California Correctional Peace Officers Assn. v. Virga

181 Cal.App.4th 30

103 Cal.Rptr.3d 699

CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION et al., Plaintiffs and Respondents, v. TIM VIRGA et al., Defendants and Appellants.

No. A123989.

Court of Appeals of California, First District, Division Four.

January 15, 2010.

Littler Mendelson, John M. Skonberg, Richard H. Rahm, Joshua D. Kienitz; K. William Curtis, Warren C. Stracener, Paul M. Starkey, Jennifer M. Garten and Ronald R. Pearson for Defendants and Appellants.

Carroll, Burdick & McDonough, Gregg McLean Adam, Laurie J. Hepler; and Daniel M. Lindsay for Plaintiffs and Respondents.

OPINION

SEPULVEDA, J.

Appellants State of California, Department of Personnel Administration, Department of Corrections and Rehabilitation, and three state officials appeal following the denial of two requests for attorney fees after they successfully defended against a claim brought by respondent California Correctional Peace Officers Association (CCPOA) and eight of its members pursuant to 42 United States Code section 1983 (section 1983). We conclude that appellants were not entitled to attorney fees pursuant to Code of Civil Procedure section 1038,¹ because this action did not qualify as a "civil proceeding under the California Tort Claims Act" (§ 1038, subd. (a)) for purposes of the statute. We also conclude that the trial court did not err in denying appellants' second motion for fees under the federal Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. § 1988(b) (section 1988)) pursuant to section 1008. We therefore affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

CCPOA is a union representing approximately 30,000 state employees. According to the union's complaint, the organization, along with union members Michael Jimenez, Robert Dean, James Martin, Lance Corcoran, Stephen Walker, Leonard McLeod, Sandi Campbell, and Kevin Raymond, respondents herein, campaigned heavily to defeat a 2005 state ballot measure (Prop. 75) that would have limited the permissible political activity of labor organizations. After the measure was defeated, appellants tried to implement two new procedures affecting union members. One would have required union members to use a new form to report leave time taken for union activity, and the other would have required that union members undergo required training while on leave for union business.

On April 4, 2006, respondents filed a complaint for damages and injunctive relief against the State of California, the Department of Corrections and Rehabilitation, and the Department of Personnel Administration (collectively, "state defendants"). The complaint also named as defendants appellants Roderick Hickman (the former Secretary of the Department of Corrections), Tim Virga (the chief of labor relations at the corrections department), and Brigid Hanson (the assistant secretary for the corrections department) (collectively, "individual defendants"). Respondents alleged that appellants intended to implement the new policies in retaliation for respondents' participation in the campaign against Proposition 75. The complaint alleged two causes of action against all appellants: (1) a federal claim under 42 United States Code section 1983² for violation of respondents' First Amendment rights to freedom of speech and freedom of association, and (2) a state claim for violation of California Constitution, article I, section 2, subdivision (a) (freedom of speech) and Civil Code section 52.1 (interference with exercise of civil rights). After respondents filed their lawsuit, the state stopped trying to implement the two proposals that were the subject of the suit.

Appellants demurred to the complaint. As for respondents' state law claim, appellants argued, among other things, that respondents failed to comply with the claims filing requirements of the Government Claims Act³ (hereafter Claims Act; Gov. Code, § 810 et seq.). Appellants also demurred to respondents' claim based on federal law (42 U.S.C. § 1983); however, they did not claim that this cause of action was subject to the claims filing requirements of the Claims Act. The trial court sustained the demurrer without leave to amend on the state law claim, concluding that respondents had, in fact, failed to comply with the claims presentation provisions of the Claims Act. The court overruled appellants' demurrer as to respondents' section 1983 cause of action, and the parties proceeded to conduct discovery.

