Judge: Mary H. Strobel, Case: 21STCP03457, Date: 2022-12-19 Tentative Ruling

Case Number: 21STCP03457    Hearing Date: December 19, 2022    Dept: 82

             Petitioner Jane Doe (“Petitioner”) moves for an award of attorneys’ fees pursuant to CCP section 1021.5 against Real Party in Interest Torrance Unified School District (“Real Party” or “District”) in the total amount of $192,397.80.

Judicial Notice

Petitioner’s Reply Request for Judicial Notice (“RJN”) Exhibits 1 and 2 – Granted.  District’s objections to judicial notice are overruled.  The requirements of Evidence Code section 452 for judicial notice are met.  The court must judicially notice these exhibits to understand certain arguments made by Petitioner in reply.  However, the court considers in its analysis below whether Petitioner improperly makes new arguments in reply based on the RJN.

Petitioner’s Evidentiary Objections

Declaration of Grant D. Stiefel

            Objections to Expert Designation (1)-(6) – Overruled. 

            Objections to Declarant’s Statements

(1)      Sustained. 

(2)      – (10) Overruled

Declaration of Spencer Covert

(1)  Overruled. 

Declaration of Michael Travis

(1)  – (4) Overruled. 

Declaration of Daniel R. Shinoff

(1)  – (2) Overruled. 

District’s Objections to Reply Brief and to Reply Declaration of Alan Romero

District objects that the reply brief is 15 pages and exceeds the applicable page limit by 5 pages.  District requests that the court disregard any arguments made after page 10 of the reply brief, as the court is permitted to do for an unauthorized, extra-sized brief.  (See Cal. Rules of Court, Rule 3.1113 and 3.1300(d).)  Petitioner’s counsel is admonished to comply with all applicable page limits and the Rules of Court, and to obtain court authorization prior to filing any extra-sized legal briefs.  However, because  the court denies the motion and does not reach Petitioner’s arguments concerning the reasonable lodestar fee, the violation of the page limit is not prejudicial to District.  On that basis, the objection is overruled.

District also objects to the reply declaration of Alan Romero as new evidence improperly submitted in reply.  The court views the Romero declaration as proper rebuttal to the opposing declaration of Grant Stiefel.  Rebuttal evidence may be first submitted in reply, as there is good cause for failing to present rebuttal evidence with the moving papers.  (See generally Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Accordingly, District’s objection is overruled.

Relevant Procedural History

            On May 24, 2022, after a hearing, the court granted the writ petition in part.  The court’s minute order (hereafter “Decision”) discusses the relevant factual background and the court’s reasoning at length.  That discussion is not repeated here but is incorporated by reference.

            On August 2, 2022, the court entered judgment in favor of Petitioner and against District and Respondent Commission of Professional Competence (“Commission”) as to discovery orders dated October 14, 2021, and October 21 2021, “with respect to the Laguna records only.”  That same date, the court issued a writ directing Commission to set aside its October 14 and 21, 2021, discovery orders “only with respect to records held by Laguna Treatment Hospital (Laguna) in the underlying administrative proceeding.”

            On October 3, 2022, Petitioner filed her motion for attorneys’ fees.  The court has received District’s opposition and supporting papers; Petitioner’s reply, supporting papers, and objections; and District’s objections to the reply, request for judicial notice, and reply declaration of Alan Romero.

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 [plaintiff was the “successful” party where the Court invalidated some, but not all, of the city’s approvals of a project].)

“[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 was a successful party because she obtained a writ directing Commission to set aside its discovery orders with respect to the Laguna records.  Petitioner obtained her litigation objectives with respect to the Laguna records and prevailed on a “significant issue” in this litigation.

District’s arguments to the contrary are not persuasive.  (Oppo. 6-8.)  CCP section 1021.5 and cases interpretating that statute govern this issue, not CCP section 1032.  (See e.g. Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal.App.4th 1207, 1234.)  District admits that Petitioner prevailed on “half her petition,” and District does not dispute that she prevailed on a “significant issue” and obtained some of her litigation objectives.  Contrary to District’s assertion, Petitioner need not prevail on all issues or prompt a “legislative fix” to be considered a successful party.

Petitioner is a successful party pursuant to section 1021.5.

