Judge James C. Chalfant, Case Number: 22STCP00986, Date: 2023-07-11 Tentative Ruling

Santa Monica-Malibu Unified School District and the City of Santa Monica v. Los Angeles County Committee on School District Organization, 22STCP00986
Tentative decision on motion for attorney’s fees: denied

Intervenor Jennifer DeNicola (“DeNicola”) moves for an award of attorney’s fees from Petitioners Santa Monica-Malibu Unified School District (“District”) and the City of Santa Monica (“City”).

The court has read and considered the moving papers, opposition, and reply and renders the following tentative decision.

On March 18, 2022, Petitioners filed the Petition against Respondent Los Angeles County Committee on School District Organization (“Committee”), alleging causes of action for (1) traditional mandamus and (2) declaratory relief. The verified Petition alleges in pertinent part as follows.

The California Constitution gives municipal charter provisions the force of legislative enactments and provides that they supersede state law on municipal affairs such as local elections. Pursuant to the City Charter, the City elects the District’s Board of Education members, or trustees, using an at-large system. Each constituent votes on every member, meaning that each District voter casts seven votes. Fear of litigation under the California Voting Rights Act (“CVRA”) -- which prohibits at-large elections that impair a protected class’s ability to elect candidates due to dilution of class members -- has prompted some school districts to transition to trustee area-based election formats.

Historically, Education Code (“Ed. Code”) section 5019 (“section 5019”) has provided a process whereby a county committee on school district organization (“county committee”) can change the manner in which a school district elects its board members but exempting any district where the city or city and county charter provides for election of the board of education. Thus, a modification of the manner in which the City elects Board of Education members would require an amendment to the City charter, which can occur only if (1) the City Council passes a resolution or 15% of registered voters or 10,000 voters sign a petition and (2) a majority of electors approves the amendment.

In 2021, the Legislature enacted SB 442, which amended section 5019 by repealing the prohibition of county committees from altering election processes where city or city and county charter provides for election of the board of education. SB 442 also amended Education Code section 5020 (“section 5020”) to allow the county committees to establish trustee areas without presenting the proposal to the constituency for a vote. The county committee need only (1) unilaterally propose, or have 500 citizens sign a petition proposing, the change, (2) conduct one hearing, and (3) vote to approve the change. This procedure bypasses the City’s process for amending its Charter and abolishes the at-large voting system approved by voters.

The legislative history of SB 442 suggests that the Legislature intended to help school districts that wanted to voluntarily transition to trustee area-based elections without spending money on judicial action or seeking amendment of the city charter. The Legislature did not intend to allow county committees to impose trustee area-based elections when the school district’s elected representatives do not want them.

On January 4, 2022, District voters DeNicola and Tricia Crane filed a petition (“DeNicola/Crane petition”) to establish trustee-area elections for its governing board. The petition falsely claims that Latino and black communities have been underrepresented on the Board of Education, despite the fact that both groups are represented at a higher percentage than their number of constituents. The DeNicola/Crane petition provides no evidence of racially polarized voting or vote dilution in the District.

On January 21, 2022, the Committee reported that the DeNicola/Crane petition had 500 signatures. The District and various organizations objected to the Committee’s jurisdiction to hear the DeNicola/Crane petition. At its February 2 meeting, the Committee did not acknowledge these objections, only stating that the next step in the process would be to schedule a public hearing to receive testimony and formally consider the proposal. The Committee scheduled this hearing for April 2022.

Petitioners seek a (1) a writ of traditional mandate nullifying any SB 442 provisions that violate the California Constitution provisions whereby city and city and county charters supersede all inconsistent laws governing municipal affairs; (2) injunctive relief enjoining the Committee from implementing SB 442 with respect to the DeNicola/Crane petition or similar proposals; (3) declaratory relief finding such sections of SB 442 unconstitutional; and (4) attorney’s fees and costs.

On March 21, 2022, Petitioners served Respondent Committee with the Petition and Summons.

On July 26, 2022, the court denied a motion to intervene by Senator Josh Newman (“Newman”) but granted such a motion for DeNicola. As Intervenor, DeNicola filed an Answer on August 2, 2022.

On January 5, 2023, the court denied the Petition by requiring exhaustion of administrative remedies. The court ruled that Petitioners were making a facial challenge to SB 442, and while the Committee is constitutionally prohibited from addressing Petitioners’ challenge, there were good reasons to require exhaustion before the Committee: (1) Petitioners waited almost eight months after SB 442 was passed to file suit; (2) facial challenges are disfavored because they risk premature interpretation of statutes on bare-bones records, (3) there will be no public harm in requiring exhaustion, (4) Petitioners had not shown significant harm to themselves from being required to exhaust, and (5) the Committee’s decision may undermine any total and fatal conflict between SB 442 and Petitioners’ constitutional rights under Cal. Const. art. XI, section 5.

On May 4, 2023, the court granted Petitioners’ motion to tax costs from $1,259.36 to $435.

On June 26, 2023, the appellate court dismissed the District’s appeal at its request. The City’s appeal remains as pending.

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that “has resulted in the enforcement of an important right affecting the public interest if (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.

The moving party bears the burden of proof as to the reasonableness of any fee claim. CCP §1033.5(c)(5). This burden requires competent evidence as to the nature and value of the services rendered. Martino v. Denevi, (1986) 182 Cal.App.3d 553, 559. “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” Id. “‘The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.’” Center For Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 619 (citations omitted).

A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. See Hadley v. Krepel, (1985) 167 Cal.App.3d 677, 682. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” Lunada Biomedical v. Nunez, (2014) 230 Cal.App.4th 459, 488.

