City of Commerce v. Argumedo ( 2018 )

Filed 10/17/18
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE ex rel. CITY OF B280814
COMMERCE,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC600767)
v.
HUGO ALEXANDER ARGUMEDO,
Defendant and Respondent.
THE PEOPLE ex rel. CITY OF B285003
COMMERCE,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC600767)
v.
HUGO ALEXANDER ARGUMEDO,
Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of the section entitled Appeal No. B285003.
APPEALS from a judgment and an order of the Superior
Court of Los Angeles County, Michael Johnson, Judge. Affirmed.
Xavier Becerra, Attorney General, Susan Duncan Lee,
Assistant Attorney General, Marc J. Nolan and Anya M.
Binsacca, Deputy Attorneys General, for Plaintiff and Appellant.
Vanderford & Ruiz and Rodolfo F. Ruiz for Plaintiff and
Respondent.
Kenney & Kropff, David E. Kenney and James B. Kropff for
Defendant, Respondent and Appellant.
__________________________________
Plaintiff City of Commerce (the City) appeals from a
judgment entered after the trial court rejected its attempt to oust
defendant Hugo Argumedo from his seat on the City Council in
this quo warranto action. The City claimed Argumedo’s 2010
guilty plea for misdemeanor obstruction of justice constitutes a
conviction for “malfeasance in office” within the meaning of
article VII, section 8, subdivision (b) of the California
Constitution that forever disqualifies him from public office
under Government Code section 1021. Finding no error, we
affirm the trial court’s judgment rejecting the City’s claim.
In a consolidated appeal, Argumedo challenges the trial
court’s post-judgment order denying his motion for an award of
1
attorney fees under Code of Civil Procedure section 1021.5.
Again, finding no error, we affirm.
1
“Upon motion, a court may award attorneys’ fees to a
successful party against one or more opposing parties in any
action which has resulted in the enforcement of an important
right affecting the public interest” if certain other enumerated
conditions are met. (Code Civ. Proc., § 1021.5.)
2
BACKGROUND
Argumedo was elected as a City council member in 1996 to
fill an unexpired term. He was reelected in 1997, 1999, 2003 and
2007.
The City Accuses Argumedo of Committing Perjury
In May 2008, the City’s Mayor asked the Los Angeles
County District Attorney’s Office to investigate Argumedo for
several alleged crimes, including perjury. A synopsis of the
alleged perjury is as follows:
In 2005, while Argumedo was sitting on the City Council,
the former City Attorney, Francisco Leal, sued the City for
unpaid legal fees. The City cross-complained against Leal for
breach of contract and other causes of action. During a
September 21, 2006 mandatory settlement conference, at which
the City was represented by then-current City Attorney, Eduardo
Olivo, the parties reached a settlement agreement. Leal agreed
to pay the City $20,000 on the cross-complaint, and the parties
agreed to dismiss the entire action. Olivo and the City’s Mayor,
Nancy Ramos, who was present at the settlement conference,
represented to the settlement judge that they would present the
settlement to the City Council and recommend approval.
At a September 22, 2006 closed-session meeting of the City
Council, which Argumedo attended, Olivo and Ramos presented
the settlement as an offer or proposal, not an agreement subject
only to City Council approval. The City Council rejected the so-
called offer or proposal and, on Argumedo’s motion, voted to make
a counter-offer. After further negotiations between Leal and
Olivo, Leal agreed to pay the City $70,000 to settle the case. The
settlement was memorialized in a November 2, 2006 written
agreement.
3
Leal made no payments under the agreement. In March
2007, the City sued Leal for breach of the settlement agreement.
Leal contended the City Council failed to properly consider the
settlement reached at the September 21, 2006 mandatory
settlement conference. The City moved for summary
adjudication of this and other issues. In opposition to the
summary adjudication motion, Leal presented a declaration from
Argumedo stating, in pertinent part:
“8. It is my understanding [that] Mr. Leal refused to pay
on the $70,000 on the basis that in the final settlement
discussions before the judge, Mayor Nancy Ramos and Mr. Olivo
agreed to present and support a settlement amount of $20,000 to
be paid by Mr. Leal to the City of Commerce.
“9. In fact, Mayor Ramos never presented this settlement
for consideration by the Council. Nor did she, nor Mr. Olivo,
inform the Council that the $20,000 proposed settlement amount
was recommended by the Judge and that they had agreed to
present it and support it before the Council.
“10. Had the $20,000 negotiated settlement amount been
presented for consideration by the Council, I would have voted in
favor of this settlement amount.”
The City’s position is that Argumedo’s declaration is false
to the extent it indicates (1) Ramos failed to present the
settlement offer and (2) the City Council never considered the
settlement offer.
