Judge: Mitchell L. Beckloff, Case: 21STCP03429, Date: 2023-11-29 Tentative Ruling

Case Number: 21STCP03429    Hearing Date: January 10, 2024    Dept: 86

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

Case Number: 21STCP03429

Hearing Date: January 10, 2024

[TENTATIVE]    ORDER DENYING MOTION FOR ATTORNEYS’ FEES

Petitioner, Children’s Health Defense – California Chapter, moves for an order awarding it attorneys’ fees and costs. Respondent, Los Angeles Unified School District (LAUSD), opposes the motion.[1]

The motion is DENIED.

STATEMENT OF THE CASE

On October 13, 2021, Petitioner and Protection of the Educational Rights of Kids (P.E.R.K) filed their Verified Petition for Writs of Traditional and Administrative Mandate and Request for Immediate Stay (Original Petition). Through the Original Petition, Petitioner sought an order requiring Respondent to vacate and set aside its resolution generally requiring all students to obtain a COVID-19 vaccine (the Resolution) to attend in-person classes.

On October 29, 2021, Petitioner sought a temporary restraining order and an order to show cause hearing for a preliminary injunction precluding Respondent from enforcing the Resolution until the court decided its Original Petition. Petitioner noted the Resolution “took effect immediately, but included tiered compliance deadlines, including the first ‘full vaccination’ deadline of October 31, 2021.” (Ex Parte Application Notice 2:17-18.) The court denied Petitioner’s request and directed Petitioner to file a notice motion for a preliminary injunction. (Minute Order 10-29-21 p. 3.)

On November 8, 2021, Petitioner filed its motion for a preliminary injunction. Through the motion, Petitioner sought to enjoin Respondent from enforcing the Resolution pending a hearing on its Original Petition. The court set Petitioner’s motion for hearing on December 8, 2021.

On November 8, 2021, Petitioner filed its ex parte application seeking to advance the hearing date on its motion for a preliminary injunction. Petitioner explained the “next deadline for vaccination for all LAUSD students 12 and older . . . is November 19, 2021” making it “imperative that [the preliminary injunction] hearing . . . precedes that date.” (Ex Parte Application 4:11-12.)

The court denied Petitioner’s ex parte application on November 10, 2021. (Minute Order 10-10-21.)

After hearing argument on Petitioner’s motion for a preliminary injunction on December 8, 2021, the court issued its order denying Petitioner’s request on December 13, 2021. Petitioner did not appeal the court’s order. (Code Civ. Proc., § 904.1, subd. (a)(6).)

Seven months later, on July 5, 2022, in a related case, G.F. v. Los Angeles Unified School District, Case No. 21STCP03381, this court issued an order finding LAUSD exceeded its authority when it passed the Resolution because the Resolution was preempted by state law. Accordingly, the court enjoined Respondent from enforcing the Resolution as to any student within LAUSD.

After the court sustained demurrers and granted a motion to dismiss brought by Respondent, Petitioner indicated it would no longer pursue any substantive relief from Respondent.[2] (Minute Order May 10, 2023.)

Petitioner now seeks an award of attorneys’ fees and costs from Respondent pursuant to Code of Civil Procedure section 1021.5 (Section 1021.5).

LEGAL STANDARD

Section 1021.5 authorizes an award of attorney’s 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. 

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.” (§ 1021.5.) 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.)  “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.) The “critical fact is the impact of the action, not the manner of its resolution.” (Hogar Dulce Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1365.) 

The statute awards successful public interest litigants with attorney’s fees where the statutory requirements are established. (Vasquez v. State of California (2008) 45 Cal.4th 243, 250-251.) 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.)  

The burden is on the fee claimant to establish each statutory requirement. (Save Open Space Santa Monica Mountains v. Superior Court of Los Angeles County (2000) 84 Cal.App.4th 235, 246.)

Alternative Standard – Catalyst Theory

“The ‘catalyst theory’ permits an award of attorney fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. [Citation.] To obtain attorney fees under this theory, a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiff[] reasonably attempted to settle the litigation prior to filing the lawsuit.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 191 [CPRR].)

“It is not necessary for a plaintiff to achieve a favorable final judgment to qualify for attorneys’ fees so long as the plaintiff’s actions were the catalyst for the defendant’s actions, but there must be some relief to which the plaintiff’s actions are causally connected.” (Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513, 521.) “At the very least, a plaintiff must establish the precise factual/legal condition that it sought to change or affect as a prerequisite for establishing the catalytic effect of its lawsuit.” (Ibid.) “To satisfy the causation prong of the catalyst theory, the plaintiff need not show that litigation was the only cause of the defendant's acquiescence, only that it was a substantial factor contributing to defendant's action.” (Id. at 522.)

