Opinion

Grossmont Union High School Dist. v. Diego Plus Education Corp.

Court
California Court of Appeal
Filed
Dec 29, 2023
Status
Published
Cited by
0 cases
Authority
More cited than 14.7%

The opinion

Filed 12/29/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GROSSMONT UNION HIGH SCHOOL D080295

DISTRICT,

Plaintiff and Appellant,

(Super. Ct. No. 37-2015-

v. 00033720-CU-WM-CTL)

DIEGO PLUS EDUCATION

CORPORATION et al.,

Defendants and Respondents;

WESTERN EDUCATIONAL

CORPORATION et al.,

Real Parties in Interest and

Respondents;

SAN DIEGO UNIFIED SCHOOL

DISTRICT,

Intervener and Appellant.

APPEAL from an order of the Superior Court of San Diego County,

David J. Danielsen, Judge. (Retired Judge of the San Diego Sup. Ct.

assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Conditionally reversed and remanded with directions.

Orbach Huff & Henderson, Sarah Sutherland and Whitney N. Antrim

for Plaintiff and Appellant.

Blank Rome, Gregory M. Bordo and Christopher J. Petersen for

Defendants, Real Parties in Interest and Respondents.

Higgs Fletcher & Mack, John Morris, Steven M. Brunolli; San Diego

Unified School District, Andra Greene for Intervener and Appellant.

This case, which involves a dispute regarding public charter schools

operating within the geographic boundaries of Grossmont Union High School

District (Grossmont Union) and San Diego Unified School District (SDUSD)

is before us for a second time. Specifically, this appeal concerns the trial

court’s order requiring that Grossmont Union and SDUSD pay attorney fees

pursuant to Code of Civil Procedure section 1021.51 to the charter school

corporate entities who prevailed in the appeal that we decided in 2021.

(Grossmont Union High Sch. Dist. v. Diego Plus Education Corp. (Feb. 19,

2021, D076221) [nonpub. opn.] (Grossmont 2021).) Those charter school

corporate entities are Diego Plus Education Corporation (Diego Plus),

Western Educational Corporation (Western Educational), Lifelong Learning

Administration Corporation (Lifelong Learning) and Educational

Advancement Corporation (EAC) (collectively, “the Charter School Corporate

Entities”). In Grossmont 2021, we reversed the trial court’s orders

(1) enjoining the Charter School Corporate Entities from operating any

charter school within the geographic boundaries of Grossmont Union and

1 Unless otherwise indicated, all further statutory references are to the

Code of Civil Procedure.

2

SDUSD, and (2) ordering the issuance of writs of mandate requiring that

Julian Union Elementary School District (Julian Union) revoke the charter of

Diego Valley East Public Charter School (Diego Valley East) and that Dehesa

Elementary School District (Dehesa) revoke the charter of Diego Hills

Central Public Charter School (Diego Hills Central).

Grossmont Union and SDUSD contend that the trial court erred in

ordering them to pay the attorney fees incurred by the Charter School

Corporate Entities while successfully litigating the issues we addressed in

Grossmont 2021 because the prerequisites for an award under section 1021.5

are not present. Grossmont Union and SDUSD further contend that the trial

court abused its discretion in determining the amount of attorney fees to be

paid.

We conclude that the trial court abused its discretion by failing to

evaluate one issue relevant to the Charter School Corporate Entities’

entitlement to an award of attorney fees, namely, whether “the . . . financial

burden of private enforcement . . . [is] such as to make the award

appropriate.” (§ 1021.5, subd. (b).) Accordingly, a remand is required so that

the trial court may properly exercise its discretion on that issue, applying the

appropriate legal standard. We further determine that, assuming the

Charter School Corporate Entities are entitled to a fee award, the trial court

did not abuse its discretion in determining the amount of the award.

Accordingly, we conditionally reverse the order requiring Grossmont

Union and SDUSD to pay attorney fees pursuant to section 1021.5, with

specific directions that the trial court apply the proper legal standard in

examining whether the “financial burden of private enforcement . . . [is] such

as to make the award appropriate.” (§ 1021.5, subd. (b).) We express no view

on how the trial court should rule on that issue. Our reversal of the order

3

awarding attorney fees shall remain in place unless the trial court

determines, on remand, that an attorney fee award is warranted. In such a

case, the trial court shall reinstate the order awarding attorney fees in the

original amount of $582,927 to the Charter School Corporate Entities, along

with any additional attorney fees reasonably incurred in this appeal or on

remand. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 5

(Whitley) [“[I]t is well established that the attorney fees for work necessary to

recover those fees, such as reasonable effort expended on the present appeal,

are to be included in the fee award.”].)

I.

FACTUAL AND PROCEDURAL BACKGROUND

Much of the relevant factual and procedural background is set forth in

Grossmont 2021.2 (Grossmont 2021, supra, D076221.) In presenting the

background pertinent to this appeal, we will summarize or quote from

selected portions of Grossmont 2021. As we did in Grossmont 2021, we begin

with an overview of the applicable law governing charter schools in

California.

A. The Charter Schools Act

The operation of charter schools in California is governed by the

Charter Schools Act of 1992 (Ed. Code, § 47600 et seq.) (Charter Schools Act).

In 2002, the Charter Schools Act was amended to add stringent geographic

restrictions for the operation of charter schools. (See Ed. Code, §§ 47605,

subd. (a)(1), 47605.1; Stats. 2002, ch. 1058, §§ 6, 7; see also California School

Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298 (California

2 On November 14, 2022, Grossmont Union and SDUSD filed an

unopposed request that we take judicial notice of the appellate record filed in

connection with the appeal that we decided in Grossmont 2021. We grant the

request.

4

School Bds. Assn.) [summarizing the statutory framework applicable to

public charter schools].)

As we explained in Grossmont 2021, during the period when this case

was litigated, the Charter Schools Act set forth several exceptions to the

general rule that a charter school must locate within the geographic

boundaries of the school district that approves its charter. (Grossmont 2021,

supra, D076221.) Specifically, Grossmont 2021 identified two relevant

exceptions. The first exception applied, in general, when a charter school was

unable to locate within the geographic boundaries of the chartering school

district. (Former § 47605.1, subd. (d); Stats. 2016, ch. 186, § 46.) In

Grossmont 2021, we referred to that provision as “the Unable-to-Locate

exception.” (Grossmont 2021, supra, D076221.) Second, the Charter Schools

Act’s geographic limitations “do not apply to a charter school that provides

instruction exclusively in partnership with” the federal Workforce Innovation

and Opportunity Act (29 U.S.C. § 3101 et seq.) or certain other federal and

state programs that are not relevant here. (Former § 47605.1, subd. (g), now

codified as § 47605.1, subd. (f).) In Grossmont 2021, we referred to that

provision as “the WIOA exception.” (Grossmont 2021, supra, D076221.)

B. The Initial Phase of the Underlying Litigation, in Which the Trial Court

Enters Judgment in Favor of Grossmont Union and SDUSD but Stays

the Issuance of Writs of Mandate

In 2015, Grossmont Union filed a lawsuit against several entities,

alleging that Diego Plus violated the Charter Schools Act by operating Diego

Valley Public Charter and Diego Hills Public Charter School within

Grossmont Union’s geographic boundaries. (Grossmont 2021, supra,

D076221.) The charter of Diego Valley Public Charter was approved by

Julian Union, and the charter of Diego Hills Public Charter School was

approved by Dehesa. Grossmont Union sought a writ of mandate and

5

declaratory and injunctive relief against Diego Plus and the school districts

that approved the schools’ charters. (Ibid.)

SDUSD filed a complaint in intervention in the litigation initiated by

Grossmont Union. (Grossmont 2021, supra, D076221.) SDUSD sought a writ

of mandate and declaratory and injunctive relief, alleging that Diego Plus

also operated Diego Hills Public Charter School within the geographic

boundaries of SDUSD in violation of the Charter Schools Act. (Grossmont

2021, supra, D076221.)

While the litigation was pending, Anderson Union High School Dist. v.

Shasta Secondary Home School (2016) 4 Cal.App.5th 262 (Anderson) was

issued, resolving a dispute concerning the Charter Schools Act’s geographic

restrictions. (Grossmont 2021, supra, D076221.) Anderson held that even if

a charter school operates through resource centers rather than through

classroom-based instruction (as was the case with respect to the Diego Plus’s

charter schools at issue in this litigation), the school’s operations must be

restricted to the boundaries of the chartering school district unless the school

falls into one of the statutory exemptions that allow a charter school to

operate outside the geographic boundaries of the chartering school district,

such as the Unable-to-Locate exception (former § 47605.1, subd. (d)) and the

WIOA exception (§ 47605.1, subd. (f)). (Anderson, at pp. 275-277, 283.)

Following the Anderson opinion, the trial court granted the petition for

writ of mandate filed by Grossmont Union, concluding that the charter of

Diego Valley Public Charter must be revoked for failure to comply with the

geographic restrictions in the Charter Schools Act. (Grossmont 2021, supra,

D076221.) Before judgment was entered, the State Board of Education

granted a temporary waiver that allowed Diego Valley Public Charter to

operate until June 30, 2018. (Ibid.) In light of that waiver, on August 2,

6

2017, the trial court entered judgment in favor of Grossmont Union, but

stayed the issuance of the writ of mandate. (Ibid.) The judgment stated that

the writ of mandate compelling Julian Union to revoke the charter of Diego

Valley Public Charter would be stayed during the period of the waiver

granted by the State Board of Education, and that “the writ will be issued

and become effective only if Diego Valley Public Charter continues to operate

resource centers in violation of the Education Code upon the expiration of the

waiver.” (Ibid.)

Because SDUSD’s petition for writ of mandate presented the same

issues as Grossmont Union’s petition, and because the State Board of

Education had also granted a waiver to Diego Hills Public Charter School,

allowing it to operate until June 30, 2018, the parties stipulated that the trial

court would enter judgment in favor of SDUSD with respect to Diego Hills

Public Charter School based on the terms of Grossmont Union’s judgment.

