by Matthew heller In August 7, 2014, the five trustees of the Burbank Unified School District gathered for their regular public meeting. Although lawsuits against government agencies usually are discussed only in closed session, Mike Nolan, a local gadfly and blogger, had something he wanted to get off his chest. Five weeks earlier a Los Angeles County Superior Court judge had awarded attorneys for Danielle Baez-a former administrative secretary to the district's assistant superintendent-$3.2 million in legal fees in a hostile-work-environment case against the district and its chief facilities officer, Craig Jellison. Baez alleged that Jellison had sexually harassed her, culminating in an assault in July 2006. (Baez v. Burbank Unified Sch. Dist., No. BC372092 (Los Angeles Super. Ct. filed June 1, 2007).) In November 2013 after a 17-day trial-the third in the case-a jury found the district liable for a hostile work environment but awarded Baez just $200,000 in compensation-one-sixteenth the court's hefty award of attorneys fees and costs. The district had been represented by Nancy P. Doumanian, a La Crescenta attorney whose clients have included numerous other municipal agencies. During the hearing on Baez's motion for attorneys fees, Judge Mary Ann Murphy said Burbank Unified "fought this case with a zeal that one doesn't see very often." She noted that its lawyer had "serially and almost routinely fail[ed] to comply with the rules of the court," dragging out the litigation and driving up its cost. "A decision was made by an appointed or elected official that this is the way they are going to litigate their cases for whatever reason, and when they litigate that way, they have to pay the other side's counsel," Murphy concluded. In the school board chambers, Nolan stood at the lectern, a mane of white hair flowing to his shoulders, and launched into the board members seated at a semicircular table. "I am absolutely outraged to stand before you and hear that, for seven years, a case was dragged on," he fumed. The community, Nolan continued in his gruff voice, "can't tolerate litigation over an employee that endures seven years. It makes no sense." And "the people of Burbank deserve an explanation, not from the staff, [but] from you five [trustees] ... an accounting as to what made you believe that this course of conduct was in the best interests of the students and the taxpayers of Burbank." "Why would we tolerate [our attorney] ... not fil[ing] things in a timely manner with the court?" he asked. "How would we tolerate having no points and authorities being filed when they're required?" The district superintendent, Dr. Jan Britz, who had sat beside Doumanian at the counsel table during the second and third trials in the case, gave the expected response. "Because of litigation, I think I'm going to decline and not talk about that case," she told Nolan. But board vice president Larry Applebaum sighed and shifted in his high-backed chair. Despite the legal constraints, there was something he wanted to say. "We'll see how much of a tightrope [I] can walk here," he began. Applebaum defended the district's handling of the case and asked for the public's trust. "We're pretty educated up here, and we're pretty astute. We would not willy-nilly go down a road that we didn't feel confident was the right road, and the road that protected the district," he said. And then, in a couple of sentences, he offered insight into why the district had chosen to fight Danielle Baez in court so hard and for so long. "You wouldn't want this to become a regular thing," Applebaum said. "So sometimes you have to do the right thing to make sure that the people understand that we don't want this to be a regular thing." Even after seven years, Burbank Unified isn't finished litigating the Baez case. It is appealing both the jury verdict and the award of attorneys fees, adding lawyers at Los Angeles's Greines, Martin, Stein & Richland to the defense team. If the appeal is unsuccessful, the case could cost the district as much as $5.5 million, including what it has paid Doumanian, awards to Baez's attorneys, and accrued interest. While that amount is enough to upset constituents like Nolan, it's a fraction of the district's budget-an estimated $135.6 million this fiscal year. Moreover, those legal costs would be picked up by the district's liability insurance pool, operated under the auspices of the West San Gabriel Valley Joint Powers Authority. But the Burbank district has taken a public relations hit. Gregory Sousa, a law school graduate who ran for a seat on the school board earlier this year, told the Burbank Leader, "Because the trial judge stated a reasonable basis for the amount awarded, the appeal is likely to fail-and in the end, our schools will lose more than $3.2 million that are badly needed elsewhere." The Baez case may be only the tip of an iceberg, according to plaintiffs lawyers with substantial experience litigating against other school districts. John C. Manly, a veteran sexual-abuse litigator at Manly, Stewart & Finaldi in Irvine, says defending cases tooth and nail often has