California Cases March 04, 2022: Holloway v. Pellerin

Case Description

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NOT TO BE PUBLISHED

Santa Cruz County Super. Ct. No. 19CV03767.

LIE, J.

Appellant Bruce Holloway successfully petitioned for a peremptory writ of mandate commanding Santa Cruz County Clerk Gail Pellerin to delete from ballot materials the name of a county supervisor identified as a proponent of a school district bond measure. The trial court, however, denied Holloway's motion for private attorney general fees from Pellerin and real party in interest George Wylie, deeming the motion untimely as to both but exercising its discretion to reach the merits as to Pellerin.

Although we conclude that the motion was timely, we agree with the trial court that Pellerin was not an "opposing party" within the meaning of Code of Civil Procedure

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section 1021.5. Accordingly, we affirm the order denying private attorney general fees as to Pellerin. Because the purported untimeliness of the motion was the sole basis for denying recovery of fees from the real party in interest, we reverse and remand as to Wylie only.

I. FACTUAL AND PROCEDURAL BACKGROUND

The San Lorenzo Valley Unified School District proposed Measure S, a district bond measure, for consideration by eligible voters in the March 3, 2020 local election. The school district submitted its argument in favor of Measure S to the Elections Department for a 10-day period of public inspection before inclusion in the voter pamphlet, as required by Elections Code section 9509, subdivision (a).

During the inspection period, Holloway's attorney, Gary Redenbacher, asked Pellerin, in her capacity as the county elections official, to remove the name of Bruce McPherson, a county supervisor, from the argument in favor of Measure S as it would appear in the voter pamphlet. Pellerin provided Redenbacher with a 1997 opinion by county counsel, which she interpreted as allowing the inclusion of McPherson's name.

Holloway then filed a "Petition for Peremptory Writ of Mandate to Delete Ballot Pamphlet Materials Under Elections Code § 9509."

Neither Pellerin nor real party in interest George Wylie, who was named in his capacity as president of the school district's board, opposed the petition. On December 27, 2019, the trial court issued the requested peremptory writ commanding Pellerin to delete McPherson's name from the argument in favor of Measure S.

On March 3, 2020, Holloway filed a motion for attorney fees in the amount of $10, 098 pursuant to section 1021.5, California's private attorney general statute, which authorizes an award of attorney fees to a successful party against one or more opposing

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parties in an action that has resulted in the enforcement of an important right affecting the public interest. Pellerin opposed the motion; Wylie did not.

The trial court denied the motion for attorney fees on August 24, 2020, finding that (1) the motion was untimely and (2) Pellerin was not an "opposing part[y]" as used in section 1021.5.

Holloway timely appealed. (Cal. Rules of Court, rule 8.104.)

II. DISCUSSION

A. Standard of Review

Although we typically review a posttrial award of attorney fees for abuse of discretion," 'de novo review . . . is warranted where the determination of whether the criteria for an award of attorney fees and costs . . . have been satisfied amounts to statutory construction and a question of law.'" ( Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175 ( Connerly ).) Here, the material facts are undisputed, and the sole issues before us are the predominantly legal questions of timeliness and whether Pellerin is an "opposing party" under section 1021.5. Under these circumstances, we review the legal issue de novo.

B. Timeliness of the Motion

California Rules of Court, rule 3.1702(b)(1) requires that a notice of motion for attorney fees "be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case. . . ." Rule 8.104(a)(1) in turn provides that "a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled

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'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment." The jurisdictional character of rule 8.104 requires us to strictly construe its time limits. ( In re Marriage of Lin (2014) 225 Cal.App.4th 471, 474; see also Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 51, 57.)

1. Service by the courtroom clerk, under rule 8.104(a)(1)(A)

Pellerin argues that the courtroom clerk initiated the 60-day period under rule 8.104(a)(1)(A) by personally endorsing and handing Holloway a "filed-endorsed copy" of the order for issuance of the writ at the conclusion of the December 27, 2019 hearing. The order on its face provides that the writ "shall be personally served on the Respondent today, December 27, 2019," and further instructs Holloway to arrange for service on counsel for the school district on the same day.

But service by the superior court clerk triggers application of rule 8.104(a)(1)(A) "only when the clerk has sent a single, self-sufficient document satisfying all of the rule's conditions[, ]" including the date of service. ( Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 903 ( Alan ); see also M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 612.) Here, the order was file-stamped but did not show the date of service by the clerk, and the only reference to service was the directive for service on

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other parties. The record is devoid of certification by the clerk of service on any party. Service of the order therefore did not start the 60-day time period for filing under rule 8.104(a)(1)(A).

