background here:

A. Happy Nails's Business

Happy Nails of Fashion Valley and Happy Nails of Mira Mesa are limited

1 Unless otherwise indicated, all references to Happy Nails include plaintiffs and appellants Happy Nails & Spa of Mira Mesa, L.P. and The H&N Group Management Co. 2 partnerships that own salons in which cosmetologists provide manicures, pedicures, and

face and skin treatments to clients. H&N Group is the general partner of Happy Nails of

Fashion Valley, Happy Nails of Mira Mesa, and other limited partnerships doing business

under the Happy Nails name. H&N Group also provides management services to

incorporated salons doing business under the Happy Nails name.

In 2001, Happy Nails hired a consultant to help restructure its business operations

in such a way that the cosmetologists would be independent contractors rather than

employees. By early 2003, Happy Nails implemented the changes recommended by the

consultant at all of its salons.

B. The Proceedings Before the Employment Development Department and the

Unemployment Insurance Appeals Board

In 2004, the Employment Development Department (the Department), an entity

within the Labor and Workforce Development Agency (Unemp. Ins. Code, § 301), issued

assessments against H&N Group, Happy Nails of Fashion Valley, Happy Nails of Mira

Mesa, and 35 other salons doing business under the Happy Nails name, for unpaid

unemployment insurance contributions (id., § 1126). H&N Group and the salons

petitioned the Department for reassessment. At the direction of the administrative law

judge assigned to hear the petitions, H&N Group selected one salon (located in Chino

Hills) and the Department selected another (located in Irvine) for a combined hearing.

The parties later stipulated that the record from that hearing would be used to decide the

reassessment petitions for the remaining 35 salons.

3 After a two-day hearing at which eight witnesses testified and more than 50

exhibits were admitted concerning business operations at the salons, the administrative

law judge issued decisions granting the petitions for reassessment. Each decision states:

"The issues in this case are whether the workers were employees of the petitioner and, if

so, whether the petitioner is liable for unemployment, employment training, and disability

contributions, personal income tax withholdings, penalties, and interest." After

summarizing the facts regarding the conduct of business at the salons, the administrative

law judge listed the factors relevant to determining whether a worker is an employee or

an independent contractor, and then applied those factors to the facts. Specifically, the

administrative law judge found the cosmetologists were not terminable at will, but could

only be terminated for death, bankruptcy, or gross violation of the written contract with

the salon; the salons exercised no control over the cosmetologists, who used their own

skill and judgment in performing services; the cosmetologists provided, at their own

expense, many of the materials and all of the equipment they used; the cosmetologists

were engaged in a skilled occupation that required many hours of training for licensure;

and the processing of payments for services was handled by an independent third party.

Based on these findings, the administrative law judge concluded the cosmetologists were

independent contractors rather than employees, and therefore H&N Group and the salons

were not liable for the contributions assessed by the Department. The administrative law

judge later issued similar decisions reaching the same conclusions as to the other 35

salons, including Happy Nails of Fashion Valley and Happy Nails of Mira Mesa.

4 The Department appealed the administrative law judge's decisions to the

Unemployment Insurance Appeals Board (the Board). The Board affirmed the decisions

in the cases involving the Chino Hills and Irvine salons on November 7, 2007, and

affirmed the decisions regarding the other 35 salons on November 24, 2008. The

Department did not seek judicial review of the Board's decisions.

C. The Proceedings Before the Division of Labor Standards Enforcement

In August 2008, the Commissioner, acting through the Division of Labor

Standards Enforcement (the Division), an entity within the Department of Industrial

Relations (Lab. Code, § 79), issued citations to and assessed civil penalties against Happy

Nails for paying the cosmetologists who worked at Happy Nails of Fashion Valley and

Happy Nails of Mira Mesa without giving them properly itemized wage statements (id.,

§§ 226, subd. (a), 226.3, 226.4). Happy Nails contested the citations and requested a

hearing. (Id., § 226.5.) A combined hearing concerning the two salons was set for

February 2009.

Before the hearing, Happy Nails submitted a brief with supporting exhibits in

which it argued an evidentiary hearing was unnecessary because the prior decisions of the

Department and the Board conclusively determined the cosmetologists working at Happy

Nails of Fashion Valley and at Happy Nails of Mira Mesa were independent contractors

and not employees. In the brief, Happy Nails complained that it had "already spent

hundreds of thousands of dollars, and borne the burden of years of administrative

proceedings, to determine that [its] [c]osmetologists are not employees." Based on the

5 Board's decision and principles of collateral estoppel, Happy Nails urged the hearing

officer "to 'avoid chaos' and make a determination consistent with that of the [Board]:

that Happy Nails [c]osmetologists are properly classified as independent contractors."

The Division submitted an opposition brief in which it contended for various reasons that

application of collateral estoppel was "inappropriate in this case." The record contains no

ruling by the hearing officer on the collateral estoppel defense raised by Happy Nails.

