Case Number: BS157804 Hearing Date: May 31, 2018 Dept: 85

Edward Colley, et al. v. William S Hart Union High School District, BS 157804

Tentative decision on (1) motion for award of remedies: granted; (2) motion for attorney’s fees: granted

Petitioners Edward Colley (“Colley”) and Frederick Malcomb (“Malcomb”) move for an order awarding Petitioners remedies for the losses suffered as a result of their terminations by Respondent William S. Hart Union High School District (“District”). Petitioners separately move for an award of attorney’s fees against the District.

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

A. Statement of the Case

1. Complaint

Petitioners commenced this proceeding on September 2, 2015, seeking a writ of traditional mandate under CCP section 1085. The Petition alleges in pertinent part as follows.

Petitioner Colley, a retired United States Air Force (“Air Force”) Captain, holds a Clear Designated Subjects Special Subjects Teaching Credential in Reserve Officer Training Corps (“ROTC”) issued by the California Commission on Teacher Credentialing (“CTC”) which is valid through September 1, 2020. Colley also holds an Administrative Services Credential.

Colley was first employed by the District for the 1995-96 school year, pursuant to an employment contract. At no time prior to Colley’s first date of paid probationary service did the District inform him that his employment was subject to Education Code[1] section 44909, or that his employment status was anything other than probationary/tenure-track. During his employment, the District identified Colley as a permanent or tenured employee on its seniority list and other documents.

Petitioner Malcomb, a retired Air Force Master Sergeant, holds a Clear Designated Subjects Special Subjects Teaching Credential in ROTC issued by the CTC. Malcomb’s teaching credential is valid through June 1, 2018.

Malcomb was first employed by the District pursuant to an employment contract for the 2004-05 school year. At no time prior to Malcomb’s first date of paid probationary service did the District inform him that his employment was subject to section 44909, or that his employment status was anything other than probationary/tenure-track. During his employment, the District identified Malcomb as a permanent or tenured employee on its seniority list and other documents.

On May 18, 2015, the Air Force notified Petitioners that it was summarily revoking their instructor certifications due to their alleged failure to comply with certain Air Force Junior Reserve Officer Training Corps (“AFJROTC”) administrative requirements. Prior to May 18, 2015, Petitioners were unaware that the Air Force was considering revoking their certifications. On June 2, 2015, Petitioners submitted a written appeal of the decision to summarily revoke their AFJROTC instructor certifications.

On June 17, 2015, while Petitioners’ AFJROTC appeal was pending, the District’s Board of Trustees (“Board”) took action to release Petitioners from their “probationary employment” pursuant to section 44929.21(b) and terminate them effective June 30, 2015. Petitioners objected to the District’s action on the ground that they were permanent employees who could not be non-reelected under section 44929.21(b). Petitioners requested that the District immediately reinstate them as permanent employees. By letter dated June 26, 2015, the District denied Petitioners’ request.

On July 6, 2015, the Air Force notified Petitioners that it had denied their appeals. Petitioners received letters from the Air Force dated June 30, 2015 confirming the denial of their appeals.

By letter dated August 3, 2015, Petitioners demanded that the District provide them a hearing under section 44944 prior to terminating their employment. The letter also submitted claims under Government Code section 900 et seq. for anticipated lost wages and benefits arising from the District’s procedurally deficient termination of their employment. On September 1, 2015, Petitioners re-submitted their damages claims on the District’s form.

According to the Petition, the District has a clear mandatory duty to employ Petitioners unless and until it follows the required procedures under the Education Code for terminating them as permanent employees.

2. Course of Proceedings

On March 25, 2016, Petitioners applied ex parte for an order shortening time to hear the motion for protective order. In lieu of an order shortening time, the court granted an ex parte application to specially set the motion for protective order on May 12, 2016. On that date, the court granted Petitioners’ motion for a protective order.

On September 27, 2016, the court granted the Petition for Writ of Mandate. The court found that Petitioners’ employment contracts did not specify an employment classification, and therefore defaulted to a probationary tenure track. Petitioners’ understanding of their tenure-track status was then confirmed when both Petitioners were described as attaining tenured status on their evaluation reports. Thus, the court held that Petitioners were not probationary zero employees pursuant to section 44909.

Petitioners also were not probationary zero employees under section 44912, which provides that service under a credential for teaching basic military drill in the California Cadet Corps program (“CACC”), established under Military and Veterans Code section 500 et seq., shall not be considered towards tenure. Petitioners were military drill instructors under the AFJROTC program, which was a federal program, not part of the CACC. They were therefore not exempt from permanent status under section 44912.

The court ordered the District to set aside Petitioners’ non-reelection. On the issue of remedy, the court declined to conduct a back pay hearing after any pertinent discovery. Smith Decl. Ex A, p.11. The court ordered the parties to meet and confer on the manner of determining backpay. Smith Reply Decl. Ex.T, p. 1784. If they failed to agree, the parties were ordered to each file a two-page memorandum as to how the hearing should proceed. Id. Whatever was decided, the court would retain jurisdiction to review any back pay award. Smith Decl. Ex. A, p.11.

