F iled 2/21/17 Certified for Publication 3/13/17 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

NAN CIE WALENT,

Petitioner and Respondent,

v.

COMMISSION ON PROFESSIONAL COMPETENCE OF THE LAUSD,

Respondent;

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Real Party in Interest and Appellant. No. B266265

(Los Angeles County Super. Ct. No. B S1 49077)

APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge.2 Bergman Dacey Goldsmith, Gregory M. Bergman, Michele
M. Goldsmith and Jason J. Barbato for Real Party in Interest and Appellant. Trygstad, Sch wab & Trygstad, Shanon Dawn Trygstad and Daniel J. Kolodziej for Petitioner and Respondent.

___________________________ Appellant Los Angeles Unified School District appeals an award of attorney‟s fees to Respondent Nanc ie Walent, after her
successful chal lenge of her dismissal from employment. Although Appellant asserts the trial court erred in its determination of reasonable attorney‟s fees, we find neither legal error nor an
abuse of discretion in the trial court‟s determination.
A ccordingly, we affirm

.

FACTUAL AND PROCEDURAL SUMMARY

The Los Angeles Unified School District (LAUSD) sought to
dismiss Nancie Walent from her employment in 2012. She sought and received a hearing before the Commission on Professional Competence (Commission). In 2013, the
Co mmission ruled in her favor. Pursuant to the California Education Code, section 44944, subd. (f), 1 Walent sought a writ of mandate to recover her attorney‟s fees. LAUSD did not dispute her right to recover fees, but argued that those fees were limited to the amounts set forth in Walent‟s fee agreement with her counsel.

1 All further statutory references, unless otherwise n oted, are to the Education Code.3 After a series of discovery disputes, as to which appellant raises no challenge, both parties filed brie fs on the petition. The
court considered and ruled on evidentiary objections, and h eard argument on June 2, 2015. The court entered judgment on July 7, 2015, and issued the writ of mandate on August 21, 2015.
The court determined that a lodestar calculation was the appropriate mechanism to determine the reasonable fees to be
recovered (

Ketchum v. Moses (2001) 24 Cal.4th 1122) ( Ketchum

) and that the rates Walent requested were reasonable market

rates. The court overruled LAUSD‟s objections to specific portions of the rates and costs, and awarded Walent $199,817 plus costs. LAUSD appeal s that determination. 2

DISCUSSION

The sole issue on appeal is the amount of attorney‟s fees
awarded to Walent. LAUSD asserts that the Education Code limits her recovery to fees actually incurred, which precludes the
lodestar analysis performed by the tria l court. Walent disputes this interpretation of the statute, and argues the court was required to, and did, make a determination of reasonable fees.

1. Standard of Review

On appeal from a judgment granted on a writ of mandate,
we review the trial court‟s fac tual findings for substantial evidence, and conduct a de novo review of its legal rulings. ( Kavanaugh v. West Sonoma County Union High School Dist.

2 Because of the limited issue on appeal, we will not summarize the dismissal proceedings and the determination by the Commission.4

(2003) 29 Cal.4th 911, 916.) ( See also Morgan v. City of Los Angeles Bd. of Pension Comrs. ( 2000) 85 Cal.Ap p.4t h 836, 843 [ writ petition involving the interpretation of statutes and regulations is subject to de novo review]; Oldham v. Kizer (1 991) 235 Cal.App.3d 1046, 1057 [“[W]e are not bou nd by the trial
court‟ s determination of questions of law but may make our own independent determinations.” ].) In this case, there are no disputed factual issues relevant to the question on appeal, and we review the legal issues concerning the statutory requirements de novo. As to the amount of the award, where attorney‟s fee s are at issue, we review a trial court‟s determination of reasonable attorney‟s fees for abuse of discretion; because an “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of c ourse subject to review, it will not be disturbed unless the appellate court is convinced that it is truly wrong.” ( Serrano v. Priest (1977) 20
Cal.3d 25 , 49 .)

