Opinion
E065880
10-11-2017
CAMILLO BONOME, JR., Plaintiff and Appellant, v. CITY OF RIVERSIDE et al., Defendants and Respondents.
Castillo Harper, Michael A. Morguess; and Law Office of Michael A. Morguess for Plaintiff and Appellant. Liebert Cassidy Whitmore, J. Scott Tiedmann and Christopher S. Frederick for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1314234) OPINION APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. Affirmed. Castillo Harper, Michael A. Morguess; and Law Office of Michael A. Morguess for Plaintiff and Appellant. Liebert Cassidy Whitmore, J. Scott Tiedmann and Christopher S. Frederick for Defendants and Respondents.
Plaintiff and appellant Camillo Bonome Jr., appeals the trial court's denial of attorney fees from defendants and respondents City of Riverside (City) and Riverside Police Chief Sergio Diaz, after the grant of Bonome's petition for writ of mandate (Writ). Bonome sought the award of attorney fees pursuant to Code of Civil Procedure section 1021.5.
Bonome had been employed as a Riverside Police Officer since 1995. In 2013, Chief Diaz recommended Bonome be terminated. Prior to the hearing on his termination, Bonome applied for and was granted disability retirement for a back injury he sustained while on duty. Upon his disability retirement being effective, Bonome requested his retirement identification badge and that the badge include a Carry Concealed Weapon (CCW) endorsement. Bonome's request was denied because Chief Diaz and the City did not consider him to be "honorably retired" as that term was defined in Penal Code section 16690.
Bonome filed the Writ contending he was honorably retired and entitled to a CCW endorsement, and if the endorsement was denied for cause, he was entitled to a good cause hearing. The trial court agreed and granted the Writ. The City and Chief Diaz filed an appeal. In the published opinion Bonome v. City of Riverside (2017) 10 Cal.App.5th 14 (Bonome) this court upheld the grant of the Writ finding Penal Code section 16990 did not exclude those who accept disability retirement in lieu of termination.
On December 18, 2015, prior to the appeal being taken on the Writ, Bonome filed his motion for award of reasonable attorney fees (Attorney Fees Motion). That motion was denied; Bonome appeals the denial arguing that he was entitled to such fees pursuant to Code of Civil Procedure section 1021.5.
FACTUAL AND PROCEDURAL HISTORY
The facts of the Writ were detailed in Bonome. Briefly, Bonome had been a police officer employed by the City since 1995. In 2012, he was investigated for failing to investigate and report the sexual abuse of a 14-year-old girl. Before being terminated, Bonome suffered a back injury while on duty.
Bonome was officially retired from service due to his industrial disability as of August 2, 2013. Bonome was then notified that he would not be receiving a CCW endorsement on his retirement identification because he was not considered "honorably retired" pursuant to Penal Code section 16990.
On December 19, 2013, Bonome filed his Writ seeking to compel the City and Chief Diaz to issue a retirement identification badge bearing a CCW endorsement because he was honorably retired. The City and Chief Diaz filed opposition arguing that he was not honorably retired because he accepted disability in lieu of termination. The matter was heard on June 12, 2015. The trial court granted the Writ finding that the language of Penal Code section 16990 was clear that the only persons excluded from being honorably retired were those who accepted service retirement in lieu of termination.
On December 18, 2015, Bonome filed his Attorney Fees Motion. Bonome requested attorney fees in the amount of $63,945 on the grounds that he enforced an important right, conferred a significant benefit on a large class of persons and his victory transcends the financial burden undertaken within the meaning of Code of Civil Procedure section 1021.5. Bonome argued it was clearly established that the vindication of statutory rights of peace officers was sufficiently important to justify an attorney fee award. He additionally argued it was in the public interest to have retired peace officers carry firearms to protect the public safety.
Bonome further argued that the Writ conferred a significant benefit for those officers who were on or would be subject to a disability retirement and also benefitted the public at large by having retired officers carry firearms. He relied on a declaration from Brian Smith, who was the President of the Riverside Police Officers Association, that over 385 officers employed by the City could be impacted by the decision whether Bonome was to receive a CCW endorsement. Finally, he argued that he had no pecuniary interest in the litigation but the cost of the litigation was substantial. Bonome also argued that his attorney fees were reasonable, which is not relevant here.
