Filed 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

NANCIE 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. BS149077)

 

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, Schwab & 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 Nancie Walent, after her 

successful challenge 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. 

Accordingly, 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 

Commission 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 noted, 

are to the Education Code.
3

After a series of discovery disputes, as to which appellant 

raises no challenge, both parties filed briefs on the petition. The 

court considered and ruled on evidentiary objections, and heard 

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 appeals 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 trial 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 factual 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.App.4th 836, 843

[writ petition involving the interpretation of statutes and 

regulations is subject to de novo review]; Oldham v. Kizer (1991) 

235 Cal.App.3d 1046, 1057 [“[W]e are not bound 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 fees 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 course 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 entered 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 contingent 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 prevailing 
5

hourly rates, subject to periodic adjustments; 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 incurred 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 attorney'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 pay, 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 the 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 nonetheless 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 based 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 under 

 

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 incurred 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 require 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” figure, 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 incentives 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, 

supra, 24 Cal.4th at p. 1135.) 

2. The Legislature Did Not Make An Exemption In 

 This Statute

LAUSD asserts that the statutory language 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, however, does not include the word “actually”, 

an omission which is legally significant.
8

The two primary cases relied on by LAUSD demonstrate

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 SongBeverly 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 that, under those 

circumstances, the recoverable fees could not be calculated using 

rates higher than those actually billed, applied to hours that did 

not exceed those actually extended. That notwithstanding, 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, fn. 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 Education 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 not 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. This is not an interpretation we can 

properly reach.

„“We begin with the fundamental rule that our primary 

task is to determine 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 effectuates 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 statute; “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. “Our office . . . „is simply to ascertain and 

declare‟ what is in the relevant statutes, „not to insert what has 

been omitted, or to 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 assumed 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 attorney‟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 by 
10

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 is 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.

 

 Judge 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 

LAUSD,

 Respondent;

LOS ANGELES UNIFIED 

SCHOOL DISTRICT,

 Real Party in Interest 

 and Appellant.

No. B266265

(Los Angeles County

Super. Ct. No. BS149077)

ORDER CERTIFIYING

OPINION FOR

PUBLICATION

THE COURT:

The opinion in this case 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 requests by petitioner and certain nonparties pursuant to California Rules of Court, rule 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 

Official 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)