(Grossmont 2021, supra, D076221.) Specifically, the judgment in favor of

SDUSD stated that a writ compelling Dehesa to revoke the charter of Diego

Hills Public Charter School would “be issued and become effective only if

Diego Hills [Public Charter School] continues to operate resource centers in

violation of the Education Code upon the expiration of the waiver.” (Ibid.)

The trial court subsequently awarded attorney fees to Grossmont as a

successful party pursuant to section 1021.5. Among other things, the trial

court stated that an award of attorney fees under section 1021.5 was

warranted because the litigation “implicated the constitutional right to an

education” and its outcome impacted public school students.

7

C. Grossmont Union and SDUSD File Postjudgment Motions Requesting

That the Trial Court Lift the Stay on the Issuance of the Writs of

Mandate and That It Grant Relief Regarding Different Charter Schools

In response to the Anderson opinion, Diego Plus decided to close down

both Diego Valley Public Charter and Diego Hills Public Charter School in

2018. (Grossmont 2021, supra, D076221.) However, Diego Plus implemented

a plan to continue certain charter school operations within the geographic

boundaries of Grossmont Union and SDUSD by creating two new charter

schools under the Unable-to-Locate exception: (1) Diego Valley East, whose

charter was approved by Julian Union; and (2) Diego Hills Central, whose

charter was approved by Dehesa. (Ibid.) Both Diego Valley East and Diego

Hills Central commenced operations and enrolled students. (Ibid.)

In addition, after Diego Valley Public Charter and Diego Hills Public

Charter School closed, the facilities at two of the locations within the

geographic boundaries of Grossmont Union that were formerly used by the

now-closed schools were transitioned to use by another charter school, San

Diego Workforce Innovation High School (SDWIHS). (Grossmont 2021,

supra, D076221.) SDWIHS was operated by one of the Charter School

Corporate Entities—Western Educational—and its charter petition was

originally approved by the Borrego Springs Unified School District (Borrego

Springs Unified), effective July 1, 2016. (Ibid.)

In June 2017, Borrego Springs Unified approved a revision to

SDWIHS’s charter, which added additional locations where the school would

operate resource centers. (Grossmont 2021, supra, D076221.) Within the

geographic boundaries of Grossmont Union, those new locations included

facilities where Diego Valley Public Charter and Diego Hills Public Charter

School had previously operated resource centers. (Ibid.) The revised charter

petition also listed a location within the geographic boundaries of SDUSD.

8

(Ibid.) According to SDWIHS’s revised charter petition, it relied on the

WIOA exception (§ 47605.1, subd. (f)) to operate resource centers outside the

geographic boundaries of Borrego Springs Unified. (Grossmont 2021, supra,

D076221.)

In December 2018, Grossmont Union filed a motion requesting that the

trial court lift its stay on the writ of mandate ordered in the 2017 judgment.

(Grossmont 2021, supra, D076221.) Grossmont Union argued that the

conditions to lift the stay had been satisfied, “as the [State Board of

Education] waivers have expired and Julian Union and Diego Plus continue

to operate out-of-district charter schools in violation of the [Charter Schools

Act].” (Ibid.) Grossmont Union argued that the stay should be lifted and a

writ of mandate should issue because “[d]efendants feigned compliance with

the Court’s decision and the [Charter Schools Act] by incorporating the same

students and the same illegal facilities under two ‘new’ charter schools

operated and overseen by the same persons while claiming to qualify for the

same statutory exceptions already rejected by this Court—perpetuating the

same illegal program.” (Ibid.) Further, Grossmont Union contended that

Diego Valley East was operating in violation of the Charter Schools Act

because it did not qualify for the Unable-to-Locate exception. (Grossmont

2021, supra, D076221.)

Grossmont Union’s motion also challenged SDWIHS’s newly added

resource centers in Lakeside and Lemon Grove, operated by Western

Educational. (Grossmont 2021, supra, D076221.) Grossmont Union argued

that it was entitled to a “permanent injunction prohibiting . . . SDWIHS from

operating within [Grossmont Union’s] boundaries” because it allegedly did

not qualify for the WIOA exception, and because “[b]y sweeping the same

9

illegal facilities and WIOA ineligible students into a new charter, Diego Plus

merely exchanged one illegal charter school for another.” (Ibid.)

Although neither Western Educational nor Borrego Springs Unified

(the school district that chartered SDWIHS) were parties to the 2017

judgment, Grossmont Union argued that it was still entitled to an injunction

in the context of its lawsuit against Diego Plus and Julian Union because

“SDWIHS is controlled by the same people and organization” that controlled

Diego Valley Public Charter and Diego Hills Public Charter School.

(Grossmont 2021, supra, D076221.) To support this allegation, Grossmont

Union explained that “Diego Plus is one branch of a large group of related

corporations operating charter schools throughout the State and all

controlled by the Lifelong Learning Administration Corporation . . . under the

Learn4Life trade name,” and that Western Educational was part of that

group. (Ibid.) According to Grossmont Union, “Learn4Life/Lifelong Learning

have used their charter schools as an elaborate shell game, shifting students

from schools subject to lawsuits . . . to other Learn4Life schools to avoid

compliance with the [Charter Schools Act’s] location requirements.” (Ibid.)

D. The Trial Court Grants the Postjudgment Motions

On May 31, June 3, and June 7, 2019, the trial court held a hearing on

Grossmont Union’s postjudgment motion. (Grossmont 2021, supra,

D076221.) The hearing included the presentation of witness testimony over

the course of two days. (Ibid.) The testimony focused on Grossmont Union’s

contention that Western Educational (which operated SDWIHS) and Diego

Plus were alter egos of each other, and that both of those corporations

belonged to a commonly controlled group composed of the Charter School

Corporate Entities, which also included Lifelong Learning and EAC. (Ibid.)

10

In a June 28, 2019 written order following the hearing, the trial court

granted Grossmont’s motion. (Grossmont 2021, supra, D076221.) First

addressing the alter ego allegations, the trial court found “that the evidence

submitted by [Grossmont Union] more than sufficiently establishes that the

previously unnamed Respondents (EAC, [Lifelong Learning], [Western

Educational], and SDWIHS) are the alter egos of Diego Plus and that they

fully participated in and controlled the underlying litigation against Diego

Plus.” (Ibid.) The trial court stated, “Learn4Life is more than a trademark:

It is, in fact, a single entity operating all of the charter schools at issue in

these proceedings.” (Ibid.)

Next, the trial court addressed whether the issuance of a writ of

mandate as to Diego Valley East was warranted. (Grossmont 2021, supra,

D076221.) The trial court ruled that Diego Valley East was not a new

charter school, but rather an “old charter school” with a “different name[ ].”

(Ibid.) It explained that because Diego Valley Public Charter could not have

availed itself of the Unable-to-Locate exception, Diego Valley East also could

not do so and was therefore operating in violation of the Charter Schools Act

and the court’s 2017 judgment. (Grossmont 2021, supra, D076221.)

Finally, the trial court addressed whether relief was warranted as to

SDWIHS. (Grossmont 2021, supra, D076221.) The trial court determined

that Western Educational “dba SDWIHS” was not a new charter school but

was the alter ego of Diego Plus. (Ibid.) The trial court stated that there was

no evidence that SDWIHS’s program was different from Diego Valley Public

Charter’s former program or that it otherwise qualified for an exception to

the Charter Schools Act’s geographic restrictions. (Ibid.) Accordingly, the

trial court concluded that SDWIHS was operating in violation of the Charter

11

Schools Act and the court’s 2017 judgment. (Grossmont 2021, supra,

D076221.)

The trial court ordered the following remedy:

“(1) The stay of this court’s 2017 statement of decision,

writ, and judgment is hereby lifted.

“(2) This court hereby amends its prior writ of mandate to

direct Julian [Union] to immediately revoke the charter of

Diego Valley East. . . . The court further directs the Clerk

of the Court to issue under seal of this court a writ of

mandate in the form attached hereto as Exhibit A.

“(3) The Court hereby issues a permanent injunction

against Diego Plus precluding Diego Plus from operating

charter school facilities within [Grossmont Union’s] school

district boundaries, either directly, or indirectly through

any of Diego Plus’s related Learn4Life charter school

entities that presently exist or may be formed in the future

for the purpose of operating charter schools, including but

not limited to EAC, [Lifelong Learning], [Western

Educational] and SDWIHS. This injunction shall remain in

effect until further order from this Court.” (Grossmont

2021, supra, D076221.)

On June 28, 2019, the clerk of the court issued a writ of mandate,

commanding Julian Union to immediately revoke the charter of Diego Valley

East. (Grossmont 2021, supra, D076221.)

SDUSD filed a motion seeking similar relief, which would prevent

Diego Hills Central and SDWIHS from operating within the geographic

boundaries of SDUSD. (Grossmont 2021, supra, D076221.) Specifically,

SDUSD sought to lift the stay of the 2017 judgment and to obtain (1) a writ of

mandate directing Dehesa to revoke the charter of Diego Hills Central; and

(2) an order permanently enjoining the Charter School Corporate Entities

from operating charter school facilities, including SDWIHS, within the

12

geographic boundaries of SDUSD. (Ibid.) At the hearing on the motion, the

trial court expressed the view that the Unable-to-Locate exception was

“legally unavailable” to Diego Hills Central because it was only “pretending”

to be a new school, but in fact was the same school as Diego Hills Public

Charter School, which indisputably did not meet the requirements for the

exception. (Ibid.)

On August 5, 2019, the trial court issued an order granting SDUSD’s

motion. (Grossmont 2021, supra, D076221.) The order stated,

“(1) The Court hereby lifts any remaining stay on the

issuance of its writ of mandate . . . .

“(2) The Court amends its previous order and hereby issues

a writ of mandate to direct [Dehesa] to revoke the charter

of [Diego Hills Central] and further issues a permanent

injunction to preclude Diego Plus from operating any

charter school facilities within [SDUSD’s] boundaries,

either directly or through any of Diego Plus’ related

Learn4Life charter school entities, including but not

limited to [Western Educational] and [SDWIHS]. This

injunction shall remain in effect until further order from

this Court.” (Ibid.)

