Filed 5/12/16 White v. County of Los Angeles CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


SUSAN WHITE,                                                         B254503

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BS140506)
         v.

COUNTY OF LOS ANGELES et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Luis A.
Lavin, Judge. Affirmed.
         Mark J. Saladino, County Counsel, Joyce Aiello, Assistant County Counsel, Julie
A. Dixon, Deputy County Counsel; Housman & Sosa, Jeffrey M. Hausman, and Larry D.
Stratton for Defendants and Appellants.
         Green & Shinee, Richard A. Shinee, and Audra C. Call for Plaintiff and
Respondent.




                                      ____________________________
       Under Government Code section 3305, which is part of the Public Safety Officers
Procedural Bill of Rights Act (POBRA), a public safety officer has the right to review
and respond to “any comment adverse to his interest entered in his personnel file, or any
other file used for any personnel purposes by his employer.” Respondent Susan White, a
senior district attorney investigator, filed this mandamus action against appellant County
of Los Angeles and other entities and individuals,1 alleging that they violated the POBRA
by failing to disclose memoranda that White’s supervisors had prepared and submitted to
their superiors regarding their concerns about White’s psychological condition and fitness
for duty. The trial court concluded that the County violated Government Code section
3305 in failing to disclose the memoranda and issued a writ of mandate that, among other
directives, enjoined the County from using the memoranda as a basis for ordering White
to undergo a medical reevaluation to assess her fitness for duty. The trial court also
awarded attorney’s fees to White under Code of Civil Procedure section 1021.5. The
County challenges both orders on appeal. We affirm.

           FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
I.     White’s Employment as a Senior District Attorney Investigator
       White was employed as a senior district attorney investigator for the Los Angeles
County District Attorney’s Office (DA) and was assigned to the DA’s Bureau of
Investigation in the Major Fraud Section. In that capacity, White was a peace officer
pursuant to Penal Code section 830.1. The essential functions of her position included
personally serving arrest warrants, making arrests, interrogating suspects, and booking
prisoners. During the relevant time period, White’s direct supervisor was Terisa Carver,


1     For the sake of convenience, we shall collectively refer to the defendants named in
White’s petition for writ of mandate as “the County.”
2     White previously filed a petition for writ of mandate against the County, which
was the subject of an appeal before Division Three of this court. (White v. County of Los
Angeles (2014) 225 Cal.App.4th 690 (White I).) A portion of the factual and procedural
background in the present appeal is taken from this prior opinion.


                                             2
the Supervising Investigator in the Major Fraud Section. Carver in turn reported to Kris
Carter, a Lieutenant in the Major Fraud Section and White’s second-level supervisor.
       In late 2009, White began experiencing emotional difficulties. She was observed
by both her supervisors and coworkers acting erratically in the workplace, exhibiting
dramatic emotional highs and lows. Beginning in April 2010, Carver and Carter
documented their observations and concerns about White’s workplace behavior in a
series of confidential memoranda addressed to their superiors—Alan Jarvis, Captain of
the Fraud and Corporate Division, and Dominick Rivetti, Chief of the DA’s Bureau of
Investigation.3 The memoranda were never placed in White’s personnel file, and she had
no knowledge of their existence at the time they were prepared by her supervisors and
submitted to upper management at the DA’s Bureau of Investigation.
       The memoranda set forth specific instances where White had exhibited poor
judgment or unprofessional conduct in the performance of her job duties. For instance,
the memoranda described two incidents where White made poor tactical decisions during
the execution of a search warrant by suddenly changing her position without warning to
her team members, which jeopardized her safety. The memoranda also described an
incident where White lost her composure and acted unprofessionally while testifying at
trial in a criminal case, and was later accused by the defendant’s attorneys of committing
perjury. In addition, the memoranda detailed many of the personal observations made by
White’s supervisors and coworkers about her behavior. White’s coworkers reported that
they had observed her on several occasions crying, shaking uncontrollably, slurring her
speech, and appearing to be under the influence of a controlled substance. Carver and
Carter recounted instances where White reported to work with unexplained physical
injuries, exhibited drastic mood swings, and expressed difficulty coping with problems in



3      These memoranda consisted of the following: (1) an April 21, 2010 memorandum
from Carter to Jarvis, (2) an April 22, 2010 memorandum from Carter to Rivetti, (3) an
April 22, 2010 memorandum from Carver to Rivetti, (4) a May 7, 2010 memorandum
from Carter to Rivetti, and (5) a May 31, 2011 memorandum from Carver to Rivetti.


                                            3
her personal life. In these memoranda, Carver and Carter advised their superiors that
they believed White was experiencing emotional or psychological issues that were
interfering with her ability to perform her job duties, and that they were concerned White
could pose a risk of harm to herself or others.

II.    The DA’s Efforts to Require White to Appear for a Medical Reevaluation
       In May 2011, White went on a medical leave of absence under the federal Family
Care and Medical Leave Act (FMLA; 29 U.S.C. § 2601 et seq.), which grants eligible
employees 12 weeks of leave due to a serious health condition that renders the employee
unable to perform the functions of the job. Upon the expiration of White’s FMLA leave,
she was placed on an authorized unpaid medical leave at the request of her treating
physician. On September 7, 2011, after White’s physician released her to return to work,
White was placed on a paid administrative leave pending an internal investigation into
allegations of misconduct. The DA later sought to compel White to submit to a medical
reevaluation regarding her fitness for duty.
       Pursuant to Los Angeles County Civil Service Rule 9.07, the DA was required to
obtain the consent of the Occupational Health Programs (OHP), a division within the
County’s Chief Executive Office, before it could order White to undergo a medical
reevaluation. On December 7, 2011, George Mueller, Assistant Chief of the Bureau of
Investigation, submitted a written request to Dr. Sepideh Souris, Chief of Psychological
Services at OHP, seeking OHP’s consent for an order compelling White to appear for a
medical reevaluation. According to Mueller, beginning in early 2010, he became aware
of concerns about White’s emotional and psychological condition, including incidents of
erratic behavior, which he believed affected whether White could safely and effectively
perform her job duties. Mueller specifically became aware of the memoranda that Carver
and Carter had submitted to their superiors about White’s behavior. After consulting
with Chief Rivetti, Mueller decided to seek a medical reevaluation of White because he
was concerned whether White could safely discharge her duties as a peace officer based
on the information he had received. In his request to OHP, Mueller did not attach copies


