Riverside Sheriff's v. County of Riverside

• Decision Date: 21 June 2007
• Docket Number: No. E040921.,E040921.
• Citation: 152 Cal.App.4th 414,61 Cal.Rptr.3d 295
• Court: California Court of Appeals Court of Appeals
• Parties: RIVERSIDE SHERIFF'S ASSOCIATION, Plaintiff and Respondent, v. COUNTY OF RIVERSIDE et al., Defendants and Appellants.

61 Cal.Rptr.3d 295

152 Cal.App.4th 414

RIVERSIDE SHERIFF'S ASSOCIATION, Plaintiff and Respondent, v. COUNTY OF RIVERSIDE et al., Defendants and Appellants.

No. E040921.

Court of Appeal, Fourth District, Division 2.

June 21, 2007.

Ferguson, Praet & Sherman and Bruce D. Praet, Santa Ana, for Defendants and Appellants.

Law Offices of Dennis J. Hayes, Dennis J. Hayes and Alison M. Miceli, San Diego, for Plaintiff and Respondent.

OPINION

RICHLI, J.

In an action brought under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov.Code, § 3300 et seq.), the trial court awarded attorney's fees to the Riverside Sheriffs Association (RSA) under Code of Civil Procedure section 1021.5.¹ Raising an issue of first impression, the County of Riverside argues on appeal that the right to attorney's fees is provided exclusively by Government Code section 3309.5, subdivision (e), and the RSA was not entitled to a fee award under either statute. The County also challenges the amount of fees awarded.

We hold Government Code section 3309.5 is not the exclusive ground for recovery of attorney's fees in a POBRA case. The trial court did not abuse its discretion in awarding attorney's fees under section 1021.5. We affirm the judgment.

I FACTUAL AND PROCEDURAL BACKGROUND

This appeal has its genesis in a petition for writ of mandate filed by the RSA, alleging that several deputy sheriffs, working at the Indio jail, were denied access to RSA employee representatives during a criminal investigation of sexual improprieties with female inmates.

According to the writ petition filed on July 8, 2004, during the County's investigation occurring in May and June 2004, several deputy sheriffs, members of the RSA, were denied representation as required by Government Code section 3303. On June 8, 2004, RSA's lawyer sent a letter to the County demanding compliance with POBRA. The County responded on June 14, 2004, that it did not need to comply with POBRA because it was a criminal investigation and not a personnel matter. Contrary to the County's assertion in oral argument, the writ petition did not allege the County had admitted its violation but acquiesced in providing representation. Rather, RSA alleged the County "sent correspondence admitting its failure to provide representation."

Consequently, the RSA filed the writ petition, seeking various kinds of relief, including a finding that the County violated POBRA by denying the deputy sheriffs their right of representation under Government code section 3303, subdivision (i). The same allegations were made and relief sought in the amended petition filed August 13, 2004.

In opposing the writ, the County argued there was no POBRA violation because POBRA "does not apply to a strictly criminal investigation, but only to administrative investigations," citing Government Code section 3303, subdivision (i). It further argued that the case relied upon by RSA, California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 98 Cal.Rptr.2d 302, was entirely distinguishable because it concerned "an administrative investigation conducted under the guise of a criminal investigation." The County relied on another case, Alhambra Police Officers Assn. v. City of Alhambra Police Dept. (2003) 113 Cal.App.4th 1413, 7 Cal.Rptr.3d 432.

Ultimately, the superior court found the County's "denial of requests for representation constitutes a denial of a specific right guaranteed under Gov.Code 3303(i). The court further finds that [the County's] denial of the right to representation was not based on malice, but instead, was done in good-faith but was based on an erroneous Department policy." That ruling has not been appealed. The superior court granted an injunction prohibiting the County from violating POBRA.

