Glaviano v. Sacramento City Unified Sch. Dist.

22 Cal.App.5th 744

231 Cal.Rptr.3d 849

Jerald GLAVIANO, Plaintiff and Appellant,

v.SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

C077743

Court of Appeal, Third District, California.

Filed April 26, 2018

Langenkamp, Curtis & Price, Andrea Price, Sacramento; Altshuler Berzon, Michael Rubin, Sacramento, and Peder J. Thoreen, San Francisco, for Plaintiff and Appellant.

Lozano Smith, Sloan R. Simmons and Gabriela D. Flowers, Sacramento, for Defendant and Respondent.

Atkinson, Andelson, Loya, Ruud & Romo, David A. Soldani, Fresno, Jennifer D. Cantrell, Cerritos; Keith J. Bray, Long Beach, and Joshua R. Daniels for California School Boards Association's Education Legal Alliance as Amicus Curiae on behalf of Defendant and Respondent.

MAURO, J.

After Jerald Glaviano interceded in a confrontation between two of his students, the Sacramento City Unified School District (the District) placed him on unpaid leave and issued an accusation and a notice of intent to dismiss or suspend him without pay. Following a hearing, the Commission on Professional Competence (Commission) dismissed the accusation and ordered the District to reinstate Glaviano to his former position with back pay and benefits.

Education Code section 44944¹ provides that if the Commission determines an employee should not be dismissed or suspended, the governing board of the school district shall pay "reasonable attorney's fees incurred by the employee." Glaviano requested fees based on the prevailing hourly rate for similar work in the community, but the trial court concluded the fee award must be based on the reduced hourly rate Glaviano's counsel actually charged. Because Glaviano stood by his assertion that the actual rate charged is irrelevant and privileged, the trial court denied his request for attorney's fees.

The issue presented on appeal is whether the phrase "reasonable attorney's fees incurred by the employee" in section 44944 necessarily limits a fee award to fees actually charged. We conclude it does not. In determining the reasonable fees to which Glaviano is entitled, the trial court should apply the lodestar method: the reasonable hours spent, multiplied by the prevailing hourly rate for similar work in the community. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 ( Ketchum ); Meister v. Regents of Univ. of California (1998) 67 Cal.App.4th 437, 446, 449, 78 Cal.Rptr.2d 913 ; see Serrano v. Priest (1977) 20 Cal.3d 25, 48-49, 141 Cal.Rptr. 315, 569 P.2d 1303 ( Serrano III ).)

Accordingly, we will reverse the trial court's order.

BACKGROUND

Langenkamp, Curtis & Price, LLP (Langenkamp) represented Glaviano during the District's investigation and at the hearing before the Commission under a modified contingent fee agreement. The California Teacher's Association (CTA) paid Langenkamp a partial advance on Langenkamp's fees to represent Glaviano because he was a member of CTA. Langenkamp continued to represent Glaviano after the partial advance was exhausted, charging CTA a reduced hourly rate.

After the Commission dismissed the accusation and ordered the District to reinstate Glaviano with back pay and benefits, Glaviano filed a petition for writ of mandate and motion for attorney's fees, ultimately requesting $156,213.50 in attorney's fees pursuant to section 44944. The motion for fees was based on the lodestar method; Langenkamp submitted billing records showing the number of hours worked, redacted descriptions of the work performed, and Langenkamp's usual hourly rates rather than the reduced rates actually charged CTA. Langenkamp declared that its usual hourly rates reflected the prevailing rates in the community. The District opposed Glaviano's fee motion, arguing among other things that section 44944 fees must be limited to reasonable fees actually incurred and may not be increased even if the fees charged are below market value.

The trial court determined Glaviano was entitled to a fee award under section 44944 and that the number of hours billed by Langenkamp was reasonable. Turning to the hourly rate, the trial court said section 44944 authorizes an award for reasonable attorney's fees "incurred," and Glaviano's recovery must be limited to the hourly rate he was actually charged, relying on Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 37 Cal.Rptr.2d 149 ( Nightingale ) and Andre v. City of West Sacramento (2001) 92 Cal.App.4th 532, 111 Cal.Rptr.2d 891 ( Andre ). According to the trial court, the lodestar method does not apply to the hourly rate, but even if the lodestar method did apply, the trial court would find the usual hourly rates charged by Langenkamp to be reasonable and then adjust the amount because Langenkamp agreed to accept a reduced rate. When Glaviano refused to disclose the actual rate charged, maintaining the information was privileged under Business and Professions Code section 6149 and irrelevant to a determination under section 44944, the trial court denied his request for attorney's fees.

