CALIFORNIA HOUSING FINANCE AGENCY v. HANOVER/CALIFORNIA MANAGEMENT AND ACCOUNTING CENTER, INC.,

Filed 3/15/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STORY CONTINUED FROM PART I

Courts have recognized that liability under section 1090 may apply to an outside attorney in a position of influence over the public agency. For example, in People v. Gnass (2002) 101 Cal.App.4th 1271 (Gnass), the defendant was a partner in a private law firm acting as city attorney under a contract which paid the firm a monthly retainer based on a set number of hours per month, and an hourly rate thereafter. (Id. at p. 1279.) The city and its redevelopment agency formed a public financing authority, for which the defendant also acted as counsel. The public financing authority then joined with other local public agencies to form a number of joint power authorities which issued a series of bonds. The defendant earned fees from the bond issues either for services rendered as disclosure counsel or for services rendered to another attorney who acted as disclosure counsel. The Court of Appeal determined the grand jury had probable cause to believe defendant violated section 1090 based on the fees earned in connection with the bond issues. (Id. at pp. 1278-1279.) The courtrecognized that neither the city nor the defendant was a party to the contracts for the bond issues, but nonetheless concluded the defendant had acted in an official capacity because he was in a position to exert considerable influence over the decisions of the public financing authority to enter into joint powers agreements and issue the bonds. (Id. at p. 1298.)^[1]

Similarly, in Campagna v. City of Sanger (1996) 42 Cal.App.4th 533, the defendant was an associate, and later a partner, of a law firm acting as city attorney. Under a written agreement, the city paid the firm a flat monthly amount for general consulting, and agreed to pay for other services, such as litigation, on a reasonable legal fee basis, depending upon the type of service rendered. (Id. at p. 535.) The city asked the defendant to retain an outside law firm to file a claim against several chemical companies. The defendant negotiated, and the city approved, a written contingency fee agreement with his own firm in association with another firm. The agreement disclosed the total contingency fee, but failed to reveal the associated firm had agreed to pay defendant a referral fee of 35 percent of the total fee. The court recognized the defendant acted as a private attorney in negotiating the contingency fee between his firm and the city, but concluded he acted in an official capacity in choosing the associated firm and negotiating with it, rendering him liable under section 1090. (Id. at pp. 541-542.)

In Schaefer v. Berinstein (1956) 140 Cal.App.2d 278 (Schaefer), the city had contracted with an attorney to rehabilitate tax-deeded and special assessment frozen properties within the city. (Id. at p. 291.) The attorney had purchased many of these properties from the city through third parties at prices far below their fair market value, while assuring the city the price paid was fair. The court ruled the attorney violated a city charter provision similar to the current version of section 1090, which prohibited an officer or employee of the city from having a financial interest in a transaction with the city. (Schaefer, at p. 287, fn. 2.)

The court in Schaefer observed that even without the citys conflict of interest charter provision, the attorneys actions would have violated section 1090, even though the statute at that time did not expressly include employees. (Schaefer, supra,140 Cal.App.2d at p. 291.) The court observed: Statutes prohibiting personal interests of public officers in public contracts are strictly enforced. [Citation.] . . . [] A person merely in an advisory position to a city is affected by the conflicts of interest rule. [Citation.] . . . [The retained attorney] was an officer and agent of the city and as such was in a position to advise the city council as to what action should be taken relative to the property involved. (Ibid; see also Terry v. Bender (1956) 143 Cal.App.2d 198 (Terry) [involving the same attorney and scheme].)

The California Attorney General has opined that a financial consultant retained on a temporary basis to provide advice in connection with a bond issue is an employee under section 1090 despite being an independent contractor. (46 Ops.Cal.Atty.Gen. 74 (1965).)^[2] Relying in part on Schaefer and Terry, supra, the Attorney General observed: It seems clear that the Legislature in later amending section 1090 to include employees intended to apply the policy of the conflicts of interest law, as set out in the Schaefer and Terry cases, to independent contractors who perform a public function and to require of those who serve the public temporarily the same fealty expected from permanent officers and employees. (Id. at p. 79.)