In lieu of the two-page memorandum, the parties stipulated to a procedure in which they would conduct discovery, a hearing officer would conduct an evidentiary hearing on back pay, the hearing officer would make a recommended decision, and the hearing officer’s decision would be reviewable by the District’s Board. Smith Decl. Ex. B. If Petitioners disagreed with the decision, they could file a motion for the court to review the District’s decision. Id.

On February 16, 2017, the court granted Petitioners’ motion for attorney’s fees in the sum of $105,657. The court also granted Petitioners leave to make an additional motion for attorney’s fees “following the conclusion of the back-pay hearing.” The court noted that before doing so, the parties must meet and confer for purposes of avoiding the need for a litigated motion.

B. Motion for Award of Remedies

1. Standard of Review

The parties disagree over the court’s standard of review. The opposition contends that the court is reviewing an administrative decision on back pay for which the court exercises its independent judgment. Candari v. Los Angeles Unified School District, (“Candari”) (2011) 193 CalApp.4th 402, 407. Opp. at 4. In so doing, the court must afford a strong presumption of correctness to the Board’s decision on back pay, and a decision on “penalty” will not be disturbed absent a clear abuse of discretion. Id. (citations omitted).

Petitioners agree that the court independently weighs the evidence, but not pursuant to the deference required in administrative mandamus. Instead, Petitioners argue that this matter must be heard as a damages motion under CCP section 1095. Reply at 3. The court never ruled on how the back pay hearing would be conducted because the parties stipulated to the procedure of a hearing officer, review by the Board, and a noticed motion to the court, if necessary. Id.

Petitioners are correct. The parties agreed upon the procedure they would use for a back pay hearing, and their agreement did not provide for the court’s review through administrative mandamus. Hence, this is a motion for damages heard by the court de novo. The court will make its own judgment about the evidence and need not afford a presumption of correctness to the Board’s decision.

2. Statement of Facts

a. Termination of Employment

The District offers an AFJROTC program at Valencia High School pursuant to a contract between the District and Air Force. Smith Decl. Ex. H, p.264. Under the contract, the District may only employ instructors who have been certified by the Air Force to teach the AFJROTC course. Id.

In August 1995, the District hired Petitioner Colley to teach AFJROTC at Valencia High School. Smith Decl. Ex. H, p.265. Colley taught the course continuously from August 1995 to June 2015. Id.

In July 2004, the District hired Petitioner Malcomb to teach AFJROTC at Valencia High School. Smith Decl. Ex. H, p.265. Malcomb taught the course continuously from July 2004 to June 2015. Id.

On May 18, 2015, the Air Force notified Petitioners and the District that it was revoking Petitioners certifications to teach the course, effective the end of the school year. Smith Decl. Ex. H, p.265. Petitioners submitted written appeals to the Air Force regarding the revocation of their certifications to teach the course. Id. On July 6, 2015, the Air Force notified Petitioners and the District that it had denied Petitioners’ appeals. Id.

Thereafter, the District determined that it could no longer assign Petitioners to teach the AFJROTC course because of the revocations. Smith Decl. Ex. H, p.265. The District terminated Petitioners’ employment, effective June 30, 2015. Id.

b. The Back Pay Hearing

The parties conducted the back pay hearing before Hearing Officer Walter F. Daugherty (“Hearing Officer”) on January 31, April 27, May 17, and June 1, 2007. Smith Decl. ¶8.

(i). Malcomb’s Testimony

(a). Continued Education

In 2008, Malcomb began working in a counseling program at the University of La Verne to earn his Pupil Personnel Services (“PPS”) credential. Smith Decl. Ex. D, p.37. He completed his degree in 2010 and continued working towards receiving the credential until 2012. Id.

After learning about his Air Force certificate revocation on May 18, 2015, Malcomb reapplied with the university so that he could be reinstated in the program and earn his PPS credential. Id. Malcomb worked two to three hours a day finding documents and filling out paperwork in order to get readmitted to the university’s PPS program. Smith Decl. Ex. D, p.38. In June 2015, Malcomb learned that he was readmitted to the PPS program. Id.

During the summer of 2015, Malcomb attempted to intern locally at schools to bolster his PPS work. Smith Decl. Ex. D, p.43. He applied for an internship position at Castaic Middle School and at a middle school within the Hart District. Smith Decl. Ex. D, pp. 43-44. Both applications were rejected. Smith Decl. Ex. D, p.44.

Eventually, Malcomb got an internship with the Palmdale Aerospace Academy (“TPAA”), a charter school. Smith Decl. Ex. D, p.44. Malcomb began the unpaid internship in September 2015. Id. He worked there three days a week through December 2015 and took classes at College of the Canyons two more days a week. Smith Decl. Ex. D, p.45. As an intern, Malcomb inter alia tutored, worked with middle school students in building a “school-to-career master plan,” and worked with students on social-emotional development. Smith Decl. Ex. D, pp. 44-45. Malcomb did anything the TPAA needed him to do. Smith Decl. Ex. D, p.45.

