Hawkins v. City of Los Angeles ( 2019 )

Filed 9/9/19; Certified for Partial Publication 9/25/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TODD HAWKINS et al., B279719, B282416
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. Nos.
v. BC541066, BC543766)
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEALS from judgments and orders of the Superior Court
of Los Angeles County, Ernest M. Hiroshige, Judge. Affirmed.
Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant
City Attorney, and Paul L. Winnemore, Deputy City Attorney, for
Defendant and Appellant.
The Myers Law Group, David P. Myers and D. Smith for
Plaintiffs and Respondents.
——————————
The City of Los Angeles (the City) fired Todd Hawkins and
Hyung Kim1 from their jobs as hearing examiners at the
Department of Transportation (DOT). Claiming they were fired for
whistleblowing on the City’s practice of pressuring hearing
examiners to change decisions, Hawkins and Kim sued the City for
violations of the Bane Act and for whistleblower retaliation. After a
jury found for Hawkins and Kim on those causes of action, the trial
court assessed a penalty under the Private Attorney General Act
(PAGA) and awarded them attorney fees. The City appeals,
contending the judgments must be reversed for insufficient evidence
and instructional error. They also contend that the awards of civil
penalties and attorney fees must be reversed. We reject these
contentions and affirm the judgments and orders.
BACKGROUND
I. The lawsuit
Hawkins and Kim (collectively plaintiffs) separately sued the
City for whistleblower retaliation under Labor Code section
1102.5,2 violation of the Bane Act (Civ. Code, § 52.1), violation of
federal civil rights (42 U.S.C. § 1983); and violation of Government
Code section 815.6.3 Hawkins, but not Kim, also alleged a cause of
action under the Fair Employment and Housing Act (FEHA).
1 During the pendency of this appeal, Kim died. Lawrence A.
Dean, II substituted in as guardian ad litem for Kim.
2 Allfurther statutory references are to the Labor Code unless
otherwise indicated.
3 Government Code section 815.6 imposes liability on a public
entity for injury resulting from failure to discharge a mandatory
duty.
2
Plaintiffs, individually and “on behalf of the general public,” asked
for penalties under PAGA (§ 2698 et seq.). They also asked for
attorney fees. The cases were consolidated for a jury trial, at which
the following evidence was elicited.4
II. DOT’s parking adjudication division
The parking adjudication division of the DOT handles appeals
from individuals contesting parking fines, citations, and impounds.
After issuance of a notice of parking violation, a person may request
an initial review. (Veh. Code, § 40215, subd. (a).) If the person is
dissatisfied with the results of that review, he or she may request
an administrative hearing but must pay the parking penalty. (Id.,
subd. (b).) A hearing examiner presides over the hearing which
shall provide “an independent, objective, fair, and impartial review
of contested parking violations.” (Id., subd. (c)(3).) Hearings are
recorded, and the hearing examiner issues a written decision. If the
hearing examiner finds the individual not liable, then the City
issues a refund.
John Fick supervised the parking adjudication division until
he retired in 2012. Thereafter, Ricardo Sanchez, who managed the
Van Nuys parking adjudication office, and Kenneth Heinsius, who
managed the Civic Center parking adjudication office, rotated into
the supervisory position every four months. Walton-Joseph, who
had been a hearing officer, was promoted to acting office manager of
the West Los Angeles parking adjudication office in 2011.
Plaintiffs were part-time hearing examiners, used on an as-
needed basis. As such, they were at-will employees not entitled to
civil service protections, including progressive discipline. Plaintiffs
4 Hawkins also sued Carolyn Walton-Joseph, a DOT
employee, but she was dismissed before trial.
3
adjudicated parking citations and impounds. Hawkins began
working for the City in February 2000. Kim began working for the
City in 2006.
III. The June to August 2011 altercation between Hawkins and
Walton-Joseph
Walton-Joseph supervised Hawkins when he worked at the
West Los Angeles office after she took over as acting manager.
From the outset, they did not get along. In June 2011, Walton-
Joseph objected to language Hawkins used in a decision. When he
responded that nobody had objected to that language during his
11 years as a hearing examiner, she “stormed” into his office,
screaming and yelling that she did not care what other office
managers did. When Hawkins asked her to treat him
professionally and respectfully, she told him that his problem was
that he thought he was White.5 She warned him that she would be
promoted to office manager and when that happened “there will be
some changes around here and I’m going to start with you.”