Consistent with the above authorities, we conclude that an attorney whose official capacity carries the potential to exert considerable influence over the contracting decisions of a public agency is an employee under section 1090, regardless of whether he or she would be considered an independent contractor under common-law tort principles. (See Gnass, supra, 101 Cal.App.4th at p. 1298.) Otherwise, the attorney could manipulate the employment relationship to retain official capacity influence, yet avoid liability under section 1090. Indeed, the evidence presented here suggests such a situation. McWhirk was CHFAs in-house counsel for six years, becoming its outside counsel before commencing the insurance skimming scheme with Schienle. Nothing in the record demonstrates McWhirks change in title diminished his influence over the agency.

The authority defendants rely on does not contradict our conclusion. Specifically, defendants misconstrue a footnote in Gnass to support the argument section 1090 does not apply to independent contractors. (See Gnass, supra, 101 Cal.App.4th at p. 1302, fn. 10.) But the opinion merely described the trial courts response to the prosecutors argument that the lawyers independent contractor status deprived him of the defense in section 1091.5, subdivision (a)(9), which exempts [a]n officer or employee from liability from certain transactions where a full disclosure has been made.^[3] Recognizing the apparent incongruity of asserting section 1090 applied to the defendant, but the similarly-worded section 1091.5 did not, the appellate court remarked: Of course, if Gnass was not an employee for purposes of section 1091.5, neither was he for purposes of section 1090, in which case the conflict-of-interest statutes would not apply at all. We see no reason why one could be an employee for one and not the other. (Gnass, at p. 1302, fn. 10.) The Gnass court already had determined the attorney fell within the scope of section 1090. Thus, the court simply questioned the prosecutors argument that section 1091.5 did not cover the defendants conduct, but did not suggest independent contractors are exempt from liability under section 1090.

Also unavailing is the defendants reliance on Pacific Finance Corp. v. Lynwood (1931) 114 Cal.App. 509 (Pacific Finance). There, the city attempted to prevent payment to the assignee of an engineer retained by the city, arguing that public policy prohibited assignment of a public officers unearned salary. The court rejected the citys argument that the engineer was a public officer, observing: There is not a word in the contract between [the engineer] and appellant city which indicates that the parties were endeavoring to insert [the engineer] into the office of city engineer . . . or to create for him any public office. His is not, by virtue of the contract, a public officer. (Id. at p. 514-515.)

Pacific Finance does not aid defendants for two reasons. First, the case never addressed when a contracting party could be considered an employee of a public agency. Thus, even if McWhirk was not an officer under the holding of Pacific Finance, he still could be an employee under section 1090. Second, defendants have not demonstrated any parallel between section 1090 and the policy against assignment of a public officers unearned salary. As we have discussed, conflict of interest provisions cannot be given a narrow and technical interpretation that would limit their scope and defeat the legislative purpose. (Honig, supra, 48 Cal.App.4th at p. 314.) Absent some showing that the public policy at issue in Pacific Finance has a scope and purpose similar to the conflict of interest statutes, we decline to engraft the courts public officer analysis onto section 1090. In sum, we reject defendants challenge to the trial courts jury instruction that section 1090 may never apply to independent contractors.

2. The Trial Court Did Not Err in Rejecting Defendants Remoteness Instruction

Defendants contend the trial court erred by rejecting their special instruction which limited consideration of section 1090s financial interest element to the time when HC and CHFA executed their agreement. Defendants proposed instruction read as follows: [T]he term financial interest means that Defendants received a direct or indirect benefit from the contract when it came into existence. You are only to focus on the date the alleged illegal contract came into existence unless there is evidence of an express or implied agreement between Defendants related to the contract to provide a direct or indirect benefit at a later point in time.

Section 1090s financial interest requirement is not determined by focusing solely on the moment the illegal contract came into existence. Honig is instructive. There, the state superintendent of public education arranged contracts between the Department of Education and a number of school districts to pay the salaries of certain educators employed by a nonprofit entity which also employed the defendants wife. In determining the defendants financial interest in the contracts, the court considered the operation of the entire arrangement, including how the defendant funneled money from the Department of Education to the school districts, which then paid the educators working for the wifes employer. This, in turn, allowed the wifes employer to pay her salary and pay rent to the defendant. On this point, the court noted: In considering conflicts of interest we cannot focus upon an isolated contract and ignore the transaction as a whole. (Honig, supra, 48 Cal.App.4that p. 320.)