In February 2016, after over 368.5 hours of internship work, Malcomb earned his PPS credential. Smith Decl. Exs. D, p.47; F, p.196.

(b). Job Search

From May through the summer of 2015, Malcomb was looking for work. Smith Decl. Ex. D, p.38. From May 2015 to June 2015, Malcomb frequently searched EDJOIN, a website where schools post job vacancies, for available counseling positions in Los Angeles, Kern, Ventura, and San Bernardino counties. Smith Decl. Ex. D, pp. 38-39. Malcomb also frequently searched a website called Santa Clarita Valley (“SCV”) Jobs for job vacancies. Smith Decl. Ex. D, p.39.

From June 2015 to the end of summer, Malcomb spent five to seven hours a day on these websites (as well as others) looking for work. Smith Decl. Ex. D, p.40. Malcomb applied for all sorts of jobs. Smith Decl. Ex. D, pp. 40-41. Malcomb looked for counseling and substitute teaching jobs. Id. For example, he applied to Fillmore Unified School District and the Oxnard School District. Id. He received no response for either application. Smith Decl. Ex. D, p.41. Malcomb also applied for non-teaching jobs. Smith Decl. Ex. D, p.41. For example, Malcomb applied to Lowe’s, Target, and Home Depot through the Unemployment Office. Id. None were successful. Id. Additionally, Malcomb applied to at least five aviation jobs. Smith Decl. Ex. D, pp. 41-42. These too were unsuccessful. Smith Decl. Ex. D, p.42.

While working at TPAA from September through December 2015, Malcomb continued to search for paid employment on EDJOIN and other sites. Smith Decl. Ex. D, p.45.

After obtaining his PPS degree in February 2016, Malcomb continued to make additional attempts to find work in the educational field on EDJOIN and other sites. Smith Decl. Ex. D, p.70. Malcomb applied for counselor positions at, for example, Monrovia Unified School District and La Canada School District. Smith Decl. Ex. D, pp. 73, 76. All were rejected. Id.

Malcomb believes that the District’s decision to non-reelect him was a huge reason for his failure to find a job during this period. See, e.g., Smith Decl. Ex. D, p.44. His job counselor at the College of the Canyons informed him that he would have a “hard time” finding a job because of the non-reelection. Smith Decl. Ex. D, p.42. Every application which Malcomb applied for required him to disclose his non-reelection. Smith Decl. Ex. D, pp. 70-71.Non-reelections are damaging on applications and, on the surface, have negative connotations. Smith Decl. Ex. D, p.66.

Despite his unemployment, Malcomb earned $4,350 between July 2015 and April 2016 by occasionally substitute teaching at TPAA. Smith Decl. Exs. D, pp. 45, 83; H, p.269.

In July 2016, Malcomb was hired to work as a counselor at TPAA. Smith Decl. Exs. D, p.82; H, p.269. His annual salary for this position was $81,560. Smith Decl. Ex. H, p.269. In May 2017, he received a $6,600 bonus. Smith Decl. Ex. I, p.908.

ii. Colley’s Testimony

As of June 2015, Colley held two credentials from the CTC: (1) a clear designated subjects special subjects teaching credential in ROTC and (2) a certificate of eligibility for an administrative services credential. Smith Decl. Exs. D, p.103; H, pp. 269-70. Colley also had successfully completed the California Basic Educational Skills Test (“CBEST”). Smith Decl. Ex. E, p.268.

In June 2015, Colley searched EDJOIN for administrative positions. Smith Decl. Ex. E, p.102.

In July 2015, Colley sent an email to every Valencia High School assistant principal asking for a letter of recommendation. Smith Decl. Ex. E, p.103-04. The principal responded to Colley’s email, informing him that he would not get a letter of recommendation from any of the Valencia High School administrators. Smith Decl. Ex. E, p.104-05.[2] Colley did not ask the principal or other administrators for a recommendation again. Smith Decl. Ex. E, p.105.

From June 2015 to September 2016, Colley did not apply to any administrator or substitute teaching positions. Smith Decl. Ex. E, pp. 105, 132. Colley did not apply for administrator positions, despite seeing a hundred job postings, because they required a letter of recommendation. Smith Decl. Ex. E, p.105, 107. Colley felt applying for an administrator job would be futile because of his non-reelection and his inability to acquire current letters of recommendation. Smith Decl. Ex. E, p.105. Colley believed that he would be unlikely to acquire a position in the field of education until he cleared his name and employment history. Smith Decl. Ex. E, p.108.

Despite this belief, Colley looked for employment opportunities in the education field up to twice a month (Smith Decl. Ex. E, pp.109-10), but for cumulatively less than 24 hours (Smith Decl. Ex. J, p.1505 (Colley deposition)). Some of the opportunities interested him, but the need for a letter of recommendation deterred him from applying. Id.