“Thus, when a plaintiff seeks fees under a catalyst theory, courts generally must conduct the following inquiry: (1) identify the plaintiff's primary litigation objectives, (2) compare the results obtained to determine whether the plaintiff in fact achieved those objectives, and, if so,

(3) decide whether the lawsuit was a material factor or contributed in a significant way to those results. . . .” (Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 572-573.) 

“[T]he question of whether plaintiffs’ action is causally linked to the achievement of the relief obtained is one of fact.” (Wallace v. Consumers Coop. of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 845; accord Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 969.)

ANALYSIS

Was Petitioner a Successful Party in this Litigation?

Petitioner must have been a “successful party” in this litigation to obtain an attorneys’ fee award under Section 1021.5.

Petitioner did not prevail in this matter by virtue of a court ruling or judgment. Nonetheless,

Petitioner contends it was “in effect a ‘successful party’ on the merits of its claim with respect to the illegal [Resolution] and a major catalyst in both: (1) delaying enforcement of the [Resolution] twice, and (2) ultimately getting a favorable ruling by this court to void the [Resolution] entirely.” (Memo 1:10-13.) Petitioner asserts it is entitled under Section 1021.5 to an attorneys’ fees and costs award of $130,733.75.

Petitioner argues it was the successful party in this litigation “because it has prevailed on the main issue of the initial lawsuit: to prevent enforcement of and to strike down Respondents’ illegal [Resolution].” (Memo 8:9-10.) Petitioner reports its “steady and persistent actions achieved [its] desired result.” (Memo 8:13.) Petitioner acknowledges the court’s order in G.F. v. Los Angeles Unified School District—not this case—resulted in Petitioner achieving the result it desired in this litigation.[3] (Memo 1:9-10, 8:15-17.)

The court acknowledges an “attorney fee award may be justified even when plaintiff’s legal action does not result in a favorable final judgment.” (Maria P. v. Riles, supra, 43 Cal.3d at 1290-1291.) Nonetheless, to “justify a fee award, there must be a causal connection between the lawsuit and the relief obtained.” (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353.) A petitioner’s legal action must be “a ‘material’ factor or have ‘contributed in a significant way’ to the results achieved.” (Ibid.)

“In general, it is the task of the trial court to ‘realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award under a private attorney general theory.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 938.) “The appropriate benchmarks in determining which party prevailed are (a) the situation immediately prior to the commencement of suit, and (b) the situation today, and the role, if any, played by the litigation in effecting any changes between the two.” (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685 n. 31.)

Respondent disputes Petitioner’s claimed status as the successful party in this action because Petitioner lost, entirely or to a significant degree, every hearing conducted by the court—that is, Petitioner never obtained any relief from this court. The court agrees.

Petitioner did not prevail on a single issue in this litigation. Petitioner unsuccessfully sought a temporary restraining order and an order to show cause hearing immediately after it filed this proceeding; the court directed Petitioner to file a noticed motion after finding no urgency. Petitioner thereafter unsuccessfully sought an order advancing the hearing date on its noticed motion for a preliminary injunction. Petitioner then lost its bid to obtain a preliminary injunction pending a hearing on the Original Petition. Respondent successfully twice demurred to the various iterations of the Original Petition. Other than obtaining leave to amend to amend its allegations at the conclusion of demurrer hearings or Respondent’s initial motion to dismiss, the court cannot find Petitioner had any actual success in this litigation.

Using “[t]he appropriate benchmarks” as a guide to a realistic assessment of the litigation from a practical perspective, the court finds Petitioner’s lawsuit did not result in the enforcement of any important right—the lawsuit simply had no effect on Respondent. That is, the circumstances today would be identical if Petitioner had never initiated this litigation.[4] It is true the Resolution that existed prior to Petitioner’s litigation may not be enforced as preempted by state law. However, Petitioner had no role in bringing about that result—the result would have occurred without regard to any efforts by Petitioner. There is no causal connection between the invalidation of the Resolution and Petitioner’s lawsuit. Petitioner cannot be a successful party where Petitioner obtained absolutely no relief connected in some way to the proceedings.

