County of Sacramento v. Superior Court

[471]

Opinion

PIERCE, J.

*

The County of Sacramento has petitioned for a writ of prohibition restraining the superior court from proceeding with the trial of a petition for a writ of mandate brought by its former auditor-controller, Walter R. Hale (real party in interest), as plaintiff versus the county as defendant. The purpose of the proceeding in mandamus is to compel the county to pay Hale’s attorney’s fees and costs incurred in defending himself in an earlier criminal proceeding.

The earlier proceeding was based upon a grand jury accusation filed June 18, 1963, to remove Hale from office for wilful misconduct. The charge was dismissed and the dismissal was affirmed by the Court of Appeal for the Fifth District in

People

v.

Hale

(1965) 232 Cal.App.2d 112 [42 Cal.Rptr. 533].

1

The current mandamus proceeding brought by Hale was the third of three court actions attempting to assert his claim for attorney’s fees and costs. In the others demurrers were either sustained or the action abandoned. The claim under all of them was and is that Government Code section 995.8 is apposite to afford Hale relief. That section in relevant part provides: that a public entity is not required to provide for the defense of a criminal action (including a Gov. Code, § 3060, action) brought against an employee or former employee but

may

do so (a) if the criminal action is brought on account of an act or omission in the scope of his employment, and (b) if the defense would be in the best interests of the public entity and if the public employee acted in good faith, without malice, and in the apparent interests of the public entity.

It is the position of the county in bringing the current proceeding that Hale has not stated a cause of action under the foregoing Government Code section and that the trial of the action should be prohibited. This court issued an order to show cause on April 8, 1971.