Colley travelled extensively while he was terminated. He traveled to Montana on several occasions. See, e.g., Smith Decl. Ex. E, pp. 143, 145. Colley also made separate visits to Monterey, California; Syracuse, New York, and the state of Washington. Smith Decl. Ex. E, p.141.

Colley also served as a director on the Castaic Lake Board of Directors. Smith Decl. Ex. E, p.109. While serving as a director, Colley attended conferences hosted by the Association of California Water Agencies in Sacramento. Id.

On August 31, 2015, Colley filed a federal lawsuit against the United States Air Force. Colley Decl. Ex. E, p.108. Colley estimates that he worked an average of 200 hours per month on the lawsuit through September 2016. Colley Decl. Ex. E, p.109. However, this lawsuit did not preclude him from accepting paid employment. Smith Decl. Ex. E, p.110.

e. The Hearing Officer’s Decision

On November 27, 2017, the Hearing Officer issued a report concluding that Colley was entitled to back pay of $111,817 and Malcomb to back pay of $84,382. Smith Decl. Ex. O, p.1753. The Hearing Officer also concluded that Petitioners were entitled to interest at the rate of 7% per annum on their back pay awards. Id.

f. The Board’s Back Pay Decision

On January 18, 2018, the District notified Petitioners that the Board had decided to reject the Hearing Officer’s recommendation and to deny the Petitioners back pay. McNally Decl. Ex. 5. The Board made this decision on three grounds. First, the Board found that section 45034 prohibits the payment of a salary to certificated employees lacking an appropriate certification. McNally Decl. Ex. 5, p.8. Because Petitioners no longer possessed their AFJROTC certifications, the Board concluded that Petitioners were not entitled to back pay under section 45034. McNally Decl. Ex. 5, pp. 8, 10. Second, the Board found that section 45055 prohibits payment of a salary to a teacher who has not faithfully performed all the duties prescribed of that position. McNally Decl. Ex. 5, p.8. Because Petitioners lacked the certification and could not therefore perform all the duties of an AFJROTC instructor, the Board concluded that Petitioners were not entitled to back pay under section 45055. McNally Decl. Ex. 5, pp. 8, 10. Third, the Board found that Petitioners failed to mitigate damages because they were not “ready, willing, and available for employment” in any position. Id.

g. Reinstatement

On November 4, 2016, the District notified Petitioners that it was rescinding the notice of non-reelection and reinstating them, effective September 28, 2016. Smith Decl. Ex. I, pp. 816, 823. The District directed Petitioners to return to work on November 7, 2016. Id. Malcomb did not comply because he was under contract with TPAA. Smith Decl. Ex. D, p.85. Malcomb informed the District that he would report back to work the following school year. Smith Decl. Ex. I, p.814.

Malcomb’s hearing before the Commission on Professional Competence (“CPC”) was scheduled for June 12-14, 2017. Smith Decl. ¶16. The hearings did not occur because Malcomb resigned from the District on June 8, 2017 in order to accept a higher-paying job. Id.

Colley’s CPC hearing went forward on November 27-29 and December 6, 2017. Smith Decl. ¶17. On March 16, 2018, the CPC issued a decision in Colley’s favor, concluding that the District lacked cause to terminate Colley and that he must be retained as an employee. Id. The District has filed a mandamus petition to contest the CPC’s decision, Williams S. hart union High School District v. Commission on Professional Competence, LASC No. BS 173394.

3. Analysis

Petitioners move for an order awarding them remedies for the losses suffered as a result of their wrongful terminations.

When a local board of education wrongfully dismisses a teacher, the teacher is entitled to reinstatement, to full salary from the date of termination, including retirement benefits, and to interest from the dates upon which such salary payments were due. Mass v. Board of Ed. of San Francisco Unified School Dist., (“Mass”) (1964) 61 Cal.2d 612, 616.

a. Sections 44830 and 45034

The District contends that Petitioners’ back pay claims must be denied because they failed to possess the required USAF certifications under section 44830 and could not be paid under section 45034. Opp. at 8-9.

Section 44830 provides: “The governing board of a school district shall employ for positions requiring certification qualifications, only persons who possess the qualifications for those positions prescribed by law.”

Section 45034 provides: “No order for a warrant … shall be drawn in favor of any person employed in a position requiring certification qualifications, unless such person is at the time the holder of a proper certification document in full force for the full time for which the requisition or warrant, as the case may be, is drawn.”

The District’s argument is specious. Aside from the fact that the argument is inconsistent with the court-ordered the reinstatement of Petitioners pending a CPC hearing for discharge, Petitioners point out (Reply at 5) that the term “certification” as used in sections 44830 and 45034 refers exclusively to credentials issued by the CTC, not the USAF. Section 44004 defines “certificate” as it is used in sections 44830 and 45034. See §44000 (“Unless the context otherwise requires, the definitions set forth in Sections 44000 to 44012, inclusive, shall govern the construction of this part.”). Section 44002 defines “credential” as a “credential or certificate … issued by” the CTC. See also §44250.

