Filed 8/21/15 Contra Costa County Deputy Dist. Attorneys’ Assn. v. County of Contra Costa, HR Dept. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


CONTRA COSTA COUNTY DEPUTY
DISTRICT ATTORNEYS’
ASSOCIATION,
         Plaintiff and Appellant,
                                                                          A140669
v.
COUNTY OF CONTRA COSTA, HUMAN                                             (Contra Costa County
RESOURCES DEPARTMENT,                                                      Super. Ct. No. MSN 12-0315)
         Defendant and Respondent.


         This is an appeal from an order denying the motion for attorney fees brought by
appellant Contra Costa County Deputy District Attorneys’ Association. Appellant
brought this motion pursuant to Code of Civil Procedure section 1021.5 after prevailing
against respondent County of Contra Costa Human Resources Department (County) in a
challenge to the County’s hiring of a particular deputy district attorney. For reasons set
forth below, we affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND
         On February 28, 2012, appellant filed a petition for writ of mandate (petition)
alleging the County had violated its mandatory duty to employ deputy district attorneys
in accordance with its personnel management regulations (PMRs). The PMRs were
adopted in 1982 by the County’s Board of Supervisors and are binding on the County
with respect to personnel matters. According to the petition, the County violated PMR
601 and PMR 608 when, in early 2012, it hired Laura Delehunt as Deputy District

                                                             1
Attorney-Basic Level.1 PMR 601 provides that the “Director of Human Resources shall
establish and maintain employment lists” of eligible candidates for particular job
classifications.2 PMR 608, in turn, requires the County to continue in effect an
employment list established by the County’s Director of Human Resources (Director) for
a period of no less than six months and no more than two years from the date the list is
promulgated, except that upon the request of the appointing authority, the Director may
continue a list for up to one additional year or until a new list is promulgated for the
class. According to the petition, the County improperly hired Delehunt from an
employment list promulgated in 2008 (2008 List) that had expired by the time of her
2012 hiring by operation of PMR 608, rendering the County’s action improper.3 Based
upon this alleged violation of PMR 608, appellant sought the writ of mandate to compel
the County “to cease and desist in the hiring of any potential employees listed on the
expired 2008 employment list, and hereafter follow the hiring mandates of the PMR.”
       On April 27, 2012, the County answered the petition. In doing so, the County
admitted, among other things, that Delehunt was on the 2008 List and was not on any


1
       There are three classifications of deputy district attorney: fixed term, basic and
advanced. The fixed-term classification is the entry level position where the attorney is
hired for a 36-month term, after which the employment terminates unless the attorney is
hired at the basic level. The basic-level classification is, in turn, a permanent
employment position.
2
       Pursuant to PMR 605, the Director is authorized to conduct a promotional exam to
evaluate employees desiring to be considered for a promotional opportunity. Based upon
the results of this exam, the Director may then prepare an employment list in order to hire
an employee for the opportunity. Alternatively, PMR 503 authorizes the Director to
promote certain employees working in “flexibly staffed classification[s]” without taking a
competitive exam. In these cases, the appointing authority (e.g., a department head)
determines based upon its own criteria and without preparation of an employment list
whether to recommend a particular employee to the Director for promotion. There is no
allegation in this case that Delehunt was promoted to deputy district attorney, basic level,
pursuant to PMR 503. Rather, she was hired from the 2008 List.
3
       Cancellation or expiration of an employment list is also governed by PMR 608.1,
which provides: “Lists or any remaining portions of lists, which have not been extended
by the [Director], shall be automatically cancelled on the specified expiration date.”