Hawkins immediately reported the incident to Sanchez, who
told him to report it to Fick. Fick, however, merely advised
Hawkins to get along with Walton-Joseph, because she was going to
be promoted to office manager, which in fact happened later that
month.
Not long after this incident, Walton-Joseph called Hawkins
into a meeting on August 3, 2011 with Heinsius. She told Hawkins
that members of the public had complained about him. Believing
that Walton-Joseph had trumped up the charges to retaliate
against him, Hawkins complained again to Fick and, on August 9,
5 Walton-Joseph and Hawkins are Black.
4
filed a complaint with the Equal Employment Opportunity
Commission.
The next day, August 10, 2011, Walton-Joseph asked
Hawkins to review a notice to correct his inappropriate conduct at
hearings. This led to another angry confrontation between the two,
resulting in Hawkins being told to leave the office until the matter
was resolved. He was not scheduled to work again until
November 7, 2011. According to Oliver Quirante, who worked in
personnel and advised on human resource matters, Hawkins was
allowed to come back to work because they were shorthanded,
notwithstanding that the incident between Hawkins and Walton-
Joseph was unresolved.
As a result of Hawkins’s August 10, 2011 altercation with
Walton-Joseph, Robert Andalon, DOT’s assistant manager, asked
that Hawkins be disciplined. However, as we later discuss, no
action was taken on the request for discipline until years later.
IV. Complaints that hearing examiners were pressured to change
decisions
Around the time Walton-Joseph began managing the West
Los Angeles office, hearing examiners began to tell Sanchez that
Walton-Joseph and Heinsius were pressuring them to change
decisions, generally from not liable to liable, meaning that people
who had challenged their tickets were not getting refunds to which
hearing examiners had found they were entitled. Over the years,
approximately 14 hearing examiners, including Hawkins and Kim,
complained to Sanchez.
In July 2012, Hawkins started to leave anonymous messages
at the executive office that hearing examiners were being told to
change decisions. When nothing happened, he met with Sanchez
5
and Wayne Garcia, the division head for parking operation and
support, to voice his concerns, but nothing came of the meeting.
The next month, in a letter dated August 16, 2012, Kim
complained to Garcia about Walton-Joseph’s unprofessional
behavior. He also “raised other issues about . . . Walton[-
Joseph]. . . . I feel that one issue that must be mentioned is her
instances of having decisions changed. I myself have changed
decisions. However, this was based on valid grounds. I have heard
that some changes were not based on such concrete grounds. This
course of action would jeopardize the entire Administrative Hearing
process due to a lack of independence and undue coercion.”
Plaintiffs were not the only people to voice concerns. Hearing
examiner Surapong Kunkaew wrote a memorandum to Fick in
November 2011 about Walton-Joseph’s abrasive and aggressive
management style. Although he did not refer to being pressured to
change decisions in his memorandum, he admitted at trial that had
been a concern at the time.
On May 2, 2013, having received no response to his
complaints, Hawkins anonymously wrote to DOT’s General
Manager Jaime de la Vega about “ ‘the problem’ ” in the West Los
Angeles office. The problem was Walton-Joseph, who “scream[ed]
and yell[ed]” at hearing examiners to change their written decisions
from not liable to liable. Hawkins identified eight hearing
examiners who could corroborate his charges, including himself,
Kim, and Kunkaew. Hawkins also attached Kim’s August 16, 2012
letter to Garcia raising similar complaints. Although Hawkins did
not sign the letter, it was no secret he authored it: he told
colleagues he wrote it. Moreover, he sent a follow-up letter to
de la Vega on June 30, 2013 identifying himself as the author of the
6
May 2 complaint and referring de la Vega to two more hearing
examiners who could substantiate his claims about Walton-Joseph.
Not long after Hawkins sent that May 2, 2013 complaint,
Heinsius identified a hearing Kim had conducted in which Kim had
off the record discussions and found the hearing complainant not
liable because she was a member of the California State Bar in good
standing. Heinsius told Walton-Joseph about the hearing and that
they needed to monitor Kim’s hearings. Kim was then counseled
about his improper conduct during two hearings.
Meanwhile, Andalon asked Garcia to investigate complaints
that hearing examiners were being asked to change their decisions.
