Filed 7/20/18; Certified for Publication 8/15/18 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



BRANDEN LEE HALL,                                                   D072278

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2014-00023355-
                                                                     CU-WM-CTL)
DEPARTMENT OF MOTOR VEHICLES,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Tamila E.

Ipema, Judge. Affirmed.

         Law Office of A. P. Zmurkiewicz and A. P. Zmurkiewicz for Plaintiff and

Appellant.

         Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General,

Christine Mersten and Alice Q. Robertson, Deputy Attorneys General, for Defendant and

Respondent.

         Branden Lee Hall appeals from an order denying his motion for attorney fees he

incurred in litigation culminating in Hall v. Superior Court (2016) 3 Cal.App.5th 792
(Hall I). The superior court determined that Hall was not a successful party because Hall

I did not provide him with any relief that was not already granted to him by the trial court

and available from the Department of Motor Vehicles (DMV). We agree with the

superior court's ruling and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Hall's Arrest

       In March 2014, after the car Hall was driving rear-ended another car stopped at a

red traffic signal, police arrested Hall for driving under the influence. (Hall I, supra, 3

Cal.App.5th at p. 797.) One of Hall's minor children, a passenger in the back seat of his

car, told police that Hall had been drinking and that several people tried to stop Hall from

driving because he "drank too much." (Id. at p. 798.) The arresting officer noticed a

strong odor of alcohol on Hall's breath and that Hall's eyes were bloodshot and he was

slurring his speech. (Ibid.) After his arrest, Hall refused to submit to a chemical test for

blood alcohol. After obtaining a warrant, police obtained a blood sample from him

anyway. (Ibid.) The officer's statement indicates that Hall's blood alcohol level was 0.08

percent or more.

       B. License Suspension Hearing

       Because Hall refused to submit to a blood alcohol test, police seized his driver's

license, notified him that his license would be suspended or revoked by the DMV in 30

days, and advised him of his right to request a DMV hearing to show that the suspension

or revocation was not justified. (Hall I, supra, 3 Cal.App.5th at p. 798.) Hall requested a

hearing, which was conducted by Alva Garrido Benavidez, a DMV-appointed hearing

                                              2
officer. (Ibid.) At the hearing, the DMV offered documentary evidence including an

"Officer's Statement" indicating that police arrested Hall on "3-22-14"; however, the

reverse side of the form, containing the admonishment police gave to Hall about the

consequences of his failure to submit to a blood alcohol test, is dated "9-27-14." (Id. at p.

799.) Hall's attorney objected to this document, asserting the date discrepancy "renders

the document not an official record" under Evidence Code section 1280. (Hall I, at p.

799.) However, Benavidez overruled these objections, ruling that the date discrepancy

was a clerical error, and she sustained the revocation of Hall's driver's license. (Ibid.)

       C. Writ Petition

       In July 2015 Hall filed a petition for a writ of mandate in the superior court. Hall

argued that the date discrepancy was not a clerical error, rendering the document

inadmissible.1 The court set a hearing date on the writ petition.

       D. Amended Petition

       Before the hearing on Hall's writ petition, Benavidez was charged with conspiring

with certain attorneys to accept bribes in exchange for unlawfully issuing temporary

driver's licenses to persons charged with driving under the influence. (Hall I, supra, 3

Cal.App.5th at pp. 799-800.) In light of these charges, the superior court granted Hall

leave to amend his writ petition.




1      Without evidence that police properly admonished Hall about the consequences of
his refusal to submit to a blood alcohol test, the DMV could not have properly suspended
or revoked Hall's license. (Hall I, supra, 3 Cal.App.5th at p. 803.)
                                              3
       After Benavidez pleaded guilty, Hall filed an amended writ petition, which in

addition to the original date discrepancy allegation, also alleged that the DMV violated

his due process right to a fair hearing because Benavidez took bribes in other cases.

(Hall I, supra, 3 Cal.App.5th at p. 800.) Although there was no evidence that Benavidez

had asked for a bribe in Hall's case, Hall's attorney insisted that the lack of an impartial

hearing officer constituted a constitutional violation that required the DMV to reinstate

Hall's driver's license. (Ibid.)

       After conducting a hearing, the court granted Hall's amended petition on due

process grounds, but denied Hall the relief he requested. Instead, the court remanded the

matter to the DMV to conduct a new hearing with an impartial hearing officer. (Hall I,

supra, 3 Cal.App.5th at p. 806.)