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; see also Woodland Hills Residents Assn., Inc. and City Council (1979) 23 Cal.3d 917, 935.)

            Petitioner’s writ action enforced 42 CFR Part 2, 42 USC Section 290dd-2(a), and Health and Safety Code section 11845.5.  (See Decision 7-13.)  As discussed in the Decision, 42 CFR Part 2 and 42 USC Section 290dd-2(a) “impose restrictions upon the disclosure and use of substance use disorder patient records” of substance abuse treatment centers assisted by the federal government. (See Decision 8 and 42 CFR § 2.2.) Congress “recognized that …. confidentiality is necessary to ensure successful alcoholism treatment. Without guarantees of confidentiality, many individuals with alcohol problems would be reluctant to participate fully in alcoholism programs.” (Decision 8, citing Whyte v. Connecticut Mut. Life Ins. Co. (1st Cir. 1987) 818 F.2d 1005, 1010.)  Health and Safety Code section 11845.5 imposes similar restrictions at the state level and only authorizes disclosure of substance abuse patient records by a “court of competent jurisdiction” and after a showing of probable cause pursuant to Penal Code section 1524.  (Decision 12 and 13-14.)

            These statutory schemes confer important confidentiality rights on patients of substance abuse treatment centers, and enforcement of such rights affects the public interest.  District develops no argument to the contrary.  (See Oppo. 8-10.)  Petitioner enforced these statutes with respect to the discovery orders compelling disclosure of her records from Laguna, a substance abuse treatment center.  Accordingly, Petitioner enforced important rights affecting the public interest.

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.)

In the motion, Petitioner contends that the court’s decision and the writ “will provide a substantial benefit not only to other certificated employee who will be dealing with the same issue before the Office of Administrative Hearings in dismissal proceedings under Education Code Section 44944, and teachers who may be appearing in licensing proceedings initiated by the Commission on Professional Competence (also heard by OAH) but also, for any party who may be subject to administrative subpoenas issued under the authority of the OAH, e.g., students, teachers and anyone subject to its administrative jurisdiction.”  (Mot. 5.) 

District contends that the primary effect of the writ petition was to advance Petitioner’s personal interests.  (Oppo. 8.)  District contends that “OAH compliance with a particular statute for rehabilitation records directly affects only Doe” and that the “motion relies on speculation as to what OAH has been operating under with regards to administrative subpoenas and there is no evidence to support that conclusion.”  (Oppo. 10.)

 “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; see also Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940.)  Significantly here, “mere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself.”  (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335.) 

Petitioner supplies no evidence that the writ conferred a substantial benefit on the general public or a large class of persons.  Petitioner “assumes” that the writ “will result in the OAH amending its approach in the future,” but Petitioner provides no evidence to support this assumption.  (Mot. 4.)  Petitioner also cites no evidence to support her assertion that “OAH has never been [sic] received judicial guidance with regards to 42 CFR Part 2 or the California Health and Safety Code Section 11845.5 with respect to protected rehabilitation records.”  (Mot. 5.)  The discovery orders were issued by administrative law judge Eileen Cohen.  In its decision, the court found legal error in ALJ Cohen’s rulings.  (Decision 2 and 10-11 [concluding that the ALJ lacked jurisdiction and, alternatively, abused her discretion].)  Petitioner does not show, with evidence, that OAH or Commission has approved similar discovery rulings in the past.  The court cannot infer, on this record, that OAH and Commission had a policy or practice to assert jurisdiction over discovery demands for records of substance abuse treatment centers, or that OAH and Commission have previously failed to comply with the requirements of 42 USC section 290dd-2 and 42 CFR Part 2, as ALJ Cohen did in her orders.  (See Decision 11.)

The writ petition has not resulted in a published appellate decision construing 42 CFR Part 2, 42 USC Section 290dd-2(a), and Health and Safety Code section 11845.5.  While a published appellate decision is not necessarily required to find a substantial public benefit under section 1021.5, it is a relevant factor.  (Early v. Becerra (2021) 60 Cal.App.5th 726, 739-741.)  Furthermore, without a binding appellate decision, it is unclear how the court’s decision and writ will impact OAH’s or Commission’s approach to similar discovery demands in the future.