The City and Chief Diaz filed opposition to the Attorney Fees Motion (Opposition). They contended that Bonome filed the Writ to interpret the application of Penal Code section 16990 to his unique separation from the Riverside Police Department. He did not enforce an important right affecting the public. The enforcement of a statutory right did not necessarily entitle Bonome to attorney fees. Further, the City and Chief Diaz argued that even if the Writ was upheld on appeal, it would not impact a substantial group of individuals; in fact, it likely would only impact Bonome. Even if Bonome had enforced an important right, he was required to show the significance of the benefit. The decision would impact a very small class of people. The decision would only apply to peace officers who accepted disability retirement after being issued a notice of termination and then sought a CCW endorsement. The facts of the case would not impact a sizeable group.
The City and Chief Diaz also noted that the Riverside Police Officers Association paid for Bonome's attorney fees. The City and Chief Diaz submitted the declaration of Deputy Chief John Wallace. Deputy Chief Wallace had been employed by the City for 25 years. In the prior five years, no officers had qualified and accepted disability retirement before termination proceedings were completed.
Bonome filed a reply to the Opposition. Initially, Bonome contended that the term "important" right in Code of Civil Procedure section 1021.5 should be broadly interpreted. Bonome attempted to expand the number of persons who would be impacted to anyone who accepted disability retirement but had not yet received a notice of proposed termination. Bonome insisted that the decision conferred benefit on the general public and a large class of persons.
The matter was heard on January 26, 2016. The trial court at the outset stated that it intended to deny the motion because Bonome "failed to establish that this action resulted in a significant benefit to the general public or to a large class of persons."
Counsel for Bonome said that the only real issue was whether the litigation conferred a benefit on the public or a large class of persons. Bonome's counsel argued that the decision could potentially impact all peace officers. Bonome's counsel disagreed the issue was as narrow as getting a notice of termination and then accepting disability retirement. Bonome felt that it could impact decisions of the City to find that officers were not honorably retired. Counsel for the City and Chief Diaz responded that the case was very narrow. The case would not impact a large number of people.
The trial court noted, "So petitioner thinks that I should look at the class of all peace officers in deciding whether or not a significant benefit has been conferred. And the City thinks I should look at only the potential class of officers who have retired—that issued a disability retirement when a notice of termination had been issued." The trial court took the matter under submission.
On February 25, 2016, an order was issued as follows: "Motion for attorney fees is denied. Petitioner has not established that this action resulted in the enforcement of an important right affecting the public interest. No significant benefit has been conferred on the general public or a large class of persons."
Thereafter, in Bonome, we concluded that the plain language of Penal Code section 16690 did not support that a CCW endorsement could be denied if a person took disability retirement in lieu of termination. Moreover, nothing in the legislative materials supported that the Legislature clearly intended to exclude those who were granted disability retirement from those considered honorably retired.
Bonome filed a timely notice of appeal from the denial of his Attorney Fees Motion.
DISCUSSION
Bonome contends that he is entitled to attorney fees pursuant to Code of Civil Procedure section 1021.5. He insists that the litigation in this case has resulted in the enforcement of an important right affecting the public interest and there has been a significant benefit conferred on the general public or a large class of persons.
"An important exception to the American rule that litigants are to bear their own attorney fees is found in [Code of Civil Procedure] section 1021.5" (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565, fn. omitted.) Code of Civil Procedure section 1021.5 provides in 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 nonpecuniary, 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."
"This statutory language can be divided into the following separate elements. A superior court may award attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest if (3) a significant benefit has been conferred on the general public or a large class of persons, (4) private enforcement is necessary because no public entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement is such as to make a fee award appropriate, and (6) in the interests of justice the fees should not be paid out of the recovery." (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 390, fn. omitted.) Each element must be satisfied to justify an award of attorney fees. (Id. at pp. 390-391.) As such, if we find that one element is lacking, no award of attorney fees is warranted.
The parties disagree as to the proper standard of review. Bonome insists that while the amount of attorney fees awarded under Code of Civil Procedure section 1021.5 is reviewed for abuse of discretion, the determination of the legal basis for granting or denying an attorney fee award is a question of law, reviewed de novo by this court. The City and Chief Diaz contend that we review the trial court's decision for abuse of discretion.
Normally, "The award of fees under [Code of Civil Procedure] section 1021.5 is an equitable function, and the trial court must realistically and pragmatically evaluate the impact of the litigation to determine if the statutory requirements have been met. [Citation.] This determination is 'best decided by the trial court, and the trial court's judgment on this issue must not be disturbed on appeal "unless the appellate court is convinced that it is clearly wrong and constitutes an abuse of discretion."'" (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 334 (La Habra).)