                                               4
of the memoranda prepared by White’s supervisors. However, in a seven-page letter,
Mueller provided a detailed account of White’s workplace behavior over the prior two
years, including an almost verbatim description of many of the incidents documented by
White’s supervisors in their memoranda.
       After reviewing Mueller’s December 7, 2011 letter, Dr. Souris consented to the
DA’s request for an order compelling White to appear for a medical reevaluation.
According to Dr. Souris, Mueller’s letter detailed the factual basis for the OHP’s decision
to provide consent for the order. The DA thereafter ordered White to appear for a
medical reevaluation scheduled for January 27, 2012, and advised her that if she failed to
appear, it might be cause for disciplinary action. When White did not appear for the
appointment, the DA informed her that her failure to appear was an act of insubordination
that subjected her to discipline and that her appointment had been rescheduled for
February 28, 2012. The DA again advised White that a failure to appear might be cause
for disciplinary action. White did not, however, intend to appear, believing that the
medical reevaluation had been ordered in violation of her rights under the FMLA.

III.   White Files an Action Under the FMLA Based on the County’s Order for a
       Medical Reevaluation

       On February 23, 2012, White filed the action in White I, seeking injunctive relief
or writ of mandate to prohibit the County from requiring her to appear for the medical
reevaluation, or from disciplining her for failing to appear. White argued that ordering
her to submit to a medical reevaluation violated her right under the FMLA to be restored
to employment based solely on her physician’s certification that she was able to return to
work. In May 2012, the County filed an opposition to White’s request for a permanent
injunction and writ of mandate, and supported its opposition with declarations from
several individuals, including Carver, Carter, Rivetti, and Mueller. The County also
attached as exhibits to the declarations copies of the memoranda that Carver and Carter
had prepared and submitted to their superiors about White’s behavior. Upon receipt of
the County’s opposition, White’s counsel provided the documents to White. This was the


                                             5
first time that White saw the memoranda from her supervisors or became aware of the
existence of such documents.
       The trial court in White I issued a permanent injunction and writ of mandate
prohibiting the County from requiring a medical reevaluation of White based on her
conduct prior to September 7, 2011, or from charging White with insubordination for
failing to comply with the reevaluation. The trial court also awarded attorney’s fees to
White under the FMLA. The County filed an appeal in White I.
       In a published decision, the Division Three of this court reversed the judgment and
order for attorney’s fees in favor of White, and remanded the matter to the trial court with
directions to dissolve the injunction, discharge the writ of mandate, and enter judgment in
favor of the County. (White I, supra, 225 Cal.App.4th at p. 708.) The court held that,
once an employee has been returned to work as required by the FMLA, an employer is
not prohibited by the FMLA from requiring a medical reevaluation related to the serious
health condition for which the employee was granted FMLA leave. (Id. at p. 701.) The
court concluded that, because White was in fact returned to work and then placed on a
paid administrative leave, the County did not violate the FMLA in requiring White to
submit to a medical reevaluation regarding her fitness for duty. (Id. at p. 707.)

IV.    White Files The Present Action Under The POBRA Based on the County’s
       Failure to Disclose Adverse Comments in the Memoranda

       On November 21, 2012, White filed the present action against the County, seeking
a writ of mandate and other relief arising out of the County’s use of the five memoranda
prepared by Carver and Carter and the December 7, 2011 letter from Mueller to OHP. In
a first amended petition, White alleged that the County’s reliance on the memoranda as a
basis for requiring her to submit to a medical reevaluation violated Government Code
sections 3305, 3306, and 3306.5 because White was never shown the documents or given
an opportunity to respond to their contents. White sought injunctive relief under
Government Code section 3309.5 and issuance of a writ of mandate under Code of Civil
Procedure section 1085, and specifically requested that the County be ordered to delete


                                             6
the documents from any file used for personnel purposes and to refrain from using any
adverse comments in the documents for any purpose against her. White also sought
statutory penalties for each adverse comment in the documents under Government Code
section 3309.5, and requested attorney’s fees under Government Code section 3309.5 and
Code of Civil Procedure section 1021.5.
       On October 21, 2013, the County filed an opposition to White’s petition for writ of
mandate. Among other arguments, the County contended that the only relief afforded
under the relevant provisions of the POBRA was the right to obtain disclosure of certain
documents and an opportunity to place responses in the personnel file, and that the
documents at issue in this case were disclosed to White in the prior action and White
failed to avail herself of the opportunity to comment on them. The County also argued
that the POBRA does not require disclosure of internal confidential communications
among an employee’s supervisors about the need for the employee to undergo a medical
reevaluation, and that the documents in this case were not used to determine White’s
qualifications for employment because OHP, the agency responsible for conducting a
medical reevaluation, was never provided with any of the documents.
       In a supporting declaration, Mueller stated that the memoranda were prepared by
Carver and Carter as part of their supervisory responsibilities solely “to communicate the
important issue of Ms. White’s psychological status and condition to upper
management.” Mueller also stated that the memoranda “were used as the factual basis
for the DA’s request to [OHP], seeking OHP’s consent for White’s reevaluation,” and
“were an integral part of the DA’s request.” Mueller asserted that the memoranda were
never placed in White’s personnel file, but rather were retained in the “Supervisor’s
Working File, which was not used, and was not intended for use, in determining
Ms. White’s qualifications for employment, promotion, additional compensation or
termination, or any disciplinary action.”4 Mueller further noted that, since White became



4      The declarations submitted by Carver, Carter, Rivetti, and Mueller in White I
similarly stated the memoranda were prepared solely for the purpose of communicating

