SACKS v. OAKLAND







Filed 12/10/10





CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MARLEEN SACKS, Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Appellant.	A126781 (Alameda County Super. Ct. No. RG08-380286)
MARLEEN SACKS, Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Respondent.	A126817

STORY CONTINUE FROM PART I….


We further interpret the ordinance to authorize the expenditure of Measure Y funds to recruit and train the new officers needed to fill the Measure Y positions. Otherwise, the City would be prevented from reaching an intended source of revenue to facilitate the addition to the force of the very officers needed to staff the additional positions contemplated by Measure Y, an incongruous and unintended outcome. The evidence unmistakably demonstrates that new officers cannot be hired, and the City’s police force cannot be maintained, unless the revenue from Measure Y is at least partially used for the recruitment and training of new officers needed to replace those lost to attrition. To us, recruiting and training officers is an essential aspect of the mandate in the ordinance to “hire and maintain.” “ ‘In construing a statute, a court may consider the consequences that would follow from a particular construction and will not readily imply an unreasonable legislative purpose. . . . [A] practical construction is preferred. [Citation.]’ [Citation.]” (Wong v. Ohlone College (2006) 137 Cal.App.4th 1379, 1383–1384 [40 Cal.Rptr.3d 923].) A commonsense interpretation of the language of the ordinance is required to make it workable and avoid an absurd result. (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1122 [29 Cal.Rptr.3d 262, 112 P.3d 647] (Wasatch).)
We conclude, contrary to the trial court’s determination, that Measure Y does not compel the City to expend Measure Y funds only to hire officers who are directly assigned to neighborhood beat positions. The City may use Measure Y revenue to recruit, hire, and train new officers for initial assignment to non-Measure Y positions, as long as the requisite number of other officers are correspondingly assigned to the neighborhood beat positions specified in the ordinance.[1] Therefore, the trial court erred by finding that the City made an “impermissible use of Measure Y funds” by hiring and training officers to “backfill patrol assignments in order to free up veterans for Measure Y positions,” and ordering the City to refund Measure Y funds expended “for recruitment, hiring and academy training of officers not placed directly into Measure Y positions.” (Italics added.)
II. The City’s Compliance with the Requirements of Measure Y.
Additional inquiries into the City’s compliance with Measure Y remain, which require us to further interpret the ordinance. Sacks complains that the City did not fill the entire complement of 63 neighborhood beat positions, or increase the total Department staff to the number of positions mandated by Measure Y “by the time she filed suit in April, 2008.”[2] Instead, she argues, the City “used Measure Y funds to recruit and train new police officers, and failed to fill Measure Y positions, as clearly required by the law.” She also asserts that the City did not abide by the 40 percent formula. Instead, she complains, the City used 40 percent of the Measure Y revenue but failed to deploy that percentage of officers to Measure Y positions “at the time this action was filed.”
Sacks is correct that when she filed her petition the Measure Y positions were not completely filled, nor had the Department reached the minimum total staff level required by the ordinance. The City established, however, that by the date of the hearing on the petition, and indeed by no later than September of 2008, as a result of the Accelerated Recruitment and Training Program the full measure of 65 neighborhood beat and domestic violence intervention positions, along with supervising sergeants, had been assigned to provide community policing in each of the 57 neighborhood beats – in addition to the officers who had been assigned to neighborhood beat positions before Measure Y. Most of the neighborhood beat assignments were filled with veteran officers, but a total of 12 officers who were hired and trained by the Department following the enactment of Measure Y – out of a total of 164 officers who completed police academy and subsequent field training – were ultimately deployed to community policing positions once they successfully concluded patrol duties. The Department’s total staff also exceeded the Measure Y requirements.
