Filed 1/29/20 Vavla v. Bell CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

BOBBY F. VAVLA,

Plaintiff and Appellant,

v.

WAYNE S. BELL, as Commissioner of the Bureau of Real Estate,

Defendant and Respondent.

B286731

(Los Angeles County

Super. Ct. No. BS161821)

APPEAL from an order of the Superior Court of Los Angeles County. Mary H. Strobel, Judge. Affirmed.

Gary S. Garfinkle and Maria J. Garfinkle; Law Offices of W. Gary Kurtz and W. Gary Kurtz for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Diane S. Shaw, Assistant Attorney General, Brian D. Wesley and Suman R. Mathews, Deputy Attorneys General, for Defendant and Respondent.

Petitioner and appellant Bobby F. Vavla (petitioner) appeals from an order denying his motion for attorney fees under Code of Civil Procedure section 1021.5 after he obtained a writ of mandate setting aside the revocation of his California real estate licenses. We affirm the trial court’s order.

BACKGROUND

Nevada license revocation

On May 2, 2011, the State of Nevada’s Division of Mortgage Lending revoked petitioner’s Nevada mortgage agent license and loan agent license for violations of Nevada Revised Statutes section 645B.670. Petitioner appealed the revocation, and on December 18, 2013, the Nevada Supreme Court affirmed the district court order denying his petition for judicial review. The Nevada Supreme Court subsequently granted petitioner’s request for en banc reconsideration and on September 24, 2014, issued an en banc decision affirming the order denying judicial review of petitioner’s license revocation. The Nevada Supreme Court denied a petition for rehearing and issued its remittitur on December 5, 2014.

California license issuance and revocation

In 2012, petitioner applied for a California real estate sales license, disclosing the Nevada license revocation and his then pending judicial appeal. The Bureau of Real Estate (BRE) issued a real estate sales license to petitioner on October 10, 2013. In September 2014, petitioner applied for a California broker license, which the BRE issued to petitioner on December 17, 2014.

On May 29, 2015, the BRE filed an accusation against petitioner under Business and Professions Code section 10177, subdivision (f), alleging that the Nevada license revocation was a basis for suspending or revoking petitioner’s real estate licenses in California. Petitioner responded to the accusation by arguing, among other things, that the BRE’s disciplinary action was barred by the three-year statute of limitations set forth in Business and Professions Code section 10101.

Petitioner filed a motion to strike or dismiss the accusation, arguing that the disciplinary action was barred by Business and Professions Code section 10101 and was improper because California applied a more stringent standard of proof than Nevada for license revocations. Petitioner also filed a motion in limine to exclude evidence of the Nevada license revocation. The administrative law judge (ALJ) denied both motions.

After a September 29, 2015 hearing, the ALJ issued a proposed decision recommending revocation of petitioner’s broker’s license but giving him the right to apply for a restricted real estate sales license. The Commissioner of the BRE (Commissioner) declined to adopt the ALJ’s proposed decision and notified petitioner that he would decide the case based on the transcript of the September 29, 2015 hearing and any written argument offered by the parties.

The Commissioner issued his decision on March 18, 2016, finding cause to discipline petitioner based on the Nevada license revocation, which the Commissioner concluded was entitled to full faith and credit under Article IV, section 1 of the United States Constitution. The Commissioner revoked petitioner’s real estate licenses but authorized petitioner to apply for a restricted real estate sales license, subject to conditions and restrictions imposed under Business and Professions Code section 10156.6. The Commissioner denied petitioner’s request for reconsideration.

PROCEDURAL HISTORY

Petition for writ of mandate

Petitioner filed a petition for writ of administrative mandate seeking to set aside the Commissioner’s March 18, 2016 decision. Petitioner argued that the disciplinary action was time-barred under the three-year limitations period set forth in Business and Professions Code section 10101 and that the BRE could not impose discipline without clear and convincing evidence of misconduct.

In response, the BRE argued that petitioner’s judicial appeal of the Nevada discipline prevented his Nevada license revocation from becoming final and that the three-year limitations period set forth in Business and Professions Code section 10101 did not commence until the Nevada Supreme Court affirmed the Nevada licensing authority’s revocation decision. The BRE further argued that Article IV, section 1 of the United States Constitution required the BRE to give full faith and credit to the Nevada judgment affirming petitioner’s Nevada license revocation and precluded petitioner from relitigating in California any issue that was or could have been litigated in the Nevada action.