                                             7
aware of the memoranda during the prior action, she had not made any request to review
the documents or to respond to any comments contained therein.
      Dr. Souris also submitted a declaration supporting the County’s opposition to the
petition for writ of mandate. Dr. Souris explained that, in determining whether a peace
officer meets the necessary psychological standards of the job position, “OHP considers
the department’s request for reevaluation such as that sent by Mr. Mueller as one part of
its evaluation,” but OHP “makes an independent determination, and it includes the review
by its own medical professionals.” Dr. Souris also stated that, once a psychological
reevaluation is completed, OHP “will recommend to the department a variety of possible
actions,” which “are based solely upon the result of the reevaluation, and may for
instance include no action, modification of assignment, or reassignment.” Dr. Souris
confirmed that Mueller’s letter requesting consent for a medical reevaluation of White
did not include any of the memoranda prepared by her supervisors, and that OHP did not
receive or consider such documents in consenting to the reevaluation.
      On December 3, 2013, the trial court granted White’s petition for writ of mandate.
The court concluded that the County had violated Government Code section 3305 in
failing to disclose the memoranda to White because the documents contained adverse
comments about White’s fitness for duty and were used for personnel purposes when the
DA requested OHP’s consent to ordering a medical reevaluation for White. The court
found that the fact that OHP consents to and conducts the medical reevaluation of an
employee did not affect the application of the statute because the DA was the entity
seeking to require White to submit to a medical reevaluation, and the memoranda formed
the factual basis of the DA’s request to OHP for such consent. The court further
concluded that White’s available remedies were not limited to reviewing and responding
to adverse comments in the memoranda within 30 days of their disclosure, and that White

concerns about White’s psychological condition to superiors within the DA’s Bureau
of Investigation, and that the memoranda were never used, or intended to be used,
“to determine Ms. White’s qualifications for employment, promotion, additional
compensation, termination, or disciplinary action.”


                                            8
was entitled to seek injunctive relief under Government Code section 3309.5 to remedy
the violation and to prevent future violations of a similar nature. The court concluded,
however, that White was not entitled to recover statutory penalties or attorney’s fees
under Government Code section 3309.5 because she had not established that the County
acted with malice in creating and maintaining the memoranda.
       Based on its findings and conclusions, the trial court issued a peremptory writ of
mandate that (1) ordered the County to allow White to note her agreement or objection to
the comments and memoranda at issue; (2) enjoined the County from requiring White to
undergo a future medical reevaluation based on the challenged adverse comments and
memoranda or White’s responses to them; and (3) enjoined the County from retaliating
against White based on the adverse comments and memoranda or White’s responses to
them, unless the responses reflect a danger to White, the County, or members of the
public. The court denied White’s request for statutory penalties and attorney’s fees under
Government Code section 3309.5. The court also denied the request for attorney’s fees
under Code of Civil Procedure section 1021.5, but without prejudice to a noticed motion
for attorney’s fees being made after judgment was entered.
       On February 24, 2014, following the entry of judgment, White filed a motion for
attorney’s fees under Code of Civil Procedure section 1021.5. White sought attorney’s
fees in the amount of $31,625, asserting that the writ proceeding arose directly from
White’s exercise of her rights under the POBRA, that White had prevailed on the merits
of the action, and that the trial court’s ruling in the action had conferred a significant
benefit on the general public or a large class of persons. On May 13, 2014, the trial court
granted White’s motion for attorney’s fees. The court found that the action had enforced
an important right affecting the public interest because it required interpretation of the
POBRA and the Los Angeles County Civil Service Rules regarding the County’s duty to
disclose documents that may serve as a basis for affecting a police officer’s employment
status, which was a matter of concern to all peace officers subject to the POBRA or
discipline under the County’s civil service rules. The trial court awarded White $30,845
in attorney’s fees and $812.50 in costs.

                                               9
       The County filed an appeal from the judgment entered in White’s favor on her
petition for writ of mandate, and an appeal from the post-judgment order awarding White
attorney’s fees and costs.5 On July 8, 2014, during the pendency of the appeals, White
voluntarily resigned from her employment with the County.

                                       DISCUSSION
       On appeal, the County challenges the trial court’s order granting White’s petition
for writ of mandate, arguing that the County did not violate the POBRA in failing to
disclose the memoranda concerning White’s fitness for duty and that the injunctive relief
ordered by the trial court was vague and improper. The County also challenges the trial
court’s order awarding attorney’s fees to White under Code of Civil Procedure section
1021.5, asserting that White failed to satisfy the criteria for attorney’s fees under the
statute and the amount of the award was excessive.

I.     Mootness
       As a preliminary matter, we address the County’s argument that its appeal from
the judgment entered in White’s favor has been rendered moot because White voluntarily
resigned from her employment with the County while the appeal was pending. The
County has not requested that its appeal be dismissed, but rather urges us to reverse the
judgment and remand the matter to the trial court with directions to dismiss the action
filed by White. White, on the other hand, asserts that the appeal should not be considered
moot because the issues raised in the action concern matters of public interest that are
likely to recur. White also contends that, if the matter is moot, the proper remedy would
be to dismiss the County’s appeal, not the underlying action.
       As a general rule, an appellate court only decides actual controversies. It is not
the function of the appellate court to render opinions “‘“‘upon moot questions or abstract
propositions, or . . . declare principles or rules of law which cannot affect the matter in



5      At the County’s request, these appeals have been consolidated.


                                              10
issue in the case before it.’”’” (Giles v. Horn (2002) 100 Cal.App.4th 206, 227.) “‘“‘It
necessarily follows that when, pending an appeal from the judgment of a lower court, and
without any fault of the defendant, an event occurs which renders it impossible for this
court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief
whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.’”
[Citations.]’” (Ibid.; see also Lincoln Place Tenants Assn. v. City of Los Angeles (2007)
155 Cal.App.4th 425, 454 [“case becomes moot when a court ruling can have no practical
effect or cannot provide the parties with effective relief”].)
       The County filed appeals from two separate orders: (1) the judgment entered in
White’s favor on the petition for writ of mandate; and (2) the post-judgment award of
attorney’s fees to White under Code of Civil Procedure section 1021.5. The trial court
awarded attorney’s fees to White as the prevailing party in the action, and her subsequent
resignation does not change that status. Moreover, in reviewing the attorney’s fees
award, we must address the merits of her writ petition because “‘the propriety of the trial
court’s ruling on the merits of the action determines whether [the plaintiff] was eligible
for an award of attorney fees [under Code of Civil Procedure section 1021.5] as the
successful party.’” (Indio Police Command Unit Assn. v. City of Indio (2014) 230
Cal.App.4th 521, 534; see also Save Our Residential Environment v. City of West
Hollywood (1992) 9 Cal.App.4th 1745, 1750-1751 [where award of attorney’s fees under
Code of Civil Procedure section 1021.5 “depends on the propriety of the trial court’s
ruling on the merits of the action, the appeal is not moot”].) In addition, we agree with
White that the question of whether the POBRA requires a law enforcement agency to
disclose to a peace officer internal memoranda concerning his or her fitness for duty
raises an issue of continuing public interest that is likely to recur. (Building a Better
Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 867 [“[w]hen an
action involves a matter of continuing public interest that is likely to recur, a court may
exercise an inherent discretion to resolve that issue, even if an event occurring during the
pendency of the appeal normally would render the matter moot”].)



