County of Sacramento v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: PIERCE; REGAN, Acting P.J., and JANES
• Citation: County of Sacramento v. Superior Court, 20 Cal.App.3d 469, 97 Cal.Rptr. 771 (Cal. App. 1971)
• Decision Date: 07 October 1971
• Parties: COUNTY OF SACRAMENTO and Board of Supervisors of Sacramento County, Petitioners, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Walter R. HALE, Real Party in Interest. Civ. 13009.

Page 771

97 Cal.Rptr. 771

20 Cal.App.3d 469

COUNTY OF SACRAMENTO and Board of Supervisors of Sacramento County, Petitioners, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent Walter R. HALE, Real Party in Interest.

Civ. 13009.

Court of Appeal, Third District, California.

Oct. 7, 1971.

John B. Heinrich, County Counsel, Sacramento, for petitioners.

Floyd V. Gibbert, Sacramento, for real party in interest.

PIERCE, Associate Justice (assigned).

The County of Sacramento has petitioned for a writ of prohibition restraining the superior court from proceeding with the trial of a petition for a writ of mandate brought by its former auditor-controller, Walter R. Hale (real party in interest), as plaintiff versus the county as defendant. The purpose of the proceeding in mandamus is to compel the county to pay Hale's attorneys fees and costs incurred in defending himself in an earlier criminal proceeding.

The earlier proceeding was based upon a grand jury accusation filed June 18, 1963, to remove Hale from office for wilful misconduct. The charge was dismissed and the dismissal was affirmed by the Court of Appeal for the Fifth District in People v. Hale (1965) 232 Cal.App.2d 112, 42 Cal.Rptr. 533. ¹

The current mandamus proceeding brought by Hale was the third of three court actions attempting to assert his claim for attorneys fees and costs. In the others demurrers were either sustained or the action abandoned. The claim under all of them was and is that Government Code, section 995.8 is apposite to afford Hale relief. That section in relevant part provides: that a public entity is not required to provide for the defense of a criminal action (including a Govt.Code, § 3060, action) brought against an employee or former employee but May do so (a) if the criminal action is brought on account of an act or omission in the scope of his employment, and (b) if the defense would be in the best interests of the public entity and if the public employee acted in good faith, without malice, and in the apparent interests of the public entity.

It is the position of the county in bringing the current proceeding that Hale has not stated a cause of action under the foregoing Government Code section and that the trial of the action should be prohibited. This court issued an order to show cause on April 8, 1971.

In his opposition Hale enumerates two bases on which he seeks a denial of this writ. The first is delay by the county in raising the grounds upon the basis of which it claims prohibition to be a proper remedy. Hale argues that after the county's demurrer in the mandamus proceeding was overruled it did nothing for 16 months. That proposition is untenable. The county had filed its return; the cause was at issue; it was Hale's responsibility as plaintiff to bring his action to trial. Delay must be laid at the door of Hale, not the county.

The second contention is that the petition does not set forth facts sufficient to allow this court to grant the relief sought. The claim is that it was the responsibility of the county, if it did not elect to pay Hale's attorneys fees and cots under Government Code, section 995.8, to make formal findings as to its reasons. Stated in another way, Hale argues that there is an affirmative duty on the part of the county to prove the existence of conditions which must be met before a power which is permissive can be withheld. That is a backhanded way of recasting the statute to read that the county must allow attorneys fees and costs unless it can establish that it would not be to the best interests of the public to do so. That is not what the section says. Hale cites no authority so construing the statute or any other statute similarly worded. Stated more bluntly, he cites no authority at all.

Usually the word 'shall' connotes mandatory action and 'may' connotes discretionary action. (Cannizzo v. Guarantee Ins. Co. (1966) 245 Cal.App.2d 70, 73, 53 Cal.Rptr. 657 (hg. den.).) Moreover, section 995.8 expressly provides, 'A public entity is not required to provide for the defense of a criminal action' such as that here involved.

It is a well-established rule of statutory construction that every word, phrase, sentence and part of an act should be effectuated with the resulting interpretation giving effect to the intent of the Legislature. (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315.) '(A) court is prohibited from such a construction as will omit a portion of a statute.' (Id. at p. 117, 65 Cal.Rptr. at p. 324, 436 P.2d at p. 324 citing Code Civ.Proc. § (1858.) A court is required to construe a statute in order to effectuate all of its provisions. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 470, 20 Cal.Rptr. 609, 370 P.2d 313.)

Secondly, it is interesting to note that enactment of this section was preceded by a specific legislative direction that counties were not to be responsible for legal expenses incurred by officials in defending actions to remove them from their employment or criminal...