Filed 11/26/13 Riverside Sheriff’s Assn. v. County 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



RIVERSIDE SHERIFFS’ ASSOCIATION,

         Plaintiff and Appellant,                                        E054180

v.                                                                       (Super.Ct.No. RIC526383)

COUNTY OF RIVERSIDE et al.,                                              OPINION

         Defendants and Appellants.


         APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

         Hayes & Cunningham, Ricardo Ochoa, Amanda K. Hansen, Dennis J. Hayes, and

Christopher H. Conti for Plaintiff and Appellant.

         The Zappia Law Firm, Edward P. Zappia, Anna Zappia, and Day B. Hadaegh for

Defendants and Appellants.

         Riverside Sheriff’s Association (RSA) filed a petition for writ of mandamus

against the County of Riverside (County). The petition alleged that the County violated

                                                             1
RSA’s memorandum of understanding (MOU) and the Riverside salary ordinance by

hiring temporary employees to fill group counselor positions within the probation

department, and allowing them to work more than 1,000 hours in a given fiscal year

without prior approval from the board of supervisors. The court found the County had

violated the salary ordinance but had not violated the MOU and issued a writ of mandate

compelling compliance with the salary ordinance. RSA made a motion for attorney’s

fees pursuant to Code of Civil Procedure section 1021.5, and a motion for cost of proof

against the County for discovery violations. The County made a cross-motion for cost of

proof against RSA. The court denied RSA’s motion for attorneys’ fees, but awarded it

$10,400 for cost of proof, along with costs of suit, while denying the County’s cross-

motion. Both parties appealed.

      On appeal, RSA attacks the postjudgment order denying attorneys’ fees. On

cross-appeal, the County challenges the orders awarding RSA cost of proof damages

while denying the County’s cross-motion for cost of proof. We affirm.

                                       BACKGROUND

      In April 30, 2004, RSA requested information from the County about the number

and identity of temporary group counselors working for the probation department, and

the total number of working hours during that fiscal year. RSA sought the information

because it was relevant to the negotiation and enforcement of the terms of the MOU. The

County responded with a list of temporary group counselors, identified by employee

number.



                                            2
       Another letter was sent to the County’s human resources department on June 9,

2004, requesting the names of temporary group counselors. RSA explained the

information was necessary to determine the extent temporary group counselors had been

hired at an increasing rate, adversely affecting the bargaining unit employees. RSA

desired to ascertain whether permanent unit positions had been lost to temporary

employees by contracting out bargaining unit jobs. The County responded with payroll

records, but declined to provide work history information about the temporary employees

because they were not in the bargaining unit. The county also explained that it was not

“contracting out bargaining unit jobs,” but that despite ongoing recruitment efforts, the

probation department had never been able to fill all of its vacant positions.

       In August 2004, RSA filed a grievance against the County, seeking to have all

temporary group counselors replaced with regular, fulltime employees, and seeking

reimbursement of lost association dues resulting from the hiring of temporary employees.

The County rejected the grievance, so RSA filed an amended grievance, seeking

reclassification of the temporary employees, demanding that the County cease the

practice of hiring temporary employees to perform bargaining work, and seeking

reimbursement for dues that would have been paid but for the violation of the County’s

salary ordinance, Ordinance No. 440, section 12.C.(3). That salary ordinance provides

that temporary employees may not be employed for longer than 1,000 hours during any

fiscal year. The ordinance further provides that in the event a department head has an

unusual need, he or she may request approval on the board of supervisors’ agenda prior to



                                             3
the employee working more than 1,000 hours (Sal. Ord. 440, § 12.C.(3).) The County

rejected the amended grievance.

       RSA filed a petition to compel arbitration on the ground that temporary group

counselors had eroded the bargaining unit by shifting work away from full-time members

and reducing the amount of dues collected by RSA. (Case No. RIC 425667.) In January

2006, RSA filed an amended petition for writ of mandate in case No. 425667, seeking an

order compelling an administrative hearing, which was granted. On March 22, 2009, the

administrative hearing officer issued a decision finding that the County’s use of

temporary group counselors in excess of 1,000 hours in a fiscal year violated the salary

ordinance, but did not violate the MOU.