                                              11
       However, although we are exercising our discretion to address whether the County
violated the POBRA in failing to disclose the challenged memoranda to White, we
decline to consider whether the injunctive relief ordered by the trial court to remedy the
alleged violation was proper. In issuing the writ of mandate, the trial court ordered the
County to allow White to respond to the adverse comments contained in the memoranda,
enjoined the County from requiring White to undergo a future medical reevaluation based
on the adverse comments in the memoranda or White’s responses to them, and enjoined
the County from retaliating against White based on the adverse comments or White’s
responses, unless the responses reflected a danger to White, the County, or members of
the public. The injunctive relief ordered by the trial court thus related directly to the
employment relationship between the County and White going forward. Given that
White is no longer employed by the County, the question of whether the scope of
injunctive relief ordered was appropriate has been rendered moot.

II.    Writ of Mandate for Violation of the POBRA
       A.     Standard of Review
       “In reviewing a trial court’s decision on a petition for writ of mandate, we uphold
the trial court’s factual findings if supported by substantial evidence. [Citation.] We,
however, independently review the court’s decisions on questions of law, including the
trial court’s interpretation of statutory language, such as POBRA. [Citations.]” (Barber
v. Department of Corrections & Rehabilitation (2012) 203 Cal.App.4th 638, 644.) In
cases where “‘the facts are undisputed and the issue involves statutory interpretation, we
exercise our independent judgment and review the matter de novo. [Citation.]’
[Citation.]” (McMahon v. City of Los Angeles (2009) 172 Cal.App.4th 1324, 1331.)
       The rules governing statutory interpretation are well-settled. “‘“[W]e begin with
the plain language of the statute, affording the words of the provision their ordinary and
usual meaning and viewing them in their statutory context. . . .” [Citations.] The plain
meaning controls if there is no ambiguity in the statutory language.’ [Citation.] In
interpreting a statutory provision, ‘our task is to select the construction that comports


                                              12
most closely with the Legislature’s apparent intent, with a view to promoting rather than
defeating the statutes’ general purpose, and to avoid a construction that would lead to
unreasonable, impractical, or arbitrary results.’ [Citation.]” (Poole v. Orange County
Fire Authority (2015) 61 Cal.4th 1378, 1384-1395 (Poole).)

       B.     Violation of Government Code Section 3305
       The POBRA provides public safety officers with certain rights concerning their
employment, including rights with respect to their personnel files. Government Code
section 3305 states, in pertinent part, that “[n]o public safety officer shall have any
comment adverse to his interest entered in his personnel file, or any other file used for
any personnel purposes by his employer, without the public safety officer having first
read and signed the instrument containing the adverse comment indicating he is aware of
such comment.” Section 3306 provides that “[a] public safety officer shall have 30 days
within which to file a written response to any adverse comment entered in his personnel
file,” and that “[s]uch written response shall be attached to, and shall accompany, the
adverse comment.” Section 3306.5 entitles a public safety officer, upon reasonable
request, “to inspect personnel files that are used or have been used to determine that
officer’s qualifications for employment, promotion, additional compensation, or
termination or other disciplinary action.”
       Section 3309.5 of the Government Code sets forth the remedies available to a
public safety officer for a violation of one or more of these provisions. Subdivision (c) of
the statute provides that “[i]n any case where the superior court finds that a public safety
department has violated any of the provisions of this chapter, the court shall render
appropriate injunctive or other extraordinary relief to remedy the violation and to prevent
future violations of a like or similar nature, including, but not limited to, the granting of a
temporary restraining order, preliminary injunction, or permanent injunction prohibiting
the public safety department from taking any punitive action against the public safety
officer.” (Gov. Code, § 3309.5, subd. (c).)




                                              13
       In County of Riverside v. Superior Court (2002) 27 Cal.4th 793 (Riverside), the
California Supreme Court addressed the scope of documents subject to disclosure under
Government Code section 3305. The Court specifically considered whether a law
enforcement agency must disclose to a probationary peace officer confidential documents
that were prepared in the course of a routine background investigation of the officer for
the purpose of determining whether to continue his employment. The Court concluded
the language of the POBRA should be construed broadly to include any document that
“‘“may serve as a basis for affecting the status of [a peace officer’s] employment,”’”
regardless of whether it is kept in a file separate from the officer’s personnel file. (Id. at
p. 802.) In “reject[ing] the assertion that a law enforcement agency’s background
investigation of a peace officer during probationary employment is somehow not a
personnel matter subject to the [POBRA],” the Court reasoned that the materials in the
file at issue “unquestionably ‘“may serve as a basis for affecting the status of the
employee’s employment”’ [citation]; indeed, that is the very purpose of the background
investigation.” (Ibid.) The Court further concluded that where “the adverse comments
arise out of an investigation, the very purpose of which was to assess the employee’s
qualifications for continued employment, . . . the [POBRA] applies, whether or not the
comments are prepared and filed prior to termination.” (Id. at p. 803.)
       More recently, the California Supreme Court considered the meaning and scope of
Government Code section 3255, a provision in the Firefighters Procedural Bill of Rights
Act (FBRA; Gov. Code § 3250 et seq.) that is substantially similar to the POBRA
provision at issue here.6 (Poole, supra, 61 Cal.4th 1378.) In Poole, the Supreme Court



6       Government Code section 3255 provides that “[a] firefighter shall not have any
comment adverse to his or her interest entered in his or her personnel file, or any other
file used for any personnel purposes by his or her employer, without the firefighter
having first read and signed the instrument containing the adverse comment indicating
he or she is aware of the comment.” As the Supreme Court observed, this statute “is
virtually identical to [the] statute applicable to public safety officers ([Gov. Code,]
§ 3305), and it establishes rights regarding adverse comments that are very similar
to those that have been granted to teachers. (Ed. Code, § 44031, subd. (b)(1).)

