Rivera v. Co. of Riverside CA4/2

Filed 8/1/14 Rivera v. Co. of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHIRLEY RIVERA,
Plaintiff and Respondent, E055956
v. (Super.Ct.No. RIC494960)
COUNTY OF RIVERSIDE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John Vineyard, Judge.
Reversed.
The Zappia Law Firm, Edward P. Zappia, Anna Zappia, and Brett M. Ehman for
Defendant and Appellant.
Law Office of Andrew I. Roth and Andrew I. Roth for Plaintiff and Respondent.
I. INTRODUCTION
Plaintiff Shirley Rivera worked for defendant County of Riverside (County).
After the County terminated her employment, she filed a petition for writ of mandate
1
under Code of Civil Procedure section 1085 alleging that her right to due process had
been violated because she had not been given notice of the termination and her right to
appeal the decision. The trial court agreed and issued a writ compelling the County to
provide her with an administrative hearing regarding the termination. We affirmed that
decision in Rivera v. County of Riverside (Aug. 3, 2011, E049282) [nonpub. opn.]
(Rivera I).1
Following remand, Rivera moved to recover her attorney fees under Code of Civil
Procedure section 1021.5 (CCP 1021.5) and title 42 United States Code section 1988.2
The trial court granted the motion on both grounds.
We reverse. Rivera is not entitled to recover attorney fees under CCP 1021.5
because there is nothing in the record to support the conclusion that her action conferred
a significant benefit on the general public or a large group of people. Nor is she entitled
to recover fees under section 1988. Section 1988 provides for the recovery of attorney
fees by a prevailing party for actions to enforce rights under section 1983, among other
federal civil rights statutes. A municipality, such as the County, can be liable under
section 1983 only when the constitutional tort results from a policy or custom of the
municipality. Because there is no evidence in the record that Rivera’s injury was the
result of any such policy or custom, the County could not be liable to Rivera for the
1 After giving notice to the parties of our intent to do so, we have taken judicial
notice of the record on appeal in Rivera I. (Evid. Code, §§ 452, subd. (d), 459.)
2 All further statutory references are to title 42 United States Code unless
otherwise indicated.
2
deprivation of her right to due process. Therefore, she is not entitled to recover attorney
fees under section 1988.
II. FACTUAL AND PROCEDURAL SUMMARY
A. Background3
In August 2005, Rivera was employed by the County as a senior animal control
officer. She was a member of the Laborers’ International Union of North America,
which has a memorandum of understanding (MOU) with the County. The MOU
provides for certain procedures concerning disciplinary action toward union member
employees. Prior to taking a disciplinary action, the County must serve two notices on
the employee: First, a notice of intent to take disciplinary action (e.g., a notice of
proposed termination), which provides the employee with an opportunity to respond to
that notice; and second, a notice that the action shall be taken (e.g., notice of termination).
The employee can appeal the decision within 10 working days after service of the final
notice of disciplinary action. If an employee fails to timely appeal, the right to review is
waived.
The MOU provides that notices of disciplinary action “shall be in writing and shall
be deemed served when personally delivered to the person to whom it is directed or when
deposited in the United States mail, registered or certified postage prepaid and addressed
to the designated recipient at the last known address.” Under the MOU, an appeal of the
County’s decision to discharge an employee is heard and decided by an arbitrator. The
3 The background facts are an abridgement of the statement of facts in Rivera I.
3
arbitrator has the power to rescind the discharge and order reinstatement of the employee
with back pay and benefits.
In August 2005, the County sent Rivera a notice of proposed termination. The
decision was based in part on allegations that Rivera had been drinking alcohol while on
duty and was intoxicated when she was driving other employees in a County van during
their return from an out-of-town conference. The notice was sent to Rivera at an address
on Tamara Drive in Moreno Valley. On August 22, 2005, the County served the second
notice—a notice of termination.
Following an arbitration hearing, the arbitrator ordered that Rivera “be reinstated
and that she be made whole.” The County did not seek judicial review or otherwise
challenge the arbitrator’s award. Nor did it reinstate Rivera to her position.
Two months after the arbitrator’s decision, the County mailed a new notice of
proposed termination. This notice was based upon allegations that Rivera had committed
perjury during the arbitration. The notice concluded by stating that Rivera had the right
to respond to the letter by August 2, 2007.
The notice of proposed termination was sent to Rivera at the Tamara Drive
address. According to Prescott, this is the address they had for Rivera “on file” with the
County. The notice was sent by certified mail, return receipt requested.
Rivera never received the notice. A return receipt for the notice was signed by
someone, but not by Rivera. Although a copy of the notice was not sent to Rivera’s
attorney, Diane Roth, Roth did obtain a copy of the notice.
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On August 2, 2007, Roth responded to the notice. Roth began by stating, “[t]his
office represents Shirley Rivera.” Roth goes on to state that Rivera denies the facts
asserted in the notice, and concluded: “Please be on notice that if the County now
attempts to terminate [Rivera], we will file an action in court for violation of Ms.
Rivera’s constitutional rights, demanding reinstatement, back pay, damages and
attorneys’ fees and costs. [¶] Please be further advised that Ms. Rivera does not waive
her right to a full arbitration hearing should you decide to uphold the department’s
recommendation of termination.”
For approximately four months between August and December 2007, Tom
Prescott, a human resources division manager for the County, and Roth exchanged
numerous letters and e-mail correspondence concerning the possibility of settling the
disputes between the parties. During this time, the County did not communicate directly
with Rivera; all communication was with Roth. When settlement discussions failed to
resolve the disputes, Prescott informed Roth by e-mail on December 12, 2007, that the
“County will proceed with its administrative action so Ms[.] Rivera should not be
expecting to be reinstated.” There does not appear to be any further communication
between Roth and the County until February 4, 2008.
In the meantime, on December 22, 2007, the County sent the second notice
required by the MOU, a letter titled “Notice of Termination,” to the Tamara Drive
address by certified mail, return receipt requested. Although the notice indicates that at
least seven individuals (all apparently County personnel) received “cc” copies of the
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letter, it does not indicate that a copy was sent to Roth. Rivera and Roth each declared
they did not receive the notice or a copy of it. There is no evidence in the record that a
return receipt for the December 2007 notice was signed by anyone or returned to the
County.
