Vasquez v. State of California

Filed 5/16/07 Vasquez v. State of California CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CRISTINA VASQUEZ,
Plaintiff and Respondent,
v.
STATE OF CALIFORNIA,
Defendant and Appellant.
D046668
(Super. Ct. No. GIC740832)
APPEALS from orders of the Superior Court of San Diego County, William C.
Pate, Judge. Affirmed.
We have previously published two opinions in this case. In Vasquez v. State of
California (2003) 105 Cal.App.4th 849, 851, 856-857 (Vasquez I), we held as a matter of
first impression that the State of California (the State) has a duty under Proposition 139,
the voter-approved Prison Inmate Labor Initiative of 1990, to enforce a private business's
duty to pay wages to inmate employees that are comparable to wages paid in the private
sector, given the State's right to a percentage of their wages to defray expenses of

-- 1 of 40 --

2
incarceration. We reversed a judgment entered for the State after the sustaining of a
demurrer to Cristina Vasquez's taxpayer waste cause of action.
The California Supreme Court granted review of our second opinion, in which we
upheld an award of $1,257,258.60 in attorney fees to Vasquez under the private attorney
general statute. (Code Civ. Proc., § 1021.5.) The trial court granted the fees after it
entered a stipulated injunction that requires the State to compel joint venture employers'
compliance with Proposition 139. We concluded Vasquez was the successful party, her
action resulted in the enforcement of an important right affecting the public interest, and
it conferred a substantial benefit on the general public. The sole issue on review,
however, is whether, under Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
(Graham) and Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960 (Grimsley),
as a prerequisite to receiving fees Vasquez was required to reasonably attempt to settle
the matter before filing suit (Vasquez v. State of California (2006) 138 Cal.App.4th 550,
review granted August 16, 2006, S143710 (Vasquez II)), an issue we declined to address
because the State neither raised it at the trial court nor presented a cogent argument on
appeal. That matter is pending.
This appeal concerns the trial court's rejection of the State's proposed comparable
wage plans for joint venture employers. The State contends the court has unreasonably
retained jurisdiction over the stipulated injunction, since it only required the State to take
"reasonable steps" to identify comparable wages and it has done so; the court
misinterpreted Proposition 139 to require joint venture employers' payment of
"prevailing" wages required on public works projects instead of "comparable" wages

-- 2 of 40 --

3
required by Penal Code section 2717.8; and it improperly rejected expert opinion
pertaining to comparable wages. We affirm the order as the court's ruling does not
constitute abuse of discretion.
Further, the State seeks reversal of an additional award of $242,055 in attorney
fees to Vasquez on the grounds the court lacks authority to award fees for work
performed after entry of the stipulated injunction, she did not contribute to obtaining
satisfaction of the injunction, and she did not confer a significant benefit on the public.
As in Vasquez II, we conclude the State waived its argument that as a prerequisite to
receiving fees Vasquez was required to engage in reasonable settlement efforts, and in
any event, the record shows that any prelitigation settlement attempt would have been
futile. We find no abuse of discretion and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
An overview of relevant statutes and regulations is necessary to put the facts in
context. Under Proposition 139 (codified in Pen. Code, § 2717.1 et seq.), the Director of
Corrections (Director) is required to establish joint venture programs with prisons to
allow private businesses, referred to as joint venture employers, to employ inmates to
produce goods or services that may be sold to the public. (Pen. Code, § 2717.2; Cal.
Code Regs., tit. 15, § 3480.) The purposes of Proposition 139 are to require inmates to
"work as hard as the taxpayers who provide for their upkeep," provide funds from which
they can reimburse the State for a portion of their room and board, satisfy restitution fines
and support their families, and assist in inmates' rehabilitation and teach skills they may

-- 3 of 40 --

4
use after their release from prison. (Historical and Statutory Notes, 51B West's Ann. Pen.
Code (2000 ed.) foll. § 2717.1, p. 223.)
Proposition 139 requires joint venture employers to pay wages to inmates that are
"comparable to wages paid by the joint venture employer to non-inmate employees
performing similar work for that employer," or if there are no such employees, wages
"comparable to wages paid for work of a similar nature in the locality in which the work
is to be performed." (Pen. Code, § 2717.8.) Before commencing business, a joint
venture employer must submit a detailed job description for each inmate position, and "a
wage plan detailing the comparable wage rate for each position, taking into account
seniority, tenure, training, technical nature of the work being performed, or other factors."
(Cal. Code Regs., tit. 15, § 3482, subd. (a)(12)(K)(1.) & (L)(1.).) The Department of
Corrections must monitor joint venture employers' wage plans for compliance with Penal
Code section 2717.8, and it "will obtain data, including wage range information, for each
inmate-employee job description from the Employment Development Department
[EDD], annually." (Cal. Code Regs., tit. 15, § 3484, subd. (b).)1
1 For a history of private sector involvement in prison industry and the effect of
inmate labor on the labor market, see Misrahi, Factories With Fences: An Analysis of the
Prison Industry Enhancement Certification Program in Historical Perspective (1996)
Am. Crim. L.Rev. 411 (hereafter Misrahi); Garvey, Freeing Prisoners' Labor (1998)
Stan. L.Rev. 339 (hereafter Garvey); and Braman, Punishment and Accountability:
Understanding and Reforming Criminal Sanctions in America (2006) UCLA L.Rev.
1143.
The federal government initially authorized the Prison Industry Enhancement
Certification Program (PIECP) in 1979, and it "provides limited deregulation of federal
prohibitions affecting both the movement of state prison-made goods in interstate
commerce and the ability to use prison labor in government contracts in excess of

-- 4 of 40 --

5
Inmate wages are subject to deductions, as determined by the Director, not to
exceed 80 percent of gross wages, for taxes, reasonable charges for room and board,
restitution to crime victims and family support. (Cal. Code Regs., tit. 15, § 3485.) The
Director has determined that "[t]wenty percent of the inmate's net wages after taxes shall
be for costs of room and board which shall be remitted to the department." (Cal. Code
Regs., tit. 15, § 3485, subd. (h)(3).)
This litigation began in 1999 when inmates sued a joint venture employer for
violations of Proposition 139's comparable wage requirement. A second amended
complaint added Vasquez, the international vice president for the Union of Needletrades,
Industrial & Textile Employees, as the plaintiff in a taxpayer waste cause of action
$10,000. . . . [¶] The underlying theory of the program is to remedy the historical
concerns of free labor competition and inmate exploitation associated with private sector
involvement in prison industry by treating the convict laborer essentially the same as a
free worker." (Misrahi, supra, Am. Crim L.Rev., at p. 420; 18 U.S.C. § 1761.) To be
certified, a prison industry program must pay inmates "wages at a rate which is not less
than that paid for work of a similar nature in the locality in which the work was
performed." (18 U.S.C. § 1761(c)(2).) "This requirement benefits society by allowing
for the development of prison industries while protecting the private sector labor force
and business from unfair competition that could otherwise stem from the flow of low-
cost, prisoner-made goods into the marketplace." (PIECP Guidelines, 64 C.F.R.
§§ 17000, 17009 (1999).) According to one commentator, because of the additional costs
of doing business inside prison, "few industries will find it worthwhile to set up shop
behind prison walls if they are forced to pay inmates the prevailing wage," and thus
PIECP industries employ only a small fraction of total state prison populations. (Garvey,
supra, Stan. L.Rev. at pp. 373-374.)
California was certified under the Justice System Improvement Act of 1979 (64
C.F.R. 17003 (1999)), and Proposition 139 generally parallels PIECP. According to the
State, since the onset of this litigation California's joint venture program has dwindled to
three joint venture employers who employ approximately 70 inmates out of a statewide
inmate population of more than 160,000.