Thus, the City failed to promptly comply with the ordinance, but did so gradually, and completed the staffing commanded by Measure Y well within a five-year period. Importantly, Measure Y imposes neither any time limits on the City’s obligations to satisfy the staffing requirements of the ordinance, nor specifications on the manner of compliance, and with good reason. As the evidence reveals, several variables, none insignificant, affected the City’s ability to comply, and the pace at which compliance occurred: the attrition rate of existing officers; the time needed for recruitment and training of new officers, and their degree of success at both training and patrol assignments; the lengthy process of training new officers that encompassed two to three years; and the fact that existing officers could not be removed from patrol positions indiscriminately without adversely impacting the Department’s response to emergency calls and other essential police services. Expeditious compliance was also financially impractical or perhaps impossible. The revenue generated by Measure Y did not immediately provide the funds necessary for hiring and maintaining the full staff of officers specified by the ordinance. Until adequate revenue accumulated in the Measure Y fund, the City was forced to fill positions gradually.
The silence of the ordinance as to the timing and procedures employed to fill the positions was not only proper, but also legally imperative. “The electorate has the power to initiate legislative acts, but not administrative ones: ‘While it has been generally said that the reserved power of initiative and referendum accorded by article IV, section 1, of the Constitution is to be liberally construed to uphold it whenever reasonable [citations], it is established beyond dispute that the power of referendum may be invoked only with respect to matters which are strictly legislative in character [citations]. Under an unbroken line of authorities, administrative or executive acts are not within the reach of the referendum process [citations]. The plausible rationale for this rule espoused in numerous cases is that to allow the referendum or initiative to be invoked to annul or delay the executive or administrative conduct would destroy the efficient administration of the business affairs of a city or municipality [citations].’ [Citation.]” (City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 399 [103 Cal.Rptr.2d 269].) “An enactment that interferes with the City’s ability to carry out its day-to-day business is not a proper subject of voter power.” (Id. at p. 400.) “Legislative acts are those that declare a public purpose whereas administrative, sometimes called adjudicative or quasi-adjudicative, acts implement the steps necessary to carry out that legislative purpose.” (Citizens for Planning Responsibly v. County of San Luis Obispo (2009) 176 Cal.App.4th 357, 367 [97 Cal.Rptr.3d 636].) “When implementing a plan adopted by a superior power, a city acts in an administrative capacity.” (Worthington v. City Council of Rohnert Park (2005) 130 Cal.App.4th 1132, 1141 [31 Cal.Rptr.3d 59].) Here, while the ordinance properly articulated the particular purposes to which the use of Measure Y funds were directed, the City correctly retained the authority and administrative discretion to implement the legislation.
Absent language in Measure Y that specified time and manner of execution, we imply reasonable terms and a practical construction of the ordinance. (See California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1147 [43 Cal.Rptr.2d 693, 899 P.2d 79]; Wong v. Ohlone College, supra, 137 Cal.App.4th 1379, 1383–1384.) We must also accord great weight to the administrative agency’s interpretation and implementation of the ordinance it was charged with executing. (Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 292 [93 Cal.Rptr.3d 369, 206 P.3d 739]; Mason v. Retirement Board (2003) 111 Cal.App.4th 1221, 1228 [4 Cal.Rptr.3d 619]; County of Santa Barbara v. Connell (1999) 72 Cal.App.4th 175, 185 [85 Cal.Rptr.2d 43].) We are persuaded that the City acted in a reasonable manner and within its administrative discretion to eventually realize the specified objective of adding the staff mandated by Measure Y through a program of transferring veteran officers to neighborhood beat positions and training newly hired officers to replace them. Sound policy reasons were articulated for the Department’s decision to delay the reassignment of veteran officers to neighborhood beat positions until enough new officers were hired and trained to adequately fill patrol assignments, so that emergency and other essential police services were not compromised. We also conclude that the City’s performance of the obligations imposed by Measure Y, while far from immediate, at least occurred within a reasonable time under the challenging circumstances presented.
Finally, the evidence at the hearing established that the Measure Y positions were filled, and in accordance with the 40 percent formula the City ultimately did not improperly use Measure Y revenue for “non-Measure Y hiring.” We are somewhat hindered in our review of the City’s compliance with the appropriations requirements of Measure Y by the trial court’s failure to reach this inquiry – due to the finding that indirect use of Measure Y funds to fill Measure Y positions was impermissible. We know from the record that before the petition was filed in April of 2008, and perhaps even for a brief time thereafter, the Measure Y positions were not entirely filled, and some money collected pursuant the ordinance had not been used to recruit, hire and train officers deployed to those positions. For instance, costs attributed with the 158th and 159th police academies – in 2006 and 2007— did not result in deployment of any neighborhood beat officers. The Department’s Fiscal Services Manager Peter Fitzsimmons acknowledged that before 2009, particularly in 2005 and 2006, the “40 percent deployment goal” was not always reached.
