Judge: Mitchell L. Beckloff, Case: 21STCP03429, Date: 2023-05-10 Tentative Ruling

Case Number: 21STCP03429    Hearing Date: May 10, 2023    Dept: 86

CHILDREN’S HEALTH DEFENSE v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Case Number: 21STCP03429

Hearing Date: May 10, 2023

[Tentative]       ORDER TAKING MOTION FOR ATTORNEYS’ FEES OFF CALENDAR AS PREMATURE

[Tentative]       ORDER TAKING MOTION TO STRIKE OFF CALENDAR AS PREMATURE

Petitioners, Children’s Health Defense, California Chapter (CHD-CA) and Protection of the Educational Rights of Kids (PERK) (jointly, Petitioners) move the court “for an Order awarding attorneys’ fees and costs under the fee-shifting provisions of California’s Private Attorney General Statute, Code of Civil Procedure section 1021.5 . . . .” (Motion 2:9-11.) Petitioners contend they are successful parties within the meaning of Code of Civil Procedure section 1021.5 (Section 1021.5) and “a catalyst which caused Respondent Los Angeles Unified School District [] to: 1) delay and push back its local Requirement for in-person attendance within LAUSD on at least two occasions; and 2) permanently discontinue its local Requirement for in-person attendance within LAUSD schools.” (Motion 2:21-24.)

Petitioners seek $298,050.79 as and for their reasonable attorneys’ fees.

Respondents, the Los Angeles Unified School District, Megan Reilly, George McKenna, Monica Garcia, Scott Schmerelson, Nick Melvoin, Jackie Goldberg, Kelly Gonez, and Tanya Ortiz Franklin (collectively, LAUSD) oppose the motion.

In addition, on December 20, 2022, Petitioners filed a memorandum of costs in the amount of $7,634.54. LAUSD filed a motion to strike the memorandum or tax the costs. Petitioners oppose the motion but concede certain costs are not recoverable and therefore reduced their costs claimed to $5,557.78.

The court finds Petitioners’ motion for attorneys’ fees is premature. Therefore, the motion is taken off calendar.

The court also finds Petitioners filed their memorandum of costs prematurely. Accordingly, LAUSD’s motion is taken off calendar.

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APPLICABLE LAW

Attorneys’ Fees:

Section 1021.5 authorizes an award of attorneys’ fees in “public interest” litigation. Section 1021.5 provides in relevant part:

“Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, 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, if any.” 

The basic objective of the “private attorney general” doctrine “is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1289; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) The statute awards successful public interest litigants with attorney’s fees where the three statutory requirements are established. (Vasquez v. State of California (2008) 45 Cal.4th 243, 250-251.) The burden is on the fee claimant to establish each statutory requirement, including that its litigation costs transcend its personal interest in the litigation. (Save Open Space Santa Monica Mountains v. Superior Court of Los Angeles County (2000) 84 Cal.App.4th 235, 246.)

The issue of whether to award attorney’s fees under Section 1021.5 is committed to the trial court’s discretion. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634.)

Costs:

A party's right to recover costs is governed entirely by statute. (Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 241.) “To obtain costs, a party must comply with the applicable rules of court.” (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192. [“Prejudgment costs . . . shall be claimed and contested in accordance with rules adopted by the Judicial Council.”])

To recover statutory costs, the prevailing party must timely file a memorandum of costs pursuant to California Rules of Court (CRC), Rule 3.1700, subdivision (a)(1). CRC, Rule 3.1700, subdivision (a)(1) requires the memorandum of costs be filed and served “within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

CRC, Rule 3.1700, subdivision (b)(1) specifies a party resisting a memorandum of costs must file a motion to strike or tax costs within 15 days of the memorandum’s filing.

ANALYSIS

Relevant Procedural Background:

On September 9, 2021, LAUSD’s Board of Education adopted a resolution limiting admission to LAUSD facilities and participation in extra-curricular activities to those students who had proof they had been vaccinated for the COVID-19 virus (the Resolution). The vaccination requirements did not apply to those with approved exemptions as well as students who were not yet 12 years old. (Yeomans Decl., ¶ 4.)

Petitioners filed this proceeding on October 13, 2021 in response to the Resolution. Petitioners’ initial petition consisted of two causes of action—one for administrative mandamus and the other for a traditional writ of mandate.

