This case was last updated from Los Angeles County Superior Courts on 08/10/2019 at 00:05:44 (UTC).

WILLIAM S HART UNION HIGH SCHOOL DISTRICT VS COMMISSION ON P

Case Summary

On 04/23/2018 a Other - Writ Of Mandamus case was filed by WILLIAM S HART UNION HIGH SCHOOL DISTRICT against COMMISSION ON P in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3394

  • Filing Date:

    04/23/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

JAMES C. CHALFANT

 

Party Details

Petitioner

WILLIAM S. HART UNION HIGH SCHOOL

Respondent and Defendant

COMMISSION ON PROFESSIONAL COMPETENCE

Interested Party

COLLEY EDWARD

 

Court Documents

Opposition

7/12/2019: Opposition

Notice

7/15/2019: Notice

Brief

7/30/2019: Brief

Declaration

7/30/2019: Declaration

Other -

8/8/2019: Other -

Request

5/17/2019: Request

Minute Order

2/14/2019: Minute Order

Notice of Intent to Appear by Telephone

1/23/2019: Notice of Intent to Appear by Telephone

Notice of Change of Address or Other Contact Information

12/5/2018: Notice of Change of Address or Other Contact Information

Stipulation and Order

10/10/2018: Stipulation and Order

NOTICE OF INTENT TO APPEAR BY TELEPHONE AT TRIAL SETTING CONFERENCE

7/30/2018: NOTICE OF INTENT TO APPEAR BY TELEPHONE AT TRIAL SETTING CONFERENCE

Minute Order

8/2/2018: Minute Order

Minute Order

5/31/2018: Minute Order

Proof of Service

6/1/2018: Proof of Service

ANSWER OF REAL PARTY IN INTEREST EDWARD COLLEY TO PETITIONER WILLIAM S. HART UNION HIGH SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDATE

6/1/2018: ANSWER OF REAL PARTY IN INTEREST EDWARD COLLEY TO PETITIONER WILLIAM S. HART UNION HIGH SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDATE

EDWARD COLLEY'S CROSS-PETITION FOR WRIT OF MANDATE AGAINST WILLIAM S. HART UNION HIGH SCHOOL DISTRICT

6/1/2018: EDWARD COLLEY'S CROSS-PETITION FOR WRIT OF MANDATE AGAINST WILLIAM S. HART UNION HIGH SCHOOL DISTRICT

NOTICE OF STATUS CONFERENCE AND NOTICE OF TRIAL SETTING CONFERENCE

5/4/2018: NOTICE OF STATUS CONFERENCE AND NOTICE OF TRIAL SETTING CONFERENCE

NOTICE OF STATUS CONFERENCE AND ORDER

4/27/2018: NOTICE OF STATUS CONFERENCE AND ORDER

27 More Documents Available

 

Docket Entries

  • 09/26/2019
  • Hearingat 09:30 AM in Department 85 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: (name extension)

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  • 08/08/2019
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Petition for Writ of Mandate - Held

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  • 08/08/2019
  • DocketMinute Order ( (Hearing on Petition for Writ of Mandate)); Filed by Clerk

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  • 08/08/2019
  • DocketOther - (Decision on petition for writ of mandate: denied); Filed by Clerk

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  • 07/30/2019
  • DocketReply (to Real Party In Interest's Opposition to District's Request for Judicial Notice); Filed by William S. Hart Union High School (Petitioner)

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  • 07/30/2019
  • DocketBrief (William S. Hart Union High School District's Reply Brief); Filed by William S. Hart Union High School (Petitioner)

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  • 07/30/2019
  • DocketDeclaration (of B. Green In Support of the William S. Hart Union High School District's Reply Brief)); Filed by William S. Hart Union High School (Petitioner)

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  • 07/15/2019
  • DocketNotice (Real Party in Interest Edward Colley's Notice of Errata); Filed by Edward Colley (Real Party in Interest)

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  • 07/12/2019
  • DocketOpposition (Respondent's Opposition Brief); Filed by Edward Colley (Real Party in Interest)

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  • 07/12/2019
  • DocketOpposition (Respondent's Opposition to William S. Hart Union High School District's Request for Judicial Notice); Filed by Edward Colley (Real Party in Interest)