-- 5 of 40 --

6
against the State for its alleged failure to discharge its duty to compel joint venture
employers to pay inmates comparable wages.2 The matter was tried in January 2004, and
after the second day of testimony the parties agreed to a stipulated injunction, which was
entered on February 17, 2004.
Terms of Injunction
The stipulated injunction requires the State to "make reasonable and good faith
efforts" to obtain information from joint venture employers, including "Duty Statements,"
which are to include for each inmate job a description of work tasks, machines used and
required skills, and "Wage Plans," which are to show the employer's planned schedule of
wages for each job description and the number of employees in each job.
The injunction further provides that based on the Wage Plans, the State "shall take
reasonable steps to identify the comparable wages required to be paid as required by
Penal Code [section] 2717.8. In the event the employer does not have non-inmate
employees performing similar work for that employer, then, in identifying the
comparable wages, [the State] shall consider factors such as the wages paid for work of a
similar nature in the locality in which it is performed, the tenure of the employee who
occupies the position, the requirements of Proposition 139, and available wage survey
data from the EDD (and other sources)."
Additionally, the injunction provides it "shall be effective for a period of two years
2 The record here shows that joint venture employers have generally been paying
inmates minimum wage.

-- 6 of 40 --

7
from the date of issuance and may be extended and/or terminated by the Court upon a
showing of good cause. The Court will retain jurisdiction for the purpose of enforcing,
modifying and/or dissolving the Stipulated Injunction, in conformity with the applicable
provisions of Proposition 139, until the date of its expiration." The injunction requires
the parties to report to the court every 90 days concerning the State's progress toward
complying with its terms.
Initial Progress Reports
The State's first progress report does not appear to be in the appellate record. The
State filed its second progress report in July 2004. At the time, five joint venture
employers participated in the Proposition 139 program: (1) Western Manufacturing, at
Calipatria State Prison, Imperial County; (2) Labcon North America (Labcon), at San
Quentin State Prison, Marin County; (3) Pub Brewing Company (Pub Brewing), at
Richard J. Donovan Correctional Facility (Donovan), San Diego County; (4) Five Dot
Land & Cattle Co. (Five Dot), at California Correctional Center in Lassen County; and
(5) Allwire, Inc. (Allwire), at both the Central California Women's Facility and Valley
State Prison for Women, Madera County.
The State contracted with a human resources specialist, Barbara Santos, and she
reviewed wage plans and job descriptions the joint venture employers submitted. Santos,
however, had visited only Western and Labcon, and the State intended to produce a final
report after she had visited the remaining three companies and completed her comparable
wage analysis.

-- 7 of 40 --

8
Third Progress Report
The State issued its third progress report on November 3, 2004, and the court held
a hearing on it on December 20 and 23, 2004.
The third progress report pertained to Pub Brewing, Western Manufacturing,
Allwire and Labcon, employers that apparently had no non-inmate employees performing
similar work to that of inmate employees, and thus were required to pay inmates wages
comparable to wages paid in the local job market for similar work. The report did not
include Five Dot, because it employed inmates and non-inmates and paid them all
minimum wage for similar work.
The wage data EDD maintains are based on federal Standard Occupational
Classification (SOC) codes.3 SOC code wages are reported as the entry-level hourly
wage, which is the mean, or average, wage of the first third of the wage distribution, and
as certain percentiles, such as the 25th, 50th and 75th percentiles. The 25th percentile
hourly wage is the top wage of the first 25 percent of the wage distribution, and the 50th
percentile hourly wage is referred to as the median.
Santos's methodology consisted of visiting joint venture operations to observe the
3 The SOC "system provides the occupational title and code utilized in the
Department of Labor's electronic Occupational Information Network (O*NET) system.
'The O*NET system, using common language and terminology to describe occupational
requirements, supersedes the seventy-year-old Dictionary of Occupational Titles with
current information that can be accessed online through a variety of public and private
sector career and labor market information systems.' " (Crider v. Highmark Life Ins. Co.
(W.D. Mich. 2006) 458 F.Supp.2d 487, 511, fn. 19 [2006 U.S.Dist. Lexis 65561, **62,
fn. 19].)

-- 8 of 40 --

9
work being performed, "to fully understand the complexity, level of independence,
consequence of error, difficulty, and level of responsibility"; interviewing owners,
management and inmates; reviewing and revising employer job descriptions; comparing
employee positions to the SOC codes and assigning one or more SOC codes as
appropriate; and finally, determining "how to relate the work performed" to the SOC
code wages.
For all joint venture employers and all job classifications, Santos recommended
entry-level wages for inmates that were lower than entry-level SOC code wages.
Additionally, Santos recommended the minimum wage, then $6.75,4 as the entry-level
wage for most inmate positions. Further, she frequently recommended that the ceiling for
inmates' wages be at or lower than the 25th percentile SOC code wage.
According to Santos's report, she reduced SOC code wages because the SOC
system of tracking wages "consolidates multiple occupations with varying levels of
complexity into a single salary report. For example, the code for welder encompasses
occupations as diverse as novice production spot welder with low skill levels working on
simple products to certified welders working [on] a variety of construction or aerospace
projects utilizing multiple metals and requiring multiple certifications. Using the median
salary [reflected in SOC code data] for positions without thorough study may establish a
salary that is actually too high or too low for the work being performed." Santos
4 All wage rates discussed are per hour.

-- 9 of 40 --

10
generally found inmates performed less sophisticated tasks than those reflected in the
SOC codes.
For instance, for Allwire, which assembles circuit boards and other electrical
products, Santos approved of the employer's plan to begin "Machine and Hand Soldering
Operator[s]" and "Wire Harness Assemblers," which positions encompassed most
employees, at minimum wage with "increases averaging $.10 per hour per year with a
maximum wage of $11.75 per hour." Santos determined the SOC code that corresponded
with the above positions at Allwire was electrical and electronic equipment assembler,
with an entry-level wage of $9.56.
Santos found that Allwire's plan to pay minimum wage was reasonable "since
experience is not required." Her report noted the SOC code for electrical and electronic
equipment assembler "indicates that the typical preparation would be some vocational
education or an associate degree combined with some degree of experience and one to
two years of on the job training. Most employees at Allwire have little or no prior
experience when hired in and all training is on the job."
Santos's report also stated that "setting the initial salary at the minimum wage is
appropriate, provided progression beyond minimum wage is provided in a reasonable
timeframe." She conceded, though, that given $.10 annual raises it would take an inmate
50 years to earn $11.75. She found that acceptable because $11.75 was excessive, and a
maximum inmate wage at the 25th percentile of the SOC code wage, $9.91, would be
acceptable. She conceded, however, that it would take an inmate 20 years to earn $9.91.