       RSA then brought its petition for writ of mandate to enforce public sector labor

agreement and local ordinance. (Case No. RIC 526383.) The petition sought mandamus

compelling the County to comply with the MOU, limit temporary employees to 1,000

hours during a given fiscal year, to enforce the salary ordinance, to obtain payment of

RSA dues that would have been paid if the County had complied with the MOU, and for

attorneys’ fees and costs of suit. On January 7, 2011, the court denied in part and granted

in part the petition for writ of mandamus. The court found that the County had violated

section 12.C.(3) of the salary ordinance and ordered it to comply by limiting employment

of temporary group counselors to 1,000 hours without prior approval of the board of

supervisors. However, the court found the County’s violation of the salary ordinance was

not a violation of the MOU, so it ruled that RSA was not entitled to money damages for

lost union dues.

                                             4
        On February 7, 2011, RSA made a motion to recover cost of proof sanctions

against the County pursuant to Code of Civil Procedure section 2033.420. On March 8,

2011, RSA filed a motion for attorneys’ fees pursuant to Code of Civil Procedure section

1021.5. The County opposed RSA’s motions for cost of proof sanctions and attorneys’

fees, and made a cross-motion to recover its own cost of proof sanctions against RSA.

After a hearing, the court awarded RSA costs of suit in the amount of $3,954.51, and cost

of proof sanctions against the County in the amount of $10,400, but denied RSA’s motion

for attorneys’ fees. The court also denied the County’s cross-motion for cost of proof

sanctions.

        On July 8, 2011, RSA appealed from the order after judgment. On August 17,

2011, the County cross-appealed.

                                          DISCUSSION

        1.     The Trial Court Properly Exercised Discretion in Denying Attorney’s

Fees.

        RSA argues that the trial court erred in denying its motion for attorneys’ fees

pursuant to Code of Civil Procedure section 1021.5. We disagree.

        Ordinarily, unless a contract or statute provides otherwise, each party to a lawsuit

must pay its own attorney fees. (Code Civ. Proc., § 1021; Musaelian v. Adams (2009) 45

Cal.4th 512, 516.) California’s private attorney general law, Code of Civil Procedure

section 1021.5, sets forth an exception to that rule.

        Section 1021.5 of the Code of Civil Procedure provides that a court may award

attorneys’ fees to a successful party against one or more opposing parties in any action

                                              5
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. (See Robinson v. City of Chowchilla (2011)

202 Cal.App.4th 382, 390.)

         The decision whether to award attorney fees pursuant to Code of Civil Procedure

section 1021.5 lies within the discretion of the trial court and will not be disturbed on

appeal absent a prejudicial abuse of discretion resulting in a manifest miscarriage of

justice. (Monterey/Santa Cruz etc. Trades Council v. Cypress Marina Heights LP (2011)

191 Cal.App.4th 1500, 1522.) On review, we focus on whether the court applied the

proper legal standards under Code of Civil Procedure section 1021.5 and, if so, whether

the result was within the range of the court’s discretion. (Vargas v. City of Salinas (2011)

200 Cal.App.4th 1331, 1339.) However, de novo review is warranted where the

determination of whether the statutory criteria were satisfied amounts to statutory

construction and a question of law. (Conservatorship of Whitley (2010) 50 Cal.4th 1206,

1213.)

         (a) Successful Party

         The fundamental objective of the private attorney general doctrine is to encourage

suits enforcing important public policies by providing substantial attorney fees to

successful litigants in such cases. (Vargas v. City of Salinas, supra, 200 Cal.App.4th at p.

                                              6
1339.) The preliminary consideration for an award of attorney fees under the private

attorney general doctrine is the plaintiff’s success. (Ibid.)

       The plain language of Code of Civil Procedure section 1021.5 authorizes an award

of attorneys’ fees to a prevailing party. (Olson v. Automobile Club of Southern

California (2008) 42 Cal.4th 1142, 1148.) Thus, the threshold requirement for a fee

award is that the fee applicant must be a “successful party.” (Robinson v. City of

Chowchilla, supra, 202 Cal.App.4th at p. 393, citing Protect Our Water v. County of

Merced (2005) 130 Cal.App.4th 488, 493.) As used in Code of Civil Procedure section

1021.5, “successful” is synonymous with “prevailing.” (Protect Our Water, at p. 493.)