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50 More Docket Entries
  • 04/27/2018
  • DocketNOTICE OF STATUS CONFERENCE AND ORDER

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  • 04/27/2018
  • DocketNotice of Status Conference filed; Filed by Clerk

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  • 04/26/2018
  • DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 04/26/2018
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/26/2018
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/23/2018
  • DocketPetition; Filed by null

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  • 04/23/2018
  • DocketPETITION FOR WRIT OF MANDATE[C.C.P. 1094.5]

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  • 04/23/2018
  • DocketNOTICE OF RELATED CASE

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  • 04/23/2018
  • DocketSUMMONS

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  • 04/23/2018
  • DocketNotice of Related Case; Filed by William S. Hart Union High School (Petitioner)

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Tentative Rulings

Case Number: BS173394    Hearing Date: December 10, 2019    Dept: 85

William S. Hart Union High School District v. Commission on Professional Competence, BS173394

Tentative decision on motion for attorney’s fees: granted in large part

Real Party-in-Interest Edward Colley (“Colley”) moves for an award of attorney’s fees against Petitioner William S. Hart Union High School District (“District”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. The Petition

Petitioner District commenced this proceeding on April 23, 2018, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

On August 2, 1995, District and Colley entered into an employment contract for certificated service as an instructor in the Junior Reserve Officer Training Corps ("JROTC") program. Colley served as the Senior Aerospace Science Instructor and commanding officer of JROTC Unit CA-782. The employment contract required Colley to maintain his credentials, including his "R.O.T.C., Designated Subjects" credential issued by the Commission on Teacher Credentialing ("CTC").

Upon beginning his employment with District, Colley was certified by the United States Air Force (“USAF” or “Air Force”) to serve as a JROTC instructor. Effective June 30, 2015, the United States Air Force decertified Colley to serve as a JROTC instructor. Colley does not currently hold a certification to serve as a JROTC instructor.

In June 2004, the District hired retired Master Sergeant Frederick D. Malcomb, Jr. ("Malcomb") to work at the JROTC as an Aerospace Science Instructor. Colley was responsible for supervising and assigning work to Malcomb. Colley assigned Malcomb to be primarily responsible for Air Force equipment and other property. Colley appointed Malcomb as the primary Information Technology (“IT”) equipment custodian, responsible for ordering and conducting inventory of computer and other electronic equipment. Colley also appointed Malcomb to serve as the Military Property Custodian ("MPC"), responsible for ordering and conducting inventory of all other Air Force property.

Colley served as the alternate IT equipment custodian. Additionally, Colley was responsible for overseeing Air Force Automated Data Processing Equipment ("ADPE") compliance and for compliance with directives from Air Force Headquarters. Colley and Malcomb each had two separate email accounts — one for contacts with District, and one for contacts with the Air Force. Both accounts received emails from the Air Force as a part of distribution groups on the unit level, regional level, and national level.

JROTC email accounts are accessible through WINGS, a JROTC website and database used for exchanging information between Air Force headquarters and the JROTC unit. On October 11, 2013, the Secretary of the Air Force published AFJROTC Instruction 36-2002, requiring AFJROTC instructors to: (1) perform duties, accept responsibilities and meet standards as prescribed by applicable Department of Defense, Air Force, Holm Center, and AFJROTC instructors; (2) log into their WINGS and email accounts at least weekly to ensure they remain current on all announcements, perform all required system updates, and meet all required suspenses; and (3) comply with all Air Force directives governing AFJROTC.

In 2012, Malcomb kept inventory of the unit's equipment but neither he nor Colley sent documentation to Headquarters. On November 14, 2012, Malcomb was notified that the ADPE/AIM Inventory account had been locked for three years, precluding the ordering of equipment until the account was unlocked. Colley and Malcomb decided to take no action to unlock the account because the unit did not need new equipment.

On March 7, 2014, Headquarters sent an email to all JROTC units informing them that all units must be compliant with ADPE accountability requirements by April 10, 2014. Compliance required four documents: (1) ITEC appointment letter, (2) ITEC training certificate for Primary ITEC, (3) ITEC training certificate for Alternate ITEC, and (4) an inventory listing signed by the commander/director and ITEC. The documents were required to be uploaded into WINGS.

