Judge Holly J. Fujie, Case 21STCV42264 2023-04-28 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Plaintiffs County of Los Angeles (the “County”), Los Angeles County Sheriff’s Department, and Los Angeles County Sheriff Alex Villanueva (“Villanueva” or the “Sheriff”) (collectively, “Plaintiffs”)

Plaintiffs’ complaint (the “Complaint”) alleges a cause of action for declaratory relief. In relevant part, the Complaint seeks a declaration that a retainer agreement (the “Agreement”) between Villanueva and Defendant, for Defendant to represent Villanueva in the case styled as County of Los Angeles v. Villanueva et al., LASC Case No. 19STCP00630 (the “Mandoyan matter”) is unenforceable and cannot be cited as a basis to compel Plaintiffs into arbitration to resolve a dispute over Defendant’s compensation.[1]

On August 10, 2022, Plaintiffs filed a motion for summary judgment (the “Motion”) on the ground that there are no disputes of material fact regarding the declaratory relief claim.

Defendant’s objections to the Declaration of Dimitri D. Portnoi (“Portnoi Decl”) are OVERRULED.

Plaintiffs’ objections to the Declaration of Steven G. Madison (“Madison Decl.”) numbers 1 and 3 are SUSTAINED. The remainder of Plaintiffs’ objections to the Madison Declaration are OVERRULED.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the judge to grant summary judgment if all the evidence submitted and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

A plaintiff moving for summary judgment or summary adjudication meets the burden of showing that there is no defense to a cause of action if the plaintiff has proved each element of the cause of action entitling them to judgment on that cause of action. (CCP § 437c, subd. (p)(1).) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of the opposing party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

In support of the Motion, Plaintiffs provide evidence that on February 28, 2019, County Counsel sent Villanueva a letter informing him of a conflict between him and the Board in the Mandoyan matter and offering him conflict counsel (the “February 28 Letter”). (Separate Statement of Undisputed Material Facts (“UMF”) 5.) The February 28 Letter states, in part:

“Accordingly, pursuant to California Government Code section 31000.6(a), the Board of Supervisors will provide you with independent legal counsel for the sole issue stated above. To be clear, the Board of Supervisors has not authorized you to use independent counsel for any other issue. The scope of independent counsel’s representation is limited to this specific matter.

You may select which independent counsel to represent you in this matter. However, please note that the Board of supervisors has discretion to pay such compensation as it deems just and proper for these services. (Government Code § 31000.).” (Declaration of Dawyn R. Harrison (“Harrison Decl.”) ¶ 2, Exhibit A (emphasis in original).)

Villanueva thereafter selected Defendant as his conflict counsel. (See UMF 6.) On March 28, 2019, Defendant sent the Agreement to Villanueva. (UMF 8.) The Agreement authorizes billing rates from $695 to $1,400 per hour and includes a provision requiring fee disputes to be decided in binding arbitration. (See UMF 8, Portnoi Decl., Exhibit 10.)

On March 29, 2019, County Counsel sent Defendant a proposed retainer agreement (the “Proposed County Retainer”) that included the terms for Defendant’s engagement as Villanueva’s conflict counsel. (UMF 10.) Villanueva signed the Agreement on April 2, 2019, without providing a copy of the Agreement to the County or obtaining approval from County Counsel. (UMF 9.) Defendant did not acknowledge its receipt of the Proposed County Retainer before April 8, 2019. (See UMF 11.)

After County Counsel followed up with Defendant on April 8, 2019, Defendant inquired about the compensation being paid to the County’s outside counsel and did not assent to the Proposed County Retainer. (See UMF 12, Harrison Decl., Exhibit B.) Although County Counsel informed Defendant that Defendant needed to enter into a retainer agreement with the County in order to be compensated for its representation of the Sheriff, Defendant maintained its position that the February 28 Letter alone authorized Villanueva to enter into the Agreement. (See UMF 15-17.)