In February 2008, Prescott informed Roth by e-mail that Rivera “was sent her final
notice of termination more than a month ago (after she rejected our settlement proposal)
and the time to appeal the termination has long since passed so there will be no
reinstatement to the payroll.”
In April 2008, the County paid Rivera $18,427.94 in back pay for the period from
August 22, 2005, through December 21, 2007.
B. Rivera’s Petition for Writ of Mandate
Rivera filed a petition for peremptory writ of mandate and prohibition under Code
of Civil Procedure section 1085 in March 2008. An amended petition was filed in May
2009. Rivera did not explicitly assert a cause of action arising under section 1983 of title
42 of the United States Code. She did, however, allege that the County “violated [her]
constitutional rights under the Fifth and Fourteenth Amendments to the Constitution of
the United States, thereby entitling her to recover attorneys’ fees in accordance with [title
42 United States Code sections] 1983 and 1988 et seq.”
Rivera sought a peremptory writ of mandate compelling the County to either (1)
reinstate her to her position retroactive to August 23, 2005, with back pay and benefits, or
(2) “afford [Rivera] due process, including an administrative hearing on her second
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termination, with all deliberate speed . . . .” She further requested: “As a remedy for
County’s violation of [Rivera’s] right to due process in her second termination, [Rivera]
be awarded back pay from her last day of pay until findings and award are issued in her
administrative hearing on the second termination[.]” Finally, she requested she be
awarded her costs of suit and “attorneys’ fees pursuant to California Government Code
§ 800 and 42 U.S.C. § 1983 and 1988 et seq.”
Following a hearing, the court made the following findings:
“1. The County failed to comply with the arbitrator’s order, dated May 18, 2007,
in [Rivera]’s first termination, in that it failed and continues to fail to reinstate [Rivera].
“2. The County did not contest or appeal the arbitrator’s May 18, 2007, award.
“3. When the County gave [Rivera] notice of a second termination, it did so in a
way that did not give her actual notice.
“4. The County knew that [Rivera] had counsel; it was at all relevant times
communicating with [Rivera] solely through her counsel; and, [Rivera]’s counsel had
given the County written notice on behalf of [Rivera] that if it made the decision to
terminate [Rivera], she intended to request an administrative hearing.
“5. Despite these facts, the County did not give [Rivera] notice of her second
termination.
“6. When the County did receive [Rivera]’s request for a hearing it did not
proceed to hearing, but claimed that [Rivera]’s first request for a hearing was too early
and her second request was too late.
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“7. The County has paid [Rivera] salary and benefits through December 21, 2007;
the County has not paid [Rivera] any salary or benefits since December 21, 2007.
“8. The County under color of law deprived [Rivera] of her right to an
administrative hearing to contest her termination in violation of her right to due process
under the Fifth and Fourteenth Amendments to the Constitution.”
The court then issued a peremptory writ of mandate commanding the County to
provide Rivera “with an administrative hearing regarding her termination of December
21, 2007, and to pay [Rivera] full back pay and benefits, including contributions to the
Public Employees Retirement System, retroactive to December 21, 2007, plus interest in
accordance with law, and to continue such payments of wages and benefits until a
decision is issued in the administrative hearing regarding her second termination.”
The court also ordered the County to pay Rivera’s “attorneys fees pursuant to
[section] 1988, et seq., in an amount to be determined by [motion.]”
The County appealed and Rivera cross-appealed.
C. Rivera I
In Rivera I, we affirmed the trial court’s judgment. We began our analysis by
noting that the parties do not dispute that “Rivera’s employment with the County was a
constitutionally protected property interest that could not be terminated without due
process,” and “that due process in this case requires, at a minimum, that Rivera be
provided with notice of her termination and an opportunity to be heard regarding the
grounds for termination.” (Rivera I, supra, E049282 [at p.18], citing Mullane v. Central
8
Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313 (Mullane).) Such notice, we
explained, “must be ‘reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present
their objections.’ [Citation.]” (Rivera I, supra, [at p. 18], quoting Mullane, supra, at p.
314.) This calculation must also be made with “‘due regard for the practicalities and
peculiarities of the case . . . .’ [Citations.]” (Rivera I, supra, [at p. 21], quoting Mullane,
supra, at pp. 314-315.)
In applying these principles, we stated: “Here, the circumstances, practicalities,
and peculiarities in this case include the following: Rivera was terminated by the County
in August 2005. Although an arbitrator directed the County to reinstate her in May 2007,
the County never did so. In July 2007, the County received the return receipt for its
notice of proposed termination signed by [someone other than Rivera], which reasonably
suggests that Rivera might not live at the Tamara Drive address. Five months later, in
December 2007, the County mailed the notice of termination that is the subject of this
case to the same address. Significantly, throughout the relevant time period, the County
was aware that Roth represented Rivera. Indeed, the County communicated with Rivera
exclusively through Roth, including discussions regarding settlement of the parties’
disputes. Finally, although the County sent the notice of termination by certified mail,
return receipt requested, it has produced no return receipt or other evidence that anyone
ever received the notice.
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“The question is whether, under these circumstances, ‘one desirous of actually
informing’ Rivera of her termination would merely send the notice of the termination by
mail to the address on file without informing Roth of the termination or, at a minimum,
contacting Roth to confirm Rivera’s address. (See Mullane, supra, 339 U.S. at p. 315.)
The answer, we conclude, is: No. Rivera had not worked for the County for more than
two years, she was represented by counsel, the County communicated with Rivera
exclusively through her attorney, and, because it did not receive a return receipt signed by
Rivera for letters sent to the Tamara Drive address, the County had reason to suspect that
Rivera no longer lived at that address. If the County actually desired to inform Rivera
that it was terminating her employment (thereby triggering the deadline for appealing the
decision), it would have taken other steps to ensure she received the notice, such as
provide Roth with a copy of the notice of termination or inquire of Roth as to Rivera’s
current address. By failing to take these or other simple steps, the County’s efforts failed
to satisfy due process.