Despite the clear change in procedures outlined in the March 7, 2014 email, Colley took no action to ensure that Malcomb complied with the requirements. On April 22, 2014, the Air Force placed Colley on probation. After being placed on probation, Colley and Malcomb took action to provide the required documents identified in the March 7, 2014 email.

Colley failed to submit the required inventory lists, training certificates, and other documentation by the April 10, 2015 deadline. On April 17, 2015, JROTC Headquarters sent an email to District and Colley regarding Colley’s failure to meet the April 10, 2015 deadline. Colley was directed to provide the required documentation no later than April 24, 2015. Colley was warned that failure to provide the required documentation in a timely manner would result in his placement on probation and consideration for decertification.

Colley failed to submit the required inventory lists, training certificates, and other documentation by the April 24, 2015 compliance deadline. Additionally, Colley failed to inquire whether Malcomb submitted the documents, check the WINGS database, or otherwise follow up on whether Malcomb had complied with ADPE reporting.

As a result of Colley’s failures in 2014 and 2015 to comply with the ADPE requirements, the Air Force on May 7, 2015, revoked Colley’s certification to serve as an AFJROTC instructor.

On June 30, 2015, the District non-reelected Colley as a probationary employee. Colley challenged his non-reelection and on September 26, 2016, the court ordered Colley’s reinstatement as a permanent employee of the District.

The Commission on Professional Competence (“Commission”) conducted a hearing on the Dismissal Charges and found that Colley’s conduct is not related to his fitness to teach, Colley is not unfit to teach under Education Code section 44932(a)(5), and Colley did not fail to obey the school laws of the state or reasonable regulations of the District's Governing Board under Education Code section 44932(a)(8).

The District contends that, without certification from the Air Force, Colley is incapable of serving as a JROTC instructor. Therefore, under Code of Civil Procedure section 1094.5, the Commission’s Decision should be reversed, and Colley should be dismissed from his employment with the District.

2. The Cross-Petition

Cross-Petitioner Colley filed a Cross-Petition on June 1, 2019, alleging a cause of action for traditional mandamus.

3. Course of Proceedings

On August 8, 2019, the court denied the Petition, and therefore denied Colley’s Cross-Petition as moot.

B. Applicable Law

If the Commission 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 reasonable attorney's fees incurred by the employee. Education Code[2] §44944(f)(2). Although the statute does not expressly provide for the award of fees if judicial review is sought from a Commission decision, attorney’s fees should be awarded to a prevailing employee for the court proceeding. Fontana Unified School District v. Burman, (1988) 45 Cal.3d 208, 225.

The appropriate method for calculating attorney’s fees under the Education Code is the lodestar method, which involves a determination of reasonable hours spent by the attorney(s) multiplied by the reasonable hourly rate, in order to assess the fair market value of the legal services provided. Glaviano v. Sacramento City Unified School District, (2018) 22 Cal.App.5th 744, 750-51; Walent v. Commission on Professional Competence, (2017) 9 Cal.App.5th 745, 750.

C. Statement of Facts

1. Colley’s Evidence

In relation to Colley’s hearing before the Office of Administrative Hearings (“OAH”), Colley disclosed approximately 2000 pages of relevant documents to the District, including emails and lengthy Air Force regulations and publications. Smith Decl. ¶5. Colley’s counsel, Tamra M. Smith (“Smith”), spent a substantial amount of time reviewing and analyzing these documents, determining which documents to include as exhibits, identifying which documents and excerpts to highlight at trial, and crafting questions for witnesses about the documents, in order to present Colley’s position and defense to the Commission. Smith Decl. ¶5.

The District took Colley’s deposition on May 7, 2017, and the deposition took most of the day. Smith prepared Colley for the deposition and represented him during it. Smith Decl. ¶6.

In April and May 2017, Smith spent a substantial amount of time litigating pre-trial motions for the case. Smith Decl. ¶7. The District brought several motions in limine in which it asked the Administrative Law Judge (“ALJ”) to exclude some of Colley’s evidence and to permit electronic testimony by Air Force witnesses over Colley’s objection, which Colley successfully opposed in limine. Smith Decl. ¶7. Smith also successfully opposed the District’s efforts to introduce into evidence a federal court’s memorandum opinion from a case Colley filed against the United States Air Force. Smith Decl. ¶8.