On December 13, 2021, this court denied Petitioners’ request for a preliminary injunction enjoining LAUSD from implementing and enforcing the Resolution.

On July 5, 2022, in a related proceeding, G.F. v. Los Angeles Unified School District (Los Angeles Superior Court Case No. 21STCP03381), this court issued a traditional writ of mandate prohibiting LAUSD from enforcing the Resolution. The court found state law preempted LAUSD’s Resolution.

After the decision in G.F. v. Los Angeles Unified School District became final, LAUSD moved to dismiss all of Petitioner’s claims in this action as moot. (Yeomans Decl., ¶ 7.) Petitioners opposed the motion arguing they had stated claims unrelated to the validity of the Resolution. (Yeomans Decl., ¶ 8; SAP ¶¶ 152-177.) While the court disagreed based on the then operative pleading, the court granted leave to Petitioners to amend their petition to plead allegations supporting the existence of a live controversy. (Yeomans Decl., ¶ 10; 10-26-2022 Order.)

On November 15, 2022, Petitioners filed their third amended petition. (Yeomans Decl., ¶ 11.)

On December 20, 2022, Petitioners filed their motion for attorneys’ fees pursuant to Section 1021.5.

On March 8, 2023, the court sustained LUASD’s demurrer to Petitioners’ third amended petition; again, the court granted leave to amend. During the hearing on LAUSD’s demurrer, LAUSD raised the issue of Petitioners’ motion for attorneys’ fees suggesting it was premature given the ongoing nature of the litigation.

On April 25, 2023, Petitioner PERK changed counsel. Thus, Petitioners were then represented by different attorneys.

On April 26, 2023, Petitioner CHD-CA—without Petitioner PERK—filed a reply to the motion for attorneys’ fees. Nonetheless, Petitioner CHD-CA consistently refers to “Petitioners” in its reply papers. (See, e.g., Reply 10:17-18. [“Based on the foregoing, Petitioners respectfully request that this Court grant the fee motion as requested therein in the amount of $290,416.25.”])

Petitioner CHD-CA’s opposition to the motion to strike or tax costs filed April 27, 2023 is similar.

On May 4, 2023, Petitioner PERK—without Petitioner CHD-CA—filed its fourth amended petition.

Attorneys’ Fees Motion:

Both Petitioners have moved for an award of attorneys’ fees pursuant to Section 1021.5. LAUSD contends the motion is premature. The court agrees.

Section 1021.5 provides for an award of attorneys’ fees to a successful party where important rights affecting the public interest have been enforced. “The general rule is that a party seeking attorneys' fees must ‘prevail’ or be ‘successful’ [citation], which rule pertains regardless of the theory on which one seeks fees.” (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 663.) Courts take a “broad, pragmatic view of what constitutes a ‘successful party.’ ” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) However, “ ‘successful’ ” is synonymous with “ ‘prevailing.’ ” (Id. at 570-571.) “In determining whether a plaintiff is a successful party for purposes of [S]ection 1021.5, ‘[t]he critical fact is the impact of the action, not the manner of its resolution.’ (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at 566 [emphasis added].)

Section 1021.5 requires some resolution of the litigation. While consideration of attorneys’ fees may not require a judgment on the merits, there must be some conclusion to the litigation. Without a resolution of the litigation, the court cannot determine whether Petitioners were the successful parties. This litigation continues and appears far from concluding—the matter certainly has not yet been “ ‘finally set at rest’ . . . .” (Graham v. Daimler Chrysler Corp., supra, 34 Cal.4th 553, 570 n. 4.)

Petitioners advise “a party need not prevail on every claim to be considered a successful party within the meaning of the statute.” (Grodensky v. Artichoke Joe’s Casino (2009) 171 Cal. App. 4th 1399, 1437.) Instead, a party can be deemed successful if he “prevails on the main issue, even though not to the extent of his original contention.” (Graham v. Daimler Chrysler Corp., supra, 34 Cal.4th 553, 570 n. 4.)