                                              14
addressed whether Government Code section 3255 provides an employee with “the right
to review and respond to negative comments in a supervisor’s daily log, consisting of
notes that memorialize the supervisor’s thoughts and observations concerning an
employee, which the supervisor uses as a memory aid in preparing performance plans
and reviews.” (Id. at p. 1382.) In that case, the supervisor and author of the daily log
was the only person who had access to it. Although the supervisor discussed some of the
incidents described in the log with his superiors, he did not permit them to review the log
itself. Additionally, to the extent that the supervisor used any of the adverse comments
contained in the log in reviewing the employee’s performance, those comments were
disclosed to the employee as part of a performance plan or review before being entered
into his personnel file. (Id. at p. 1384.) The question before the Supreme Court was
whether “negative comments contained in a document memorializing a supervisor’s own
thoughts and observations that is not itself made available to or shared with anyone else”
constitutes a “file ‘used for any personnel purposes by his or her employer.’” (Ibid.)
       In construing the scope of Government Code section 3255, the Supreme Court in
Poole determined that “the Legislature was not concerned with any and all files that
might in some sense be connected with personnel matters; the Legislature was, rather,
specifically concerned with ‘personnel files that are used or have been used to determine
th[e] firefighter’s qualifications for employment, promotion, additional compensation, or
termination or other disciplinary action.” (Poole, supra, 61 Cal.4th at pp. 1385-1386.)
The Court thus concluded that the statutory phrase “‘any other file used for any personnel
purposes by his or her employer’ . . . should be interpreted to encompass any written or
computerized record that, although not designated a personnel file, . . . may be used by
the employer to make decisions about promotion, discipline, compensation, and the like.”
(Id. at p. 1386.) The Court further concluded that, as recognized in cases applying the
POBRA and other similar statutes, “a document containing adverse comments may come


Consequently, cases interpreting those statutes are relevant to [the] interpretation
of [Government Code] section 3255.” (Poole, supra, 61 Cal.4th at p. 1386, fn. 2.)


                                             15
within the disclosure requirement even if not formally entered into the official personnel
file, if the document was either (1) maintained in such a manner that it would be available
to those making personnel decisions in the future, or (2) was actually used by the
employer in making a personnel decision, or both.” (Id. at p. 1387.) Applying this
statutory interpretation to the case before it, the Court in Poole held that “because the log
was not shared with or available to anyone other than the supervisor who wrote the log, it
does not constitute a file ‘used for any personnel purposes by his or her employer’ and
[Government Code] section 3255 does not apply.” (Id. at p. 1381.)
       In reaching its holding in Poole, the Supreme Court found its prior decision in
Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703 (Miller) distinguishable. In
Miller, the Court held that, under Education Code section 44031, a school principal was
entitled to review and respond to “derogatory written material compiled and maintained
by a school district even though the material has not been properly placed in his
personnel file” because it had been used by the school board in its decision to transfer the
principal to a teaching position. (Id. at p. 707.) The principal’s supervisor had used his
“‘personal notes and calendar’” to dictate a summary of “‘meetings, contacts,
occurrences, and events’” involving the principal, which were then transcribed into 20
memoranda that were submitted to the school board for its use in deciding whether to
reassign the principle to a teaching position. (Id. at p. 711.) The school board “received
[these] confidential memoranda without first allowing [the principal] the opportunity to
correct any inaccurate derogatory information contained therein.” (Id. at p. 714.) The
Court in Miller rejected the school board’s argument that these memoranda were never
“‘entered or filed’” in the principal’s personnel file, concluding that an employer “may
not avoid the requirements of the statute by maintaining a ‘personnel file’ for certain
documents relating to an employee,” while “segregating elsewhere under a different
label materials which may serve as a basis for affecting the status of the employee’s
employment.” (Id. at pp. 712-713.) In distinguishing Miller, the Court in Poole noted
that the adverse comments in Miller were contained in documents available to those
making personnel decisions about the principal. (Poole, supra, at p. 1389.) In contrast,

                                             16
the supervisor in Poole “did not share his log with anyone; he merely discussed with
others some of the incidents that he had observed and also recorded in his log.” (Ibid.)
Because “there was no evidence that [the] log would be available to anyone making
personnel decisions in the future,” it did not fall within the scope of the statute. (Ibid.)
       Applying the reasoning in Riverside, Poole, and Miller to the present case, we
conclude that the memoranda that were prepared by White’s supervisors and submitted to
their superiors regarding their observations and concerns about White’s fitness for duty
constituted a file that was “used for any personnel purposes by [the] employer” within the
meaning of Government Code section 3305. It is undisputed that the memoranda were
transmitted to members of upper management at the DA’s Bureau of Investigation.
Accordingly, as in Riverside and Miller, the documents were available to individuals with
the authority to make personnel decisions about White’s employment status, including
decisions about her qualifications for employment, promotion, compensation, and
discipline. It is also undisputed that the memoranda were actually used by management
in making a formal request to OHP for consent to ordering White to submit to a medical
reevaluation. Indeed, Mueller specifically stated in his declaration that the memoranda
“were used as the factual basis for the DA’s request to [OHP]” and “were an integral part
of the DA’s request.” Dr. Souris likewise stated in a declaration that Mueller’s December
7, 2011 letter, which summarized the contents of the memoranda, “detail[ed] the factual
basis ultimately leading to [Dr. Souris] providing the DA with OHP’s ‘consent’” to order
White’s reevaluation. The fact that Dr. Souris did not receive copies of the memoranda
with the DA’s request is not determinative of whether these documents came within the
scope of Government Code section 3305. The disclosure required by the statute was
triggered when White’s supervisors, Carter and Carver, transmitted the memoranda to
upper management at the Bureau of Investigation, who could then use the memoranda to
seek consent for ordering a medical reevaluation of White or to make other personnel
decisions affecting White’s employment status.




