In the midst of the COVID-19 pandemic in 2021, the San Diego Unified School District (SDUSD) proposed a “Vaccination Roadmap,” that would mandate that all students, aged 16 and above, get vaccinated against the coronavirus if they want to attend classes in person and participate in sports or any other after-school activities.

The Roadmap also said that any student who did not want to be vaccinated could be homeschooled. A group called “Let Them Choose” advocated for letting parents, not school districts, decide whether the Roadmap could be implemented. They filed a complaint and a petition for a writ of mandate that challenged the school district’s Roadmap.

The case came before San Diego Superior Court Judge Richard S. Whitney, who ruled for “Let Them Choose” because he determined that SDUSD’s vaccination requirement was preempted by California law. He said, “I think the state has fully occupied this field, there’s a statewide standard, and a local school district doesn’t have the authority to do something inconsistent with the statewide standard.”

The school district appealed to Division One of California’s Fourth District Court of Appeal, where Justice William Dato affirmed Whitney’s ruling in 2022. Dato explained his affirmation by saying that their case presented “issues of broad public interest.”

With this characterization in mind, “Let Them Choose” then returned to the trial court seeking attorney’s fees under California’s Code of Civil Procedure, section 1021.5. This section of the law codifies the California Supreme Court’s holding in Serrano v. Priest that ordered payment of attorney’s fees to plaintiffs who “defend important public policies and confer benefits to the public.” A different San Diego County Superior Court judge, John S. Mayer, denied the motion for attorney’s fees because he determined that the litigation “did not enforce an important right affecting the public.” Another appeal followed.

On July 18, Judge Dato, who authored the opinion, was joined by his Fourth District Court of Appeals colleagues Presiding Justice Judith McConnell and Justice Terry P. O’Rourke in ruling that “Let Them Choose” is entitled to attorney’s fees. In his opinion, he said that the trial court’s reasoning “reflects an inappropriately narrow reading of both the concept of ‘public interest’ in section 1021.5 and the beneficial effects of plaintiff’s lawsuit” which include positive public health policies and a ‘prudent precaution’ to advance them.

He further clarified that the case, however, was not about the “merits” of SDUSD’s vaccination policies. Instead, it “enforced an important right affecting the public interest by making clear that the…District was required to follow the mandatory vaccination protocols established by state law.” Thus, he continued, “…the plaintiffs’ lawsuit … enforced an important public right affecting the public interest—the right to expect that California public school districts comply with state law establishing uniform statewide procedures for school vaccine requirements. In doing so, the lawsuit conferred a substantial benefit on the general public or a large group of people within the meaning of section 1021.5.”

Dato went on to provide additional background on the cited section. He said that the purpose of the section is to “encourage lawsuits that further the public interest…by awarding substantial attorney’s fees to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.” He added that “privately initiated lawsuits are often essential to the effectuation of fundamental public policies…and that, without some mechanism authorizing the award of attorney’s fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible.”

The public policy defense led to a discussion of the criteria needed to overturn the trial court for abusing its discretion. First, it must have failed to apply the proper legal standard to determine whether its reasons for denying fees were appropriate. Second, if this criterion is met, fees are to be awarded absent “special circumstances.”

Using these criteria, the opinion acknowledged that “Let Them Choose” won their lawsuit not on the merits of SDUSD’s Roadmap but simply because its implementation was preempted by state law, reiterating that “state law fully occupied the field of school immunizations and preempted local action.” Therefore the parent group “accomplished exactly what it set out to achieve,” even though procedural issues surrounding state preemption were not their reason for bringing the suit.

He further explained that SDUSD’s Roadmap unlawfully appropriated the rules of California’s Department of Public Health, which therefore compromised the public interest. He concluded that there was nothing in the court’s opinion that would “in any way preclude the award of attorney’s fees against a large government entity…that…violated the law.”

Dato summarized the district’s ruling by writing, “No one would argue that uniform statewide standards adopted by the People’s duly elected representatives after legislative study and debate can be ignored merely because the end sought to be achieved is arguably a virtuous one. In a similar fashion, when citizens bring a successful legal action to ensure that those statewide standards are followed, a court cannot deny them statutory attorney’s fees to which they would otherwise be entitled merely because it might disagree with their ultimate aim. School District’s COVID Policies Warrant Award of Attorney’s Fees to Parent Group. A law that is not fairly applied to all protects none.”

He then sent the decision back to the trial court to determine the appropriate amount of fees that “Let Them Choose” will receive.