2. The Trial Court Correctly Determined The Fee Award

A. The Retainer Agreement

Walent ent ered a retainer agreement with her counsel.
Neither party submitted the retainer agreement to the trial court, but the court was able to determine its relevant provisions
from the record before it. Both parties agreed that the agreement provided for a co ntingent fee ; Walent‟ s lawyers would be entitled to fees only if Walent prevailed before the Commission and LAUSD became obligated to pay. Walent also presented evidence
that the rates to which she agreed were the law firm‟s prevailing5

hourly rates, subje ct to periodic adjus tments; the initial rates

were $365 per hour for partner time and $295 per hour for
associate time. The court relied on this undisputed evidence. 3

B. The Statutory Language

The relevant statute is section 44944(f)(2), which provides:

“ If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board of the school district shall pay the expenses of the hearing, including the cost of the administrative law judge, any costs inc urred under paragraphs (2) and (3) of subdivision (e), the reasonable expenses, as determined by the administrative law judge, of the member selected by the governing board of the school district and the member selected by the employee, including, but not limited to, payments or obligations incurred for travel, meals, and lodging, the cost of the substitute or substitutes, if any, for the member selected by the governing board of the school district and the member selected by the employee, and reasonable at torney's fees incurred by the employee.” Cases interpreting this statute are consistent in holding that the language “reasonable attorney‟s fees incurred by the employee” does not require that the employee actually pay, or become obligated to personally pa y, the fees at issue. (See e.g. , Russell v. Thermalito Union School Dist. (1981) 115 Cal.App.3d 880, 883

- 884 [teacher‟s fees paid under union defense plan were incurred because the teacher was liable for or subject to the fees;

3 Walent did not seek, and the trial court did not award, a multiplier

.6

“ [t]he ultimate source of t he funds utilized to pay the attorney for a successful aggrieved employee is immaterial.”]; Board of Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 564

- 565 ( Sunnyvale )[same].)

C. The Statute Does Not Preclude the Use of a Lodestar Calculation

LAUSD nonethel ess maintains that the statute at issue
here prohibits the trial court from awarding any amount other than the product of the agreed hourly rate and the reasonable hours expended. 4 It argues that, unlike other statute b ased fees, the lodestar calculation, long accepted in California jurisprudence, is legally barred. We disagree.

1. The Lodestar Applies Absent A Statutory Exception

In Ketchum

, the California Supreme Court held that the lodestar adjustment method, approved for the determination of attorney‟s fees in California since Serrano v. Priest (1977) 20 Cal.3d 25, applied to the determination of fees in a motion unde r

4 The law is clear that actual payment is not a requirement to be eligible to recover fees. In Lolley v. Campbell (2002) 28 Cal.4th 367, the Supreme Court determined that Labor Code, section 98.2, requiring an unsuccessful appellant to pay the “reasonable attorney‟s fees i ncurred by the other parties to the appeal”, allowed recovery of fees by an indigent party who had been represented by the Labor Commissioner and who paid no fees at all. ( Id. at pp. 372

- 373.) LAUSD concedes that the use of the term “incur” does not requ ire the party to be personally liable for payment, but argues Walent was never obligated to pay the fees used as the basis of the award because they were higher than the amount set forth in the agreement.7

Code of Civil Procedure, section 425.16. Serrano had described the lodestar as the “touchstone” figu re, based on the hours spent and the reasonable compensation of the attorneys, using prevailing hourly rates and making appropriate adjustments to “fix a fee at the fair market value for the particular action.” ( Ketchum, supra

, 24 Cal.4th at pp. 1131

- 1132 .)
Ketchum was a contingency case, as is this one

. The Court explained that in such a case, the reasonable compensation may
in fact be larger than in one in which the lawyers are entitled to be paid regardless of the outcome, to balance the incentives to bring important cases with the incenti ves in fee

- for

- service cases. ( Ketchum

, supra, 24 Cal.4th at p. 1134 ; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294

- 1295; PLCM v. Drexler (2000) 22 Cal.4th 1084, 1095.) Reviewing a variety of attorney‟s fees statutes in which use of the lodestar was approved, the Ketchum court concluded that the legislature intended the lodestar
calculation should be used, except in limited situations where the legislature had expressly indicated it should not. ( Ketchum

, sup ra, 24 Cal.4th at p. 1135.)

