Doe v. Westmont College

• Decision Date: 25 January 2021
• Docket Number: 2d Civ. No. B303208
• Citation: 274 Cal.Rptr.3d 882,60 Cal.App.5th 753
• Court: California Court of Appeals Court of Appeals
• Parties: John DOE, Plaintiff and Appellant, v. WESTMONT COLLEGE, Defendant and Respondent.

60 Cal.App.5th 753

274 Cal.Rptr.3d 882

John DOE, Plaintiff and Appellant,

v.WESTMONT COLLEGE, Defendant and Respondent.

2d Civ. No. B303208

Court of Appeal, Second District, Division 6, California.

Filed January 25, 2021

As Modified February 8, 2021

Hathaway Parker, Mark M. Hathaway and Jenna E. Parker, Los Angeles, for Plaintiff and Appellant.

Musick, Peeler & Garrett and Adam L. Johnson, Costa Mesa, for Defendant and Respondent.

TANGEMAN, J.

In some cases, although parties succeed at trial, the full breadth of their success is not realized until they defend the case on appeal. May such a party move for attorney fees post appeal if the trial court denied their preappeal attorney fee motion? We conclude that they may do so.

John Doe filed a petition for writ of administrative mandate to overturn Westmont College's determination that he committed sexual assault. ( Code Civ. Proc.,¹ § 1094.5.) The trial court granted John's petition, and he moved for an attorney fee award. (§ 1021.5.) The court denied John's motion. Westmont appealed from the judgment, but John did not appeal from the postjudgment order denying his attorney fee motion.

We affirmed the judgment in a published opinion. (See Doe v. Westmont College (2019) 34 Cal.App.5th 622, 246 Cal.Rptr.3d 369 ( Doe I ).) After the remittitur issued, John moved for attorney fees based on our decision. The trial court denied John's motion, concluding that he did not meet section 1021.5's criteria for a fee award. Alternatively, the court concluded that it was appropriate to deny John's motion because he did not provide a meaningful basis on which it could apportion the fees he incurred.

Because the trial court applied the wrong standards when it denied John's attorney fee motion, we vacate the denial order. In doing so, we express no view as to whether the court should award section 1021.5 attorney fees on remand after it applies the proper legal standards.

FACTUAL AND PROCEDURAL HISTORY

John and a fellow Westmont student, Jane Roe, attended a party in January 2016. ( Doe I , supra , 34 Cal.App.5th at p. 627, 246 Cal.Rptr.3d 369.) After the party, Jane accused John of sexual assault. ( Ibid. ) Westmont investigated the matter, found Jane's accusation credible, and suspended John for two years. ( Id. at pp. 632-633, 246 Cal.Rptr.3d 369.)

John challenged the decision in a petition for writ of administrative mandate, arguing that Westmont did not give him a fair hearing and that substantial evidence did not support its decision. ( Doe I , supra , 34 Cal.App.5th at p. 633, 246 Cal.Rptr.3d 369.) The trial court agreed with John's fair hearing argument and ordered Westmont to set aside its decision. ( Id. at pp. 633-634, 246 Cal.Rptr.3d 369.) It did not reach the substantial evidence argument. ( Id. at p. 633, 246 Cal.Rptr.3d 369.)

We affirmed the judgment in a published opinion, agreeing that Westmont failed to provide John with a fair hearing. ( Doe I , supra , 34 Cal.App.5th at p. 625, 246 Cal.Rptr.3d 369.) Like the trial court, we did not reach the issue of whether substantial evidence supported Westmont's decision. ( Ibid. ) Westmont declined to rehear John's case, and vacated the findings against him. John then moved for an attorney fee award based on our published opinion. He requested $85,652 in fees.

Westmont opposed John's motion, arguing that it was barred by principles of res judicata. Westmont also characterized John's motion as a "renewed" request for attorney fees, which it urged the court to deny because it did not meet the requirements of section 1008. If the court did "reconsider" the attorney fee issue, Westmont argued that it should deny John's motion on the merits because he did not meet section 1021.5's requirements.

The trial court agreed with Westmont's third argument and denied John's motion. First, John's overarching interest in the case was personal, both during the proceedings on his writ petition in the trial court and in his defense of the court's decision on appeal. Second, to the extent our published opinion conferred a significant benefit on a large group of people, that benefit arose from Westmont's decision to appeal, not John's. Finally, an attorney fee award would "punish Westmont for appealing rather than vindicate the purposes behind ... section 1021.5." Thus, "in the context of the third element of ... section 1021.5, [John] ha[d] not persuasively shown [that] the financial burden of private enforcement warrant[ed] subsidizing [his] attorneys."