The administrative hearing occurred on November 27-29, and December 6, 2017. Smith Decl. ¶¶ 11, 12. Although Smith completed most of the trial preparation in May 2017, she had to spend a substantial amount of time before and during the hearing to refresh her memory on the documentary evidence, preparing Colley and key witness Frederick Malcomb to testify, and preparing cross-examination for adverse witnesses. Smith Decl. ¶11. The parties submitted simultaneous opening and reply briefs for the administrative law judge. Smith Decl. ¶13.

On August 2, 2018, the court held a trial-setting conference in this lawsuit, which was continued because the administrative record had not yet been completed and certified. Smith Decl. ¶16. Over the next six months, the trial-setting conference was continued multiple times because the parties discovered substantial errors in the hearing transcript during their review of the record, including missing testimony. Smith Decl. ¶¶ 16-17. In October 2018, the District provided Smith what was supposed to be a corrected administrative record and hearing transcript. Smith Decl. ¶17. Upon review of the transcript, Smith discovered another significant portion of testimony from her cross-examination of witness Malcomb was missing. Smith Decl. ¶17. Smith had to consult her trial notes and examination outline of the witness in order to identify the material that was missing. Smith Decl. ¶17.

The transcript contained other issues including incorrect attribution of comments, inaccurately transcribed words, and transcribed phrases that did not reflect what was said during the hearing. Smith Decl. ¶18. Counsel for both parties went through the transcript line-by-line, suggested corrections, negotiated some of the corrections, and entered into a stipulation about the corrections. Smith Decl. ¶¶ 18-19. By the February 14, 2019 trial setting, the parties finally had a corrected hearing transcript and the court set hearing for August 8, 2019. Smith Decl. ¶19.

In early July 2019, Smith prepared Colley’s opposition to the District’s opening brief. Smith Decl. ¶20. She took a substantial amount of time review the administrative record, which consisted of over 2800 pages, and cull out the record citations for presentation to the court in the opposition. Smith Decl. ¶20. Smith also researched and prepared Colley’s opposition to the District’s request for judicial notice of a federal court decision. Smith Decl. ¶20.

The court decided the case in Colley’s favor and judgment was entered on September 4, 2019. Smith Decl. ¶22. On August 19, 2019, Smith emailed the District’s counsel, Kerrie E. McNally (“McNally”), to meet and confer regarding Colley’s attorney’s fees. Smith Decl. ¶22. Smith provided McNally a breakdown of Colley’s attorney’s fees and costs incurred as of that date and offered to accept a lower hourly rate if the District would stipulate to the fees and costs without a motion. Smith Decl. ¶22. The District ultimately did not accept the offer. Smith Decl. ¶¶ 22-23.

In February 2017, the court concluded that the rate of $500 per hour for Smith’s services was reasonable for work performed in 2015 and 2016 on the related case, BS157804. Smith Decl. ¶26. Since that time, other teacher advocates in the Los Angeles legal market have received higher hourly rates for performing similar work. Smith Decl. ¶26. Attorney Joshua Adams (“Adams”), who was admitted to the California Bar in 2008 and who Smith once supervised as a law clerk at her former law firm, was recently awarded the rate of $600 per hour for his services in Department 82 of the Los Angeles Superior Court. Smith Decl. ¶26; see Adams Decl. Attorney Carlos R. Perez (“Perez”) received the rates of $600-618 per hour for his services on teacher dismissal cases in 2018 and 2019. Smith Decl. ¶26; see Perez Decl. The court has also awarded the law firm Trygstad, Schwab and Trygstad (“TST”), another firm with extensive experience litigating teacher cases in the Los Angeles market, the rate of $525 per hour for the services of its partners on teacher dismissal cases, plus multipliers for litigating difficult cases. Smith Decl. ¶26; see Kolodziej Decl.

Although Smith performed most of the work on the case, she asked associate Daniel Curry (“Curry”) to assist her with research regarding the District’s motion to admit out-of-state electronic testimony over Colley’s objections. Smith Decl. ¶28.