The trial court granted the writ petition on the ground that the BRE’s disciplinary action was barred by the three-year limitations period set forth in Business and Professions Code section 10101. The trial court concluded that the limitations period commenced when the Nevada license revocation became operative, upon the Nevada licensing authority’s issuance of the discipline on May 2, 2011, and rejected the BRE’s argument that the statute was tolled during judicial review of the revocation. The trial court did not reach the merits of the other arguments raised by the parties.

Motion for attorney fees

After the trial court granted the writ petition, petitioner filed a motion for attorney fees under section 1021.5. The trial court denied the motion, finding all criteria under section 1021.5 were satisfied except the requirement that the action confer a significant benefit on the general public or on a large class of persons. The trial court concluded that “[f]rom a realistic perspective, Petitioner has not shown that the court’s decision will confer a benefit on any persons other than Petitioner.” The trial court reasoned that its ruling was not a published decision; that petitioner did not seek declaratory or injunctive relief in the writ proceeding; that the remedy was limited to setting aside the revocation of petitioner’s broker license; and that “it is only speculation to conclude” that other California licensees would benefit from the trial court’s ruling, as the impact of that ruling would depend on the particular circumstances of each licensee’s case.

Motion for new trial

Petitioner filed a motion for a new trial, or in the alternative, a motion for reconsideration or for an order vacating the judgment, arguing, among other things, that he was entitled to an award of attorney fees under the federal Civil Rights Act, title 42 United States Code sections 1983 and 1988, because the Commissioner violated petitioner’s constitutional rights by misapplying the full faith and credit clause of the United States Constitution. The trial court denied the motion, noting that petitioner had not pleaded or litigated a claim under the Civil Rights Act and had provided no authority for seeking a new trial based on a fee request that was neither pleaded nor previously litigated. The trial court further noted that it had not adjudicated petitioner’s claims concerning the full faith and credit clause when ruling on the writ petition, and that to the extent petitioner objected, he was required to move for a new trial on the court’s ruling on the writ petition but had failed to do so. Finally, the trial court concluded, based on petitioner’s briefing, that petitioner “fail[ed] to show with citation to authorities or reasoned argument that the Commissioner deprived him of ‘rights, privileges and immunities secured by the Constitution’. . . .”

This appeal followed.

DISCUSSION

I. Attorney fees under section 1021.5

A. Applicable law and standard of review

Section 1021.5 provides in relevant 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, or of enforcement by one public entity against another public entity, 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.” The statute provides an exception to the general rule that parties to litigation pay their own attorney fees. (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1155 (La Mirada).)

To obtain an attorney fees award under section 1021.5, the moving party bears the burden of establishing that (1) it is a successful party in an action, (2) the action “has resulted in the enforcement of an important right affecting the public interest,” (3) the action has conferred a “significant benefit” “on the general public or a large class of persons,” and (4) a fee award is appropriate in light of the necessity and financial burden of either private enforcement or the enforcement by one public entity against another public entity. (§ 1021.5; La Mirada, supra, 22 Cal.App.5th at p. 1156.)

The statutory criterion at issue here is whether petitioner’s mandamus action conferred a significant benefit on a large class of persons or the general public. A mixed standard of review governs our review of this issue. To the extent we must construe and define the statutory requirements, our review is de novo. To the extent we must determine whether the statutory requirements were properly applied, the abuse of discretion standard governs our review. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.); La Mirada, supra, 22 Cal.App.5th at p. 1156.)

B. Significant benefit on the general public or a large class of persons

In determining whether a party’s action conferred a significant benefit on a large class of persons or the general public, a court should “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. [Citation.]” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940 (Woodland Hills).) To do so, a court assesses “whether the lawsuit initiated by the plaintiff was ‘demonstrably influential’ in overturning, remedying, or prompting a change in the state of affairs challenged by the lawsuit. [Citations.]” (Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363.) The party seeking an attorney fees award under section 1021.5 bears the burden of demonstrating that it meets the statutory criteria. (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044.)

The trial court did not abuse its discretion by finding that petitioner failed to show that his mandamus action conferred a significant benefit on the general public or a large class of persons. As noted in the trial court’s order, petitioner did not seek or obtain declaratory or injunctive relief; accordingly, the remedy he obtained was limited to setting aside the revocation of his own real estate licenses under the particular circumstances of this case.