In determining whether the requested attorney’s fees are reasonable, the court’s “first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.” Gorman v. Tassajara Development Corp., (2008) 162 Cal.App.4th 770, 774 (“Gorman”). In adjusting the lodestar figure, the court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. EnPalm LLC v. Teitler, (2008) 162 Cal.App.4th 770, 774; see also PLCM Group, Inc. v. Drexler, (2000) 22 Cal.4th 1084, 1095.

Kevin Shenkman, Esq. (“Shenkman”) was the primary attorney for DeNicola in this action. Shenkman Decl., ¶2. He earned his J.D. at Columbia University in 2002 and was admitted to the California Bar in the same year. Shenkman Decl., ¶3. He then worked on complex litigation until 2008. Shenkman Decl., ¶3.

Partner Mary Hughes, Esq. (“Hughes”) also worked on this action. Shenkman Decl., ¶2. She completed her J.D. at the University of Southern California Gould Law School in 1999. Shenkman Decl., ¶4. She was admitted to the California Bar in 2002 and worked at Gibson, Dunn & Crutcher LLP until 2010. Shenkman Decl., ¶4.

Hughes and Shenkman founded their own firm in 2011. Shenkman Decl., ¶¶ 3-4. In 2014, they prevailed in the first two cases ever based on the CVRA that made it to trial, including the appeal in one. Shenkman Decl., ¶5. More recently, they prevailed in the trial court in Pico Neighborhood Assn. v. City of Santa Monica (“Pico”), BC616804. Shenkman Decl., ¶6. Although the appellate court reversed, the California Supreme Court granted review and depublished the appellate opinion, and that review is pending. Shenkman Decl., ¶6. The firm has also prevailed in over a dozen other CVRA cases and caused 100 political subdivisions in California to reform their election systems. Shenkman Decl., ¶6. Shenkman’s success in these actions has led to multiple public appearances to speak on voting rights. Shenkman Decl., ¶8.

This case arose from the DeNicola/Crane petition to establish trustee-area elections for the District’s governing board. Shenkman Decl., ¶9. The petition gathered close to 1,000 signatures from voters. Shenkman Decl., ¶9. The Los Angeles County Registrar of Voters confirmed under section 5019(c)(1) that the DeNicola/Crane petition had a sufficient number of valid signatures for consideration by the Committee. Shenkman Decl., ¶9.

On March 18, 2022, before the Committee could hear the DeNicola/Crane petition, Petitioners filed their Petition to enjoin the Committee from implementing SB 442 with respect to the DeNicola/Crane petition. Shenkman Decl., ¶10. The Petition also asked the court to enjoin implementation of SB 442 with respect to the DeNicola/Crane petition and similar proposals for any school districts governed by a board of education whose manner of election is provided for in the charter of a city or city and county. Shenkman Decl., ¶10.

Petitioners’ argument was that art. IX, section 16 of the California Constitution prohibits any state regulation of school board elections in charter cities. Shenkman Decl., ¶10. This would affect the voting rights of millions of people across the state. Shenkman Decl., ¶10. Although the Committee had no role in SB 442’s enactment, Petitioners named the Committee as Respondent. Shenkman Decl., ¶11. Because DeNicola was concerned that the Committee was not motivated or interested in defending SB 442’s constitutionality, she chose to intervene in this case. Shenkman Decl., ¶11.

On July 26, 2022, the court granted DeNicola’s motion to intervene but denied a motion for Senator Josh Newman (“Newman”) to intervene. Shenkman Decl., ¶11. At that hearing, the court warned Petitioners that if the action was a facial challenge to SB 442 as applied, the Petition may suffer from a failure to exhaust administrative remedies. Shenkman Decl., ¶12, Ex. A. The court indicated that it would not need to address whether SB 442 was constitutional if Petitioners defeated the DeNicola/Crane petition on other grounds in front of the Committee. Shenkman Decl., ¶12, Ex. A.

Petitioners chose to continue to litigate this case. Shenkman Decl., ¶13. This forced DeNicola to incur additional fees to oppose the Petition on the merits, oppose Petitioners’ efforts to indefinitely delay the Committee’s consideration of the DeNicola/Crane petition, and prepare for trial. Shenkman Decl., ¶13.

On December 12, 2022, Shenkman emailed Petitioners with an offer to stipulate to a judgment that Petitioners had failed to exhaust administrative remedies. Shenkman Decl., ¶13, Ex. B. This would allow them to refile the Petition once the Committee had adjudicated the DeNicola/Crane petition. Shenkman Decl., ¶13, Ex. B. Shenkman warned Petitioners that the court would likely reach the same conclusion. Shenkman Decl., ¶13, Ex. B.

Throughout the litigation, counsel for DeNicola tried to coordinate with the Committee’s counsel to avoid duplication of work. Shenkman Decl., ¶14. The Committee asked Shenkman and Hughes to perform most of the work in this case, likely because of their experience in CVRA cases. Shenkman Decl., ¶14. DeNicola’s opposition made most of the arguments with the Committee joining most of the argument and making only a small opposition brief of its own. Shenkman Decl., ¶14.

At a meeting on March 1, 2023, the Committee adopted procedures for hearing the DeNicola/Crane petition. Shenkman Decl., ¶9. These procedures included written submissions and two successive hearings to afford both sides and the public a chance to be heard. Shenkman Decl., ¶9.

