BriefCal. Super. - 6th Dist.May 5, 20211 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE SUTTON LAW FIRM, PC James R. Sutton, State Bar No. 135930 Bradley W. Hertz, State Bar No. 138564 JP Fisher, State Bar No. 335073 150 Post Street, Suit 405 San Francisco, CA 94108 Tel: 415/732-7700 Fax: 415/732-7701 jsutton@campaignlavvyers.corn bhertz@campaignlawyers.com jpfisher@campaignlawyers.com Attorneys for Petitioners David Kissner and Shahryar Rokni SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION David Kissner and Shahryar Rokni, Petitioners, v. Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan; Santa Clara County Office of Education; Loma Prieta Joint Union School District; Santa Clara County Registrar of Voters Shannon Bushey; Santa Cruz County Clerk Tricia Webber; and DOES 1-10; Respondents. Case No. 21CV381463 PETITIONERS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES AND COSTS Date: TBD* Time: TBD* De yt: TBD* Judge: TBD* * (Per the Court's website and voicemail recording, motions are to be filed without a hearing date. Once the Court determines a hearing date, Petitioners will provided an amended notice to all counsel.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/27/2021 7:56 PM Reviewed By: R. Burciaga Case #21CV381463 Envelope: 7158977 21CV381463 Santa Clara - Civil R. Burciaga 1 TABLE OF CONTENTS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1 FACTUAL AND PROCEDURAL HISTORY 2 LEGAL DISCUSSION 3 I. Petitioners are Entitled to an Award of Attorneys' Fees and Costs Pursuant to CCP Section 1021.5 3 1. Petitioners are the "successful party" under CCP section 1021.5 because this Court granted their application for writ of mandate and ordered a special election be held in the District 4 2. Petitioners enforced "important rights affecting the public interest," and thereby conferred a "significant benefit" on the general public by protecting the District's voters' right to elect their Board of Trustee representatives. 4 3. The necessity and financial burden of private enforcement make a fee award appropriate in this case. 5 II. Petitioners' Fee Award Request is Reasonable. 6 III. The Hours Spent by Petitioners' Counsel Are Reasonable 9 IV. Petitioners' Costs are Reasonable 10 CONCLUSION 11 POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS' FEES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Beasley v. Wells Fargo Bank (1997) 235 Cal. App. 3d 1420 10 Board of Supervisors v. Local Agency Formation Com. (1992) 3 Ca1.4th 903 4 Citizens Against Rent Control v. Berkeley (1986) 181 Cal. App. 3d 213 6 City of Oakland v. Oakland Raiders (1988) 203 Cal. App. 3d 78 7 Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal. App. 3d 633 5 Envtl. Prot. Info. Ctr. v. California Dep't of Forestry & Fire Prot. (2010) 190 Cal. App. 4th 217 7 Galligan v. Church San Mateo Superior Court Case. No 527283 9 Graham v. Daimler Chrysler Corp. (2004) 34 Ca1.4th 553 4 Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal. App. 4th 359 7 Int'l Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal, Inc (1999) 69 Cal. App. 4th 287 7 In re Conservatorship of Whitley (2010) 50 Ca1.4th 1206 6 In re Tobacco Cases I (2013) 216 Cal. App. 4th 570 7 Ketchum v. Moses (2001) 24 Ca1.4th 1122 7 Olson v. Automobile Club of Southern California (2008) 42 Cal. 4th 1142 10 Sacramento v. Drew (1989) 207 Cal. App. 3d 1287 5 POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS' FEES ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Serrano v. Unruh (1982) 32 Ca1.3d 640 7 Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691 7 Washburn v. Berkeley (1987) 195 Cal. App. 3d 579 6 Wesberry v. Sanders (1964) 376 U.S. 1 4 Woodlands Hills Residents Assn. Inc. v. Woodland Hills (1979) 23 Ca1.3d 917 3 STATUTES Cal. Code of Civ. Proc. section 1021.5 passim Cal. Education Code section 5091 passim POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS' FEES i i i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Petitioners David Kissner and Shahryar Rokni ("Petitioners") bring this Motion for Attorneys' Fees and Costs pursuant to California Code of Civil Procedure ("CCP") section 1021.5, in order to recover the attorneys' fees and costs incurred in their successful effort to obtain a writ of mandate ordering a special election to fill a vacancy on the Loma Prieta Joint Union School District (the "District") Board of Trustees. Petitioners, as proponents of the petition for special election, brought this case to defend their petition and correct the failures of Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan ("Superintendent Dewan") and the Santa Clara County Office of Education (the "Office of Education") (collectively, "Respondents") in rejecting Petitioners' petition for special election. Petitioners sought and successfully obtained a writ of