The trial court also concluded that even if John did meet section 1021.5's requirements for an attorney fee award, he provided no basis for apportioning those fees. Significant portions of the proceedings on his writ petition and on appeal were dedicated to arguments regarding how substantial evidence did not support Westmont's decision, arguments that pertained solely to John's private interests. Furthermore, the court did not consider them. Thus, without a basis for excluding the fees related to those arguments, the court deemed it necessary to deny John's attorney fee request in its entirety.

DISCUSSION

Appealability

We first consider—and reject—Westmont's claim that we do not have jurisdiction to consider an appeal from the denial of John's postappeal motion for attorney fees.

An attorney fee award may be based on a published appellate opinion. ( Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1029, 132 Cal.Rptr.3d 358, 262 P.3d 568 ( Serrano ).) "Indeed, because section 1021.5 ‘requires the claimant to show that the principal action "has resulted" in the enforcement of an important right and that a significant benefit "has been conferred’ " [citation], that showing often ‘cannot be made until the benefit is secure, in some cases after judgment is final.’ [Citations.]" ( Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 226-227, 226 Cal.Rptr. 265.) That is what occurred here: After this court affirmed the judgment granting John's writ petition, John moved for an attorney fee award based on the determinations we made in our published opinion. The trial court's order denying that motion is appealable. (§ 904.1, subd. (a)(2).)

Westmont contends that the denial of a renewed motion is not appealable. (See, e.g., Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 364, 255 Cal.Rptr.3d 310 ; Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1252-1254, 217 Cal.Rptr.3d 924 ; Tate v. Wilburn (2010) 184 Cal.App.4th 150, 159-160, 109 Cal.Rptr.3d 18 ( Tate ).) But that is not what occurred here.

A party renews a motion by "mak[ing] a subsequent application for the same order [based on] new or different facts, circumstances, or law." (§ 1008, subd. (b), italics added.) Both the original and renewed motions must request "identical relief." ( California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43, 103 Cal.Rptr.3d 699, alterations omitted.) Here, John's preappeal motion requested $58,466 in attorney fees, while his postappeal motion requested $85,652 in fees. The postappeal motion thus cannot be construed as a renewal of his preappeal motion.

Westmont implicitly acknowledges as much, recognizing that other provisions of section 1008 do not permit actions to be taken after judgment is final. (See, e.g., State of California v. Superior Court (Flynn) (2016) 4 Cal.App.5th 94, 100, 208 Cal.Rptr.3d 501 [trial court cannot reconsider interim ruling pursuant to subdivision (c) after final judgment]; Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048, 96 Cal.Rptr.3d 690 [motion to reconsider pursuant to subdivision (a) invalid if filed after final judgment].) And courts considering other types of renewed motions have similarly concluded that "[a] second motion, decided after an appealable order denying the first motion has become final, cannot be considered as a renewal of ... the first motion." ( Rambush v. Rambush (1968) 267 Cal.App.2d 734, 741, 73 Cal.Rptr. 268 ; see also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701-702, 107 Cal.Rptr.2d 149, 23 P.3d 43.) Instead, the second motion " ‘must be regarded as an independent and separate request for relief.’ " ( Rambush , at p. 741, fn. 5, 73 Cal.Rptr. 268.)

The concerns underlying the nonappealability of renewed motions do not prevent us from deeming John's postappeal motion an independent and separate request for relief. Renewed motions are generally not appealable because permitting such appeals might: (1) render "a nonappealable order or judgment ... appealable," (2) permit a party to "have two appeals from the same decision," or (3) give a party "an unwarranted extension of time to appeal." ( Tate, supra , 184 Cal.App.4th at p. 160, 109 Cal.Rptr.3d 18.) But here, a nonappealable order has not been rendered appealable; orders denying postjudgment motions for attorney fees are themselves appealable. ( P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053, 120 Cal.Rptr.2d 98 ; see § 904.1, subd. (a)(2).) John is not getting two appeals from the same decision; he did not appeal the denial of his preappeal motion for attorney fees, nor has he raised any issue connected to the denial of that motion here. And John has not received an unwarranted extension of time to appeal; again, John has not raised any issue connected to his preappeal attorney fee motion, and there is no question that the current appeal was timely filed.

Westmont's argument that John is not entitled to appeal from the denial of his postappeal motion for attorney fees because he did not cross-appeal the trial court's order denying his preappeal motion is not persuasive. Because our opinion on appeal provided the basis for John's postappeal motion, an appeal from the denial of the preappeal motion would have involved different facts and legal arguments. In addition, appealing from the denial of the...