-- 10 of 40 --

11
Labcon produces a variety of plastic tubes, pipette tips and related products for
laboratories, and it employs inmates to pack and label products. Santos identified the
SOC code for "Packers and Packagers, Hand" as the closest match, with an entry-level
wage of $7.51 and, oddly, a 25th percentile wage of $7.49. Santos, however, found
"many of the duties performed by this code are more complex than work performed by
[Labcon's] employees. For example, Packers and Packagers, Hand may be required to
hand dispense product such as fluids, powders or other materials into containers using
pipettes, spouts etc[.] and measure volumes or weights to close tolerances. That task is
never performed by these employees. They do not examine or inspect packing materials
to ensure they meet specifications, they do not sort materials, they don't measure, weigh
or count materials, except in one very limited situation where they weigh bulk tubes to a
predetermined weight, and they do not record any packing information."
Santos wrote that "[as] a result, I believe the correct salary range for this class
would be no greater than the 10th percentile, or a range of $6.75 - $7.06 per hour." She
also wrote: "I recommend that the increases be based on seniority, since that is the
primary distinction among the inmates. A $.20 increase after 2080 hours (1 year) worked
and another $.21 increase after 6240 hours (3 years) worked is recommended. I do not
recommend an increase at 2 years as inmates sentenced to life are limited to working for
two years by a tacit agreement to spread the work among as many inmates as possible
and it may raise hard feelings about being terminated concurrent with a scheduled
increase."

-- 11 of 40 --

12
Western Manufacturing manufactures such items as metal and wire display racks
to customer specifications. Santos found the employer's job descriptions deficient and
recommended the creation of Production Worker I, II and III positions, to reflect "the
varying levels of work that COULD exist within the factory setting." Santos rejected the
creation of "job descriptions for the various machine operators, painters, welders and
other workers," with corresponding wages, because "such a system is difficult to
administer" and "could also result in morale problems among inmates who receive
varying rates of pay for what they perceive as similar work."
Production Worker I would be an entry-level position and the inmate would be
"[u]nder immediate supervision, perform[] unskilled labor in operating a variety of
production equipment, package[] finished goods for shipment, clean[] shop area, and
perform[] related tasks." Specifically, typical duties would include operating wire
cutters, shears, a press, or saw to cut wire and metal to predetermined lengths; forming
wire and sheet metal using a press brake, air bender or punch press; inserting material
into automated forming equipment; operating a spot welder and ensuring all spot welds
are made; and participating in the powder coating operation.
Production Worker II would be "a second working level" position, and an inmate
would be "[u]nder general supervision, perform[] unskilled and semi skilled labor in
operating a variety of production and equipment, package[] finished goods for shipment,
clean[] shop area, and perform[] related tasks." Typical duties would include setting up,
testing and operating a wire cutter, press, or metal saw to cut wire and metal strips or
metal tubing to predetermined lengths; setting up, testing and operating metal forming

-- 12 of 40 --

13
equipment; determining machine setup from a template or blueprint; monitoring counters
to produce a predetermined quantity of items; welding; inserting welded objects into a
roller to create curved parts; creating jigs from models or prototypes; constructing
prototypes from sketches, prints or general instructions; and setting up and operating the
powder coating operation.
Santos's report stated "Production Worker III is the fully experience[d] level, with
substantial experience in the production work being performed, able to perform the full
range of duties of the factory and . . . able to set up production, set up equipment, test for
quality, maintain necessary record of production as well as operate production
equipment."
Santos determined there were three SOC codes that described the majority of tasks
at Western Manufacturing, including "Cutting, Punching, and Press Machine Setters,
Operators, and Tenders, Metal and Plastics," with entry-level and 25th percentile wages
of $10.11 and $10.94, respectively; "Welders, Cutters, Solderers, and Brazers," with
entry-level and 25th percentile wages of $10.68 and $11.89, respectively; and "Coating,
Painting and Spraying Machine Setter, Operators and Tenders," with entry-level and 25th
percentile wages of $7.79 and $8.33, respectively. Santos averaged the three SOC code
wages, for an entry-level wage of $9.53 and a 25th percentile wage of $10.39.
Santos, however, found that "the work performed by the inmates currently
assigned to Western [Manufacturing] is structured such that it is at a much lower level
than the work performed by the occupations above. The SOC descriptions . . . are the full
working level, equivalent to Production Worker III." Santos recommended a maximum

-- 13 of 40 --

14
wage of $10.39 for Production Worker III, based on the average of the 25th percentile
SOC code wage, and that the maximum wage for Production Worker II be set at 15%
below Production Worker III and the maximum wage for Production Worker I be set at
20% below Production Worker II. She also recommended for "all three classes . . . an
entry salary set at 10% below the maximum," with "no salary being set at below
minimum wage."
The chart in Santos's report shows entry-level and maximum wages for Production
Worker I of $6.75 and $7.06, respectively, and for Production Worker II an entry-level
wage range of between $7.29 and $8.10, and a maximum wage of $8.83. Under Santos's
percentage deductions, the entry-level wage for Production Worker I would have been
$6.35 had it not violated minimum wage law.5
The court rejected the State's proposed wage plans on the ground that Santos's
findings and recommendations "did not have any basis in reason or rationale that I can
determine." The court explained it would not pick any particular job classification and
wage recommendation "and say[] it's right or wrong," because the wage plans as a whole
were unacceptable. The court explained further that perhaps some classifications may be
minimum wage jobs, but Santos's "conclusion basically is . . . that for all intents and
purposes, everybody starts out at minimum wage . . . and then has very minor increases.
5 We do not discuss Santos's report concerning Pub Brewing, because it reportedly
no longer operates in the prison system. We recognize that the comparable wage issue
may still affect Pub Brewing because of back wage issues, but those issues are not at
issue in this appeal.

-- 14 of 40 --

15
On exhibit 11, there were 16 positions listed with a State recommendation next to it, and
of those 16, ten are at minimum wage. Of those 16, 15 are either minimum wage or
within ten percent deviation of minimum wage. [¶] I think we can recognize that a
person who works full-time making minimum wage is not able to earn a living from
which they can live in the State of California, and I think that's well documented and
recognized by just about everybody."6
The court was also "very troubled by the lockstep pay raise of ten cents an hour"
that Santos recommended for Allwire. The court reasoned that to satisfy Proposition 139,
entry level employees who were paid minimum wage, as Santos recommended, "should
probably get some pay raise that's fairly close to what the State employees get just for
cost of living. . . . [There] didn't seem to be any thought process at all by . . . Santos in
terms of pay raises. The court was presented with no historical data or any tie-in to
anything. It was just ten cents. That was, to me, kind of a knee-jerk reaction and that
causes me to question . . . the logic and rationale of the entire report." In closing, the
court said it "can't leave its common sense and real world life experiences out in the
street."
The court ordered the State to "go back to the drawing board and fine-tune this
thing a little better so we've got the realistic numbers to go on[,] because if we go with
these numbers, I think the State will be perpetuating a situation where the people working
6 We requested that the parties submit exhibit No. 11 and they have been unable to
do so. It is the appellant's burden to provide a sufficient record on appeal. (Ballard v.
Uribe (1986) 41 Cal.3d 564, 574-575.)