       The DMV advised Hall that he had "been granted a denovo [sic] hearing" at a

"mutually agreeable" date and time. Later that month, the DMV attempted to contact

Hall's attorney to schedule a hearing; however, he did not return calls. The DMV set

Hall's new hearing for July 31, 2015; however, on July 20 Hall filed a notice of appeal

from the superior court's order and the DMV cancelled the hearing.

       E. Hall I

       Unsatisfied with a de novo DMV hearing, Hall appealed, asserting the court

should instead have ordered the DMV to reinstate his driver's license. (Hall I, supra, 3

Cal.App.5th at p. 797.) In Hall I we agreed with Hall that a hearing officer "who admits

to taking bribes for nearly a decade does not meet the constitutional standard of

impartiality." (Ibid.) However, we rejected Hall's argument that this due process

                                              4
violation required the DMV to reinstate his license, and instead held that the court

"correctly ordered a new administrative hearing." (Id. at p. 797.) We did not address

whether the date discrepancy on the admonishment form required the DMV to reinstate

Hall's license because that issue was to be decided in the first instance by the hearing

officer. (Id. at p. 811.) We awarded costs to Hall, but did not state we were doing so

because he was the "prevailing party."2 (Ibid.)

       F. Attorney Fee Motion

       After Hall I became final, Hall's attorney filed a motion in the superior court

seeking $145,044 in attorney fees under Code of Civil Procedure3 section 1021.5. This

consisted of a lodestar of $72,522 based on 183.6 hours at $395 per hour, which Hall

asserted should be doubled. Alternatively, Hall sought the maximum under Government

Code section 800.4 His principal argument was that Hall I enforced an important right


2       Asserting that he was the prevailing party on appeal, Hall's opening brief states,
"The superior court ruled that there was no due process violation . . . but that decision
was reversed by the Court of Appeal . . . ." Hall makes similar assertions in his reply.
Hall is incorrect. In Hall I, supra, 3 Cap.App.5th at page 305, we stated, "Considering
the [trial court's] order as a whole, the overarching ruling is that Hall is entitled to a new
DMV hearing on due process grounds"—a ruling we affirmed, not reversed. (Id. at p.
806.)

3      Undesignated statutory references are to the Code of Civil Procedure.

4        Government Code section 800 provides in part: "(a) In any civil action to appeal
or review the . . . determination of any administrative proceeding . . . if it is shown that
the . . . determination of the proceeding was the result of arbitrary or capricious action or
conduct by a public entity or an officer thereof . . . the complainant if he or she prevails in
the civil action may collect . . . attorney's fees . . . but not to exceed seven thousand five
hundred dollars ($7,500)."

                                               5
affecting the public interest, entitling him to attorney fees under the private attorney

general doctrine, codified in section 1021.5. Opposing the motion, the DMV asserted

that Hall was not successful in the litigation because the DMV offered to provide him

with a new hearing—Hall was the one who rejected that relief and lost on that point in

Hall I.

          After conducting a hearing, the court denied Hall's attorney fee motion. The court

determined Hall was not successful because "the remedy that [the] trial court imposed

was proper and affirmed on appeal[,] while Hall's argument on the proper remedy, i.e.

suspension revoked, was rejected." The court noted that Hall was "trying . . . to portray

his case as one imposing a significant benefit to the general public, even though he was

unsatisfied with the remand remedy from the very start." The court also determined that

Hall's litigation did not result in any public benefit regarding the admissibility of

documents in a DMV hearing because Hall I declined to decide that issue.

                                        DISCUSSION

      I. THE COURT CORRECTLY DENIED HALL'S ATTORNEY FEE MOTION

          A. Section 1021.5

          Generally, parties in litigation pay their own attorney fees. (Gray v. Don Miller &

Associates, Inc. (1984) 35 Cal.3d 498, 504.) Section 1021.5 is an exception to that rule.

This statute codifies the private attorney general doctrine and acts as an incentive to

pursue "'"public-interest litigation that might otherwise have been too costly to bring."'"

(Save Our Heritage Organisation v. City of San Diego (2017) 11 Cal.App.5th 154, 159

(Save Our Heritage).)

                                               6
       Section 1021.5 provides in part: "[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 . . . has been conferred on the general public or a large class of persons, (b) the

necessity and financial burden of private enforcement . . . 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."

       Thus, to obtain fees under section 1021.5, the moving party must establish all of

the following: (1) he or she is a "successful party," (2) the action has resulted in the

enforcement of an important right affecting the public interest, (3) the action has

conferred a significant benefit on the public or a large class of persons, and (4) an

attorney fees award is appropriate in light of the necessity and financial burden of private

enforcement. (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 313.)