While the court’s decision did provide some “judicial guidance” to OAH and Commission, there is insufficient evidence that any significant number of persons will benefit from the court’s ruling.  This case involves unique facts under which Petitioner, a school teacher, was allegedly under the influence of alcohol or drugs on January 22, 2021, while hosting her fourth-grade distance learning class via Zoom.  (Decision 2.)  Petitioner was hospitalized at Laguna Treatment Hospital on January 22, 2021, the same day as the incident, and released on January 30, 2021.  Petitioner allegedly provided District a letter from Laguna stating that she could return to work on February 1, 2021. (Decision 2, citing AR 32-33.)  In those unique circumstances, District sought treatment records from Laguna and the OAH upheld that discovery request upon challenge from Petitioner.  Petitioner cites no evidence that similar discovery issues have occurred or are likely to recur before OAH or Commission.  Petitioner has not shown this court’s decision, that only applies to Petitioner’s records, will have any substantial benefit on the public or a large class of persons. 

Petitioner makes new arguments in reply and cites additional authorities and a request for judicial notice that were not cited or discussed in the moving papers.  (Reply 4-6, citing Reply RJN Exh. 2; County of Los Angeles v. Sup.Ct. (2021) 65 Cal.App.5th 621, 643; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1293.)  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Petitioner does not show good cause to make these new arguments in reply, depriving Respondent an opportunity to respond in its opposition. 

Even if the court considers Petitioner’s new reply arguments and cited authorities, the court finds them unconvincing.  Consistent with this court’s ruling on the “enforcement of an important right” issue above, County of Los Angeles, supra, states that 42 CFR Part 2, 42 USC Section 290dd-2(a), and Health and Safety Code section 11845.5 provide important privacy protections to patients of substance abuse treatment centers.  (County of Los Angeles, supra, 64 Cal.App.5th at 642 and fn. 17.)  However, the case did not involve a fee request under CCP section 1021.5 and did not suggest that any legal action that enforces 42 CFR Part 2, 42 USC Section 290dd-2(a), and Health and Safety Code section 11845.5 confers a substantial benefit on the public or a large class of persons.  Maria P. involved circumstances not remotely similar to those here.  Among other distinguishing factors, the trial court in Maria P. issued “an injunction to stop enforcement of Education Code section 6957 statewide for almost three years.”  (Maria P., supra, 43 Cal.3d at 1291.)  In this case, Petitioner did not obtain an injunction against OAH or Commission or any similar relief that applies to a large group of persons. 

For the first time in reply, Petitioner also asserts that “this Court’s Writ caused the District to file a verified petition in order to seek access to the records in question” and “[c]onsequently, Doe’s petition before this Court was clearly a catalyst in modifying and altering the District’s behavior.”  (Reply 5, citing RJN Exh. 2.)  The verified petition that Petitioner cites pertains to District’s discovery for Petitioner’s Laguna records at issue in the instant writ petition.  (RJN Exh. 2.)  Contrary to Petitioner’s assertion, this new petition does not show that this writ action was a catalyst in modifying District’s behavior in any generalized way.  All the petition shows is that District was still interested in obtaining the records and chose the path to obtain them that had not been precluded by the court’s decision and writ.  The fact District complied with the writ and filed a petition provides no evidence that the writ petition has changed District’s behavior in a generalized way, will have any impact on persons other than Petitioner, or about the number of persons other than Petitioner who will plausibly benefit from this court’s ruling. 

Petitioner also argues in reply that “[t]he public in general is served when privacy rights and safeguards are protected and enforced as it relates to rehabilitation centers and treatment.”  (Reply 4-5.)  As discussed above, 42 CFR Part 2, 42 USC Section 290dd-2(a), and Health and Safety Code section 11845.5 confer important confidentiality rights on patients of substance abuse treatment centers.  It does not follow, however, that any enforcement of these statutes confers a substantial benefit on the public or a large class of persons.  Petitioner’s argument lacks evidentiary support and is unpersuasive. 

Realistically assessing, in light of all the pertinent circumstances, the gains which have resulted from this case, the court finds that Petitioner did not confer a significant public benefit on the general public or a large class of persons.  Accordingly, Petitioner is not entitled to fees under section 1021.5.

Conclusion

The motion is DENIED.