After Grossmont Union and SDUSD prevailed on their postjudgment

motions, the trial court awarded attorney fees to them pursuant to section

1021.5.3

E. In Grossmont 2021, the Charter School Corporate Entities Prevail on

Appeal in Defeating the Postjudgment Motions

In Grossmont 2021, we reversed the trial court’s orders granting

Grossmont Union’s and SDUSD’s postjudgment motions, and we ordered the

trial court to direct the clerk of the court to withdraw any writ of mandate

3 The trial court subsequently vacated those awards after Grossmont

2021 reversed the orders granting the postjudgment motions.

13

that issued as a result of its June 28, 2019 and August 5, 2019 orders.

(Grossmont 2021, supra, D076221.)

With respect to the lifting of the 2017 stays, we observed that the stays

could be lifted only if Diego Valley Public Charter and Diego Hills Public

Charter School continued to operate resource centers in violation of the

Charter Schools Act. However, as we explained, those schools were no longer

in operation, and there were important differences between the newly

chartered schools and the now-closed schools. (Grossmont 2021, supra,

D076221.) We stated that “the new schools are distinct entities from the

now-closed schools because they came into existence due to different charters,

and because there are undisputed differences in their operations.” (Ibid.)

Moreover, we noted that even if the new schools were treated as

interchangeable with the now-closed schools, the new schools did not operate

in violation of the Charter Schools Act because they fell under the Unable-to-

Locate exception. (Grossmont 2021, supra, D076221.) Specifically, “[t]he

Unable-to-Locate exception has specific requirements that were set forth in

the Charter Schools Act. (Former § 47605.1, subd. (d).) All of the evidence

indicates that Diego Valley East and Diego Hills Central met those

requirements.” (Ibid.) Among other things, we explained that “nothing in

the Charter Schools Act prohibits a charter school operator from closing a

school and then opening a new school, at the same location, under the

procedures outlined in the statute for the Unable-to-Locate exception.” (Ibid.)

With respect to the permanent injunctions preventing the Charter

School Corporate Entities from operating any charter school facility within

the boundaries of Grossmont Union or SDUSD (including SDWIHS), we

reversed them because (1) the stay should not have been lifted, preventing

the issuance of any additional relief; and (2) in any event, the injunctions

14

“were not necessary to enforce the writs of mandate, and they added

additional substantive relief not ordered in the 2017 judgments.” (Grossmont

2021, supra, D076221.)

F. The Trial Court Awards Attorney Fees to the Charter School Corporate

Entities Pursuant to Section 1021.5

After remand, the Charter School Corporate Entities filed a motion in

the trial court seeking an award, pursuant to section 1021.5, of the attorney

fees they incurred, both in the trial court and on appeal, in opposing

Grossmont Union’s and SDUSD’s postjudgment motions. In opposition,

Grossmont Union and SDUSD argued that the requirements for a fee award

under section 1021.5 were not met, and that the fees sought by the Charter

School Corporate Entities were not in a reasonable amount.

The trial court granted the motion, concluding in a minute order that

the requirements for an award under section 1021.5 were present. Among

other things, the trial court determined that “[c]ompliance with the [Charter

Schools Act] is an important right affecting countless students and school

districts, and the harm prevented to [the Charter School Corporate Entities]

resulted in a significant benefit to these students who were not prevented

from attending the charter schools.” After receiving additional briefing

regarding the reasonableness of the $718,232.50 in fees sought by the

Charter School Corporate Entities, the trial court ordered Grossmont Union

and SDUSD to pay $582,927 in fees to the Charter School Corporate Entities.

Grossmont Union and SDUSD appeal from the trial court’s award of

attorney fees to the Charter School Corporate Entities. They contend both

that (1) the requirements for a fee award under section 1021.5 are not

present, and (2) the amount of the fees awarded by the trial court was

unreasonably high.

15

II.

DISCUSSION

A. The Challenge to the Trial Court’s Decision That an Award of Fees Was

Warranted Under Section 1021.5

We first consider whether, as Grossmont Union and SDUSD contend,

the trial court erred in ruling that the Charter School Corporate Entities are

entitled to attorney fees pursuant to section 1021.5.

1. Applicable Legal Standards

“As a general rule, parties in litigation pay their own attorney’s fees.

[Citation.] Section 1021.5 is an exception to that rule. [Citation.] Derived

from the judicially crafted ‘private attorney general doctrine’ [citation],

section 1021.5 is aimed at encouraging litigants to pursue meritorious public

interest litigation vindicating important rights and benefitting a broad swath

of citizens, and it achieves this aim by compensating successful litigants with

an award of attorney’s fees.” (La Mirada Avenue Neighborhood Assn. of

Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1155-1156.)

Section 1021.5 provides in relevant part: “Upon motion, a court may

award attorneys’ fees to a successful party against one or more opposing

parties in any action which has resulted in the enforcement of an important

right affecting the public interest if: (a) a significant benefit, whether

pecuniary or nonpecuniary, has been conferred on the general public or a

large class of persons, (b) the necessity and financial burden of private

enforcement, or of enforcement by one public entity against another public

entity, are such as to make the award appropriate, and (c) such fees should

not in the interest of justice be paid out of the recovery, if any.”4 (§ 1021.5.)

4 “The third factor of . . . section 1021.5 does not apply where, as here,

[an] action produces no monetary recovery.” (Weiss v. City of Los Angeles

16

“The threshold requirement for a fee award under section 1021.5 is

proof that the fee applicant is a ‘successful party.’ ” (Protect Our Water v.

County of Merced (2005) 130 Cal.App.4th 488, 493 (Protect Our Water)

[quoting § 1021.5].) “ ‘The term “successful party,” as ordinarily understood,

means the party to litigation that achieves its objectives.’ [Citation.] The

term is not limited to plaintiffs, petitioners, or real parties in interest aligned

with plaintiffs or petitioners. [Citations.] Rather, the term is synonymous

with ‘prevailing party’ and theoretically may apply to any party to the

litigation—whether plaintiff, petitioner, defendant, respondent, or real party

in interest.” (Save Our Heritage Organisation v. City of San Diego (2017)

11 Cal.App.5th 154, 160 (Save Our Heritage).)

Once that threshold requirement is met, “ ‘[i]n determining whether to

award attorney fees under section 1021.5 to the “successful party,” we apply a

three-prong test inquiring whether (1) the litigation resulted in the

enforcement of an important right affecting the public interest, (2) a

(2016) 2 Cal.App.5th 194, 218; see also Woodland Hills Residents Assn., Inc.

v. City Council (1979) 23 Cal.3d 917, 935 (Woodland Hills) [“Inasmuch as

plaintiffs’ action has produced no monetary recovery, factor ‘(c)’ of section

1021.5 is not applicable.”].) In their appellate briefing, Grossmont Union and

SDUSD contend that “[t]he final element one must establish to prove

entitlement to an award of private attorney general fees is that, in the

interests of justice, the fees are more properly borne by the public than by the

successful litigant.” To support this argument, they cite generally to section

1021.5 (but do not quote it), and to case law that discusses factor “(c)” of that

statute. (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 157;

Rider v. County of San Diego (1992) 11 Cal.App.4th 1410, 1422.) We

therefore understand Grossmont Union and SDUSD to be arguing that an

“interest of justice” analysis should be undertaken based on factor “(c)” of

section 1021.5, which looks to whether “such fees should not in the interest of

justice be paid out of the recovery, if any.” (§ 1021.5.) However, because that

portion of section 1021.5 does not apply where, as here, there was no

monetary recovery (Weiss, at p. 218), the argument is misplaced.

17

significant benefit has been conferred on the general public or a large class of

individuals, and (3) the necessity and financial burden of private enforcement

renders the award appropriate.’ ” (Save Our Heritage, supra, 11 Cal.App.5th

at p. 159; see also Serrano v. Stefan Merli Plastering Co., Inc. (2011)

52 Cal.4th 1018, 1026 [setting forth the three-pronged inquiry].)

“ ‘Although the statute is phrased in permissive terms, a court’s

discretion to deny attorney’s fees to a party that meets the statutory

requirements of section 1021.5 is limited. [Citation.] Unless special

circumstances would render an award of section 1021.5 fees unjust, fees must

be awarded under the statute where the statutory criteria are met.’ ”

(Burgess v. Coronado Unified School Dist. (2020) 59 Cal.App.5th 1, 7; see also

Save Our Heritage, supra, 11 Cal.App.5th at pp. 160-161 [discussing the

circumstance in which a fee award would be unjust because “ ‘the party from

whom fees are sought “is not the type of party on whom private attorney

general fees were intended to be imposed” ’ ”].)

2. Standard of Review

The parties disagree regarding the standard of review that we should

apply when reviewing the trial court’s ruling that an award of attorney fees is

warranted pursuant to section 1021.5. “Generally speaking, a trial court’s

decision whether to award attorney fees under section 1021.5 is reviewed for

abuse of discretion. [Citation.] However, ‘ “ ‘de novo review of such a trial

court order is warranted where the determination of whether the criteria for

an award of attorney fees and costs in this context have been satisfied

amounts to statutory construction and a question of law.’ ” ’ ” (City of

18

Oakland v. Oakland Police & Fire Retirement System (2018) 29 Cal.App.5th

688, 698 (City of Oakland).)5

Grossmont Union and SDUSD do not contend that any issue of

statutory construction or any other question of law is involved in their appeal

of the fee award. However, they argue that we should abandon the generally

applicable abuse of discretion standard of review in favor of a de novo

standard because Grossmont 2021 serves as the basis for the Charter School

Corporate Entities’ claim that they are entitled to an award of fees.

Specifically, Grossmont Union and SDUSD rely on a line of cases

observing that when a previous appellate opinion serves as the basis for a

party’s contention that it is a successful party entitled to an award of fees

under section 1021.5, the appellate court is often in as good a position as the

trial court to determine whether the requirements of section 1021.5 are met.

(See, e.g., Environmental Protection Information Center v. Department of

Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 223, 228-230

5 When an abuse of discretion standard is appropriate, “ ‘ “[t]he pertinent

question is whether the grounds given by the court . . . are consistent with

the substantive law of . . . section 1021.5 and, if so, whether their application

to the facts of this case is within the range of discretion conferred upon the

trial courts under section 1021.5, read in light of the purposes and policy of

the statute.” ’ ” (City of Oakland, supra, 29 Cal.App.5th at p. 698.)