The two cases cited by Petitioners also indicate that the certification contemplated by sections 44830 and 45034 is the credential issued by the CTC. In Tarquinio v. Franklin-McKinley School Dist., (“Tarquinio”) (1979) 88 Cal.App.3d 832, 835, the court stated: “Certification definitely is contemplated in the employment of teaching and administrative personnel. The Education Code restricts employment by local boards to teachers holding current credentials (§ 44830) and confines payment to such teachers (§43034).” In Mass, the California Supreme Court examined predecessor versions of these statutes and stated that they “restrict employment by local boards to teachers holding credentials from the State Board of Education” and “confine[] payment to such teachers.” 61 Cal.2d at 616.

The term “certification” as used in sections 44830 and 45034 means a certification issued by the CTC, not the AFJROTC instructor certifications issued by the USAF.

b. Section 45055

The District argues that it was legally prohibited from issuing salary warrants to Petitioners because they did not faithfully perform services for the District. Opp. at 10.

Section 45055 provides: “No warrant shall be drawn in favor of any teacher, unless the officer whose duty it is to draw the warrant is satisfied that the teacher has faithfully performed all the duties prescribed.”

Again, the District’s argument is untenable. True, Petitioners did not perform the duties of the AJFROTC position. But, section 45055 concerns a situation in which a teacher has (not will) faithfully performed all the duties prescribed. The District terminate them effective June 30, 2015 and there were no prescribed duties to perform. Petitioners could have performed duties other than teaching AFJROTC, but the District chose not to use them. Indeed, Malcolm volunteered his time – at the District’s request – to help the new AFJROTC instructor.

Petitioners did not fail to perform their duties in a period where so prescribed, and are not precluded from back pay by section 45055.

c. Mitigation of Damages

The District asserts that Petitioners failed to mitigate their damages because they failed to seek employment as substitute teachers, the only teaching position for which they were qualified. Opp. at 10.

The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. Parker v. Twentieth Century-Fox Film Corp., (1970) 3 Cal.3d 176, 181. A public employee who is wrongfully discharged has a duty to exercise due diligence to mitigate damages while pursuing remedies against the employer. Martin v. Santa Clara Unified School Dist., (“Martin”) (2002) 102 Cal.App.4th 241, 255. The exercise of due diligence includes the duty to look for comparable employment. Id.

To reduce the back pay award for failure to mitigate, the employer bears the burden of showing that the other employment was comparable, or substantially similar, to the wrongfully terminated position. Id. Considerations of substantial similarity include comparisons of the nature of the work, the pay, and the benefits. Candari, supra, 193 Cal.App.4th at 411; California School Employees Assn. v. Personnel Commission, (1973) 30 Cal.App.3d 241, 254. The employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. Martin, supra, 102 Cal.App.4th at 255.

The District is correct that Petitioners were qualified to serve as substitute teachers. A person who has a college degree and has passed the CBEST exam is eligible to serve as a substitute teacher in the District. Smith Decl. Ex. G, p.237. As of June 2015, Petitioners both possessed bachelor’s degrees and had passed the CBEST exam. Smith Decl. Ex. H, p.268-69. The District also points out that, during the 2015-2016 school year, substitute teaching jobs were available in several Los Angeles County school districts, including the District. See, e.g., Smith Decl. Ex. G, p.245 (testimony of District’s Assistant Superintendent of Human Resources). The same was true of administrative positions in several Los Angeles County school districts. See, e.g., Smith Decl. Ex. F, p.161.

The District relies on N.L.R.B. v. Browne, (“Browne”) (2d Cir. 1989) 890 F.2d 605 for the proposition that an employee should not receive back pay for a position which the employee could not discharge because he voluntarily forfeited the required licensing by disregarding his legal obligations and allowing the license to be suspended. Id. at 609. The Browne court concluded that it would not be rationale to award the employee back pay at the higher rate at which the license was required in lieu of a lower paying job where no license was required. Id. According to the District, Browne is analogous because Petitioners allowed their AFJROTC certificates to lapse, and they should receive back pay not at the rate for AFJROTC teaching, but at the lower rate for substitute teaching. Opp. at 11.

The District’s argument is unconvincing. For a failure to mitigate, the District must show that the comparable work was substantial or comparably similar. As Petitioners demonstrate (Mot. at 18), substitute teaching is not comparable or substantially similar work to the work they performed. The pay is inferior. Substitute teaching would have paid Petitioners less than a third of what they would have earned in their employment with the District. See, e.g., Smith Decl. Exs. D, p.52 (offering $150 a day for substitute teaching position); Ex. H, pp. 266, 268 (daily salary rate of Petitioners during 2015-2016 school year). The benefits also are inferior. Substitute teaching, unlike regular teaching, does not typically provide health insurance or give credit towards tenure. Smith Decl. Ex. D, p.52; Ex. F, p. 166. The duration of substitute teaching is sporadic. Substitute teachers are often hired on a “strictly temporary” and “an as-needed basis.” Smith Decl. Ex. J, p.1142; see also Smith Decl. Ex. D, p.46.[3]