Here, Schienles execution of the HC contract was only the first step in a larger design. The extent of defendants financial interest in the contract was manifest in how the entire scheme operated over a six-year period. Limiting the jury to viewing only the events surrounding the execution of the contract would provide them an overly narrow view of the defendants true interest in the deal.

The cases defendants rely on do not dictate a different approach. For example, in Thomson, supra, 38 Cal.3d 633, the Supreme Court recognized that the policy goals of section 1090 support the rule that public officers are denied the right to make contracts in their official capacity with themselves or to become interested in contracts thus made. (Id. at p. 645.) Thus, the court applied section 1090 where a city council member sold property to a developer who dedicated it as a public park under a preexisting agreement between the developer and the city. In upholding the defendants conviction, the court not only considered the citys contract, but also the manner in which it was ultimately carried out.

Defendants also rely on cases holding that in the absence of tolling (such as fraudulent concealment), the statute of limitations for section 1090 begins to run on the challenged contracts execution. (See Marin Healthcare Dist. v. Sutter Health (2002) 103 Cal.App.4th 861, 879-880; Honig, supra, 48 Cal.App.4th at p. 339; Smith v. Superior Court (1994) 31 Cal.App.4th 205, 212.) That the statute of limitations may commence upon a contracts execution, however, does not mean the jury cannot consider the manner in which the contract is carried out to determine the extent of the defendants financial involvement. Consequently, the trial court properly rejected defendants remoteness instruction.

3. Defendants Were Not Entitled to an Instruction that Section 1090 Requires a Defendant to Knowingly Posses a Financial Interest

Defendants contend the trial court erred when it refused to instruct the jury that section 1090 requires a defendant to knowingly possess a financial interest. We disagree.

Defendants rely on Honig, which required a defendant in a criminal case to knowingly violate section 1090. The knowingly requirement does not arise from section 1090, however, but from section 1097, which makes a public official who willfully violates section 1090 guilty of a felony. (See Honig, supra, 48 Cal.App.4th at pp. 335-336.) Honig recognized that the term willfully, . . . imports a requirement that the person knows what he is doing. (Id. at p. 334.) The court concluded knowledge is an implied element of a willful violation of the conflict-of-interest statutes. [Fn. omitted.] (Id. at p. 335.)

Section 1090, however, lacks the element of willfulness specified in section 1097. On this point, Finnegan v. Schrader (2001) 91 Cal.App.4th 572 observed: It is settled law that where a contract is made in violation of section 1090, the public entity involved is entitled to recover any compensation that it has paid under the contract without restoring any of the benefits it has received. [Citations.] The contract is against the express prohibition of the law, and . . . courts will not entertain any rights growing out of such a contract, or permit a recovery upon quantum meruit or quantum valebat. [Citations.] This principle applies without regard to the willfulness of the violation. A person who violates section 1090, regardless of whether the violation is intentional, forfeits any rights or interests flowing from the illegal contract. (Id. at p. 583, italics added.) Because a civil violation of section 1090 need not be willful, proof of defendants knowledge is not required, as it was in Honig. We conclude the trial court properly denied defendants instruction request.

E. Substantial Evidence Supports the $6.7 Million Damage Award

Defendants contend the evidence does not support the jurys $6,744,602 damage award, and request we reduce it to $142,350.13 as to Schienle and $2,506,286.74 as to McWhirk. Defendants rely on CHFAs trial exhibit 860, which indicated McWhirk personally received $1,119,180.92 from HC, McWhirks separate business enterprise Stars and Stripes received $1,385,105.82, and Schienle received $142,350.

Defendants argue the damages cannot exceed the amounts they each received. We disagree. As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.)

Defendants also assert that the jury was misled by the courts damage instruction for section 1090, which provided: Once a violation of Section 1090 has been established, the public agency is entitled to recover any money or other consideration that it has paid under the contract, without restoring the benefits received under the contract. This instruction is a correct statement of the law. (See Thomson, supra, 38 Cal.3d at p. 647 [recognizing that a public agency is entitled to recover any consideration which it has paid, without restoring the benefits received under the contract].)

