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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                                              4
       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


                                              5
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


                                              6
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.


                                                7
       “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.




                                               9
       “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.




                                             11
                                     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


                                              12
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).’”].)


                                                13
       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


                                               14
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


                                              16
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


                                             17
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


                                              18
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.)

                                              19
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