-- 15 of 40 --

16
in the prison system are not being paid prevailing wage and thus are not complying with
[Proposition 139]."
Amendment of Wage Plans
In January 2005 Santos issued amended findings and recommendations, and the
court held a hearing on the matter on April 18, 2005.
Santos's recommendations were unchanged for Western Manufacturing and
Labcon. For Allwire, Santos did not alter the $.10 per year raises. She did, however,
recommend higher wages for Allwire's shipping and receiving staff and office staff, as
they "perform materiel control functions that require strong organizational skills,
mathematical skills, and the ability to use computer programs" and inmates in those
positions "generally have prior relevant experience."
Vasquez's expert, Roger Miller, submitted a report setting forth wages he believed
were comparable wages for Allwire, Western Manufacturing and Labcon. In contrast to
Santos's recommendations, Miller recommended that all wages be above minimum wage,
based on SOC data, employers' job descriptions, visits to the joint venture programs to
observe work being performed, interviews with inmates and managers, and discussions
with private sector competitors. Miller disagreed with Santos's conclusion that SOC code
wages should be reduced because most of the inmate jobs required little to no skill or
training.
For Labcon, Miller recommended an entry-level wage range of $7.51 and $9.20,
and a 5 percent premium for the lead packer because of added responsibilities. Miller

-- 16 of 40 --

17
testified that for the maximum wage he selected the 50th percentile SOC code wage
based on the knowledge and skills inmates were required to have.7
Concerning Allwire, Miller's report stated the inmates "acquire skills through on-
the-job training. I observed many inmate employees using solders and other manual tools
under large mounted magnifying glasses to perform intricate assembly work. [¶]
Allwire's General Manager indicated that it takes about two years for inmate employees
to be fully cross-trained and for their work to be both efficient and of consistently high
quality. Further, the manager told me that defective assemblies are often sent to Allwire's
inmate staff for assessment and renovation. This information supports my conclusion
that the jobs at Allwire are skilled." Miller recommended a wage range of $8.14 to
$11.39 for packagers, a range of $8.39 and $11.72 for assemblers, a range of $8.39 to
$10.72 for quality assurance workers and a range of $8.39 to $11.77 for the office
manager. Miller testified he relied on the entry-level and 25th percentile SOC code
wages based on the skills required of inmates.
Concerning Western Manufacturing, Miller's report stated that "[a]ll of the inmates
with whom I spoke had some prior experience in construction, mechanics, or other trades
7 Miller submitted evidence that in 2001 Labcon used non-inmate temporary
workers as packers and paid them between $.75 and $1.75 above minimum wage, net of
the placement agency's fee. Using a cost of living index, he calculated that in 2005 the
non-inmate workers would have earned between $7.54 and $8.61. The State, however,
submitted the declaration of Allwire's chief financial officer, which stated Allwire used
temporary workers for only a couple of weeks in 2001 and "[u]nlike the inmate
employees, the temporary workers did all their own Quality Control . . . and created their
own labels for products. . . . In addition, the temporary workers were available for and
used for more functions than inmate employees carry out at San Quentin."

-- 17 of 40 --

18
working with tools and/or heavy machinery when they were hired." Miller recommended
Production Worker I wages of between $7.52 and $10.52, and Production Worker II
wages of between $9.61 and $16.56; he found the Production III category inapplicable.8
After Miller and Santos testified, the court took the matter under submission. In a
May 3, 2005 order it again rejected the State's comparable wage plan, as the "wage
ranges . . . do not seem to be supported by any empirical evidence." The court explained:
"For instance, the Western [Manufacturing] employees are proposed to be broken down
into three job categories, Production Worker(s) I, II and III. The Plan concludes that a
comparable Production Worker in Imperial County would have an 'Entry Level'
(beginning) wage of $9.53 per hour. This would be the wage for a Production Worker at
the 16th percentile of Production Workers paid in Imperial County.
"The State's Plan ignores the Entry Level wage in Imperial County and sets the
beginning wage for a Production Worker I at the minimum wage of $6.75. The
maximum wage for a Production Worker I is $7.06, capping any raise for a Production
Worker I at $.36. [Sic.] Likewise a Production Worker II would have an Entry Level
range of $7.29 to $8.10, still well below the Entry Level for the Imperial County
production worker. [¶] The Production Worker II caps out at $8.83[,] $.70 less [than] the
8 Miller interviewed competitors of Allwire in Contra Costa County and in
Mountain View, California, but he had no information from competitors in Madera
County, where Allwire is located. Miller also interviewed competitors of Western
Manufacturing in San Bernardino County, Los Angeles County and Orange County. He
submitted no information from any business in Imperial County, where Western
Manufacturing is located.

-- 18 of 40 --

19
Imperial County entry level. The Production Worker III has an entry level range of $8.57
to $9.53 with a maximum cap of $10.39, which is equal to the 25th percentile for
Imperial County production workers.
"The selection of the 25th percentile cap was based on [Santos's] analysis of the
skill requirements for performing the production tasks at Western [Manufacturing].
Assuming the analysis is correct, it does not logically follow that lower level workers
would be paid a wage based on a percentage reduction of the 25th percentile wage.
Instead, the wage for lower level workers must be based on comparable wages in the
locality."
The court ordered the State to submit a revised comparable wage plan on or before
June 30, 2005. On June 1, 2005, the State filed a motion, ostensibly for "clarification" of
the court's order. The court denied the motion on the ground it was an untimely and
meritless motion for reconsideration.
On June 2, 2005, the court granted Vasquez $242,055 in attorney fees (1) incurred
in the application for and defense of the application for the previous fee award, and (2)
incurred in the months following entry of the stipulated injunction. The State did not
further revise its wage plan and instead appealed the court's orders.