mandate ordering Respondents to find that the petition for special election was legally sufficient, set an election date to fill the vacancy, terminate the Board of Trustees' provisional appointment, and ordering the Santa Clara County Registrar of Voters and Santa Cruz County Clerk to prepare for an election on the date set by Superintendent Dewan. Petitioners satisfy all of the criteria for an award of fees under CCP section 1021.5. Petitioners are the successful party, having prevailed in their petition for writ of mandate ordering a special election and achieving the desired outcome for the petition proponents, signors, and voters of the District. By defending the petition for special election and forcing a special election, Petitioners preserved voters' fundamental right to elect their representatives on the Board of Trustees. Finally, Petitioners had no pecuniary interest in the outcome of this litigation, and thus could not have a disqualifying financial interest in an award of fees. The fees requested are reasonable, and are based upon hourly rates that are appropriate based upon the market for legal services provided by similarly qualified attorneys. As set forth herein and in the attached papers, Petitioners MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 respectfully request that this Court award them attorneys' fees in the amount of $55,685.00 and costs in the amount of $1,535.64 incurred as a result of this successful litigation. FACTUAL AND PROCEDURAL HISTORY This case involves a vacancy created on the District's Board of Trustees when a Trustee was elected to the Board in November 2020, but immediately moved out of the District prior to being sworn into office. The Board of Trustees filled this vacancy by provisional appointment on March 15, 2021. Petitioners then circulated a petition for special election as expressly allowed by California Education Code section 5091. In April 2021, Petitioners submitted a completed petition for special election to the Office of Education with more than enough signatures needed to require a special election. Thereafter, Superintendent Dewan rejected the petition, on two purported grounds: (1) that the petition did not include a November 2021 election cost estimate, despite the fact that at the time of the petition's submission, the latest an election could have been held was September 21, 2021 based on Education Code section 5091's stringent time constraints; and (2) that the petition did not include a committee "Top Funders Disclosure," despite the fact that Petitioners were not a "committee" under state law. On April 30, 2021, Petitioners retained the Sutton Law Firm to seek a writ of mandate challenging Superintendent Dewan's decision to reject the petition for special election. After extensive briefing and oral argument, including pleadings, moving papers, reply briefs, in-person oral argument and supplemental briefs requested by the Court, the Court found that the petition for special election was legally sufficient and that Superintendent Dewan erred in rejecting it. As to the first allegation, the Court reasoned that a November 2021 election was legally impossible at the time of the petition's submission, and therefore it was not reasonable to require Petitioners to include it on their petition. As to the second allegation, the Court confirmed that Petitioners had complied with all Top Funders Disclosure requirements because: "There was no fundraising, no expenses and no committee." (Order Granting Writ of Mandate, p. 3.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court issued a writ of mandate, ordering Superintendent Dewan to find the petition legally sufficient, to set an election date to fill the vacancy, and to terminate the Board's provisional appointment, and ordering the Santa Clara County Registrar of Voters and Santa Cruz County Clerk to prepare for an election on the date set by Superintendent Dewan. LEGAL DISCUSSION I. Petitioners are Entitled to Attorneys' Fees and Costs Pursuant to CCP Section 1021.5. Under CCP section 1021.5, Petitioners are entitled to an award of attorneys' fees and costs for successfully correcting Superintendent Dewan's failure to certify Petitioners' petition for special election as legally sufficient and to set an election date, and thereby ensured the voters' right to elect their Board of Trustees representative. As a threshold matter, it is beyond dispute that Petitioners are the "successful party" in this litigation as they were the only party to defend the petition for special election and obtain a writ of mandate ordering an election. Further, Petitioners satisfy all criteria for an award of attorneys' fees under section 1021.5: (1) Petitioners' action "has resulted in the enforcement of an important right affecting the public interest;" (2) "a