"But where, as here, our published opinion provides the basis upon which attorney fees are sought, de novo or independent review is appropriate because we are in at least as good a position as the trial court to determine whether [Code of Civil Procedure] section 1021.5 fees should be awarded." (Samantha C. v. State Department of Developmental Services (2012) 207 Cal.App.4th 71, 78 (Samantha C.); see also Environmental Protection Information Center v. California Dept. or Forestry and Fire Protection (2010) 190 Cal.App.4th 217, 228-229.) While the appellate court opinion was issued after the denial of the Attorney Fees Motion, we are in the best position to determine if our opinion resulted in the enforcement of an important interest that conferred a significant benefit on the public at large or a large group of persons. Accordingly, we apply the de novo standard of review.
We will first review the element of Code of Civil Procedure section 1021.5 as to whether this litigation conferred a significant benefit on the public or a large group of persons as it is dispositive of the issue. In Bonome, we clarified that the plain language of Penal Code section 16690 does not exclude those who are granted disability retirement in lieu of termination from being granted a CCW endorsement. This was a narrow issue. While certainly it was important to clarify the proper interpretation of Penal Code section 16690, it does not follow that it involved a significant benefit for a large class of persons or on the general public.
Here, Bonome filed his Writ because he was denied a CCW endorsement when he took disability retirement while under investigation to be terminated for misconduct. He argued he was honorably retired and that a disability retirement in lieu of termination was not an exception under Penal Code section 16690. The City and Chief Diaz had denied his CCW endorsement due to him taking the disability retirement in lieu of retirement relying upon Penal Code section 16690.
In the Opposition, the City and Chief Diaz presented the declaration of Deputy Chief Wallace that in the prior five years, no other situation like that of Bonome's had occurred in the Riverside Police Department. In fact, the record does not establish that any other person employed by the City had been facing termination proceedings and then accepted disability retirement. While our decision clarified the statutory language of Penal Code section 16990, those subject to such incorrect statutory interpretation by the City and Chief Diaz was small.
"[T]he 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. We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under [Code of Civil Procedure] section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case." (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940; see also La Habra, supra, 131 Cal.App.4th at p. 335.)
Here, in evaluating the size of the class receiving benefit, the class is very small. Only those who receive disability retirement in lieu of termination and then are denied a CCW endorsement are protected. As we noted in Bonome, a person cannot choose to be disabled. The possibility that the disability will occur during the time that the same person is being investigated for termination or a decision of termination has been made is very small.
Bonome relies on three factors to support that a significant benefit was conferred on a large group of persons or the public. First, he insists that enforcement of rights to carry a concealed weapon by a person who has taken disability retirement confers a significant benefit on the general public because it stabilizes relations between peace officers and their employers, which in turn furthers effective law enforcement.
In Baggett v. Gates (1982) 32 Cal.3d 128, the Supreme Court found the trial court had abused its discretion when it refused to award attorney fees under Code of Civil Procedure section 1021.5 to police officers who had successfully established that the Public Safety Officers Procedural Bill of Rights Act (Act) applied to charter cities. The Supreme Court reversed the denial of attorney fees, finding "[I]t can scarcely be contended that plaintiffs' litigation has not conferred a 'significant benefit' on the 'general public.' Since enforcement of the Bill of Rights Act should help to maintain stable relations between peace officers and their employers and thus to assure effective law enforcement, plaintiffs' action directly inures to the benefit of the citizenry of this state. [Citation.] No one can be heard to protest that effective law enforcement is not a 'significant benefit.'" (Baggett, at p. 143.)
The purpose of the Act was to provide police officers certain procedural rights during the course of proceedings that might lead to the imposition of penalties against them. (City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1512.) "The Act balances the interests of the public in maintaining the integrity of the police force with the interest of the police officer in receiving fair treatment." (Ibid.)
In Otto v. Los Angeles Unified School District (2003) 106 Cal.App.4th 328, the court noted the rights and protections afforded by the Act to public safety officers "have expressly been made a matter of statewide concern by the Legislature, which found that stable relations between officers and their employers is a necessary element of effective law enforcement. [Citation.] The Act 'sets forth a list of basic rights and protections which must be afforded all peace officers (see [Govt. Code,] § 3301) by the public entities which employ them. It is a catalogue of the minimum rights ([Govt. Code], § 3310) the Legislature deems necessary to secure stable employer-employee relations ([Govt. Code], § 3301).'" (Id. at p. 334.)
Here, Penal Code section 16690 does not have the purpose of stabilizing the employer/employee relationship to protect the public at large. We referred to the legislative history of Penal Code section 16690 in Bonome. Specifically, we noted that the bill would appear to address some level of uncertainty in the matter of retired deputies obtaining their credentials and make it clear that those who accept disability retirement and service requirement were entitled to a CCW endorsement, unless they accepted service retirement in lieu of termination. All officers had the right under Penal Code section 25400 to carry a concealed weapon. The law was intended to remove any ambiguities that might permit a police department to limit firearm possession without good cause. Penal Code section 16990 also allowed police departments to deny without cause a CCW endorsement if service retirement was taken in lieu of termination.