Smith spent 373.10 hours and Colley seeks fees for her services at $550 an hour for a total of $205,205. Smith Decl. Ex. 1. Curry spent five hours and Colley seeks fees for his services at $375 an hour for a total of $1,875. Smith Decl. Ex. 1.

2. The District’s Evidence

On February 16, 2017 and May 31, 2018, this court found a rate for Smith of $500 per hour to be a reasonable rate in Colley’s first case, Superior Court Case No. BS157804, for work incurred between September 2, 2015 and May 31, 2018. McNally Decl. ¶4, Exs. A, B. On May 31, 2018, the court found in the same Colley case that a rate of $275 per hour for a first-year attorney’s services was reasonable. McNally Decl. ¶5, Ex. B.

The 775-page transcript, produced by the court reporter assigned to the administrative trial before the Commission contained substantial errors, requiring Smith and McNally to devote attention to identifying and correcting the errors. McNally Decl. ¶¶ 12-13. McNally devoted 26.7 hours to reviewing and revising the transcript. McNally Decl. ¶14.

On April 26, 2018, the District issued a Notice of Unprofessional Conduct/Unsatisfactory Performance to Colley due to his failure to satisfactorily and appropriately perform his assigned duties between January 2017 and March 2018. This disciplinary document and the misconduct described therein was never at issue in the instant matter. McNally Decl. ¶16, Ex. F.

3. Reply Evidence

Colley entered into retainer agreements with Smith’s current and former law firms. Smith Reply Decl. ¶2. Under these retainer agreements, Colley paid hourly rates for legal services that were below market rates for comparable legal services in the Los Angeles community. Smith Reply Decl. ¶2. The retainer agreements provided that, if Colley prevailed on his case, his attorneys would be entitled to seek market value for their services by moving the court for an award of attorneys’ fees at prevailing market rates. Smith Reply Decl. ¶2.

In related case BS157804, Smith filed a motion for attorneys’ fees in November 2016, which the court heard in February 2017. Smith Reply Decl. ¶3, Ex. 7. In support of that motion, Smith submitted a declaration from Glenn Rothner, a Los Angeles attorney with over forty years of experience in the labor and employment field, in which he averred that the court awarded him rate of $600 per hour on an Education Code case in 2012. Id.

In February 2017, the court concluded that the rate of $500 per hour was reasonable for Smith’s services for Colley performed in 2015 and 2016. Smith Reply Decl. ¶4. The court also concluded that the rate of $400 per hour was reasonable for the services of a fourth-year associate who assisted Smith. Smith Reply Decl. ¶4.

In May 2018, Smith filed a second motion for attorneys’ fees in related case BS157804 for legal services performed in 2017 and early 2018. Smith Reply Decl. ¶5. Although Smith believed that an increase in her hourly rate was reasonable due to the passage of time and her increased experience, she decided for simplicity purposes to request the same hourly rate ($500 per hour) previously awarded in the same case. Smith Reply Decl. ¶5. The court again awarded Smith the requested rate of $500 per hour and had no occasion to consider whether a modest increase was warranted. Smith Reply Decl. ¶5.

Since February 2017, Smith has gained more experience and earned more successes in her practice. Smith Reply Decl. ¶6. Smith has been successful in four out of six Commission cases in the past three years. The rates recently recovered by other attorneys in Smith’s field of practice demonstrate that the fair market value for her services has increased since February 2017. Smith Decl. ¶¶ 6-7, Exs. 8-13.

Colley’s case before the Commission was originally scheduled to begin on May 23, 2017, but was continued to September 25-27, 2017, and then again to November 27-29, 2017. Smith Reply Decl. ¶¶ 8-9, Exs. 14-15. The first continuance was due to the need to change Commission members and the second was due to the suicide of Colley’s son. Smith Reply Decl. ¶¶ 8-9.

Pursuant to the OAH’s orders, the parties filed a joint exhibit and witness list with the OAH on May 19, 2017, which combined, totaled over 1000 pages. Smith Reply Decl. ¶10. The District identified 11 witnesses, seven of whom were affiliated with the United States Air Force. Smith Reply Decl. ¶11. Smith prepared to examine all eleven of the witnesses on the District’s witness list, and they did not ultimately testify. Smith Reply Decl. ¶11.