The critical time frame for purposes of our review of the judgment, however, is the date of trial. By then, the City presented undisputed evidence in the form of declarations from Deputy Chief David Kozicki and Peter Fitzsimmons, along with his deposition testimony, that in accordance with the augmented recruitment and training program, 65 officers “funded by Measure Y” had been assigned to community policing duties, as well as 14 other officers who performed Measure Y duties and were paid “with non-Measure Y funds.” In addition, as we view the evidence, the City convincingly established that Measure Y revenue was either used to train and deploy Measure Y officers, or the Measure Y fund was reimbursed for any expenditures allocated to non-Measure Y purposes. A firm policy was implemented by the resolution to reimburse the Measure Y fund from the General fund for the equitable and proportionate costs advanced for the recruitment, hiring and training of any non-Measure Y officers. Nothing in the record contradicts the City’s evidence that the policy was followed.
Petitioner argues that the City failed to follow the 40 percent deployment formula and “misspent” Measure Y funds in an unknown amount that may reach $50 million. To support her argument she focuses on Fitzsimmons’s deposition testimony, and spending charts, along with other evidence that no Measure Y positions were filled from the 158th and 159th police academies – when the City apparently decided to enhance patrol services in response to an increase in crime – even though the Department continued to apply the 40 percent formula to expenses associated with those two academies.
However, petitioner disregards the additional testimony by Fitzsimmons that the City immediately recognized the inequity and reimbursed the Measure Y fund accordingly by May of 2008. He also testified that whenever the Department realized the Measure Y deployment did not reach the 40 percent figure, redeployment of officers or reimbursement of the Measure Y fund was undertaken to satisfy the 40 percent formula. Finally, although all of the expenditures for the augmented recruitment program have been charged to the Measure Y fund, all of the officers hired following the resolution have been deployed to “Measure Y duties.” The City presented evidence, which remained uncontradicted by petitioner, that by late in 2008 the Measure Y positions had been filled, the Department was staffed at the levels specified in the ordinance, and Measure Y revenue had either been expended to hire and maintain community policing officers, or the Measure Y fund had been reimbursed for all improperly allocated expenses. We find that the City complied with Measure Y within a reasonable time, and did not abuse its discretion in doing so.
PETITIONER’S APPEALS
I. The Finding that the City is not Required to Maintain a Total Staff of 802 Officers.
Petitioner argues in her appeal from the judgment that the trial court erred in its interpretation of a prerequisite to continued collection of Measure Y tax revenue found in Article 2, section 4, of the ordinance (section 4), which provides: “No tax authorized by this Ordinance may be collected in any year that the appropriation for staffing of sworn uniformed police officers is at a level lower than the amount necessary to maintain the number of uniformed officers employed by the City of Oakland for the fiscal year 2003–2004 (739).” The trial court found that section 4 explicitly requires the City to appropriate funding to maintain a minimum staff of police officers in the Department, but does not also require the City to actually place the specified number of officers in positions on the police force.[3] Petitioner complains that the language in the provision is ambiguous, and consideration of the ballot materials reveals an intent to impose on the City an obligation to hire and place “real officers” in the “neighborhoods to protect residents and reduce crime,” not just to appropriate funds for “ ‘paper’ officers.”
Again, our task is to interpret the ordinance, and in this instance the language of section 4 plainly articulates as a condition to collection of Measure Y tax revenue the “appropriation for staffing of sworn uniformed police officers” by the City at a minimum level of 739. (Italics added.) The provision does not mention employment or assignment of police officers. Petitioner asserts that the title of section 4 “specifically refers to ‘Minimum Police Staffing Prerequisite at Fiscal Year 03-04 Level,’ ” and “other materials presented in the Voter Information Pamphlet,” including the ballot arguments, indicate that the voters were “being promised an increased police force.”