                                              17
       The County argues that the memoranda were not subject to disclosure under
Government Code section 3305 because they were not actually used to determine White’s
qualifications for employment, promotion, compensation, or disciplinary action, but
rather were used for the sole purpose of communicating matters of concern about White’s
psychological condition to upper management. However, the DA based its decision to
seek a medical reevaluation for White on the information detailed in the memoranda
about White’s psychological condition, and as the trial court observed, the results of a
peace officer’s medical reevaluation can lead to significant changes in his or her
employment status. Under the Los Angeles County Civil Service Rules, an employee
who is found to be partially or fully incapacitated following a medical reevaluation may
be subject to a range of employment actions, including a modification of duties, a change
of classification or reduction in position, or termination if there is no suitable position
that the employee can perform satisfactorily. (L.A. County Civil Service Rules, rule
9.08.) Because Government Code section 3305 applies to any document that “‘“may
serve as a basis for affecting the status of [a peace officer’s] employment”’” (Riverside,
supra, 27 Cal. 4th at p. 802), White had the right to review and respond to documents that
formed the basis of the DA’s request for a medical reevaluation.
       The County also asserts that the memoranda could not have been used to affect
White’s employment status because she failed to comply with the DA’s order to appear
for her medical reevaluation. However, even if the reevaluation ordered for White did
not result in any change in her employment status due to her refusal to appear, the
memoranda would have remained available to upper management at the Bureau of
Investigation, and thus, could have been used in future personnel decisions affecting
White’s employment. As the Court of Appeal observed in Sacramento Police Officers
Assn. v. Venegas (2002) 101 Cal.App.4th 916 (Venegas), “the broad language employed
by the Legislature in sections 3305 and 3306 does not limit their reach to comments that
have resulted in, or will result in, punitive action against an officer. . . . [E]ven though an
adverse comment does not directly result in punitive action, it has the potential of
creating an adverse impression that could influence future personnel decisions concerning

                                              18
an officer, including decisions that do not constitute discipline or punitive action.” (Id. at
p. 926.) Therefore, “regardless of whether the employing agency contemplates or has
rejected further action regarding an adverse comment made against a peace officer
employee, the officer is entitled to disclosure of the comment if it is entered in an
agency file used for a personnel purpose.” (Ibid.; see also Seligsohn v. Day (2004) 121
Cal.App.4th 518, 530 [in determining whether a document is subject to disclosure under
Government Code section 3305, “what is relevant is not whether the document will serve
or has served as a basis for disciplinary action but whether it may serve such a
function”].)
       The County further contends that the memoranda did not fall within the scope of
Government Code section 3305 because the documents were deemed “confidential” and
maintained in a separate “Supervisor’s Working File” rather than in White’s personnel
file. In support of this claim, the County notes under Government Code section 3303,
which prescribes the protections that apply when a peace officer is subject to certain
administrative interrogations, an officer is entitled to “any reports or complaints made
by investigators or other persons, except those which are deemed by the investigating
agency to be confidential.” (Gov. Code, § 3303, subd. (g).) However, as the Court of
Appeal recognized in Venegas, Government Code section 3303, subdivision (g) “does
not give [an employer] an absolute right to deem any and all information confidential and
to assert such confidentiality against any and all requests for access. It applies in the
circumstances set forth in [Government Code] section 3303, i.e., with respect to the
interrogation of a peace officer under investigation.” (Venegas, supra, 101 Cal.App.4th
at p. 923.) Because the County did not seek to withhold the memoranda during the
course of an administrative interrogation of White, the confidentiality limitation set forth
in Government Code section 3303 does not apply. Additionally, the fact that the County
maintained the memoranda in a separate file labeled “Supervisor’s Working File” is of no
import. As the Supreme Court succinctly stated in Riverside, “the label placed on the . . .
file is irrelevant.” (Riverside, supra, 27 Cal.4th at p. 802; see also Venegas, supra, at
p. 928 [“the law does not permit a law enforcement agency to shield [an adverse]

                                             19
comment from a peace officer employee by purporting to segregate it from other
personnel files”]; Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 251 [“compliance with
Government Code sections 3305 and 3306 is not excused simply because the complaint is
placed in a file separate from the personnel file”].) Instead, the relevant inquiry is
whether the document “was actually used by the employer in making a personnel
decision” or “maintained in such a manner that it would be available to those making
personnel decisions in the future.” (Poole, supra, 61 Cal.4th at p. 1387.) Given that the
memoranda were prepared for and transmitted to upper management at the DA’s Bureau
of Investigation, the documents inarguably would be available to those making personnel
decisions about White’s employment status in the future.
       The County claims that, even if the memoranda were subject to disclosure under
Government Code section 3305, White is not entitled to seek any relief under the statute
because she received copies of the memoranda during the course of White I and did not
file a response to any adverse comments contained in the documents within 30 days of
her receipt, as required by Government Code section 3306. This argument is unavailing.
Government Code section 3305 provides an employee with the right to review an adverse
comment before that comment is entered into a file used for personnel purposes. (Gov.
Code, § 3305 [“[n]o public safety officer shall have any comment adverse to his interest
entered in . . . any other file used for any personnel purposes by his employer, without the
public safety officer having first read and signed the instrument containing the adverse
comment”]; see also Poole, supra, 61 Cal.4th at p. 1390 [timing requirement in FBRA
provision requiring disclosure of adverse comments in file used for personnel purposes
“is the requirement that the employee have the opportunity to review the adverse
comment before it is actually entered into the file”].) In this case, it is undisputed that the
memoranda were not disclosed to White before they were placed in the “Supervisor’s
Working File,” submitted to upper management at the DA’s Bureau of Investigation,
or used by the DA as the basis for seeking consent to order a medical reevaluation for
White. As the Supreme Court noted in Riverside, it would “permit an inappropriate end
run around the [POBRA]” if a law enforcement agency could withhold disclosure of

                                              20
adverse comments concerning an employee until after those comments were used by the
agency for personnel purposes. (Riverside, supra, 27 Cal.4th at p. 803; see also Aguilar
v. Johnson, supra, 202 Cal.App.3d at pp. 250-251 [police chief’s belated compliance with
Government Code sections 3305 and 3306 did not preclude officer from seeking judicial
relief based on prior violations of the statutes].) Accordingly, the County’s belated
disclosure of the memoranda during the course of White I did not preclude White from
enforcing her rights under Government Code section 3305 in a court of law.
       For these reasons, the trial court did not err in concluding that the County violated
Government Code section 3305 in failing to disclose the memoranda to White, and that
White was entitled to seek judicial relief under Government Code section 3309.5 based
on the County’s POBRA violation.