4
At a closed-session City Council meeting in December 2007,
the City’s attorneys asked Argumedo to withdraw his declaration,
2
but he declined.
On January 31, 2008, the superior court tentatively denied
the City’s motion for summary adjudication, finding a triable
issue of fact regarding enforcement of the November 2, 2006
settlement agreement, citing Argumedo’s declaration. On March
3, 2008, the case settled, and Leal agreed to pay the City
$175,000.
The District Attorney Files a Felony Complaint for
Perjury Against Argumedo
In December 2010, after conducting its own investigation,
the district attorney’s office filed a felony complaint, charging
Argumedo with one count of perjury by declaration, a violation of
Penal Code section 118, subdivision (a). The count alleged
Argumedo “unlawfully, under penalty of perjury, declare[d] as
true, that which was known to be false, to wit: False declaration
signed and submitted to the Los Angeles Superior Court in civil
case BC367248 that a $20,000 settlement offer in civil case
BC339482 had never been presented for consideration to the
Commerce City Council.” The district attorney’s office attached
to and incorporated into the complaint its investigation reports
and supporting documents.
2
A City councilwoman, who submitted a similar
declaration in support of Leal’s opposition to the City’s motion for
summary adjudication, agreed to sign a retraction.
5
Argumedo Pleads Guilty to Misdemeanor Obstruction of
Justice
At a hearing in Argumedo’s criminal case on December 20,
2010, the prosecution made an oral motion to amend the
complaint to add a misdemeanor count for obstruction of justice,
a violation of Penal Code section 148, subdivision (a)(1). No
factual allegations were added to the complaint. The same day,
Argumedo waived his constitutional rights and pleaded guilty to
misdemeanor obstruction of justice. The criminal court’s
December 20, 2010 minute order, as well as the court’s findings
and order attached to the misdemeanor advisement of rights,
waiver, and plea form, state the court found a factual basis for
the plea. The facts supporting the plea were not stated on the
record.
The criminal court suspended imposition of sentence and
placed Argumedo on probation for a period of three years. The
terms of the plea agreement required, among other things, that
Argumedo resign immediately from the City Council and that he
not run for or hold any public office for three years. In
accordance with the plea agreement, the court dismissed the
perjury count.
On December 21, 2010, the day after he pleaded guilty,
Argumedo resigned from the City Council. After completing
probation, he ran again and was reelected to the City Council in
March 2015.
The City’s Quo Warranto Action to Oust Argumedo
The City sought permission from the California Attorney
General to sue Argumedo in quo warranto, pursuant to Code of
6
3
Civil Procedure section 803, “to oust him from the public office of
city council member on the ground that his previous conviction
for obstruction of justice constitutes ‘malfeasance in office,’ and
therefore precludes him from serving as a city council member.”
(98 Ops.Cal.Atty.Gen. 85 (2015) [filed opn. p. 1].) On October 27,
2015, the Attorney General issued an opinion, granting the City
leave to sue Argumedo. (Ibid.)
On November 12, 2015, the City filed a verified complaint
in quo warranto, asserting a cause of action for declaratory relief
and seeking a “judgment determining that Hugo Argumedo is
unlawfully holding the office of City Councilmember for the City
of Commerce and that he be excluded from such office” and that
he “is permanently disqualified from holding the position of City
Councilmember in the City of Commerce.” The City also sought
an award of attorney fees under Code of Civil Procedure section
1021.5.
In the complaint, the City cited article VII, section 8,
subdivision (b) of the California Constitution, which provides in
pertinent part, “Laws shall be made to exclude persons convicted
of bribery, perjury, forgery, malfeasance in office, or other high
crimes from office or serving on juries.” The City also cited
Government Code section 1021, which states, “A person is
disqualified from holding any office upon conviction of designated
crimes as specified in the Constitution and laws of the State.”
3
Code of Civil Procedure section 803 provides, in pertinent
part: “An action may be brought by the attorney-general, in the
name of the people of this state, upon his own information, or
upon a complaint of a private party, against any person who
usurps, intrudes into, or unlawfully holds or exercises any public
office . . . .”
7
After a bench trial, during which the trial court admitted
into evidence 60 exhibits and heard testimony from seven
witnesses regarding the circumstances of Argumedo’s declaration
and guilty plea, the court issued a 19-page statement of decision
in Argumedo’s favor. The court agreed with the City’s argument
that a person convicted of “a specified crime,” including
malfeasance in office, “is disqualified from holding any office at
any time,” but found the City failed to establish Argumedo’s
misdemeanor conviction for obstruction of justice constitutes a
disqualifying conviction.
