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,                                      No. B266265

       Petitioner and Respondent,                   (Los Angeles County
                                                    Super. Ct. No. BS149077)
       v.

COMMISSION ON
PROFESSIONAL COMPETENCE
OF THE LAUSD,

       Respondent;

LOS ANGELES UNIFIED SCHOOL
DISTRICT,

       Real Party in Interest
       and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge.
     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.




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      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.




                                 3
 (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




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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.




                                 5
“[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.




                                  6
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.




                                 7
      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 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 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.




                                8
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




                                 9
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.




                                10
Filed 3/13/17
                    CERTIFIED FOR PUBLICATION

  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                          DIVISION SEVEN


 NANCIE WALENT,                     No. B266265

     Petitioner and Respondent,     (Los Angeles County
                                     Super. Ct. No. BS149077)
         v.

 COMMISSION ON                       ORDER CERTIFIYING
 PROFESSIONAL                        OPINION FOR
 COMPETENCE OF THE                   PUBLICATION
 LAUSD,

     Respondent;

 LOS ANGELES UNIFIED
 SCHOOL DISTRICT,

     Real Party in Interest
     and Appellant.


 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,
rule 8.1105(c), and the requests by petitioner and certain non-
parties 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)




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