Sparks v. Kern Co. Bd. of Supervisors

Filed 10/20/06 Sparks v. Kern Co. Bd. of Supervisors CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. Lee P. Felice, Judge.

Jones & Mayer, Martin J. Mayer, Paul R. Coble and Dean J. Pucci for Plaintiff and Appellant.

Kuhs & Parker, William C. Kuhs and Robert G. Kuhs for Defendant and Respondent and Real Party in Interest and Respondent.

Appellant Carl Sparks served as the elected sheriff of respondent County of Kern (County) from 1991 through 2002. County subsequently sued Sparks for alleged misconduct occurring while he was in office. Relying on Government Code section 31000.6, Sparks demanded that respondent Kern County Board of Supervisors (Board) provide him with a defense. The trial court ruled that this section did not apply to former sheriffs. The issue before this court is whether the trial court erred in ruling that the Board was not required to provide a defense for Sparks pursuant to this section, as it existed at the time the contested ruling was made. We conclude the trial court did not err and will affirm.

BACKGROUND

In October 2004, the County filed an action against Sparks alleging the filing of false claims, intentional misrepresentation and negligent misrepresentation. Sparks thereafter filed a writ of mandate under Code of Civil Procedure section 1085 and Government Code^[1] section 31000.6 directed to the Board, to compel it to provide him with a defense to the false claims action.

The County and the Board demurred on the ground that, under section 31000.6, Sparks was required to initiate an ex parte proceeding before the presiding judge of the superior court. The trial court sustained this demurrer “with prejudice“ on the ground that section 31000.6, subdivision (b), “requires that an ex parte proceeding before the presiding judge of superior court be initiated to review the board of supervisors’ determination that a conflict does not exist.”

Sparks then filed an ex parte application for declaration of conflict. Sparks alleged that county counsel denied his request for a defense to the false claims action and that he was entitled to independent legal counsel provided by the Board under section 31000.6. Under section 31000.6, subdivision (a), upon the sheriff’s request, “the board of supervisors shall contract with and employ legal counsel to assist the sheriff in the performance of his or her duties in any case where the county counsel would have a conflict of interest in representing the sheriff.”

The trial court denied the application on the ground that section 31000.6 applies to the sheriff only while in office. As discussed below, the trial court was correct. Accordingly, the order will be affirmed.

DISCUSSION

I. The order denying the application for counsel is a final determination of the rights of the parties in this regard and thus is appealable.

The County and the Board argue that the trial court’s denial of Sparks’s application for a declaration of conflict is not an appealable order and thus the appeal must be dismissed. They contend that the proceeding under section 31000.6 is neither an “action” nor a “special proceeding“ because the authority to rule resides in the presiding judge, not the superior court. The County and the Board further note that this order is not expressly made appealable by statute.

“Judicial remedies are such as are administered by the Courts of justice, or by judicial officers empowered for that purpose by the Constitution and statutes of this State.” (Code Civ. Proc., § 20.) Further, a judicial remedy is either an “action” or a “special proceeding.” (Code Civ. Proc., § 21.) Here, section 31000.6 empowers a judicial officer to determine whether county counsel would have a conflict of interest in assisting the sheriff in the performance of his or her duties as sheriff. Thus, under the above definitions, the section 31000.6 proceeding is a “special proceeding.”

The County and the Board are correct that this order is not expressly made appealable by statute. Nevertheless, it is a final determination of Sparks’s claim that the County is required to provide him with a defense to the separate false claims action. There are no remaining issues to be determined in this special proceeding.

A judgment is a final determination of the rights of the parties. (Code Civ. Proc., § 577; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.) It is not the form of the decree but the substance and effect of the adjudication that is determinative. (Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 698.) As a general test it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final. However, where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory. (Ibid.)

Under this standard, the ruling at issue is appealable. Moreover, even if not, it is within this court’s power to treat this appeal as a petition for writ of mandate. (Barnes v. Molino (1980) 103 Cal.App.3d 46, 51.)

II. Prior to its amendment in September of 2006, section 31000.6 did not apply to former sheriffs.

At the time the contested ruling was made, section 31000.6, subdivision (a), provided that upon the sheriff’s request, the board of supervisors shall contract with and employ legal counsel to assist the sheriff in the performance of his or her duties in any case where the county counsel would have a conflict of interest in representing the sheriff.

The plain language of section 31000.6 indicates that it applies only to current and future assistance to the sheriff in the performance of his or her duties. A former sheriff no longer requires such assistance. Having left office, Sparks was no longer in need of assistance in the performance of his duties. Thus, section 31000.6 did not require Board to provide Sparks with a defense.

III. Whether Sparks is entitled to a defense pursuant to the newly enacted subdivision (g) of section 31000.6 involves factual questions which must first be presented to and decided in the trial court.

On or about September 22, 2006, urgency legislation was enacted which, in relevant part, added subdivision (g) to section 31000.6. This subdivision provides:

“This section shall also apply to any matter brought after an assessor or sheriff leaves office if the matter giving rise to the need for independent legal counsel was within the scope of the duties of the assessor or sheriff while in office, and the assessor or sheriff would have been authorized under this section to request the appointment of independent legal counsel. [Italics added].”

Appellant urges us to apply subdivision (g) of section 31000.6 to the instant appeal. We decline to do so because the appellate record is insufficient to permit a determination of the subdivision’s potential applicability. In relevant part, subdivision (g) applies only if the matter giving rise to the need for independent legal counsel was within the scope of the duties of the sheriff. “The issue of scope of employment is generally a question of fact for the jury to determine.” (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289.) Only when “the facts are undisputed and no conflicting inferences are possible,” may the issue be decided by the court as a question of law. (Ibid.) Whether Sparks was acting within the course and scope of his employment when he authorized premium pay is a disputed factual question that was not ruled upon by the trial court. The appellate record does not contain sufficient evidence for us to resolve the point in the first instance as a matter of law. (Compare City of Redondo Beach v. DeLong (1981) 123 Cal.App.3d 1035, 1042-1043 [record established duties of city treasurer and supported trial court’s implied findings]. This conclusion obviates any need to determine whether the amended statute may retroactively be applied to the pending appeal.^[2]

DISPOSITION

The order is affirmed. Costs are awarded to respondents.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Gomes, J.

_______________________________

Kane, J.

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^[1] All further statutory references are to the Government Code unless otherwise indicated.

^[2] For purposes of this discussion only, we have assumed but not decided that respondent’s objection to the constitutionality of this amendment lacks merit.