2. The Legislature Did Not Make An Exemption In This Statute

LAUSD asserts that the statutory langu age here indicates
that this statute contains such an exception, interpreting the statutory requirement that the fees be incurred as imposing a cap
on those fees that limits the recoverable fees to the amount actually incurred. The language chosen by the Legislature in the Education Code, howe ver, does not include the word “actually”

, an omission which is legally significa nt.8 The two primary cases relied on by LAUSD demonst rate the inclusion of the word “actual” by the Legislature is meaningful. The first, Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, arose from fees sought under the Song

Beverly Consumer Warranty Act, Civil Code, and section 1790 et

seq. There, the relevant statutory provision allowed for attorney‟s fees “based on actual time expended.” ( Nightingale

supra, 31 Cal.App. 4th at p. 103.) The party‟s agreement with counsel set an hourly rate , which counsel did not increase during the representation; the court agreed th at, under those circumstances, the recoverable fees could not be calculated using
rates hi gher than those actually billed, applied to hours that did not exceed those actually ex tended. That not withstanding, the court explained that had the fee agreement been a contingent agreement, a prevailing party would be entitled to reasonable fees for time reasonably expended. ( Id . at p. 105, f n. 6.) 5
LAUSD also relies on Andre v. City of West Sacramento (2001) 92 Cal.App.4th 532. That case arose out of an inverse condemnation proceeding, and involved a statutory provision that limited recovery to fees “actually” incurred (Code of Civ

. Proc

., § 1036), the language missing from the Educati on Code provision
at issue here. Plaintiff in that case argued she should be awarded reasonable attorney‟s fees, rather than those actually
incurred. In denying that relief, the court distinguished other statutory provisions on the basis that they did no t use the term

“ actually incurred,” but referred instead to “reasonable attorney‟s
fees.” ( Andre, supra, 92 Cal.App.4th at pp. 537

- 538.) (See also Avenida San Juan Partnership v. City Of San Clemente (2011)

5 LAUSD neither acknowledges nor addresses the impact of this distinction.9

201 Cal.App.4th 1256, 1282

- 1283 [interpreting a statute requiring fees to be actually incurred to prohibit use of a multiplier in determining fee award].) In essence, LAUSD seeks to impose on the statute a requirement that the Legislature did not by importing the word “actually” into the language. Thi s is not an interpretation we can properly reach.

„“ We begin with the fundamental rule that our primary
task is to de termine the lawmakers‟ intent.‟ [Citation. ] „In construing statutes, we aim “ to ascertain the intent of the enacting legislative body so that we may adopt the construction
that best effec tuates the purpose of the law.‟” ( Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1396

- 1397; see Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) In so doing, we look to the language of the st atute; “we may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does. “O ur office . . . „is simply to ascertain and declare‟ what is in the relevant statutes, „not to insert what has been omitted, or t o omit what has been inserted.‟ ” ( Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 573, [ 71 Cal.Rptr.2d 731, 950 P.2d 1086 ].) “„[A] court . . . may not rewrite the statute to conform to an assu med intention which
does not appear from its language.‟ ” ( In re Hoddinott (1996) 12 Cal.4th 992, 1002, [ 50 Cal.Rptr.2d 706, 911 P.2d 1381 ] .) ( Doe v. City of Los Angeles

, (2007) 42 Cal. 4th 531, 545 .) When the Legislature chose not to include in this attor ney‟s fees provision the language it used in the provisions interpreted
in Nightingale and Andre

, it made a choice that it, and it alone, was empowered to make. We cannot overturn that choice by10

inserting the language the Legislature omitted, and we will not do so. The trial court properly interpreted the Code to require the award of reasonable fees, using a method of interpretation long accepted for these purposes in California. It did not err in doing so.

DISPOSITION

The judgment is affirmed. Walent i s to recover her costs on appeal, as well as her reasonable attorney‟s fees on appeal in an amount to be determined by the trial court.

ZELON, J.

We concur:

PERLUSS, P. J.

KEENY, J. 

 J udge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 3/13/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

NANCIE WALENT,

Petitioner and Respondent,

v.

COMMISSION ON PROFESSIONAL COMPETENCE OF THE LAU SD,

Respondent;

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Real Party in Interest

a nd Appellant. No. B266265

(Los Angeles County Super. Ct. No. B S149077)

ORDER CERTIFIYING OPINION FOR PUBLICATION

THE COURT:
The opinion in this cas e filed February 21, 2017 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,2

rule 8.1105(c), and the request s by petitioner and certain non

parties pursuant to California Rules of Court, r ule 8.1120(a) for
publication are granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and

ORDERED that the words “Not to be Published in the

Off icial Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.

____________________________________ ________________________ PERLUSS, P. J., ZELON, J. , KEENY, J. (Assigned )