22 Cal. App. 5th 744
Cal. Ct. App. 5th2018Background
- Teacher Jerald Glaviano was placed on unpaid leave and faced accusation/notice of intent to dismiss after intervening in a student confrontation; the Commission on Professional Competence dismissed the accusation and ordered reinstatement with back pay and benefits.
- Glaviano's counsel (Langenkamp) represented him under a modified contingent fee agreement; the California Teachers Association advanced fees and Langenkamp billed CTA at a reduced hourly rate while its usual rates matched community market rates.
- After the Commission's decision, Glaviano petitioned for writ of mandate and sought attorney's fees under Education Code § 44944, calculated by the lodestar method (hours × prevailing community rate), requesting about $156,213.50.
- The trial court found hours reasonable but limited recovery to the reduced hourly rate actually charged (and then denied fees when Glaviano refused to disclose the actual charged rate as privileged).
- The central dispute on appeal was whether "reasonable attorney's fees incurred by the employee" in § 44944 requires awarding only the fees actually charged/paid by the employee or permits lodestar awards based on prevailing market rates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "reasonable attorney's fees incurred by the employee" limits recovery to fees actually charged/paid | Glaviano: phrase allows market-rate lodestar awards (reasonable hours × prevailing community rate); actual charged rate is irrelevant/privileged | District: statute is a reimbursement provision; recovery limited to fees actually charged/paid by the employee | The court held § 44944 does not limit awards to fees actually charged; lodestar (hours × prevailing market rate) applies |
| Whether trial court properly denied fees for refusing to disclose actual charged rate | Glaviano: disclosure privileged/irrelevant because lodestar market rate controls | District: refusal prevents court from determining fees actually incurred and justifies denial | Court rejected trial court's reliance on actual-rate limitation and reversed; remanded for lodestar calculation (disclosure issue rendered moot under lodestar approach) |
Key Cases Cited
- Ketchum v. Moses, 24 Cal.4th 1122 (lodestar method presumptively applies to fee-shifting statutes)
- PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084 ("incurred" fees not limited to precise actual-cost calculations; lodestar appropriate)
- Serrano v. Priest, 20 Cal.3d 25 (approving use of prevailing hourly rates in lodestar)
- Forker v. Board of Trustees, 160 Cal.App.3d 13 (§ 44944 authorizes fees even if employee not personally liable)
- Russell v. Thermalito Union School Dist., 115 Cal.App.3d 880 (same principle regarding "incurred" fees)
- Board of Education v. Commission on Professional Competence (Sunnyvale), 102 Cal.App.3d 555 (legislative purpose: make successful teacher whole regardless of funding source)
- Nightingale v. Hyundai Motor America, 31 Cal.App.4th 99 (distinguished; addressed Civil Code § 1794 and noted contingent-fee exceptions)
- Andre v. City of West Sacramento, 92 Cal.App.4th 532 (distinguished; involved statute using "actually incurred")
- Walent v. Commission on Professional Competence, 9 Cal.App.5th 745 (holds § 44944 does not foreclose lodestar because it lacks the word "actually")
- Fontana Unified School Dist. v. Burman, 45 Cal.3d 208 (not dispositive; does not require limitation to fees actually incurred)
Disposition: trial court order reversed; matter remanded to calculate reasonable fees using the lodestar method; Glaviano awarded costs on appeal.