                                              2
subsequent employment list for Deputy District Attorneys, Basic-Level. According to
the County, no employment lists for the basic-level classification were promulgated after
the 2008 List, which expired on May 17, 2009.
       The County thereafter produced evidence, including a declaration from the
Director, Ted Cwiek, stating that he hired Delehunt from the 2008 List based upon a
special request by the District Attorney’s Office to revive and extend the 2008 List.
Specifically, on September 28, 2011, the District Attorney’s Office made this request in
writing to the Director, explaining that an immediate need had arisen for a basic level
deputy district attorney following the retirement of several advanced level deputy district
attorneys earlier that year that had caused an experience gap in the Office. The County
argued based upon this evidence that it was authorized to grant the District Attorney’s
special request by PMR 211, which, according to the County, gives the Director
discretion to make decisions (including hiring decisions) “based on a rational analysis of
the specific circumstances.” In this instance, the County argued, the Director could
reasonably decide to revive and extend the 2008 List after concluding it was the most
expedient way to meet the operational needs of the District Attorney’s Office.
       On February 27, 2013, the trial court granted appellant’s petition in part, ordering
the County to “cease and desist from hiring Deputy District Attorneys by means of re-
opening and extending previously expired employment lists and adhere to its ministerial
duty to follow the hiring procedures set forth in Section 608 of the PMR [governing the
duration of employment lists].” In doing so, the trial court found the County lacked
“discretion to determine to extend or revive a list beyond the specifically defined
parameters.” The trial court declined, however, to grant appellant’s broader request to
order “the County . . . follow its PMRs.” A peremptory writ of mandate (writ), consistent
with the trial court’s order, was thus issued on March 20, 2013. Appellant neither sought
nor received any award of damages in conjunction with this writ relief.
       On May 24, 2013, appellant moved for an award of attorney fees pursuant to Code
of Civil Procedure section 1021.5. Following a contested hearing, the trial court denied
this request on November 28, 2013, concluding appellant’s writ proceedings had not


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vindicated an important right affecting the public interest as required by the statute. The
trial court reached this conclusion after finding “no evidence of a widespread practice
within county employment of the reopening and extending of employment lists in
violation of the County’s [PMRs].” This appeal of the trial court’s ruling followed.

                                        DISCUSSION
       Appellant contends the trial court erred in denying its request pursuant to Code of
Civil Procedure section 1021.5 (hereinafter, section 1021.5) for an award attorney fees to
cover the financial burden it incurred in obtaining writ relief. Section 1021.5 codifies the
private attorney general theory. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317-
318; Roybal v. Governing Bd. of Salinas City Elem. School Dist. (2008) 159 Cal.App.4th
1143, 1147) To recover attorney fees under the statute, the successful party must prove
each of the following: (1) its lawsuit has resulted in the enforcement of an important
right affecting the public interest; (2) a significant benefit, whether pecuniary or
nonpecuniary, has been conferred on the general public or a large class of persons; and
(3) the necessity and financial burden of private enforcement make the award
appropriate. (§ 1021.5; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23
Cal.3d 917, 933-935 [Woodland Hills].)
       The trial court, when considering such motion, must “ ‘utiliz[e] its traditional
equitable discretion (now codified in § 1021.5) . . . [to] realistically assess the litigation
and determine, from a practical perspective’ [citation] whether the statutory criteria have
been met [citation].” (Slayton v. Pomona Unified School Dist. (1984) 161 Cal.App.3d
538, 545.) “ ‘On review of an award of attorney fees after trial, the normal standard of
review is abuse of discretion. However, de novo review of such a trial court order is
warranted where the determination of whether the criteria for an award of attorney fees
and costs in this context have been satisfied amounts to statutory construction and a
question of law.’ ” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
       In this case, appellant asks this court to conduct a de novo review of the court’s
order, reasoning that undisputed facts establish each of the criteria for an award of
attorney fees under section 1021.5. (See Connerly v. State Personnel Bd., supra, 37