Determining whether a party is “successful” within the meaning of Code of Civil

Procedure section 1021.5 requires an analysis of the surrounding circumstances of the

litigation and a pragmatic assessment of the gains achieved by a particular action.

(Protect Our Water, at p. 493, citing Folsom v. Butte County Assn. of Governments

(1982) 32 Cal.3d 668, 685.)

       Generally, the question of whether a party is a prevailing party is best left to the

trial courts, because it is a factual pragmatic inquiry. (Protect Our Water v. County of

Merced, supra, 130 Cal.App.4th at p. 494, citing Schmier v. Supreme Court (2002) 96

Cal.App.4th 873, 877-878.) In determining whether a plaintiff is a successful party for

purposes of Code of Civil Procedure section 1021.5, the critical fact is the impact of the

action, not the manner of its resolution. (Graham v. DaimlerChrysler Corp. (2004) 34

Cal.4th 553, 566.) The term “successful party,” as ordinarily understood, means the party

to litigation that achieves its objectives. (Id. at p. 571.)

                                                7
       Because the critical fact is the impact of the action, an attorney fee award may be

justified even when plaintiff’s legal action does not result in a favorable final judgment.

(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290-1291.) Plaintiffs may be considered

successful if they succeed on any significant issue in the litigation that achieves some of

the benefit they sought in bringing suit. (Ebbetts Pass Forest Watch v. Department of

Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 382.) Thus, the court must

critically analyze the surrounding circumstances of the litigation and pragmatically assess

the gains achieved by the action. (Concerned Citizens of La Habra v. City of La Habra

(2005) 131 Cal.App.4th 329, 334.)

       Here, the order directing the County to comply with the salary ordinance does not

mean that the County is barred from hiring temporary employees who will work more

than 1,000 hours in a fiscal year. It merely requires the County to comply with the salary

ordinance by obtaining advance permission from the board of supervisors where a

temporary employee will work in excess of 1,000 hours. The salary ordinance does not

provide any sanction or remedy for failure to comply with the extension procedures for

temporary position. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 609

[Fourth Dist., Div. Two].) This was not a successful outcome.

       Additionally, the main thrust of the petition for writ of mandate was to obtain a

determination that the County’s violation of the salary ordinance was in violation of the

MOU. For this, RSA sought to have all temporary employees who have worked 1,000

hours or more to permanent full-time status and for recovery of dues lost to RSA through

the use of temporary employees. This relief was denied. The order requiring the County

                                              8
to comply with a salary ordinance which it was already obligated to follow did not

constitute a successful outcome.

       (b) Significant Benefit to the Public and Necessity and Financial Burden of

Private Enforcement.

       The necessity and financial burden requirement of Code of Civil Procedure section

1021.5 examines two issues: whether private enforcement was necessary and whether

the financial burden of private enforcement warrants subsidizing the successful party’s

attorneys. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1348.) The

“necessity” element looks to the adequacy of public enforcement. (Conservatorship of

Whitley, supra, 50 Cal.4th at p. 1215.) The “necessity of private enforcement” as an

incentive to encourage private enforcement means that public enforcement is not

available, or not sufficiently available. (Id. at p. 1217.)

       If the enforcement of the public interest is merely coincidental to the attainment of

personal goals, then the necessity and financial burden requirement is not met.

(Conservatorship of Whitley, supra, 50 Cal.4th at p. 1220, citing California Common

Cause v. Duffy (1987) 200 Cal.App.3d 730, 750-751.) Where the nonpecuniary

motivation is determined to be sufficiently strong, private attorney general fees are

deemed in some cases to be unnecessary. (Conservatorship of Whitley, at p. 1217.)