the blessing of the joint powers authorities (JPAs) that administer school district liability policies. "They like to take the gloves off and fight," he says. "It doesn't matter what the merits of the case may be." Manly believes many would-be plaintiffs have gotten the message. "If you're a plaintiffs lawyer," he says, "you know it's going to cost you $250,000 to $500,000-and three to four years, if not more time-to get a real recovery. [The JPAs] know 95 percent or more of plaintiffs lawyers won't take these cases." David M. Ring, of Taylor & Ring in Los Angeles, adds: "A lot of defendants, including school districts, will fight aggressively in hopes of dissuading the [plaintiff's] lawyer from bringing another case against the same district down the road. It's absolutely a tactic they use." When Danielle Baez first walked into the Torrance law offices of Victor L. George and Wayne C. Smith, it was early 2007 and the veteran plaintiffs attorneys had recently won a $5 million sexual-harassment verdict against a Malibu restaurant. That verdict included punitive damages, a remedy not available against a public entity. But George and Smith knew that if Baez prevailed in a lawsuit against Burbank Unified alleging a hostile work environment and harassment, she would be entitled under California's Fair Employment and Housing Act (FEHA) to recover reasonable attorneys fees and costs. (Cal. Gov't Code Â§ 12965(b).) As George listened to Baez recount her experiences as a district employee, he says, she "seemed very credible ... like a solid member of society. A mom, working, two children." When she described what Jellison had allegedly done to her, "I didn't see any reason why she should dream up this story." Baez began working for Burbank Unified as a "budget tech" in May 2004. According to court records, during her first year at the district she considered Jellison, one of her superiors, a friend. But in December 2005 he allegedly began pursuing a sexual relationship with her, barraging her with sexually charged emails. "You let Doctors examine It, strangers wax It, Your husband poke it and you play with It but your friends aren't allowed five minuets [sic] with it. Now that hardly seems fair!" he wrote in one. Baez replied in an email, "Great Response. I actually laughed out loud," and then she inquired, "Lunch tomorrow?" The following July 26, Baez alleged, Jellison "lured" her to his office to discuss the possibility of a transfer to his department. After locking the door, according to Baez's court filing, he started to assault her, putting his hands up her skirt and grabbing her breast. She protested and tried to leave the office, but Jellison caught up with her and pinned her to the wall. She was able to flee only after slapping him in the face. However, it wasn't until February 2007 that Baez reported Jellison's alleged misconduct to anyone at Burbank Unified. At the time, the district was investigating allegations that Baez was having an inappropriate sexual relationship with her supervisor, assistant superintendent Steve Bradley. She denied she was having an affair and told the district's investigating attorney that Jellison had assaulted her. The attorney, Sukhi Sandhu, expanded her investigation of the Bradley-Baez relationship to interview Jellison, who denied any assault. According to court documents, Sandhu concluded there was "sufficient credible evidence to support some of the allegations" Baez made and that "the conduct that took place in the room more closely comports with Ms. Baez's version of the events than Mr. Jellison's." But in a letter to Baez on May 30, 2007, the district superintendent at the time, Gregory Bowman, informed Baez instead that Sandhu had determined there was insufficient evidence to support her charges. "[T]he Investigator determined that while certain conduct may have taken place between you and Mr. Jellison in Mr. Jellison's office that day, it was either not as you described and/or not unwelcome." Two days later, Baez, who by then had taken a medical leave from her job and not returned, filed her lawsuit, alleging sexual harassment and related claims. Baez's lawsuit set into motion a well-oiled litigation defense system that is used by most California school districts. A claim is referred to a district's insurance pool or joint powers authority, which is sometimes managed by a third-party administrator such as Marsh & McLennan, Keenan & Associates, or Driver Alliant Insurance Service. The JPA or administrator then retains defense counsel to litigate the claim. "It's a very similar situation to the insurance industry," says Daniel R. Shinoff, a veteran defense litigator with Stutz Artiano Shinoff & Holtz in San Diego. School district defense teams have no shortage of business. "You have an employee population that is, No. 1, very sophisticated and, No. 2, very comfortable in asserting their rights," says Shinoff. "So there tends to be a lot of litigation regarding public employees." In the past three fiscal years, for instance, the San Diego County Schools Risk Management JPA steered $4.6 million in billings to Stutz Artiano-more