       B. The Standard of Review

       Generally, we review the trial court's determination of whether the requirements

under section 1021.5 have been satisfied for abuse of discretion. (Espejo v. Copley Press,

Inc. (2017) 13 Cal.App.5th 329, 378.)

       C. Analysis Under Section 1021.5

       Asserting the court erred in denying attorney fees under section 1021.5, Hall

contends that important due process rights were vindicated by Hall I, supra, 3

Cal.App.5th 792. However, before considering the nature of the rights vindicated, to



                                              7
qualify for fees under section 1021.5, Hall must first establish he is a "successful party."

(Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, 1842 (Urbaniak).)

        "'The term "successful party," as ordinarily understood, means the party to the

litigation that achieves its objectives.'" (Save Our Heritage, supra, 11 Cal.App.5th at p.

160.) Under this test, as explained by this court in Leiserson v. City of San Diego (1988)

202 Cal.App.3d 725 (Leiserson), Hall was not the successful party.5

        In Leiserson, supra, 202 Cal.App.3d 725, a news photographer was arrested after

filming an airline crash site that was under police investigation. He sued the city for

violating his civil rights although his primary goal in the litigation was to advance his

own economic interests by obtaining a damage award. (Id. at p. 738.) The Leiserson

court determined that the plaintiff had been properly excluded from a disaster scene, but

the case resulted in a published opinion that defined the rights of the press to be present at

such scenes. (Ibid.) After our opinion became final, Leiserson sought attorney fees

under section 1021.5, contending his action had resulted in enforcing an important right

affecting the public interest and conferring significant benefits on the general public and

news media by vindicating the media's right to disseminate information. (Leiserson, at p.

731.)

        This court held as a matter of law that Leiserson was not a "successful" litigant

within the meaning of section 1021.5. (Leiserson, supra, 202 Cal.App.3d at pp. 733,

736.) The court acknowledged that the published opinion defined certain media rights,


5     Although the DMV cites Leiserson, supra, 202 Cal.App.3d 725 in its brief, Hall
does not cite or discuss Leiserson in his reply.
                                              8
but it did not warrant private attorney general fees "considering the precise nature of the

tort litigation Leiserson elected to pursue and his failure to prevail in any manner within

his chosen context." (Id. at p. 738.) The court explained: "Although the procedural

device by which a plaintiff seeks to enforce an important right does not always determine

entitlement to attorney's fees under section 1021.5 [citations], the relief sought is

probative of such entitlement. Indeed, where only a litigant's personal economic interests

are advanced by a lawsuit, fees may not be awarded since the litigation does not

significantly benefit a large class of persons." (Ibid.) The court noted that Leiserson

"confined his tort action prayer to civil damages for himself, never requesting a

declaration of the access rights of the press at disaster sites . . . . By tactical design, the

litigation was not intended to promote the rights of the media by obtaining a judicial

declaration of those rights. Rather, a review of Leiserson's damages complaint reveals

his primary intent for pursuing the litigation was to advance his own personal economic

interest." (Ibid.) This court stated that given the focus of Leiserson's case, the ensuing

published opinion was "simply fortuitous." (Ibid.)

       In sum, the plaintiff in Leiserson, supra, 202 Cal.App.3d 725 was not "successful"

within the meaning of section 1021.5 because he had not achieved his primary litigation

goal—a damage award, not a vindication of media rights. (Leiserson, at p. 738.) The

litigation achieved only incidental public benefits.

       Leiserson, supra, 202 Cal.App.3d 725 compels the same result here. Hall's

primary litigation goal—in fact, his only litigation goal—was reinstatement of his driver's

license. This was the only relief he pleaded in his original petition for writ of mandate,

                                                9
and after Benavidez's bribery came to light, Hall repeated that prayer for relief, verbatim,

in his amended petition.

       Unsatisfied with the trial court's ruling giving him a new hearing with an impartial

hearing officer, Hall insisted on appeal that this court must reinstate his driver's license.

(Hall I, supra, 3 Cal.App.5th at pp. 806-807.) He characterized the superior court's

remand order as being "ultra vires." (Id. at p. 807.) We rejected that argument. (Ibid.)

       Under California law, a plaintiff may be deemed to have been successful under

section 1021.5 by succeeding on any significant issue in the litigation which achieves

some of the benefit plaintiff sought in bringing suit. (Center for Biological Diversity v.

