Kuklenski v. County of Ventura CA2/6

Filed 10/1/14 Kuklenski v. County of Ventura CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MATTHEW KUKLENSKI, 2d Civil No. B251956 (Super. Ct. No. 56-2012-00421492- Plaintiff and Appellant, CU-WM-VTA) (Ventura County) v.

COUNTY OF VENTURA et al.,

Defendants and Respondents.

Matthew Kuklenski, on behalf of himself and others similarly situated, appeals a judgment after orders granting County of Ventura's ("County") motion to dismiss this case as moot, denying Kuklenski's request for leave to amend his complaint to name a substitute class representative, denying his motion to compel precertification discovery to find a class representative, and denying two motions for attorney fees under a private attorney general theory. (Code Civ. Proc., § 1021.5.)1 We affirm. FACTUAL AND PROCEDURAL BACKGROUND Until February 2012, County charged individuals for the cost of nonemergency blood draws in connection with their arrests for suspicion of driving under the influence (DUI). County stopped the practice after Sean Henggeler presented a Government Claims Act claim for reimbursement on behalf of himself and others

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.

similarly situated. (Gov. Code, § 905.) Henggeler argued that the practice was not authorized by law. (Pen. Code, §§ 1463, 1463.5; People v. Minor (2002) 96 Cal.App.4th 29, 34 [a government entity may not recover costs of law enforcement absent authorizing legislation].) Attorneys Brian A. Vogel and Heather Quest (hereafter "plaintiff's counsel") presented Henggeler's government claim and negotiated its resolution. County formally rejected Henggeler's claim, but issued a refund to him and to each individual it could identify who it had charged for DUI blood draws. There were about 800 such individuals and they all received refunds by April 2012. Plaintiff's counsel was aware of the refunds but continued to negotiate with County for interest and attorney fees. In May 2012, County decided to pay interest, and in June it calculated the interest. Over the following six months, it processed the interest payments. It also contacted credit reporting agencies and asked them to remove any negative information resulting from failure to pay for the blood draws. It did not agree to pay attorney fees. Plaintiff's counsel filed this lawsuit in July 2012 on behalf of Matthew Kuklenski, a class representative. Henggeler declined to participate. Kuklenski paid County for a DUI blood draw in December 2010, nine months before Henggeler presented his government claim. Kuklenski did not present a government claim. County refunded Kuklenski's payment in February 2012, before Kuklenski filed the lawsuit. Kuklenski alleged that he had not been paid interest and had not been compensated for any financial damages "potentially suffered" as a result of a negative credit report. He alleged there was a class of persons similarly situated who had been charged for DUI blood draws between September 2008 and March 2012 and to whom County had not paid interest or "account[ed] for any financial damages" related to negative credit reports. County demurred to the complaint on the ground that neither Kuklenski nor any member of the class filed a government claim within six months of the date Kuklenski paid the DUI blood draw bill. (Gov. Code, §§ 905, 945.4, 911.2, subd. (a).) It asserted other grounds, but these did not include mootness.