We do not see that Penal Code section 16690 was intended, like the Act, to stabilize the employee/employer relationship to ensure the integrity of the police force for the safety of the public. Penal Code section 16690 was intended to clarify when a CCW endorsement can be denied without cause and had no impact on the general right of a peace officer to carry a concealed weapon. There is no language in Penal Code section 16690 that the purpose was to ensure the integrity of the police force for the safety of the public.
Second, Bonome contends that significant benefit was shown by the Riverside Police Officers Association involving themselves in the litigation (through financial support) because of the broad implications of this case to its current and future members. While Bonome presented a declaration that the Riverside Police Officers Association had 385 members, there simply is no indication that any of these officers would be subject to a denial of a CCW endorsement based on taking disability retirement in lieu of termination.
An examination of Samantha C. is relevant in this case. In that case, the plaintiff successfully sued the State Department of Developmental Services (DSS) to overturn determinations that she did not have a developmental disability and therefore was not entitled to services under the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.; Lanterman Act). (Samantha C., supra, 207 Cal.App.4th at pp. 73-74.) She argued that the DDS was misinterpreting the Lanterman Act. Her suit resulted in a published appellate opinion in which the Court of Appeal concluded she was eligible for services because she had a disabling condition within the meaning of the Lanterman Act. (Samantha C., at pp. 73-77.) Her attorney fees request was denied by the trial court. (Id. at p. 77.)
The Court of Appeal reversed the denial of her attorney fees, finding that its prior opinion resulted in the enforcement of an important right affecting the public interest and conferred a significant benefit on the general public. (Samantha C., supra, 207 Cal.App.4th at pp. 77-78.) The appellate court found that the DDS was misinterpreting the statute. It concluded that the erroneous interpretation had been applied to applicants in the past and could continue in the future if it was not remedied. (Id. at p. 80.) It noted that the law's purpose was to provide protection to the developmentally disabled, which involved hundreds of thousands of children and adults directly. It concluded, "Although the record does not reflect the number of individuals that might be directly benefited by our decision in Samantha C., nevertheless, by defining the class of benefited persons to include those in Samantha's position, the Legislature has demonstrated its determination that such a need exists, in a quantity that is of sufficient size to require its legislative protection. In light of the Legislature's statement of purpose, we cannot justifiably conclude that such a group of potential claimants is nonexistent, or even minimal." (Id. at p. 81.)
As opposed to Samantha C., here the size of the group who may have been or potentially could be impacted is simply not of sufficient size. There was not a potential for a number of retiring deputies to be denied a CCW endorsement without cause due to becoming disabled during disciplinary proceedings. In fact, Deputy Chief Wallace had indicated that he had not heard of one case in the prior five years. We cannot conceive of a large group of persons who would be in a similar situation as Bonome.
Finally, Bonome contends that it will benefit the public at large to have retired officers armed because "'retirees represent a form of floating reserve cadre able to respond when appropriate.'" Bonome insists that it is in the public interest to have retired officers armed. This presumes that the decision in Bonome will render retired officers unfettered access to a CCW endorsement. Penal Code section 26300, subdivision (b) states that peace officers listed in Penal Code section 830.1 "who retired after January 1, 1981, shall have an endorsement on the officer's identification certificate stating that the issuing agency approves the officer's carrying of a concealed and loaded firearm." However, the employing agency has discretion to deny the CCW endorsement and the officer is entitled to a hearing to challenge the denial or revocation. (Pen. Code, § 26310)
This court found in Bonome that the statutory language of Penal Code section 16690 does not automatically exclude those who accept disability retirement when facing termination from being honorably retired. However, such person could still be denied a CCW endorsement and would be entitled to a hearing to request that a CCW endorsement be issued. The decision in Bonome could have little impact on which retired police officers are given a CCW permit as an officer could be denied a permit at a hearing for cause, an issue that the Bonome decision does not address.
Based on the foregoing, we conclude that Bonome has failed to show that the litigation in this case conferred a significant benefit on the general public or a large class of persons. Since he cannot show this element of Code of Civil Procedure section 1021.5, we need not address the remaining elements.
DISPOSITION
The trial court's order denying Bonome attorney fees pursuant to Code of Civil Procedure section 1021.5 is affirmed. Respondents are entitled to their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.