We need not consult extrinsic materials to discern the meaning of section 4. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919 [129 Cal.Rptr.2d 811, 62 P.3d 54].) First, petitioner’s reliance on the title or heading of the provision is unavailing. The California Supreme Court has noted that “ ‘[t]itle or chapter headings are unofficial and do not alter the explicit scope, meaning, or intent of a statute.’ [Citation.]” (Wasatch, supra, 35 Cal.4th 1111, 1119.) Moreover, as the trial court observed, in light of the unambiguous language of section 4 that requires “appropriation for staffing,” rather than assignment of officers, “we presume that the Legislature, or, in the case of an initiative measure, the voters, intended the meaning apparent on the face of the statute. [Citation.] A court ‘ “may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.” [Citation.]’ [Citation.]” (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1172 [100 Cal.Rptr.3d 1].) An interpretation of section 4 to mandate appropriation rather than actual staffing also comports with a commonsense approach, as the City demonstrated that even if adequate appropriations for staffing were obtained through Measure Y revenue, expeditious assignment of officers within the Department was subject to a number of unmanageable vagaries, which included delay in the successful training of recruits and loss of veteran officers through attrition. And finally, the City proved that the requisite number of officers specified in Measure Y had been deployed by the Department by the date of the hearing.
We conclude that the trial court correctly interpreted section 4 to require the City to appropriate funds for staffing of sworn uniformed police officers at the minimum level, but did not mandate actual assignment of officers. In any event, evidence established that the City complied with the section 4 condition by reaching the requisite level of actual staffing within a reasonable time.
II. The Six Crime Reduction Team Positions.
Petitioner also challenges the trial court’s finding in the statement of decision that denied her request to enforce a mandatory duty on the part of the City to hire the six crime reduction team (CRT) officers mentioned in section 3, paragraph (1)(c) of Measure Y. The court determined that petitioner failed to specifically raise the issue “relating to Section 3(1)(c)” in her first amended petition, and denied her request for relief on that basis. Petitioner now complains that “the City’s failure to hire the required CRT officers had been properly alleged” in the petition as part of the request for relief “with respect to the City’s failure to fill all 63 positions specified in Measure Y,” which “included the six CRT positions.” She therefore maintains that “it was error for the trial court to deny the relief requested, in light of the undisputed evidence that at the time of the hearing, the City had still failed to fill these positions.”
Section 3 of the ordinance compels the City to hire and maintain at least a total of 63 officers assigned to specified community policing objectives: one for each of the existing 57 community policing beats, and a crime reduction team of “at least 6 of the total additional officers to investigate and respond to illegal narcotic transactions and commission of violent crimes in identified violence hot spots.” Thus, the six CRT positions fall within the total of 63 officers the City was obligated to hire with Measure Y funds. We know from the record that the City assigned a total of “65 officers [to fill the] community policing positions” funded by Measure Y, in compliance with the ordinance. The City also offered evidence that those neighborhood beat officers were assigned to duties that included abatement of illegal narcotics transactions and assaults, as intended by section 3(1)(c) of the ordinance. Petitioner did not specifically allege in her petition that noncompliance with Measure Y resulted from the City’s failure to assign officers to crime reduction team duties; nor did she seek a further breakdown of the assignments given to the neighborhood beat officers. She also did not adduce any evidence that the City failed to deploy at least 6 of the 65 neighborhood beat officers to the duties mandated by section 3(1)(c). In light of the record before us we cannot find that the City violated section 3(1)(c) of the ordinance.
III. The Denial of Petitioner’s Request for an Award of Attorney Fees.
Petitioner has filed a separate appeal (A126817) from the trial court’s order that denied her an award of attorney fees. She claims that she is entitled to recovery of attorney fees on two grounds: as the “prevailing party” pursuant to the “ ‘private attorney general doctrine’ ” codified in Code of Civil Procedure section 1021.5 (section 1021.5); and “under the ‘common fund doctrine.’ ”
A. The Private Attorney General Doctrine.
Looking first at the private attorney general theory as a basis for recovery of attorney fees, petitioner insists that her litigation resulted in a “significant public benefit” in the nature of redirection of Measure Y funds to purposes “intended by the voters,” and a declaration that the City must perform the audits mandated by the ordinance. She further argues that the “necessity of private enforcement” makes the award appropriate.