-- 19 of 40 --

20
DISCUSSION
I
Wage Plans
A
"Prevailing" Wages versus "Comparable" Wages
The State's principal contention is that the trial court erroneously interpreted Penal
Code section 2717.8 to require the payment of "prevailing" wages instead of
"comparable" wages, and the error caused it to misconstrue the applicable standards and
reject the State's proposed wage plans. The State points out that under Labor Code
section 1773, prevailing wages as determined by the Director of Industrial Relations must
be paid on any public works project. Penal Code section 2717.8 requires a joint venture
employer to pay inmates wages that are "comparable to wages" paid to non-inmate
employees or, if none, to the employees of other private sector employees for similar
work in the relevant locality.
The State relies on the trial court's reference at times to inmate wages as
"prevailing" wages. The word "prevailing" commonly means "predominant" or
"prevalent" and it "can apply to what . . . exists generally." (Webster's 3d New Internat.
Dict. (1993) p. 1797.) The court has handled this litigation for many years, and a review
of the record demonstrates it clearly knew the requirements of Penal Code section 2717.8
and used the term "prevailing" in its common sense. In Vasquez I, supra, 105
Cal.App.4th at pp. 851, 856, this court also used the term "prevailing" in reference to

-- 20 of 40 --

21
Proposition 139's comparable wage requirements. We conclude that when read as a
whole, the record clearly shows the court applied the proper standard.
B
Expert Opinion
The State also contends the court improperly rejected Santos's opinions pertaining
to comparable wages without "external evidence that supported a higher wage
calculation." The State complains that the court "substitute[d] its own judgment for the
meticulously researched and analyzed findings of [its] expert." The State points out that
it retained two additional experts who were of the opinion that Santos's methodology was
proper.
We review the court's rulings on injunctions under an abuse of discretion standard.
(Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th
359, 390.) "The exercise of discretion must be supported by the evidence and, 'to the
extent the trial court had to review the evidence to resolve disputed factual issues, and
draw inferences from the presented facts, [we] review such factual findings under a
substantial evidence standard.' [Citation.] We resolve all factual conflicts and questions
of credibility in favor of the prevailing party and indulge all reasonable inferences to
support the trial court's order." (Ibid.)
"Generally a trier of fact may reject the evidence of a witness, including an expert,
even though that evidence is uncontradicted. However, the trier of fact may not act
arbitrarily in doing so and thus where testimony is uncontradicted, unimpeached, and no
rational reason for rejecting it appears, then the trier of fact may not reject it." (Beck

-- 21 of 40 --

22
Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160,
1206, fn. 27.)
After reviewing the entire record, we conclude the court did not arbitrarily reject
Santos's opinions or abuse its discretion by rejecting the State's proposed wage plans.
The court showed its open mind by advising the State "there can be disagreements by
reasonable minds as to what is the [comparable] wage within some spectrum for a given
job classification. . . . And if we are in the spectrum of reasonable minds, I'll go with it;
if it's clear wrong, then I won't." It is apparent, however, that the court lacked confidence
in Santos's recommendations.
The State essentially ignores that Santos's opinions were contradicted by
Vasquez's expert, Miller. The parties' disagreement centers on whether Santos properly
reduced SOC code wages by certain percentages based on the notion that essentially
across the board, inmates were performing less sophisticated work than the work
reflected in SOC codes. For the three joint venture employers still at issue, Western
Manufacturing, Allwire and Labcon, Santos set all entry-level inmate wages significantly
lower than entry-level SOC code wages. For Labcon, she set the ceiling on inmate wages
at the 10 percentile of the SOC code wages, lower than the entry-level SOC code wage.
Santos's recommended pay range for inmates working for Labcon was $6.75 to $7.06,
and she conceded the wage plan included no guidance on where in the range particular
employees would fall.
For Allwire, Santos approved a ceiling on inmate wages of the 25th percentile
SOC code wage, but conceded it would take an inmate 20 years to reach that level given

-- 22 of 40 --

23
$.10 annual raises. For Western Manufacturing, she set the ceiling on inmate wages
below the entry-level SOC code wage for Production Workers I and II. Santos
recommended the $6.75 minimum wage for Production Workers I at Western
Manufacturing, for assemblers at Allwire and for packers at Labcon, when the entry-level
SOC code wages were $9.53, $9.56 and $7.51, respectively.
Based on his investigation and research, Miller believed Santos's proposed wages
were not comparable within the meaning of Proposition 139. Miller observed the joint
venture operations and disagreed with Santos's consistent findings that inmates were
performing minimum wage jobs. Miller was employed by the State of California for 32
years in its Division of Industrial Welfare and Division of Labor Standards Enforcement,
and he had conducted and supervised thousands of investigations involving wage rates,
job classifications, hours and working conditions. The court presumably found Miller
more persuasive, and it is not our province to assess the credibility of witnesses or
reweigh the evidence.9 (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698,
703; Estate of Teel (1944) 25 Cal.2d 520, 526.) The applicable SOC code wages were all
above minimum wage, and Santos testified the SOC data is "the best" as it is gathered on
a consistent basis and is updated regularly. The State produced no evidence that any
9 The State asserts the trial court also rejected "the approach taken by . . . Miller."
The State does not cite the record for that proposition, however, and the court's order
does not indicate it rejected Miller's contradiction of Santos's opinions. In its motion for
"clarification" the State requested that if the court disagreed with Santos's approach it
"either adopt the range determined by [Vasquez] or specify its own range, so that this
issue [comparable wages] can be determined." The court, however, denied the motion on
the ground it was an untimely motion for reconsideration.

-- 23 of 40 --

24
private sector businesses paid non-inmates minimum wage for work similar to that of
inmates.10
Additionally, Santos conceded that in some instances her reductions of a
percentage she chose from SOC code wages resulted in inmate wages below minimum
wage. Accordingly, in those instances her method necessarily failed to determine a
comparable wage as private sector employers, of course, must pay employees at least
minimum wage. That frailty in her calculations gave the court an additional reason to
question her methods. A comparable wage analysis that at times rendered results lower
than minimum wage could also be faulty in other instances.
Santos also testified she had no written protocol pertaining to her selection of
inmates to interview or the confidentiality of her conversations with them, and she did
not contact any outside source to see if any particular protocol was in order. In a
memorandum to her, Miller had suggested that in advance of the interviews she should
get a list of employees and their job descriptions from the joint venture employer so she
could randomly select inmates for interviews. Also, she conceded she did not follow
federal PIECP guidelines that "recommend randomly selecting either ten percent of the
work force or five workers, whichever is greater, to [ensure] the most accurate type of
information."
10 Pertaining to inmates' skill levels, Vasquez also produced evidence that the owner
of Western Manufacturing had given favorable employment evaluations to inmates
working for it. For instance, the owner stated that one inmate made jigs and had
"developed technical skills with regard to . . . fabrication" and another inmate "came to us
as a competent welder and mechanic."