2. Service by Holloway, under rule 8.104(a)(1)(B)

Nor may we rely on Holloway's service of the order to commence the time to file his motion under rule 8.104(a)(1)(B), because the record likewise omits proof of service of the order on either party. In its order denying Holloway's motion for attorney fees, the trial court excused this omission on the ground that Holloway was ordered to effect service and that his counsel later filed a declaration that he had personally served the filed-endorsed order on the county clerk and county counsel on December 27, 2019. The court deemed this declaration a sufficient substitute for the proof of service requirement so as to trigger the 60-day deadline to file the motion for attorney fees. But because this declaration was filed and served on July 16, 2020, in connection with the fee motion, it does nothing to produce the required "single, self-sufficient document" satisfying all of rule 8.104(a)(1)(B)'s conditions. ( Alan , supra , 40 Cal.4th at p. 903.)

To be sure, counsel's later-filed declaration retroactively reflects substantial compliance with the court's order for service of the order at least as to Pellerin. Accordingly, the trial court's flexible interpretation of the rule was pragmatic and consistent with its reasonable expectation that Holloway would timely comply with its order for service and-given his knowledge of both Wylie's and Pellerin's nonopposition to the petition-would have been prepared to attach a contemporaneous proof of service.

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But our obligation of strict construction of rule 8.104(a)(1)(B) prevents us from sanctioning deviation from the letter of the rule.

Absent contemporaneously documented service by the clerk, or by any party on the others, Holloway had 180 days from entry of judgment on December 27, 2019, to serve and file his notice of motion for attorney fees. (Rules 3.1702(b)(1), 8.104(a)(1)(C).) The notice of motion for attorney fees having been filed and served on March 3, 2020, the motion for attorney fees was therefore timely as to both Pellerin and Wylie. Because the putative untimeliness was the sole basis for the trial court's denial of the motion as to Wylie, we reverse as to Wylie only and remand for the trial court's determination of the merits of Holloway's claim as to the president of the school district's board.

C. "Opposing Party" Under Section 1021.5

As for Pellerin, we also review the trial court's alternative conclusion that Pellerin is not an "opposing party" from whom private attorney general fees may be awarded. Section 1021.5 authorizes a court to award attorney 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 . . . ." But it "does not authorize a successful plaintiff to recover attorney fees out of the public treasury simply because he or she has acted in the capacity of a private attorney general to enforce an important right affecting the public interest. Rather, a public entity may be held liable for attorney fees only if the agency or its representatives was an 'opposing party' in the litigation." ( Nestande v. Watson (2003) 111 Cal.App.4th 232, 240 ( Nestande ), italics added.) "Defining 'opposing party' requires consideration of both the origin and the entire procedural history of the subject action between the parties[.]" ( McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 625 ( McGuigan ).) Courts "strive to use a practical and pragmatic approach to evaluate the parties' relationships to one another in interpreting the private attorney general fees statute . . . tak[ing] into account the procedural and factual

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context in which an action arose." ( Id. at p. 626.) This is "a practical approach which 'realistically' assesses the litigation[.]" ( Id. at p. 625.)

Holloway does not dispute the trial court's observation that Pellerin's "only involvement in this litigation was to make the parties and the [c]ourt aware of the printing deadlines for the election materials" and that she "did not take a position in the litigation [that] was adverse to that of [Holloway]." Rather, Holloway argues that we should give dispositive weight to her nominal identification as the respondent to his successful petition, or to her antecedent decision to not remove McPherson's name herself or sue the school district in Holloway's stead. The weight of authority is against him, however.

In determining who may be "opposing parties" under section 1021.5, it is the nature of the parties' interest in the controversy necessitating litigation that is critical, beyond their identification in the pleadings. In Connerly , for example, our Supreme Court held that an amicus curiae-even though later named by amended petition as a real party in interest-was not properly as an "opposing part[y]" under section 1021.5 in a mandamus proceeding challenging the constitutionality of state affirmative action programs. ( Connerly , supra , 37 Cal.4th at p. 1175.) Reviewing the relevant cases, the Court concluded that "those found liable for section 1021.5 fees were either real parties in interest that had a direct interest in the litigation , the furtherance of which was generally at least partly responsible for the policy or practice that gave rise to the litigation, or were codefendants with a direct interest intertwined with that of the principal defendant." ( Connerly , supra , 37 Cal.4th at p. 1181, italics added.) Not even the active participation or leadership by the amicus in the litigation rendered it an "opposing party," because the practical function of the amicus curiae was "to advocate a position not out of a direct interest in the litigation but from its own views of what is legally correct and beneficial to the public interest." ( Id . at p. 1183.)

As the county elections official, Pellerin had no direct interest in the district bond measure or whether McPherson's name appeared in the voter information pamphlet as

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one of its proponents, and Holloway does not claim otherwise. By statute, the responsible elections official is to be named as a respondent in any voter-filed petition for a writ involving materials for inclusion in the voter information pamphlet, whereas the person or official who authored the material in question is the real party in interest. (Elec. Code, § 9509, subd. (b)(3); see also Elec. Code, § 13313, subd. (b)(3).) Unlike governmental entities that make discretionary judgments (like proposing ballot measures) which in turn occasion litigation, "[t]he role of the election official is meant to be as impersonal as possible . . . and has been repeatedly described as purely ministerial, involving no exercise of discretion." ( Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1187.) Nothing in the record provides a basis to impute to Pellerin any interest in the underlying controversy, let alone an interest exceeding that of the amicus California Business Council in the state programs subject to writ of mandate in Connerly .

