Second District, Division Two So Rules in Case Where Ex-Police Officer Did Not Prove a Civil Rights Violation and Never Obtained Reinstatement of His Former Position in the Police Department.
Plaintiff, an ex-police officer in the City of Torrance, was terminated based on a domestic violence incident resulting in his conviction on several criminal counts. Plaintiff appealed the convictions and, several years later, a California federal court granted a habeas petition and ordered his retrial under penalty of discharging any adverse consequences of his conviction. The State decided not to retry plaintiff.
Plaintiff then sought mandate against the City and City’s Civil Service Commission to set aside prior administrative determinations, to reinstate him, and to provide backpay and other monetary relief. The trial court denied the reinstatement and termination decisions, but granted his right to have an administrative hearing over the status of plaintiff’s revived interest in employment with the City in light of the reversal of the convictions.
Plaintiff then moved for an award of $47,677.50 in attorney’s fees under both 42 U.S.C. section 1988 and Code of Civil Procedure section 1021.5. The trial court denied the requests, and its determinations were affirmed on appeal.
In Brumbaugh v. City of Torrance, Case No. B202117 (2d Dist., Div. 2 Sept. 16, 2008) (unpublished), the Second District, Division Two initially made it clear that the abuse of discretion standard was the proper standard of review. (See Board of Administration v. Wilson, 57 Cal.App.4th 967, 973 (1997) [section 1988]; Hewlett v. Squaw Valley Ski Corp., 54 Cal.App.4th 499, 544 (1997) [CCP section 1021.5].)
As far as the section 1988 predicate for fees was concerned, plaintiff did not prevail on any due process violation. Even though a hearing on plaintiff’s revived interest in employment was ordered, this was not tantamount to demonstrating that plaintiff had a legitimate claim to employment after the conviction (even after it was reversed). See Adams v. County of Sacramento, 235 Cal.App.3d 872, 881 (1991).
Section 1021.5 did not provide a basis for fee entitlement to plaintiff. In order to obtain entitlement under this provision, a plaintiff must show that the litigation (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) was necessary and imposed a financial burden on plaintiff which was out of proportion to his/her individual stake in the matter. (See Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, 79 Cal.App.4th 505, 511 (2000).) None of these three elements were satisfied by plaintiff. Rather, the gist of the action was to enforce plaintiff’s individual right to a narrow hearing and possible reemployment, both of which were targeted at vindicating his personal rights. Relying on Flannery v. California Highway Patrol, 61 Cal.App.4th 629, 636-637 (1998), the appellate panel rejected the notion that a public interest is furthered every time a plaintiff successfully sues a public agency for some wrongful conduct. Plaintiff’s action also involved only peace officers who were seeking reemployment under a narrow set of circumstances—where a felony conviction was reversed years later on appeal. The financial burden criterion was not met, because the enforcement of the public interest was only coincidental to the attainment of plaintiff’s personal goals. (Roybal v. Governing Bd. of Salinas City Elem. Sch. Dist., 159 Cal.App.4th 1143, 1151 (2008).)