On January 27, 2017, Argumedo filed a motion, seeking
$193,547.50 in attorney fees under Code of Civil Procedure
section 1021.5, “plus an enhancement or multiplier because the
action resulted in the enforcement of important rights affecting
the public interest.” The City filed an opposition.
On August 1, 2010, after hearing oral argument, the trial
court denied Argumedo’s motion for attorney fees, finding
“Argumedo has not shown that his defense of the City’s action
has resulted in the enforcement of an important right affecting
the public interest, or a significant benefit to the general public
or a large class of persons. . . . [¶] . . . [¶] Argumedo obtained a
personal benefit from his successful defense of the City’s action.
While that may have benefitted the voters who elected Argumedo
to office, any benefit to the electorate was tangential and
subordinate to his personal stake in the litigation.”
The City appealed from the judgment, and Argumedo
appealed from the post-judgment order denying his motion for
attorney fees.
8
DISCUSSION
Appeal No. B280814
The City contends it established at the bench trial in this
quo warranto action that Argumedo’s misdemeanor conviction for
obstruction of justice disqualifies him from holding public office,
and the trial court erred in finding otherwise.
As the parties agree, this appeal presents mixed questions
of law and fact. “Mixed questions of law and fact concern the
application of the rule to the facts and the consequent
determination whether the rule is satisfied. If the pertinent
inquiry requires application of experience with human affairs,
the question is predominantly factual and its determination is
reviewed under the substantial-evidence test. If, by contrast, the
inquiry requires a critical consideration, in a factual context, of
legal principles and their underlying values, the question is
predominantly legal and its determination is reviewed
independently.” (Crocker National Bank v. City and County of
San Francisco (1989) 49 Cal. 3d 881, 888.) Applying either the
substantial evidence or de novo standard of review, we affirm the
judgment for the reasons explained below.
The “right to hold public office, either by election or
appointment, is one of the valuable rights of citizenship. . . . The
exercise of this right should not be declared prohibited or
curtailed except by plain provisions of law. Ambiguities are to be
resolved in favor of eligibility to office.” (Carter v. Commission on
Qualifications of Judicial Appointments (1939) 14 Cal. 2d 179,
182.)
As set forth above, article VII, section 8, subdivision (b) of
the California Constitution provides, in pertinent part, “Laws
shall be made to exclude persons convicted of bribery, perjury,
9
forgery, malfeasance in office, or other high crimes from office or
serving on juries.” Government Code section 1021 states, “A
person is disqualified from holding any office upon conviction of
designated crimes as specified in the Constitution and laws of the
State.” Thus, a conviction for bribery, perjury, forgery,
malfeasance in office, or other high crimes disqualifies a person
from holding public office in California.
“Malfeasance in office” is not defined in the California
Constitution or statutes. In defining “malfeasance,” the City
quotes Black’s Law Dictionary: “A wrongful, unlawful, or
dishonest act; esp., wrongdoing or misconduct by a public
official.” (Black’s Law Dict. (10th ed. 2014) p. 1100, col. 2.) Case
law indicates the crime of malfeasance in office evidences moral
corruption and dishonesty. (See Otsuka v. Hite (1966) 64 Cal. 2d
596, 608.)
Argumedo pleaded guilty to misdemeanor obstruction of
4
justice in violation of Penal Code section 148, subdivision (a)(1),
a crime not specifically enumerated as one disqualifying a person
from holding public office. Because article VII, section 8,
subdivision (b) of the California Constitution and Government
4
Penal Code section 148, subdivision (a)(1) provides:
“Every person who willfully resists, delays, or obstructs any
public officer, peace officer, or an emergency medical technician,
as defined in Division 2.5 (commencing with Section 1797) of the
Health and Safety Code, in the discharge or attempt to discharge
any duty of his or her office or employment, when no other
punishment is prescribed, shall be punished by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in a
county jail not to exceed one year, or by both that fine and
imprisonment.”
10
Code section 1021 authorize disqualification from office only upon
conviction of the specified offenses, the question here is whether
the 2010 record of Argumedo’s conviction for obstruction of justice
unambiguously establishes malfeasance in office, not whether the
City, five and a half years later in a civil trial, established facts
showing Argumedo committed malfeasance in office through
documents and witness testimony not admitted in the criminal
proceedings.
We conclude the record of Argumedo’s conviction does not
unambiguously show his guilty plea to obstruction of justice
constitutes a conviction for malfeasance in office as set forth in
article VII, section 8, subdivision (b) of the California
Constitution. As set forth above, case law indicates the crime of
malfeasance in office evidences moral corruption and dishonesty
as do convictions for bribery, perjury and forgery (the other
crimes specifically enumerated in article VII, section 8,
subdivision (b) of the California Constitution). (See Otsuka v.