“Section 1021.5 codifies the ‘private attorney general doctrine’ adopted by our Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25 [141 Cal.Rptr. 315, 569 P.2d 1303]. [Citations.] The doctrine is designed to encourage private enforcement of important public rights and to ensure aggrieved citizens access to the judicial process where statutory or constitutional rights have been violated.” (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044 [114 Cal.Rptr.2d 787] (Ryan).) “To obtain attorney fees under section 1021.5, the party seeking fees 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 plaintiffs which was out of proportion to their individual stake in the matter.” [Citation.]’ [Citation.]” ’ [Citations.] Because the statute states the criteria in the conjunctive, each must be satisfied to justify a fee award.” (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 775 [96 Cal.Rptr.3d 362]; see also Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 157 [67 Cal.Rptr.3d 228].)
“ ‘Whether a party has met the requirements for an award of fees and the reasonable amount of such an award are questions best decided by the trial court in the first instance. [Citations.] That court, utilizing its traditional equitable discretion, must realistically assess the litigation and determine from a practical perspective whether the statutory criteria have been met. [Citation.] Its decision will be reversed only if there has been a prejudicial abuse of discretion. [Citation.] To make such a determination we must review the entire record, paying particular attention to the trial court’s stated reasons in denying or awarding fees and whether it applied the proper standards of law in reaching its decision. [Citation.]’ [Citations.] ‘The pertinent question is whether the grounds given by the court for its denial of an award are consistent with the substantive law of section 1021.5 and, if so, whether their application to the facts of th[e] case is within the range of discretion conferred upon the trial courts under section 1021.5, read in light of the purposes and policy of the statute.’ [Citation.]” (Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 876 [74 Cal.Rptr.3d 32] (Marine Forests).)
We have before us only the trial court’s order, which denied the motion for attorney fees without discussion, other than to refer cursorily to the opinion in Bruno v. Bell (1979) 91 Cal.App.3d 776, 782–783 [154 Cal.Rptr. 435] (Bruno). Our review of the trial court’s decision is compromised by the failure of petitioner to include in the record either the reporter’s transcript of the hearing on her motion for attorney fees or the trial court’s statement of decision. We point out that the trial courts are not required to explain their decisions on motions for attorney fees and costs. “A statement of decision is not required regarding an award of attorney fees pursuant to a motion.” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1252 [49 Cal.Rptr.3d 861].) While the absence of an explanation of a ruling on a motion for attorney fees may make it more difficult for an appellate court to uphold it as reasonable, “we will not presume error based on such an omission.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67 [100 Cal.Rptr.3d 152].) To the contrary, “ ‘[A]n appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness.’ [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207 [99 Cal.Rptr.3d 642].) “A fundamental rule of appellate review is that ‘ “[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citations.] The record must firmly establish an abuse of discretion. [Citation.] ‘The burden is on the party complaining to establish an abuse of discretion.’ [Citation.]” (Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841 [57 Cal.Rptr.2d 119]; see also Guardianship of K.S. (2009) 177 Cal.App.4th 1525, 1530 [100 Cal.Rptr.3d 78].)
We find no abuse of the trial court’s discretion for several reasons. First, in light of our reversal of the predominant measure of accomplishment obtained at trial by petitioner – the declaration that the City’s use of Measure Y funds to hire and train new officers to replace veteran officers assigned to neighborhood beat positions was invalid, and the directive to “refund all Measure Y monies” expended “for recruitment, hiring and academy training of officers not placed directly” into Measure Y positions – we do not consider her a successful party in this action within the meaning of section 1021.5. (See Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal.App.4th 1207, 1233–1234 [81 Cal.Rptr.3d 823]; Marine Forests, supra, 160 Cal.App.4th 867, 871–872.) We acknowledge that “In order to effectuate the purpose of section 1021.5, courts ‘have taken a broad, pragmatic view of what constitutes a “successful party.” ’ [Citation.]” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178 [31 Cal.Rptr.3d 447]; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 [21 Cal.Rptr.3d 331, 101 P.3d 140]; DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 197–200 [62 Cal.Rptr.3d 722].) “ ‘It is well settled that partially successful plaintiffs may recover attorney fees under section 1021.5. [Citations.] “ ‘[A] party need not prevail on every claim presented in an action in order to be considered a successful party within the meaning of the section. [Citations.]’ [Citation.] Rather, ‘when a plaintiff is successful within the meaning of the section, the fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.’ ” [Citation.]’ [Citation.]” (Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1345 [39 Cal.Rptr.3d 550], italics omitted.) “A ‘successful’ party means a ‘prevailing’ party [citation], and ‘ “ ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” ’ [Citation.]” (Bowman, supra, at p. 178, italics omitted.) Still, with our decision in the City’s appeal, the sole remaining successful aspect of petitioner’s action is the trial court’s determination that the City did not substantially comply with the auditing requirements of Government Code sections 50075.1 and 50075.3, and the City’s resulting alteration of its auditing practices related to Measure Y. As we view the record, the modification of the City’s Measure Y auditing practices did not achieve a significant benefit in the litigation.
