CLIENT ALERT MEMORANDUM
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer, Esq.
ATTORNEYS MUST REIMBURSE CITIES AND ANY EXCESS FEES INCURRED BY ISSUING SUBPOENAS FOR POLICE OFFICERS
May 16, 2011
Recently, the California Court of Appeal ruled, in the case of Maddox v. City of Costa Mesa, 193 Cal. App. 4th 1098 (Cal. App. 4th Dist. 2011), that, when an attorney uses state law to subpoena a police officer to testify at a hearing, the attorney, as well as the client, is responsible for costs incurred by the city. The firm of Jones & Mayer represented the City of Costa Mesa in this action.
Attorney Would Not Pay Bill Owed to City, Arguing the Law Says “Invoice His Client.”
In 2008, Attorney Chad Maddox signed and issued subpoenas for the testimony of two Costa Mesa police officers at two separate DMV hearings. State law requires the posting of a deposit for each subpoena to cover city estimated costs in paying the officers for their time.
Cal. Gov. Code 68097.2 states, in part, that (b) The 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, firefighter, state employee, trial court employee, or specified county employee his or her salary or other compensation and traveling expenses as provided for in this section, for each day that the peace officer, firefighter, state employee, trial court employee, or specified county employee is required to remain in attendance pursuant to the subpoena. The amount of one hundred fifty dollars ($150), together with the subpoena, shall be tendered to the person accepting the subpoena for each day that the peace officer, firefighter, state employee, trial court employee, or specified county employee is required to remain in attendance pursuant to the subpoena.
The court noted that 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 was 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?”
In the instant case, the actual expenses incurred exceeded the amount of the deposits, so invoices were sent to Attorney Maddox for the excess costs. Rather than pay the small amount owed – just over $50.00 – Attorney Maddox sued the City of Costa Mesa for declaratory relief and a court order that the City should bill his client, and not bill the attorney who issued the two subpoenas. The City was forced to defend itself, and the City won the case at the trial court level. The trial court ordered Attorney Maddox to pay his bills. Attorney Maddox still refused and appealed the decision.
The appellate court not only affirmed the trial court decision, but also issued a published decision. As such, the decision can, henceforth, be used by cities if an attorney attempts to avoid paying costs incurred by the attorney under Government Code section 68097.2.
HOW THIS AFFECTS YOUR AGENCY
It is obvious that the amount of excess fees and expenses in this case were insignificant. In addition, there were no prior court decisions involving this issue and, therefore, it was necessary to develop legal arguments without any precedent on which we could rely. Nonetheless, the City believed it was necessary and appropriate to litigate the matter. That is a decision which must always be made when the issue is, primarily, one of principle and not money.
Before this published decision, an attorney could issue subpoenas to city employees and, then, not pay the city any excess costs that might have been incurred. Now, if a city wishes to pursue the matter, thanks to the City of Costa Mesa, it has case precedent to use in attempting to recover those expenses. Hopefully, this decision will reduce or eliminate the need for future litigation on this issue. As in all such matters, it is imperative that you receive advice and guidance from your designated legal advisor.
If there are questions about this decision and its impact, please do not hesitate to contact James R. Touchstone, Gary S. Kranker or Chris F. Neumeyer at (714) 446-1400, or at jrt@jonesmayer.com, gsk@jones-mayer.com,cfn@jones-mayer. com.
Information on wwwJones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.