During trial, CHFAs damages expert testified defendants failed to remit mortgage insurance premiums of $6,744,602, before interest. The jury apparently accepted the experts calculations in determining damages. We perceive no error in the award.

F. The Trial Court Did Not Err in Granting CHFAs Attorney Fee Motion

1. The Trial Court Had Jurisdiction to Hear CHFAs Fee Motion

Defendants contend the trial court lacked jurisdiction to grant CHFAs attorney fee motion because it was untimely. We are not persuaded. California Rules of Court, former rule 870.2(b)(1),^[4]provided that attorney fee motions shall be served and filed within the time for filing a notice of appeal under rules 2 and 3. Former Rule 2(a)^[5]provided: Unless a statute or rule 3 provides otherwise, a notice of appeal must be filed on or before the earliest of: [] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [] (2) 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 file-stamped copy of the judgment, accompanied by proof of service; or [] (3) 180 days after entry of judgment. Defendants note the clerk mailed a file-stamped copy of the judgment on November 19, 2004, and that CHFA filed its attorney fee motion on January 19, 2005, 61 days later.

California Rules of Court, former rule 3(e)(1),^[6]however, provided an extension to the 60-day time period, as follows: If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal. Because defendants timely appealed from the judgment, the time for CHFA to file an appeal, and thus a motion for attorney fees, was extended 20 days from the date the clerk mails notification of defendants appeal. Accordingly, CHFAs fee motion was timely.

Defendants contend, however, that California Rules of Court, former rule 3(e)(1) did not extend the time for CHFA to file a notice of appeal because its heading read cross-appeal. This argument is specious. There is no qualitative difference between filing a notice of appeal from a judgment in former rule 870.2(b)(1)), and appeal[ing] from the same judgment, employed in former rule 3(e)(1). Former rule 870.2(b)(1) expressly contemplated that the extensions set forth in former rule 3 would apply to attorney fee motions, and defendants have cited no cases which would exclude subpart (e)(1).

Defendants also contend that because CHFAs cross-appeal addressed the trial courts order granting their motion to strike, it was not an appeal from the same judgment as defendants appeal. Thus, defendants argue, CHFAs cross-appeal did not extend the time to file an attorney fee motion. This argument is meritless. California Rules of Court, former rule 870.2(b)(1) required only that a party file an attorney fee motion within the time for filing an appeal; it did not require an appeal to actually be filed. Thus, even if CHFAs cross-appeal was not from the judgment (or even a sham, as defendants assert) and did not fall within the extension found in former rule 3(e)(1), the extension nonetheless applied to the attorney fee motion, which was keyed to the time for filing an appeal from the judgment. Consequently, the trial court had jurisdiction to hear CHFAs attorney fee motion.

2. The HC Contract Supports the Attorney Fee Award

Defendants contend that the jurys determination that they violated section 1090 meant that all provisions of the HC contract were unenforceable, including the attorney fee provisions. We disagree.

Civil Code section 1717 makes a unilateral right to attorney fees under a contract reciprocal, thus ensuring the mutuality of remedy. The provision not only creates mutuality in one-sided agreements, but also where one party successfully argues the inapplicability, invalidity, unenforceability, or nonexistence of the same contract. (Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) Because these arguments are inconsistent with a contractual claim for attorney fees under the same agreement, a party prevailing on any of these bases usually cannot claim attorney fees as a contractual right. If section 1717 did not apply in this situation, the right to attorney fees would be effectively unilateral . . . because only the party seeking to affirm and enforce the agreement could invoke its attorney fee provision. To ensure mutuality of remedy in this situation, it has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that partys recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. (Ibid.)

This principle applies here. HC filed a cross-complaint against CHFA, seeking damages for breach of the HC contract. The agreement contains an attorney fee clause which would have required CHFA to pay HCs reasonable attorney fees if HC had prevailed. Denying CHFA fees simply because it prevailed on its section 1090 claim would eliminate the mutuality Civil Code section 1717 assures. The result is particularly unjust where CHFA was forced to expend the publics funds to recover money effectively stolen by two of its fiduciaries.

