(Super. Ct. No. 30-2009-00300559) Appeal from a judgment of the Superior Court of Orange County, Francisco F. Firmat, Judge. Affirmed. Motion for sanctions. Denied.
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Government Code section 68097.2, subdivision (b) provides that when a peace officer is subpoenaed to testify, "[t]he party at whose request the subpoena is issued shall reimburse the public entity for the full cost to the public entity incurred in paying the peace officer." If the actual expenses prove to be more than the amount deposited, section 68097.2, subdivision (d) provides the difference shall be paid by "the party at whose request the subpoena is issued."
The issue presented in this appeal is whether the term "the party at whose request the subpoena is issued," as used in Government Code section 68097.2, subdivisions (b) and (d), means both the litigant and the litigant's counsel, or just the litigant. In other words, can counsel also be responsible under section 68097.2 for reimbursing the public entity the cost of paying the subpoenaed peace officer? The trial court granted the motion for judgment on the pleadings of defendant City of Costa Mesa (the City)*fn1 and found that plaintiff Chad R. Maddox, an attorney, was responsible for paying costs pursuant to section 68097.2 for subpoenas he requested on behalf of his client.
We hold the term "the party at whose request the subpoena is issued" in Government Code section 68097.2 means the litigant and the litigant's counsel, either of whom is responsible for reimbursing the public entity for its costs in paying the subpoenaed peace officer. We do so because the subject matter of that code section does not affect the substantial rights of the parties. Accordingly, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Maddox represented Christopher Elliott in a Department of Motor Vehicles (DMV) proceeding. In June 2008, Maddox signed, on Elliott's behalf, a subpoena, pursuant to Government Code section 68097.1, for the appearance of Costa Mesa Police Officer Jeff McCann at a DMV administrative hearing scheduled for July 28, 2008. The subpoena was served, and Officer McCann appeared at the hearing.
In September 2008, Maddox signed, on Elliott's behalf, another subpoena, pursuant to Government Code section 68097.1, for the appearance of Costa Mesa Police Officer Anthony Reitz at a second DMV administrative hearing scheduled for September 25, 2008. The subpoena was served, and Officer Reitz appeared at the hearing.
Maddox posted the required deposit of $150 for each subpoena when the subpoenas were served. Because the actual expenses incurred by the City exceeded the amount of the deposits, the City sent Maddox an invoice for $36.71 for Officer McCann's appearance, and an invoice for $16.69 for Officer Reitz's appearance. Maddox declined to pay the invoices and advised the City to seek payment directly from Elliott.
In September 2009, Maddox filed a verified complaint for declaratory relief against the City, alleging an actual controversy existed "concerning their respective rights and duties in that plaintiff contends that whatever costs are owed to the City of Costa Mesa under Government Code §68097.2, if any, are the sole responsibility of the party to the action, Christopher Elliott . . . ." Maddox alleged: "Plaintiff desires a judicial determination of his rights and duties, and a declaration from this court that fees owed under Government Code §68097.2 are owed by the party of the action, not the party's legal representative, and that any fees owed related to this matter, are not the responsibility of Mr. Maddox."
The City answered and moved for judgment on the pleadings, arguing that under Government Code section 68097.2, both the litigant and the litigant's attorney are responsible for reimbursing the City's expenses. The trial court granted the motion and in the order granting the motion stated: "Maddox is obligated by law to reimburse the City of Costa Mesa for costs incurred because of the request for issuance of subpoenas for the appearance of Costa Mesa Police Department officers, and as such, . . . Maddox shall pay to the City of Costa Mesa the sum of $53.40 within 10 days of the date of this Order." Judgment in favor of the City was entered on December 20, 2010. On the court's own motion, the clerk's transcript is ordered augmented to include the judgment. (Cal. Rules of Court, rule 8.155(a)(1).)
Maddox filed his notice of appeal in February 2010, after entry of the order granting the City's motion for judgment on the pleadings, but before entry of judgment. We treat the notice of appeal as validly filed after ...