Hite, supra, 64 Cal.2d at p. 608.) A conviction for obstruction of
justice does not necessarily imply moral corruption and
dishonesty. Further, a conviction for obstruction of justice does
not imply conduct that occurred “in office,” a necessary element of
malfeasance in office. The trial court did not state for the record
the particular factual basis it found for the plea, and Argumedo
did not admit any specific facts.
For the foregoing reasons, we conclude the trial court did
not err in finding in favor of Argumedo in the City’s quo warranto
action. Resolving ambiguities in favor of Argumedo’s eligibility to
hold the office to which he was duly elected, as we are required to
do, we conclude the record of Argumedo’s misdemeanor conviction
for obstruction of justice does not establish a conviction for
11
malfeasance in office under article VII, section 8, subdivision (b)
of the California Constitution. Our conclusion is limited to the
particular facts of this case.
Appeal No. B285003
Argumedo contends the trial court erred in denying his
motion for an award of attorney fees under Code of Civil
5
Procedure section 1021.5.
Section 1021.5 provides, in pertinent part: “Upon motion, a
court may award attorneys’ fees to a successful party against one
or more opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest if:
(a) a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons,
(b) 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 (c) such fees
should not in the interest of justice be paid out of the recovery, if
any.” “The burden is on the claimant to establish each
prerequisite to an award of attorney fees under section 1021.5.”
(Ebbetts Pass Forest Watch v. Department of Forestry & Fire
Protection (2010) 187 Cal. App. 4th 376, 381.)
“The trial court’s judgment on whether a plaintiff has
proved each of the prerequisites for an award of attorney fees
under section 1021.5 ‘will not be disturbed unless the appellate
court is convinced that it is clearly wrong and constitutes an
abuse of discretion.’ ” (Summit Media LLC v. City of Los Angeles
(2015) 240 Cal. App. 4th 171, 187.)
5
Further statutory references are to the Code of Civil
Procedure.
12
The trial court did not abuse its discretion in finding
Argumedo’s defense of this quo warranto action did not confer a
significant benefit on the general public or a large class of
persons. To recover attorney fees under section 1021.5, the
“ ‘claimant’s objective in the litigation must go beyond—
“transcend”—those things that concretely, specifically and
significantly affect the litigant . . . , to affect the broader world or
“general public” as the statute puts it.’ ” (Bradley v. Perrodin
(2003) 106 Cal. App. 4th 1153, 1165 [in reversing the trial court’s
decision removing a winning mayoral candidate from office and
replacing him with the losing candidate, appellate court denied
an award of attorney fees to the successful party, explaining,
“Attorney fees connected to a candidate’s ‘quest for elective office,’
on the other hand, do not transcend the candidate’s ‘palpable
personal stake in the . . . election’ ”].) Argumedo defended
against the City’s attempt to oust him from the City Council. The
primary purpose of his defense was not to vindicate the rights of
the voters who elected him or the rights of other elected officials.
6
His personal stake in the matter was paramount in his defense.
6
Argumedo maintains he has satisfied this first element of
section 1021.5 because this is a quo warranto action in which the
Attorney General granted the City leave to sue, stating in the
Attorney General Opinion, “allowing the action to proceed would
serve the public interest.” (98 Ops.Cal.Atty.Gen. 85, supra, [filed
opn. p. 1].) We look to the result of the action, not the anticipated
result, in determining whether a significant benefit has been
conferred on the general public or a large class of persons. The
trial court did not abuse its discretion in finding no such benefit
was conferred, for the reasons stated above.
13
Further, the trial court did not abuse its discretion in
finding against Argumedo on the “necessity and financial burden
of private enforcement” element. (§ 1021.5.) An attorney fees
award under section 1021.5 “ ‘is appropriate when the cost of the
claimant’s legal victory transcends his personal interest, that is
when the necessity for pursuing the lawsuit placed a burden on
the [party] “out of proportion to his individual stake in the
matter.” ’ ” (Woodland Hills Residents Assn. v. City Council
(1979) 23 Cal. 3d 917, 941.) Argumedo defended his own,
personal entitlement to remain on the City Council. The attorney
fees he incurred were not out of proportion to his individual stake
in the matter. As stated above, his personal stake was
paramount. Accordingly, the trial court did not abuse its
discretion in declining to shift the financial burden of his defense.
DISPOSITION
The judgment and post-judgment order denying an award
of attorney fees are affirmed. Each side is to bear its own costs
on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J. CURREY, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14