       The nature of the public right must be important and cannot involve trivial or

peripheral public policies. (Ryan v. California Interscholastic Federation (2001) 94

Cal.App.4th 1033, 1044.) In determining the “importance” of the particular vindicated

right, courts should generally realistically assess the significance of that right in terms of

                                               9
its relationship to the achievement of fundamental legislative goals. (Monterey/Santa

Cruz etc. Trades Council, supra, 191 Cal.App.4th at p. 1522.)

       An award of attorney fees is appropriate when the plaintiff’s lawsuit was a catalyst

that motivated the defendant to provide the primary relief sought and when the lawsuit

vindicated an important public interest. (Graham v. DaimlerChrysler Corp., supra, 34

Cal.4th at p. 570.) But the mere vindication of a statutory violation is not sufficient to be

considered a substantial benefit by itself. (Concerned Citizens of La Habra, supra, 131

Cal.App.4th at p. 335.) However, the fact that litigation enforces existing rights does not

mean that a substantial benefit to the public cannot result; fees have been consistently

awarded for the enforcement of well-defined, existing obligations. (Riverside Sheriffs’

Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, 422.)

       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 Code of Civil

Procedure section 1021.5 is improper. (Flannery v. California Highway Patrol (1998) 61

Cal.App.4th 629, 635; see also Apple, Inc. v. Franchise Tax Bd. (2011) 199 Cal.App.4th

1, 29; DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 200.) Code of Civil

Procedure section 1021.5 was not designed as a method for rewarding litigants motivated

by their own pecuniary interests who only coincidentally protect the public interest.

(DiPirro, at p. 200.) It is intended as a “bounty” for pursuing public interest litigation,

not a reward for litigants motivated by their own interests who coincidentally serve the

public. (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30

Cal.App.4th 562, 570.) Thus, a litigant who has a financial interest in the litigation may

                                             10
be disqualified from obtaining such fees when expected or realized financial gains offset

litigation costs. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1211.)

       In California Licensed Foresters Assn. v. State Bd. of Forestry, supra, 30

Cal.App.4th at page 570, the California Licensed Foresters Association (CLFA) filed an

action on behalf of its members to challenge emergency regulations adopted by the State

Department of Forestry (CDF) that adversely affected the livelihood of its members.

Ultimately, CDF adopted permanent regulations that led to a voluntary dismissal of the

action by CLFA, which then requested and was awarded attorney fees. On appeal, the

order was reversed on the ground that CLFA had a significant pecuniary interest in

eliminating the emergency regulations. (Ibid.) It also held that the interests of CLFA

clients and the general public were only incidental to CLFA’s primary objective of

protecting the livelihood of its members and that the economic interest of CLFA and its

members was sufficient motivation for bringing the action. (Id. at p. 573.)

       The same is true here. The court found RSA was motivated primarily by its own

pecuniary interests. RSA sought to increase its membership and revenue from dues by

requiring the County to be more circumspect in its use of temporary employees. The

court found RSA never identified an employee who would benefit from the ruling, while

several temporary employees provided declarations in opposition to RSA’s petition

because they were not interested in becoming permanent county employees and wished to

retain their temporary status.

       We agree with the court’s determination. Like the plaintiff in California Licensed

Foresters Assn. v. State Bd. of Forestry, supra, 30 Cal.App.4th at pages 571-572, RSA

                                            11
had a significant pecuniary interest in pursuing the matter that required no further

incentive for bringing suit. The interests of the union members and the general public

were incidental to RSA’s primary objective of obtaining additional dues paying members

and the economic interest of RSA and its members was sufficient motivation for bringing

the action. (See California Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th

1457, 1479, citing California Licensed Foresters, at pp. 567-568.) RSA’s action did not

vindicate an important public right. The lawsuit was motivated by RSA’s own self

interests.

       2.     The Trial Court Properly Ruled On the Cross-Motions For Discovery

Sanctions.

       a.     Procedural history

       During discovery, RSA served requests for admissions (RFA) on the County. One

RFA asked the County to admit that in the past it had violated the salary ordinance in the

past by employing temporary group counselors for more than 1,000 hours in a fiscal year,

while another RFA asked the County to admit it was currently in violation of the salary

ordinance by employing temporary group counselors for more than 1,000 hours in a fiscal

year. In response, the County objected to both RFA’s on the ground they were vague,

ambiguous, unintelligible and called for a legal conclusion, and denied each RFA in the

alternative. At the conclusion of the case, RSA requested sanctions for cost of proof of

the matters which the County had denied.