Under these circumstances, Browne, a non-binding authority, is not analogous. Petitioners fairly may be saddled with letting their AFJROTC certificates lapse, but, unlike in Browne, they could have taught in other comparable teaching jobs. Petitioners point out that the District could have assigned Colley to administrator duties, Malcomb could have been assigned as a counselor, and both Petitioners could have been assigned as floating substitutes or given assignment to teach a single subject under section 44263. Mot. at 6-7. They did not have to perform substitute teaching.

d. Ready, Willing, and Able

A wrongfully discharged employee is entitled to damages if he was ready, willing, and able at all times to fulfill his part of the contract. California School Employees Assn. v. Personnel Commission, (1973) 30 Cal.App.3d 241, 245-46. The concept of being ready, willing, and able must necessarily be qualified by mutuality in that the employer also be ready and willing to perform by offering reinstatement to the employee.” Carroll v. Civil Service Com., (“Carroll”) (1973) 31 Cal.App.3d 561, 567.

The District argues that Petitioners were not ready, willing, and able to serve as AFJROTC instructors. Opp. at 12. The District identifies Colley’s extensive travel and federal lawsuit, and cites Malcolm’s work towards receiving his PPS credential, his internship hours at TPAA, and his acceptance of a full-time counseling position at TPAA. Opp. at 12-13.

Carroll demonstrates that Petitioners’ readiness to serve was not undermined by their performance of other tasks. The wrongly terminated employee need not stand idly by awaiting his employer’s willingness and readiness to reemploy him; he or she can do other things and still be ready, willing, and able. Malcomb embodies this principle remarkably well: he substituted, interned, and further educated himself in order to make himself more marketable and find employment elsewhere. Carroll sensibly prohibits punishment of such initiative. Although Colley did not show the same initiative as Malcomb, the District did not offer him reinstatement. He was entitled to perform other tasks, and take trips, that did not interfere with his readiness to work should the District call.

e. Waiver

The District argues that Malcomb’s resignation of his District position on the eve of his termination hearing constituted a waiver of his right to challenge his dismissal, and acts as a concession that he is not entitled to back pay (it does not). Opp. at 13.

Malcomb is entitled to back pay for the period in which he was unlawfully terminated without a hearing. Malcomb resigned in order to accept a higher-paying job, not to concede his non-entitlement to back pay. Smith Decl. ¶16. His resignation on the eve of the hearing mooted his termination, but did not waive his right to back pay. This situation is little different than a public employee who is terminated in violation of his/her Skelly rights, but whose termination is later upheld after hearing. In that situation, the employee is entitled to back pay for the period in which discipline was improperly imposed. See Barber v. State Personnel Board, (1976) 18 Cal.3d 395, 402. Similarly, Malcomb remains entitled to his back pay from the June 30, 2015 date on which he was wrongly terminated until the District offered to pay him on September 28, 2016.

f. Amount of Back Pay Wages

As no affirmative defense applies, the motion is granted. Petitioners are both entitled to full salaries, benefits, and interest from the dates upon which such salary payments were due. Mass, supra, 61 Cal.2d at 616. See Mot. at 13.

For the 2015-2016 school year, Malcomb’s base salary was $88,732 and Colley’s was $93,486. Smith Decl. Ex. H, pp.266-67.

The operative back pay period for Malcomb is the 2015-2016 school year. Malcomb’s $93,486 salary must be offset by the $4,350 he was paid for substitute teaching during the 2015-2016 school year. Smith Decl. Ex. H, p.269. Petitioners correctly calculate the amount owed to Malcomb as $84,382. Mot. at 13. Malcomb also is entitled to sick leave, CalSTRS contributions, and CalSTRS service credit for the 2015-2016 school year. He further is entitled to 7% interest per annum calculated from the date each paycheck was due. Civ. Code §3287(a).

The operative back pay period for Colley is July 1, 2015, the day after his effective date of termination, through September 27, 2016, the day before his reinstated pay began. Colley’s $93,486 annual salary must be augmented by (1) the monthly $250 cash in lieu of medical benefits that he was receiving in his former position (Smith Decl. Ex. H, p.267) and (2) compensation for the time in between the 2015-2016 school year and September 28, 2016, the date which the District began fully compensating Colley again (McNally Decl. ¶15).

Petitioners contend that the Hearing Officer erred in failing to include pay for July 2016. They offer a calculation of Colley’s daily pay rate for the actual school work days in August and September 2016, which results in $18,191.88 instead of the $15,881 calculated by the Hearing Officer. The District voices no voice opposition, and the alternative would have been to pay Colley $7,790.50 for each of July, August, and September, or $23,715. Petitioners’ calculation is fair.

Colley is entitled to $114,427.88. He also is entitled to sick leave, CalSTRS contributions, and CalSTRS service credit for the 15-month period he was unpaid, and 7% interest per annum calculated from the date each paycheck was due. Civ. Code §3287(a).