than 70 percent of the total legal work it distributed. A report by School Services of California, Inc., a Sacramento-based consulting firm with a clientele of public school agencies, found that in three school years, 199596 through 199798, some 650 California districts spent about $250 million on tort-liability expenses that "could have gone to essential education services." The report, prepared for the American Tort Reform Association, noted, "Especially in the big-ticket lawsuits, settlement amounts are often overshadowed by attorney costs." But according to Shinoff and other defense lawyers, most of the time districts try to settle cases up front. "I haven't seen school districts try to make any 'statement' to the plaintiffs' bar," says Jeff C. Marderosian, a general counsel for school districts who has represented Burbank Unified in the past. If a JPA thinks a district should settle a case, he adds, "they're going to throw the gauntlet down and say, 'We're done.' " Shinoff insists "there's really no upside" for a district to put up a protracted legal fight. "Attorney fees ... are something that every defendant is very cognizant of. They're not going to fight unless they have a very good case." He adds, "My experience with board members is, they take the issues very seriously. They're doing their best to make sure employees are working in an environment that is free from harassment and discrimination." In the Baez matter, the defense contract went to Nancy Doumanian. A graduate of the Southwestern University School of Law, she was admitted to the Bar in 1993 and practiced with Carpenter & Rothans in Los Angeles, where her municipal clients included the cities of Gardena and Glendora, and the Inglewood Unified School District. By 2000 she had opened her own shop, Doumanian & Associates. Among the school districts she has represented are Lancaster, Sulphur Springs, and Glendale Unified. Defense attorney Marderosian worked with Doumanian on several cases. "I have always found her to be very competent, extremely competent. ... I've found her to be very, very thorough," he says. Baez's attorneys George and Smith believe that Burbank Unified and its lawyers decided to take a no-holds-barred approach to the case even before the suit was filed, citing as evidence Superintendent Bowman's May 2007 letter to their client. "Certainly, they were giving her misinformation," George says. The litigation soon became mired in heated discovery disputes. "Your office is claiming a privilege on emails our client provided your investigator [Sandhu] during the investigation!" Smith wrote Doumanian in March 2008. The defense also asserted attorney-client privilege and the work-product doctrine as grounds for refusing to turn over the file from Sandhu's investigation. After oral argument, the trial court denied Baez's motion to compel production. "It's, 'Hey, you owe me this,' and you get 'No,' " Smith says. "That response forces us to go into court to get the relief that we're entitled to get," Smith says. And those delays were costly. From the outset, Doumanian rested her defense on the theory that Baez concocted allegations against Jellison to cover up her affair with Bradley. "The plaintiff's intimate relationship with Mr. Bradley permeates the heart of both liability and damages in this case," Doumanian claimed in an August 2008 filing. Seeking support, she moved to compel the deposition of Baez's husband, subpoenaed a plastic surgeon whom Baez had consulted, and attempted to paint the plaintiff in the most lurid of colors. "Plaintiff was literally caught with her pants down during one of her sexual trysts with Bradley at the School District's offices," she wrote in a brief. California Evidence Code Section 1106, however, provides that "evidence of specific instances of plaintiff's sexual conduct ... is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff." Nevertheless, according to Baez's attorneys, Doumanian was relentless in bringing up Baez's alleged infidelity. "It doesn't matter what the [legal] issue was ... Nancy always started off every introduction with this sordid rendition of facts about the alleged affair," Smith recalls. "It was a constant barrage about this marital infidelity issue." In December 2008 the defense suffered a setback when the Second District Court of Appeal ordered production of the Sandhu investigative file, holding that disclosure was essential for fair adjudication of the action. (Baez v. Superior Court, 2008 WL 5394067 (Cal. Ct. App.).) In a footnote, the panel said the school district had "inappropriately" opened its response to the plaintiff's petition for a writ of mandate with "unsupported allegations regarding Baez and further devotes several additional pages to purported quotations from 'salacious' emails it says Baez and Bradley exchanged." Doumanian, in fact, had begun the brief by writing, " 'Caught with her pants down. ...' This is literally how the petitioner's torrid love affair with her supervisor, Steve Bradley, was discovered by a night custodian at the school district's offices." By the time Smith actually received the