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Cal.4th at p. 1175.) Alternatively, appellant contends that, even were we to review this
matter for abuse of discretion, reversal is nonetheless required because the trial court had
no reasonable basis for denying its motion. (See Los Angeles Police Protective League v.
City of Los Angeles (1986) 188 Cal.App.3d 1, 7 [“discretion may not be exercised
whimsically and, accordingly, reversal is required ‘where no reasonable basis for the
action is shown’ ”].)
       The County counters that the normal abuse of discretion standard should govern
because the trial court’s ruling is essentially a factual one – to wit, that appellant failed to
prove the essential requirement under section 1021.5 that its lawsuit vindicated an
important right affecting the public interest because there was “no evidence of a wide-
spread practice within county employment of the reopening and extending of
employment lists in violation of the County’s Personnel Management Regulations
[PMRs].”
       We agree with the County and find appellant’s authority, Connerly v. State
Personnel Bd., supra, 37 Cal.4th 1169, inapposite. There, the California Supreme Court
considered the appropriate standard of review where the issue was whether an advocacy
group that played a litigation role similar to that of amicus curiae could be assessed
attorney fees under section 1021.5 as an “opposing part[y]” within the meaning of the
statute. The court recognized that whether a party comes within a particular statutory
definition is often a mixed question of law and fact, in which case the normal deferential
standard of review would apply so long as factual questions predominate. However,
there, the material facts were mostly undisputed and the controversy was a discrete legal
question – to wit, “whether a litigant in the California Business Council’s somewhat
unusual position can be considered an “opposing party.” (Id. at p. 1175-1176.)
Accordingly, the court held that de novo review should apply. (Ibid.)
       Here, we confront no such legal issue. Rather, as the County points out, the trial
court’s denial of attorney fees arose from its determination that the evidence did not
establish that appellant’s legal victory vindicated an important right affecting the public
interest. Whether the court erred in making this determination does not hinge on


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statutory interpretation. Rather, it hinges on the state of the evidence. As such, we
review the court’s decision for abuse of discretion and will not reverse unless “there has
been a prejudicial abuse of discretion, i.e., when there has been a manifest miscarriage of
justice or ‘where no reasonable basis for the action is shown.’ ” (Hull v. Rossi (1993) 13
Cal.App.4th 1763, 1767. See also Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th
162, 170 [“Whether a plaintiff has proved each of the three prerequisites for an award of
trial fees is a question best decided by the trial court”].)

I.     Vindication of an Important Public Right.
       Thus, turning to the merits of this appeal, we must determine whether the trial
court abused its discretion in finding that appellant’s writ proceedings did not vindicate
an important right affecting the public interest. The trial court reasoned that “there was
no evidence of a widespread practice within county employment of the reopening and
extending of employment lists in violation of the County’s [PMRs]. The evidence
showed that one county employer, the District Attorney, was incorrect in believing that
the list could be reopened. There was no pattern or practice in the County of such a
practice. The result [of the litigation] therefore was simply a finding that current District
Attorneys desiring the position that was given to the attorney on the reopened list were
entitled to exclusive consideration for the position.”
       In challenging this decision, appellant claims the trial court misconstrued the issue
at stake as being limited to the hiring of a single individual in the District Attorney’s
Office. Appellant claims the County “admitted” during the writ proceedings having an
“established practice” in violation of PMR 608 of extending employment lists at the
request of department heads. Based upon this purported admission, appellant contends its
legal challenge “implicates the integrity of the entire civil service system, including
whether employees can legitimately rely on the system to operate fairly and ‘by the book’
or whether employment decisions are subject to the whim and whimsy of managers.”
       As the County notes, however, appellant’s petition challenged just one violation of
the PMR by the County – to wit, its decision to reopen the 2008 List on a single occasion
to hire a single person, Laura Delehunt, as a basic-level deputy district attorney. The

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petition did not allege any other violation in the District Attorney’s Office, much less in
another department of County government; nor did appellant seek relief on behalf of any
current or prospective County employee other than the particular group that it represented
– to wit, the probationary deputy district attorneys eligible for permanent employment.
       Further, with respect to appellant’s claim that the County admitted having an
established practice of reopening expired employment lists, the record simply does not
support it. Rather, the record reflects that the County, in its answer to the petition for writ
of mandate, “alleges that it is the established practice of the Human Resources Director
to retroactively extend employment lists upon the request of an appointing authority
. . . .” An allegation is not evidence. And the actual evidence submitted by the County in
opposing the petition does not prove this allegation. Specifically, a declaration from the
Director, Ted Cwiek, the person who reopened the 2008 List, demonstrated that no one
but Laura Delehunt was hired from the 2008 List in violation of PMR 608.
       In addition, consistent with the request set forth in the petition, the court did not
provide relief for any current or prospective County employee besides the probationary
deputy district attorneys eligible for permanent employment within the District
Attorney’s Office (to wit, the employees eligible for the position for which Delehunt was
hired). Specifically, the writ of mandate ordered the County to “cease and desist from
hiring Deputy District Attorneys by means of re-opening and extending previously
expired employment lists and adhere to its ministerial duty to follow the hiring
procedures as set forth in Section 608 of the PMR [governing the duration of employment
lists].” At the same time, the court declined to include in the writ an order that “the
County . . . follow its PMRs.”
       Given the actual parameters of appellant’s litigation, which are grounded in the
petition and reflected in the writ itself, we conclude the trial court had a reasonable basis
for finding that no vindication of an important public right resulted from this case.
Indeed, were we to accept appellant’s contrary position, we would, in effect, greatly
expand the reach of section 1021.5. Appellant insists, for example, that “[a]s long as the
right [at stake] does not involve a matter that is ‘trivial’ or is based only upon peripheral