significant benefit . . . has been conferred on the general public or large class of persons;" and (3) "the necessity and financial burden of private enforcement . . . are such as to make the award appropriate." (See Woodland Hills Residents Assn. Inc. v. Woodland Hills (1979) 23 Ca1.3d 917.) As the Supreme Court has repeatedly stressed, the fundamental purpose of the private attorney general doctrine is to provide a monetary incentive and a financial means for private citizens to participate in litigation that enforces important statutory or constitutional rights. (Id. at 933.) Because many laws may otherwise go unenforced due to lack of financial resources, the Legislature intended to encourage lawsuits such as these that are meritorious and defend important public interests. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Petitioners are the "successful party" under CCP section 1021.5 because the Court granted their petition for writ of mandate and ordered a special election be held in the District. There can be no doubt that Petitioners are the "successful party" in this litigation. "The term 'successful party' as ordinarily understood means the party to the litigation that achieves its objectives." (Graham v. Daimler Chrysler Corp. (2004) 34 Cal.4th 553, 571.) In this action, Petitioners sought a writ of mandate ordering Respondents to find that Petitioners' petition for special election was legally sufficient and to set an election date. Petitioners were the only party to seek and obtain a writ of mandate. Without Petitioners' participation, this Court would have never issued a writ of mandate ordering that a special election be set to fill the vacancy on the Board of Trustees. Simply put, Petitioners achieved all of their objectives when this Court issued its writ of mandate, and therefore, Petitioners were the successful party in this litigation. 2. Petitioners enforced "important rights affecting the public interest," and thereby conferred a "significant benefit" on the general public by protecting the District's voters' right to elect their Board of Trustee representative. Petitioners' success in obtaining a writ of mandate ordering a special election enforced an important right by preserving the right to vote and protecting the rights of those who signed the petition. The right to vote is universally upheld as the "the most fundamental of all" rights and should be protected by courts whenever possible. (Wesberry v. Sanders (1964) 376 U.S. 1, 17.) It is beyond doubt that the right to vote is so precious that courts must disfavor governmental impingements on this right to vote, subjecting them to the utmost scrutiny. (See Board of Supervisors v. Local Agency Formation Com. (1992) 3 Ca1.4th 903.) No right could be more crucial and significant to the public interest than the right to elect their representatives. Moreover, the District's voters would have lost their right to elect a Trustee to represent them if not for the successful efforts of Petitioners. It was only through Petitioners' efforts that the Court issued its writ of mandate and ordered an election to be held. This order corrected the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wrongs that had been committed by Superintendent Dewan in rejecting the people's right to elect their Board of Trustees representative. 3. The necessity and financial burden of private enforcement make a fee award appropriate in this case. Petitioners also satisfy the final requirement of CCP section 1021.5 because "the necessity and financial burden of private enforcement are such as to make the award appropriate." This requirement "addresses the issue of comparative availability of public enforcement, not the causal relationship between the claimant's action and the result," (Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1289.) This element of section 1021.5 is clearly met: This case involves a public official and public entity acting in violation of the law and in a way that interfered with the public's right to vote for their representative. There was no public entity in a position to overrule Superintendent Dewan and the Office of Education. Education Code section 5091 gave Superintendent Dewan sole authority to review and evaluate the petition for special election, and no other public official had authority to defend the petition's validity. Thus it fell upon Petitioners, and Petitioners alone, to defend the rights of the District's voters. "An important question in determining whether the services of the private party were necessary is, 'Did the private party advance significant factual or legal theories adopted by the court, thereby providing a material, non de minimis contribution to the judgment, which were nonduplicative of those advanced by the governmental