RSA then filed a motion for attorney's fees in the amount of $73,947 pursuant to section 1021.5. The County opposed the motion, which the court granted subject to a motion to tax costs. RSA opposed the County's motion to tax costs. The court awarded actual fees and costs of $57,951.51 to RSA under Baggett v. Gates (1982) 32 Cal.3d 128, 185 Cal.Rptr. 232, 649 P.2d 874 (Baggett) and Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200, finding that this, case was "a matter of fairly significant concern to all present and future employees of the Sheriffs' Department. [¶] And if it results in a published opinion ... that will be a matter of significant public interest as Baggett turned out to be." The court commented further, "what we are talking about here is, in fact, a significant interest going to violations of the law. And while it may not be malicious, it's still a significant violation that will be important in the future" and "because it was done for the Sheriffs' Association, and their union consists of probably of 2000 people potentially benefited, which is a significant group of people. [¶] If the Court chooses to take this up because of an appeal and published opinion results, then it will become a matter of general public interest statewide, which is exactly how Baggett became significant statewide."

II ANALYSIS

A. RSA's Right to Recover Attorney's Fees

The County's primary argument is that Government Code section 3309.5, subdivision (e), provides the sole authority for obtaining attorney's fees in a POBRA action. The relevant language provides: "... upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney's fees as may be determined by the court."

Senate Bill No. 1516 (2002) amended Government Code section 3309.5 and added the text of subdivision (e), effective in 2003. The case of Lozada v. City and County of San Francisco (2006) 145 Cal. App.4th 1139, 52 Cal.Rptr.3d 209 comments "the legislative history indicates the amendment was a response to an unpublished case in which the court held that the public safety officer was not entitled to damages despite conduct which could be characterized as malicious by the public entity employer. (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1516 (2001-2002 Reg. Sess.) as amended Apr. 29, 2002, pp. 10-12; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1516 (2001-2002 Reg. Sess.) as amended Apr. 18, 2002, pp. 3-6.)" (Lozada v. City and County of San Francisco, supra, at p. 1161, 52 Cal. Rptr.3d 209.)

Although the County maintains that the Legislature considered section 1021.5 when it amended Government Code section 3309.5, the County does not identify any legislative history demonstrating an intent to make section 1021.5 the sole basis for attorney's fees. The County cites no specific statutory or legal authority to support its contention that a public safety officer can obtain attorney's fees only for a malicious violation of the POBRA but not under section 1021.5.

Instead, based on ordinary principles of statutory interpretation, the County reasons that, because Government Code section 3309.5, subdivision (e), is more specific and more recent than section 1021.5, the former replaced the latter. (Code Civ. Proc, § 1859; San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Ca.4th 571, 577, 7 Cal.Rptr.2d 245, 828 P.2d 147; Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 178-179, 32 Cal.Rptr.2d 574.) The County, however, does not acknowledge that this general rule applies "when two acts governing the same subject matter cannot be reconciled." (Id. at p. 178, 32 Cal.Rptr.2d 574.) But section 1021.5 and Government Code section 3309.5, subdivision (e) are not irreconcilable.

Based on our independent review, we do not regard the two statutes as mutually exclusive or Government Code section 3309.5, subdivision (e), as supplanting section 1021.5. (Mart v. Severson (2002) 95 Cal.App.4th 521, 530,115 Cal.Rptr.2d 717.) As set forth above, Government Code section 3309.5, subdivision (e), permits an award of attorney's fees where there has been a malicious violation of POBRA. Section 1021.5 permits an award of attorney's fees when a party has secured "an important right affecting the public interest." The two different statutes afford different grounds for an award of fees but neither necessarily excludes the other.

The County's interpretation of the statutes would limit attorney's fees awards only to cases in which there has been a finding of a malicious violation of POBRA. But, rather than circumscribing the right to attorney's fees, Government Code section 3309.5, subdivision (e), extends the right to attorney's fees to a party who otherwise might not qualify for fees under section 1021.5: "[T]he amendment to [Government Code] section 3309.5 was intended to expand, in a limited way, the remedies available to public safety officers suffering violations of their POBRA rights. Clearly, the Legislature intended to expressly authorize a civil penalty and actual damages, as well as attorney's fees for malicious violations of the statute." (Lozada v. City and County of San Francisco, supra, 145 Cal.App.4th at p. 1161, 52 Cal.Rptr.3d 209.) We find no support for the County's argument that the Legislature intended to limit attorney's fees awards in POBRA cases to malicious violations only.

Our conclusion is consistent with a line of cases, beginning with Baggett, supra, 32 Cal.3d 128, 185 Cal.Rptr. 232, 649 P.2d 874, which allow recovery of fees under section 1021.5 for POBRA actions. (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837,...