On May 21, 2017, Smith billed 12 hours when she reviewed the deposition transcripts of both Colley and material witness Frederick Malcomb, corresponded with opposing counsel about corrections to Colley’s deposition transcript and a lack of page numbers in Smith’s copy of Malcomb’s transcript, corresponded with opposing counsel about Malcomb’s subpoena, witness fees, and mileage, and exchanged numerous emails with Colley about trial strategy. Smith Reply Decl. ¶12.

Smith had not yet completed trial preparation when she learned on May 22, 2017 that the hearing was continued. She had completed neither her opening statement, nor her examination questions for Colley and Malcomb. Smith Reply Decl. ¶13. She had also not yet met with Colley and Malcomb to go over their trial testimony with the exhibit binders in front of them. Smith Reply Decl. ¶13. Smith stopped working and did not did no substantive work on the case between May 22, 2017 and November 26, 2017. Smith Reply Decl. ¶¶ 13-14.

Prior to the November 2017 hearing, Smith was required to review all of the 1000 pages of exhibits and the Colley and Malcomb deposition transcripts, and revise the witness outlines she had previously prepared in order to refresh her recollection about narrative and strategy. Smith Reply Decl. ¶15.

On November 27 and 28, 2017, Smith had two witness-preparation meetings with Malcomb. These meetings were not duplicative of Smith’s prior preparation since she had not meet in person with Malcomb in advance of the May hearing date. Smith Reply Decl. ¶16. Smith also completed her opening statement, addressed the District’s new legal theory, and met with Colley for witness preparation. None of this preparation was duplicative or performed in advance of the May trial dates. Smith Reply Decl. ¶17.

In connection with her work on this court’s judicial review, Smith’s review and correction of the Administrative Record was time consuming. The entire administrative record totaled 2,666 pages and she did not limit her review to the 772 page hearing transcript, but also thoroughly reviewed the approximately 1900 pages certified by the OAH to ensure that nothing important had been omitted. Smith Reply Decl. ¶18a. Smith had to spend a large amount of time reviewing and correcting the hearing transcript because it was missing large portions of testimony. Smith also had disagreements with opposing counsel, McNally, regarding corrections. Smith Reply Decl. ¶¶ 18b-p. Smith performed this review and correction alone and did not have a paralegal or staff to assist her at the time. Smith Reply Decl. ¶19. Smith believes McNally had the assistance of an associate or paralegal based on correspondence with McNally. Smith Reply Decl. ¶19, Exs. 18, 19.

Smith’s preparation of Colley’s opposition brief was time-consuming because her briefs to the Commission did not cite to specific pages or line numbers and she had to add these citations. Smith Reply Decl. ¶21.

In April 2018, approximately a month after receiving the Commission’s decision in Colley’s favor, Smith learned that the District had issued Colley a disciplinary notice over some stale allegations dating to early 2017. Smith Reply Decl. ¶22. Colley denied the allegations and represented that nobody from the District had counseled him or even notified him of the alleged infractions. Smith Reply Decl. ¶22. Both Colley and the teachers’ union were concerned that the District issued bogus discipline in retaliation for Colley’s victory in this case. Smith Reply Decl. ¶22. Smith spent 1.1 hours on April 27, 2018 reviewing the disciplinary letter and advising Colley and the union on this issue.

Smith spent 21.5 hours drafting the reply brief and supporting declaration. Smith Reply Decl. ¶23. Smith spent time reviewing emails and notes from several years ago to refresh her recollection and reviewing the administrative record to provide accurate information about the number of pages, number of exhibits, and number of witnesses she had to review and prepare for in advance of trial. Smith Reply Decl. ¶23. Smith anticipates spending approximately three hours traveling to the court to appear for oral argument on the instant motion. Smith Reply Decl. ¶23. Smith requests an additional 21.5 hours at her rate of $550 for time spend on the reply brief and appearance, a total of $11,825. Smith Reply Decl. ¶23.

D. Analysis

Petitioner Colley seeks an initial attorney’s fee award of $207,080, and an additional $11,825 for the reply and appearance at hearing on the instant motion, for a total of $219,905. Colley’s entitlement to attorney’s fees for the administrative proceeding and the court’s mandamus review under section 44944(f)(2) are undisputed. The District argues that the fees should be reduced because the rates requested and time spent are not reasonable.