Given that Petitioner’s litigation did not result in a favorable court ruling or judgment,

Petitioner relies on the catalyst theory to prove it was a “successful party” in this litigation within the meaning of Section 1021.5. Petitioner relies on the following argument and evidence to demonstrate it is entitled to an award of Section 1021.5 attorneys’ fees:

Here, prior to the lawsuit, Petitioners warned Respondents not to enact and, once enacted, to withdraw or rescind their illegal [Resolution] or face legal action. (Pearson Decl., ¶4). Respondents refused and proceeded to forcibly remove children from in-person extracurricular activities and other in-person services and exclude or threaten to exclude them from District properties and force tens of thousands of them into independent study in disregard of the asserted statutory and constitutional rights of its students. (Ibid.) After Petitioners’ lawsuit was filed, Petitioners moved this Court for temporary emergency relief to delay enforcement of the [Resolution] providing over one hundred declarations in support from impacted LAUSD students and/or their families, along with expert declarations on the harms of independent study and the lack of long term studies on the injections. Following providing this evidence of actual harms to LAUSD students, Respondents elected to hold special meetings to vote to delay enforcement of the [Resolution] as requested by Petitioners, not once but twice and, ultimately voted on May 10, 2022 not to enforce the [Resolution] and to, instead, wait to “align with the state,” meaning wait for the California Legislature and/or [the California Department of Public Health] to go through the proper channels to potentially mandate the COVID-19 injections for California schoolchildren as argued in the Petition. (Id., ¶15.) Clearly Petitioners’ actions had an effect on Respondents’ behavior as they provided the relief sought in Petitioners’ ex parte application to stay enforcement of the [Resolution], within two days following Petitioners’ hearing and request for this relief.

Following Respondents’ second vote to delay enforcement of the [Resolution] on May 10th, 2022, Petitioners sent a letter to Respondents’ counsel demanding that Respondents also cease excluding noncomplying students from extracurricular activities. One day later, Respondent LAUSD announced that it would now allow previously excluded students to re-join extracurricular activities in light of the delayed enforcement of the [Resolution]. (Memo 9:23-10:17.)

Petitioner argues its efforts “before any ruling in favor of G.F.” resulted in Respondent voting not to enforce the Resolution and “the ‘inference’ and logical conclusion that Petitioner[’s] actions influenced Respondent’s actions.” (Memo 10:26-11:1.)[5]

First, Respondent’s decision to delay and amend its Resolution in December 2021 followed the court’s decision denying Petitioner’s request for a preliminary injunction. The court heard Petitioner’s motion on December 8, 2021. In advance of that hearing, the court issued a written tentative decision denying Petitioner’s request. At the conclusion of the hearing, the court took the matter under submission. On December 13, 2021, the court issued its order denying Petitioner’s request for a preliminary injunction.

On December 14, 2021, Respondent voted to delay enforcement of the Resolution. That Respondent’s decision followed a tentative and final decision denying Petitioner’s request for a preliminary injunction undermines any inference Respondent acted to delay enforcement of the Resolution based on Petitioner’s efforts in this proceeding. That is, it is difficult to imagine why Respondent would take any actions when Petitioner had been unsuccessful in obtaining any provisional relief and a trial setting conference was not scheduled for another six weeks.

On May 10, 2022, Respondent again elected to delay implementation of the Resolution. Respondent did so after the court sustained Respondent’s demurrer to Petitioner’s amended petition in part two weeks earlier on April 25, 2022. Respondent’s delay decision also followed the writ trial in G.F. v. Los Angeles Unified School District on April 6, 2022 when the court issued a tentative written decision denying relief to the petitioner but took the matter under submission.

The court is not persuaded Petitioner’s litigation (or any order made by the court in this proceeding) in any way contributed to Respondent’s decision to delay implementation of the Resolution. The evidence before the court does not support such a finding. Further, the court notes Respondent never voluntarily set aside its Resolution. Instead, Respondent set aside the Resolution only after this court issued its order finding the Resolution invalid in July 2022 after the trial in the related case.

Based on the foregoing, the court finds Petitioner was not the successful party in this proceeding. Petitioner has not met its burden of demonstrating a causal connection between this proceeding and any changes by Respondent. As Petitioner was not a successful party, it is not entitled to an award of attorneys’ fees pursuant to Section 1021.5.

CONCLUSION

Based on the foregoing, the motion is DENIED.

IT IS SO ORDERED.

January 10, 2024                                                                  ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court