Opinion
A147841
08-23-2017
CLARK FRATUS et al., Plaintiffs and Appellants, v. CONTRA COSTA COUNTY DEPARTMENT OF CONSERVATION AND DEVELOPMENT, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSN10-1322)
Plaintiffs and appellants Clark and Karla Fratus (the Fratuses) seek to reverse a motion denying attorney fees incurred while obtaining a writ of administrative mandate directing respondent Department of Conservation and Development (DCD) to set aside $12,900 in fines erroneously imposed on the Fratuses for alleged regulatory violations. We conclude that the Fratuses' motion for attorney fees under Government Code section 800 was timely and supported by competent evidence, and the DCD acted arbitrarily or capriciously by imposing the fines. We therefore reverse.
All statutory references are to the Government Code unless otherwise stated.
I. BACKGROUND
In 1993, the Fratuses purchased the property at 2300 Dutch Slough Road (the 2300 property). This property has a two-story dwelling, boathouse, and detached garage. Permits for these structures go back to 1964, 1969, and 1974, respectively. In 2005, the Fratuses purchased the adjacent property at 2284 Dutch Slough Road (the 2284 property). This property has two separate living units in a single building, with permits dating from 1959 and 1964.
From 2007 to 2009, the DCD sent the Fratuses a series of notices claiming their properties were out of compliance with county codes. The DCD eventually asserted the 2300 property was not permitted for living space in both stories of the dwelling and the 2284 property was not permitted for two separate residences. The Fratuses provided various records to the DCD indicating the lawfulness of the structures, which the DCD acknowledged receiving in a February 2009 letter. Despite these documents, the DCD found the properties were out of compliance and fined the Fratuses a total of $12,900.
The Fratuses unsuccessfully attempted to appeal the fines by again writing to the DCD and enclosing relevant documentation. After the county attached the Fratuses' properties, they sought a writ of mandate to compel the DCD to set aside the fines. The court found for the Fratuses in a June 2, 2011 minute order. With respect to the 2284 property, relying on inspection records indicating the existence of the second living space as far back as 1964, the court noted "[t]he County's position that [the Fratuses] were the ones that created the second story unit . . . is not supported by any evidence" and "no evidence supports [the] finding" the second unit was illegal when built. With respect to the 2300 property, relying on similar records, the court noted while the records were "more ambiguous, . . . the weight of the evidence tilts towards a finding that the lower level [of the 2300 property] was intended to be living space and was permitted for that use."
On April 2, 2015, the court filed a judgment granting a peremptory writ of administrative mandamus compelling the DCD to set aside the fines. The Fratuses filed a motion for attorney fees on April 21, 2015. On May 15, 2015, the DCD moved to vacate the judgment on the grounds the Fratuses' counsel failed to submit a proposed judgment to the DCD. In response to the motion to vacate, the Fratuses withdrew their motion for attorney fees on June 23, 2015. In a July 16, 2015 minute order, the court granted the DCD's motion to vacate the original judgment. On July 20, 2015, after the parties had a chance to confer, the court filed a new judgment again granting the writ. The Fratuses received notice of the judgment on July 28, 2015. The DCD set aside the fines on October 13, 2015.
On September 28, 2015, the Fratuses filed a new motion to recover the attorney fees incurred fighting the DCD's fines. The Fratuses supported their motion with, inter alia, a declaration from their attorney. The attorney's paralegal signed the declaration and made handwritten alterations, purportedly with the attorney's permission. After the DCD objected to this declaration, the Fratuses' attorney provided a declaration with their reply brief, which explained the circumstances leading to the first unorthodox declaration and confirmed the fees sought.
On December 1, 2015, the trial court denied the Fratuses' second motion for attorney fees. The court, applying California Rules of Court, rule 8.108(c), found the Fratuses' motion was untimely. It also held the attorney declarations supporting the motion were incompetent evidence. Finally, the court found the Fratuses had not shown they were entitled to attorney fees under section 800. This analysis focused on the June 2, 2011 minute order describing some of the evidence before the DCD as "more ambiguous," and the fact that a separate federal civil rights proceeding "found that plaintiffs failed to establish that the County's conduct was 'arbitrary and egregious.' " The Fratuses timely appealed on March 4, 2016.
The judge who ruled on the motion for attorney fees was not the same judge who had ruled on the motion for the writ of administrative mandamus.