As part of that investigation, Garcia interviewed hearing
examiners. All said Heinsius or Walton-Joseph had asked them to
change decisions. They also complained about Walton-Joseph’s
management style, describing her as mean, a bully, and demeaning
to others. Garcia asked Walton-Joseph and Heinsius to respond to
the allegations. She denied them; he merely shook his head.
Garcia issued a written report in September 2013. Garcia
reported low morale and that Heinsius and Walton-Joseph did not
separate their administrative responsibilities from the quasi-
judicial function of hearing examiners. Garcia found the allegation
that Walton-Joseph and Heinsius forced hearing examiners to
change decisions substantiated. However, he also concluded that
they gave strong rationales for compelling different decisions and
found Walton-Joseph and Heinsius did not abuse their authority
under the Vehicle Code. Although his recommendations did not
include any discipline for Walton-Joseph and Heinsius, he did
recommend hiring a senior management analyst to oversee the
adjudication division, reminding managers not to engage in
rendering decisions on adjudicated parking citations, telling
7
hearing examiners to notify their division head if they felt forced to
change hearing decisions, and setting a new tone for working
relationships.
Garcia passed his report up the chain of command to Andalon
who, as assistant manager, was just below the general manager.
On October 8, 2013, Andalon found there was insufficient evidence
to support the allegations against Heinsius and Walton-Joseph.
However, he recommended reminding hearing examiners that their
decisions had to comply with the training manual and telling office
managers to verify that decisions complied with the law. The
matter was therefore considered closed.
Unsatisfied with this conclusion, Hawkins took his
complaints outside the DOT, to the City Ethics Commission and
members of the City Council.
V. The City fires plaintiffs
On October 1, 2013, just days before issuing his findings,
Andalon had Heinsius look into complaints about the “disruptive or
unprofessional conduct” of various employees. In response,
Heinsius identified Hawkins, Kim, and Kunkaew as subjects for
investigation.
The City fired Hawkins on November 19, 2013. At trial,
Quirante said that Hawkins was fired in November 2013 because of
the August 2011 request for discipline, which had remained an open
investigation. Because of staffing issues, human resources simply
never got around to it.
The City fired Kim on December 23, 2013, ostensibly because
of his conduct at two hearings in May and June 2013.
8
VI. The jury’s verdicts
The jury found for plaintiffs on their Bane Act and
whistleblower causes of action but against them on their federal
civil rights claims. The jury also found against Hawkins on his
FEHA cause of action. As to the Bane Act cause of action, the jury
found that the City engaged in conduct that interfered or attempted
to interfere by threats, intimidation, or coercion with plaintiffs’
right to complain about a supervisor engaging in conduct
inconsistent with the Vehicle Code. As to the section 1102.5 cause
of action for retaliation, the jury found that plaintiffs’ disclosure
that a supervisor pressured hearing examiners to change decisions
was a contributing factor to the City’s decision to fire plaintiffs. The
City, however, did not prove it would have fired plaintiffs for
legitimate, independent reasons even if they had not complained.
The jury awarded Hawkins $238,531 and Kim $188,631 in
damages, respectively.
The trial court assessed a $20,000 penalty under PAGA and
awarded plaintiffs $1,054,286.88 in attorney fees.
DISCUSSION
I. Sufficiency of the evidence of retaliation
The jury found for plaintiffs on their causes of action under
section 1102.5, subdivision (b), which is “California’s general
whistleblower statute.” (Carter v. Escondido Union High School
Dist. (2007) 148 Cal.App.4th 922, 933.) That section prohibits an
employer from retaliating against an employee for disclosing to a
government or law enforcement agency a violation of state or
federal statute. (§ 1102.5, subd. (b).) The section reflects a public
policy of encouraging workplace whistleblowers to report unlawful
9
acts without fear of retaliation. (McVeigh v. Recology San Francisco
(2013) 213 Cal.App.4th 443, 468.)