In 2014, Hughes and Shenkman billed $550 per hour each. Shenkman Decl., ¶18. The court in Jauregui v. City of Palmdale approved an award of attorney’s fees based on that rate. Shenkman Decl., ¶18. The attorneys have since raised their rates in response to increased demands for their services, which may stem from the firm’s success in multiple high-profile cases from 2014 to 2018. Shenkman Decl., ¶¶ 18, 21. Shenkman’s current rate is $895 per hour, while Hughes charges $790 per hour. Shenkman Decl., ¶17.

The firm regularly evaluates these rates based on the rates of similarly credentialed attorneys in the Los Angeles legal market, the demand for Hughes and Shenkman’s services, and feedback from judges and clients. Shenkman Decl., ¶17. Based on their experience, the Updated Laffey Matrix recommends an hourly rate of $997 for both Hughes and Shenkman. Shenkman Decl., ¶20, Ex. D. Shenkman believes his rate should be higher based on his success in high-profile CVRA cases. Shenkman Decl., ¶20. The ultra-conservative Breitbart News has criticized Shenkman’s work yet called him one of the most prolific and successful civil rights lawyers of his generation. Shenkman Decl., ¶20.

In at least four disputed fee motions in the last two years, courts have approved the hourly rates that Shenkman and Hughes requested: (1) De Baca, et al. v. Santa Monica Malibu Unified Sch. District, (“De Baca”) (2021), BC674932; (2) Salas, et al. v. City of Palm Desert, (“Salas”) (2021); (3) Monteclaro v. City of Carson (“Monteclaro”), (2022) 20STCV30918; and (4) Southwest Voter Registration Education Project v. Ramona Unified Sch. District, (“Southwest”) (2023). Shenkman Decl., ¶19. In all but Monteclaro, the court approved all the hours and the total fees requested. Shenkman Decl., ¶19.

Shenkman reviewed the firm’s time records to delete hours that did not appear reasonably necessary or reflected small amounts of time for minor tasks. Shenkman Decl., ¶15. Shenkman uses the same practice when invoicing clients who pay on an hourly basis. Shenkman Decl., ¶15. He deleted 26.7 hours and $23,329.50 in fees for duplicative work and exercise of billing judgment. Shenkman Decl., ¶16. After these deductions, the edited time records show that Shenkman spent 233.2 hours on this action and Hughes spent 69.7 hours, for a total of 302.9 hours. Shenkman Decl., ¶15, Ex. C.

4.7 of Shenkman’s hours on March 26, 2022 were to research the constitutionality issue raised in the Petition. Shenkman Decl., ¶15, Ex. C. Another 4.1 hours on March 27 and 3.8 hours on March 28 were for researching the same issue and drafting a letter to the Committee about constitutionality to determine the Committee’s position and intended course of action. Shenkman Decl., ¶15, Ex. C.

Multiple entries reflect meetings with the Committee’s counsel, Robin Johansen, Esq. (“Johansen”) and Kristen Mah Rogers, Esq. (“Rogers”). Shenkman Decl., ¶15, Ex. C.

DeNicola’s counsel also incurred costs of $1,259.36. Shenkman Decl., ¶22, Ex. E.

On January 9, 2020, as part of a proposed class action settlement in De Baca, the District agreed not to oppose an award of $560,000 in attorney’s fees. Chiapetti Decl., ¶37, Ex. 9. Objections to this settlement explained that the parties had calculated the fee based in part on an hourly rate of $815 for Shenkman and $740 for Hughes. Chiapetti Decl., ¶36, Ex. 8. Despite these objections, on November 16, 2021, the court approved the proposed settlement with the $560,000 award of attorney’s fees. Chiapetti Decl., ¶38, Ex. 10. The court found the settlement fair, reasonable, and adequate. Chiapetti Decl., ¶38, Ex. 10.

On April 21, 2022, the intervenor in Monteclaro moved for attorney’s fees based on an hourly rate of $815 for Shenkman and $740 for Hughes. Chiapetti Decl., ¶22, Ex. 2.

Petitioners have calculated that 6.9 of Shenkman’s hours ($6,176.50 at his requested rate), were for lobbying. Chiapetti Decl., ¶¶ 3, 12, Figs. A, E. Because section 1021.5 does not entitle counsel to recovery of those fees, the court should reduce any award of fees by this amount. Chiapetti Decl., ¶¶ 12-13.

7.6 of Shenkman’s hours ($6,802), and 47.8 hours of Hughes’s hours ($37,762), were for DeNicola’s and Newman’s motions to intervene. Chiapetti Decl., ¶¶ 3-4, Figs. A-B. Of these amounts, all of Shenkman’s hours and 19.9 of Hughes’s hours ($15,721) were incurred between July 14 and 26, 2022. Chiapetti Decl., ¶¶ 3-4, Figs. A-B. The hours spent on the motion to intervene also include over 17 hours across four entries for “researching and drafting”. Chiapetti Decl., ¶20.

Petitioners informed DeNicola’s counsel that they would not oppose DeNicola’s intervention before her attorneys incurred any hours for the motion to intervene. Chiapetti Decl., ¶5. The time records do not distinguish between the hours spent on DeNicola’s motion and Newman’s motion. Chiapetti Decl., ¶5. Their counsel presumably spent the majority of time on Newman’s motion, especially the 27.5 hours expended after Petitioners filed their opposition on July 14. Chiapetti Decl., ¶5. If so, the court should reduce the requested fees by either the $44,564 incurred for these motions or the $22,523 incurred after July 14. Chiapetti Decl., ¶6.

103.9 of Shenkman’s hours ($92,990.50) and 17.7 hours of Hughes’s hours ($13,983) were expended to prepare DeNicola’s opposition to the Petition. Chiapetti Decl., ¶¶ 3, 7, Figs. A-C. The time records label 81.2 hours ($72,674) for “researching and drafting” the opposition brief. Chiapetti Decl., ¶15, Fig. C.

Of the time billed for the opposition, 49.4 of Shenkman’s hours ($44,213), and 9.9 hours of Hughes’s hours ($7,821), were related to whether SB 442 was constitutional. Chiapetti Decl., ¶3, Fig. A. 54.5 of Shenkman’s hours ($48,745), and 7.8 hours of Hughes’s hours ($6,162), were related to the exhaustion issue. Chiapetti Decl., ¶3, Fig. A.

The constitutionality argument comprised 9.5 pages of Intervenor’s 17-page opposition brief and the exhaustion issue accounted for the remaining 7.5 pages. Chiapetti Decl., ¶8. On March 7, 2022, before any hours were incurred, Shenkman sent the Committee a letter that asserted that SB 442 was a constitutionally permissible exercise of the Legislature’s authority to promote the purposes of the CVRA. Chiapetti Decl., ¶17, Ex. 1. Although the time records refer to a March 28, 2022 Shenkman letter to the Committee, Petitioners have never seen it. Chiapetti Decl., ¶18.

The court should reduce any award of attorney’s fees by the $52,034 incurred for the constitutionality issue. Chiapetti Decl., ¶9.

14.4 of Shenkman’s hours ($12,888), were incurred for DeNicola’s opposition to Petitioners’ motion to tax costs. Chiapetti Decl., ¶¶ 3, 10, Figs. A, D. Because the motion was granted, the court should reduce any award of attorney’s fees by this amount. Chiapetti Decl., ¶11.

29.8 of Shenkman’s hours ($26,671) were incurred to prepare DeNicola’s motion for attorney’s fees. Chiapetti Decl., ¶3, Fig. A. Substantial portions of this motion are identical to a motion for attorney’s fees that Shenkman previously filed in Monteclaro. Chiapetti Decl., ¶¶ 22-23, Ex. 2-3. The court should reduce the fees for the fee motion by half, or $13,336, because they are unreasonably excessive and duplicative. Chiapetti Decl., ¶¶ 21, 24.

For July 26, 2022, Shenkman lists a five-hour entry to review the tentative ruling on a motion to intervene, research and prepare a response, and travel to and from the courthouse to attend the hearing. Chiapetti Decl., ¶26, Fig. G. Google Maps shows that it would have taken an average of 68 minutes to arrive from counsel’s office to the court for the hearing and 65 minutes to get back afterwards. Chiapetti Decl., ¶¶ 28-29, Exs. 4-5. The court should not compensate Shenkman for these 2.3 hours. Chiapetti Decl., ¶30.

For December 13, 2022, Shenkman lists a 4.9-hour entry to prepare for and attend the hearing on Petitioners’ ex parte application to stay the case. Chiapetti Decl., ¶26, Fig. G. Google Maps shows that it would have taken an average of 65 minutes to arrive from counsel’s office to the court for the hearing and 78 minutes to get back afterwards. Chiapetti Decl., ¶¶ 32-33, Exs. 6-7. The court should not compensate Shenkman for these 2.4 hours. Chiapetti Decl., ¶34.

A total of 4.7 of Shenkman’s hours ($4,206.50) were expended on travel to and from hearings. Chiapetti Decl., ¶¶ 3, 35, Figs. A, H.

As the time to file opposition briefs approached, the Committee expressed concerns about maintaining neutrality and the appearance of neutrality because it would likely have to subsequently adjudicate the DeNicola/Crane petition. Shenkman Reply Decl., ¶2. The Committee decided to not take any position on SB 442’s constitutionality or otherwise help with the defense of this case in any significant way. Shenkman Reply Decl., ¶2. This led Shenkman to understand that if DeNicola’s counsel did not lead the defense in this case, no one would. Shenkman Reply Decl., ¶2.

Shenkman attempted to secure the involvement of the state Attorney General. Shenkman Reply Decl., ¶3. If the Attorney General had agreed to vigorously defend SB 442, DeNicola and counsel would have agreed to not intervene. Shenkman Reply Decl., ¶3. On June 9, 2022, the Attorney General sent Senator Richard Polanco a letter agreeing that SB 442 is constitutional. Shenkman Reply Decl., ¶3, Ex. F. This letter also said that the Attorney General’s office was monitoring the case and would strategically consider its options, including intervention. Shenkman Reply Decl., ¶3, Ex. F. DeNicola referenced this letter in her brief on the merits of this case. Shenkman Reply Decl., ¶3, Ex. F.

Shenkman travelled to the courthouse twice in this action. Shenkman Reply Decl., ¶4. The first occasion was a trial setting conference and hearing on DeNicola’s motion to intervene. Shenkman Reply Decl., ¶4. The second was for a hearing on Petitioners’ ex parte application for a stay. Shenkman Reply Decl., ¶4.

Shenkman attended the second hearing because he filed an opposition just before midnight the night before. Shenkman Reply Decl., ¶4. He was not sure the court would have it by the 8:30 a.m. hearing unless he delivered a copy. Shenkman Reply Decl., ¶4. His attendance was necessary to ensure the court had the opposition before any ruling on the application. Shenkman Reply Decl., ¶4.

Intervenor DeNicola moves for an award of $263,303 in fees and $1,382.48 in costs. Mot. at 15. In reply, she withdraws her request to recover costs. Reply at 10.^{^[1]}

The courts take a “broad, pragmatic view of what constitutes a ‘successful party’” to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The party seeking attorney’s fees need not prevail on all its claims to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. A party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, a successful party under section 1021.5 is a party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. A prevailing party who qualifies for an award under section 1021.5 is entitled to compensation for all hours reasonably incurred by their counsel. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–33.

DeNicola asserts that a prevailing defendant/respondent meeting the criteria of section 1021.5 is entitled to a fee award. City of Sacramento v. Drew, (1989) 207 Cal.App.3d 1287, 1302. DeNicola adds that an intervenor is entitled to section 1021.5 attorney’s fees on the same basis as the original parties. City of Santa Monica v. Stewart, (“Santa Monica”) (2005) 126 Cal.App.4th 43, 87. Mot. at 6. Petitioners do not dispute the fact that DeNicola’s status as an intervenor does not affect her right to attorneys fees.

Petitioners made a facial challenge to the constitutionality of SB 442. DeNicola defended the constitutionality of SB 442, also arguing that Petitioners had not exhausted their administrative remedies before the Committee. The court denied the Petition based on Petitioners’ failure to exhaust. As an intervenor who opposed the Petition, DeNicola is a successful party. Petitioners do not contest this conclusion.

The first prong of the section 1021.5 test — whether a petitioner’s action has resulted in the enforcement of an important right affecting the public interest — requires a determination of the strength or societal importance of the right involved. Roybal v. Governing Bd. of Salinas City Elementary School Dist., (“Roybal”) (2008) 159 Cal.App.4th 1143, 1148. The right, whether constitutional or statutory, must be an important right affecting the public interest, not something involving trivial or peripheral public policies. Ibid. The societal importance of a right generally is determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.

DeNicola describes the background of the CVRA -- which disfavors at-large voting because it often results in vote dilution of minority interests -- the DeNicola/Crane petition to the Committee to establish trustee-are elections for the District board of education, Petitioners “rush to court” to challenge the constitutionality of SB 442, and DeNicola’s intervention to protect SB 442. Mot. at 2-5.

DeNicola argues that the voting rights protected by SB 442 are of paramount societal importance. Where a right is significant to the achievement of fundamental legislative goals, it is generally important enough to satisfy section 1021.5. See Robinson v. City of Chowchilla, supra, 202 Cal.App.4^th at 394. The Legislature passed SB 442 because it understood that at-large elections can impair minority voting rights. Accordingly, the Legislature declared an attorney’s fee appropriate in CVRA cases where the lawsuit protects the rights of minority citizens. Elections Code §14030. Mot. at 8. Petitioners cannot defeat this motion based on a subjective belief that the majority’s right to set its own city’s election rules are more important. Mot. at 7-8; Reply at 6-7.

As Petitioners note (Opp. at 6), DeNicola did not vindicate or enforce voter rights in this case. In its decision, the court recognized that this action was in effect a facial challenge to SB 442’s amendments to Education Code sections 5019 and 5020 and chose to compel Petitioners to exhaust their administrative remedies before addressing any facial challenge. The court did not want to address Petitioners’ serious constitutional claims without completion of the administrative proceeding before the Committee. DeNicola argued that the Committee’s findings in adjudicating the DeNicola/Crane petition could inform this court’s consideration whether the application of SB 442 to the District is constitutionally permissible, and the court accepted that as one of its reasons to deny the Petition in favor of exhaustion.

DeNicola then argues that the exhaustion of administrative remedies has its own societal importance. She cites McKart v. United States, (1969) 395 U.S. 185, 193-95, in which the Supreme Court explained that the exhaustion doctrine avoids premature interruption of the administrative process, gives the agency the first chance to exercise its discretion or to apply its expertise, prevents courts from interfering with an agency that has not completed its action or exceeded its jurisdiction, and increases judicial efficiency. Exhaustion serves to both alleviate the caseload of overburdened courts and affords the parties and courts the expertise of agencies like the Committee. Hoeft v. Tucson Unified School District, (1992) 967 F.2d 1298, 1303-05. Mot. at 8.

Petitioners note (Opp. at 7) that DeNicola does not cite a case recognizing exhaustion of administrative remedies as an important right affecting the public interest meriting a section 1021.5 award of attorney’s fees. DeNicola responds that the converse is true: Petitioners do not cite a case denying section 1021.5 attorney’s fees because a failure to exhaust is not an important right affecting the public interest. DeNicola argues that this is not surprising because it is the public agency that usually asserts failure to exhaust as a defense. Reply at 2.

DeNicola contends that the court’s ruling allows SB 442 – which is presumed to be constitutional -- to continue in place unless and until it is declared unconstitutional. At a minimum, she secured the temporary protection of SB 442 and the voting rights it vindicates. DeNicola cites Folsom v. Butte County Assn. of Governments, (1982) 32 Cal. 3d 668, 685, which stated that the critical fact is the impact of the action, not the manner of its resolution, and a section 1021.5 fee award is not barred because the case was won on a preliminary issue. DeNicola asserts that the impact of the court’s decision is to preserve the voting rights embodied in SB 442 and avoid a constitutional challenge. Until a court declares SB 442 unconstitutional, the 58 county committees on school district organization will continue to enforce it. Reply 2-3.

The court does not disagree that securing the interim protection of an important right can be significant. It is not so in this case. DeNicola did not obtain an order preserving the rights of voters on an interim basis; she only obtained a deferral of judicial review of SB 442 until the Committee decides the DeNicola/Crane petition.

The court’s reasons to defer judicial review of SB 442 and require exhaustion before the Committee were: (1) Petitioners waited almost eight months after SB 442 was passed to file suit; (2) facial challenges are disfavored because they risk premature interpretation of statutes on bare-bones records, (3) there will be no public harm in requiring exhaustion, (4) Petitioners had not shown significant harm to themselves from being required to exhaust, and (5) the Committee’s decision may undermine any total and fatal conflict between SB 442 and Petitioners’ constitutional rights under Cal. Const. art. XI, section 5.

These reasons mostly concerned the exhaustion doctrine’s general purpose of benefitting the court by giving an administrative body the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Insurance Exchange v. Superior Court, (1992) 2 Cal.4th377, 391. None of the court’s reasons for requiring exhaustion referred to or were based on an important right affecting the public interest. In fact, the reason to require exhaustion was to avoid making any decision on such a right without the Committee’s decision.

Hence, the court’s ruling did not protect an important right, even on an interim basis; it merely deferred judicial review of a constitutional issue. “The fact that a plaintiff prevails on a ‘technical’ preliminary issue does not necessarily demonstrate that his additional claims have sufficient merit to warrant the conclusion that the action served to vindicate an important right.” Woodland Hills Resident Assn. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 938.

Petitioners rely (Opp. at 7) on Canyon Crest Conservancy v. County of Los Angeles (“Canyon Crest”), (2020) 46 Cal. App. 5th 398, in which a developer sought to build a single-family home. Id. at 402. The plaintiff obtained a stay of the project approvals based on a CEQA claim. Id. at 406-07. The developer abandoned the project because of the cost of the litigation and asked the county to rescind the approvals, which it did. Id. at 407. When the plaintiff sought attorney’s fees, the trial court denied them and the appellate court agreed, holding that, although CEQA actions can involve important rights affecting the public interest, the outcome must actually vindicate that right. Id. at 411-12. The development of a single-family home normally is exempt from CEQA (id. at 407), and the fact that the plaintiff prevailed on a ‘technical’ preliminary issue did not mean that his CEQA claim had merit. Id. at 411-12.

DeNicola asserts that Canyon Crest, is distinguishable because the developer withdrew the entitlements, the plaintiff dismissed its case, and there was no evidence that the county would conduct any additional review or change its approach should the developer reapply for the entitlements. In contrast, the judgment allows the Committee to hear and consider the matter in the first instance. Reply at 4.

DeNicola’s distinction of Canyon Crest points to the difference between the denial of a petition for a failure to exhaust and prevailing on another preliminary issue, but it does not affect the appellate court’s point that there must be actual vindication of an important right affecting the public interest.

The instant case is stronger than Canyon Crest for the lack of enforcement of an important public right. In Canyon Crest, the plaintiff obtained a stay of the project pending determination of the CEQA. A stay is a form of preliminary injunction for which the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402; Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1283. While the in Canyon Crest trial court ruled that the stay was not an adjudication on the merits (46 Cal.App.4^th at 412), it necessarily made a preliminary determination that the plaintiff had some reasonable probability of success. Here, the court reached no interim conclusion that SB 442 is constitutional, and DeNicola’s interim victory failure to exhaust did not vindicate an important right affecting the public interest.

Petitioners also rely on Center for Biological Diversity v. California Fish & Game Com. (“Center for Biological Diversity”), (2011) 195 Cal. App. 4th 128, where a CEQA petitioner obtained mandamus for the Department of Fish & Game Commission to set aside its decision and reconsider it based on a correct standard. Id. at 134. The appellate court conceded that process is important but the petitioner did not enforce an important public right affecting the public interest because it was purely a procedural remand. Id. at 140-41.^{^[2]}

DeNicola replies (Reply at 4) that Center for Biological Diversity has frequently been distinguished and limited to its facts. She cites People v. Investco Management & Development LLC (“Investco”), 22 Cal. App. 5th 443, which explained that the moving party in Center for Biological Diversity was not entitled to fees because the remand order it achieved for the agency to reconsider its decision did not result in a change in the agency’s decision and only an “augmented explanation”. Id. at 457. In contrast, the Investco the parties moving for attorney’s fees successfully opposed a motion, made after the Department of Business Oversight settled securities law claims against real estate company Investco, that would have restrained victims of Investco’s securities fraud from continuing to litigate individual actions against the company. Id. at 448-49, 460. The moving parties did not merely obtain an augmented explanation as in Center for Biological Diversity. Rather, their efforts resulted in substantive changes to the existing interlocutory judgment and special master’s powers and avoided a stay of their individual lawsuits. Id. at 457. On this basis, they were successful parties under section 1021.5 and the court upheld the trial court’s award of fees. Id. at 457, 472.

The court accepts this distinction. The significance of Center for Biological Diversity as explained by Investco is that attorney’s fees are not available for a judgment of remand where the agency merely is required to explain its decision but may be available if the agency is directed to change its decision or take other action.

Even as limited, however, Center for Biological Diversity supports the conclusion that DeNicola has not enforced an important right affecting the public interest. The court only deferred Petitioners’ challenge to SB 442 until the Committee hears and decide the DeNicola/Crane petition. While the judgment is not a remand, and instead permits the Committee to decide the DeNicola/Crane petition, the court has not provided the Committee with any order or direction about how it is to act.

Finally, DeNicola relies (Reply at 4) on Woodland Hills, supra, 23 Cal.3d at 917, where the appellate court found that the approval of a subdivision map by various agencies suffered from a failure to bridge the analytic gap as required by Topanga Assn. v. County of Los Angeles, (1974) 11 Cal.3d 506. Id. at 927. When the prevailing homeowners association and individual plaintiffs sought attorneys’ fees, the losing defendants admitted that the right to conforming subdivisions was an important right but argued that the litigation did not vindicate that right because the court only ruled on the Topanga requirements for specific findings, which was merely technical. Id. at 936-37. The California Supreme Court rejected that contention under the then new section 1021.5, holding that a denial of attorney’s fees on the basis that a constitutional claim was not adjudicated would thwart the judicial policy of avoiding constitutional issues. Id. at 937. The fact that a litigant wins on a preliminary issue should not foreclose fees under section 1021.5 simply because the court decided in the litigant’s favor on a simpler theory. Id. at 938. The court remanded for the trial court to consider, from a realistic perspective, whether the litigation resulted in the enforcement of an important right affecting the public interest. Id.

DeNicola did not prevail on the merits of any simpler theory than the constitutionality of SB 442. She prevailed on Petitioners’ failure to exhaust, which was a deferral and did not foreclose Petitioners from challenging the constitutionality of SB 442 at a later time.

DeNicola has failed to demonstrate that denial of the Petition for failure to exhaust administrative remedies enforced an important right affecting the public interest.

The second prong of the section 1021.5 test is whether plaintiff’s action has conferred a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. The trial court is required to determine the significance of the benefit as well as the size of the group favorably impacted by making a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case. Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

“[T]he ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” Woodland Hills, supra, 23 Cal.3d at 939. “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40. This factor overlaps to some extent with the factor of enforcement of an important right affecting the public interest. La Mirada Ave. Neighborhood Assn. of Hollywood v. City of Los Angeles, (“La Mirada”) (2018) 22 Cal.App.5th 1149, 1158.

DeNicola asserts that the temporary defeat of Petitioners’ challenge significantly benefits the nearly 1000 voters who signed the DeNicola/Crane petition, as well as the large number of voters in Santa Monica and California charter cities. Had Petitioners prevailed on their constitutional challenge, it would have prevented a challenge to at-large elections in charter cities and even CVRA cases. Mot. at 8-9.

DeNicola relies on Friends of Spring Street v. Nevada City, (“Friends”), (2019) 33 Cal. App. 5th 1092, where the court set aside a city council’s decision and interpretation of a ballot measure. Id. at 1101. The court directed the trial court to issue a mandamus writ compelling the city to set aside its decision granting the real parties’ appeal of the planning commission’s decision and permitting them to operate a bed and breakfast. Id. at 1101-02. This ruling did not necessarily prohibit the real parties-in-interest from reoperating the bed and breakfast at issue. Id. at 1101. Upon the petitioner’s motion for attorney’s fees, the city argued that the plaintiff had not achieved the practical result sought and there was no substantial public benefit. Id. at 1105. The court rejected this argument, concluding that it made a substantive determination of the meaning and application of the ballot measure. Id. at 1106. The practical benefit from this decision was that the city’s planning commission decision remained intact. Id. at 1106. The fact that the parties’ dispute was not final was of no moment. Id. at 1106.

As Petitioners note (Opp. at 8), the plaintiff in Friends achieved actual and significant benefits. The appellate court interpreted the ballot measure and directed the trial court to grant plaintiff’s mandamus claim. In reversing the trial court’s’ denial of attorney’s fees, the court explained that it did not merely decide a jurisdictional issue. Rather, it made a substantive determination on the merits of the meaning and application of the measure at issue. Id. at 1109-10.

In this case, the court did not make any substantive determinations; it chose to compel Petitioners to exhaust their administrative remedies.

DeNicola also cites La Mirada Ave. Neighborhood Assn. of Hollywood v. City of Los Angeles, (“La Mirada”) (2018) 22 Cal.App.5th 1149, where the petitioners obtained a mandamus writ to set aside a city council decision granting Target eight variances from a specific area zoning plan for a proposed retail store project. Id. at 1156. Target and the city argued that the plaintiffs had not obtained any significant benefit because it may yet receive approval of the project under the new zoning laws. The court responded that the petitioner’s action required the city to adhere to its municipal code’s legal requirements for variances. Id. at 1158-59. The courts recognize the importance of preserving the integrity of a locality’s governing general plan for zoning, and the decision benefited all city residents who benefit from a ruling holding the city council’s zoning decisions to the letter and spirit of the municipal code. Id. at 1159.

As Petitioners note (Opp. at 8), the petitioner in La Mirada obtained substantial relief. The trial court invalidated six of the eight variances at issue for non-compliance with the municipal code and this motivated the city to amend its municipal code. Id. at 1157. DeNicola has not obtained substantial relief.

DeNicola’s action has not conferred a significant benefit on a large class of persons.

The third prong asks whether the necessity and financial burden of private enforcement are such as to make the award appropriate. This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys. Lyons v. Chinese Hospital Assn., (2006) 136 Cal.App.4th 1331, 1348.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although cases refer to this requirement as the “financial burden” criterion, nothing in the language of section 1021.5 limits the consideration of the necessity and financial burden clause solely to financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals. Bowman v. City of¿Berkeley, (2005) 131 Cal.App.4th 173, 181. The party seeking attorney’s fees bears the burden of establishing that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

DeNicola points out that she did not have a monetary interest in the outcome of the case. As a result, the financial burden of private enforcement clearly transcended her personal interest in the lawsuit. See Conservatorship of Whitley, (2010) 50 Cal.4^th 1206. Mot. at 9. Petitioners do not disagree. See Opp. at 9.

DeNicola asserts that her presence as Intervenor was reasonably necessary to ensure that SB 442 and the right of votes to petition county committees on school district organization are defended. Mot. at 9-10.

Petitioners argue that DeNicola’s private enforcement was unnecessary. Opp. at 9. When a private party has litigated a case on the same side as a non-volunteer public entity, significant questions arise as to whether its private participation was needed given the public entity’s parallel advocacy. San Diego Municipal Employees Assn. v. City of San Diego, (“San Diego”), (2016) 244 Cal. App. 4th 906, 913. The private party requesting attorney fees must make a significant showing that its participation was material to the result – i.e., it proffered significant factual and legal theories, and produced substantial evidence, that was not duplicative of that advanced by the government agency. Id. at 913.

DeNicola intervened even though the Committee had an obligation to oppose the Petition. DeNicola briefed the constitutionality of SB 442 with over half her opposition arguing that SB 442 is constitutional. Both DeNicola and the Committee also argued the exhaustion issue -- the basis on which the court denied the Petition -- and she cannot meet the test of significant factual or legal theories and/or substantial and non-duplicative evidence required by San Diego. Indeed, the Committee and DeNicola entered into a joint defense agreement and coordinated their efforts, meaning that they made identical arguments in favor of exhaustion. DeNicola may have taken the lead in drafting this portion of the opposition but taking the lead in discovery is not a sufficient basis to justify the necessity prong. San Diego, supra, 244 Cal.App.4^th at 916. Opp. at 9-10.

DeNicola replies that she took great care to avoid duplicating the Committee’s efforts. Over time, the Committee explained that it wanted to maintain the appearance of neutrality because it may need to subsequently adjudicate the DeNicola/Crane petition. Shenkman Reply Decl., ¶2. The Committee decided not to take any position on SB 442’s constitutionality or otherwise help with the defense of this case in any significant way. Shenkman Reply Decl., ¶2. This led Shenkman to understand that if DeNicola’s counsel did not lead the defense of this case, no one would. Shenkman Reply Decl., ¶2. DeNicola was compelled to take the laboring oar and it was her argument that the court largely adopted in denying the Petition. In contrast to DeNicola, who made her own arguments joined in part by the Committee’s opposition, the intervenors in San Diego, asserted the same or similar arguments as the agency. 244 Cal. App. 4th at 916. Additionally, the Committee had no obligation to defend SB 442 and did not do so. Reply at 5-6.

Although DeNicola’s participation in the action arguably was unnecessary to the court’s exhaustion ruling, she could not have known that when she intervened. The Committee’s waffling on whether it wanted to defend justified the necessity of DeNicola’s involvement. The court also largely adopted DeNicola’s position in denying the Petition and she meets the necessity test required by San Diego, supra, 244 Cal. App. 4th at 913.

Petitioners argue that, even if the criteria of section 1021.5 are satisfied, they are not the type of party against whom the court may impose a fee award because they did nothing to compromise public rights. Serrano v. Stefano Meril Plastering Co., Inc, (2011) 52 Cal.4^th 1018, 1020 (citation omitted); Save Our Heritage v. City of San Diego, (“Save Our Heritage”) (2017) 11 Cal.App.5^th 154, 158. A successful defendant is not entitled to recover section 1021.5 fees unless the litigation was “detrimental to the public interest because it sought to curtail or compromise important public rights.” Id. at 162. Petitioners contend that, as in Save Our Heritage, their constitutional challenge to SB 442 is itself the type of enforcement action section 1021.5 was enacted to promote. DeNicola is not entitled to recover fees from Petitioners, who did not act against the public interest. Opp. at 11.

DeNicola replies that Petitioners are not immune from section 1021.5 based on their own view of the case. Instead of protecting constitutional rights, Petitioners sought to curtail the voting rights protected by SB 442. That Petitioners believe the right of a majority to set election rules in a charter city is more important than the non-dilution of minority voting power does not undermine DeNicola’s entitlement to fees for defending the latter. Reply at 6-7.

The pertinent inquiry is whether the lawsuit was detrimental to the public interest because it sought to curtail or compromise public rights. Save Our Heritage, supra, 11 Cal.App.5^th at 162. This case presented a battle between the constitutional right of a charter city to provide for school district elections under Cal. Const. art. IX, sections 5 and 16 and SB 442’s elimination of those rights in order to protect the voting rights of minorities in Cal. Const. art. I, section 7 and art. II, section 2. The issue under section 1021.5 is whether Petitioners sought to curtail or compromise important public rights, not whether they also intended to enforce important public rights. Moreover, the court has not decided who is right and is not prepared to do so now. The court will not conclude that a dispute over constitutional rights – one express and the other protected by a statute – cannot result in section 1021.5 attorney’s fees to the successful party.^{^[3]}

DeNicola has not met all the elements of section 1021.5 and fails to demonstrate that she is entitled to attorney’s fees. The motion for attorney’s fees is denied.

^{^[1]}The procedure for recovering costs is governed by filing a memorandum of costs pursuant to CCP section 1034(a) and CRC 3.1700, 3.1702, and 3.2000. The memorandum is mandatory. CRC 3.1700(a). The court has already ruled on Petitioners’ motion to tax costs based on Denicola’s cost memorandum.

^{^[2]} Petitioners also cite to Roybal, supra, 159 Cal.App.4th at 1148, which considered deficiencies in the layoff procedure received by the petitioner and concluded that the remediation of the defect did not amount to enforcement of an important public right, also noting that the rights vindicated cannot involve “trivial or peripheral public policies”. Id. at 1148-49. Opp. at 7. DeNicola notes that Robal never mentions administrative exhaustion. Reply at 2. This is true, and Roybal is not on point anyway.

^{^[3]} The court need not discuss the reasonableness of DeNicola’s fees.