We further find that another essential element of section 1021.5 was not established by petitioner: a result that enforced an important right and conferred a significant benefit on the general public or a large class of individuals. “Regarding the nature of the public right, it must be important and cannot involve trivial or peripheral public policies. The significance of the benefit conferred is determined from a realistic assessment of all the relevant surrounding circumstances.” (Ryan, supra, 94 Cal.App.4th 1033, 1044.) “[T]the mere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself.” (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335 [31 Cal.Rptr.3d 599].) “ ‘Because the public always has a significant interest in seeing that laws are enforced, it always derives some benefit when illegal private or public conduct is rectified. Nevertheless, the Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right. [Citations.] The statute specifically provides for an award only when the lawsuit has conferred “a significant benefit” on “the general public or a large class of persons.” The trial court must determine the significance of the benefit and the size of the class receiving that benefit by realistically assessing the gains that have resulted in a particular case.’ [Citation.]” (DiPirro v. Bondo Corp., supra, 153 Cal.App.4th 150, 199–200; see also Concerned Citizens of La Habra, supra, at pp. 334–335.)
Even without reversal of the judgment in part, we would not consider the trial court’s denial of attorney fees under section 1021.5 an abuse of discretion. The judgment obtained in the trial court declared that Measure Y revenue must be expended directly to staff community policing positions, and ordered the City to reimburse the Measure Y fund with revenue expended “for recruitment, hiring and academy training of officers not placed directly into Measure Y positions.” Essentially, the City was ordered to redirect money from one source used to hire and train police officers to another, and hire the neighborhood beat officers directly rather than indirectly.
In Bruno, supra, 91 Cal.App.3d 776, the court concluded that a judgment of a somewhat similar nature and effect did not support an award of attorney fees under section 1021.5. The plaintiff in Bruno was an attorney proceeding in pro per, who brought a suit that successfully challenged the validity of a statute (Sts. & Hy. Code, § 104.10) providing for distribution to counties of rental income received by the state as a result of its acquisition of real property for highway purposes, on the ground that it conflicted with article XXVI of the California Constitution. The net effect of the decision was to divert revenue funds from local taxing agencies to the state highway fund. The trial court’s award to the plaintiff of $30,000 in attorney fees, based on the theory that the saving of administrative expenses as a result of the decision conferred a substantial benefit on California taxpayers, was reversed on appeal. (Bruno, supra, at p. 788.) This court declared that although the action uncovered a “constitutional flaw in section 104.10,” and the “judgment below resulted in the cessation of the flow of money from the state’s highway rental account to the county governments,” (id. at p. 783), the “action has not resulted in the ‘enforcement of an important right affecting the public interest’ ” within the meaning of section 1021.5. (Id. at p. 787.) The court explained: “The ‘right’ to have all highway property rental income to remain with the state highway fund, appears neither important nor necessarily in the public interest. Neither can we subscribe to Bruno’s assertion that the right of highway users to have their fuel taxes, etc. used for highway purposes constitutes a ‘significant benefit . . . conferred on the general public.’ ” (Ibid.)
