County of Los Angeles v. Superior Court

• Citation: 102 Cal.App.3d 926,162 Cal.Rptr. 636
• Court: California Court of Appeals Court of Appeals
• Decision Date: 28 February 1980
• Parties: COUNTY OF LOS ANGELES, a political subdivision of the State of California, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF LOS ANGELES, Respondent, Daniel F. HOLLEY, Real Party in Interest. Civ. 57865.

Page 636

162 Cal.Rptr. 636

102 Cal.App.3d 926

COUNTY OF LOS ANGELES, a political subdivision of the State of California, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF LOS ANGELES, Respondent, Daniel F. HOLLEY, Real Party in Interest.

Civ. 57865.

Court of Appeal, Second District, Division 2, California.

Feb. 28, 1980.

Rehearing Denied March 26, 1980.

Hearing Denied April 30, 1980.

John H. Larson, County Counsel, John P. Farrell, Deputy County Counsel, Los Angeles, for petitioner.

James E. Sutherland, Long Beach, for real party in interest.

FLEMING, Acting Presiding Justice.

Mandate by the County of Los Angeles to vacate an order of respondent court requiring the county to pay $1250 in attorneys' fees and costs to counsel appointed to defend Daniel Holley in an action brought by the county to recover child support. We issued an alternative writ.

On 2 October 1978 the County of Los Angeles instituted an action against Holley to establish his obligation to reimburse the county for child support. (Welf. & Inst. Code, § 11350 ff.) Holley, an indigent, asked for appointed counsel to represent him. On October 9 the trial court, purportedly acting under the authority of Penal Code section 987(a), appointed counsel to represent Holley, and thereafter it directed the county to pay counsel $1250 for attorneys' fees and costs. The county sought mandate to vacate the order for attorneys' fees and costs.

In Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226, the Supreme Court held that an indigent defendant in a paternity and child support action prosecuted by the district attorney is constitutionally entitled to appointment of free counsel to represent him. Accordingly, the county does not contest the appointment itself, but it contends that the court erred in ordering it to pay attorneys' fees and costs in that such expenditure of public moneys has not been authorized by the Legislature, either under Penal Code section 987(a), or Welfare and Institutions Code section 11350, or otherwise.

Holley first argues that appointment of counsel at county expense is authorized by Penal Code sections 987 and 987.2. While these sections authorize appointment of counsel at public expense in criminal causes, they have no application to civil causes (County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 146 Cal.Rptr. 880), and they are not relevant here.

Holley next cites Civil Code section 7011 as statutory justification for the trial court's award of attorneys' fees. That section, part of the Uniform Parentage Act (Civ.Code, §§ 7000-7018, hereinafter UPA), authorizes the court in a UPA action to order the parties to pay reasonable attorneys' fees and costs in such proportions and at such times as may be determined by the court. The parties who can initiate an action under the UPA are a child, a child's natural mother, or a man presumed to be its father, and they do not include a county. (Civ.Code, § 7006(a).) Although a district attorney may initiate such an action in "the interests of justice" ( § 7006(g)),he does so in the interest of a party and not in the interest of a county seeking reimbursement for moneys spent and to be spent on child support. Patently, the cause of action created by the UPA is separate and distinct from the cause of action prosecuted here by the county. The UPA creates a right of action in a child, its mother, or its presumed father, to determine the existence or non-existence of the parent-child relationship and to secure an auxiliary determination of the duty to support. (Civ.Code, §§ 7006, 7010). Welfare and Institutions Code section 11350, under which the present action was brought, creates a right of action in the county against a non-custodial parent who has deserted or separated from his child for reimbursement of moneys spent and to be spent to support the child. While a considerable similarity of issues exists in the two actions, nevertheless, the cause of action of a county for reimbursement of child support under section 11350 is a different action from that of a parent or child under the UPA to determine parentage and support; and a judgment in the former action is not res adjudicata in the latter action (Welf. & Inst. Code, § 11350.1). In view of the substantial differences between these actions, we think the procedural provisions of the UPA do not apply to the action at bench (Welf. & Inst. Code, § 11350; D. G. v. Superior Court (1979) 100 Cal.App.3d 535, 542, 161 Cal.Rptr. 117).

Finally, Holley argues that an award of attorneys' fees against the county is authorized by Civil Code sections 196a (parental obligation for attorneys' fees in an action to require support and education of a child) and 4370 (spouse's obligation for attorneys' fees in marriage dissolution proceeding). But the cause at bench is not an action on behalf of a child against a parent seeking support and education, nor is it an action by a spouse seeking to dissolve a marriage. Holley argues that because Civil Code sections 196a and 4370 may require a putative parent to pay attorneys' fees to a child, or to a county acting on behalf of the child (City & County of San Francisco v. Superior Court (1978) 86 Cal.App.3d 87, 150 Cal.Rptr. 45), therefore a child, or a county acting on its behalf, can be required to pay attorneys' fees to a putative parent. His argument seeks to convert a child-support action into a parent-support...