The hearing officer conducted a one-day hearing at which 10 witnesses testified

and 31 exhibits were admitted concerning business operations at the salons. The

evidence presented by Happy Nails and the Division was substantially the same as that

introduced by Happy Nails and the Department at the prior hearing before the

administrative law judge. On March 30, 2009, the hearing officer issued findings and

orders affirming the citations and civil penalties assessed by the Division. After

summarizing the testimony of the witnesses and describing some of the exhibits, the

hearing officer considered various factors relevant to determining whether a worker is an

employee or an independent contractor, and concluded Happy Nails is subject to the civil

penalties because the cosmetologists are employees, not independent contractors. The

findings and orders did not mention the prior, contrary decisions of the Department or the

Board.

D. The Proceedings Before the Trial Court

On May 20, 2009, Happy Nails filed the complaint against the Commissioner in

which it challenged the Division's findings and orders. Happy Nails alleged that the

6 Board's decisions that the cosmetologists working at its salons are independent

contractors rather than employees are binding on all state agencies, and that the

Division's contrary findings and orders subject Happy Nails to inconsistent legal

obligations. Happy Nails also alleged the findings and orders were unsupported by the

evidence, were issued in excess of the Division's jurisdiction, were the result of an unfair

hearing, and violated Happy Nails's federal and state constitutional due process rights.

Based on these allegations, Happy Nails asserted several separately labeled "causes of

action"; and in the prayer for relief, it requested a writ of administrative mandate to set

aside the Division's findings and orders (Code Civ. Proc., § 1094.5), a permanent

injunction against future prosecutions of H&N Group or the owners of Happy Nails

salons based on the contention that the cosmetologists working at the salons are

employees; and attorney fees for violations of its federal due process rights (42 U.S.C.

§§ 1983, 1988).

The Commissioner answered Happy Nails's complaint. In the answer, the

Commissioner denied that the Board's decisions have preclusive effect on other state

agencies and that the Division's findings and orders were unsupported by the evidence,

were issued in excess of the Division's jurisdiction, were the result of an unfair hearing,

or violated Happy Nails's due process rights. The Commissioner requested that Happy

Nails be denied all relief demanded in the complaint.

Happy Nails moved for summary judgment on the ground that the Board's

determination that the cosmetologists working at its salons are independent contractors,

7 rather than employees, collaterally estopped the Division from issuing citations and

assessing civil penalties for Happy Nails's failure to provide the cosmetologists with

itemized wage statements. The Commissioner opposed the motion on the ground that

collateral estoppel did not apply. The trial court denied the motion, stating that Happy

Nails "ha[s] not shown that the issue sought to be precluded from relitigation is identical

to the issue decided in the former proceeding, or that the issue was actually litigated in

the former proceeding. [¶] . . . [¶] In addition, even if collateral estoppel applies, triable

issues of fact exist relative to a determination of whether the facts litigated in [the hearing

involving the Department] are the same as those litigated in the [hearing involving the

Division]. This alone defeats summary adjudication."

The trial court rejected Happy Nails's collateral estoppel argument and determined

there was substantial evidence in the administrative record to support the Division's

findings that the cosmetologists working at Happy Nails salons are employees and not

independent contractors. The court therefore denied Happy Nails's request for writ relief.

On appeal, we reversed. We found the Board's earlier decision did collaterally

estop the Commissioner from attempting to classify Happy Nails workers as employees.

We found the classification issue determined in the earlier Department proceeding was

identical to the issue presented in the Commissioner's enforcement proceeding, that the

issue was fully litigated, and that the Department and the Commissioner were in privity

for purposes of their respective enforcement actions against Happy Nails. (Happy Nails

I, supra, D060621.) We reversed, remanded and directed that the trial court consider

8 Happy Nails's remaining claims for violation of its right to due process and for injunctive

relief; once the trial court determined those claims, we instructed the court to enter a

judgment in Happy Nails's favor annulling the Commissioner's penalty assessment and

providing Happy Nails with any additional relief it found appropriate.

2. Proceedings on Remand

On remand, Happy Nails filed a motion for attorney fees and for an injunction.

Happy Nails argued that the attorney fees were recoverable under Title 42 United States

Code section 1983 because in bringing the enforcement action against it, the

Commissioner had violated its right to due process. The trial court found that the

Commissioner had not violated Happy Nails's right to due process, and, therefore, there

was no basis upon which to make an award of attorney fees; the trial court also found that

Happy Nails was not entitled to any injunction preventing the Commissioner from

attempting to reclassify its workers. Thereafter, as instructed, the trial court entered a

judgment annulling the Commissioner's penalty assessment but denying Happy Nails any

further relief.

Happy Nails filed a timely notice of appeal.

DISCUSSION

I

Due Process

In its principal argument on appeal, Happy Nails contends that in initiating a

penalty assessment proceeding and imposing an assessment against it, notwithstanding

9 Happy Nails's successful defense of the Department's similar claim against it, the

Commissioner violated Happy Nails's right to due process and gave rise to a claim

against the Commissioner under Title 42 United States Code section 1983 (section 1983)

and, in turn, the right to recover attorney fees under Title 42 United States Code section

1988 (section 1988). Like the trial court, we reject Happy Nails's section 1983

contentions.

