Judge: James C. Chalfant, Case: 21STCP00108, Date: 2022-08-23 Tentative Ruling

Case Number: 21STCP00108    Hearing Date: August 23, 2022    Dept: 85

            “[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.”  People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc., (2007) 147 Cal.App.4th 424, 429.

            Government Code section 6259 (“section 6259”) provides in part: “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”  §6259(d).  The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official.  Id.

            The attorney’s fee provision of the CPRA should be interpreted in light of the overall remedial purpose of the Act to broaden access to public records.  Community Youth Athletic Center v. City of National City, (2013) 220 Cal.App.4th 1385, 1447.  Indeed, the purpose of the attorney’s fees provision is to provide protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure.  Community Youth Athletic Center v. City of National City, 220 Cal.App.4th at 1447.  The use of the word “shall” in a fee statute means the award is mandatory and, as such, an award of fees to prevailing petitioner in a CPRA action is mandatory.  Belth v. Garamendi, (1991) 232 Cal.App.3d 896, 899-900. 

            Generally, the plaintiff prevails for purposes of attorney’s fees under the CPRA “when he or she files an action which results in defendant releasing a copy of a previously withheld document.”  Belth v. Garamendi, (1991) 232 Cal. App. 3d 896, 898.  Cases denying attorney’s fees to a plaintiff under the CPRA have done so because “litigation did not cause the [agency] to disclose any of the documents ultimately made available…”  Motorola Communication & Electronics, Inc. v. Department of General Services, (1997) 55 Cal. App. 4th 1340, 1351; Rogers v. Superior Court, (1993) 19 Cal. App. 4th 469, 483. 

            The petitioner bears the burden of proof as to the reasonableness of any fee claim.  CCP §1033.5(c)(5).  This burden requires competent evidence as to the nature and value of the services rendered.  Martino v. Denevi, (1986) 182 Cal.App.3d 553, 559.  “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” Id.  “‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate.  This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.’”  Center For Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 619 (citations omitted).

            A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred.  See Hadley v. Krepel, (1985) 167 Cal.App.3d 677, 682.  “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  Lunada Biomedical v. Nunez, (2014) 230 Cal.App.4th 459, 488.

            In determining whether the requested attorney’s fees are reasonable, the court’s “first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate.  The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.”  Gorman v. Tassajara Development Corp., (2008) 162 Cal.App.4th 770, 774 (“Gorman”).  In adjusting the lodestar figure, the court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. EnPalm LLC v. Teitler, (2008) 162 Cal.App.4th 770, 774; see also PLCM Group, Inc. v. Drexler, (2000) 22 Cal.4th 1084, 1095.

            2. Statement of Facts

            a. Perroni’s Evidence

            Background

Perroni first began investigating Wood’s death for purposes of authoring a book in early 2014.  Perroni Fee Decl., ¶2. He soon realized that information from LASD and the medical examiner would be critical.  Perroni Fee Decl., ¶2.  He therefore made a CPRA request for those documents on May 19, 2015, only for LASD to claim an exemption on July 2, 2015.  Perroni Fee Decl., ¶4.  On July 30, 2015, Perroni replied that LASD had waived any exemption by disclosing them to authors like Suzanne Finstad (“Finstad”); the LASD did not respond.  Perroni Fee Decl., ¶¶ 4-5.

            In 2015, Perroni filed a petition against LASD based on this CPRA request.  Perroni Fee Decl., ¶¶ 3, 6.  Before the deadline to respond to requests for admission, LASD conceded that about 241 pages of records were subject to disclosure and these pages were disclosed.  Perroni Fee Decl., ¶6. Based purely on Detective Ralph Hernandez’s recollection about what Finstad told him, LASD claimed that Finstad only had access to certain parts of its file and produced only those portions.  Perroni Fee Decl., ¶¶ 8-9.  Perroni also obtained a report from the County Coroner as part of his petition.  Perroni Fee Decl., ¶6.

            In 2017, Perroni filed a second CPRA Petition seeking two letters that LASD and a former member of the Board of “Commissioners”, Michael Antonvich (“Antonvich”), denied having.  Perroni Fee Decl., ¶11.  Eventually the respondents admitted they had a duty to retrieve the letter from Antonvich, which hung in his office for 35 years until just before Perroni filed the 2017 petition.  Perroni Fee Decl., ¶11.  Antonvich and the County pledged via settlement agreement to provide the letter if they found it.  Perroni Fee Decl., ¶11.  To date they have not.  Perroni Fee Decl., ¶11.