“ ‘[D]iscretion may not be exercised whimsically and, accordingly, reversal is

appropriate “where no reasonable basis for the action is shown.” ’ ” (Baggett

v. Gates (1982) 32 Cal.3d 128, 143 (Baggett).) Further, “[a]n abuse of

discretion occurs when the exercise of discretion is predicated upon factual

findings that are not supported by substantial evidence.” (Indio Police

Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 541.)

19

(Environmental Protection Information Center).)6 Indeed, our colleagues in

the Second District have gone so far as to hold that when an appellate court’s

previous published opinion is the basis for a fee award under section 1021.5,

the appellate court should apply a de novo standard of review on an appeal

from the fee award. (Wilson v. San Luis Obispo County Democratic Central

Com. (2011) 192 Cal.App.4th 918, 924 (Wilson) [“where, as here, our

published opinion provides the basis upon which attorney fees are sought, de

novo or independent review is appropriate because we are in at least as good

a position as the trial court to determine whether section 1021.5 fees should

be awarded”]; Samantha C. v. State Dept. of Developmental Services (2012)

207 Cal.App.4th 71, 78 [quoting and following Wilson in applying a de novo

standard of review]; Mounger v. Gates (1987) 193 Cal.App.3d 1248, 1258 [“the

appellate court does not have to defer totally to the trial court’s resolution of

the four elements of the standard in section 1021.5 when the legal work

resulted in a published appellate court opinion.”].) However, as we will

6 Grossmont Union and SDUSD place great reliance on Environmental

Protection Information Center because it observes that an appellate court

that has issued an opinion on the merits may be better positioned than the

trial court to determine whether “ ‘its own opinion is “important” and

“protects the public interest” and whether the existence of that opinion

confers a “significant benefit on the general public or a large class of

persons.” ’ ” (Environmental Protection Information Center, supra,

190 Cal.App.4th at p. 229.) However, that observation was not made in

discussing the relevant standard of review. Instead, the appellate court

made the comments in explaining that, prior to remanding an appeal of an

attorney fee award to the trial court to reconsider the award in light of an

intervening California Supreme Court opinion on the underlying merits, it

would decide, in the first instance, certain issues that would be relevant, on

remand, to the trial court’s renewed examination of the fee award. (Id. at

pp. 223, 228-230.)

20

explain, we are not persuaded by the Second District’s case law that de novo

review is appropriate here.

For one thing, the rule of de novo review described by the Second

District applies to cases in which there has been a previous published

opinion. (See, e.g., Wilson, supra, 192 Cal.App.4th at p. 924 [describing a

situation where a “published opinion provides the basis upon which attorney

fees are sought”].) Grossmont 2021 was not published.

More importantly, however, even if Grossmont 2021 had been

published, we would not apply de novo review because our Supreme Court

has made clear that awarding attorney fees involves the application of

“ ‘traditional equitable discretion’ ” by the trial court, followed by only limited

appellate review. (Baggett, supra, 32 Cal.3d at p. 142). Specifically, as our

Supreme Court has explained, “[t]he decision as to whether an award of

attorney fees is warranted rests initially with the trial court. [Citation.]

‘[U]tilizing its traditional equitable discretion,’ that court ‘must realistically

assess the litigation and determine, from a practical perspective’ [citation]

whether or not the statutory criteria have been met.” (Ibid.) In that specific

context, where the “trial court has discretionary power to decide an issue, its

decision will be reversed only if there has been a prejudicial abuse of

discretion.” (Id. at pp. 142-143, italics added.) Accordingly, when the trial

court makes a decision to award attorney fees using its traditional equitable

discretion, it is not our role to reweigh the equities. Our task on appeal is

limited to conducting a review for abuse of discretion.

Moreover, it would create needless judicial inefficiency if we were to

apply de novo review in any case where the trial court awards attorney fees

pursuant to section 1021.5 after an appellate court opinion resolves the

litigation. Our Supreme Court has held that an appellate court may choose,

21

in the first instance, to award attorney fees pursuant to section 1021.5 as part

of an opinion in favor of the party seeking the fee award. (Laurel Heights

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d

376, 427.) But the appellate court’s role in awarding attorney fees in the first

instance, if it chooses to do so, is different from the role the appellate court

undertakes in reviewing a trial court’s exercise of its discretion to award fees.

The rule set forth in Laurel Heights works in the interest of judicial

efficiency, allowing an appellate court—in an appropriate case—to award

attorney fees under section 1021.5 after a successful appeal, without ever

involving the trial court. The de novo review advocated by Grossmont Union

and SDUSD, in contrast, would work against the interest of judicial efficiency

because any losing party in a motion for attorney fees in the trial court would

have an incentive to appeal to obtain a fresh look at the motion by the

appellate court. As a result, both the trial court and the appellate court

would be required to engage in the duplicative effort of undertaking a full-

scale equitable inquiry into the advisability of awarding attorney fees

pursuant to section 1021.5.

We recognize that, in certain circumstances, the fact that we issued the

appellate opinion that resolved the litigation will give us a better

understanding of whether the trial court abused its discretion. This is

especially true with respect to certain of the required elements for an award

under section 1021.5. Specifically, as case law has observed, an appellate

court that has previously issued an opinion in the matter may be in an

especially favorable position to evaluate whether the fee applicant is a

“successful party” (Protect Our Water, supra, 130 Cal.App.4th at p. 494), or

whether the “earlier opinion vindicated an important right affecting the

public interest and yielded a significant benefit.” (Schmier v. Supreme Court

22

(2002) 96 Cal.App.4th 873, 880; see also Bouvia v. County of Los Angeles

(1987) 195 Cal.App.3d 1075, 1083, fn. 7; City of Oakland, supra,

29 Cal.App.5th at p. 709; Robles v. Employment Development Dept. (2019)

38 Cal.App.5th 191, 203 (Robles); McCormick v. Public Employees’ Retirement

System (2023) 90 Cal.App.5th 996, 1005.) One opinion suggests that on these

issues, “when an appellate court spots a questionable estimate or a faulty

calculation it need not shrink from the task of correcting this element of the

equation and reassessing whether that change alters the ultimate result.”

(Los Angeles Police Protective League v. City of Los Angeles (1986)

188 Cal.App.3d 1, 11.) Nevertheless, the ultimate standard of review must

remain an abuse of discretion standard. The issue before us is whether the

trial court had “no reasonable basis” for its ruling (Baggett, supra, 32 Cal.3d

at p. 143), not whether we would have reached the same decision as the trial

court in the first instance.

3. The Charter School Corporate Entities Were Successful Parties

Turning to the substantive requirements for an award of attorney fees

pursuant to section 1021.5, we first examine the threshold issue of whether

the trial court abused its discretion in determining that the Charter School

Corporate Entities were successful parties in opposing the postjudgment

motions brought by Grossmont Union and SDUSD. (Protect Our Water,

supra, 130 Cal.App.4th at p. 493.)7 “The ‘successful party’ under section

7 Although Grossmont Union and SDUSD argued to the trial court that

the Charter School Corporate Entities were not successful parties, they

appear to have conceded the issue in their opening appellate brief.

Specifically, the opening appellate brief states that “[the Charter School

Corporate Entities] were ‘successful parties’ to the extent this Court reversed

the trial court’s order enforcing its prior writ against them.” We note that the

introduction to Grossmont Union and SDUSD’s appellate reply brief seems to

23

1021.5 is ‘the party to litigation that achieves its objectives.’ ” (Friends of

Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1108.) “When a

court considers whether a party was successful in the litigation, the critical

inquiry is the impact of the action, not the way in which the action was

resolved.” (Vosburg v. County of Fresno (2020) 54 Cal.App.5th 439, 463.) And

when the party seeking attorney fees is a successful defendant, “the

evaluation of success is based on a pragmatic assessment of the harm

prevented . . . .” (Ibid.)

Here, the trial court reasonably concluded that the Charter School

Corporate Entities were successful parties, as they ultimately prevailed in

defending against Grossmont Union’s and SDUSD’s postjudgment motions.

By doing so, they avoided a court order requiring the closure of Diego Valley

East, Diego Hills Central and some of SDWIHS’s locations, and they defeated

an injunction that would have permanently prevented them from operating

any future charter school facility with the geographic boundaries of

Grossmont Union and SDUSD.

retract that concession, stating that “the trial court erred as a matter of law

in deeming [the Charter School Corporate Entities] to be the ‘prevailing

parties’ under . . . [s]ection 1021.5 . . . .” However, the remainder of the reply

brief does not develop that argument. The argument that the Charter School

Corporate Entities were not successful parties is forfeited because it is not

developed and because it was not raised in the opening appellate brief.

(People v. Rangel (2016) 62 Cal.4th 1192, 1218 (Rangel) [arguments were

forfeited when raised for the first time in a reply brief]; Delta Stewardship

Council Cases (2020) 48 Cal.App.5th 1014, 1075 [a point is treated as

forfeited when a party “fails to support it with reasoned argument and

citations to authority”].) Nevertheless, as it is a threshold requirement for

the applicability of section 1021.5, we will exercise our discretion to address

whether the Charter School Corporate Entities were successful parties.

24

4. The Litigation Resulted in an Important Right Affecting the

Public Interest

Having established the threshold requirement that the Charter School

Corporate Entities were successful parties, the first part of the three-prong

inquiry is whether “the litigation resulted in the enforcement of an important

right affecting the public interest.” (Save Our Heritage, supra,

11 Cal.App.5th at p. 159.) The “important public right” can have any legal

source, “constitutional, statutory or other.” (Woodland Hills, supra,

23 Cal.3d at p. 925.) “When determining whether a litigant has vindicated an

important right affecting the public interest, ‘[t]he “judiciary [must] exercise

judgment in attempting to ascertain the ‘strength’ or ‘societal importance’ of

the right involved.” [Citation.] “The strength or societal importance of a

particular right generally is determined by realistically assessing the

significance of that right in terms of its relationship to the achievement of

fundamental legislative goals.” ’ ” (City of Oakland, supra, 29 Cal.App.5th at

p. 710.) “Regarding the nature of the public right, it must be important and

cannot involve trivial or peripheral public policies.” (Ryan v. California

Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044.)