Relying on Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832 and Geffen v. Moss (1975) 53 Cal.App.3d 215, defendants argue that an attorney fee provision is unenforceable if it is contained in a contract the court declares illegal. The rule in Bovard and Geffen, however,applies where the contract is unenforceable due to its illegal object. (See Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1081-1082 (Yuba).) For example, the contract in Bovard called for the manufacture of drug paraphernalia. (Bovard, at pp. 837, 839-841.) Similarly, Geffen involved a contract to purchase the goodwill of a law practice. (Geffen, at pp. 225-227.)

Courts refuse to enforce attorney fee provisions in these cases to discourage agreements to achieve illegal goals. As Yuba explains: Where the object of the contract is illegal, courts generally will not enforce it or lend assistance to a party who seeks to benefit from an illegal act. [Citation.] The reason for this refusal is not that the courts are unaware of possible injustice between the parties, and that the defendant may be left in possession of some benefit he should in good conscience turn over to the plaintiff, but that this consideration is outweighed by the importance of deterring illegal conduct. Knowing that they will receive no help from the courts and must trust completely to each others good faith, the parties are less likely to enter an illegal arrangement in the first place. (Yuba, supra, 98 Cal.App.4th at p. 1082.)

Here, the object of the contract was for HC to provide CHFA collection and accounting services. Although the contract was void under section 1090, its object was not illegal. Moreover, a denial of attorney fees in the present case would not deter the illegal conduct at issue here, but would have the opposite effect. Courts have allowed an innocent party to claim protection under a contract rendered illegal by statute where doing so would serve the statutes underlying purpose. As Yuba observed: [W]hen the Legislature enacts a statute forbidding certain conduct for the purpose of protecting one class of persons from the activities of another, a member of the protected class may maintain an action notwithstanding the fact that he has shared in the illegal transaction. [Citation.] The protective purpose of the statute is realized by allowing the plaintiff, who is not in pari delicto, to enforce the contract or maintain his action against a defendant within the class primarily to be deterred. [Citations.] (Yuba, supra, 98 Cal.App.4th at pp. 1082-1083.) Following this principle, the Yuba court awarded attorney fees to a plaintiff who obtained a ruling that the contract containing the attorney fee provision was void under the Subdivided Lands Act. (Id. at p. 1083.) We discern no reason why the same principle should not apply here.

3. Defendants Have Not Demonstrated the Court Improperly Awarded Attorney Fees

Defendants contend the trial court erred in awarding attorney fees which related to matters other than CHFAs breach of contract claim. Defendants argue that the gravamen of CHFAs case was fraud and section 1090 violations, not breach of contract. But defendants fail to recognize that fraud and section 1090 served not only as a basis for affirmative recovery, but also as a defense to HCs cross-complaint for breach of the HC contract. Thus, legal fees incurred in connection with these matters are inseparable from the contract issues. We therefore do not disturb the fee award.

G. The Trial Court Did Not Err in Awarding Prejudgment Interest

1. The Trial Court Expressly Authorized CHFA to Bring Its Prejudgment Interest Motion After Entry of Judgment

Defendants contend the trial court erred in awarding $492,817.15 in prejudgment interest on the contract claims against McWhirk because the motion was untimely. We disagree.

The jury awarded CHFA prejudgment interest on its tort claims under Civil Code section 3288 against all defendants. Following the verdict, CHFA also sought prejudgment interest against McWhirk under Civil Code section 3287, which applies to any liquidated damages and unliquidated contract damages. CHFA made its request to the court in a letter accompanying its proposed judgment. The letter, served on opposing counsel, explained the basis for CHFAs interest calculations in its proposed judgment. At a hearing on defendants objections, the trial court determined that entry of judgment was premature because the court had yet to rule on CHFAs unfair competition claim. At the courts request, CHFA prepared a judgment which concluded: The amount of prejudgment interest to be awarded to plaintiff will be determined after entry of judgment. The court entered the judgment on November 19, 2004, and CHFA filed its motion for prejudgment interest on January 19, 2005. The trial court granted the motion.