California Fish & Game Com. (2011) 195 Cal.App.4th 128, 138 (Center for Biological

Diversity).) However, the only relief, achievement, or success for Hall from this

litigation was a remand to the DMV to conduct another hearing. This was not a

significant issue; indeed, it was no issue at all because Hall's strategic objective was to

obtain a court order that he prevail as a matter of law by overturning the DMV's decision

to revoke his license. He did not achieve his only litigation objective. All Hall achieved

was a do-over, something he did not seek, does not want, and in fact, when offered by

both the trial court and later the DMV, a remedy he rejected.6



6     The record does not reflect the result of Hall's new DMV hearing. For that reason,
the DMV's reliance on Center for Biological Diversity, supra, 195 Cal.App.4th 128 and
Karuk Tribe of Northern California v. California Regional Water Quality Control Bd.,
North Coast Region (2010) 183 Cal.App.4th 330 for the proposition that Hall was not
successful in the litigation is misplaced. In each of those cases, the agency reconsidered
the matter on remand and reiterated its earlier decision.

                                              10
       Another test established in case law for determining whether a party was

successful under section 1021.5 is the before-and-after test. Under this test, courts

consider the situation immediately prior to the commencement of the suit and the

situation after. (People v. Investco Management & Development LLC (2018) 22

Cal.App.5th 443, 458.) Before, Hall's license was suspended for refusing to take a blood

alcohol test. After the litigation, Hall's license was suspended for refusing to take a blood

alcohol test. The only relief—using the term in the broadest sense—that Hall achieved

was a remand to the DMV.

       Disagreeing with this conclusion, Hall characterizes the litigation as vindicating

the public's right to due process and a fair DMV hearing officer. Hall's attempt to recast

the purpose, scope, and outcome of the litigation is not persuasive. Although the subject

of impartial decision makers and due process undoubtedly is an important right affecting

the public interest, in no sense did Hall cause it to be enforced because when offered the

very remedy the trial court ordered and this court affirmed in Hall I, supra, 3 Cal.App.5th

792, he refused it.

       Hall also contends he was successful within the meaning of section 1021.5

because in Hall I, supra, 3 Cal.App.5th at page 811, this court awarded him costs, which

he construes as a judicial determination that he was the "prevailing party." However,

under California Rules of Court,7 rule 8.493(a)(2), an opinion resolving an original

proceeding in the Court of Appeal must specify the award or denial of costs. Such costs



7      Citations to rules are to the California Rules of Court.
                                             11
may, but are not required to, be awarded to the prevailing party. Rather, under rule

8.493(a)(1)(B), the court may award costs "[i]n the interests of justice." Given the result

in Hall I—i.e., we rejected Hall's argument that his license must be reinstated—the only

reasonable inference is we awarded Hall costs in the interests of justice because the DMV

had not afforded him an impartial hearing officer.

       Hall additionally contends that the publication of Hall I, supra, 3 Cal.App.5th 792

is "strong evidence" that an important right is involved, entitling him to an attorney fee

award under section 1021.5. However, whether an important right is involved is distinct

from whether Hall is or is not a "successful party." To obtain fees under section 1021.5,

Hall must first establish he is a "successful party." (Urbaniak, supra, 19 Cal.App.4th at

p. 1842; Leiserson, supra, 202 Cal.App.3d at p. 738 [despite published opinion on

constitutional rights, plaintiff not successful under section 1021.5 where he failed to

achieve his litigation goal].)

       Moreover, even assuming for the sake of argument that Hall was "successful"

within the meaning of section 1021.5, we would still affirm the trial court's ruling

because Hall cannot satisfy another essential requirement—that an attorney fee award is

appropriate in light of the necessity and financial burden of private enforcement.

       "The private attorney general theory recognizes citizens frequently have common

interests of significant societal importance, but which do not involve any individual's

financial interests to the extent necessary to encourage private litigation to enforce the

right. [Citation.] To encourage such suits, attorney's fees are awarded when a significant

public benefit is conferred through litigation pursued by one whose personal stake is

                                             12
insufficient to otherwise encourage the action." (Beach Colony II v. California Coastal

Commission (1985) 166 Cal.App.3d 106, 114.) Conversely, section 1021.5 was not

designed to reward litigants motivated by their own personal interests who only

coincidentally protect the public interest. (Ibid.)

       Here, it is indisputable that Hall had a significant personal stake in seeking

reinstatement of his driver's license—he filed his original writ petition seven months

before even knowing that Benavidez was being investigated for taking bribes. During

that period, when there was no issue involving a corrupt decision maker, Hall's attorney

billed 32.3 hours ($12,758.50) in prosecuting the case.

