Metropolitan News-Enterprise


Tuesday, March 14, 2017


Page 1


Appeals Court Rejects Challenge to $200,000 Attorney Fee Award Against LAUSD


By a MetNews Staff Writer


A Los Angeles Superior Court judge did not abuse his discretion by using the lodestar method in calculating an attorney fee award in favor of a teacher who successfully contested the Los Angeles Unified School District’s efforts to fire her, the Court of Appeal for this district has ruled.

Div. Seven yesterday ordered publication of its Feb. 21 opinion on the district’s appeal of Judge James Chalfant’s award of nearly $200,000 to Nancie Wallent’s attorneys. Justice Laurie Zelon, writing for the court, rejected the district’s claim that the Education Code limits attorney fee awards in such cases to the amounts a lawyer actually charges the client.

The district tried to fire Wallent five years ago, but in 2013, a Commission on Professional Competence made up of an administrative law judge and two teachers—one selected by the district and one by Wallent—ruled in her favor. She sought attorney fees by writ of mandate, pursuant to Education Code §44944(f).

The undisputed evidence before the trial judge was that the attorneys had taken the case on a contingency fee, and that the attorneys normally charged $295 per hour for associate time and $365 for partner time.

Chalfant concluded that a lodestar calculation was appropriate, and that the hourly rates were reasonable. He awarded $199,817 plus costs.

Zelon rejected the district’s contention that the use of the lodestar violated §44944(f)’s provision that the attorneys for a prevailing teacher recover “reasonable attorney’s fees incurred by the employee.” The justice said the case law is consistent in holding that the statute does not require that the employee actually pay, or become obligated to pay, the amount awarded.

The justice went on to say that the lodestar calculation is “long accepted in California jurisprudence,” and that there is nothing to suggest that the Legislature intended to uniquely preclude its application to Commission on Professional Competence cases.

She noted that the phrase “reasonable attorney’s fees incurred by the employee” is not preceded by the word “actually.” The omission “is legally significant,” Zelon wrote, noting that in two cases cited by the district—one under the Song-Beverly Consumer Warranty Act and another involving an inverse condemnation proceeding governed by Code of Civil Procedure §1036—the relevant statute did limit fees to those “actually” incurred.

“In essence, LAUSD seeks to impose on the statute a requirement that the Legislature did not by importing the word ‘actually’ into the language,” the jurist wrote. “This is not an interpretation we can properly reach.”

Attorneys on appeal were Gregory M. Bergman, Michele M. Goldsmith and Jason J. Barbato of Bergman Dacey Goldsmith for LAUSD and Shanon Dawn Trygstad and Daniel J. Kolodziej of Trygstad, Schwab & Trygstad for Wallent.

The case is Wallent v. Commission on Professional Competence of the LAUSD (Los Angeles Unified School District), B266265.


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