All reference to rules are to the California Rules of Court.
II. DISCUSSION
A. Timeliness of the Fratuses' Motion for Attorney Fees
The deadline for filing a motion for attorney fees is the same as that for filing a notice of appeal. (Rule 3.1702(b)(1).) Under rule 8.104(a)(1), a party has 60 days after being served with a notice of entry of judgment to file an appeal. The Fratuses contend the deadline for filing their second motion for attorney fees should be measured using this approach, calculated with respect to the second judgment. It is not disputed that if rule 8.104(a)(1) is applied in this fashion, the Fratuses timely filed their motion for attorney fees.
The DCD raises two issues with how the Fratuses propose calculating the deadline. First, the DCD argues the deadline should be calculated with respect to the first (vacated) judgment, rather than the final judgment. Sixty days after the Fratuses received notice of the first judgment was June 1, 2015. Second, the DCD contends because it moved to vacate the first judgment, the deadline is governed by rule 8.108(c), rather than rule 8.104(a)(1). Applying rule 8.108(c), the Fratuses' deadline to move for attorney fees would have been August 13, 2015, 90 days after the DCD's motion to vacate. We take each claim in turn.
As for the DCD's claim the deadline runs from the vacated judgment rather than the final judgment, that argument is supported by neither law nor common sense. Where, as here, a court "vacate[s] the judgment and then later . . . effectively reinstate[s] the judgment, the time to appeal the judgment beg[ins] to run when the judgment [is] reinstated." (Matera v. McLeod (2006) 145 Cal.App.4th 44, 58.) Because "the effect of the order vacating . . . the judgment was to destroy it," there is no reason to use the vacated judgment to determine the deadline for an appeal pursuant to the new judgment. (Lantz v. Vai (1926) 199 Cal. 190, 193.) Were we to find otherwise, litigants could not appeal a final judgment entered more than 180 days after a vacated judgment. (Rules 8.104(a)(1)(C), 8.108(c)(3).)
The DCD's assertion that rule 8.108(c) sets the deadline at 90 days after the original motion to vacate is also incorrect. The DCD's approach would shorten the Fratuses' deadline from September 28, 2015, to August 13, 2015. Yet rule 8.108(a) explains the rule "does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs." Moreover, rule 8.108 only applies when a party moves to vacate after the court enters the judgment being appealed. (Maides v. Ralphs Grocery Co. (2000) 77 Cal.App.4th 1363, 1365.) Here, the DCD filed its motion to vacate before the court entered the final judgment pursuant to which the Fratuses seek attorney fees. Because the motion to vacate came before the final judgment, and because applying rule 8.108 would shorten the Fratuses' deadline, we do not apply rule 8.108 to calculate the deadline. B. Competency of the Fratuses' Evidence
The trial court held the Fratuses' motion was based on incompetent evidence because (with permission from the Fratuses' attorney) a paralegal edited and signed the attorney's declaration in support of the motion. All that is required to support a motion for attorney fees is a declaration or memorandum enumerating those fees, and "made under penalty of perjury" by the attorney. (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.) The question is therefore whether, if the declaration were found to be false, "criminal sanctions of perjury might apply" on the basis of the paralegal's signature or the attorney's subsequent declaration. (Ancora-Cintronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) A certification substantially similar to, "I certify (or declare) under penalty of perjury that the foregoing is true and correct," exposes the declarant to sanctions for perjury if the document is false. (Code Civ. Proc., § 2015.5.)
The Fratuses' attorney's initial declaration concluded with the statement, "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own personal knowledge." Likewise, the attorney's declaration explaining why she had not personally signed the first document ended with the statement, "I declare under penalty under the laws of the State of California that the foregoing is true and correct of my own personal knowledge." Both of these declarations meet the requirements of section 2015.5 of the Code of Civil Procedure.
Regardless of whether the initial declaration could support the motion for attorney fees, the supplemental explanation, signed by the attorney, provides adequate support. The second declaration explains that "the amount of [the attorney's] bill as of the filing of the motion was correctly stated in [the] originally submitted and signed invoice," and "[t]he paralegal fee changes notated by [the paralegal who signed] the invoice are accurate." Having been made under penalty of perjury, these statements were competent evidence for the Fratuses' motion.
