Hartnett v. San Diego County Office of Education CA4/1 ( 2013 )

Filed 10/29/13 Hartnett v. San Diego County Office of Education CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RODGER HARTNETT, D060738
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2008-00081583-
CU-WT-CTL)
SAN DIEGO COUNTY OFFICE OF
EDUCATION et al.,
Defendants and Respondents.
APPEAL from a postjudgment order of the Superior Court of San Diego County,
Steven R. Denton, Judge. Appeal dismissed.
Vrevich & Associates and Barry M. Vrevich, Adrianna Cordoba, for Plaintiff and
Appellant.
Higgs, Fletcher & Mack and Steven J. Cologne, John Morris, Victoria E. Fuller,
Sam Sherman, for Defendants and Respondents.
After plaintiff and appellant Rodger Hartnett successfully petitioned for a writ of
mandate seeking reinstatement of his employment with back pay against defendants and
respondents San Diego County Office of Education (Office) and Randolph E. Ward,
Ed.D., Hartnett moved for an award of attorney fees under Code of Civil Procedure
section 1033.5 and the federal Civil Rights Act, title 42 United States Code sections 1983
and 1988 (sections 1983 and 1988). The trial court denied Hartnett's motion. Hartnett
purports to appeal from that postjudgment order, contending the court abused its
discretion in denying section 1983 attorney fees because (1) as a permanent government
employee, he had liberty and property interests to continued employment; (2) the court
had jurisdiction to rule on his attorney fees motion; (3) he adequately pleaded a section
1983 claim and prevailed on the underlying writ; and (4) the requested attorney fees are
reasonable in amount and hourly rate.
As we explain, we lack jurisdiction to consider Hartnett's appeal because it is not
taken from a directly appealable postjudgment order. We therefore dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, Hartnett filed a complaint against Office, Ward and other
individuals alleging, among other things, he was wrongfully terminated from his
employment with Office as a senior claims coordinator. Hartnett amended his complaint
and also filed successive petitions for writ of mandate. In his first writ petition, Hartnett
challenged the procedural due process of the disciplinary procedures for his termination.
In the second, Hartnett argued (1) Office's personnel commission (the commission) acted
without jurisdiction in upholding his termination; (2) he did not receive a fair trial; and
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(3) the commission abused its discretion in that it failed to conduct an investigation, its
decision was not supported by the findings, and its findings were not supported by the
evidence.
The trial court denied Hartnett's first writ petition, but granted the second and
ordered Hartnett's reinstatement and an award of back pay from the date of his
termination. The court ruled the commission did not proceed in the manner required by
law because it failed to conduct an investigation required by Education Code section
45306.
Thereafter, Hartnett unsuccessfully moved for an award of $222,447 in attorney
fees under Code of Civil Procedure sections 1032, 1033.5, and 1021.5. The trial court
ruled in part that its order on Hartnett's writ did not validate Hartnett's whistleblower
claims; his success did not confer a benefit on a large class of persons; and the action was
motivated by Hartnett's own pecuniary interests, as he sought only back pay and
reinstatement.
In December 2010, the trial court set a hearing on the amount of back pay due
Hartnett. Following an evidentiary hearing, the court ruled Hartnett was entitled to back
pay, interest, as well as certain healthcare premium reimbursement, and in March 2011, it
entered a writ of mandate awarding Hartnett $234,703.55. A purported judgment on the
writ of mandate was filed on May 13, 2011, under a different case number.
In July 2011, Hartnett again moved for an award of attorney fees under Code of
Civil Procedure section 1033.5, this time on grounds they were recoverable under section
1988 because he was the prevailing party in an action involving his constitutional rights
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and civil liberties as protected by section 1983. Hartnett argued that even though he had
not captioned his writ petition as a section 1983 claim, the petition nevertheless stated a
cause of action because he "was a permanent civil service employee with the types of
interests that invoke constitutional requirements for pre-removal safeguards" and he was
denied due process when Office failed to exercise those safeguards before his
termination. He also argued Office violated his rights to due process when it reclassified
his position and downgraded his pay without notice.
The trial court denied the motion, ruling (1) Hartnett had not pleaded a section
1983 claim; (2) it lacked jurisdiction to reconsider its original prejudgment ruling
denying attorney fees; and (3) on the merits, the action involved the enforcement of rights
granted via state statutory law, not a violation of the federal Constitution. Hartnett
purports to appeal from that order.
DISCUSSION
We decide this matter on the threshold question of appellate jurisdiction, which we
are duty-bound to consider on our own motion. (Olson v. Cory (1983) 35 Cal.3d 390,
399.) Having done so, we conclude we must dismiss the appeal.
"The right to appeal is wholly statutory" (Dana Point Safe Harbor Collective v.
Superior Court (2010) 51 Cal.4th 1, 5) and in civil matters, appealable judgments and
orders are enumerated in Code of Civil Procedure section 904.1. (Ibid.) Code of Civil
Procedure section 904.1, subdivision (a)(2) permits an appeal "[f]rom an order made after
a judgment made appealable by [Code of Civil Procedure section 904.1, subdivision
(a)(1)]." This section requires that, to be appealable, the order must be made after a
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judgment that was itself appealable, that is, a final judgment. (See Olson v. Cory, supra,
35 Cal.3d at p. 399; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651,
fn. 3; People ex. rel. Dept. of Transportation v. Superior Court (Menigoz) (2012) 203
Cal.App.4th 1505, 1509-1510 [postjudgment order awarding litigation expenses entered
after nonappealable stipulated judgment is not an appealable order].)
Of course, numerous cases hold that a postjudgment order on a motion for attorney
fees is separately appealable. (E.g., Silver v. Pacific American Fish Co., Inc. (2010) 190
Cal.App.4th 688, 693; People v. Bhakta (2008) 162 Cal.App.4th 973, 981 [order on
motion for attorney fees following an amended judgment including a permanent
injunction]; Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 706 [order
on motion for attorney fees following summary judgment].) But the postjudgment orders
in these cases were plainly made after appealable final judgments or judgments otherwise
appealable under Code of Civil Procedure section 904.1, subdivision (a)(1). As we have
concluded in our companion opinion, the May 13, 2011 judgment is not such a judgment.
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DISPOSITION
The appeal is dismissed. The parties shall bear their own costs on appeal.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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