Here, the important public right at issue derives from the Charter

Schools Act. “California’s Constitution guarantees a free public education,

established through ‘a system of common schools.’ (Cal. Const., art. IX, § 5.)

Charter schools are part of this public system of common schools (Ed. Code,

§§ 47601, 47615, subd. (a)(1)), but are ‘strictly creatures of statute.’ ”

(Sweetwater Union High School Dist. v. Julian Union Elementary School

Dist. (2019) 36 Cal.App.5th 970, 989 (Sweetwater Union).) “The [Charter

Schools Act] was adopted to widen the range of educational choices available

within the public school system.” (Wells v. One2One Learning Foundation

(2006) 39 Cal.4th 1164, 1202.) “The Legislature intended its authorization of

25

charter schools to improve public education by promoting innovation, choice,

accountability, and competition.” (Today’s Fresh Start, Inc. v. Los Angeles

County Office of Education (2013) 57 Cal.4th 197, 205-206 (Today’s Fresh

Start).) “Though independently operated, charter schools fiscally are part of

the public school system; they are eligible equally with other public schools

for a share of state and local education funding.” (Id. at 206.) It is therefore

no surprise that case law holds “[t]he chartering of a school and the charter

school’s compliance with the law, the regulations, and the conditions imposed

on its charter can be matters of serious concern to the public and to our

public school system.” (California School Bds. Assn., supra, 186 Cal.App.4th

at p. 1326 [allowing an action in mandamus to compel revocation of a

charter].)

In Sweetwater Union, we directly addressed whether an action

concerning compliance with the Charter Schools Act’s geographic restrictions

“enforced an important right affecting the public interest” to support an

award of attorney fees under section 1021.5. (Sweetwater Union, supra,

36 Cal.App.5th at p. 990.) We concluded that the trial court did not abuse its

discretion in awarding fees to a school district that successfully challenged a

charter school’s compliance with those restrictions. We explained that

“requiring compliance with the geographic boundary requirements of the

[Charter Schools Act] enforced an important right affecting the public

interest.” (Ibid.)

As in Sweetwater Union, supra, 36 Cal.App.5th 970, this action

(including the postjudgment motions brought by Grossmont Union and

SDUSD) involved the question of compliance with the geographic restrictions

in the Charter Schools Act. Specifically, in their postjudgment motions,

Grossmont Union and SDUSD sought to revoke the charter of Diego Valley

26

East and Diego Hills Central, and to enjoin the operation of some of

SDWIHS’s locations, based on the contention that they were operating in

violation of those geographic restrictions. In Grossmont 2021, we rejected

that contention, ruling that we saw no indication that those schools were

operating in violation of the Charter Schools Act. (Grossmont 2021, supra,

D076221.) Thus, in successfully defending against Grossmont Union’s and

SDUSD’s postjudgment motions, the Charter School Corporate Entities

advanced the important right of charter schools to continue operating within

the legal strictures of the Charter Schools Act and to continue providing

educational services to the public. Although the award of fees in Sweetwater

Union was based on a litigation victory for the challenging school district,

whereas the award of fees in the instant action was based on a litigation

victory in favor of the charter schools, the distinction is not significant to our

analysis. Whether based on a finding of compliance or a finding of

noncompliance with the geographic restrictions in the Charter Schools Act,

both litigation outcomes involved an important right affecting the public

interest because they impacted the right of specific charter schools to

continue providing educational services to students as part of California’s

public education system.

Grossmont Union and SDUSD seize upon the statement in the

introductory section of Grossmont 2021 that the issue we would address was

“procedural and limited” even though it “play[ed] out in the context of an

extended and complex policy dispute about the proper role of charter schools

in the fabric of California’s public education system.” (Grossmont 2021,

supra, D076221.) Grossmont Union and SDUSD contend that if Grossmont

2021 was decided on limited procedural grounds and did not concern the

interpretation of the Charter Schools Act, the Charter School Corporate

27

Entities did not enforce any important right affecting the public interest

when they prevailed on appeal. We reject the argument.

Grossmont Union and SDUSD read too much into our statement. In

Grossmont 2021, we emphasized the limited and procedural nature of the

issues presented to emphasize that we would not be opining on any

contentious public policy issues surrounding charter schools, which is a

subject for the Legislature in the first instance. However, it was not our

intention to signal that the resolution of the dispute before us was lacking in

public significance or that we would not be addressing the application of the

Charter Schools Act. Indeed, as we have explained, Grossmont 2021 did

address whether the challenged charter schools were operating in violation of

the Charter Schools Act and thus did address substantive issues that were

not merely procedural.

Moreover, even were it accurate to describe the Charter School

Corporate Entities as having prevailed solely on limited procedural grounds

in Grossmont 2021, that fact would not be dispositive of whether an

important right affecting the public interest was at issue. Our Supreme

Court has rejected the distinction between a procedural victory and a

substantive victory in the context of an attorney fee award. As we explained

in Sweetwater Union, “[i]n Woodland Hills, the plaintiffs prevailed on a

procedural rather than substantive basis and sought attorney fees under

section 1021.5. (Woodland Hills, supra, 23 Cal.3d at p. 937.) The Supreme

Court rejected defendant’s contention that complying with a technical

requirement ‘does not rise to the level of an “important right” for purposes of

section 1021.5.’ (Ibid.) . . . The court explained that ‘it would be both unfair

and contrary to the legislative purpose of section 1021.5 to deprive a plaintiff

of attorney fees simply because the court decides the case in plaintiff’s favor

28

on a “simpler” or less “important” theory.’ ([Id. at p. 938].) Rather, when a

plaintiff prevails on a preliminary issue, a ‘trial court, utilizing its traditional

equitable discretion (now codified in § 1021.5), must realistically assess the

litigation and determine, from a practical perspective, whether or not the

action served to vindicate an important right so as to justify an attorney fee

award.’ (Ibid.)” (Sweetwater Union, supra, 36 Cal.App.5th at p. 988.) Here,

from a practical perspective, the trial court could reasonably conclude that by

prevailing against Grossmont Union’s and SDUSD’s attempts to force Diego

Valley East, Diego Hills Central, and certain locations of SDWIHS to cease

operations, the Charter School Corporate Entities enforced important public

rights concerning the system of public education that the Legislature

conferred upon the residents of California when it enacted the Charter

Schools Act.8 It would be reasonable for the trial court to conclude that by

vindicating the right of Diego Valley East, Diego Hills Central, and SDWIHS

to continue to operate, the Charter School Corporate Entities enforced the

Legislature’s intended policy of using charter schools “to improve public

education by promoting innovation, choice, accountability, and competition.”

(Today’s Fresh Start, supra, 57 Cal.4th at pp. 205-206.) In short, the victory

of the Charter School Corporate Entities was a victory for the right of the

8 Grossmont Union and SDUSD contend that the victory by the Charter

School Corporate Entities in preventing the closure of Diego Valley East,

Diego Hills Central, and the relevant SDWIHS locations will be short lived

because “when the time is right” they will bring “a new round of litigation

that joins the same issues.” The record contains no evidence of any such

litigation. On the contrary, the only evidence before us is that, as a result of

Grossmont 2021, Diego Valley East, Diego Hills Central, and the relevant

SDWIHS locations were allowed to continue to operate, and the Charter

School Corporate Entities were not enjoined from operating future charter

school facilities within the geographic boundaries of Grossmont Union and

SDUSD.

29

schools at issue to operate where they are legally permitted to do so, and for

the members of the public served by those schools to continue to have the

school choice intended by the Legislature in enacting the Charter Schools

Act.

5. A Significant Benefit Has Been Conferred on the General Public

or a Large Class of Individuals

The second prong of the analysis is whether “ ‘a significant benefit has

been conferred on the general public or a large class of individuals.’ ” (Save

Our Heritage, supra, 11 Cal.App.5th at p. 159.) “ ‘ “[T]he ‘significant benefit’

that will justify an attorney fee award need not represent a ‘tangible’ asset or

a ‘concrete’ gain but, in some cases, may be recognized simply from the

effectuation of a fundamental constitutional or statutory policy.” [Citation.]

The benefit may be conceptual or doctrinal [citation], and the California

Supreme Court has recognized that “the litigation underlying the section

1021.5 award can involve rights or benefits that are somewhat intangible.” ’ ”

(Sweetwater Union, supra, 36 Cal.App.5th at p. 991.)

In Sweetwater Union, we concluded that when a school district

successfully enforced the geographic restrictions of the Charter Schools Act,

the trial court was within its discretion to conclude that the school district

conferred a significant benefit on the general public. (Sweetwater Union,

supra, 36 Cal.App.5th at p. 991.) We stated, “[T]he trial court could have

reasonably concluded that [the school district’s] action advanced the public’s

interest in the lawful operation of charter schools and the Legislature’s

oversight objectives reflected in the [Charter Schools Act’s] location

requirements. Even more broadly, the trial court could have found that

through this action [the school district] has helped preserve the

constitutionality of charter schools within the public education system. The

30

trial court could have reasonably concluded that advancement of these

objectives conferred a significant benefit on the general public.” (Ibid.)

Here, as in Sweetwater Union, one significant benefit conferred by the

Charter School Corporate Entities’ success in defeating the postjudgment

motions is the advancement of “the public’s interest in the lawful operation of

charter schools.” (Sweetwater Union, supra, 36 Cal.App.5th at p. 991.) More

importantly, because the result was that Diego Valley East, Diego Hills

Central, and the relevant SDWIHS locations could continue to operate, the

Charter School Corporate Entities succeeded in conferring the significant

benefit of preserving expanded school choice for the residents in areas with

access to those schools. (Today’s Fresh Start, supra, 57 Cal.4th at

pp. 205-206 [the Legislature intended charter schools to “promot[e]

innovation, choice, accountability, and competition.”]; Ed. Code, § 47601,

subd. (e) [the intent of the Legislature in enacting the Charter Schools Act

included “[p]rovid[ing] parents and pupils with expanded choices in the types

of educational opportunities that are available within the public school

system.”].)