1. Reasonableness of Rates

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 616. In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.

Colley requests a rate for Smith of $550 per hour and a rate for Curry of $375 per hour.

  1. Colley’s Failure to Pay Requested Rates

The District argues that Colley fails to provide evidence that he actually paid or is liable to pay the rates requested in the motion. Opp. at 2.

To the extent that the District contends that Colley must pay, or be liable to pay, fees to receive an award, no such showing is necessary. Walent v. Commission on Professional Competence, (2017) 9 Cal.App.5th 745, 749 (section 44944(f)(2) does not require the employee actually pay, or be obligated to pay, the fees at issue). To the extent the District argues that Colley failed to pay his attorney the rates sought, his payment of fees at a lesser rate does not affect his ability to seek market value because the proper hourly rate is the prevailing rate for private attorneys in the community. Glaviano v. Sacramento City Unified School District, (2018) 22 Cal.App.5th 744, 751. Reply at 2. Additionally, Colley’s retainer agreement contemplated that he would seek payment of market rate attorney’s fees if he prevailed. Smith Reply Decl. ¶¶ 1-2. In essence, the retainer agreement permissibly provided for a partial contingent fee.

b. Smith

Colley argues that the rate of $550 per hour for Smith is reasonable, based on rates received by other attorneys providing similar services in recent years. Mot. at 6. Colley provides evidence of rates received by Adams, Perez, and the law firm TST for comparable work in teacher dismissal cases. Mot. at 6.

The District objects to the requested rate, arguing it is not reasonable and should be reduced. Opp. at 3. The District notes that on May 31, 2018, the court found in the related Colley case that Smith’s reasonable rate was $500 per hour. Opp. at 2-3; McNally Decl. Exs. A, B. The District asserts that an increase to $550 an hour only 18 months later is unreasonable. Opp. at 2-3. The District also argues that the rates provided to Attorney Daniel Kolodziej of TSJ and Perez are distinguishable, as both have significantly more experience than Smith. Opp. at 3. The District also notes that, although Adams has less experience than Smith, the case in which he received a higher rate involved a statutory interpretation and was not a teacher termination case. Opp. at 3.

Although the District is correct that the other attorney rates are distinguishable, Smith’s requested rate is not unreasonable. The fact that she received a lower rate 18 months ago is not determinative. As Smith persuasively argues (Reply at 4-5), she has accumulated additional experience in the 18 months since the second fee motion in the related Colley case, and has won the majority of her hearings before the Commission. Smith Decl. ¶25; Smith Reply Decl. ¶¶ 6-7, Exs. 8-13. The requested rate for Smith of $550 per hour is reasonable.

c. Curry

Colley asserts that the rate of $375 per hour for Curry, a third-year associate, is reasonable. He provides evidence that the rate is comparable to those awarded to associates with similar experience in the Los Angeles area. Mot. at 6-7.

The District objects to this rate at unreasonable, providing authority showing that courts have previously found rates of $200 per hour to be reasonable for a fourth-year associate in Los Angeles and $300 per hour to be reasonable for a second-year associate. Opp. at 3-4. The District also notes that Colley’s authority demonstrates that the approved rate for third-year associates is $335 per hour and that the court in May 2018 found $275 per hour to be reasonable for a first-year attorney. Opp. at 4.

The District’s argument is unavailing. Much of the cited authority is a year old or older or does not address a third-year associate. Even if the authority is representative, the requested rate of $375 per hour does not depart so significantly as to be unreasonable. Moreover, in 2019 the court concluded in another Education Code case that a rate of $370 per hour was reasonable for a second-year associate. Adams Decl. Ex. 2, p.42.

The court finds the rate of $375 per hour for Curry to be reasonable.

2. Reasonableness of Hours

The District contends that the hours incurred by Colley’s attorneys are not reasonable. Opp. at 4. The District asserts that Colley’s billing entries include duplicative time, excessive time for reviewing the transcript, and time for matters unrelated to the instant action, and therefore should be reduced.

a. Hearing Preparation

The District notes that Smith spent 25 hours on administrative hearing preparation before it was continued, and then spent another 29 hours preparing for the continued hearing. Opp. at 4. The District argues the additional 29 hours is excessive because Smith must be presumed to have been ready for the May 2017 hearing. Opp. at 4.