The DCD is not prejudiced by our reliance on the second declaration. That pleading did not "raise new issues not included in the original pleadings and upon which the [DCD] had no opportunity to defend"; it only confirmed the fees the Fratuses incurred and explained why the paralegal wrote on the original declaration. (Lavely v. Nonemaker (1931) 212 Cal. 380, 385.) That discussion responded to the arguments raised by the DCD in opposition to the Fratuses' motion. C. Arbitrariness or Caprice of the DCD
Section 800 provides for recovery of attorney fees incurred while contesting a "determination of any administrative proceeding" when "it is shown that the . . . determination of the proceeding was the result of arbitrary or capricious action or conduct," but the statute does not define "arbitrary or capricious." Though "[t]he phrase 'arbitrary or capricious' has no precise meaning," courts recognize "conduct not supported by a fair or substantial reason may be categorized as arbitrary and capricious." (Madonna v. County of San Louis Obispo (1974) 39 Cal.App.3d 57, 61-62 (Madonna); see Kreutzer v. County of San Diego (1984) 153 Cal.App.3d 62, 78 (Kreutzer).)
Madonna concerned a county tax assessment on a local inn. (Madonna, supra, 39 Cal.App.3d at p. 59.) The board of supervisors assessed the value of the inn outside "any acceptable range of the cognizable evidence before it." (Id. at p. 61.) Having ruled out one of two possible methods for assessment, the board produced a value supported by neither method. (Ibid.) This outcome suggested the board was "acting on speculation and conjecture," supporting an award of attorney fees under section 800. (Id. at p. 62.)
In Kreutzer, the court found where an agency acts "rationally," an administrative action is not arbitrary or capricious simply because it is "clearly erroneous." (Kreutzer, supra, 153 Cal.App.3d at p. 78.) There, the sheriff's department suspended the appellant's outdoor entertainment license without first conducting an administrative hearing. (Id. at p. 68.) The department based its decision on the erroneous belief the license's immediate suspension condition waived the appellant's procedural due process rights to a hearing. (Id. at p. 68.) The court held the decision to skip the hearing was not arbitrary or capricious because, although mistaken, it was a rational interpretation of the immediate suspension condition. (Id. at p. 78.)
Whether an administrative agency has acted in an arbitrary or capricious fashion is a question of fact, which we review for abuse of discretion. (Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1312.) Here, the DCD's determination was not only erroneous, but also arbitrary or capricious. Unlike in Kreutzer, the DCD's decision to fine the Fratuses was not based on a misinterpretation of a clause in the permits. Rather, the DCD appears to have ignored the records the Fratuses provided. As the court noted when granting the Fratuses' motion for administrative mandate, none of the evidence supported the DCD's findings. Yet the DCD's February 26, 2009 letter confirms it knew about the evidence proving the Fratuses' properties were compliant. The DCD did not explain how it concluded the Fratuses' properties were out of compliance despite convincing evidence to the contrary in either its original opposition to the Fratuses' motion for attorney fees or in its briefing on appeal.
The findings of a federal civil rights claim litigated by the Fratuses (Fratus v. Contra Costa Bd. of Supervisors (2015) 599 Fed.Appx. 707) do not bind this court under the doctrine of issue preclusion. Issue preclusion applies where "the prior judgment conclusively resolve[d] an issue actually litigated and determined in the first action." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Here, the federal courts ruled the DCD's acts were not "egregious" under Brittain v. Hansen (9th Cir. 2006) 451 F.3d 982, 996. That ruling does not conclusively resolve the issue of whether the DCD's acts were "arbitrary or capricious" under section 800. --------
That the trial court found evidence regarding the 2300 property "more ambiguous" does not mean the DCD's findings were not arbitrary or capricious. The trial court used the phrase "more ambiguous" to recognize the fact records for the 2300 property did not specifically state the building was designed for two living spaces; whereas permits for the 2284 property explicitly discuss the second story. When rationally viewed, the records for the 2300 property still indicate both stories were meant as living space. The DCD's decision to ignore this evidence supports an award of attorney fees under section 800.
III. DISPOSITION
The trial court's order denying the Fratuses' motion for attorney fees pursuant to section 800 is reversed. The matter is remanded to the trial court to determine and award the reasonable attorney fees to which the Fratuses are entitled under section 800, subdivision (a).
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.