To establish a violation, a plaintiff must make a prima facie
case of retaliation. To do that, plaintiff must show he engaged in
protected activity, his employer subjected him to an adverse
employment action, and the existence of a causal link between the
two. If plaintiff meets his prima facie burden, defendant has the
burden to prove a legitimate, nonretaliatory explanation for its
actions. The plaintiff must then show that the explanation is a
pretext for the retaliation. (Hager v. County of Los Angeles (2014)
228 Cal.App.4th 1538, 1540.)
Where, as here, a party contends insufficient evidence
supports a jury verdict on retaliation, we apply the substantial
evidence standard of review. (Wilson v. County of Orange (2009)
169 Cal.App.4th 1185, 1188.) We view the evidence in the light
most favorable to the prevailing party, giving the evidence the
benefit of every reasonable inference and resolving all conflicts in
its favor. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959,
968.) “ ‘[N]either conflicts in the evidence nor “ ‘testimony which is
subject to justifiable suspicion . . . justif[ies] the reversal of a
judgment, for it is the exclusive province of the [jury] to determine
the credibility of a witness and the truth or falsity of the facts upon
which a determination depends.’ ” ’ ” (Ibid.) Thus, our power
begins and ends with a determination of whether there is any
substantial evidence, contradicted or uncontradicted, which will
support the verdict. (Reichardt v. Hoffman (1997) 52 Cal.App.4th
754, 766.)
A. Plaintiffs’ prima facie case
Plaintiffs established the three elements of their prima facie
case. First, disclosing an illegal activity is protected activity.
10
(§ 1102.5, subd. (b); Mize-Kurzman v. Marin Community College
Dist. (2012) 202 Cal.App.4th 832, 853–854.) Hawkins, in his May 2,
2013 complaint, and Kim, in his August 2012 complaint, disclosed
that Walton-Joseph pressured hearing examiners to change
decisions, in violation of the Vehicle Code. The City makes no
argument that such conduct complies with the Vehicle Code, and we
therefore treat this as a concession the conduct is illegal.
Instead, the City minimizes plaintiffs’ complaints as being
mere “personal grievances” about Walton-Joseph’s “management
style.” Certainly, Walton-Joseph’s management style concerned
plaintiffs and, by itself, might not be actionable. (See, e.g., Patten v.
Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,
1385 [complaining about internal personnel matters not protected
activity].) However, plaintiffs simultaneously complained about
violations of the Vehicle Code. Therefore, whether plaintiffs
devoted the bulk of their written complaints to Walton-Joseph’s
poor management style or to her pressuring hearing examiners to
change decisions is irrelevant. The point is plaintiffs disclosed the
violations. Indeed, the City admitted the alleged violations of the
Vehicle Code formed the essence of plaintiffs’ case. The City’s
counsel, when examining Walton-Joseph at trial, referred to the
“heart of why we’re here. There are a lot of complaints made by
various hearing examiners as to you forcing them to change their
decisions.”
Next, plaintiffs established the second element of their prima
facie case: the City subjected plaintiffs to an adverse employment
action by firing them.
We therefore proceed to the third element of plaintiffs’ prima
facie case, whether a causal link exists between plaintiffs’
whistleblowing and their termination. Circumstantial evidence
11
such as proximity in time between protected activity and alleged
retaliation may establish a causal link. (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 69, 105.) Here,
Kim raised his concerns in writing in August 2012. Hawkins raised
them in writing in May 2013. Hawkins’s complaint prompted a
formal investigation, which concluded in October 2013. Plaintiffs
were fired soon thereafter, Hawkins in November 2013 and Kim in
December 2013. The closeness in time from the complaints and
investigation to the City’s firing of plaintiffs establishes the
requisite causal link.
Even if we found that a long period elapsed between the
protected activity and the terminations, a causal connection
between them would still be established so long as the City engaged
in a pattern of conduct consistent with a retaliatory intent. (See
Wysinger v. Automobile Club of Southern California (2007)
157 Cal.App.4th 413, 421.) In 2013, after Kim complained about
being pressured to change decisions, he was counseled about how he
handled two hearings. Then, in August 2013, on a day when Kim
called in sick Heinsius made Kim get a doctor’s note, which was
unusual after just a one-day illness. Similarly, Hawkins had been
openly and anonymously complaining about violations of the
Vehicle Code since July 2012. Thereafter, he was counseled in
January 2013. The jury could have believed that the City’s pattern
of counseling Kim and Hawkins was part of a retaliatory conduct.
B. Legitimate, nonretaliatory reasons for the terminations
Plaintiffs having established their prima facie case, the
burden shifts to the City to establish legitimate, nonretaliatory
reasons for firing plaintiffs. We will assume that the City met that
burden. There was evidence plaintiffs had engaged in improper
conduct at times during hearings. Kim did not dispute at trial that
12
his conduct at two hearings warranted counseling. Hawkins also
had been counseled throughout his tenure at the City, the last time
in January 2013, and members of the public had complained about
his brusque and dismissive manner. We therefore proceed to the
final element of plaintiffs’ retaliation cause of action.