Smith argues that, while 14 of the 29 hours spent were duplicative, the 14 duplicative hours were reasonable because the hearing was twice continued through no fault of either party. As a result of the six-month, Smith had to reacquaint herself with the evidence and details of the case. Smith Reply Decl. ¶¶ 16-17; Reply at 6-7. Smith also asserts that the remaining 15 hours were not duplicative; they were spent on work that she did not previously perform. Reply at 8.

Smith’s point regarding the need for review after the continuance is partly well-taken. While she correctly notes that review and some duplicative effort is to be expected, 14 hours of pure review is excessive and the hours will be reduced by half ($3,850). As the remaining time was spent on non-duplicative tasks, those hours will not be reduced. The lodestar is reduced to $203,230.

b. Opposition Brief Preparation

The District asserts that Smith’s time preparing the opposition brief in this mandamus lawsuit should be reduced as duplicative. Opp. at 5. The District notes that Smith billed 48.7 preparing the closing and reply briefs before the Commission and 40.5 hours reviewing the administrative record and preparing the opposition brief for the instant mandamus case. Opp. at 5. The opposition brief in the matter is a condensed version of the closing and reply briefs in the administrative matter, with certain portions identical. Opp. at 5. Because the opposition contains no new legal analysis and only two new citations for the standard of review, the claimed 40.5 hours are unreasonable and should be reduced.

Smith argues that the time was not unreasonable because she had to review the administrative record and add specific citations to the brief that were not present in her briefs to the Commission. Reply at 9-10. Smith also had to streamline details and background facts about the case and replace them with record citations that would allow the court to easily locate further details in the administrative record, if it wished to do so. Reply at 10.

While the court appreciates the necessity of adding proper citations to support the facts, 40.5 hours is excessive. The vast majority of time in writing a good brief lies in conducting legal research and crafting persuasive language. Smith had already done almost all of this before preparing the opposition. Gathering the citations for facts known to be true is a paralegal effort (although that effort should be reviewed by an attorney familiar with the record). This is essentially what Smith spent 40.5 hours doing for the opposition. See McNally Decl. Exs. C, D, E. The court exercises its discretion to reduce Smith’s hours by half to 20.25 ($11,137.50). The lodestar is reduced to $192,092.50.

c. Transcript Review and Correction

The District contends that the 34.5 hours Smith spent reviewing and correcting the transcript from the administrative hearing is unreasonable, noting that the District’s counsel completed the same task in 26.7 hours. Opp. at 5-6.

The fact that the District spent less time on this task is not determinative because the parties’ efforts were not identical. Reply at 8-9; Smith Reply Decl. ¶19. Smith notes that she found the District’s method of organizing revisions to be inefficient and included errors, requiring further review on her part. Smith Reply Decl. ¶18i-p. The time spent by the two attorneys is not dramatically different and Smith provides a reasonable explanation why she spent a greater amount of time on the matter. The hours for transcript review and correction will not be reduced.

d. Matter Outside the Scope

The District notes that Smith spent 1.1 hours on April 27, 2018, reviewing an unsatisfactory performance letter, revising a response, and conducting a teleconference with Colley and his union representative, Dave Aponik. The District argues that this time was unrelated to Colley’s defense in the instant matter because this disciplinary document was never at issue in the instant matter and was not related to Colley’s defense. McNally Decl. ¶16.

Smith argues that the matter was reasonably related, but merely speculates that the District issued the discipline in retaliation for his success in the case. Reply at 11. This is insufficient to demonstrate that the letter was within the scope of the administrative hearing or the mandamus case for purposes of attorney’s fees. The 1.1 hours spent is stricken ($605) and the lodestar is reduced to $191,487.50.

E. Conclusion

The motion for reasonable attorney’s fees is granted. Colley is awarded a lodestar of $191,487.50 and motion fees of $11,825 (21.5 hours at a rate of $550 per hour), for a total of $203,312.50.


[1] Colley failed to provide exhibit tabs with the court’s courtesy copies of his opening brief and reply, and his counsel is admonished to provide exhibit tabs for courtesy copies in all future proceedings.

[2] All further statutory references are to the Education Code unless otherwise stated.