III.   Attorney’s Fees Under Code of Civil Procedure Section 1021.5
       A.     Standard of Review
       An award of attorney’s fees under Code of Civil Procedure section 1021.5
generally is reviewed on appeal for an abuse of discretion. (Indio Police Command Unit
Assn. v. City of Indio, supra, 230 Cal.App.4th at p. 541.) “‘[W]ith respect to the amount
of fees awarded, there is no question our review must be highly deferential to the views
of the trial court.’ [Citations.]” (Concepcion v. Amscan Holdings, Inc. (2014) 223
Cal.App.4th 1309, 1309.) As our Supreme Court has observed, “‘[t]he “experienced trial
judge is the best judge of the value of professional services rendered in his court, and
while his [or her] judgment is of course subject to review, it will not be disturbed unless
the appellate court is convinced that it is clearly wrong” -- meaning that it abused its
discretion. [Citations.]’” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

       B.     Statutory Criteria for an Attorney’s Fee Award
       Code of Civil Procedure section 1021.5 provides in relevant part: “Upon motion,
a court may award attorneys’ fees to a successful party against one or more opposing
parties in any action which has resulted in the enforcement of an important right
affecting the public interest if: (a) a significant benefit, whether pecuniary or

                                              21
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.”
       Accordingly, “‘[t]o obtain attorney fees under [Code of Civil Procedure] section
1021.5, the party seeking fees must show that the litigation: “‘“‘(1) served to vindicate an
important public right; (2) conferred a significant benefit on the general public or a large
class of persons; and (3) [was necessary and] imposed a financial burden on plaintiffs
which was out of proportion to their individual stake in the matter.’ [Citation.]”
[Citation.]’” [Citations.] Because the statute states the criteria in the conjunctive, each
must be satisfied to justify a fee award. [Citations.]’ [Citation.]” (City of Maywood v.
Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 429.)
       With respect to the first element, the California Supreme Court has recognized that
the enforcement of procedural rights in the POBRA serves to vindicate an important right
affecting the public interest. (Baggett v. Gates (1982) 32 Cal.3d 128, 143 (Baggett).) In
Baggett, four police officers sued the City of Los Angeles and its police chief because
they had been reassigned to lower paying positions after an internal investigation into
alleged misconduct without being given an opportunity for an administrative appeal.
(Id. at p. 133.) The Supreme Court held that Government Code sections 3303 and 3304
provide a right to an administrative appeal to police officers who are reassigned to lower
paying positions, and the officers who sued to enforce that right were entitled to an award
of attorney’s fees under Code of Civil Procedure section 1021.5. (Id. at pp. 141-143.) In
considering whether the officer’s action had resulted in the enforcement of an important
public right, the Court specifically concluded: “Plaintiffs’ action resulted in securing for
themselves and many others the basic rights and protections of the [POBRA]. . . . [T]hese
rights and protections are matters of statewide concern. It follows that the rights
vindicated by plaintiffs are sufficiently ‘important’ to justify an attorney fee award.”
(Id. at p. 143.) Cases following Baggett have similarly concluded that lawsuits enforcing
procedural rights in the POBRA enforce important public rights for purposes of awarding

                                              22
attorney’s fees under Code of Civil Procedure section 1021.5. (See, e.g., Robinson v.
Chowchilla (2011) 202 Cal.App.4th 382, 395-396 [enforcement of right to administrative
appeal prior to punitive action under Government Code section 3304]; Otto v. Los
Angeles Unified School District (2003) 106 Cal.App.4th 328, 335-336 [same]; Aguilar v.
Johnson, supra, 202 Cal.App.3d at p. 253 [enforcement of right to review and respond to
citizen complaints placed in personnel file under Government Code sections 3305 and
3306]; Riverside Sheriffs’ Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, 422
[enforcement of procedural protections afforded during interrogation under Government
Code section 3303]; Mounger v. Gates (1987) 193 Cal.App.3d 1248, 1259 [same].)
       With respect to the second element, the Supreme Court in Baggett concluded that
an action to enforce procedural rights under the POBRA also confers a significant benefit
on the general public by helping “to maintain stable relations between peace officers and
their employers and thus to assure effective law enforcement. . . .” (Baggett, supra, 32
Cal.3d at p. 143.) Following Baggett, courts repeatedly have recognized that a significant
benefit is conferred on the general public or a large group of persons when the procedural
protections contained in the POBRA are enforced. (See, e.g., Robinson v. Chowchilla,
supra, 202 Cal.App.4th at p. 399; Riverside Sheriffs’ Assn. v. County of Riverside, supra,
152 Cal.App.4th at p. 422; Otto v. Los Angeles Unified School District, supra, 106
Cal.App.4th at pp. 335-336; Aguilar v. Johnson, supra, 202 Cal.App.3d at p. 253;
Mounger v. Gates, supra, 193 Cal.App.3d at p. 1259.) Indeed, “‘“[t]he rights and
protections afforded by [POBRA] benefit not only public safety officers but the public in
general. By promoting stable employer-employee relations, [POBRA] fosters a solid and
secure public safety work force. [Citation.] It also encourages peace officer cooperation
in investigations of possible wrongdoing. [Citation.] Alleged violations of [POBRA]
therefore implicate duties ‘which inure[] to the benefit of the public at large’ [citation],
transcending the employer-employee relationship….” [Citation.]’ [Citations.]”
(Riverside Sheriffs’ Assn. v. County of Riverside, supra, at p. 422.)