Defendants rely on North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (North Oakland) in arguing the prejudgment interest motion was untimely. There, the plaintiffs did not request the trial court award prejudgment interest, but simply inserted prejudgment interest in a proposed order granting them costs. The trial court later vacated its prejudgment interest award when it learned the plaintiffs had not orally requested prejudgment interest during the motion to tax costs. The appellate court affirmed, noting that no statute or rule of court established a procedure or time limit for requesting prejudgment interest. (North Oakland, at pp. 829-830.) The court also recognized that prejudgment interest is not a cost, but an element of damages and therefore should be included in the judgment. (Id. at p. 830.) The court concluded that requests for prejudgment interest under section 3287 by a successful plaintiff must be made by way of motion prior to entry of judgment, or the request must be made in the form of a motion for new trial no later than the time allowed for filing such a motion. (Id. at pp. 830-831.)

We agree the procedure and time frame prescribed in North Oakland is appropriate in the absence of a statute or rule of court. Nevertheless, as North Oaklandrecognized, the rule it created does not limit the trial courts power to award costs where justice requires. Indeed, the court in North Oaklandconsidered affirming the plaintiffs prejudgment interest award because no clear procedural guidelines existed. Ultimately, North Oakland denied prejudgment interest based on the delay in seeking prejudgment interest and the plaintiffs egregious conduct in simply inserting the interest into a proposed order without formally raising the issue with the court. (North Oakland, supra, 65 Cal.App.4th at p. 831.)

The present case is distinguishable from North Oakland. Here, CHFA requested prejudgment interest before entry of the judgment. Although CHFA should have raised the matter by noticed motion, they did bring it to the courts attention in writing. At the hearing on defendants objections to the proposed order, the trial court correctly required a motion to raise the issue but incorrectly informed CHFA that it should bring the motion after judgment had been entered. Because CHFA first requested prejudgment interest in writing before entry of judgment, we must conclude it would have brought a noticed motion before entry of judgment had the trial court not expressly told it to wait. Accordingly, under the circumstances presented we deem the motion as having been made before entry of judgment, and do not disturb the courts prejudgment interest award.

2. The Prejudgment Interest Award on CHFAs Contract Claim Against McWhirk Was Not a Double Recovery

Defendants contend the additional prejudgment interest award of $492,817.15 against McWhirk based on CHFAs contract claims constituted a double recovery in light of the jurys prejudgment interest award of $1,149,903.72 on CHFAs tort claims against all defendants. We disagree.

Prejudgment interest on CHFAs tort claims accrued at the rate of seven percent. (See Cal. Const., art. XV, 1.) Seven percent of the $6,744,602 damages found by the jury comes to $472,122.14 per year, or approximately $1,293.48 per day. This amount multiplied by 889 days (representing the time between the filing of the complaint on June 14, 2002, through the entry of judgment on November 19, 1984) yields $1,149,903.72, the interest awarded on CHFAs tort claims.

Prejudgment interest on CHFAs contract claims against McWhirk accrued at the statutory rate of 10 percent. (See Civ. Code, 3289, subd. (b).) Ten percent of the $6,744,602 damages found by the jury equals $674,460.20 per year, or approximately $1,847.83 per day. This amount multiplied by 889 days yields $1,642,720.87. To avoid double counting, this product is reduced by subtracting the interest on the tort claims, $1,149,903.72, to yield an additional prejudgment interest on the contract claims against McWhirk of $492,817.15. We perceive no error in the prejudgment interest awards.

Because we do not disturb the judgment, we need not consider CHFAs protective cross-appeal.

III

Disposition

The judgment and orders are affirmed. CHFA is entitled to its costs of this appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II.B, II.C, II.D.2, II.D.3, II.E, II.F, and II.G.

^[1] The Gnass court, however, upheld the trial courts dismissal of the indictment due to the prosecutors failure to properly instruct the jury.

^[2] Although we are not bound by the Attorney Generals opinions, they are entitled to considerable weight. (Gnass, supra, 101 Cal.App.4th at p. 1304.)

^[3] This section provides: (a) An officer or employee shall not be deemed to be interested in a contract if his or her interest is any of the following: [] . . . [] (9) That of a person receiving salary, per diem, or reimbursement for expenses from a government entity, unless the contract directly involves the department of the government entity that employs the officer or employee, provided that the interest is disclosed to the body or board at the time of consideration of the contract, and provided further that the interest is noted in its official record.

^[4] Now rule 3.1702(b)(1).

^[5] Now rule 8.104(a).

^[6] Now rule 8.108(e)(1).