Opinion
F081372
06-21-2024
Broderick ATKINSON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. [And 16 other cases.]
Xavier Becerra and Rob Bonta, Attorneys General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian, Lauren Sible and Brad Parr, Deputy Attorneys General for Defendants and Appellants. Middlebrook & Associates and Richard 0. Middlebrook, Bakersfield, for Plaintiffs and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. (Super. Ct. No. BCV19-100294)
Xavier Becerra and Rob Bonta, Attorneys General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian, Lauren Sible and Brad Parr, Deputy Attorneys General for Defendants and Appellants.
Middlebrook & Associates and Richard 0. Middlebrook, Bakersfield, for Plaintiffs and Respondents.
OPINION
FRANSON, J.
The Department of Motor Vehicles (DMV) appeals an award of attorney fees under Government Code section 800 to 17 drivers who prevailed on their petitions for writs of mandamus challenging the DMV’s denial of requests to continue their "administrative per se" (APS) hearings. Section 800, subdivision (a) authorizes the recovery of reasonable attorney fees where a plaintiff shows a determination by a public entity or its officer was "the result of arbitrary or capricious action or conduct." The DMV raises two grounds for reversal—the drivers’ writ petitions were untimely, and its denials of continuances were not arbitrary or capricious.
Undesignated statutory references are to the Government Code.
In the first stage of this appeal, we concluded section 11524, subdivision (c)’s 10-day time limit for seeking judicial review of a continuance "denied by an administrative law judge of the Office of Administrative Hearings" does not apply to APS proceedings because the DMV’s hearing officers are not administrative law judges. In the unpublished portion of this opinion addressing the second stage of this appeal, we conclude the DMV has failed to demonstrate reversible error. The DMV has not recognized that the doctrine of implied findings applies to the superior court’s written ruling and judgment and has not carried its burden of demonstrating the implied findings that the hearing officers acted in subjective bad faith were not supported by substantial evidence. The circumstantial evidence relevant to the hearing officers’ state of mind, although not conclusive, constitutes substantial evidence supporting the implied findings.
In the published part of this opinion, we conclude that each driver is entitled to recover reasonable attorney fees incurred in this appeal defending the superior court’s award of attorney fees under section 800, subject to the statutory cap that limits the total amount recoverable to $7,500. For purposes of section 800, subdivision (a), this appeal is part of the "civil action" in which the fees were incurred.
We therefore affirm the judgment’s awards of attorney fees.
See footnote **, ante
DISCUSSION
See footnote **, ante.
V. ATTORNEY FEES ON APPEAL
In the unpublished parts of this opinion, we accepted Broderick Atkinson’s concession that he was not entitled to a favorable judgment or an award of attorney fees because the DMV had set aside the suspension of his driver’s license. We also determined the DMV failed to demonstrate the awards of section 800 attorney fees to the 16 other Drivers were the result of reversible error. Here, we address whether the 16 respondent Drivers are entitled to recover the attorney fees they incurred in this appeal. We publish this portion of the opinion because the parties have not cited, and we have not located, a decision involving section 800 that is directly on point.
The Drivers cite the general principle that "statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals" (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927, 275 Cal.Rptr. 187, 800 P.2d 543) to justify the recovery of the attorney fees they incurred in this appeal defending the original fee awards. In response, the DMV argues the Drivers are not entitled to an additional recovery because (1) the DMV presented good faith legal arguments on appeal and, thus, the arbitrary or capricious standard for awarding fees under section 800 has not been satisfied on appeal, (2) section 800 applies only to proceedings in the superior court involving review of a final administrative decision, not to an appeal from a superior court judgment, and (3) if fees incurred on appeal are recoverable, the total fees awarded cannot exceed the $7,500 statutory limit.
A. Application of Statutory Cap
Section 800, subdivision (a) refers to "any civil action to appeal or review the award, finding, or other determination of any administrative proceeding" and authorizes an award of reasonable attorney fees where the administrative "proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof[.]" The statutory cap limits the recovery to "reasonable attorney’s fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500)[.]" (§ 800, subd. (a).) The Drivers concede the total permissible award per Driver cannot exceed the maximum of $7,500 authorized by section 800. Based on our independent review of the statutory text and Reeves v. City of Burbank (1979) 94 Cal.App.3d 770, 156 Cal.Rptr. 667 (Reeves), we agree with the concession.
[1, 2] In Reeves, the superior court declared a city ordinance unconstitutional, entered judgment in favor of the plaintiff, and awarded the plaintiff the full amount of attorney fees authorized by section 800 at that time—$1,500. (Reeves, supra, 94 Cal.App.3d at p. 773, 156 Cal.Rptr. 667.) The city appealed only the portion of the judgment awarding attorney fees under section 800, arguing its conduct was not arbitrary or capricious. (Id. at p. 774, 156 Cal.Rptr. 667.) After upholding the fee award, the appellate court considered the plaintiff’s request for additional attorney fees incurred in defending the fee award on appeal. (Id. at p. 780, 156 Cal.Rptr. 667.) The court construed the statute to limit the recovery of attorney fees in any one civil action and concluded the appeal was a part of the civil action. (Ibid.) Thus, the court concluded the total amount recoverable was $1,500 and any expansion of section 800 awards was a matter for the Legislature. (Ibid.) We agree with this statutory construction. The term "any civil action" used in section 800, subdivision (a) encompasses the proceedings in both the superior court and the appellate court. (See Code Civ. Proc., §§ 30 [definition of a civil action], 904 ["appeal may be taken in a civil action or proceeding as provided in Section 904.1, 904.2, 904.3, and 904.5"].) Consequently, the total amount awarded to a Driver for attorney fees incurred in the superior court and in this appeal cannot exceed the statutory cap of $7,500.