“Even if the County reasonably believed at the time it mailed the notice of
termination that it could apprise Rivera of her termination by mailing the notice only to
the Tamara Drive address, it could not reasonably maintain that belief after it failed to
receive the return receipt it requested. The purpose for requesting a return receipt is, of
course, to provide proof that the letter was received. The absence of a return receipt in
this situation indicates that Rivera never received the notice. A reasonable person
desirous of actually informing Rivera of her termination who did not receive the
10
requested return receipt would have, at a minimum, inquired of Roth about Rivera’s
whereabouts. Yet the County did nothing further.” (Rivera I, supra, E049282 [at pp. 21-
22].)
D. Motion for Attorney Fees
Following remand, Rivera filed a motion to recover attorney fees under CCP
1021.5 and section 1988. Following a hearing on the motion, the court granted the
motion and awarded Rivera a total of $99,665 in attorney fees. In its written order, the
court made the following findings:
“1. [Rivera] was the prevailing party in this action pursuant to [section] 1983
against [County], in which the trial Court and the Court of Appeal found that [County]
terminated [Rivera]’s public employment in violation of [Rivera]’s constitutional right to
due process of law, and is therefore entitled to an award of attorneys’ fees pursuant to
[section] 1988.
“2. [Rivera] was a successful party in this action which has resulted in the
enforcement of an important right affecting the public interest, a significant benefit has
been conferred on a large class of persons, the necessity and financial burden of private
enforcement are such as to make an award of attorneys’ fees appropriate, and such fees
should not in the interest of justice be paid out of the recovery, justifying an award of
attorneys fees pursuant to [CCP] 1021.5.”
The County appealed.
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III. DISCUSSION
A. CCP 1021.5
Under the so-called “American rule,” each party to a lawsuit must ordinarily pay
his or her own attorney fees. (Code Civ. Proc., § 1021; Essex Ins. Co. v. Five Star Dye
House, Inc. (2006) 38 Cal. 4th 1252, 1257.) An exception to this rule is CCP 1021.5,
which codifies the “private attorney general” attorney fee doctrine established in judicial
decisions. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal. 3d 917,
933 (Woodland Hills II); Olson v. Automobile Club of Southern California (2008) 42
Cal. 4th 1142, 1147.) Under CCP 1021.5, a successful party in an action that “has
resulted in the enforcement of an important right affecting the public interest” may be
awarded attorney fees if: (a) the action has conferred a “significant benefit . . . on the
general public or a large class of persons”; (b) “the necessity and financial burden of
private enforcement” make the award appropriate; and (c) the fees are not paid out of the
recovery, if any.
The “fundamental objective of the private attorney general doctrine of attorney
fees is ‘“to encourage suits effectuating a strong [public] policy by awarding substantial
attorney’s fees . . . to those who successfully bring such suits and thereby bring about
benefits to a broad class of citizens.”’ [Citations.] The doctrine rests upon the
recognition that privately initiated lawsuits are often essential to the effectuation of the
fundamental public policies embodied in constitutional or statutory provisions, and that,
without some mechanism authorizing the award of attorney fees, private actions to
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enforce such important public policies will as a practical matter frequently be infeasible.
[Citations.]” (Woodland Hills II, supra, 23 Cal.3d at p. 933.) However, “‘[CCP] 1021.5
was not designed as a method for rewarding litigants motivated by their own pecuniary
interests who only coincidentally protect the public interest.’ [Citation.]” (LaGrone v.
City of Oakland (2011) 202 Cal. App. 4th 932, 946.)
“We will uphold the trial court’s decision to award attorney fees under [CCP]
1021.5, unless the court has abused its discretion.” (Graham v. DaimlerChrysler Corp.
(2004) 34 Cal. 4th 553, 578.) “‘“The discretion of a trial judge is not a whimsical,
uncontrolled power, but a legal discretion, which is subject to the limitations of legal
principles governing the subject of its action, and to reversal on appeal where no
reasonable basis for the action is shown. [Citation.]”’ [Citations.]” (City of Sacramento
v. Drew (1989) 207 Cal. App. 3d 1287, 1297.) An abuse of discretion occurs when the
exercise of discretion is predicated upon factual findings that are not supported by
substantial evidence. (See Borissoff v. Taylor & Faust (2004) 33 Cal. 4th 523, 531.)
We have no trouble concluding that Rivera satisfies the threshold test under CCP
1021.5 that she has succeeded in an action that “resulted in the enforcement of an
important right affecting the public interest”; her success in enforcing her constitutional
right to due process satisfies this test. (See, e.g., Press v. Lucky Stores, Inc. (1983) 34
Cal. 3d 311, 318 [“‘The determination that the public policy vindicated is one of
constitutional stature . . . establishes the first of the . . . elements requisite to the award
(i.e., the relative societal importance of the public policy vindicated).’”].)
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However, there is not a reasonable basis for finding that the action conferred a
“‘significant benefit . . . on the general public or a large class of persons.’” In applying
this element, courts are to determine the significance of the benefit and the size of the
class benefitting from the action “in light of all the pertinent circumstances, of the gains
which have resulted in a particular case.” (Woodland Hills II, supra, 23 Cal.3d at pp.
939-940.) Here, in awarding fees under CCP 1021.5, the trial court explained that while
“there is a large component of this action that was directly beneficial in enforcing the
rights of the plaintiff, there is also substantial benefit to the public at large, and
specifically government employees and employees of the County, in protecting their due
process rights.” We disagree.