                                              23
       With respect to the third element regarding the necessity and financial burden of
private enforcement, the Supreme Court in Baggett stated: “[T]he record before this
court indicates that the financial burden this suit placed on plaintiffs was out of
proportion to their personal stake in the case. By their action, plaintiffs have secured the
enforcement of basic procedural rights, . . . However, enforcement of these procedural
rights may well not result in any pecuniary benefit to plaintiffs themselves. [Citation.]. . .
[¶] This court is satisfied that plaintiffs’ action meets the requirements of section 1021.5
of the Code of Civil Procedure.” (Baggett, supra, 32 Cal.3d at p. 143.) Other courts
have likewise held that a plaintiff is entitled to attorney’s fees for enforcing procedural
rights under the POBRA where the cost of prevailing in the action ultimately transcends
the plaintiff’s personal interest in the litigation. (See, e.g., Riverside Sheriffs’ Assn. v.
County of Riverside, supra, 152 Cal.App.4th at pp. 422-433; Otto v. Los Angeles Unified
School District, supra, 106 Cal.App.4th at pp. 335-336; Henneberque v. City of Culver
City (1985) 172 Cal.App.3d 837, 846-847.)
       In this case, we conclude that the trial court did not abuse its discretion in
determining that White was entitled to an award of attorney’s fees under Code of Civil
Procedure section 1021.5. White’s action to enforce the procedural rights afforded to
peace officers under the POBRA to review and respond to adverse comments in
personnel records served to vindicate an important right affecting the public interest and
conferred a significant benefit on a large group of persons. Throughout the litigation, the
County maintained that internal memoranda shared among management about a peace
officer’s fitness for duty were not subject to disclosure under the POBRA so long as
the documents were marked confidential and kept in a separate file from the officer’s
personnel file. While the trial court’s ruling that such materials must be disclosed under
the POBRA conferred a direct non-pecuniary personal benefit on White, the outcome of
the litigation also benefits other peace officers who may be the subject of similar internal
documents containing adverse comments about the officers’ fitness for duty.




                                               24
       Additionally, the trial court reasonably could find that the cost of litigating the
action to a successful conclusion transcended White’s personal interest in the matter. The
question of whether the County could order White to submit to a medical reevaluation
based on the documented concerns about her fitness for duty has now been the subject of
two writ proceedings filed by White and two appeals filed by the County. Although
White successfully enforced the basic procedural rights guaranteed under Government
Code sections 3305 and 3306 by prosecuting the present action and obtaining injunctive
relief, she did not secure any direct pecuniary benefit for herself through such
enforcement, as her request for statutory penalties under the POBRA was denied. On this
record, the trial court reasonably concluded that White satisfied each of the enumerated
criteria in Code of Civil Procedure section 1021.5, and thus, was entitled to an attorney’s
fee award.
       In arguing that the trial court erred in awarding attorney’s fees, the County asserts
that the litigation did not result in any novel interpretation of the POBRA that could
benefit the public at large, but rather in the application of an already existing right under
Government Code section 3305 to documents pertaining to White. However, “‘[t]he fact
that litigation enforces existing rights does not mean that a substantial benefit to the
public cannot result. Attorney fees have consistently been awarded for the enforcement
of well-defined, existing obligations. [Citations.]’ [Citation.]” (Otto v. Los Angeles
Unified School District, supra, 106 Cal.App.4th at p. 335.) Because the County
vigorously denied that the documents were subject to disclosure under Government Code
section 3305, White had to file suit to enforce her rights under the statute, which justified
an attorney’s fee award. (Riverside Sheriffs’ Assn. v. County of Riverside, supra, 152
Cal.App.4th at p. 422.) The County also contends that an award of attorney’s fees was
not warranted because the primary effect of the litigation was the vindication of White’s
own personal rights and economic interests. However, “where each of the criteria is met,
the fact the primary effect of the action was to vindicate a plaintiff’s personal economic
interests does not foreclose an award of attorney fees” under Code of Civil Procedure
section 1021.5. (Robinson v. Chowchilla, supra, 202 Cal.App.4th at p. 399.) In this case,

                                              25
White satisfied each of the statutory criteria and there were no special circumstances
rendering an award of attorney’s fees unjust. (Id. at p. 391 [“attorney fees must be
awarded when the statutory criteria are met unless special circumstances render such an
award unjust”].) As the prevailing party in the action, White was therefore entitled to an
attorney’s fee award under Code of Civil Procedure section 1021.5.

       C.     Amount of Attorney’s Fee Award
       The County also challenges the amount of attorney’s fees awarded by the trial
court on the ground that White’s request for attorney’s fees was excessive and duplicative
of work that was performed in litigating the prior action in White I. We see no abuse of
discretion in the trial court’s determination of the attorney’s fee award. The trial court
awarded White $30,845 in attorney’s fees based on the lodestar method, which was
slightly less than the amount of fees requested by White. In support of the motion for
attorney’s fees, White’s counsel submitted a declaration stating that she had reviewed the
attached attorney’s fees bills, and that “[a]ll the time reflected on the attached bills was
spent in connection with the present litigation only.” While the County speculates that
White’s attorneys should have spent less time on discovery given the factual similarities
between the present action and White I, the County has failed to demonstrate that the
amount of time expended was unreasonable. The record further reflects that the trial
court carefully reviewed the bills submitted by White’s counsel, reduced the amount
requested by $780 for attorney conferences that appeared to be duplicative, and then
determined that, apart from that single reduction, the hourly rates requested and total
number of hours expended were reasonable and necessary. The trial court’s award of
attorney’s fees based on the hours reasonably spent by White’s attorneys in litigating the
action to a successful conclusion did not constitute an abuse of discretion.




                                              26
                                    DISPOSITION

      The judgment is affirmed. White shall recover her costs on appeal.




                                                ZELON, Acting P. J.



We concur:




      SEGAL, J.



                          
      BLUMENFELD, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           27