While the court acknowledges a party need not prevail on every claim asserted to be a successful party in an action, Section 1021.5 nonetheless requires some resolution of the litigation to determine whether a party was successful. The court’s consideration of a party’s status as a successful party requires a broad and pragmatic view. (Id. at 565.) The court cannot undertake a broad, pragmatic view in the middle of litigation. To determine which party prevailed, the court must evaluate the issues raised and how those issues ultimately resolved.[1]

The court acknowledges—as urged by Petitioners—under certain circumstances an interim fee award might be appropriate. (See Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805 [Bell].) Such circumstances, however, are distinguishable from those here.

In Bell, insurance agents brought a class action for failure to pay overtime compensation. The trial court granted summary adjudication against the insurance company on its fourth affirmative defense finding plaintiffs were not exempt administrative employees. Plaintiffs thereafter requested and received an interim award of attorneys’ fees. The insurance company appealed.

The Court of Appeal reversed based on an analysis of Labor Code section 1194. (Id. at 808.)

Bell recognized (or “assume[d]”) several cases under Section 1021.5 supported the notion an interim attorneys’ fee award might be appropriate even though litigation could later follow the award.[2] (Id. at 832.) The factual and procedural context of those cases are distinctly different the circumstances here, and Petitioners do not address those cases or suggest how they inform on the propriety of an interim award here.

Even assuming (as did Bell) an interim award of attorneys’ fees may be appropriate under Section 1021.5, the court cannot gauge the degree of Petitioners’ success given the posture of the case—the litigation is ongoing. While Petitioners may, to some extent, ride the coattails of the petitioner’s success in G.F. v. Los Angeles Unified School District,[3] Petitioners’ ongoing claims likely will inform on the degree of their success in this litigation.[4] That is, the extent to which Petitioners prevail, if at all, on the remaining claims may be determinative to prevailing party status—minimal success going forward could impact the determination.[5]

Finally, in an attempt to avoid the successful party quandary given the state of the litigation, Petitioner CHD-CA advises “Children’s Health Defense California Chapter has elected to not amend the operative complaint, and as such, success may be properly evaluated by the Court as to the entire litigation as well as the interim achievements thus far by this Petitioner.” (Reply 8:22-24.) Petitioner CHD-CA’s attempt to circumvent the issue is ineffective. (See supra note 4.) Petitioners filed their motion; LAUSD responded to that motion. Petitioner CHD-CA has not terminated its litigation with LAUSD; LAUSD has not moved to dismiss for failure to file an amended pleading. Petitioner CHD-CA’s attempt to refocus the motion to a single petitioner is of no consequence where LAUSD has filed a fulsome opposition to the motion brought.

Motion to Strike Costs:

On December 20, 2022, Petitioners filed a memorandum of costs. As of today’s hearing, the court has not conducted any hearing on the merits (or even settled the pleadings). The court has not set trial or is anywhere close to entering judgment on the petition.

As noted earlier, a party’s right to recover costs is entirely governed by statute. (Code Civ. Proc., § 1034, subd. (a) [according to rules adopted by the Judicial Council].) CRC, Rule 3.1700, subdivision (a)(1) requires a memorandum of costs be filed and served “within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

To address the prematurity issue, Petitioners argue, “If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc. § 1032; see also Goodman v. Lozano (2010) 47 Cal.4th 1327.)

While that may be true as a general proposition, it does not resolve the prevailing (or successful) party issue discussed in the context of Section 1021.5.

The court acknowledges the time limitations associated with a memorandum of costs are not jurisdictional, and the premature filing is treated as a mere irregularity—not a nullity. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) Accordingly, Petitioners’ premature memorandum of costs does not prevent the court from treating this memorandum or some later filed memorandum of costs as the operative memorandum of costs after a judgment is entered. Given that the memorandum of costs filed is an irregularity, striking the memorandum would not be appropriate.

Finally, that LAUSD has not been served with the amended memorandum of costs referenced in reply is, of course, a problem.  (Yeomans Decl., ¶ 17.)

CONCLUSION

Based on the foregoing, the court finds Petitioners’ motion for attorneys’ fees as well as Petitioners’ memorandum of costs prematurely filed. Therefore, the motion for attorneys’ fees and the motion to strike and/or tax costs are taken off calendar. LAUSD may renew its motion to strike or tax costs after judgment is entered.

IT IS SO ORDERED.

May 10, 2023                                                                         ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court