                                             12
       For its part, the County served RFA’s on RSA seeking an admission that the

County’s employment of nonunionized temporary group counselors did not violate the

MOU. RSA denied same.

       After the court ruled on the petition, RSA sought sanctions for the cost of proof of

the County’s denial, as unreasonable pursuant to Code of Civil Procedure section

2033.420. The County made a cross-motion for sanctions by virtue of the same statutory

authority. At the hearing, the trial court ruled that RSA’s denial of the County’s RFA

was reasonable, and denied sanctions. However, it concluded that the County’s denial of

RSA’s RFA was unreasonable and ordered sanctions in the amount of $10,400 to RSA

for costs of proof.

       On cross-appeal, the County argues that the court erred in (a) granting RSA’s

motion for cost of proof sanctions, and (b) denying its own motion for cost of proof

sanctions against RSA for discovery violations. We disagree.

       b.     Discussion and Analysis

       Code of Civil Procedure section 2033.420 provides that if a party fails to admit the

genuineness of any document or the truth of any matter when requested to do so, and the

party requesting the admission thereafter proves the genuineness of that document or the

truth of that matter, the party requesting the admission may move the court for an order

requiring the party to whom the request was directed to pay the reasonable expenses

incurred in making that proof, including reasonable attorney’s. fees (Code Civ. Proc.,

§ 2033.420, subd. (a).) We review a court’s fee award for abuse of discretion. (Miller v.

American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066.)

                                            13
       RFA’s differ from other forms of discovery because rather than seek to uncover

information, they seek to eliminate the need for proof. (Stull v. Sparrow (2001) 92

Cal.App.4th 860, 864.) The primary purpose of RFA’s is to expedite trial. (Barnett v.

Penske Truck Leasing (2001) 90 Cal.App.4th 494, 499; Murillo v. Superior Court (2006)

143 Cal.App.4th 730, 737.) The basis for imposing sanctions is directly related to that

purpose. (Stull, at p. 865.) An award of costs of proof is improper if the party who

denied the RFA held a reasonably entertained good faith belief it would prevail on the

issue at trial. (Miller v. American Greetings Corp., supra, 161 Cal.App.4th at p. 1066,

citing Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 511

[interpreting predecessor Code Civ. Proc, § 2034, subd. (c)].)

       “Proof” is the establishment by evidence of a requisite degree of belief concerning

a fact in the mind of the trier of fact or the court. (Evid. Code, § 190; Barnett v. Penske

Truck Leasing, supra, 90 Cal.App.4th at p. 498.) Thus, if a defendant concedes or

stipulates to a matter prior to trial that he or she had previously denied in RFA, such that

the plaintiff is spared the expense of proving that fact, cost of proof is not appropriately

ordered. (Wagy v. Brown (1994) 24 Cal.App.4th 1, 6.) Awarding costs of proof is

improper if the party who denied the RFA held a reasonably entertained good faith belief

it would prevail on the issue at trial. (Miller v. American Greetings Corp., supra, 161

Cal.App.4th at p. 1066.)

       The determination of whether “there were no good reasons for the denial,”

whether the requested admission was “of substantial importance,” and the amount of

expenses to be awarded, if any, are all within the sound discretion of the trial court.

                                             14
(Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 508.) On appeal, the

trial court’s decision will not be reversed unless the appellate demonstrates that the lower

court abused its discretion. (Ibid.; see also Wimberly v. Derby Cycle Corp. (1997) 56

Cal.App.4th 618, 637, fn. 12.) One of the essential attributes of abuse of discretion is that

it must clearly appear to effect injustice. (Dorman v. DWLC Corp. (1995) 35

Cal.App.4th 1808, 1815.) Discretion is abused whenever, in its exercise, the court

exceeds the bounds of reason, all of the circumstances before it being considered. (Ibid.)