-- 24 of 40 --

25
In addition, the State produced no evidence that any private sector business limited
annual pay increases to $.10, as Santos recommended for Allwire, which would make it
virtually impossible for any inmate to reach the maximum wage that business purported
to propose, or even to reach the 25th percentile SOC code wage that Santos found
acceptable as a highest possible wage. Miller testified that Santos's "recommendation
that the wages be increased 10 cents an hour on a yearly basis is way unreasonable in
what the comparable wage would require. Even if you start [inmates] at the low level,
you have to reach a comparable wage sometime, and not way down in the future." In
contrast to Allwire, for Western Manufacturing Santos recommended that inmates
beginning at minimum wage receive annual raises of between 2 and 5 percent. The court
expressly noted that because of Santos's approval of Allwire's plan to pay minimum wage
and then limit annual raises to $.10, it questioned "the logic and rationale of the entire
report."
Santos also appeared to be concerned with issues irrelevant to the identification of
wages comparable to those in the private sector. For instance, she recommended against
any raise at the two-year anniversary date for any inmate working for Labcon at San
Quentin, because "inmates sentenced to life are limited to working for two years by a
tacit agreement to spread the work among as many inmates as possible and it may raise
hard feeling[s] about being terminated concurrent with a scheduled increase." For
Western Manufacturing, Santos cited potential morale problems among inmates if she
created job descriptions and assigned corresponding wages "for the various machine

-- 25 of 40 --

26
operators, painters, welders and other workers," since inmates may feel they perform
similar work.
The State relies on the court's comment at the December 23, 2004 hearing on the
State's third progress report, that "the methodology used by . . . Santos was a good,
professional methodology and . . . she went about gathering information in a way that
seems to be reasonable and logical to the court." The State does not report, however, that
immediately thereafter the court explained "the conclusions reached by . . . Santos in her
report did not seem to have any basis in reason or rationale that I can determine."
The State also argues a "wage that is too high will effectively discourage private
businesses from participating in the Prison Work Initiative. An artificially high wage that
cannot be supported would decrease participation by private businesses and lower the
amount the State would collect from working inmates, a result clearly contrary to the
expressed goals of Proposition 139." The record does not suggest, however, that the trial
court advocates an artificially high wage. Proposition 139's comparable wage component
is intended to protect private industry, and the payment of artificially low inmate wages
would violate the voters' intent, and also federal law when interstate commerce is
involved. As we discussed in footnote 1 of this opinion, few private industries are
willing to incur the added costs of conducting business within prisons if they are also
required to pay inmates the same wages they would have to pay employees in the free
market. The court's task, however, is to enforce the comparable wage requirement of
Proposition 139, not to allow a lower wage that may encourage private businesses to join
or remain in California's joint venture program. Whether the program can be sustained

-- 26 of 40 --

27
when joint venture employers are finally required to pay market rates is not the courts'
concern, but is a matter of economics. If it cannot be sustained, the Legislature and the
voters will have to address the problem.
" ' "It is fairly deducible from the cases that one of the essential attributes of abuse
of discretion is that it must clearly appear to effect injustice. . . .' " . . . 'The abuse of
discretion standard . . . measures whether, given the established evidence, the act of the
lower tribunal falls within the permissible range of options set by the legal criteria.' "
(Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815, italics omitted.) Given the
evidence here, the court's ruling does not exceed the bounds of reason. As the court
noted, perhaps some of Santos's wage recommendations were proper, but the State does
not contend the court erred by not ruling on the recommendations piecemeal.11 If, as the
State asserts, its expert has reached a "dead end" and cannot further amend the wage
recommendations, the court and parties must proceed accordingly.
C
Trial Court's "Jurisdiction"
Additionally, the State contends the trial court "is unreasonably retaining
jurisdiction to ensure the State is meeting its obligations." (Boldface and some
capitalization omitted.) The State asserts it complied with the stipulated injunction by
taking "reasonable steps" to identify the comparable wages required to be paid as
11 The State erroneously asserts the court's ruling pertained only to Western
Manufacturing. The court's order shows it discussed Western Manufacturing as an
example of the deficiencies in Santos's wage recommendations.

-- 27 of 40 --

28
required by Penal Code [section] 2717.8," and it is not required to submit "serial . . .
expert reports with comparable wage numbers until one finally met the unspecified
subjective criteria of the trial court." The State claims the court erred by "focus[ing] on
the end number for the wages, rather than [the State's] efforts to take 'reasonable steps' to
come up with the number."
The State includes no legal discussion of "jurisdiction" principles. "[P]arties are
required to include argument and citation to authority in their briefs, and the absence of
these necessary elements allows this court to treat appellant's . . . issue as waived."
(Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
In any event, the State's position lacks merit. The stipulated injunction expressly
gives the court continued subject matter jurisdiction to monitor the State's compliance
with Proposition 139. Proposition 139 requires that the State compel joint venture
employers to actually pay comparable wages, and thus the stipulated injunction
necessarily allows the court to ensure the State's proposed wage plans comply with that
requirement. The "reasonable steps" language of the stipulated injunction does not exist
in a vacuum, and the idea that the court cannot consider the result of Santos's
methodology is baseless.

-- 28 of 40 --

29
II
Attorney Fees
A
Prelitigation Settlement Attempt
The State contends Vasquez is not entitled to attorney fees under Code of Civil
Procedure12 section 1021.5 because she failed to make a reasonable attempt to settle her
claim before suing the State. The State relies on Graham, supra, 34 Cal.4th 553, which
involved the "catalyst theory" of recovery under section 1021.5. Under that theory,
"attorney fees may be awarded even when litigation does not result in a judicial
resolution if the defendant changes its behavior substantially because of, and in the
manner sought by, the litigation." (Graham, supra, at p. 560.) The catalyst theory "is an
application of the . . . principle that courts look to the practical impact of the public
interest litigation . . . to determine whether the party was successful, and therefore
potentially eligible for attorney fees." (Id. at p. 566.)
In Graham, the defendant criticized the "catalyst rule [because] it could encourage
nuisance suits by unscrupulous attorneys hoping to obtain fees without having the merits
of their suit adjudicated." (Graham, supra, 34 Cal.4th at p. 574.) The California
Supreme Court retained the catalyst theory in California, but added two prerequisites to
the recovery of fees under the theory. To avoid "rewarding a significant number of
12 Further statutory references are to the Code of Civil Procedure unless otherwise
specified.

-- 29 of 40 --

30
extortionate lawsuits," the trial court must now determine the law suit has some merit and
is not " 'frivolous, unreasonable or groundless' " (id. at p. 575), and "the plaintiff must
have engaged in a reasonable attempt to settle its dispute with the defendant prior to
litigation." (Id. at p. 561.)
The Graham court found the reasonable settlement component "fully consistent
with the basic objectives behind section 1021.5 and with one of its explicit requirements
— the 'necessity . . . of private enforcement' of the public interest. Awarding attorney
fees for litigation when those rights could have been vindicated by reasonable efforts
short of litigation does not advance that objective and encourages lawsuits that are more
opportunistic than authentically for the public good." (Graham, 34 Cal.4th at p. 577.)
This case, however, is not a catalyst case and there is no uncertainty as to the
merits of Vasquez's claims against the State. Although the Graham court's reliance on
section 1021.5's requirement of the necessity of private enforcement of the public interest
suggests the case's applicability to non-catalyst theory cases as well, a "decision is
authority only for the point actually passed on by the court and directly involved in the
case. General expressions in opinions that go beyond the facts of the case will not
necessarily control the outcome in a subsequent suit involving different facts." (Gomes v.
County of Mendocino (1995) 37 Cal.App.4th 977, 985.) The Graham court stated, "In
addition to some scrutiny of the merits, we conclude that another limitation on the
catalyst rule [reasonable settlement effort] . . . should be adopted by this court."
(Graham, supra, 34 Cal.4th at p. 577, italics added.)