       Once Hall learned about the charges against Benavidez, he amended his writ

petition to also allege that Benavidez's bribery in other cases deprived him of due process

at his hearing. Hall's motive was always about his self-interest in getting his license

reinstated. His reliance on the DMV's duty to provide an impartial hearing officer was

not an issue he created. It fell in his lap, a fortuity of timing, and it was simply another

alternative means to his desired end—license reinstatement—but never the goal itself.

For litigating in the trial court this additional ground for relief, Hall's attorney billed an

additional 32.4 hours—nearly the same amount of time spent litigating in the superior

court before Hall's attorney even knew that Benavidez was charged with taking bribes.8



8      Billing records Hall's attorney submitted show he has spent more time attempting
to obtain an attorney fee award (69.7 hours) then he did litigating the merits of Hall I
(45.5 hours). (See Dorsey v. Superior Court (2015) 241 Cal.App.4th 583, 599 ["'"The
attorneys' fees in this case have not simply become a case of the tail wagging the dog; the
attorneys' fees have become the dog."'"].)
                                               13
         Placing the litigation burden on Hall is eminently fair because he was willing to

place it upon himself for seven months of litigation, incurring $12,758.50 in attorney

fees. Moreover, once the due process violation was remedied by the order granting Hall

a de novo DMV hearing, this litigation proceeded solely to vindicate Hall's personal goal

of having his license reinstated without undergoing a new hearing. That unsuccessful

effort, costing Hall an additional $19,434 in attorney fees (49.2 hours) does not warrant

reimbursement at the public's expense.

         Because Hall is not a successful party under section 1021.5 and, even if he were,

his personal stake in the litigation precludes an award under section 1021.5, it is

unnecessary to consider his remaining contentions that the court erred in denying his

motion for attorney fees under section 1021.5. (Urbaniak, supra, 19 Cal.App.4th at p.

1844.)

         D. Government Code Section 800

         To obtain attorney fees under Government Code section 800, Hall must show,

among other things, that he "prevail[ed]" in his civil action challenging the administrative

proceeding. (Gov. Code, § 800, subd. (a).) For purposes of attorney fee statutes, the

terms "prevailing party" and "successful party" are synonymous. (Tipton-Whittingham v.

City of Los Angeles (2004) 34 Cal.4th 604, 610.) Accordingly, for the same reasons we

affirm the order denying Hall's motion under section 1021.5, we also affirm the trial

court's determination he did not "prevail" under Government Code section 800.




                                              14
      E. Costs

      The court awarded Hall $1,662 in costs. In a footnote in his opening brief, under

the topic heading "Judgment or Order from which the Appeal is Taken," Hall contends

the court erroneously failed to award him $132.88 in additional costs he incurred after

filing his cost memorandum.

      An appellate brief must state each point under a separate heading. (Rule

8.204(a)(1)(B).) Because Hall's argument about $132.88 in costs is not distinctly set

forth and developed under a separate heading, he has forfeited this issue. (See People v.

Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5 [argument is forfeited "by raising it

only in a footnote under an argument heading which gives no notice of the contention"].)

      Moreover, even if not forfeited, the argument is unavailing because (1) Hall

concedes that these costs were not included in his memorandum of costs; and (2) to the

extent Hall incurred the $132.88 in costs after his memorandum of costs was otherwise

required to be filed, he has not shown that he sought (and was erroneously denied) an

extension of time to file his cost memorandum under rule 3.1700(b)(3).9




9       Rule 8.278(c)(1), governing costs on appeal, provides that a party claiming such
costs must file a memorandum of costs in the superior court under rule 3.1700. Rule
3.1700(b)(3) provides in part: "The party claiming costs and the party contesting costs
may agree to extend the time for serving and filing the cost memorandum and a motion to
strike or tax costs. . . . In the absence of an agreement, the court may extend the times
for serving and filing the cost memorandum . . . for a period not to exceed 30 days."
                                            15
                                  DISPOSITION

     The order is affirmed. Respondent to recover costs incurred on appeal.




                                                                 NARES, Acting P. J.

WE CONCUR:



HALLER, J.



GUERRERO, J.




                                         16
Filed 8/15/18
                       COURT OF APPEAL - STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                         DIVISION ONE



BRANDEN LEE HALL,
Plaintiff and Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.
D072278
San Diego County No. 37-2014-00023355-CU-WM-CTL


THE COURT:

        The opinion in this case filed July 20, 2018, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a) for publication is
GRANTED.
        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
       ORDERED that the words "Not to Be Published in the Official Reports" appearing on
page 1 of said opinion be deleted and the opinion herein be published in the Official Reports.




                                                             NARES, Acting P.J.


cc: All Parties




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