            In 2020, Finstad republished her book on Wood’s death detailing what documents LASD had allowed her and her mother Elaine Finstad (“Elaine”) to review.  Perroni Fee Decl., ¶12.  Her book provided a list of documents that she reviewed which exceeded the items Perroni received through his 2015 petition.  Perroni Fee Decl., ¶13.  Perroni emailed Detective Louis Danoff, the officer whom Finstad claimed had given her access to the “murder book”.  Perroni Fee Decl., ¶14.  He confirmed that every LASD death investigation yields a murder book with a variety of information and reports, with the size varying based on the scope of the investigation.  Perroni Fee Decl., ¶14.

            Using Finstad’s book, Perroni demanded that LASD produce the full murder book she described.  Perroni Fee Decl., ¶15.  When LASD refused, Perroni moved to enforce the court’s rulings on the 2015 petition.  Perroni Fee Decl., ¶15.  In September 2020, however, the court ruled that it did not have jurisdiction to amend the previous orders.  Perroni would have to file a new CPRA request, depose Finstad in a new lawsuit, and obtain sworn testimony regarding her access to the murder book.  Perroni Fee Decl., ¶16.

            The Requests

            On October 8, 2020, Perroni made ten new CPRA requests to LASD.  Perroni Fee Decl., ¶17.  LASD requested a 14-day extension and subsequently did not respond for months.  Perroni Fee Decl., ¶18.  Perroni filed this Petition on January 14, 2021.  Cate Fee Decl., ¶15; Perroni Fee Decl., ¶¶ 17, 19. 

            On June 23, 2021, during discovery, LASD produced library check-out records responsive to Requests No. 2 and 3, claiming that any records responsive to five other requests (Requests 1, 5, 6, 7, 9) were exempt form disclosure.  Cate Fee Decl., ¶17, Ex. 3; Perroni Fee Decl., ¶20.  Of these five requests, LASD expressly admitted the existence of documents responsive to Request No. 5 and refused to disclose them.  Perroni Fee Decl., ¶22.  On June 28, 2021, LASD indicated that it could not find the item responsive to Request No. 10.  Perroni Fee Decl., ¶21.

            Because LASD was asserting investigatory privilege and Perroni asserted that LASD had waived it, Perroni conducted five non-frivolous depositions and otherwise expended considerable effort in establishing the factual basis for this argument.  Cate Fee Decl., ¶¶ 28-30.

            The Court’s Ruling

            The court’s tentative decision dated February 22, 2022 ruled that, while LASD had produced the records responsive to Requests No. 2 and 3, ,Perroni was the prevailing party on those requests because the timing of production suggested that Perroni’s lawsuit motivated production.  Cate Fee Decl., ¶17, Ex. 3; Perroni Fee Decl., ¶23.  The tentative also ruled that for Request No. 5 the County may either provide a privilege log or submit relevant records of LASD’s communications for in camera review.  Cate Fee Decl., ¶17, Ex. 3.

            The tentative denied the Petition for the other requests.  Cate Fee Decl., ¶17, Ex. 3.  As to the waiver argument underlying request No. 9, author Finstad had claimed that she previously accessed the murder book.  Ex. 3.  However, the court opined that (1) CCP section 129(a) applied to prohibit disclosure of photos of Wood’s remains even when otherwise authorized by law, like through prior disclosure; and (2) notwithstanding Finstad’s claims, the evidence indicated that she did not have access to the complete file.  Ex. 3.

            At the hearing on February 22, 2022, the court reaffirmed that the delayed production of check-out records pursuant to Requests No. 2 and 3 during the litigation demonstrated that the lawsuit motivated production.  Cate Fee Decl., ¶¶ 19-20, Ex. 4.  As to Request No. 5, the court stated that if any documents were required to be produced after in camera review, Perroni should be considered the prevailing party for such records.  Cate Fee Decl., ¶22, Ex. 4. 