STANDARD OF REVIEW

We review de novo a trial court's decision on a petition for writ of mandate where, as here, the appellant challenges the trial court's interpretation of a statute. ( Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, 129 Cal.Rptr.2d 811, 62 P.3d 54.) Well-settled rules guide our task. " ‘We begin with the fundamental rule that a court "should ascertain the intent of the Legislature so as to effectuate the purpose of the law." [Citation.] In determining such intent "[t]he court turns first to the words [of the statute] for the answer." [Citation.] We are required to give effect to statutes "according to the usual, ordinary import of the language employed in framing them." [Citations.] "If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose." [Citation.]’ " ( Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 218, 246 Cal.Rptr. 733, 753 P.2d 689 ( Fontana ).) Conversely, we may not add words to a statute. ( Code Civ. Proc., § 1858 ; Adoption of Kelsey S . (1992) 1 Cal.4th 816, 827, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) " ‘[W]e may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does. "Our office ... ‘is simply to ascertain and declare’ what is in the relevant statutes, ‘not to insert what has been omitted, or to omit what has been inserted.’ " [Citation.]' [Citation.]" ( Walent v. Commission on Professional Competence (2017) 9 Cal.App.5th 745, 752, 214 Cal.Rptr.3d 891 ( Walent ).) We may consider how similar language in other statutes has been interpreted. (See, e.g., People v. Piper (1986) 42 Cal.3d 471, 476, 229 Cal.Rptr. 125, 722 P.2d 899 ; People v. Maciel (1985) 169 Cal.App.3d 273, 278, 215 Cal.Rptr. 124 ; see also People v. Woodhead (1987) 43 Cal.3d 1002, 1008, 239 Cal.Rptr. 656, 741 P.2d 154 [where the words of the statute do not provide a definitive answer, we may look to other statutes which apply to similar or analogous subjects].)

DISCUSSION

At the time of the trial court's decision, section 44944, subdivision (e)(2) provided, "If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board shall pay ... reasonable attorney's fees incurred by the employee."² (Stats. 2006, ch. 538, § 107.) Glaviano contends "reasonable attorney's fees incurred by the employee" means market rate fees calculated under the lodestar method. The District counters that the lodestar method is inapplicable and "reasonable attorney's fees incurred by the employee" means the fees actually paid by, or charged to, the employee.

Except as provided by statute or agreement, each party to a lawsuit must ordinarily pay his or her own attorney's fees. ( Code Civ. Proc., § 1021 ; Trope v. Katz (1995) 11 Cal.4th 274, 278-279, 45 Cal.Rptr.2d 241, 902 P.2d 259.) In statutory fee-shifting cases, in which the prevailing party is statutorily authorized to recover his or her attorney's fees from the losing party, the lodestar method is the primary method for establishing the amount of recoverable fees. ( Lealao v. Beneficial California, Inc . (2000) 82 Cal.App.4th 19, 26, 97 Cal.Rptr.2d 797 ; 1 Pearl, Cal. Attorney Fee Awards (3d ed. 2017) § 8.3, p. 8-5.) Under the lodestar method, the trial court must first determine the lodestar figure—the reasonable hours spent multiplied by the reasonable hourly rate—based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. ( Ketchum, supra, 24 Cal.4th at pp. 1131-1133, 104 Cal.Rptr.2d 377, 17 P.3d 735.)

The reasonable hourly rate is that prevailing for private attorneys in the community conducting non-contingent litigation of the same type. ( Ketchum, supra , 24 Cal.4th at p. 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735 ; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511 ( PLCM ).) The prevailing hourly rates apply " ‘ "regardless of whether the attorneys claiming fees charge[d] nothing for their services, charge[d] at below-market or discounted rates, represent[ed] the client on a straight contingent fee basis, or are in-house counsel. [Citation.]" [Citation.]’ " ( Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701, 172 Cal.Rptr.3d 456 ( Syers ); see 2 Pearl, Cal. Attorney Fee Awards (3d ed. 2017) § 9.94, pp. 9-88 to 9-90.)

After determining the lodestar, the trial court may adjust the lodestar figure based on factors including, but not limited to (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) success or failure, (4) the extent to which the nature of the litigation precluded other employment by the attorneys, (5) the contingent nature of the fee award, (6) that an award against ...