Initially, we note that one factor in evaluating the significance of the benefit for
the public is whether the opinion in the underlying case was published and resulted “in
significant appellate precedent.” (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52
Cal. 4th 1018, 1029; see also Los Angeles Police Protective League v. City of Los Angeles
(1986) 188 Cal. App. 3d 1, 12 [the decision to publish an appellate opinion “is strong
evidence” that the underlying action vindicated an important right]; Leiserson v. City of
San Diego (1988) 202 Cal. App. 3d 725, 737 [publication is “probative of whether the
decision clearly vindicates a right where the reason for publication was to announce a
rule not found in previously published opinions.”].) This factor does not support Rivera
because the opinion vindicating her due process right to notice in this case—Rivera I—
was not published and therefore has no precedential value. (See Cal. Rules of Court, rule
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8.1115(a) [unpublished opinions may not be cited or relied upon by a court or party in
any other action].) Moreover, our prior opinion established no new principles of law;
rather, it was based upon a straightforward application of settled law—that notice, to
comport with due process, “must be ‘reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections.’ [Citation.]” (Rivera I, supra, E049282 [at p. 18], quoting
Mullane, supra, 339 U.S. at p. 314.)
With respect to the size of the class benefitting from the action, Flannery v.
California Highway Patrol (1998) 61 Cal. App. 4th 629 is instructive. In that case, the
plaintiff was employed as a traffic officer for the California Highway Patrol (CHP). (Id.
at p. 632.) After the CHP terminated her employment, she sued the CHP alleging
harassment and various theories of wrongful termination. (Ibid.) A jury awarded her
$250,000. (Ibid.) The trial court then awarded her $1,008,150 in attorney fees under
CCP 1021.5 and the Fair Employment and Housing Act. (Flannery v. California
Highway Patrol, supra, at pp. 632-633.) The Court of Appeal reversed. The court stated:
“Because the public always has a significant interest in seeing that laws are enforced, it
always derives some benefit when illegal private or public conduct is rectified.
Nevertheless, the Legislature did not intend to authorize an award of fees under [CCP]
1021.5 in every lawsuit enforcing a constitutional or statutory right. [Citations.] The
statute specifically provides for an award only when the lawsuit has conferred ‘a
significant benefit’ on ‘the general public or a large class of persons.’ The trial court
15
must determine the significance of the benefit and the size of the class receiving that
benefit by realistically assessing the gains that have resulted in a particular case.
[Citation.] [¶] When the record indicates that the primary effect of a lawsuit was to
advance or vindicate a plaintiff’s personal economic interests, an award of fees under
[CCP] 1021.5 is improper. [Citations.]” (Id. at p. 635; but see Graham v.
DaimlerChrysler Corp., supra, 34 Cal.4th at p. 578, fn. 9 [“Flannery merely held that a
plaintiff who enforces a statutory right is not necessarily entitled to [CCP] 1021.5 fees
when the primary effect of the suit is to vindicate an individual economic interest.”];
Robinson v. City of Chowchilla (2011) 202 Cal. App. 4th 382, 400 [same].)
In applying these principles, the Flannery court explained that although
“plaintiff’s lawsuit was based on the important right to be free from unlawful
discrimination, its primary effect was the vindication of her own personal right and
economic interest. The evidence does not support the trial court’s finding that the lawsuit
conferred a significant benefit on the general public or on a large class of persons within
the meaning of [CCP] 1021.5, and the fee award cannot be upheld based on that statute.”
(Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at p. 637.)
Flannery was followed in LaGrone v. City of Oakland, supra, 202 Cal. App. 4th
932. In that case, an engineer with the Port of Oakland, employed by the City of
Oakland, successfully petitioned for a writ of administrative mandamus directing the city
to reinstate him to his position with back pay and benefits. (Id. at pp. 935, 940.) The trial
court denied the plaintiff’s motion for attorney fees under CCP 1021.5 and the Court of
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Appeal affirmed, stating: “[The] action was not initiated in the interest of the general
public, but instead as an administrative action to reinstate his employment. The
possibility that his lawsuit may have conveyed a cautionary message to the City and Port
about their conduct, or that it might cause them to change their practices in the future, is
insufficient to satisfy the significant public benefit requirement.” (LaGrone v. City of
Oakland, supra, at p. 946.)
Here, the circumstances that led to the County’s due process violation are highly
unusual, unique, and unlikely to be presented again. In particular, Rivera had not been
working for (and had not received a paycheck from) the County for more than two years,
she had moved to a new residence without informing the County of the change, and the
County was communicating with Rivera exclusively through her attorney, who had
specifically informed the County that she represented Rivera with respect to the County’s
proposed termination of Rivera. (Rivera I, supra, E049282 [at p. 21].) Indeed, we
repeatedly pointed out that our conclusion was based upon the particular “circumstances,
practicalities, and peculiarities” and “unusual circumstances” in this case. (See id. [at pp.
21, 23-24].)
The unusual circumstances of the case were highlighted in our response to the
County’s argument that it sent the notice of termination in compliance with the
procedures described in the MOU. As we explained in Rivera I: “[E]ven if we assume
the County complied with the MOU, such compliance does not necessarily satisfy the
requirements of due process in a particular case. [Citation.] In a more typical
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employment termination scenario, the termination would likely involve a current
employee with whom the County communicates directly. Such an employee would
likely keep the employer apprised of a change of address. While the MOU’s notice
provisions might comport with due process in that scenario, it is the circumstances in this
case against which due process must be measured. . . . [U]nder the unusual
circumstances present here, merely mailing the notice to a stale, suspect address, is
insufficient.” (Rivera I, supra, E049282 [at pp. 22-23].) Although we held that
compliance with the MOU’s notice procedures was not enough to satisfy due process
under the circumstances in this case, our prior opinion did not invalidate any provision of
the MOU or general employment policy of the County.
If the County is presented with a similar situation in the future, it is likely it will be
mindful of Rivera’s successful petition and our prior opinion. However, because of the
unique circumstances in this case and the highly fact-specific basis for both the trial
court’s decision and our unpublished opinion, we conclude there is no reasonable basis
for finding that Rivera’s action conferred a “significant benefit . . . on the general public
or a large class of persons . . . .” (CCP 1021.5.) Even if there is evidence to support
other elements of CCP 1021.5, we conclude that court’s decision is without evidentiary
support and cannot stand.