C. Motion for Attorney’s Fees

1. Applicable Law

Although the purpose of much civil litigation is to make the injured party whole, the traditional common law rule is that the parties must bear their own costs. Davis v. KGO-TV, (1998) 17 Cal.4th 436, 446. It is, therefore, axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party. Crib Retaining Walls. Inc. v. NBS/Lowry. Inc., (1996) 47 Cal.App.4th 886, 889; Garcia v. Hyster Co., (1994) 28 Cal.App.4th 724, 732; Perko’s Enterprises. Inc. v. RRNS Enterprises, (1992) 4 Cal.App.4th 238, 241.

Section 44944(f)(2) states, in pertinent part: “If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing… and reasonable attorney’s fees incurred by the employee.” Section 44944(f)(2) applies to mandamus proceedings in the trial court. Forker v. Board of Trustees, (1984) 160 Cal.App.3d 13, 21. An employee has “incurred” attorney’s fees when the employee is liable for the fees of the attorney, and is not required to have actually paid any fees to the attorney in order to recover under this section. Board of Education v. Commission on Professional Competence, (“Board of Education”) (1980) 102 Cal.App.3d 555, 563.

In addition to the requirement that a party incur the attorney’s fees, the fees must be reasonable. Andre v. City of West Sacramento, (2001) 92 Cal.App.4th 532, 537. Reasonable attorney’s fees are determined pursuant to the “lodestar” or “touchstone” method. Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. Serrano v. Priest, (“Serrano III”) (1977) 20 Cal.3d 25, 48; Serrano v. Unruh, (1982) 32 Cal.3d 621, 639; Meister v. Regents of Univ. of Calif., (“Meister”) (1998) 67 Cal.App.4th 437, 446-447. The lodestar method applies to statutory attorney’s fee awards unless the underlying statute provides for another method of calculation. Meister, supra, 67 Cal.App.4th at 448-49.

The lodestar method vests the court with discretion to decide which of the hours expended by the attorneys were “reasonably spent” on the litigation. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 133; Meister, supra, 67 Cal.App.4th at 449. The predicate of any attorney’s fee award is the necessity and usefulness of the conduct for which compensation is sought. Thayer v. Wells Fargo Bank, NA., (2001) 92 Cal.App.4th 819, 846. The base amount is then adjusted in light of various factors including, but not limited to, the novelty and difficulty of the questions involved, the skill displayed in presenting them and/or the success achieved. See, e.g., Chavez v. Netflix, Inc., (2008) 162 Cal.App.4th 43, 61; Ketchum v. Moses, (2001) 24 Cal. 4th 1122, 1139; Harman v. City and County of San Francisco, (2007) 158 Cal.App.4th 407, 425-26.

2. Statement of Facts

a. Petitioners’ Evidence

Four attorneys — Tamra M. Smith (“Smith”), Stuart Libicki (“Libicki”), Melanie Luthern Allen (“Allen”), and Jacob Goldberg (“Goldberg”) — seek fees for work on the remedies phase of this case. Smith Decl. ¶27.

Petitioners request fees at the hourly rate of $500 for the services of Smith, the lead attorney. Smith Decl. ¶22. In February 2017, the court awarded Petitioners attorney’s fees at this hourly rate for Smith’s services. Smith Decl. ¶20.

Petitioners request fees at the hourly rate of $650 for Libicki’s services. Smith Decl. ¶23. Libicki is a graduate of Boalt Hall School of Law and has been practicing law for over 40 years. Id.

Petitioners request fees at the hourly rate of $275 for Allen’s and Goldberg’s services. Smith Decl. ¶¶ 24-25. Allen and Goldberg are both first-year associates who assisted Smith with this case. Id.

At the time of the motion’s filing, Petitioners’ attorneys had spent 314 hours solely on work for the remedies phase of this case. Smith Decl. ¶27, Ex. R. The fees billed by Petitioners’ attorneys totaled $155,612.50. Id.

In preparing reply briefs, Smith spent an additional 17 hours on this case, amounting to $8,500 in fees. Smith Supp. Decl. ¶12, Ex. U. Smith also anticipates spending 3.5 hours travelling to the courthouse and attending oral argument on these motions, amounting to an additional $1,750 in fees. Smith Supp. Decl. ¶13.

3. Analysis

Petitioners seek an award of attorney’s fees in the amount of $155,612.50. In reply, Petitioners seek to increase the award to $165,826.50.

a. Entitlement to Fees

As the court already decided in Petitioners’ first motion for attorney’s fees, Petitioners are entitled to attorney’s fees under section 44944(f)(2).

The District contends that this motion is premature because no judgment has been issued. Opp. at 4. The District relies on California Rule of Court (“CRC”) 3.1702(b)(1): “A notice of motion to claim attorney’s fees for services up to an including the rendition of judgment in the trial court … must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case.”

The District has a point. However, flexibility is built into CRC 3.1702 through subdivision (d), which permits a judge for good cause to extend the time for filing a motion for attorneys’ fees. Robinson v. U-Haul Company of California, (2016) 4 Cal.App.5th 304, 326. This flexibility allows the court to permit the instant motion, which serves court efficiency and accords with the court’s prior order that Petitioners could file a second attorney’s fee motion “following the conclusion of the back pay hearing.” Smith Decl. Ex. C, p.25. For this reason, the court will decide this motion. However, Petitioners waive any further attorney’s fees for the remaining portion of this case in the superior court and before any appeal.