We neither intend to denigrate petitioner’s motives nor suggest that her commendable efforts failed to have any impact. We realize that petitioner’s action may have induced and compelled the City to comply with Measure Y – or at least do so with greater haste, and with audit procedures that facilitate more transparency – and for that reason the residents of the City have cause to be appreciative of her litigation. Under the circumstances, however, we do not find that the benefit she thereby conferred on the citizens of the City was a substantial one within the meaning of section 1021.5. Even without the lawsuit the City was using Measure Y revenue to increase the police force, if indirectly, and staff the neighborhood beat positions. The change in the administrative procedures followed by the City to attempt to effectuate the objectives of the ordinance – through direct rather than indirect hiring and training of neighborhood beat officers – did not in our view result in enforcement of an important right affecting the interest of the general public. The undisputed evidence presented by the City established that Measure Y revenue was either not used for purposes other than those intended by the ordinance, or that the Measure Y fund was reimbursed for unauthorized expenditures. And with our reversal of the judgment in favor of petitioner, she has no entitlement to attorney fees under section 1021.5.
B. The Common Fund Doctrine.
Petitioner also claims that she is “entitled to recover her own attorney’s fees under the common fund doctrine.” Petitioner asserts that she recovered a common fund of “approximately $15 million, constituting all monies illegally spent on recruiting, hiring, and training officers who were never placed in Measure Y positions.” She adds: “This is a substantial amount of money in a ‘fund’ that will clearly be used to benefit Measure Y by paying the salaries and benefits of officers placed into Measure Y positions, and thus helping ensure accountability and public safety.” She therefore argues that “the trial court abused its discretion by denying the fee request.”
“The common fund doctrine originated in the class action context. [Citation.] Under the doctrine, ‘ “[w]hen a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney’s fees out of the fund.” ’ [Citation.]” (21st Century Ins. Co. v. Superior Court (2009) 47 Cal.4th 511, 520 [98 Cal.Rptr.3d 516, 213 P.3d 972].) “The common fund doctrine is applicable only where plaintiffs’ efforts have effected the creation or preservation of an identifiable fund of money out of which the fees will be paid.” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 446–447 [123 Cal.Rptr.2d 122] (Jordan).) “[W]here plaintiffs’ efforts have not effected the creation or preservation of an identifiable ‘fund’ of money out of which they seek to recover their attorneys fees, the ‘common fund’ exception is inapplicable.” (Serrano v. Priest, supra, 20 Cal.3d 25, 37–38 (Serrano III); see also Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 39 [97 Cal.Rptr.2d 797].)
The present litigation did not create a separate fund from which attorney fees could be paid. (Serrano III, supra, 20 Cal.3d 25, 36.) The judgment itself did not create any fund, but rather directed that the City refund monies into the existing Measure Y fund. (See Jordan, supra, 100 Cal.App.4th 431, 446–447.) “In any event, to constitute a common fund within the meaning of the doctrine, the fund must be created or preserved by the litigation, not created in response to it.” (Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 878 [71 Cal.Rptr.3d 642].) Here, no separate fund was created, and petitioner is seeking to recover attorney fees not from a fund, but instead from the City – that is, the taxpayers. (Id. at pp. 878–879.) Finally, the reimbursement aspect of the judgment has been reversed. The trial court did not err in refusing to award attorney fees to petitioner under the common fund doctrine.
DISPOSITION
The part of the judgment that declared invalid the City’s use of Measure Y funds to hire and train new officers for patrol assignments to replace veteran officers deployed to Measure Y positions, and directed the City to “refund all Measure Y monies” expended “for recruitment, hiring and academy training of officers not placed directly into Measure Y positions,” is reversed. In all other respects the judgment is affirmed. The order denying petitioner an award of attorney fees is affirmed.
Costs are awarded to the City of Oakland.

	__________________________________ Dondero, J.
We concur: __________________________________ Marchiano, P. J. __________________________________ Margulies, J.

Sacks v. City of Oakland; A126781, A126817

Trial Court	Alameda County Superior Court
Trial Judge	Honorable Frank Roesch
For Plaintiff and Appellant Marleen Sacks	Donahue Gallagher Woods David A. Stein, Esq. Marleen L. Sacks, Esq.
For Defendant, Appellant and Respondent City of Oakland	John A. Russo, City Attorney Barbara J. Parker, Assistant City Attorney Mark T. Morodomi, Deputy City Attorney Kevin D. Siegel, Deputy City Attorney

Sacks v. City of Oakland; A126781, A126817


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