B. Section 1988
In addition to awarding attorney fees to Rivera under CCP 1021.5, the trial court
determined that she was entitled to attorney fees under section 1988. This statute
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provides, in pertinent part: “In any action or proceeding to enforce [specified civil rights
statutes, including section 1983], the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs.”
Rivera’s right to recover attorney fees from the County under section 1988
depends on whether she prevailed in an action against the County under section 1983.
Section 1983 provides: “Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .”4
As we explain below, although Rivera prevailed in her action for a writ of
mandate and in establishing that the County terminated her employment without giving
her notice that comported with due process, she failed to establish that the deprivation of
due process was caused by an official policy or custom of the County. Therefore, she has
4 Rivera did not explicitly plead a cause of action under title 42 United States
Code section 1983; her pleading was styled solely as a petition for peremptory writ of
mandate and prohibition under Code of Civil Procedure section 1085. In evaluating a
claim for fees under title 42 United States Code section 1988, however, courts have held
that the allegations of the pleading determine whether a title 42 United States Code
section 1983 action was asserted, not how the pleading was labeled. (Kreutzer v. County
of San Diego (1984) 153 Cal. App. 3d 62, 69; Best v. California Apprenticeship Council
(1987) 193 Cal. App. 3d 1448, 1463.)
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failed to establish a claim against the County under section 1983 or, consequently, the
entitlement to recover attorney fees under section 1988.5
The question whether a local government, such as a city or county, is a “person”
for purposes of section 1983 was addressed in Monell v. Dept. of Soc. Serv. of City of
N.Y. (1978) 436 U.S. 658 (Monell). In that case, a class of female employees sued the
City of New York (among others) under section 1983 on the basis that the city “had as a
matter of official policy compelled pregnant employees to take unpaid leaves of absence
before such leaves were required for medical reasons.” (Monell, supra, at pp. 660-661,
fn. omitted.) By the time the case reached the Supreme Court, there was no dispute that
this policy was unconstitutional. (Id. at pp. 661-662; see Cleveland Board of Education
v. LaFleur (1974) 414 U.S. 632, 647-648.)
The Supreme Court held that a municipality was a “person” subject to liability
within the meaning of section 1983. (Monell, supra, 436 U.S. at pp. 690, 701.)
However, the court held that a municipality cannot be liable based on a theory of
respondeat superior or vicarious liability (id. at pp. 690-691); rather, a municipality can
be liable only when “the municipality itself causes the constitutional violation at issue.”
(City of Canton, Ohio v. Harris (1989) 489 U.S. 378, 385, citing Monell, supra, at pp.
5 The parties did not discuss this issue in their briefs. We requested and have
received supplemental briefs on these two questions: (1) “Whether there is evidence in
the record (and in the appellate record filed in Rivera I) that supports a determination that
the County’s violation of [Rivera]’s right to due process was caused by a county policy or
custom for purposes of Title 42 United States Code section 1983 . . .”; and (2) “If there is
no substantial evidence in the record to support such a determination, whether the award
of attorney fees under Title 42 United States Code section 1988 can be affirmed.”
20
694-695.) That is, the constitutional tort must result from “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers,” or a
“custom” or “usage” that is so permanent and well-settled as to have the force of law.
(Monell, supra, at pp. 690-691.) To constitute such a policy or custom, the court
concluded, it must be “made by [the municipality’s] lawmakers or by those whose edicts
or acts may fairly be said to represent official policy . . . .” (Id. at p. 694.) Because the
Monell case “unquestionably involve[d] official policy as the moving force of the
constitutional violation,” the court did not address “what the full contours of municipal
liability under [section] 1983 may be.” (Id. at pp. 694-695.)
The Supreme Court clarified Monell in a series of decisions over the ensuing
decade. In Oklahoma City v. Tuttle (1985) 471 U.S. 808, a plurality of the Supreme
Court explained that a “policy” for purposes of imposing municipal liability under section
1983 “generally implies a course of action consciously chosen from among various
alternatives” and is not established by “[p]roof of a single incident of unconstitutional
activity . . . unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker.” (Oklahoma City v. Tuttle, supra, at pp. 823-824 (plur. opn. of Rehnquist,
J.);6 see also Craig v. Floyd County (11th Cir. 2011) 643 F.3d 1306, 1310 [municipal
6 Although Justice Rehnquist wrote for a four-justice plurality, Justice Brennan,
who wrote separately, agreed with the plurality on this point. (See Oklahoma City v.
Tuttle, supra, 471 U.S. at pp. 831-832 (conc. opn. of Brennan, J.); see also Brown v. City
of Pittsburgh (3d Cir. 2009) 586 F.3d 263, 293, fn. 36.)
21
liability may not be imposed based upon an isolated incident]; Trevino v. Gates (9th Cir.
1996) 99 F.3d 911, 918 [municipal liability for improper custom may not be predicated
on isolated or sporadic incidents; it must be founded upon practices of sufficient duration,
frequency and consistency that the conduct has become a traditional method of carrying
out the policy].)
In Pembaur v. City of Cincinnati (1986) 475 U.S. 469 (Pembaur), a plurality
explained: “Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered. The fact that a
particular official—even a policymaking official—has discretion in the exercise of
particular functions does not, without more, give rise to municipal liability based on an
exercise of that discretion. [Citation.] The official must also be responsible for
establishing final government policy respecting such activity before the municipality can
be held liable.” (Pembaur, supra, at pp. 482-483 (plur. opn. of Brennan, J.), fns.
omitted.)
In footnote 12 of Pembaur, the plurality illustrated this point with the following
hypothetical. “Thus, for example, the County Sheriff may have discretion to hire and fire
employees without also being the county official responsible for establishing county
employment policy. If this were the case, the Sheriff’s decisions respecting employment
would not give rise to municipal liability . . . . [I]f county employment policy was set by
the Board of County Commissioners, only that body’s decisions would provide a basis
for county liability. This would be true even if the Board left the Sheriff discretion to
22
hire and fire employees and the Sheriff exercised that discretion in an unconstitutional
manner; the decision to act unlawfully would not be a decision of the Board.” (Pembaur,
supra, 475 U.S. at p. 483, fn. 12; see also Harman v. City and County of San Francisco
(2006) 136 Cal. App. 4th 1279, 1298 [“discretionary authority to hire or promote
employees does not alone give rise to municipal liability, even though the decision maker
may have a final power to make such decisions.”].)
In City of St. Louis v. Praprotnik (1988) 485 U.S. 112 (Praprotnik), a plurality of
the high court stated that the facts in that case “resemble” the hypothetical facts in
Pembaur’s footnote 12. (Praprotnik, supra, at pp. 129-130 (plur. opn. of O’Connor, J.).)
The plaintiff in Praprotnik worked for the City of St. Louis’s Community Development
Agency. (Id. at p. 114.) After he was suspended, he appealed to the city’s civil service
commission, which reversed the suspension and awarded the plaintiff back pay. (Id. at p.
115.) He was subsequently transferred to another position and, later, “laid off.” (Id. at
pp. 115-116.) The plaintiff sued the city under section 1983, alleging that the transfer
was in retaliation for his earlier appeal and, therefore, in violation of his First
Amendment rights, and that his discharge violated his constitutional right to due process.
(Praprotnik, supra, at p. 116.)
The Praprotnik court explained that the city could not “be held liable under
[section] 1983 unless [the plaintiff] proved the existence of an unconstitutional municipal
policy.” (Praprotnik, supra, 485 U.S. at p. 128.) “Locating a ‘policy,’” the court later
explained, “ensures that a municipality is held liable only for those deprivations resulting
23
from the decisions of its duly constituted legislative body or of those officials whose acts
may fairly be said to be those of the municipality.” (Bd. of County Com’rs of Bryan
County v. Brown (1997) 520 U.S. 397, 403-404 (Brown).) Furthermore, it is not enough
to prove that the employee’s supervisors, endowed with discretion to transfer and fire
employees, acted in violation of the constitution (Praprotnik, supra, at p. 128); the
plaintiff must prove that the municipality’s policy caused the supervisors to violate the
employee’s constitutional rights (id. at p. 122).
In rejecting the plaintiff’s claim in Praprotnik, the court noted that the plaintiff did
“not contend that anyone in city government ever promulgated, or even articulated,” an
unconstitutional municipal policy. (Praprotnik, supra, 485 U.S. at p. 128.) Even if the
plaintiff established that his transfer and discharge were part of a scheme to retaliate
against him, this “says nothing about the actions of those whom the law established as the
makers of municipal policy in matters of personnel administration. The [city’s] Mayor
and Aldermen enacted no ordinance designed to retaliate against [the plaintiff] or against
similarly situated employees. On the contrary, the city established an independent Civil
Service Commission and empowered it to review and correct improper personnel
actions.” (Ibid.) Finally, the court rejected arguments that the individuals who made the
decision to transfer and lay off the plaintiff were authorized to establish employment
policy for the city with respect to transfers and layoffs. (Id. at p. 129.)7
7 Although Praprotnik was a plurality decision and Pembaur was a plurality
decision in part, the principles announced in those decisions have been treated as guiding
precedent in subsequent United States Supreme Court decisions. (See Harman v. City
[footnote continued on next page]
24
Praprotnik was followed in Sandoval v. Los Angeles County Dept. of Public
Social Services (2008) 169 Cal. App. 4th 1167. In that case, the plaintiff, Sandoval, was
employed by the Los Angeles County Department of Public Social Services (DPSS). (Id.
at p. 1172.) In 2001, after his supervisor made certain charges against him, Sandoval
“went on leave, and sought workers’ compensation benefits.” (Id. at p. 1173.) While on
leave, he was suspended and then discharged by DPSS. (Ibid.) Sandoval successfully
appealed the discharge to the civil service commission, which directed that he “be
accorded ‘conditional reinstatement’” and made “‘whole.’” (Ibid.) While on leave,
Sandoval lived initially with his parents, but later moved, twice. (Ibid.) His parents’
address, however, remained the “‘address on record’” with DPSS. (Id. at p. 1175.)
DPSS sent three notices to Sandoval at his parents’ address requesting that he report for
work. (Id. at pp. 1174-1175.) The third notice stated that if Sandoval did not report to
work by a certain date, he would be deemed to have resigned. (Id. at p. 1175.) Sandoval
never received those notices and did not report by the specified date. (Id. at p. 1174.)
DPSS terminated his employment. (Ibid.)
Sandoval sued DPSS alleging a variety of claims, including denial of due process
under section 1983. (Sandoval v. Los Angeles County Dept. of Public Social Services,
supra, 169 Cal.App.4th at pp. 1171-1172.) In particular, he asserted that DPSS failed to
[footnote continued from previous page]
and County of San Francisco, supra, 136 Cal.App.4th at p. 1297, fn. 6, citing Jett v.
Dallas Independent School Dist. (1989) 491 U.S. 701, 737 and Brown, supra, 520 U.S. at
p. 406.)
25
comply with due process when it sent notices to his parents’ address without trying to
contact him in any other way. (Id. at p. 1182.) The trial court granted DPSS’s motion for
nonsuit on this claim and the Court of Appeal affirmed. (Id. at p. 1183.) On appeal,
Sandoval pointed to evidence that the decision to terminate his employment was made
pursuant to a “‘delegation of powers’” within DPSS and was ratified by DPSS’s chief
official, Bryce Yokamiso. (Ibid.) The court rejected this claim. The court stated that
Sandoval’s “evidence is insufficient to establish liability under United States Code
section 1983 on theories of delegation or ratification. Under California law, the county’s
board of supervisors is authorized to promulgate rules and policies regarding County
employees. [Citation.]” (Ibid.) The evidence indicating a delegation of authority to fire
him, the court explained, did not suggest “that the board of supervisors delegated its
policymaking authority to Yokamiso (or his subordinates) or itself ratified Sandoval’s
termination.” (Ibid.)
In applying these principles here, we begin by noting that the trial court found, and
we agreed, that Rivera was deprived of her constitutional right to due process when her
employment was terminated without being provided with notice reasonably calculated,
under all the circumstances, to apprise her of the termination and her right to a hearing.
(Rivera I, supra, E049282 [at pp. 21-22].) Although Rivera was entitled to the remedy
she sought and obtained for that wrong—viz., a hearing on the second termination—the
deprivation of due process does not necessarily give rise to the County’s liability under
section 1983. As Monell and its progeny make clear, it is not enough for Rivera to show
26
that her supervisors, though County employees, deprived her of her constitutional right to
due process (see Brown, supra, 520 U.S. at p. 404); Rivera was required to prove that the
constitutional tort against her was caused by an official policy or a custom having the
force of law (Monell, supra, 436 U.S. at pp. 690-691; Praprotnik, supra, 485 U.S. at p.
128).
Here, Rivera did not allege, and the record does not disclose, any evidence
whatsoever that her second termination was caused by any County policy or custom, or
that the decision to terminate her employment was made by someone with relevant final
policy-making authority. She supported her petition for writ of mandate with her
declaration, the declaration of her counsel, Diane Roth, and voluminous copies of
correspondence between Rivera’s counsel and County employees. There is nothing in
the declarations or the correspondence that suggests that Rivera’s second termination, or
the failure to provide her with adequate notice of the termination, was caused by any
unconstitutional County policy or custom. Indeed, Rivera does not even identify an
offending policy or the lawmaking body or individual with the pertinent final policy-
making authority. The single occurrence of unconstitutional treatment toward her,
without more, is insufficient to establish municipal liability. (Oklahoma City v. Tuttle,
supra, 471 U.S. at pp. 823-824, 831-832; Trevino v. Gates, supra, 99 F.3d at p. 918.)
Nor did Rivera identify such a policy in the moving papers she filed in support of
the petition. In essence, she argued that she was entitled, as a matter of due process, to
notice of her termination and an opportunity for an evidentiary hearing, and the “County
27
gave her neither.” Although we agree with that conclusion, this does not establish that
the deprivation of due process was caused by a County policy. (See Kreutzer v. County
of San Diego, supra, 153 Cal.App.3d at p. 70 [although county employee could be
individually liable for deprivation of due process, the plaintiff’s claim against the county
failed because he “did not allege the denial of his hearing was due to any policy,
regulation, ordinance, or custom of the County . . . .”].)
In her supplemental brief on this issue, Rivera points to the fact that the County
mailed the second notice of termination in accordance with the MOU and the County’s
rules and practices. Indeed, she emphasizes that the County argued against her petition
based on the fact that the County followed its rules and practices with respect to the
mailing of notices. Rivera’s argument is misplaced. The question is not whether the
County followed its policies when it mailed its notices to Rivera’s last known address or
even whether following such polices was enough to constitute due process (in this case it
was not), but whether the County’s policies caused County employees to not take further,
“reasonably calculated” steps to apprise Rivera of her termination. (See Praprotnik,
supra, 485 U.S. at p. 122 [municipal governments “should be held responsible when, and
only when, their official policies cause their employees to violate another person’s
constitutional rights”]; City of Canton v. Harris, supra, 489 U.S. at p. 385 [there must be
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation].) Rivera points to nothing in the MOU or to any County policy or custom
that prevented County employees from taking such further steps. For example, there is
28
nothing in the MOU or other County policy that would prevented County employees
from providing Roth with the notice of termination.8
Rivera argues that we are precluded from addressing the County’s immunity under
Monell and its progeny because the County did not raise this issue in the trial court. It is
true that “[a]ppellate courts generally will not consider matters presented for the first time
on appeal.” (Franz v. Board of Medical Quality Assurance (1982) 31 Cal. 3d 124, 143.)
“However, the doctrine of waiver does not apply if the issue . . . is one of public interest
or the due administration of justice, and involves a pure question of law on undisputed
facts.” (Fox v. State Personnel Bd. (1996) 49 Cal. App. 4th 1034, 1039; see also Ward v.
Taggart (1959) 51 Cal. 2d 736, 742 [a new theory may be asserted on appeal when the
issue presents a question of law only].) This exception to the waiver rule applies here.
The County’s liability for Rivera’s attorney fees under section 1988, which in this
case necessarily implies that the County has a policy or custom that caused the
deprivation of an employee’s constitutional right to due process, is plainly a matter of
public interest; if such a policy or custom exists, it should be identified and stopped. In
addition, the facts are not in dispute. Any factual issues regarding the parties’ conduct
were litigated in the underlying trial court proceeding and settled in the trial court’s
8 If the MOU or a County policy provided that notices shall be given in a certain
manner and no other, then Rivera would have a stronger argument that the policy caused
County employees to violate her constitutional right. Rivera has not, however, referred
us to any such language.
29
findings and our decision in Rivera I. Rivera does not suggest that she could have
adduced any additional facts if the County had expressly raised a Monell defense.
Furthermore, the question of whether the constitutional tort committed against
Rivera was caused by a County policy or custom is an element of Rivera’s section 1983
claim upon which she had the burden to plead and prove. (City and County of San
Francisco v. Ballard (2006) 136 Cal. App. 4th 381, 406-407; Bach v. County of Butte
(1983) 147 Cal. App. 3d 554, 569; Torraco v. Port Authority (2d Cir. 2010) 615 F.3d 129,
140; McTernan v. City of York (3d Cir. 2009) 564 F.3d 636, 658.) The failure to allege or
prove this element is a failure to state or establish a cause of action, which may be raised
for the first time on appeal. (See Code Civ. Proc., § 430.80, subd. (a), 5 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 958, p. 372; Walton v. City of Red Bluff (1991) 2
Cal. App. 4th 117, 130.)
In support of her waiver argument, Rivera cites to Kelly v. City of Oakland (9th
Cir. 1999) 198 F.3d 779. In that case, the defendant City first raised its Monell defense in
a reply brief supporting a motion for new trial. (Kelly v. City of Oakland, supra, at p.