In Reeves, the court did not state whether it was assuming that attorney fees incurred on appeal in defending a section 800 attorney fee award were recoverable or actually deciding that issue. The decision in Reeves not to award additional attorney fees based on the statutory cap does not necessarily mean no other grounds existed for rejecting the request for additional fees. Consequently, we proceed to the other grounds raised by the DMV.
B. Appeals from Judgments on a Petition for Writ of Mandate
The DMV argues that section 800 fees are recoverable only for a petition for writ of mandate in the superior court seeking judicial review pursuant to Code of Civil Procedure section 1094.5 directly following an administrative hearing. The DMV relies on cases concluding section 800 does not apply to an appeal from a superior court judgment denying a petition for writ of mandate.
In Sullivan v. Calistoga Joint Unified School Dist. (1991) 228 Cal.App.3d 1813, 279 Cal.Rptr. 529, a teacher filed a petition for writ of mandate to compel the school district to reclassify her as a permanent part-time teacher, instead of a categorically funded employee. (Id. at p. 1315, 279 Cal.Rptr. 529.) The superior court denied her petition and she appealed. (Ibid.) The appellate court concluded the statutory requirements for classifying the teacher as a categorically funded employee had not been satisfied, reversed the denial of her writ petition, and remanded for consideration of other issues relating to her employment status. (Id. at p. 1319, 279 Cal. Rptr. 529.) The appellate court also addressed the teacher’s contention that she was entitled to attorney fees under section 800 because the school district arbitrarily denied her classification as a permanent part-time employee. (Ibid.) The court rejected the contention, stating:
"Appellant is not entitled to such fees, because Government Code section 800 applies only to cases involving appeals from a finding or award or other determination of an administrative proceeding. [Citations.] Because the appeal in the instant case is from a judgment of the superior court denying appellant’s petition for peremptory writ of mandate, Government Code section 800 does not apply." (Ibid.)
[3] We conclude Sullivan and other cases involving a superior court’s denial of a petition for writ of mandate are distinguishable from this case because those cases did not involve a superior court granting a writ petition and awarding attorney fees pursuant to section 800. Applying the statutory text to this distinction, appeals from a denial of a writ petition do not involve a "civil action to appeal or review" a determination of an administrative proceeding where it has been "shown that the award, finding, or other determination of the [administrative] proceeding was the result of arbitrary or capricious conduct by a public entity or an officer thereof[.]" (§ 800, subd. (a).) Even though, as discussed earlier, an appeal to the Court of Appeal is part of a "civil action" as that term is used in section 800, subdivision (a), when the appeal is from a denial of a writ petition, the other requirements of section 800 have not been satisfied. Specifically, there has been no showing the administrative determination was the result of arbitrary or capricious conduct. In contrast, where the appeal challenges the grant of a writ petition and an award of attorney fees (or just the award of attorney fees) and the public entity loses the appeal, that appeal is part of a "civil action" where the requirements of section 800 have been satisfied. As a result, the attorney fees incurred by the successful respondent in such an appeal fall within the scope of section 800, subdivision (a).
The foregoing statutory interpretation is consistent with our Supreme Court’s conclusion that "it is established that fees, if recoverable at all— pursuant either to statute or parties’ agreement—are available for services at trial and on appeal" (Serrano v. Unruh (1982) 32 Cal.3d 621, 637, 186 Cal.Rptr. 754, 652 P.2d 985) and its statement that "[c]ourts routinely have awarded fees on appeals vindicating only the right to an award for trial services." (Ibid.) Because these principles about the award of attorney fees incurred on appeal are compatible with section 800’s text, we conclude they apply to awards of attorney fees under that statute. Thus, a person who successfully defends a section 800 award of attorney fees against a public entity’s appeal is entitled to recover attorney fees incurred in the appeal, subject to the statutory cap.
[4] Next, we consider the DMV’s contention that an award under section 800 for additional attorney fees incurred on appeal are not appropriate because it made good faith legal arguments on appeal. This contention contradicts both the principles set forth in Serrano v. Unruh, supra, 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985 about the recovery of attorney fees incurred in an appeal and the text of section 800. From a textual perspective, an attorney fees award under section 800 is based on a showing "that the award, finding, or other determination of the [administrative] proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof[.]" (§ 800, subd. (a).) It is not based on arbitrary or capricious conduct in the subsequent lawsuit challenging the administrative determination. As a result, good faith arguments in the judicial proceedings do not absolve a public entity from liability for attorney fees, whether those fees are incurred in the superior court proceeding or in an appeal vindicating "the right to an award for trial services." (Serrano, supra, at p. 637, 186 Cal.Rptr. 754, 652 P.2d 985.)
To summarize, we conclude the Drivers are entitled to the attorney fees incurred in this appeal, subject to the statutory limit. On remand, the superior court shall determine the appropriate amount of such fees. (See Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1610, 71 Cal.Rptr.3d 361 [better practice is to remand].)
DISPOSITION
The judgment is reversed in part and affirmed in part. The judgment’s award of attorney fees to Broderick Atkinson, case No. BCV-19-100553, is reversed.
The judgment’s award of attorney fees to the 16 other respondent Drivers is affirmed. Those Drivers are awarded their costs and attorney fees on appeal. (Cal. Rules of Court, 8.278(a)(1), (d)(2).) On remand, the superior court shall determine the amount of reasonable attorney fees incurred by those Drivers on appeal.
I CONCUR:
DE SANTOS, J.
POOCHIGIAN, Acting P. J., Concurring
See footnote **, ante.