investigative file, he had only a few weeks to complete discovery. On the first day of trial Judge Joanne B. O'Donnell handed Doumanian a huge victory, ruling that Burbank Unified was entitled to introduce evidence of the Bradley affair to show that Baez "may have manufactured the claim of Jellison's sexual assault to deflect attention from the District's investigation of her conduct with Bradley." The judge also denied Baez's motion to exclude testimony about a miscarriage she had suffered; the defense insinuated that the pregnancy resulted from her relationship with Bradley. As soon as O'Donnell announced that ruling, George turned to Smith at the counsel table and told him, "Unfortunately, we're going to have to lose the trial, then we're going to have to win the appeal, and then we're going to have to win the next trial." In July 2009, the jury indeed returned a verdict in favor of the district. Doumanian had prepared the way from her opening statement, describing emails that Baez and Bradley had exchanged as "dirty" and "filthy." According to one juror's posttrial declaration, 35 to 40 percent of the jury's deliberations was devoted to the Baez-Bradley affair, including speculation about who was the father of her miscarried fetus. The juror said other members of the panel commented to the effect of "[S]he slept with her own boss, c'mon ... how can you believe her?" Baez appealed in October 2009, adding appellate specialist Norman Pine of Sherman Oaks's Pine & Pine to her legal team. The appellants argued that the trial court's admission of Baez's sexual conduct with anyone other than Jellison was plain legal error. Two-and-a-half years elapsed before the Second District unanimously reversed the defense judgment and ordered a new trial. The court ruled that evidence on the Baez-Bradley affair could not be admitted either to undercut causation of damages, or to attack the plaintiff's credibility. "[T]he question of whether Jellison sexually assaulted Baez on July 26, 2006, was lost in a trial focused on Baez's relationship with Bradley," wrote Justice Norvell "Fred" Woods. He added, "[t]he suggestion that Baez fabricated the allegation against Jellison" to deflect attention away from the investigation of her relationship with Bradley was "particularly tenuous." (Baez v. Burbank Unified Sch. Dist., 2012 WL 1571517 (Cal. Ct. App. (unpub.)).) With its defense theory essentially gutted, Burbank Unified might have considered settlement. Over the course of the litigation, in fact, the parties participated in two full-day sessions with mediators and in five mandatory settlement conferences with a judge. But none of those efforts proved fruitful. At the Burbank Unified board meeting in August 2014, Larry Applebaum made an oblique reference to why the case persisted. "When [a settlement] demand is beyond outrageous, you have to do something to protect the taxpayers' dollars," he said. Defense attorney George won't discuss specifics of settlement negotiations, but he says that if he had made a specific demand, "The expectation would be the other side would make some good faith [counteroffer]. ... If that doesn't take place, what are you going to do?" The district's resistance may also reflect an understandable reluctance to admit liability in a case implicating its top personnel. Baez's accusation that Jellison had sexually assaulted her, says George, was "a very bad allegation toward a high-ranking member of upper management of the district." For a school district, adds defense attorney Shinoff, "There's reputational injury to consider with this sort of case." Individual officials accused of wrongdoing, he says, may "feel equally offended." Plaintiffs attorneys contend some school districts have been known to sanction excessive, no-holds-barred litigation even when their liability is clear. When Becky Romano, a high school assistant principal, claimed she was forced out of her job after suffering a work-related injury, Allen R. Ball of Ball & Yorke in Ventura filed what he thought was a routine wrongful termination lawsuit. (Romano v. Oxnard Union High Sch. Dist., No. CIV238657 (Ventura Super. Ct., filed Jan. 19, 2006).) "There was never any real question there was going to be a verdict on behalf of Ms. Romano," Ball asserts. He says he made an initial offer to settle the case for $75,000. But the Oxnard Union High School District fought him to the "nth degree," he says, filing a blizzard of discovery motions. After two years of litigation and with a trial looming, the district settled the claim for $150,000. The Ventura Star later discovered through a California Public Records Act request that defense counsel Dennis J. Walsh had billed the school district $532,123 in fees and costs. "It's not an effective use of taxpayers' money when you spend $532,000 on a case that settled for $150,000," Ball says. Manly cites one of his cases involving a girl with special needs who was molested by a school bus driver. Among other indications of liability against the Lodi Unified School District, he says, school officials had testified they knew the driver had a prior misdemeanor