C. Pretext
In responding to an employer’s showing of a legitimate reason
for the complained-of action, a plaintiff cannot show merely that the
employer’s decision was wrong, mistaken, or unwise. (Morgan v.
Regents of University of California, supra, 88 Cal.App.4th at p. 75.)
Rather, the employee must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for a
nondiscriminatory reason. (Ibid.)
Here, there was evidence to support the jury’s finding that the
City’s proffered reasons for firing plaintiffs were pretextual. First,
there was evidence plaintiffs were not fired because of how they
conducted hearings or for behavioral problems. As to Hawkins, in
2011 and before, issues had been raised about his behavior at
hearings and at the office. Yet, despite being placed on a months-
long leave in summer 2011, Hawkins was allowed to return to work
in November 2011. Also, Hawkins was last counseled about his
conduct in January 2013. Yet, he was not fired until 10 months
later, in November 2013. Thus, notwithstanding the supposed
problems with Hawkins’s work, he was allowed to continue working
time and again. Only after Hawkins complained in writing, thereby
prompting an investigation which found against him, was he fired.
To this, add Sanchez’s testimony about that last January 2013
13
counseling session. Sanchez, who was Walton-Joseph and
Heinsius’s fellow office manager, testified about irregularities
surrounding that counseling session. Specifically, although
Heinsius supervised the office where the alleged misconduct
occurred, Sanchez, and not Heinsius, was instructed to counsel
Hawkins. At trial, Sanchez openly wondered why he was told to
conduct the counseling session. From this, the jury could have
reasonably inferred that the City was punishing Hawkins for his
prior complaints rather than any improper conduct at hearings.
Similarly, Kim had just two counseling sessions between May
and July 2013. Before that, he was meeting standards and was
rated “competent” in a 2012 performance evaluation. Thus, the jury
could have found that Kim’s miniscule record of discipline was not
why he was fired.
Second, there was overwhelming evidence that Walton-Joseph
and Heinsius pressured hearing examiners to change decisions,
thereby giving the City a motive to fire people who complained.
Lily Mazala testified that Heinsius and Walton-Joseph told her to
change decisions: “Liable. Liable. Liable. Everything had to be
liable.” Harunobu Nishii testified that Walton-Joseph interfered
with his decisions, asking him to consider evidence not presented at
hearings. Sheri Ross refused Heinsius’s request that she change a
decision, telling him if he wanted it changed, he could sign his own
name. Kunkaew also had been asked to change decisions. Even the
City’s own witness, Cynthia Duenas, agreed that Walton-Joseph
told her to change a decision, albeit from liable to not liable. Of the
hearing examiners who complained, three put their complaints in
writing: Hawkins, Kim, and Kunkaew. All three complained about
Walton-Joseph’s management style. But only plaintiffs raised the
additional issue of interference with the impartial hearing process.
14
This evidence shows that the City singled out plaintiffs from others
who complained. Indeed, Walton-Joseph made statements to
Hawkins that the jury could have found were direct threats of
retaliation. After their altercation in August 2011, she told
Hawkins that when she became office manager there would be
changes, starting with him. Although Hawkins wasn’t fired until
two years after this threat, a reasonable inference is that Walton-
Joseph made good on it after Hawkins complained about her
interference in the hearing process.
Third, the City points to evidence that a supposedly
disinterested party, Shelly Del Rosario, decided to fire plaintiffs.
Del Rosario became the senior personnel analyst in August 2013.
She inherited a backlog of discipline matters going back to 2009,
including the August 2011 case pertaining to Hawkins. Based on
her review of plaintiffs’ files, she recommended firing them. The
jury could have found this explanation for firing plaintiffs
implausible. Quirante, the City’s designated person most
knowledgeable about the terminations, testified at trial that
Hawkins was fired in 2013 based on the 2011 request for discipline.
Yet, Quirante did not mention the 2011 request for discipline as the
basis for Hawkins’s 2013 termination at his deposition. The jury
was entitled to reject the City’s explanation that it fired Hawkins in
2013 for something he did in 2011. (See Stevens v. Parke, Davis &
Co. (1973) 9 Cal.3d 51, 67–68 [jury may weave cloth of truth from
evidence].)