entity?" (Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal. App. 3d 633, 642.) This Court relied solely on Petitioners' legal and factual arguments with regard to all aspects of the case in issuing its writ of mandate. (Emphasis added.) Specifically, Petitioners provided the key legal and factual arguments as to why the petition for special election was legally sufficient: (1) due to the stringent election deadlines imposed by Education Code section 5091, at the time of the petition's submission a November 2021 election was a legal impossibility and it therefore was unreasonable to require Petitioners to include a fictitious election date on the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 petition; and (2) Petitioners never raised $2,000 in support of their signature gathering efforts and therefore did not qualify as a committee requiring a "Top Funders Disclosure" under state law. Petitioners also meet the requirement that the financial burden of private enforcement exceeds their personal interest in the litigation. This element of section 1021.5 requires a balancing of the financial burdens involved in the litigation against the expected financial benefit Petitioners expected to yield. (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215.) "An award is appropriate when the costs of the claimant's legal victory transcends his or her personal interest. . . . This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit." (Washburn v. Berkeley (1987) 195 Cal. App. 3d 579, 584 [internal citations omitted].) In this case, Petitioners did not stand to gain financially from the issuance of a writ of mandate. In fact, Petitioners had no pecuniary interest in the outcome of this litigation at all. Further, any speculation by Respondents as to the results of the special election may not be used for purposes of attributing a financial benefit to Petitioners, as the results of an election are entirely unknowable. (See Citizens Against Rent Control v. Berkeley (1986) 181 Cal. App. 3d 213.) Moreover, this Court found that Petitioners have no professional or business interest in the results of the special election when it rejected Petitioners' Motion to the Lift the Automatic Stay pursuant Code of Civil Procedure 1110b, likely due to the fact that the Tiustee at issue in this contested election matter receives no compensation. Petitioners' interest in this action was to effectuate the right of the District's voters to choose their representative on the Board of Trustees as is guaranteed by the Education Code. Petitioners had no expected monetary award ,as a result of this litigation, and therefore the financial burden of this litigation makes this award of fees and costs appropriate. II. Petitioners' Fee Award Request is Reasonable. Petitioners request an award of $55,685.00 in fees and $1,535.64 in costs. Petitioners reserve the right to augment these figures to include actual fees and costs incurred in connection MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with this motion ("fees on fees"). Petitioners have used the accepted "lodestar" method in calculating reasonable fees, based upon the number of hours spent, multiplied by the applicable hourly rate. (Ketchum v. Moses (2001) 24 Ca1.4th 1122.) A reasonable hourly rate is the market value of the legal services, which may be determined by the rates charged in the relevant community by attorneys of comparable knowledge, skill, experience and reputation. (Serrano v. Unruh (1982) 32 Ca1.3d at 640, 643; Int'l Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal. App. 4th 287, 303.) Courts have held that the San Francisco Bay Area (which includes Santa Clara County) constitutes a legal community, and therefore rates should be based on "hourly rates similar to those charged by top law firms in the Bay Area." (City of Oakland v. Oakland Raiders (1988) 203 Cal.App.3d 78, 82; Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702 [trial court properly used matrix of attorney rates for "San Francisco-San Jose-Oakland Region."]; In re Tobacco Cases I (2013) 216 Cal. App. 4th. 570, 581 [trial court properly awarded "San Francisco Bay Area" rates for work performed by Oakland attorneys].) Furthermore, even though Santa Clara and San Francisco counties are part of the same legal community, Petitioners could not retain counsel in Santa Clara for this lawsuit involving the electoral process because there are no attorneys in Santa Clara who specialize in election litigation. Given the extremely truncated time frame for this lawsuit and the arcane laws and regulations governing candidates and elections, Petitioners reasonably sought legal counsel with expertise in election law and procedures. Courts have concluded that "out-of town" counsel rates will be used based on a sufficient showing that hiring local counsel was "impracticable." (Envtl. Prot. Info. Ctr. v. California Dept of Forestry & Fire Prot. (2010) 190 Cal. App. 4th 217, 249; see also Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal. App. 4th 359, 398-9.) Therefore, any argument that hourly rates charged by law firms in Santa Clara County should be used, rather than rates charged in San Francisco (to the extent they may differ) is meritless, because retaining "local" counsel was not possible in this matter. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 With respect to Petitioners' counsel's hourly rates, the $625 rate for managing partner James R. Sutton is reasonable. Mr. Sutton is a 1988 graduate of Stanford Law School, where he was a Law Review editor and a Moot Court finalist, and cum laude graduate of Pomona College. Mr. Sutton was a partner for several years at the election law firm of Nielsen Merksamer before founding the Sutton Law Firm in May 2003. Throughout his 33 year legal career, Mr. Sutton has represented clients before local ethics commissions throughout California, as well as the Federal Election Commission and California Fair Political Practices Commission. In addition, he has taught Election Law at the University of California, Hastings College of the Law and is Past President of the California Political Attorneys Association. (See Sutton Dec. 3:11-15.) The $625 hourly rate for partner Bradley W. Hertz is also reasonable, Mr. Hertz received his undergraduate degree from Brown University in 1985, his law degree from Georgetown Law School in 1988, and has practiced political and election law, like Mr. Sutton, for 33 years, including litigating numerous anti-SLAPP motions in the election context throughout California. He has served as an adjunct professor of Election Law at Chapman University Law School, and is also past President of the California Political Attorneys Association. (Sutton Dec. 4:16-19.) The $225 hourly rate charged for the work of associate attorney JP Fisher is reasonable and comparable to rates charged by attorneys of similar knowledge and experience. Mr. Fisher received his undergraduate degree from the Bard College in 2017, and his law degree from University of California Hastings College of the Law in 2020. Mr. Fisher has practiced political and election law for one year, but prior to that was a law clerk at the Sutton Law Firm for several years, and he has represented numerous clients in various litigation matters. (See Sutton Dec. 5:20.) Further, the $110 hourly rate charged for the work of research assistant Kyle Ashworth is reasonable and comparable to rates charged by similar law firms for non-attorney legal and political research, (Sutton Dec. 5:21.) As demonstrated herein and in the accompanying documents, the rates charged by Mr. Sutton, Mr. Hertz, Mr. Fisher, and Mr. Ashworth are consistent with the prevailing rates in the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 legal community for attorneys and research assistance with their experience and for cases of this nature. Each attorney has substantial experience in election and campaign finance law, has represented clients involved in Santa Clara County elections, and has litigated numerous cases in this area of the law. The Court should take these factors to be taken into account when reviewing the reasonableness of these hourly rates. (Ketchum, 24 Ca1.4th at 1138-39 ["a more skillful and experienced attorney will command a higher hourly rate"].) Finally, the Sutton Law Firm's fees have been previously upheld as reasonable in the Bay Area. Specifically, in April 2014, the Sutton Law Firm was retained by San Mateo Controller Juan Raigoza in connection with a writ of mandate challenging his qualifications for office. (Galligan v. Church, San Mateo Superior Court Case. No 527283, the Honorable Judge Lisa A. Novak presiding). Following a successful defense against the underlying writ petition and the granting of an anti-SLAPP motion, the Court awarded Mr. Raigoza $34,376 in attorneys' fees and costs. (See Sutton Dec. 6:23.) In calculating this award, the Court concluded that the hourly billing rates of $550/hour for Mr. Hertz's and Mr. Sutton's time and $300/hour for then-associate Jonathan Mintzer's time were reasonable. In light of this ruling seven years ago, the firm's current billing rates of $625/hour for Mr. Sutton's and Mr. Hertz's time, and $225/hour for Mr. Fisher's time are reasonable as well. HI. The Hours Spent by Petitioners' Counsel Are Reasonable. The number of hours spent by Petitioners' counsel on the writ of mandate, oral argument and various moving, reply and supplemental briefs are reasonable. (See Sutton Dec. 6:24-25.) As much as practicable under the extremely truncated time frame of the case, the firm had one associate, JP Fisher, do the initial research and drafting for the writ of