Not only did the Charter School Corporate Entities confer the

significant benefit of preserving expanded school choice, that benefit was

conferred on a large number of individuals. For one thing, the Charter

School Corporate Entities’ success in this action positively impacted the

sizable number of specific individuals who already had a relationship with

Diego Valley East, Diego Hills Central, and the relevant SDWIHS locations.

The Charter School Corporate Entities explain that over 1,200 current

students would have been directly impacted if those schools were forced to

close. The closure would therefore impact thousands of people, comprising

those students, their families, and any other students who might have been

31

interested in attending Diego Valley East, Diego Hills Central, and the

relevant SDWIHS locations in the future. (See Graham v. DaimlerChrysler

Corp. (2004) 34 Cal.4th 553, 578 [a lawsuit conferred a significant benefit on

the general public or a large class of individuals when it “benefited thousands

of consumers and potentially thousands more by acting as a deterrent to

discourage lax responses to known safety hazards” (italics added)].) In

addition, the trial court’s injunction prevented the Charter School Corporate

Entities from operating any other future charter school facilities within the

boundaries of Grossmont Union and SDUSD. By obtaining a reversal of that

injunction, the Charter School Corporate Entities conferred a benefit on an

undetermined number of additional students who might have wanted to

attend potential future charter schools covered by the trial court’s injunction.

Grossmont Union and SDUSD argue that the Charter School Corporate

Entities’ success in Grossmont 2021 did not “serve a significant public

interest” because Grossmont 2021 “had no precedential value at the time”

and “had no significance to any other entity in the state” other than the

Charter School Corporate Entities. Specifically, they refer to the fact that,

effective January 2020, the Legislature eliminated the Unable-to-Locate

exception in Education Code section 47605.1 (Stats. 2019, ch. 487, § 2), while

providing a grandfather clause for preexisting charter schools to continue to

operate until required to renew their charters. (Ed. Code, § 47605, subd.

(a)(5)(A).) It is unclear whether, in making this argument, Grossmont Union

and SDUSD intend to address the first prong or the second prong of the

applicable analysis, as the phrase “serve a significant public interest” mixes

together words and concepts from both prongs. (See Save Our Heritage,

supra, 11 Cal.App.5th at p. 159 [describing “ ‘a three-prong test inquiring

whether (1) the litigation resulted in the enforcement of an important right

32

affecting the public interest, (2) a significant benefit has been conferred on

the general public or a large class of individuals . . . .’ ”].)

In any event, the argument lacks merit. Clearly, unpublished

Grossmont 2021 did not create any applicable legal precedent concerning the

Unable-to-Locate exception. However, as we have explained, the important

right affecting the public interest, as well as the significant benefit conferred

on the general public stems from the fact that Diego Valley East, Diego Hills

Central, and the relevant SDWIHS locations will be able to continue

operating, and the Charter School Corporate Entities will be able to continue

providing expanded educational choice to residents that live within or near

the boundaries of Grossmont Union and SDUSD.

6. The Trial Court Did Not Properly Examine Whether the Necessity

and Financial Burden of Private Enforcement Renders a Fee

Award Appropriate

The third and final prong of the analysis considers whether “ ‘the

necessity and financial burden of private enforcement renders the award

appropriate.’ ” (Save Our Heritage, supra, 11 Cal.App.5th at p. 159.)

Our Supreme Court has explained that “the necessity and financial

burden requirement ‘ “really examines two issues: whether private

enforcement was necessary and whether the financial burden of private

enforcement warrants subsidizing the successful party’s attorneys.” ’ ”

(Whitley, supra, 50 Cal.4th at p. 1214.)

The trial court’s ruling devoted only two sentences to the necessity and

financial burden requirement. The trial court stated, “As to the necessity and

burden of private enforcement, this element is met because no public entity

or official pursued enforcement or litigation against [Grossmont Union and

SDUSD], which are public entities, regarding the proper interpretation of the

[Charter Schools Act]. Thus, the financial burden of private enforcement is

33

such as to make a fee award appropriate here.” As we will explain, the trial

court’s discussion demonstrates that it did not properly exercise its discretion

because it did not separately address the two issues subsumed under the

necessity and financial burden requirement.

The first distinct issue involves “ ‘ “whether private enforcement was

necessary.” ’ ” (Whitley, supra, 50 Cal.4th at p. 1214.) The “ ‘necessity . . . of

private enforcement’ has long been understood to mean simply that public

enforcement is not available, or not sufficiently available.” (Id. at p. 1215.)

A fee award “is not appropriate when the public rights in question were

adequately vindicated by governmental action.” (Ibid.) Conversely, where

the opposing party in the litigation is, in fact, the sole governmental agency

with the power to grant relief regarding the public right at issue, an award is

appropriate. (Ibid.) Here, no governmental entity stepped in to defend the

Charter School Corporate Entities against the closure of the charter schools

and the permanent injunction sought by Grossmont Union and SDUSD in the

postjudgment motions. The resolution of the first issue therefore favors an

award of attorney fees to the Charter School Corporate Entities. Although

the trial court’s analysis of this issue was somewhat truncated, we

understand it to have determined that private enforcement was necessary

because no public entity or official came to the defense of the Charter School

Corporate Entities with respect to the issues litigated in the postjudgment

motions.

The second issue focuses on “ ‘the financial burdens and incentives

involved in’ ” a party’s participation in a lawsuit. (Whitley, supra, 50 Cal.4th

at p. 1215.) Under this inquiry, “ ‘ “[a]n award . . is appropriate when the

cost of the claimant’s legal victory transcends his personal interest, that is,

when the necessity for pursuing the lawsuit placed a burden on the [party]

34

‘out of proportion to his individual stake in the matter.’ ” ’ ” (Ibid.) The

analysis focuses “not only on the costs of the litigation but also any offsetting

financial benefits that the litigation yields or reasonably could have been

expected to yield.” (Ibid.) An offsetting financial benefit may take the form

either of a monetary award in the litigation or any other type of immediate

and direct financial benefit that a party expects to obtain from the litigation.

(People v. Investco Management & Development LLC (2018) 22 Cal.App.5th

443, 468-470 (Investco).) The goal of the analysis is “ ‘to place the estimated

value of the case beside the actual cost and make the value judgment

whether it is desirable to offer the bounty of a court-awarded fee in order to

encourage litigation of the sort involved in [the] case.’ ” (Whitley, at p. 1216.)

Because the required analysis involves a weighing of the financial

burdens and benefits, where the “potential financial benefit is indirect and

speculative . . . a trial court does not abuse its discretion in concluding that

the financial burden criterion is satisfied for purposes of section 1021.5.”

(Investco, supra, 22 Cal.App.5th at p. 470.) “No abuse in awarding fees can

be found where the facts show ‘that the [party’s] “future money advantage . . .

is speculative” [citation], or that the [party’s] “ ‘pecuniary benefit will be

indirect and uncertain.’ ” ’ ” (Sweetwater Union, supra, 36 Cal.App.5th at

p. 992, italics added.)

In their trial court briefing, the Charter School Corporate Entities did

not attempt to quantify the financial benefit that they would receive from

successfully defending against the postjudgment motions, or to weigh that

benefit against the financial burden of the litigation. Instead, the Charter

School Corporate Entities argued (1) they received no significant financial

benefit from their successful defense of the postjudgment motions because

they merely preserved the status quo, which allowed them to receive public

35

funding and then apply it to educating students; and (2) any financial benefit

was merely indirect and speculative.

In ruling on the motion for an award of attorney fees, the trial court did

not address the issue of “ ‘the financial burdens and incentives’ ” involved in

the Charter School Corporate Entities’ defense of the postjudgment motions.

(Whitley, supra, 50 Cal.4th at p. 1215.) Instead, the trial court mixed

together the two separate issues of the necessity of pursuing the litigation, on

the one hand, with the financial burdens and benefits of pursuing the

litigation on the other. Conflating the two separate issues, the trial court

appears to have reasoned that because it was necessary for the Charter

School Corporate Entities to provide their own defense to the postjudgment

motions, “the financial burden of private enforcement [was] such as to make a

fee award appropriate.” This discussion shows that the trial court was

unaware of its obligation, to consider not only the necessity of the Charter

School Corporate Entities’ participation in the litigation to “vindicate[ ]” the

“public rights in question” (ibid.), but also to weigh financial burdens and

benefits to determine “ ‘whether it is desirable to offer the bounty of a court-

awarded fee in order to encourage litigation of the sort involved in this case.’ ”

(Id. at p. 1216.)9

9 We note that in 2017, in awarding attorney fees to Grossmont Union

pursuant to section 1021.5, the trial court applied the proper legal standards,

as it expressly addressed whether, in light of the financial burdens and

benefits, Grossmont Union was entitled to an award of fees. In that ruling,

the trial court determined that any financial benefit to Grossmont Union was

from “an increase [in] average daily attendance,” which was “indirect and

speculative.” In ruling on the Charter School Corporate Entities’ attorney

fees motion, in contrast, although the Charter School Corporate Entities also

contended that any financial benefit to them was indirect and speculative,

the trial court did not acknowledge or specifically rule upon that issue.

36

In an appeal from a ruling on a motion for attorney fees pursuant to

section 1021.5, “ ‘ “we must pay ‘ “particular attention to the trial court’s

stated reasons in denying or awarding fees and [see] whether it applied the

proper standards of law in reaching its decision.” ’ ” ’ ” (City of Oakland,

supra, 29 Cal.App.5th at p. 698.) Here, the trial court’s ruling affirmatively

demonstrates that it acted based on a misunderstanding of the applicable

legal standards, as it failed entirely to apply one of the essential components

for deciding whether fees should be awarded under section 1021.5.