                                              7
public policies, it is an important right affecting the public interest. See Roybal v.
Governing Board of Salinas City Elementary School District (2008) 159 Cal.App.4th
1143, 1148,” hereinafter Roybal. However, the law is not so broad. “[O]ur Supreme
Court has observed that the private attorney general doctrine may be applied to vindicate
both constitutional and statutory rights. (Woodland Hills Residents Assn., Inc. v. City
Council, supra, 23 Cal.3d at p. 935.) But not all statutory rights are of sufficient
importance to be encompassed within section 1021.5. ‘[The] statute directs the judiciary
to exercise judgment in attempting to ascertain to the 'strength' or 'societal importance' of
the right involved.’ (Ibid.) In determining the importance of the particular rights
vindicated, ‘courts should generally realistically assess the significance of that right in
terms of its relationship to the achievement of fundamental legislative goals.’ (Id., at
p. 936.)” (Slayton v. Pomona Unified School Dist., supra, 161 Cal. App. 3d at p. 547.)
As explained above, that is just what the trial court in this case did: It realistically
assessed the right vindicated by appellant before determining that it did not meet the level
of public significance necessary to support a section 1021.5 attorney fee award. As such,
there is no basis on this record to disturb its decision.4 (See Roybal, supra, 159
Cal.App.4th at p. 1149 [reversing a section 1021.5 fee award where, “At best, it could be
inferred that petitioners’ victory revealed the deficiencies in the District’s layoff
procedure on this occasion, inasmuch as petitioners’ language proficiency was assessed
in a way that made it impossible for them to defend themselves. The remediation of that
defect did not amount to enforcement of an important public right”].)




4
        Appellant also contends the trial court erroneously applied a “numerosity”
requirement with respect to the County’s wrongdoing when finding that appellant failed
to prove vindication of an important public right based upon the lack of evidence that the
County reopened any employment list besides the 2008 List. We disagree. Whether
there was evidence of the County’s widespread violation of PMR 608 was relevant to the
trial court’s “realistic[] assess[ment]” of appellant’s litigation. (See Slayton v. Pomona
Unified School Dist., supra, 161 Cal.App.3d at p. 545.)


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II.    Conferring a Significant Benefit on a Large Class of Persons.
       Moreover, even if we were to find there was vindication of an important public
right in this case, we would nonetheless conclude appellant failed to meet the second
prong of the section 1021.5 standard. This prong, which in many ways intersects with the
first prong, requires a showing that the moving party conferred a significant benefit on
the public or a large class of persons. (Woodland Hills, supra, 23 Cal.3d at pp. 939-940.)
Here, appellant argues this prong was met because its action to enforce the PMR
conferred the significant benefit of ensuring the County’s adherence to consistent,
transparent, impartial and nondiscriminatory hiring practices on “tens of thousands” of
current and prospective County employees.
       The County, in turn, denies that a benefit was conferred on a large class of
persons, describing the litigation as involving “the enforcement of a single provision of
the PMR as applied to a small group of people.”
       As an initial matter, while the parties argue over the number of persons
beneficially impacted by appellant’s success in obtaining writ relief, ultimately both
parties appear to acknowledge that the actual number of persons affected is not
dispositive. As appellant points out, in Plumbers and Steamfitters, Local 290 v. Duncan
(2007) 157 Cal.App.4th 1083 (Plumbers and Steamfitters, Local 290), this court upheld a
section 1021.5 award to a union consisting of seven plumbers that successfully petitioned
to enforce a prevailing wage law.
       However, this decision, relied upon by appellant, is distinguishable for other
reasons. In Plumbers and Steamfitters, Local 290, the respondent, who was the acting
director of the Department of Industrial Relations, had himself designated the policy
decision at issue in the litigation as “precedential.” (157 Cal.App.4th at p. 1096.) In
addition, the appellant submitted declarations during the litigation from three people with
experience in prevailing wage enforcement who agreed the relevant decision
“ ‘established an important precedent benefitting a large number of employers in the
State . . . , dozens of local unions representing their workforce, and many thousands of
workers in the construction industry.’ ” (Id. at pp. 1096-1097.) In light of the record in