Nearly a year and a half later, appellants filed a motion for summary judgment on respondents' 42 United States Code section 1983 cause of action. They argued, among other things, that neither the state nor state officials sued in their official capacities could be sued in a state court under section 1983, citing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 66 [105 L.Ed.2d 45, 109 S.Ct. 2304] (11th Amend. bars § 1983 suits against states absent waiver of immunity). Apparently recognizing that the state defendants were, in fact, immune from suit under section 1983, respondents filed a request for dismissal (with prejudice) of the three state defendants before they filed their opposition to the summary judgment motion. This left only the individual defendants in the case.

The trial court granted summary judgment as to the individual defendants. The order granting summary judgment noted that respondents' "only remaining claim in this action is their First Cause of Action for violation of 42 U.S.C. Section 1983 (`Section 1983 Action'), which is brought against the only remaining defendants in this action, the Individual Defendants, in both their official and individual capacities." The trial court first noted that a 42 United States Code section 1983 action may be brought against state officials in their official capacities for injunctive relief only. It concluded that because the proposals at issue were never implemented, there was no basis for injunctive relief against the individual defendants. The court also noted that state officials have qualified immunity from section 1983 actions brought against them in their individual capacities unless a plaintiff can (1) show a violation of constitutional rights and (2) demonstrate that a reasonable official would understand that he or she was violating someone's constitutional rights. The court did not reach the qualified immunity question, however, because it concluded that because the proposals were never implemented, no constitutional rights violation occurred.

Appellants filed a motion for attorney fees and costs pursuant to section 1038, which authorizes defendants to recover reasonable attorney fees and costs after they prevail on dispositive motions under the Claims Act. Respondents opposed the motion, arguing that appellants had not secured a qualifying dispositive order under the relevant statute, and that they maintained their suit with reasonable cause and in good faith in any event.

The trial court issued a tentative ruling indicating that it intended to grant the motion and award appellants their attorney fees.⁴ At the hearing on the motion, respondents' counsel argued there were three reasons why the trial court should deny the motion. First, section 1038 (a state statute governing fees and costs) does not address claims brought pursuant to 42 United States Code section 1983, a federal civil rights law. Second, a section 1983 claim is not subject to the Claims Act. Third, respondents' counsel argued that granting the motion under state law would contravene the will of Congress, because the federal civil rights act permits the award of attorney fees only to prevailing plaintiffs, and not to defendants. As counsel later acknowledged, that was an incorrect statement of law, as any "prevailing party" (other than the United States) may recover attorney fees in the court's discretion pursuant to 42 United States Code section 1988.

The trial court changed its tentative ruling in light of respondents' arguments and denied the motion for attorney fees. In its written order denying the motion, the court stated that section 1038 did not authorize the requested attorney fees award, because the federal civil rights claim against appellants (the only claim that remained at the time the trial court granted summary judgment) was not a "`civil proceeding under the California Tort Claims Act,' as required by Code of Civil Procedure section 1038, subd. (a)." In light of its conclusion that section 1038 did not apply, the court did not reach the issue of whether respondents brought the case in good faith and with reasonable cause pursuant to the statute.

Appellants then filed a motion for attorney fees pursuant to 42 United States Code section 1988. At the hearing on the motion, the trial court stated that the motion was an improper motion for reconsideration (§ 1008) of its previous denial of attorney fees. The trial court permitted appellants to submit supplemental briefing regarding Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 2000 [69 Cal.Rptr.2d 592] (Baldwin), cited by respondents for the first time at the hearing. Following briefing, the trial court again concluded that the motion for attorney fees under section 1988 was, in effect, a motion for reconsideration, and that appellants could not seek the same relief under a different statute after they were previously denied attorney fees. The court denied the motion. Appellants timely appealed from the subsequent judgment.⁵

II. DISCUSSION

A. Section 1038 Does Not Authorize Attorney Fees for Successful Defense of 42 United States Code Section 1983 Claim.

Appellants argue that the trial court erred in determining that there was no legal basis for an award of attorney fees pursuant to section 1038, a legal question we review de novo. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176 [39 Cal.Rptr.3d 788, 129 P.3d 1]; Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) ...