mandate, reply briefs, supplemental briefs, and also appeared in court. Mr. Sutton utilized his expertise in election litigation, reviewed and finalized all moving papers prior to service, served as the lead counsel in oral argument, and was the primary contact for speaking with Petitioners. When necessary, Mr. Hertz provided his expertise in litigation and relevant election law. This division of labor was not MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only the most time and cost efficient way of staffing the case, but also was designed to produce the best outcome for the client. The underlying subject matter of the writ of mandate involved several complex legal and factual issues, and the case involved the important public policy question of whether the District's voters' right to elect their Board of Trustees representative should be preserved by the petition for special election - thereby also requiring an analysis of the state Elections Code and Education Code, as well as the nuances of election law deadlines and election calendaring. Determining whether Petitioners were likely to prevail on the merits of their writ petition was complicated by the fact that the provision of the state Education Code provision at issue had been the subject of very few reported cases, requiring additional research and analysis in analogous situations. In addition, Superintendent Dewan and the Office of Education's strenuous defense against the petition for special election and associated writ of mandate further justifies the number of hours spent by Petitioners' counsel. Furthermore, Petitioners' counsel performed substantial research and writing at this Court's request to submit a supplemental brief after oral argument to address the Court's specific questions and concerns. The additional time spent by Petitioners' counsel was reasonable based on the Court's request and the complicated intersection of the state Elections Code, Education Code, and Government Code, which necessitated substantial expertise and research. As with the petition for writ of mandate and associated briefs, the hours incurred as part of this fee motion are reasonable given the circumstances of the case. IV. Petitioners' Costs are Reasonable. In addition to the attorneys' fees incurred, Petitioners are also entitled to an award of costs under section CCP section 1021.5. (Beasley v. Wells Fargo Bank (1997) 235 Cal.App.3d 1420, 1421-22 [expenses ordinarily billed to a client are included in fee award under fee shifting statutes].) As to this point, the Supreme Court has stated that, when the statute does not expressly authorize the award of a specific expense, the trial court has discretion to do so to the extent the costs are "reasonably necessary" and "reasonable in amount." (Olson v. Automobile Club of Southern California (2008) 42 Cal. 4th 1142, 1149.) Using this standard, all of the costs incurred MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are reasonable, as they are normally incurred during the course of litigation. Accordingly, the Court should award costs in the amount of $1,535.64. CONCLUSION Based on the foregoing, Petitioners' respectfully request that this motion be granted in its entirety. Dated: August 27, 2021 THE SUTTON LAW FIRM, PC By: /s/James R. Sutton James R. Sutton Brad Hertz JP Fisher Attorneys for Respondents David Kissner and Shahryar Rokni MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed at the Sutton Law Firm in the City and County of San Francisco, California. On August 27, 2021, I served the foregoing documents entitled: POINTS AND AUTHORITIES IN SUPPORT OF PETITIONERS' MOTION FOR ATTORNEYS' FEES AND COSTS The above-referenced documents were served on: Marcelo Quinones, Esq. Xavier Brandwajn, Esq. Melissa Kiniyalocts, Esq. Dr. Mary Ann Dewan County Superintendent of Schools County Office of Education 1290 Ridder Park Dr. San Jose, CA 95131 marcelo.quinones@cco.sccgov.org xavier.brandwajnacco.scg_g_ov.org melis s a .kiniy alocts cco sccgov.org Mary Hanna-Weir, Esq. Counsel for Respondent Santa Clara County Registrar of Voters Shannon Bushey Santa Clara County Counsel's Office 70 W. Hedding St., Flr. 9 San Jose, CA 95110-1705 mary.hanna-weir@cco. sccgov. org Ruby Marquez, Esq. Counsel for Respondent Santa Cruz County Clerk Tricia Webber Santa Cruz County Counsel's Office 701 Ocean St., Rm. 505 Santa Cruz, CA 95060 ruby.marquez@santacruzcounty.us Brian Bock, Esq. Counsel for Respondent Lisa Fraser Superintendent, Lorna Prieta Joint Union School District The Bock Law Group, PC 31610 Railroad Canyon Road, Suite 2 Canyon Lake, CA 92587 brian@proactiveblg.com BY E-MAIL: I caused such document to be e-mailed as pdf attachments to the addressees shown above. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 27, 2021, at San Francisco, California. CJP Fisher