Specifically, the trial court did not undertake to determine whether, in light

of the financial burdens and financial benefits to the Charter School

Corporate Entities from defending against the postjudgment motions, the

Charter School Corporate Entities were entitled to an award of fees. “ ‘A trial

court abuses its discretion when it applies the wrong legal standards

applicable to the issue at hand.’ . . . ‘ “[A]ll exercises of legal discretion must

be grounded in reasoned judgment and guided by legal principles and policies

appropriate to the particular matter at issue.” ’ ” (Minick v. City of Petaluma

(2016) 3 Cal.App.5th 15, 25, citations omitted.) Accordingly, because it did

not apply the correct legal standard, the trial court abused its discretion in

determining that the Charter School Corporate Entities were entitled to a fee

award.

As we have discussed, it is the role of the trial court, in the first

instance, to exercise its discretion to determine, based on the applicable legal

standards, whether an award of attorney fees is warranted pursuant to

section 1021.5. (Baggett, supra, 32 Cal.3d at p. 143). Accordingly, we will

remand for the limited purpose of allowing the trial court to exercise its

discretion as to whether, in light of “ ‘the financial burdens and incentives’ ”

involved in the Charter School Corporate Entities’ defense of the

37

postjudgment motions (Whitley, supra, 50 Cal.4th at p. 1215), the Charter

School Corporate Entities are entitled to an award of fees. (See Robinson v.

City of Chowchilla (2011) 202 Cal.App.4th 382, 402-403 [remanding for the

trial court to apply the proper legal standard in reaching a determination

“regarding the ‘financial burden of private enforcement’ criterion contained in

section 1021.5”].)10

As we have found no abuse of discretion with respect to the other

aspects of the trial court’s analysis of the prerequisites for an award of

10 We note that at oral argument we questioned counsel for Grossmont

Union and for the Charter School Corporate Entities as to whether it was

possible to calculate the financial benefit that the Charter School Corporate

Entities would obtain from successfully defending against the postjudgment

motions. Counsel for the Charter School Corporate Entities agreed that by

using historical figures it was possible to “get an approximation” as to certain

of the financial benefits. Specifically, historical figures could be used to

determine (1) the public funding Diego Plus received for Diego Valley East

and Diego Hills Central, and (2) the public funding Western Educational

received for the relevant SDWIHS locations. From those figures, along with

any other pertinent information, it may be possible to approximate the

financial impact to the Charter School Corporate Entities had they not

successfully defended against the postjudgment motions. As also discussed

during oral argument, the analysis of financial benefit is complicated to some

extent because (1) it may not be possible to measure the financial impact to

the Charter Corporate School Entities from an injunction prohibiting any

future charter school within the boundaries of Grossmont Union and SDUSD;

and (2) the Charter School Corporate Entities include not only Diego Plus

and Western Educational, who operate the schools and directly receive the

public funding, but also Lifelong Learning and EAC, whose financial benefit

must be calculated based on their specific role with respect to the schools and

the extent to which they benefited from the public funding. We highlight

these items from oral argument for the benefit of the trial court on remand,

but we express no view on how the trial court should ultimately resolve the

issue of “ ‘the financial burdens and incentives’ ” involved in the Charter

School Corporate Entities’ defense of the postjudgment motions. (Whitley,

supra, 50 Cal.4th at p. 1215.)

38

attorney fees under section 1021.5, the scope of the remand shall not include

a relitigation of those issues.

7. This Is Not an Exceptional Case Precluding an Award of Fees

One last issue remains for us to address that impacts whether the trial

court may rule, on remand, that the Charter School Corporate Entities are

entitled to an award of attorney fees under section 1021.5. Specifically,

Grossmont Union and SDUSD contend that this is an exceptional case in

which fees should not be awarded, even if the Charter School Corporate

Entities are able to establish that each of the three prongs of the section

1021.5 analysis fall in their favor.

“The California Supreme Court has ‘recognized an exception to be

applied in cases where all three [section 1021.5] factors are satisfied, but the

party from whom fees are sought “is not the type of party on whom private

attorney general fees were intended to be imposed.” ’ [Citations.] Under this

exception, ‘a section 1021.5 fee award may not be imposed on a litigant who

did nothing to adversely affect the public interest.’ ” (Save Our Heritage,

supra, 11 Cal.App.5th at pp. 160-161.) The exception arises from the

principle that “[t]he party against whom such fees are awarded must have

done or failed to do something, in good faith or not, that compromised public

rights.” (Adoption of Joshua S. (2008) 42 Cal.4th 945, 954, 958 (Joshua S.)

[the losing party in an adoption case who “only engaged in litigation to

adjudicate private rights from which important appellate precedent

happen[ed] to emerge, but ha[d] otherwise done nothing to compromise the

rights of the public or a significant class of people” was covered by the

exception].) There is, in section 1021.5, “an implicit requirement that the

39

party on whom attorney fees are imposed be responsible for adversely

affecting the public interest.” (Joshua S., at p. 955.)11

Grossmont Union and SDUSD contend that this exception applies here

because, in bringing the postjudgment motions, they “pursued a reasonable

litigation strategy believed to be more efficient and supported by a good faith

interpretation of the trial court’s authority to enforce its prior writ,” and

therefore did not take action “ ‘detrimental to the public interest.’ ” We reject

the argument.

For one thing, the argument focuses on the purported “good faith” of

Grossmont Union and SDUSD in filing the postjudgment motions, but that is

not a relevant focus. As our Supreme Court has explained, there is no “bad

faith requirement” for a party to be subject to an attorney fee award under

section 1021.5. (Joshua S., supra, 42 Cal.4th at p. 958.) Instead, the party

against whom fees are awarded “must have done or failed to do something, in

good faith or not, that compromised public rights.” (Ibid., italics added; see

also Pasadena Police Officers Assn. v. City of Pasadena (2018) 22 Cal.App.5th

147, 164 [“Although . . . a party must have ‘done something to compromise

the rights of the public’ before having to pay attorney fees under section

1021.5, our Supreme Court refused to impose a ‘bad faith’ requirement.”];

City of San Clemente v. Department of Transportation (2023) 92 Cal.App.5th

1131, 1156 [in applying the exception, “the question is what effect the conduct

would have had if successful” as “[a]ny action can be redescribed to appear

innocent”].)

11 Grossmont Union and SDUSD incorrectly characterize the exception as

being part of the first prong of the three-prong analysis. It is not. Rather, it

is an exception that applies even if all three prongs have been satisfied.

(Save Our Heritage, supra, 11 Cal.App.5th at pp. 160-161.)

40

The trial court could reasonably conclude that the exception did not

apply because, by bringing the postjudgment motions, Grossmont Union and

SDUSD were seeking to “compromise[ ] public rights” (Joshua S., supra,

42 Cal.4th at p. 958) and “ ‘adversely affect the public interest.’ ” (Save Our

Heritage, supra, 11 Cal.App.5th at p. 161.) Specifically, as we explained at

length while discussing the first prong of the section 1021.5 analysis (part

II.A.4, ante), the right of the public to the expanded school choice in the

public education system that the Legislature put in place by enacting the

Charter Schools Act is an important public right. The postjudgment motions

filed by Grossmont Union and SDUSD sought to curtail that right by

requiring the closure of Diego Valley East, Diego Hills Central and certain

locations of SDWIHS, and by permanently enjoining the Charter School

Corporate Entities from operating any future charter school facilities within

the geographic boundaries of Grossmont Union and SDUSD. “When a party

initiates litigation that is determined to be detrimental to the public interest,

attorney fees have been imposed.” (Joshua S., at p. 957.) Because

Grossmont Union and SDUSD filed the postjudgment motions, which were

detrimental to the public interest, they may not rely on the exception for

“ ‘litigant[s] who did nothing to adversely affect the public interest.’ ” (Save

Our Heritage, at p. 161.)

In sum, this is not an exceptional case in which an award of fees under

section 1021.5 is precluded.

B. The Amount of the Fee Award

Grossmont Union and SDUSD contend that the trial court abused its

discretion in determining that the Charter School Corporate Entities

reasonably incurred attorney fees of $582,927 in defending against the

postjudgment motions. Although we are conditionally reversing and

remanding for the trial court to determine whether the Charter School

41

Corporate Entities are entitled to a fee award, because the issue of the

reasonableness of the fees may arise again on remand, and for purposes of

judicial efficiency, we will address the challenge that Grossmont Union and

SDUSD raise regarding the amount of the fee award.

1. Relevant Proceedings

In litigating the postjudgment motions filed by Grossmont Union and

SDUSD, the Charter School Corporate Entities were represented by (1) the

law firm Blank Rome LLP (Blank Rome), who provided representation both

in the trial court and on appeal; and 2) the law firm Horvitz & Levy LLP

(Horvitz & Levy), who provided representation solely on appeal and was

primarily responsible for drafting the appellate briefing. Blank Rome billed

$440,668 for its work, and Horvitz & Levy billed $277,564.50. The amount

billed by Blank Rome was composed of (1) $414,530 for work related to the

postjudgment motions in the trial court and on appeal; (2) $18,398 in fees

associated with the Charter School Corporate Entities’ motion for attorney

fees; and (3) an additional $7,740 in fees associated with the supplemental

briefing that the trial court requested concerning the reasonableness of the

fees. The full amount sought by the Charter School Corporate Entities in

their fee motion was $718,232.50.

The trial court concluded that the Charter School Corporate Entities

“partially failed to show the reasonableness of the fees claimed.” After a

lengthy explanation of why it questioned the reasonableness of some of the

fees, the trial court ruled as follows:

“Therefore, the court awards $582,927 in attorney’s fees as

follows:

“1) $294,502.50 for work performed by Blank Rome

($174,475 for trial work and $120,027.50 for appellate

work);

42

“2) $277,564.50 for appellate work performed by Horvitz &

Levy;

“3) $10,860 in fees associated with the motion for attorney’s

fees; and

“4) $7,740 in additional claimed fees related to the

supplemental briefing is denied.”

In explaining why it awarded $582,927, rather than $718,232.50, as

requested by the Charter School Corporate Entities, the trial court cited

several factors.

First, the trial court stated that the billing records supplied by Blank

Rome “obscure[d] the nature of the work performed,” made it “unclear

whether the time devoted to various tasks was reasonable and justified,” and

made it unclear “whether the level of staffing was necessary and whether the

rates charged by the individuals that worked on the case are justified.” As

the trial court observed, these problems were not entirely remedied by the

supplemental briefing that the trial court requested.