conviction for having sex with a prostitute. The district, however, contested the claim right through the liability phase of a jury trial. After losing that verdict, it settled for $4.75 million-one of the largest payouts of its kind in California. (Diana C. v. Lodi Unified Sch. Dist., No. 39-2011-00267549 (San Joaquin Super. Ct. filed Aug. 4, 2011).) The Baez retrial got under way in October 2013, with Judge Murphy presiding. But just a week later, on the fifth day of trial, she declared a mistrial due to defense misconduct. Murphy cited repeated references in Doumanian's opening statement to Baez being investigated for "serious misconduct" on the job, even though the Court of Appeal had ruled the Bradley affair off limits. Also, the jury was not supposed to know there had been a previous trial. But Doumanian brought into court a cart of white exhibit binders labeled "Trial Testimony," which she placed facing the jury. "If I had a tape measure, I would say it was less than five feet from one end of the jury box," Murphy said. "It's about the integrity of the court's order. It's about the fact that counsel still doesn't think she has violated any of the orders in arguing this motion, and in fact, she and her witness have violated the order, first witness out of the box in this trial. This is unacceptable." Murphy ordered jury selection for a third trial to begin the next day, denying Doumanian's request for a hiatus. The original duration was estimated at five days for the plaintiff's case and two days for the defense, but the trial dragged on for three weeks. "There was a constant request for sidebars, where Nancy would [claim], 'Your Honor, they've opened the door [to evidence about the Bradley affair], they've opened the door,' " Smith recalls. "Judge Murphy would say, 'They didn't, and that door will stay shut.' " Finally, in November 2013, the jury found for Baez on the hostile-work-environment claim, awarding her $99,398 for past economic loss and $100,000 for physical pain and mental suffering. It also found that Jellison had not touched Baez with the intent to harm and offend her on July 26, 2006, but did cause her emotional distress. The relatively low award appeared to vindicate the district's strategy, and it didn't give the plaintiffs lawyers much to celebrate. In contingency fees, George and Smith were looking at a meager return for thousands of hours of labor. But FEHA has that kicker: The statute allows the court, "in its discretion," to award "reasonable attorney's fees and costs" to the prevailing party. (Cal. Gov't Code Â§ 12965(b).) In their motion for fees, George and Smith calculated a lodestar figure of more than $1.6 million, based on 2,612 hours of work. That sum, they argued, should be enhanced by a multiplier of two to compensate them for the risk of taking the case. "Plaintiff managed to prevail in this action against both the large Burbank Unified School District and Ms. Doumanian," they said, comparing the case to a "David versus Goliath" struggle. They attached to their motion a declaration from Nathan Goldberg, a partner at Allred, Maroko & Goldberg in Los Angeles who earlier had faced Doumanian in a hostile-work-environment case brought by his client, Elizabeth Pop, against her former supervisor at the Pasadena Area Community College District. Los Angeles County Superior Court Judge Rita Miller granted Pop a new trial, admonishing Doumanian for making misrepresentations of law and evidence during closing argument that resulted in "a miscarriage of justice." Among other things, Doumanian had told the jury, "You cannot even award [the plaintiffs] a dollar out of sympathy. ... If you award one dollar to the plaintiffs, they get to collect all of their attorney fees." After Pop prevailed in the retrial, the court awarded Goldberg $950,000 in fees and costs. "Nancy Doumanian ... took a scorched-earth approach on behalf of her client and was unwilling to engage in any serious effort to resolve the case," he wrote in his Baez declaration, adding that his experience litigating against her was "terribly frustrating and disheartening." Doumanian did not respond to several requests for an interview. As the hearing on Baez's fees motion got under way in July 2014, Judge Murphy said, "Th[is] case has involved some of the most brutal, hard-fought litigation I have ever seen in any case, employment or otherwise. We have a public entity funded by taxpayer dollars, the taxpayers of the City of Burbank, and for whatever reason, the Burbank Unified School District has decided, an elected or appointed official, to retain Ms. Doumanian's law firm, and the litigation has been replete with rule violations necessitating extra time and work on the plaintiff's side, and certainly on the court's." Doumanian's defense, Murphy observed, "was not always cricket." The judge elaborated: "Many aspects of the defense, particularly the rule violations and filing documents, voluminous documents on the day of the hearing and having the court ... put over and reconsider motions so it could consider late filed documents ..., drove up the cost of litigating the case on the plaintiff's side." Then the judge added a personal note. "The one thing that struck me in the trial, that I remember to this day, is the superintendent of the Burbank Unified School District-I think she was a PhD-sitting next to Ms. Doumanian and they were both looking over at Ms. Baez laughing at her with a mocking manner, and I called that out. That is noted in the transcript. So this is coming from the top of the school district. They have seen how their litigation is being handled. Laughing at the plaintiff in a mocking way with the defense attorney." Murphy concluded, "Except for the ethical issues and the rule violations, which I'm going to put over to one side, [the district is] perfectly entitled to litigate that way, perfectly entitled to. But when they do and they lose, they are going to have to pay for the plaintiff's firm that decides they are going to meet them every time ... and are not going to roll over." With that she ordered Burbank Unified to pay George and Smith's firm $2,956,000 (it had agreed to take a 10 percent haircut on its original request), and to pay appellate attorney Pine another $260,604. Doumanian's assertion that the attorneys fees should be reduced because the defendant is a public entity, Murphy said, "is not well taken," noting that the district "has an unlimited war chest." In perhaps her most pointed comments, Murphy speculated about the school board's motivation for its defense strategy. A "take-no-prisoners approach," she said, might make it hard for plaintiffs to "attempt to vindicate rights and possibly hav[e] a chilling effect on any employees that wanted to sue the district. You know, 'We will make you litigate for seven years. We will fight you on the land, on the sea, and in the air.' " For her part, Doumanian was uncharacteristically subdued at the hearing. "I don't want the court to presume by my silence that I agree with any of the comments about misconduct or rule violation," she said at the hearing. "The record speaks for itself." She denied expressing any disrespect toward the plaintiff in the courtroom. "I dispute your commenting that Dr. Britz, an educator, was laughing at Ms. Baez, because she wasn't," Doumanian told Judge Murphy. And she added, "Sure, I can concede some of my pleadings didn't have tabs and page lines. But I hope the justice is about justice and not about complying with what the Court of Appeal has noted is hypertechnicalities. Then Doumanian said, without irony, "I don't believe there was anything difficult or complicated about this case, and your reference to my putting on an aggressive defense, I had no problems with Judge O'Donnell in the first trial. ... It was a different experience in the retrial before Your Honor, but nothing about that experience makes it a complex or difficult case ... so I don't think the application of a [fee] multiplier is at all appropriate." About a month later at the school board meeting, Applebaum made his comment about the district not wanting to make "this" a "regular thing." He told the Burbank Leader that the board appealed the case to protect taxpayers. "This board has not lost our mind, and we have in fact exercised common sense and prudence," he said. Because the decision had to be made behind closed doors, Applebaum added, "the community has to either trust the people they elect ... or vote us out." While his candor was unusual, plaintiffs lawyers contend the district's attitude isn't a surprise. "The biggest problem with school district litigation is, there is no ombudsman ... no person close to the case who can keep an eye on how the defendant is spending taxpayers' money," Allen Ball argues. Board members, he stresses, "make decisions based on recommendations of risk management and the defense attorney ... The risk manager doesn't want to admit any wrongdoing." At the end of the day, Manly adds, a protracted defense strategy "hasn't proven to be effective. Quite the contrary-a lot of these cases could have been settled for far less money early on if they'd just been reasonable." Burbank Unified, meanwhile, continues to invest in the Baez case. The appellant's opening brief by Doumanian and attorneys at Greines Martin includes arguments that evidence of Baez's marital problems-including her divorce petition-could have been admitted on the issue of damages without referencing her affair with Bradley. And it contends the trial court committed fundamental error by admitting into evidence-and permitting plaintiff's counsel to read aloud to the jury-investigator Sandhu's conclusion that she believed "the conduct that took place in the room more closely comports with Ms. Baez's version of the events than Mr. Jellison." The tone of the brief, though, is relatively dry: Evidence of the plaintiff's marital difficulties, the appellate attorneys state, "was obviously highly probative and directly relevant to one of the central issues in the case-the impact of Jellison's conduct on her emotional state." There are no rhetorical flourishes. And no mention of anyone being caught with their pants down. Matthew Heller is a Los Angelesbased freelance writer.