On August 22, 2019, the County filed an ex parte application to remove Defendant as the Sheriff’s counsel of record pursuant to Government Code section 31000.6. (UMF 24.) On September 19, 2019, Presiding Judge Kevin C. Brazile issued an order on the County’s application and found that Government Code section 31000.6 did not authorize him to remove Defendant as the Sheriff’s counsel. (Portnoi Decl., Exhibit 6.) In the September 19, 2019 minute order, Judge Brazile found: “there is no contract between the Board and [Defendant] to represent the Sheriff, and until this occurs, [Defendant] cannot be paid with County funds for its representation of the Sheriff.” (Id.; UMF 26.)

Defendant never entered into a retainer agreement with the County and continued to appear on Villanueva’s behalf in the Mandoyan matter until January 10, 2020. (See UMF 27-28.) On around October 29, 2021, Defendant filed a demand for arbitration to seek payment for the services it provided to Villanueva in the Mandoyan matter. (See UMF 37.)

A contract entered into by a local government without legal authority is wholly void, ultra vires, and unenforceable. (G.L. Mezzetta, Inc. v. City of American Canyon (2000) 78 Cal.App.4th 1987, 1092.) Persons dealing with a public agency are presumed to know the law with respect to any agency’s authority to contract. (Katsura v. City of Buenaventura (2007) 155 Cal.App.4th 104, 109.)

A county may exercise its powers only through the board of supervisors or through agents and officers acting under authority of the board or authority conferred by law. (Gov. Code § 23005.) The board of supervisors may contract for special services on behalf of the following public entities: the county, any county officer or department or any district or court in the county. (Gov. Code § 31000.) Upon request of the assessor, auditor-controller, or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor, auditor-controller or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor, auditor-controller or the sheriff. (Gov. Code § 31000.6, subd. (a).) The Los Angeles County Board of Supervisors (the “Board”) has delegated the authority to contract for legal services pursuant to Government Code sections 31000 and 23005 to County Counsel. (Board Policy 20.170 (July 15, 1987).)

Plaintiffs have met their burden to show that there are no triable issues of fact that the County did not enter into a fee agreement with Defendant and that the Sheriff lacked the authority to enter into the Agreement. The February 28 Letter states the basis for the offer to provide the Sheriff with independent counsel—Government Code section 31000.6. Government Code section 31000.6 does not authorize anyone other than the Board to contract with conflict counsel. (See Gov. Code § 31000.6, subd. (a).) The text of the February 28 Letter does not state that Villanueva was authorized to enter into a binding retainer agreement with counsel of his choice.[2]

Defendant argues that Plaintiffs ratified the Agreement with Villanueva and/or Villanueva entered into the Agreement as the County’s agent. Defendant has not raised a triable issue of material fact to support either of these contentions. Notably, Defendant provides no authority that states that an ultra vires municipal contract may be impliedly ratified. Nor does Defendant provide support for its position that the Sheriff could have been acting as an agent for the County notwithstanding the statutory provisions that expressly proscribe the individuals authorized to enter into a contract for legal representation.[3]

Defendant’s argument that the County admits that it was “retained” as the Sheriff’s conflict counsel does not raise a factual dispute regarding the County’s ratification of the terms of the Agreement. County Counsel contacted Defendant on March 29, 2019, before the Sheriff entered into the Agreement, with terms for Defendant’s payment and consistently thereafter asserted that Defendant had not entered into a valid fee agreement. Defendant provides no evidence that that the County ever used the term “retained” in a manner that may reasonably imply that it ratified the terms of the Agreement between Villanueva and Defendant.

As there are no triable issues of material fact that there is a valid contract between Plaintiffs and Defendant, there is no basis for Defendant to compel arbitration. The Court therefore GRANTS the Motion.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] On February 28, 2022, the Court granted Plaintiffs’ motion for preliminary injunction (the “PI Motion”) and enjoined the JAMS arbitration proceeding initiated by Defendant.

[2] Rather, the February 28 Letter states that although Villanueva was entitled to select counsel, the discretion to compensate his selected representation lay with the Board. The February 28 Letter also states that Villanueva could contact County Counsel with questions regarding the contents of the letter.

[3] The caselaw cited by Defendant does not concern public entities and is therefore inapposite. The Court additionally observes that Defendant’s argument that Villanueva was acting on the County’s behalf is undermined by the evidence that County Counsel separately sent Defendant the Proposed Retainer Agreement about contracting with the County before Villanueva entered into the Agreement.