The District also argues that Petitioners are not the prevailing party. Opp. at 4. The District premises this argument on the grounds that the Board rejected Petitioners’ back pay claims. Id. As concluded ante, the Board erred and Petitioners are entitled to back pay. Hence, Petitioners prevailed on both the merits of this lawsuit and on the back pay issue.

Finally, the District claims that Petitioners failed to comply with the court’s meet and confer order. Opp. at 5. In deciding Petitioners’ initial attorneys’ fee motion on February 16, 2017, the court declined to award back pay attorney’s fees and ordered that Petitioners could make a second motion after the back pay issue was concluded. Smith Decl. Ex. C, pp. 24-25. The court further ordered that, before Petitioners made a second motion, the parties must “meet and confer for purposes of avoiding the need for litigated motion.” Smith Decl. Ex. C, p.25.

On January 20, 2018, Smith sent District’s counsel, Kerrie McNally (“McNally”), an email stating her intent to file a motion for back pay attorney’s fees and that she was writing to meet-and-confer as ordered by the court. Smith Decl. Ex. P, p.1757. She explained that the back pay fees currently were in the range of 130K, and she could provide the exact figures and information about how they were calculated. Id. Smith stated that Petitioners would refrain from doing so if the District agreed to pay Petitioners’ attorney’s fees without need for a noticed motion. Id.

McNally responded that a motion for attorney’s fees would be premature because the issue of back pay is not settled. Smith Decl. Ex. P, p.1756. She recommended that the fees issue be withheld until there was a final back pay resolution. Id.

Smith replied that she was willing to consider any reasonable settlement proposal by the District, but Petitioners would only consider settlements close to the full amounts of back pay recommended by the Hearing Officer. Smith Decl. Ex. P, p.1755.

This email chain demonstrates a reasonable attempt by Smith to meet-and-confer to resolve the attorney’s fee issue informally. The impasse that resulted justified the filing of this motion.

b. Reasonable Attorney’s Fees

i. Hourly Rates

The hourly rates requested by Petitioners are reasonable. In the case of Smith, the hourly rate is identical; in the case of the other attorneys, the hourly rates are appropriately scaled.

ii. Attorney Time

Although the hours incurred on the remedy portion of this case appears high, Petitioners have adequately demonstrated in their time logs (Smith Decl. Exs. R, U), comprehensive briefs, and evidence that the hours spent were reasonable. At bottom, Petitioners’ counsel had to represent Petitioners through an extensive administrative hearing process.

The District contends that Petitioners’ time logs reflect only generalized tasks and cannot be adequately segregated. Opp. at 7. The court disagrees. Most entries denote only one task and provide sufficient information to understand their contents.

The District singles out 6.25 hours spent by Goldman researching “award of attorneys’ fees.” Opp. at 7; Smith Decl. Ex. R, p.1766. The District asserts that time spent researching a motion for attorney’s fees after Petitioners had already successfully filed one was unreasonable. Opp. at 7.

In a supplemental declaration, Smith explains that she asked Goldberg to perform research relating to Petitioners’ ability to obtain attorney’s fees on the remedy phase of this litigation. Smith Supp. Decl. ¶7. To this end, Goldberg researched questions such as whether Petitioners could recover if only one of them prevailed at the back pay hearing. Id. Smith used this research to inform her legal strategy at the time, including how she would formulate her settlement posture with the District. Id. Smith’s supplemental declaration is persuasive. 6.25 hours spent by her associate on this research is reasonable.

Petitioners’ motion for attorney’s fees is granted in the amount of $165,826.50.

D. Conclusion

Malcomb is awarded back pay of $84,382, as well as sick leave, CalSTRS contributions, and CalSTRS service credit for the 2015-2016 school year. He further is entitled to 7% interest per annum calculated from the date each paycheck was due. Civ. Code §3287(a).

Colley is awarded back pay of $114,427.88. He also is entitled to sick leave, CalSTRS contributions, and CalSTRS service credit for the 15-month period he was unpaid, and 7% interest per annum calculated from the date each paycheck was due. Civ. Code §3287(a).

Petitioners’ motion for attorney’s fees is granted in the amount of $165,826.50. Petitioners’ counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on the District’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for July 5, 2018 at 9:30 a.m.

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

[2] According to David Aponik, an executive director of the Santa Clarita Teachers Association, recent letters of recommendation are very important to school administrators screening job applications. Smith Decl. Ex. D, p.65. Their absence in an application often indicates a red flag to the administrator. Id.

[3] Malcomb explained that substitute teaching tends to be more like “baby-sitting” because substitute teachers tend to have less control and management of the class. Smith Decl. Ex. D, p.46. This issue has nothing to do with compensation, and is not a legitimate basis to conclude that substitute teaching is not comparable.