                                             9
that case, our colleagues concluded “substantial evidence supports the trial court’s
finding that the decision in this case ‘is likely to affect other projects and other trades in
the future,’ ” such that a significant public benefit was conferred. (Id. at p. 1097.)
       Here, appellant has not made a comparable evidentiary showing. As discussed
above in our discussion of the “important public right” prong, there is no evidence in this
case that the issuance of the writ in favor of appellant is likely to significantly affect the
County’s future hiring decisions, given that there is no evidence that the County had a
pattern or practice of violating its hiring rules apart from the single violation of PMR 608
alleged in the petition. While appellant may be correct that its action has potential to
deter future PMR violations by the County, including violations affecting County
employees outside the District Attorney’s Office, this potential deterrent effect is no
different or greater than the deterrent effect of any writ proceeding challenging a public
entity’s failure to comply in a particular instance with a mandatory rule. Had the
legislature intended to permit recovery of attorney fees in every case brought by a private
entity or individual to compel a public entity’s compliance with a particular regulation or
rule, we believe the legislature would have drafted section 1021.5 to state as much.
However, section 1021.5 does not provide for such broad recovery, and we decline to
read it as if did. (See Woodland Hills, supra, 23 Cal.3d at p. 939 [“Of course, the public
always has a significant interest in seeing that legal strictures are properly enforced and
thus, in a real sense, the public always derives a ‘benefit’ when illegal private or public
conduct is rectified. Both the statutory language (‘significant benefit’) and prior case law,
however, indicate that the Legislature did not intend to authorize an award of attorney
fees in every case involving a statutory violation”].)
       Thus, even assuming appellant is correct that evidence of the size of the
population or number of individuals benefited by the lawsuit is not required, and that the
substantial benefit conferred under section 1021.5 may be “conceptual or doctrinal”
rather than “actual and concrete,” the fact remains there must be evidence that “the public
is primarily benefited.” (Planned Parenthood v. Aakhus, supra, 14 Cal.App.4th at
p. 171.) In this case, as discussed above, this standard has not been met. Accordingly,


                                              10
we stand by our earlier conclusion that the trial court had discretion to decline to award
appellant attorney fees under section 1021.5.5

                                     DISPOSITION
       The order denying appellant’s motion for attorney fees pursuant to section 1021.5
is affirmed. The County is entitled to recover costs on appeal.



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




5
        Given our conclusion that appellant failed to make the requisite showings under
the first and second prongs of the section 1021.5 standard, we need not address whether
appellant made the requisite showing under the third prong – to wit, proof that private
enforcement of the law was necessary and that the financial burden of undertaking the
private enforcement justified the award. (Conservatorship of Whitley (2010) 50 Cal.4th
1206, 1214-1215.) As the case law makes clear, to recover under section 1021.5, a party
must meet each of the three prongs. (See Galante Vineyards v. Monterey Peninsula
Water Management Dist. (1997) 60 Cal.App.4th 1109, 1127 [“ ‘Section 1021.5 is
intended as a “bounty” for pursuing public interest litigation, not a reward for litigants
motivated by their own interests who coincidentally serve the public’ ”].)


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