Finally, we cannot discount that the jury may have resolved
credibility determinations against the City. Walton-Joseph, for
example, denied asking hearing examiners to change decisions and
denied that she yelled or otherwise behaved inappropriately.
However, Sanchez testified that numerous hearing examiners
15
complained about Walton-Joseph. Sanchez also personally saw
Walton-Joseph “lose it” after he admonished her about her comment
that Hawkins was not Black enough. Moreover, hearing examiners
uniformly testified about Walton-Joseph’s unprofessional behavior.
Thus, the jury could have weighed Walton-Joseph’s denials about
her misconduct against the testimony of numerous hearing
examiners and her fellow office manager to conclude that the City’s
proffered reasons for firing plaintiffs were implausible.
II. PAGA penalty
The trial court assessed $20,000 in penalties under PAGA
against the City, with $5,000 payable to plaintiffs and $15,000
payable to the Labor and Workforce Development Agency (LWDA).
The City contends that the penalty award must be reversed because
plaintiffs did not comply with prefiling notice requirements.6 We
disagree.
The Legislature enacted PAGA to further the public interest
of allowing aggrieved employees acting as private attorneys general
to recover civil penalties for Labor Code violations, with the
understanding that labor law enforcement agencies retain primacy
over private enforcement efforts. (Lopez v. Friant & Associates,
LLC (2017) 15 Cal.App.5th 773, 777–778.) Under PAGA, an
aggrieved employee may file a representative action on behalf of
himself or herself and other current and former employees to
recover civil penalties. (Id. at p. 777.) PAGA claims function “as a
substitute for an action brought by the government itself.” (Arias v.
6 Although plaintiffs take a more expansive view of the City’s
argument in their respondents’ brief, we view it as limited to the
adequacy of plaintiffs’ notice they were pursuing a representative
action.
16
Superior Court (2009) 46 Cal.4th 969, 986.) Before a plaintiff may
pursue a PAGA claim, he or she must comply with section 2699.3.
That section requires an aggrieved employee, before filing a civil
action, to give written notice to the LWDA and to his or her
employer of the “specific provisions of this code alleged to have been
violated, including the facts and theories to support the alleged
violation.” (§ 2699.3, subd. (a)(1)(A); Williams v. Superior Court
(2017) 3 Cal.5th 531, 545.)
The City complains that plaintiffs did not comply with
prefiling notice requirements, citing Kahn v. Dunn-Edwards Corp.
(2018) 19 Cal.App.5th 804 (Kahn). The terse prefiling notice in
Kahn referred to “ ‘my claims’ ” regarding improper wage
statements, and to a failure to pay “ ‘all of my earned wages,’ ” all
without reference to any other current or former employee. (Id. at
p. 807.) Because plaintiff Kahn’s notice “applied only to him, it
failed to give the [LWDA] an adequate opportunity to decide
whether to allocate resources to investigate Kahn’s representative
action.” (Id. at p. 809.) Because the notice suggested only an
individual violation, it also failed to give the employer notice that it
was a representative claim. (Ibid.)
We express no opinion as to the correctness of Kahn’s holding.
Whether correct or not, we do not interpret Kahn so literally as to
hold that a plaintiff whose prefiling notice uses the incorrect
pronoun—I instead of we and my instead of our—fails to comply
with the Labor Code’s administrative procedures. Rather, we must
determine whether the prefiling notice, as a totality, gave the
requisite notice.
Plaintiffs’ prefiling notices are materially different than the
notice in Kahn. Their notices referred to complaints that Walton-
Joseph had hearing officers change written decisions from not liable
17
to liable. Hawkins referred to Walton-Joseph’s actions “in coercing
employees, including Claimant to change their decisions.” (Italics
added.) Similarly, Kim referred to another hearing examiner who
had complained to government officials about the conduct. Thus,
the notices here expressly referred to conduct not limited to the
individual complainants. They complained about conduct that
impacted them and fellow hearing examiners, as well as the public.
We therefore conclude that plaintiffs complied with section 2699.3.