-- 30 of 40 --

31
The State also cites Grimsley, supra, 169 Cal.App.3d 960, which was not a
catalyst theory case. In Grimsley, plaintiff Grimsley sought an alternative writ of
prohibition and injunctive relief, alleging the San Benito County (County) had not
properly adopted a revised general plan. The court noted that "[m]any of the matters
concerning which relief was sought by Grimsley, were already under consideration by the
Director [of State Planning and Research] and apparently by [. . .] County, when the
action was filed." (Id. at p. 964.) Prior to Grimsley's suit, another party sued the County
and proved environmental shortcomings in its general plan. The court ordered the
County to amend its general plan, and it had taken steps to do so. (Id. at pp. 962-963.) In
Grimsley's action, the trial court found the County did not follow proper procedures in
adopting the revised general plan and thus had no authority to approve land use
applications. The court ordered the County to adopt a proper general plan. (Id. at p.
964.)
In denying Grimsley attorney fees under section 1021.5, the trial court explained:
" '[J]udgment in favor of plaintiff was on the narrowest grounds of the numerous grounds
alleged by plaintiff. These grounds were essentially procedural defects in the adoption by
the County . . . of a general plan. The ruling resulted in a finding that because of the
flawed procedure, no general plan was adopted. No findings were made as to the
substantive issues in the petition relating to the specific contents of the general plan. The
court therefore finds that plaintiff's success did not result in the enforcement of an
important public right but alerted the Board of Supervisors to a procedural necessity in
the adoption of an important public document.' (The 'flawed procedure' . . . was the

-- 31 of 40 --

32
failure to approve its revised general plan as required by the Government Code.)"
(Grimsley, supra, 169 Cal.App.3d at p. 965.)
The appellate court affirmed the ruling, finding "it patent that no important right
affecting the public interest had at that point 'been vindicated.' " (Grimsley, supra, 169
Cal.App.3d at p. 966.) The court went on to find that "Grimsley, although he had ample
opportunity to do so before commencement of his action, made no complaint or
suggestion to the concerned county officials about the failure to comply with Government
Code sections 65356 and 65356.1, or in what respects those statutes were not followed.
[¶] We are of the opinion, in a case such as this, that before commencing his action a
'private attorney general,' such as plaintiff Grimsley, must be required reasonably to point
out to the responsible county official or administrative or legislative body, such a claimed
shortcoming of a general plan, thus to avoid litigation and substantial public expense."
(Grimsley, supra, at p. 966, italics added.) The court concluded that "[h]ere, it is a near
certainty that had Grimsley timely pointed out to an appropriate county official or
agency, the respects in which [the] Government Code . . . had not been followed,
appropriate corrective action would have been promptly forthcoming." (Ibid.)
The State concedes that at the trial court it never argued a reasonable settlement
attempt was a prerequisite to an attorney fees award. Indeed, the State did not raise the
issue in this appeal until after briefing was completed and the Supreme Court granted
review in Vasquez II. " 'Ordinarily the failure to preserve a point below constitutes a
waiver of the point. [Citation.] This rule is rooted in the fundamental nature of our
adversarial system . . . . " 'In the hurry of the trial many things may be, and are,

-- 32 of 40 --

33
overlooked which could readily have been rectified had attention been called to them.
The law casts upon the party the duty of looking after his [or her] legal rights and of
calling the judge's attention to any infringement of them.' " . . . [¶] The same policy
underlies the principles of "theory of the trial." "A party is not permitted to change his
[or her] position and adopt a new and different theory on appeal. To permit him [or her]
to do so would not only be unfair to the trial court, but manifestly unjust to the opposing
party." [Citation.] The principles of "theory of the trial" apply to motions . . . .' "
(Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468.)
Although we have discretion to consider a belatedly raised question of pure law
(Sommer v. Gabor, supra, 40 Cal.App.4th at p. 1468), the reasonable settlement issue
involves related issues of law and fact. In Graham, the court explained, "Lengthy
prelitigation negotiations are not required, nor is it necessary that the settlement demand
be made by counsel, but a plaintiff must at least notify the defendant of its grievances and
proposed remedies and give the defendant the opportunity to meet its demands within a
reasonable time." (Graham, supra, 34 Cal.4th at p. 577.) Here, Vasquez asserts she did
make reasonable settlement efforts, and she has moved this court to take evidence on
appeal and make factual findings. Acknowledging that the Supreme Court disagrees with
us on the waiver issue, as demonstrated by its grant of review in Vasquez II, we again
deem the matter waived.13
13 We deny Vasquez's September 25, 2006 "Motion for Reviewing Court To Make
Findings on Appeal [and] Motion for Leave To Take Evidence on Appeal, and "Motion
to Augment Record on Appeal." (Some capitalization omitted.)

-- 33 of 40 --

34
Moreover, even absent waiver the State's position is unpersuasive. Here, in
contrast to Grimsley, the record reveals no "near certainty" that had Vasquez "timely
pointed out" to the State that joint venture employers were not paying inmates
comparable wages under Proposition 139, "appropriate corrective action would have been
promptly forthcoming." (Grimsley, supra, 169 Cal.App.3d at p. 966.) Indeed, the record
shows the State's continuing recalcitrance.
In February 1996 the Department entered into a joint venture agreement with
CMT Blues for its manufacture of clothing at Donovan. This action began in August
1999 when two former Donovan inmates sued CMT Blues for unfair business practices
and other counts. They alleged, among other things, that CMT Blues violated
Proposition 139 by failing to pay them comparable wages and overtime compensation.
The State presumably became aware at this time of alleged Proposition 139 violations,
yet it did not rectify the problem.
The State was not named in the litigation until July 2000, nearly a year after the
original complaint was filed. In a second amended complaint, Vasquez was added as a
plaintiff in a cause of action against the State for taxpayer waste. Yet, the State continued
to resist compelling employers to pay comparable wages. In Vasquez I, we reversed a
judgment of dismissal granted after the State successfully demurred to Vasquez's action
against it on the ground it had no duty under Proposition 139 to compel joint venture
employers to pay comparable wages. We wrote that "[c]ontrary to the State's view, it
cannot sit idly by while CMT Blues violates Proposition 139 and the express terms of the
joint venture agreement." (Vasquez I, supra, 105 Cal.App.4th at p. 856.)