Fundamentally, we find no cognizable due process claim here because, although

the Commissioner's unwillingness to be bound by the result in the Department's earlier

proceeding was erroneous, it was in no sense so arbitrary or capricious as to give rise to a

constitutional claim. In order to establish that conduct by a governmental official has

violated due process, more than a simple mistake or negligence must be shown. (See

Daniels v. Williams (1985) 474 U.S. 327, 331-332; Mobley v. Los Angeles Unified School

District (2001) 90 Cal.App.4th 1221, 1239.) In Daniels v. Williams, in rejecting a

prisoner's claim that his right to due process was violated because he was injured because

a prison employee negligently left a pillow on a stairway, where he slipped and fell, the

court stated: "[T]he Due Process Clause, like its forebear in the Magna Carta [citation],

was ' "intended to secure the individual from the arbitrary exercise of the powers of

government," ' [Citations.] By requiring the government to follow appropriate

procedures when its agents decide to 'deprive any person of life, liberty, or property,' the

Due Process Clause promotes fairness in such decisions. And by barring certain

government actions regardless of the fairness of the procedures used to implement them,

10 [citation], it serves to prevent governmental power from being 'used for purposes of

oppression,' [citation]. [¶] . . . Far from an abuse of power, lack of due care suggests no

more than a failure to measure up to the conduct of a reasonable person. To hold that

injury caused by such conduct is a deprivation within the meaning of the Fourteenth

Amendment would trivialize the centuries-old principle of due process of law." (Daniels

v. Williams, supra, at pp. 331-332.)

The court in Mobley v. Los Angeles Unified School District took a somewhat more

practical and less historical approach in rejecting a claim that individual employees of the

Commissioner could be held liable under section 1983 because they erroneously initiated

a prevailing wage claim against a contractor based on their view of what the contractor

should have been paying his construction workers. The court stated: "The individual

respondents were not violating appellant's civil rights by taking the position that his

journeyman workers were plasterers and deserving of a higher wage any more than

appellant was violating his workers' civil rights by taking the opposite position. All the

allegations prove is that the parties disagreed about how to apply relevant law to known

facts. If honest disputes about legal and factual matters were all it took to support a

section 1983 claim, we would be awash in them." (Mobley v. Los Angeles Unified School

District, supra, 90 Cal.App.4th at p. 1239, italics added.)

To the historical and practical considerations discussed in Daniels v. Williams and

Mobley v. Los Angeles Unified School District, we would add an additional circumstance

which we believe requires substantially more than the mere lack of success on the merits

11 as a condition of finding a due process violation in a regulatory proceeding and the

consequent right to recover attorney fees from a regulator under section 1988. It is well

established that we may not award attorney fees as a sanction for a frivolous appeal in the

absence of a finding that a litigant acted either out of an improper motive or asserted a

contention which no reasonable attorney would adopt. (In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 649-650 (Flaherty).) In creating this relatively high bar for

sanctions, the court in Flaherty stated: "[A]ny definition [of frivolous] must be read so as

to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel

and their clients have a right to present issues that are arguably correct, even if it is

extremely unlikely that they will win on appeal." (Id. at p. 650.) While the Constitution

may be violated with conduct that does not rise to the level of frivolousness set forth in

Flaherty, nonetheless, a constitutional standard that provides attorney fees whenever a

regulator is unsuccessful will have a chilling effect on regulatory activity that may be

inconsistent with the overall public interest.

Here, at its core, Happy Nails's claim is based on no more than the

Commissioner's erroneous unwillingness to accept that Happy Nails's classification of its

workers as independent contractors was no long subject to dispute. However, the

doctrine of collateral estoppel is somewhat elastic, and equitable considerations may

justify a departure from its application. "[C]ollateral estoppel doctrine may bar

relitigation of a particular issue, when there has been a prior adjudication of the issue in

another action, but it is utilized more flexibly than is the doctrine of res judicata. It has

12 been said that collateral estoppel is based on equitable principles, and that the issue in

question must have been sufficiently litigated in the prior forum to produce a firm and

conclusive resolution." (Nash v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th

1793, 1812.) Given the inherent flexibility of the doctrine, the Commissioner's

unsuccessful collateral estoppel contentions in no sense rose to the level of a

constitutional violation. Hence, the trial court did not err in rejecting Happy Nails's due

process claim and its request for attorney fees.2

II

Injunction

The trial court also properly rejected Happy Nails's request for a permanent

injunction preventing the Commissioner from attempting to relitigate the classification of

its workers. In response to Happy Nails's request for an injunction, the Commissioner's

counsel stated that it has no intention to renew its unsuccessful claims against Happy

Nails. Given the Commissioner's express acquiescence in our prior ruling, there is no

basis upon which injunctive relief is available. (See Scripps Health v. Martin (1999) 72

Cal.App.4th 324, 332-333.)

2 Were Happy Nails seeking damages from the Commissioner, its claims would also be barred by her absolute and qualified immunity as a participant in judicial or quasi- judicial proceeding. (See Mobley v. Los Angeles Unified School District, supra, 90 Cal.App.4th at p. 1239.) 13

DISPOSITION

The judgment is affirmed. The Commissioner to recover its costs of appeal.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

14