Relying on Animal Protection & Rescue League v. City of San Diego (2015) 237 Cal.App.4th 99 ( APRL ), Holloway argues that, notwithstanding Pellerin's nonopposition to his petition, it was her error that necessitated litigation. In APRL , the court rejected San Diego's contention that it could not be considered an opposing party because it had confessed error rather than take a litigation position adverse to the petitioner, who had challenged the city planning commission's denial of a permit: "[T]o hold that an entity may avoid being required to pay an award of attorney fees under section 1021.5 merely by confessing error after being sued would be … wholly inconsistent with the well-established catalyst theory of recovery." ( Id . at p. 107.)

Unlike APRL , however, nothing in the record suggests that Pellerin either "confessed error" or that her nonopposition was "catalyzed" by Holloway's petition rather than by her institutional obligation as an elections official to receive "judicial instructions about proper procedures to follow." ( McGuigan , supra , 111 Cal.App.4th at p. 627.) Nor was it her error that necessitated litigation; unlike the city planning

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commission in APRL , that error belonged to the real party in interest in identifying proponents of the bond measure. Pellerin had no involvement in that submission.

Holloway suggests that Pellerin's refusal to "make the ballot pamphlet correction" was the error that required him to petition. But neither in the trial court nor on appeal has Holloway identified any statute or authority by which Pellerin could unilaterally have altered this aspect of the argument submitted by the school district for inclusion in the voter information pamphlet. The Legislature in the Elections Code has limited the authority of an elections official with respect to materials submitted for the pamphlet: Pellerin's ministerial duty was to facilitate the submission of those arguments and their public examination in advance of printing. (Elec. Code, §§ 9501-9509.) This is what she did. "In all other instances, the courts offer an adequate forum for enforcing the provisions of the Elections Code . . . ." ( Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 135-136.)

Alternatively, Holloway contends that Pellerin's failure to petition for writ of mandamus in his place effectively constituted "oppos[ition]," or at least makes her responsible for his petition, as in APRL . Holloway cites Elections Code section 9509, which provides that an elections official "may seek a writ of mandate requiring any or all of the materials to be amended or deleted." But this provision is permissive and not mandatory. (Elec. Code, § 354; Fair v. Hernandez (1981) 116 Cal.App.3d 868, 876.) Therefore, Pellerin was not required to file a petition for a writ after Holloway's request for McPherson's name to be removed, even if the record supported an inference that Holloway had asked her to seek judicial instruction. Moreover, by permitting elections officials and voters alike to petition for writ relief, Elections Code section 9509 imposes no greater authority on an elections official than on any eligible voter. Accordingly, Pellerin's abstention was no more in "opposition" to Holloway's petition than was any other district voter. Distilled to its essence, Holloway's argument is that Pellerin was not litigious enough to suit him, but this was insufficient to warrant imposing fees on the

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county official in Nestande , supra , 111 Cal.App.4th at p. 242 (disallowing fees despite county official's failure to "litigate . . . as aggressively as the prevailing party would have liked").

We see no legal basis to graft onto either section 1021.5 or the Elections Code a broader incentive to adopt the positions of an elector represented by private counsel, at risk of bearing either that elector's fees or those of the actual "opposing party." We therefore conclude that Holloway cannot obtain those fees from an elections official whose actions were not the cause of litigation.

III. DISPOSITION

The trial court's order is affirmed as to Pellerin and reversed as to Wylie. We remand to the trial court for further proceedings on the motion for attorney fees with regard to Wylie. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

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WE CONCUR: DANNER, ACTING P.J. WILSON, J.

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Notes:

Undesignated statutory references are to the Code of Civil Procedure.

Wylie has not filed a brief on appeal. We note that the record reflects he was served with the Holloway's fees motion, the order denying the motion, and the notice of appeal, and therefore has had notice and the opportunity to be heard. We decide Holloway's appeal as to Wylie based on the record and the opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)

Undesignated rule references are to the California Rules of Court.

Rule 3.1702(b) itself is mandatory and not jurisdictional. ( Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1444.)

Although the order is captioned "Peremptory Writ of Mandate to Delete Ballot Pamphlet Materials," the record on appeal does not include the actual writ this order directed the clerk to issue. Both Holloway and Pellerin treat the order granting the petition as indistinguishable from the writ it directs the clerk to issue. Accordingly, we will presume the clerk issued the writ on December 27, 2019, or that the parties have jointly waived any defect in its omission.

There is no proof of service of the order in the appendix, nor is there any entry in the register of actions reflecting filing of any proof of service. Neither Pellerin nor Wylie have disputed-in the trial court or on appeal-Holloway's representation that none was ever prepared or filed.

Pellerin does not rely on this theory in defending this appeal.

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