial to her."
The order's statements are supported by declarations of one of Vasquez's attorneys, Robert Berke. Further, the court cited a January 27, 2009 letter from one of the State's attorneys, Thomas Clifton, to Berke, which states: "It is my understanding that you have an ongoing request for a global settlement conference scheduled within the next three weeks and I have taken the lead with respect to your identification of a mediator. You requested yesterday a substantive representation of good faith . . . and I was able to get that. I really hope that we are moving along this path as you have requested. . . . [¶] At the end of the day, however, I don't think that this is necessary, as I believe both parties want to reach a good faith resolution of all remaining issues. That is my take on the situation. We can go ahead and brief all the merits and counter merits on these issues, with the recognized risks by both sides, but there is a real opportunity for settlement to explore that I do not think prejudices either side. I would really like to work with you on this."
The State points out that Vasquez did not make any showing of good cause in her fee motion. She made her evidentiary showing, however, when she sought and obtained leave for a late filing. She was not required to repeat the effort in her fee motion. The State cites no authority suggesting that ongoing settlement discussions, which would encompass attorney fees, do not constitute "good cause" for excusing a late filing for fees. " ' "The law wisely favors settlements." ' " (Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 236.) "Settlement agreements ' "are highly favored as productive of peace and goodwill in the community, and reducing the expense and persistency of litigation." ' " (Ibid.)
The State also asserts Vasquez was required to seek an extension of the usual 40-day period before it expired. Rule 3.1702(d) does not expressly support the State's position, and it does not cite any apposite authority. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
The State cites Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070, but it does not concern Rule 3.1702(d) or any other provision allowing a late filing for good cause.
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Moreover, it is settled that the time limitation for a cost bill is not jurisdictional and "a trial court has broad discretion in allowing relief from a late filing where . . . there is an absence of a showing of prejudice to the opposing party." (Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488 (Hoover), italics added; Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 373, 381.) Prejudice means "a change of position or disadvantage incurred prior to the trial court's action and which is caused by the delay in seeking costs." (Hoover, supra, at p. 488, fn. 4.) A delay in seeking attorney fees to explore settlement potential is ordinarily beneficial to the parties. (Ron Burns Construction Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1416.)
A "discretionary ruling will not be disturbed on appeal absent a showing that discretion was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877.) On this record, we cannot conclude that no reasonable judge would have made the same ruling or that there was any miscarriage of justice.
IV
Consideration of Opposing Counsels' Fees
Lastly, the State argues the court erred by refusing to consider the amount of opposing counsels' fees in setting Vasquez's reasonable fees. The State asserts the hours she claimed are excessive in comparison to opposing counsels' hours. The State cites Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, which held the trial court did not abuse its discretion by reducing a request for attorney fees on the ground the fees of opposing counsel were much lower. (Id. at p. 1250.) Maughan declined to follow lower federal court opinions that held it was improper to use opposing counsels' fees as a measure of reasonableness for the prevailing party's fees. (Id. at p. 1250, fn. 7.)
The record does not support the State's position. The State submitted numerous invoices from its appellate counsel and summaries of fees incurred, and it referred to this evidence in arguing Vasquez's fees were unreasonably high. At the hearing, the court stated for the record, "I have read all the pleadings, depositions[,] exhibits, spreadsheets, [E]xcel printouts that have been provided to me."
The State's single citation to the record is its offer at the hearing to "dig up" the equivalent time one of its attorneys spent reviewing amicus briefs before the Supreme Court in Vasquez II, and the court's response, "I don't think that's real helpful" because the "amount of time one side spends on the matter is not indicative of what the other side spends." This comment pertaining to one task does not suggest the court entirely refused to consider opposing counsels' fees. We accept the court's comment that it thoroughly reviewed the record before it. The court did substantially reduce Vasquez's requested fees, based in part on a finding of excessive hours.
Apart from the issue of whether the court considered the fees of the State's attorneys, the State does not challenge the court's discretion regarding the amount of fees awarded. Since we have rejected the notion the court ignored opposing counsel's fees, there is nothing more for us to consider.
DISPOSITION
The orders are affirmed. Vasquez is entitled to costs on appeal.
MCCONNELL, P. J. WE CONCUR:
BENKE, J.
NARES, J.