The burden is on the party complaining to establish an abuse of discretion, and unless a

clear case of abuse is shown and unless there has been a miscarriage of justice, a

reviewing court will not substitute its opinion and thereby divest the trial court of its

discretionary power. (Ibid.)

       1.     The Cost of Proof Sanctions Awarded to RSA

       The County argues that sanctions against it were improper because it had

stipulated it had violated the salary ordinance in the past in the arbitration hearing, and its

denial of the RFA in the current proceeding was accompanied by copies of payroll

documents used by RSA to show that the County had cured its prior violations, making

any alleged violations irrelevant. However, the County’s act of providing documentation

to RSA did not obviate the need for proof. The matter was submitted for decision on the

basis of trial briefs. RSA’s trial brief included points and authorities in support of its

position that the County violated the salary ordinance, and submitted the documentation

obtained during discovery to prove the violation.



                                              15
       Although the County could have conceded the issue, it submitted points and

authorities in opposition to the petition. The County argued it did not violate the salary

ordinance, but that even if RSA could establish any technical violation in failing to obtain

prior approval for employing temporary group counselors in excess of 1,000 hours, the

County had cured any such violation by subsequently obtaining board approval to do so.

The County did not stipulate that it had violated the salary ordinance, thereby sparing

RSA the need to submit proof to the court.

       The County’s denial was unreasonable in light of the fact it had previously

stipulated to the fact that it had violated the salary ordinance in the earlier arbitration

proceedings. Nor did the County have a good faith belief it would prevail on the issue at

trial in light of the prior admission. The court was well within its discretion to order the

County to pay to RSA the cost of proof of that fact.

       2. Cost of Proof Sanctions Denied to the County

       The County next argues that because the case law has established that the MOU

does not cover temporary employees, RSA had no reasonable basis to deny the County’s

request for admissions that it had not violated the MOU. It relies on the holding of

Jenkins v. County of Riverside, supra, 138 Cal.App.4th 583. In that case, the County of

Riverside terminated the employment of plaintiff, who was a temporary employee, after

she requested reasonable accommodation for a disability, due to the fact that she had

exceeded the number of hours under the salary ordinance. This case does not support the

County’s position because it is distinguishable.



                                               16
       The plaintiff in Jenkins filed a complaint against the County for violation of her

civil rights (42 U.S.C. § 1983), breach of the collective bargaining agreement, and

violation of the Fair Employment and Housing Act. The trial court concluded that

temporary employees whose terms of employment have expired have no right to

reasonable accommodation where that accommodation would extend the employment

beyond the statutory limit. Summary judgment was entered in favor of the County, and

was affirmed on appeal. This court held that the plaintiff was not a regular, permanent

employee, despite the fact she had worked in excess of 1,000 hours, and could be

terminated at any time for any reason. (Jenkins v. County of Riverside, supra, 138

Cal.App.4th at p. 616.) “As a matter of California law, the mere lapse of time that an

employee occupies a position designated as ‘temporary’ is not sufficient, of itself, to

render the employee a de facto regular or permanent employee.” (Id. at p. 615.)

       However, the plaintiff in Jenkins was not employed in a position covered by

collective bargaining unit, such as RSA, so that case did not determine whether or not a

violation of the salary ordinance constituted a violation of the MOU. A case is not

authority for propositions not considered. (Vasquez v. State of California (2008) 45

Cal.4th 243, 254.) RSA’s petition sought a determination that the violation of the salary

ordinance constituted a violation of the MOU, so that issue was presented squarely in the

present case.

       At the hearing on the motion to recover cost of proof, RSA argued that its denial

of the RFA was based on a reasonable belief it would prevail on that issue. While the

trial court disagreed with RSA’s position, it considered the argument legally tenable and

                                             17
determined that RSA did not deny the RFA in bad faith. The court considered everything

that had been submitted in support of the County’s request for cost of proof sanctions but

denied the request.

       The court’s conclusion was a reasonable exercise of the trial court’s discretion.

                                         DISPOSITION

       The judgment is affirmed. Each side will bear its own costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                           P. J.

We concur:


HOLLENHORST
                          J.


RICHLI
                          J.




                                            18