-- 34 of 40 --

35
On remand, the State continued to resist Vasquez's efforts to obtain compliance
with Proposition 139 and she was required to vigorously pursue the matter. In 2004 she
obtained a stipulated injunction that put the joint venture program under the court's
supervision, and the State has still not complied with it by submitting an adequate
comparable wage plan. At an October 2004 hearing, the court noted "the State went out
of its way to [a] great extent to make [Vasquez's] job very difficult. [It] resisted [her] at
every turn, [it] resisted this court at many occasions."
In Grimsley, the court relied on Phelan v. Superior Court (1950) 35 Cal.2d 363,
372, which held: " 'Before seeking mandate in an appellate court to compel action by a
trial court, a party should first request the lower court to act. If such request has not been
made the writ ordinarily will not issue unless it appears that the demand would have been
futile.' " (Grimsley, supra, 169 Cal.App.3d at p. 966, italics added.) The record only
permits a finding that a prelitigation settlement attempt by Vasquez would have been
futile. Accordingly, we conclude that even if the Supreme Court ultimately determines
Graham applies to non-catalyst theory cases, the prelitigation settlement attempt
requirement does not apply to Vasquez.
B
Work Performed After Entry of Stipulated Judgment
The State next contends the court erred by awarding Vasquez $242,055 in attorney
fees incurred after entry of the stipulated judgment. That amount, however, included fees
incurred in applying for and defending the application for the $1,257,258.60 in fees the
court previously awarded on entry of the stipulated judgment. The State does not contest

-- 35 of 40 --

36
that fees incurred in litigating entitlement to fees are recoverable. "[A]bsent
circumstances rendering the award unjust, fees recoverable under section 1021.5
ordinarily include compensation for all hours reasonably spent, including those necessary
to establish and defend the fee claim." (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.)
Accordingly, Vasquez's argument concerns only the portion of fees awarded for work
after entry of the stipulated injunction.14
The State asserts fees are improper because after entry of the stipulated judgment
Vasquez was no longer the prevailing party. It argues that had "the trial gone to verdict,
[Vasquez's] claim for attorneys' fees would have been cut off." It cites section 685.040,
which provides that attorney fees "incurred in enforcing a judgment are not included in
costs collectible under this title unless otherwise provided by law."
We reject the State's position, as the stipulated injunction provides "the Court
reserves jurisdiction to determine the issue of attorneys' fees and costs. Any claim for
costs and/or attorneys' fees shall be served and filed by May 1, 2004. . . . This paragraph
shall be without prejudice to any application for attorneys' fees in consequence of the
Stipulated Injunction." (Italics added.)
The State submits that the "court's offer to hear a motion is not authority for
14 Vasquez applied for $121,146.25 in attorney fees for applying for and defending
the previous application for fees, and $163,052.50 in fees incurred after entry of the
stipulated injunction, for a total request of $284,198.75. The court's order awarding
$242,055 in fees states it covers both requests, but it makes no allocation.

-- 36 of 40 --

37
[Vasquez] to recover[] fees." That is not, however, a reasonable construction of the
provision in the stipulated injunction pertaining to attorney fees. "A stipulation is an
agreement between counsel respecting business before the court [citation], and like any
other agreement or contract, it is essential that the parties or their counsel agree to its
terms." (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142.) "Stipulations must
be given a reasonable construction with a view to giving effect to the intent of the
parties." (Id. at p. 144.) An interpretation that renders part of an instrument surplusage
should be avoided. (National City Police Officers' Assn v. City of National City (2001)
87 Cal.App.4th 1274, 1279.) The only reasonable interpretation of the stipulated
injunction is that the parties negotiated that Vasquez may be entitled to fees incurred after
entry of the injunction to enforce, or try to enforce, the State's obligation to comply with
it.
C
Significant Benefit to the Public
The State also contends Vasquez is not entitled to fees because she did not confer
a significant benefit to the public in the post-injunction proceedings. This argument also
applies only to the portion of fees awarded for post-injunction work.
"The significant benefit criterion calls for an examination whether the litigation
has had a beneficial impact on the public as a whole or on a group of private parties
which is sufficiently large to justify a fee award. This criterion thereby implements the
general requirement that the benefit provided by the litigation inures primarily to the
public." (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1417.)

-- 37 of 40 --

38
The State asserts Vasquez's post-injunction work was not beneficial because she
and the court "misconstrued Penal Code [section] 2717.8 and confused the prevailing
wage/comparable wage distinction. This resulted in the erroneous ruling of the trial court
that an arbitrary objective standard can be developed to assign comparable wages to
specific work performed by prison inmates in joint venture companies." We rejected this
argument earlier.
The State's voters and taxpayers constitute a large class of persons, and a benefit
was conferred on them by Vasquez's continued efforts to obtain the State's compliance
with Proposition 139 and the stipulated injunction. The trial court cannot be expected to
monitor the State's performance without assistance from its adversary, and Vasquez is not
required to depend solely on the trial court. (Hull v. Rossi (1993) 13 Cal.App.4th 1763,
1768 [a " 'prospective private attorney general should not have to rely on the prospect that
the court will do the right thing without opposition' "].) This is particularly true when the
State has been recalcitrant. As the court explained in November 2004: "To be honest,
the Court is, I think amazed would be the best word, at the difficulty the State is having
complying with the order [it] agreed to back in February [2004]. . . . [¶] All that the
Court has ordered, all that [Vasquez] ha[s] asked the State to do, is to see that these Joint
Ventures that they've entered into are paying the state their due share. . . . [¶] Now, if I
were a lawyer and my client came in to me and said, I've got a bunch of employees that
are being underpaid, they should have been paid more, I want to make sure in the future
they get paid more, . . . it's hard for me to believe nine months later I'd still be sitting

-- 38 of 40 --

39
around trying to figure out what the numbers are. I mean, that boggles the mind when
you think about it."
In March 2005 the court described its continued frustration as follows: "[T]he
court is concerned, has been concerned for a long time as a matter of fact, that the State is
not acting in good faith in attempting to comply with the orders of this court, and that it's
acted in a concerted fashion to delay this matter for whatever reason. . . . And I've
expressed that on the record numerous times, that this is a process that the court has made
an order on, that the timelines have been definitive, that they were agreed to, stipulated
by the parties . . . , and the State has failed in every instance to come even close to any of
the timelines that have been set and has also resisted the efforts of [Vasquez] to be able to
get into the prison system and find out what the . . . situation is there in terms of the
various Joint Venture operations. . . . [¶] And the court has great concern with the
[preliminary report for Western Manufacturing] that's been filed because it basically just
comes up with a minimum wage analysis, for the most part, . . . [a]nd while that may be a
correct analysis, . . . on the surface it appears to be one that is not correct because the
levels of skill required in some of the operations as described to the court appear to be
ones that would exceed what one would pay minimum wage for. So for those reasons the
court has great concerns on why the State is attempting to drag this out."
Whether the applicant for attorney fees has proved section 1021.5's elements is a
matter vested in the trial court. (Ciani v. San Diego Trust & Savings Bank (1994) 25
Cal.App.4th 563, 571.) "We will reverse the trial court's decision only if there has been a
prejudicial abuse of discretion, i.e., where "there has been a manifest miscarriage of

-- 39 of 40 --

40
justice or ' "where no reasonable basis for the action is shown." ' " (Hull v. Rossi, supra,
13 Cal.App.4th 1763, 1767.) We find no abuse of discretion.
DISPOSITION
The orders are affirmed. Vasquez is entitled to costs on appeal.
M C CONNELL, P. J.
WE CONCUR:
BENKE, J.
NARES, J.

-- 40 of 40 --