785.) The Ninth Circuit stated: “A defendant in a civil action cannot wait until the last
brief before the district court to present a defense which, if properly placed in issue,
would have affected the course of the jury trial.” (Ibid.) This suggests that the issue
could have been raised at that late date if it would not have affected the course of the
trial—a principle consistent with the California authorities cited above. Here, there is no
reason for us to believe that the course of the trial in this case would have been affected if
30
the Monell argument had been asserted below. Moreover, the Kelly case added that there
was “some evidence” in that case supporting the city’s liability. (Kelly v. City of
Oakland, supra, at p. 785.) Here, by contrast, there is no evidence that the denial of due
process Rivera suffered was caused by any County policy or custom. For all of these
reasons, we reject Rivera’s waiver argument.
Because there is no substantial evidence in the record to support a finding that the
County’s deprivation of Rivera’s right to due process was caused by any County policy
or custom, she has failed to establish the County’s liability under section 1983 and,
therefore, any right to recover attorney fees under section 1988.
At oral argument, Rivera asserted that the County cannot challenge her right to
recover fees under section 1988 because the trial court’s judgment established her
entitlement to fees under that statute; the only issue to be determined by motion was the
amount of fees. Rivera points to the provision in the judgment that “[t]he County shall
pay [Rivera’s] attorneys fees pursuant to 42 U.S.C. § 1988, et seq., in an amount to be
determined by Motion for Attorney Fees to be filed by [Rivera] . . . .” Therefore, Rivera
contends, the court considering the motion for attorney fees had no discretion to deny her
fees under section 1988.
Generally, we will not consider arguments made for the first time at oral
argument, particularly when there is no justification for the delay. (Sunset Drive Corp. v.
City of Redlands (1999) 73 Cal. App. 4th 215, 226 [Fourth Dist., Div. Two]; Archdale v.
American Internat. Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 472.) If the
31
matter was properly raised, we would reject it because Rivera not only forfeited the
argument by failing to assert it below, but she is judicially estopped from asserting it
now.
Initially, we note the legal basis for Rivera’s argument is not clear and she has not
provided us with any citations to support it. Although her counsel did not explicitly refer
to issue preclusion theories, such as direct or collateral estoppel, counsel alluded to them
in arguing that the original judgment is final and the right to attorney fees set forth in the
judgment can no longer be challenged. The suggestion, however, is unavailing. Theories
of direct and collateral estoppel require that the adjudicated issue (here, the right to fees
under section 1988) be “actually litigated and determined.” (See Murray v. Alaska
Airlines, Inc. (2010) 50 Cal. 4th 860, 867; Sabek, Inc. v. Engelhard Corp. (1998) 65
Cal. App. 4th 992, 997.) An issue is “actually litigated” for purposes of issue preclusion
when it is has been “‘properly raised, by the pleadings or otherwise, and is submitted for
determination, and is determined . . . .’ [Citation.]” (People v. Sims (1982) 32 Cal. 3d
468, 484.) As discussed above, Rivera never properly pleaded or otherwise raised in the
trial court the requirement that the County’s deprivation of her right to due process be
caused by a County policy or custom. The language she relies upon purporting to
establish her entitlement to fees under section 1988 did not, therefore, act as a bar to
subsequent litigation of that issue.
Rivera’s assertion that the court hearing her motion for attorney fees had no
discretion to consider the question of her entitlement to fees under section 1988 is also
32
contrary to the general rule that a trial court has the inherent ability to reevaluate its own
rulings. (See Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1096-1097.) Although some
cases refer to this rule as applying to “interim” rulings that are changed “prior to the entry
of judgment” (see, e.g., Darling, Hall & Rae v. Kritt (1999) 75 Cal. App. 4th 1148, 1153-
1154), it also applies to changes made in postjudgment proceedings as to earlier, “final”
orders (see In re Marriage of Barthold (2008) 158 Cal. App. 4th 1301, 1312; cf., D.R.S.
Trading Co., Inc. v. Barnes (2009) 180 Cal. App. 4th 815, 820-821).
Here, Rivera placed the question of her entitlement to fees under section 1988
before the court in her motion for attorney fees. In her moving papers, Rivera did not
assert that the trial court had previously decided her entitlement to fees, but rather based
her right to recover attorney fees on statutory grounds before turning to issues concerning
the amount of fees. In response, the County argued that Rivera was not entitled to
recover fees under section 1988 or CCP 1021.5. In her reply, Rivera addressed these
arguments on the merits without contending that the issue of her entitlement to fees had
been previously decided.
The parties’ briefs in this appeal also indicate that the issue of Rivera’s entitlement
to fees was before the trial court and is properly before this court. The County devoted
the largest portion of its opening brief to arguments that Rivera was not entitled to
recover attorney fees based upon the law governing CCP 1021.5 and section 1988. In
response, Rivera asserted her entitlement to fees under these statutes on the merits
33
without mentioning that the trial court hearing the motion was bound by the original
judgment.
It is clear from the record that Rivera never argued in the trial court or in her
appellate brief that her entitlement to fees under section 1988 had already been decided.
She has thus waived or forfeited the claim on appeal. (See Keener v. Jeld-Wen, Inc.
(2009) 46 Cal. 4th 247, 264; Santantonio v. Westinghouse Broadcasting Co. (1994) 25
Cal. App. 4th 102, 113.) Moreover, by failing to assert that the court had already decided
the question of her entitlement to fees, Rivera took away from the County any need to
assert arguments that the court could and should reconsider the prior determination. It
would thus be unfair to the County for us to accept Rivera’s new, contrary position when
it was never presented to the County or the court. She is, therefore, judicially estopped to
assert it now. (See Owens v. County of Los Angeles (2013) 220 Cal. App. 4th 107, 121
[judicial estoppel “prohibits a party from asserting a position in a legal proceeding that is
contrary to a position he or she successfully asserted in the same or some earlier
proceeding.”].) Accordingly, we reject Rivera’s argument.
IV. DISPOSITION
The order granting Rivera’s motion for attorney fees is reversed. Each party shall
bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
34
We concur:
RAMIREZ
P. J.
MILLER
J.
35