III. Attorney fees
The trial court found that plaintiffs were entitled to their
attorney fees under the Bane Act, PAGA, and Code of Civil
Procedure section 1021.5. The City contends that plaintiffs were
not entitled to attorney fees under those statutes. We have already
rejected the City’s claim that plaintiffs did not properly bring a
PAGA claim. Therefore, attorney fees were appropriate under that
law. (Lab. Code, § 2699, subd. (g)(1).) And, as we next discuss, fees
were also appropriately awarded under Code of Civil Procedure
section 1021.5.
Code of Civil Procedure section 1021.5 codifies the private
attorney general doctrine adopted in Serrano v. Priest (1977)
20 Cal.3d 25. The section provides that a court may award attorney
fees to a successful party in any action which has resulted in the
enforcement of an important right affecting the public interest if:
(1) a significant benefit, pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (2) the
necessity and financial burden of private enforcement, or of
enforcement by one public entity against another public entity, are
such as to make the award appropriate, and (3) such fees should not
in the interest of justice be paid out of any recovery. (Code Civ.
Proc., § 1021.5.) Whether a party claiming attorney fees has met
18
his or her burden of proving these prerequisites rests within the
trial court’s sound discretion, which shall not be disturbed on
appeal absent a clear abuse. (Ryan v. California Interscholastic
Federation (2001) 94 Cal.App.4th 1033, 1044.) Enforcement
through litigation of a constitutional or statutory policy does not
necessarily confer a significant public benefit. (Woodland Hills
Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939.)
Rather, the “significance of the benefit conferred is determined from
a realistic assessment of all the relevant surrounding
circumstances.” (Ryan, at p. 1044.)
Here, the City argues that a significant benefit was not
conferred on the public because all the action did was remedy
retaliation for whistleblowing. However, the City ignores the trial
court’s finding that the action also conferred a significant public
benefit because the public is entitled to fair hearings with respect to
parking citations.7 The Vehicle Code entitles the public to “an
independent, objective, fair, and impartial review of contested
parking violations.” (Veh. Code, § 40215, subd. (c)(3).) Plaintiffs’
action revealed that, for years, the City had been pressuring,
sometimes successfully, hearing examiners to change decisions,
usually to find that refunds were not warranted. In short, the
public had been deprived of independent and impartial hearings.
Instead, the City undermined the process provided by the Vehicle
Code to generate revenue. It is “difficult to imagine a more
fundamental public right than that the tribunal deciding a litigant’s
fate, even a tribunal convened at the first level of review to
7 The City also suggests that no benefit was conferred on the
public because the internal investigation Garcia conducted found no
instances of misconduct. In other words, the City did not engage in
misconduct because the City said so.
19
determine whether a litigant is liable for a parking violation, be a
tribunal properly convened under the law and authorized by law to
make the decision.” (Weiss v. City of Los Angeles (2016) 2
Cal.App.5th 194, 220; see Goldberg v. Kelly (1970) 397 U.S. 254.)
IV. Contentions regarding the Bane Act
The City has raised several contentions regarding the Bane
Act, including that there was insufficient evidence to support the
verdict on that cause of action and that instructional error requires
its reversal. Given that we have upheld the verdict on the
section 1102.5 cause of action for retaliation, we need not reach the
Bane Act issues. That is, the damages plaintiffs sought and were
awarded on the Bane Act cause of action were the same as on the
retaliation cause of action. Therefore, even if we reversed the
verdict on the Bane Act, there would be no impact on the damage
awards because we are not reversing the section 1102.5 verdict. In
addition, we have explained why the attorney fees award does not
depend on the viability of the Bane Act cause of action. No
miscarriage of justice thus could accrue to the City from any error
regarding the Bane Act. (See Cal. Const., art. VI, § 13.)
DISPOSITION
The judgments and orders are affirmed. Todd Hawkins and
Hyung Kim are awarded their costs on appeal.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J. EGERTON, J.
20
Filed 9/25/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TODD HAWKINS et al., B279719, B282416
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. Nos. BC541066,
BC543766)
v.
CERTIFICATION AND
CITY OF LOS ANGELES, ORDER FOR PARTIAL
PUBLICATION
Defendant and Appellant.
The opinion in the above-entitled matter filed September 9,
2019, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be partially
published in the Official Reports and it is so ordered.
DHANIDINA, J. LAVIN, Acting P. J. EGERTON, J.
* Pursuant to California Rules of Court, rules 8.1105 and
8.1110, this opinion is certified for publication with the exception of
parts II and IV of the Discussion.