The trial court further noted that its ruling was not a published opinion that could be cited as precedent. While a published opinion is not a prerequisite, there was no evidence that the trial court’s decision would cause the BRE to alter its enforcement approach toward other real estate licensees. Petitioner contends there is a presumption that the Commissioner will perform his official duties in conformity with the trial court’s ruling. That presumption does not, however, relieve petitioner from the burden of establishing that this action has conferred a significant benefit on a large class of persons or the general public. He has failed to satisfy that burden.

We are unpersuaded by petitioner’s argument that large numbers of similarly situated licensees (who somehow become aware of the trial court’s unpublished ruling) are benefitted by this action because they can assert the doctrine of collateral estoppel in disciplinary actions barred by the statute of limitations.

Petitioner argues that the benefit conferred in this case — the proper interpretation and enforcement of the limitations period set forth in Business and Professions Code section 10101 — furthers a significant policy, namely, timely commencement of licensee disciplinary proceedings. The public benefit must be more, however, than the proper interpretation of a statute in a particular circumstance. As our Supreme Court has stated: “Of course, the 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 [of section 1021.5] (‘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.” (Woodland Hills, supra, 23 Cal.3d at p. 939.)

Petitioner cites City of Los Angeles v. Metropolitan Water Dist. of Southern California (2019) 42 Cal.App.5th 290 (MWD) as support for arguments that a finding of an important right affecting the public interest also supports a finding that a significant benefit is conferred on the public and that a finding of “significant benefit” does not require evidence of the number of similar matters. That case, however, is distinguishable.

In MWD, the City of Los Angeles Department of Water and Power (DWP) challenged a fee award under section 1021.5 to the San Diego Union Tribune (Union) after Union defeated DWP’s mandamus petition seeking to block disclosure of DWP customers who participated in the Metropolitan Water District’s (MWD’s) turf removal program. The Controller for the City of Los Angeles had previously questioned the utility of the turf program, noting that it “‘came at a rather high cost and, arguably at the cost of some fairness’” as program beneficiaries included affluent households, private golf courses, and one particular contractor. (MWD, supra, 42 Cal.App.5th at p. 296.) When a Union reporter made a California Public Records Act request for information about the participants in the turf program, DWP filed a lawsuit seeking to enjoin MWD from releasing that information. Union obtained leave to intervene in the action and was the prevailing party on the disclosure issue. The trial court found that “‘Union enforced an important right affecting the public interest,’” specifically the public’s “‘right to know how the government uses public money’” and for this reason “‘the disclosure conferred a significant benefit on the public.’” (Id. at p. 306.) The appellate court rejected DWP’s argument, raised for the first time on appeal, that the paucity of articles published by Union on the turf program between its receipt of the customer information and the hearing on the attorney fees motions reflected little, if any public benefit.

Here, in contrast, the public’s right to know is not implicated, and the alleged misuse of public funds is not at issue. Petitioner was the sole beneficiary of his action to set aside his license revocation.

We reject petitioner’s request that we take judicial notice of certain documents, consisting of hyperlinks to a California Department of Real Estate (DRE) website containing records of disciplinary actions taken by the DRE, that were not presented to the trial court below. “Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally ‘when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’ [Citation.] No exceptional circumstances exist that would justify deviating from that rule, either by taking judicial notice or exercising the power to take evidence under Code of Civil Procedure section 909. [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Even if we were to take judicial notice of the existence of those records, judicial notice does not extend to their contents or the truth of the hearsay matters contained therein. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754.)

The trial court did not abuse its discretion by denying petitioner’s request for attorney fees under section 1021.5.

II. Attorney fees under the Civil Rights Act

The trial court did not abuse its discretion by denying petitioner’s request for attorney fees under the Civil Rights Act. Petitioner did not plead a claim under the federal Civil Rights Act in his writ petition, and his motion for attorney fees did not seek a fee award under that statute. Petitioner did not assert entitlement to attorney fees under the Civil Rights Act until his motion for a new trial following the trial court’s denial of his motion for attorney fees under section 1021.5.

Petitioner argues that his writ petition asserted violation of his due process rights under both the United States and California Constitutions and alleged that the Commissioner had misapplied the full faith and credit clause by relying on the Nevada license revocation as the basis for revoking petitioner’s California broker license. The trial court’s order did not address these Constitutional issues, however, and petitioner did not move for a new trial on that basis. Petitioner fails to establish any basis for overturning the trial court’s denial of his fee request under the Civil Rights Act.

DISPOSITION

The order denying the request for attorney fees is affirmed. The parties shall bear their respective costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT