Judge: Mary H. Strobel, Case: 21STCP00318, Date: 2023-01-26 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP00318    Hearing Date: January 26, 2023    Dept: 82

            Petitioner C. Thomas Vangsness, M.D. (“Petitioner” or “Dr. Vangsness”) moves for an award of attorney’s fees pursuant to CCP section 1021.5 in the amount of $38,380.49, plus a multiplier of 2.00, against Respondent University of Southern California (“Respondent” or “USC”).

Relevant Background and Procedural History

            Petitioner is an orthopedic surgeon and Professor of Orthopedic Surgery in the USC Orthopedic Residency Program at the Keck School of Medicine.   (AR 1, 16.)  Petitioner has been a professor at USC since 1987.  (Ibid.) 

On December 21, 2017, Provost Michael Quick issued a decision and informed Petitioner of the faculty committee’s conclusion that his actions amounted to serious academic misconduct and that he be sanctioned with a 10% salary reduction, to be re-reviewed annually. (AR 43.)  Provost Quick informed Petitioner that he could file a grievance as provided in the Faculty Handbook, Chapter 7. (AR 43.)

On January 16, 2020, the hearing panel issued its recommendations to USC President Carol Folt to deny the grievances. (AR 794, 1100-1105.)  On May 21, 2020, President Folt issued her final decision, accepting and approving the panel’s recommendation that Petitioner’s grievances be denied in full. (AR 1136-1140.)

            On February 3, 2021, Petitioner filed a petition for writ of mandate.

            On April 1, 2022, Petitioner filed his opening brief in support of the petition.  As relevant to this motion for fees, Petitioner asserted the following in his brief:

The severity of sanctions and the nature of the allegations required an opportunity for Dr. Vangsness to appear before the faculty committee and cross-examine Dr. Dusch, Dr. Heckmann, and any other witnesses proffered by USC. Dr. Vangsness faced potential dismissal (AR 161) and the sanction imposed, a 10% salary reduction, is severe, amounting to an indefinite annual fine of around $40,000. (OB 18:24-28; see also OB 20:2-4, citing AR 43.)

The court also received Respondent’s opposition, Petitioner’s reply, the electronic administrative record, and the joint appendix. 

On July 7, 2022, after a hearing, the court granted the petition with respect to Petitioner’s challenge to the academic misconduct findings and sanction.  The court denied the petition in all other respects, including to the extent Petitioner challenged the OED findings and sanction and the fairness of the OED process.   The court’s July 7, 2022, ruling is not repeated here but is incorporated by reference. 

On August 23, 2022, the court issued a writ ordering Respondent to set aside “USC President Carol Folt’s decision that Petitioner violated academic misconduct, and the imposed sanction of a 10% salary reduction, for the reasons set forth in the Court’s July 7, 2022 Order.” 

Both Petitioner and Respondent have appealed from the court’s judgment.

On October 18, 2022, Petitioner filed a notice of motion for attorney’s fees.  On December 29, 2022, Petitioner filed a further notice of motion and a motion for attorney’s fees.  The court has received Respondent’s opposition and Petitioner’s reply.

Analysis

An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.”  (CCP § 1021.5.)  The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest,’ (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)  

Successful Party

“When it comes to section 1021.5, the successful party is ‘the party to litigation that achieves its objectives.’”  (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1157.)  “[A] plaintiff may be deemed to have been successful under section 1021.5 by succeeding on any significant issue in the litigation which achieves some of the benefit plaintiff sought in bringing suit.”  (Hall v. Dept. of Motor Vehicles (2018) 26 Cal.App.5th 182, 190.) 

Here, Petitioner prevailed in part on his writ petition and obtained a writ setting aside the administrative decision that Petitioner engaged in academic misconduct and imposing a 10% salary reduction.  Because he prevailed on a significant issue in the litigation, Petitioner is the successful party under section 1021.5.  Respondent has made no argument to the contrary. 

Enforcement of Important Right Affecting the Public Interest

            “The first prong of the section 1021.5 test … requires a determination of ‘the ‘strength’ or ‘societal importance’ of the right involved. That right may be constitutional or statutory, but it must be ‘an important right affecting the public interest’—it ‘cannot involve trivial or peripheral public policies.’ Where, as here, the right vindicated is conferred by statute, ‘courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’”  (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)

            Respondent does not address this prong of section 1021.5 in opposition.  The court finds that, since Petitioner was a successful party, he also enforced an important right to a fair hearing in a university disciplinary proceeding.  (See Doe v. Westmont College (2021) 60 Cal. App. 5th 753, 763-764.) 

Significant Public Benefit Conferred on General Public or a Large Class of Persons

To obtain an award under Code of Civil Procedure section 1021.5, a party must also show that its action conferred a significant public benefit on the general public or on a large class of persons.  A significant benefit may be pecuniary or non-pecuniary and need not be concrete to support a fee award.  (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1013.)