Second, the trial court specifically focused on the staffing of the appeal.

It explained, “Considering that Horvitz & Levy is admittedly an established

law firm, exclusively specializing in appellate litigation, and the fact Blank

Rome performed a significant amount of the appellate work, it appears the

case was unnecessarily overstaffed at the appellate level. In this regard, the

court is not persuaded that the complexity, novelty and expedited nature of

the writ motions justified the number of staff that worked on this case.”

Third, the trial court stated that, for several reasons, the amount of

fees incurred by Blank Rome in connection with the attorney fee motion was

unreasonably high.

43

Finally, the trial court stated that “the rates charged by Blank Rome

and Horvitz & Levy do not reflect the rates prevailing in the community of

San Diego where the lawsuit took place.”12 The trial court questioned the

billing rates of certain Blank Rome attorneys, and it further observed that

the Charter School Corporate Entities had “not presented any evidence of the

rates prevailing in the community of San Diego, or presented evidence that

engaging out-of-town counsel was necessary under the circumstance of this

case.”

The trial court also explained that in setting the amount of the fee

award it was taking into consideration the factors set forth in Serrano v.

Priest (1977) 20 Cal.3d 25, 49, as well as other factors. As the trial court

explained, the factors in favor of an increased award were “the litigiousness

and tactics of counsel, the nature and difficulty of the case, the level of skill

exhibited by counsel, and the results obtained.” On the other hand, a reduced

award could be warranted by the consideration that Grossmont Union and

SDUSD “are public school districts, and it cannot be disputed that any award

to [the Charter School Corporate Entities] would ultimately fall upon the

taxpayers.” (Serrano, at p. 49 [a relevant factor in determining the amount of

a fee award is “the fact that an award against the state would ultimately fall

upon the taxpayers”].)

In the end, the trial court reduced the amount of fees requested by

approximately 19 percent, from $718,232.50 to $582,927. This included an

approximate 31 percent reduction of the fees billed by Blank Rome, but no

reduction in the fees billed by Horvitz & Levy.

12 Both firms are located in the Los Angeles area.

44

2. Applicable Legal Standards

“ ‘The California Supreme Court has instructed that attorney fee

awards under section 1021.5 “should be fully compensatory,” and absent

“circumstances rendering the award unjust, an . . . award should ordinarily

include compensation for all the hours reasonably spent.” ’ ” (The Kennedy

Com. v. City of Huntington Beach (2023) 91 Cal.App.5th 436, 465, italics

omitted.) “A trial court awards attorneys’ fees based on the lodestar method,

i.e., the number of hours reasonably expended multiplied by the reasonable

hourly rate. . . . ‘The lodestar figure may then be adjusted, based on

consideration of factors specific to the case, in order to fix the fee at the fair

market value for the legal services provided.’ . . . Those factors include

‘(1) the novelty and difficulty of the questions involved, (2) the skill displayed

in presenting them, (3) the extent to which the nature of the litigation

precluded other employment by the attorneys, [and] (4) the contingent nature

of the fee award.’ ” (California DUI Lawyers Assn. v. Department of Motor

Vehicles (2022) 77 Cal.App.5th 517, 535-536, citations omitted.) “ ‘It is not

necessary to provide detailed billing timesheets to support an award of

attorney fees under the lodestar method. [Citations.] Declarations of counsel

setting forth the reasonable hourly rate, the number of hours worked and the

tasks performed are sufficient.’ [Citation.] The party seeking attorney fees

has ‘the burden of showing that the fees incurred were “allowable,” were

“reasonably necessary to the conduct of the litigation,” and were “reasonable

in amount.” ’ ” (Sweetwater Union, supra, 36 Cal.App.5th at p. 994.)

“[T]he amount of fees awarded under section 1021.5 ‘is classically

tested under the abuse of discretion standard.’ ” (Robles, supra,

38 Cal.App.5th at p. 199, italics omitted.) “ ‘[T]he “experienced trial judge is

the best judge of the value of professional services rendered in his [or her]

45

court, and while his [or her] judgment is of course subject to review, it will

not be disturbed unless the appellate court is convinced that it is clearly

wrong.” ’ ” (Early v. Becerra (2021) 60 Cal.App.5th 726, 743-744.) “ ‘Fees

approved by the trial court are presumed to be reasonable, and the objectors

must show error in the award.’ ” (Laffitte v. Robert Half Internat. Inc. (2016)

1 Cal.5th 480, 488.)

3. The Trial Court Did Not Abuse Its Discretion

Grossmont Union and SDUSD specifically challenge the amount of fees

that the trial court awarded in connection with the appellate work that

resulted in Grossmont 2021. They contend that the trial court properly made

reductions to the amount of fees sought by the Charter School Corporate

Entities for their efforts opposing the postjudgment motions in the trial court,

but “with respect to their fees on appeal, the trial court awarded [the Charter

School Corporate Entities] their entire request—just under $400,000 for

drafting” their appellate briefing.13 Grossmont Union and SDUSD complain

that the trial court criticized “the staffing levels, the hours billed, and the

rates charged, yet still awarded two law firms every penny they asked for . . .

for one appeal.” They argue that “there is a complete disconnect between the

trial court’s blistering denunciation of every aspect of [the Charter School

13 Grossmont Union and SDUSD twice incorrectly state that the appellate

fees were for drafting “one Respondents’ Brief.” In fact, the Charter School

Corporate Entities were the appellants, and thus filed an opening brief and a

reply brief. Grossmont Union and SDUSD do get it correct at one point in

their brief, referring to “one Opening Brief and one Reply Brief.”

46

Corporate Entities’] fee application and its ultimate ruling,” which

constitutes “an abuse of discretion that cannot stand.”14

The argument fails as to Blank Rome’s appellate fees because

Grossmont Union and SDUSD fail to adequately support it with citations to

the record. To support their contention that an award of $120,027.50 is an

award of the full amount of Blank Rome’s appellate fees, Grossmont Union

and SDUSD provide a citation to an exhibit that separately sets forth the

number of hours that counsel for the Charter School Corporate Entities spent

on trial court litigation from the hours that counsel for the Charter School

Corporate Entities spent on the appeal. However, that exhibit is limited to

information about the hours billed. It does not explain the amounts billed.

Therefore, the exhibit does not show how much Blank Rome billed for its

appellate work.15 In our review of the record, we have not located any

statement about the amount that Blank Rome billed for its appellate work.

It appears that to extract that information from the record, someone would

have to perform mathematical calculations and engage in a close analysis of

the Blank Rome invoices, which Grossmont Union and SDUSD have not

14 For the first time in their appellate reply brief, Grossmont Union and

SDUSD argue that the trial court should have evaluated each of the Charter

School Corporate Entities “individually” to determine whether the attorney

fees as to certain of them should have been disallowed. That argument,

raised for the first time in the reply brief, has been forfeited. (Rangel, supra,

62 Cal.4th at p. 1218.)

15 Citing the exhibit we have described, Grossmont Union and SDUSD

suggest in a parenthetical statement that they have calculated that Blank

Rome’s fees for its work in the trial court on the postjudgment motions totals

“approximately $307,000.” They provide no explanation of how they arrived

at that figure, which is not apparent in the cited exhibit.

47

done. Accordingly, Grossmont Union and SDUSD have not provided support

for their argument that the trial court abused its discretion with respect to

the amount it awarded for Blank Rome’s appellate work.16

With respect to Horvitz & Levy’s appellate work, that firm billed

$277,564.50, and the trial court awarded the full amount. However,

Grossmont Union and SDUSD have not established that the trial court

abused its discretion in that regard. As Grossmont Union and SDUSD point

out, the trial court did conclude that the appeal was overstaffed. However,

because, as we have discussed, we do not know what portion of Blank Rome’s

appellate fees were awarded, the trial court may have addressed the

appellate overstaffing by reducing Blank Rome’s fees. Second, the trial court

did observe that Horvitz & Levy’s rates were higher than the prevailing rates

in San Diego. However, the trial court could still have acted reasonably in

awarding the full amount of Horvitz & Levy’s fees. As the trial court noted,

Horvitz & Levy is “an established law firm, exclusively specializing in

appellate litigation.” Further, as the trial court noted, the factors in favor of

an increased fee award in this case included “the nature and difficulty of the

case, the level of skill exhibited by counsel, and the results obtained.” Based

on these observations, and especially in light of the success that Horvitz &

16 Although the argument is not clearly made, Grossmont Union and

SDUSD also appear to be challenging the fee award based on the trial court’s

comment that, even after receiving supplemental briefing, deficiencies in the

evidence concerning Blank Rome’s fees still remained, and it was therefore

unable to ascertain the reasonableness of some of the fees. To the extent

Grossmont Union and SDUSD base their appellate challenge on this

observation, it lacks merit. They have not established that the trial court

included in its award any of the fees for which it had insufficient information.

48

Levy obtained on appeal, the trial court did not abuse its discretion with

respect to Horvitz & Levy’s fees.17

DISPOSITION

The order awarding attorney fees to the Charter School Corporate

Entities is conditionally reversed and remanded. The trial court is

specifically authorized, on a limited remand, to hold any necessary

proceedings to examine the issue of whether, in light of the “financial burden

of private enforcement” (§ 1021.5, subd. (b)), the Charter School Corporate

Entities are entitled to an award of attorney fees. If the trial court concludes

that a fee award is warranted, it shall reinstate the award in the amount of

$582,927 and shall add thereto any additional fees that the Charter School

Corporate Entities reasonably incurred in this appeal and on remand. The

parties shall bear their own costs on appeal.

IRION, J.

WE CONCUR:

MCCONNELL, P. J.

DATO, J.

17 Even as to Blank Rome’s appellate fees, had Grossmont Union and

SDUSD been able to establish that the trial court did award the full amount

of those fees, we would nevertheless conclude that based on the success that

the Charter School Corporate Entities experienced on appeal, the trial court

would have been within its discretion to award the full amount of the

appellate fees incurred by Blank Rome.

49

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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