Friday, May 1, 2009
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C.A. Rejects Ex-Sheriff’s Bid to Have County Pay Legal Fees
By KENNETH OFGANG, Staff Writer
The former sheriff of Kern County, who won a lawsuit in which the county accused him of having illegally paid overtime to top-ranking deputies, is not entitled to recover his legal fees from the county, the Fifth District Court of Appeal has ruled.
The justices Thursday affirmed the denial of Carl Sparks’ petition for writ of mandate, holding that relief was foreclosed by the ex-sheriff’s failure to file a claim under the government claims statutes.
The county sued Sparks—who stepped down in 2002 after 12 years in office—in 2004, claiming that he illegally paid $39,000 in overtime to several commanders. Pleading causes of action for false claims and misrepresentation, the county sought to recover the money and to avoid having to treat the amounts as earnings in calculating the commanders’ future pension benefits.
Sparks asked the county to defend him from the suit, but it would not do so. Using retained counsel, he won in both the trial and appellate courts and brought a petition for writ of mandate seeking reimbursement.
The petition was denied, and the Court of Appeal affirmed in 2006, holding that at the time the trial court ruled, there was no legal authority for a county to provide outside counsel to a former sheriff sued in connection with his official acts.
The court held open the possibility that Sparks might be entitled to reimbursement under urgency legislation, enacted a month prior to its decision, providing for outside counsel at county expense “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.”
The ruling also left open the questions of whether the urgency legislation was retroactive, and if so, whether it was constitutional. Those issues were never resolved, however, because Kern Superior Court Judge Arthur Wallace denied the petition on the ground that Sparks had not presented the county with a claim for damages.
On appeal, Sparks argued that he was seeking to enforce the county’s duty to pay legal costs, not to collect “money or damages,” and thus no claim was required. But Justice Herbert Levy, who also authored the 2006 opinion, said the trial judge was correct.
Levy distinguished cases holding that no claim is required in order to sue a public entity for injunctive or declaratory relief, even if the plaintiff is seeking incidental monetary relief such as court costs, or to sue for the return of specific property.
Those exceptions are narrow, Levy suggested. The property exception is limited to bailments, he explained, and while Sparks might not have needed to file a claim in order to seek an order requiring payment of future costs, he was required to file one in order to seek reimbursement of costs already incurred, the justice said.
Levy went on to reject the argument that letters written by Sparks or on his behalf to the county counsel in 2005 and 2006 constituted claims for reimbursement.
In the first letter, Sparks’ attorney asked for separate counsel and stated:
“This is not an analysis of duties to defend as found in the Tort Claims Act but, rather, an analysis of the duty to provide separate counsel pursuant to §31000.6 where, as here, a conflict exists in the dual representation of both the County and Sheriff Sparks by the same attorney(s).”
In the second letter, which was copied to the local media, Sparks chronicled the underlying litigation and suggested that the board stop spending money in the suit against him.
The first letter, Levy noted, disclaimed any effort to comply with the claims statutes, while the second letter dealt with the county’s litigation costs, not the ex-sheriff’s. Neither met the requirements of a claim, as set forth in Government Code Sec. 910, the justice declared.
The case is Sparks v. County of Kern, F055455.
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