“The trial court determines the significance of the benefit, and the group receiving it, ‘from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.  The courts are not required to narrowly construe the significant benefit factor. ‘The ‘extent of the public benefit need not be great to justify an attorney fee[s] award.’ And fees may not be denied merely because the primary effect of the litigation was to benefit the individual rather than the public.”  (Indio Police Command Unit Association v. City of Indio (2014) 230 Cal.App.4th 521, 543.)

Both sides have made colorable arguments with respect to the significant public benefit prong of section 1021.5.  Because the court finds that Petitioner does not satisfy the financial burden requirement, see infra, the court does not decide whether Petitioner’s action conferred a significant public benefit on the general public or on a large class of persons.

Necessity and Financial Burden of Private Enforcement

The necessity and financial burden requirement “‘examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys.’”  (Lyons v. Chinese Hosp. Ass'n (2006) 136 Cal.App.4th 1331, 1348.)  Here, private enforcement was necessary as there is no reason to believe a government agency would sue to enforce Petitioner’s rights under CCP section 1094.5.

 “An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’”  (Woodland Hills Residents’ Ass’n, Inc. (1979) 23 Cal.3d 917, 941.)   “An attorney fee award under section 1021.5 is proper unless the [successful litigant’s] reasonably expected financial benefits exceed by a substantial margin the [litigant’s] actual litigation costs.”  (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 154.)  “The successful litigant's reasonably expected financial benefits are determined by discounting the monetary value of the benefits that the successful litigant reasonably expected at the time the vital litigation decisions were made by the probability of success at that time.”  (Id. at 155.)  

“‘[T]he absence of a monetary award, or of precise amounts attached to financial incentives, does not prevent a court from determining whether the plaintiff's financial burden in pursuing the lawsuit is out of proportion to his individual stake in the matter.’ [Citation.] No abuse in awarding fees can be found where the facts show ‘that the plaintiff's ‘future money advantage ... is speculative’ [citation], or that the plaintiff's' ‘pecuniary benefit will be indirect and uncertain.’”  (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 992; see also Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1128.) 

Significantly in this case, “it is the party seeking private attorney general fees who ‘bears the burden of establishing that its litigation costs transcend its personal interest.’”  (Norberg v. California Coastal Commission (2013) 221 Cal.App.4th 535, 545-56.) 

With respect to the financial burden issue, Petitioner argues as follows: “The only financial benefit potentially conferred upon Petitioner as a result of this action was reimbursement of the 10% salary reduction sanction; however, Respondents have appealed the Court’s judgment, thus Petitioner has not received any reimbursement of the 10% salary reduction. Petitioner neither sought nor received any other monetary damages from this litigation. The total cost of Petitioner’s legal fees far transcended his personal pecuniary interests in this matter. The parties’ relative financial means and USC’s status massive private research institution with net assets totaling over $9.4 billion in 2020 should further factor into the court’s analysis under the financial burden prong.”  (Mot. 15.) 

This legal analysis is not persuasive and lacks citation to evidence.  Petitioner does not meet his burden of proof to show that his litigation costs transcended his personal financial interest in setting aside an indefinite 10% salary reduction.

In his opening brief in support of the petition, Petitioner conceded that the 10% salary reduction “is severe, amounting to an indefinite annual fine of around $40,000.” (OB 18:24-28; see also OB 20:2-4, citing AR 43.)  Petitioner does not state how long he intends to work for Respondent as a professor, but the court has no evidence upon which to conclude Petitioner plans to retire in the near future.  Moreover, Petitioner’s salary could impact his retirement benefits.  The court finds that an indefinite 10% salary reduction of $40,000/year is a substantial financial detriment, and that the court’s order setting aside the reduction resulted in a substantial financial benefit to Petitioner. 

Petitioner claims he incurred legal fees of $38,380.49.  (Mot. 17.)  At the time litigation decisions were made, Petitioner and his attorneys would have known that Petitioner’s success in this petition could effectively result in a $40,000 increase in his salary compared to the salary he would receive if he did not challenge the academic misconduct decision.  Given the procedural errors discussed in the court’s ruling on the writ petition, Petitioner had a reasonable expectation of prevailing with respect to the academic misconduct decision.  Discounting the monetary value of the financial benefit that Petitioner reasonably expected ($40,000/year indefinitely) by Petitioner’s probability of success on that issue, the court finds that Petitioner’s financial interest in this litigation exceeded by a substantial margin his actual litigation costs of $38,380.49. 

Petitioner cites no authority that, under CCP section 1021.5, the court should consider that Respondent appealed the court’s judgment with respect to the academic misconduct decision and 10% salary reduction.  The financial benefits obtained from a lawsuit are always contingent on the risk of appeal. 

Petitioner also cites no authority that the “parties’ relative financial means and USC’s status [as a] massive private research institution” are relevant to the financial burden analysis.  Moreover, even if such factors could be considered, they do not alter Petitioner’s substantial financial interest in the litigation. 

Petitioner does not meet his burden of proof to show that the financial burden of private enforcement warrants subsidizing the successful party's attorneys.  Accordingly, Petitioner does not satisfy all requirements of CCP section 1021.5. 

Conclusion

            The motion is DENIED.