            Following an in camera review on March 22, 2022, the court found that some portions of a text string between Finstad and LASD officers were subject to disclosure pursuant to Request No. 5.  Cate Fee Decl., ¶24, Ex. 5; Perroni Fee Decl., ¶24.  LASD produced these messages on April 5, 2022, totaling nine redacted pages.  Cate Fee Decl., ¶¶ 25-26, Ex. 6; Perroni Fee Decl., ¶25.  On April 11, 2022, LASD sent a revised version with a few lines that were inadvertently absent from the original due to the nature of the screenshots.  Cate Fee Decl., ¶25, Ex. 7.

            Throughout multiple rounds of litigation, LASD has resisted Perroni’s efforts to obtain its records and even find out what those records included.  Perroni Fee Decl., ¶28.  The files obtained through this petition have helped Perroni’s research into Wood’s death.  Perroni Fee Decl., ¶29.

            The Attorney Rates and Hours

The Arkansas firm of Quattlebaum, Grooms & Tull PLLC (“QG&T”) was Perroni’s primary counsel in this case, with Murchison and Cumming, LLP (“M&C”) providing local counsel.  Longo Fee Decl., ¶4.  The attorneys’ hourly rates were (1) $350 per hour for Brandon Cate, Esq. (“Cate”), (2) $375 per hour for Vincent Chadick, Esq. (“Chadick”); (3) $220 per hour for Philip Elmore, Esq. (“Elmore”), (4) $160 per hour for Paralegal Larissa Huff (“Huff”), (5) $325 per hour for Dan L. Longo, Esq. (“Longo”), and (6) $275 for Suzanna Harman, Esq. (“Harman”).  Cate Fee Decl., ¶5. 

QG&T spent at total of 459.2 hours on the matter, for a total billed amount of $136,697.00.  Cate Fee Decl., ¶10, Ex. 1.  QG&T deposed five witnesses: (1) Finstad, (2) Elaine, (3) former LASD Detective Louis Danoff, (4) Detective Hernandez, and (5) Albert Grotefend (“Grotefend”).  Cate Fee Decl., ¶29.  M&C spent a total of 41.3 hours, for a total billed amount of $11,427.50.  Cate Fee Decl., ¶11, Ex. 2.  The total fees are $148,124.50 for 500.5 hours of legal work.  Cate Fee Decl., ¶12.

            As of May 24, 2022, 51.2 of these hours were expended on this motion.  Cate Fee Decl., ¶12.  QG&T spent an additional 59.1 hours preparing the reply for additional fees of $15,329.00.  Cate Fee Reply Decl., ¶3, Ex. 1.  M&C has spent an additional 0.4 hours for the reply and incurred $130 fees.  Cate Fee Reply Decl., ¶3.

            b. LASD’s Evidence

            LASD has divided Perroni’s attorney’s fees time sheets into the following:

            (1). 50 hours totaling $13,710 for Elaine’s deposition.  De La Fuente Fee Decl., ¶6, Ex. 4A;

            (2). 23.6 hours totaling $8,164.50 for Finstad’s deposition.  Ex. 4B;

            (3). 15.9 hours totaling $5,049.00 for Hernandez’s deposition.  Ex. 4B;

            (4). 12.2 hours totaling $3,068.00 for Danoff’s deposition.  Ex. 4B;

            (5). 8.2 hours totaling $2,932.50 for Grotefend’s deposition.  Ex. 4B;

            (6). Entries for 100.7 hours of block billing totaling $34,273.00.  Ex. 4C;

            (7). 14 hours totaling $3,547.00 for the pro hac vice application of QG&T.  Ex. 4D;

            (8). 89.7 hours totaling $25,436.00 for discovery motions.  Ex. 4E;

            (9). 4.4 hours totaling $1,550.00 for discussions on “strategy issues”.  Ex. 4F;

            (10). 7 hours totaling $1,540.00 for drafting an ex parte application to extend the trial date and briefing times.  Ex. 4G; and

            (11). Entries for 266.1 hours of duplicate work totaling $77,973.50.  Ex. 4H.

            3. Analysis

            Perroni moved for an award of $148,124.50 against LASD, which included $15,628 in fees for preparation of the fee motion.  In reply, Perroni seeks an additional $14,559 for additional work since the fee motion was filed.  The total fees sought are $162,723.50 ($148,124.50 + $14,559).

            a. Entitlement

            The general rule regarding a request for attorney’s fees under the CPRA is that the plaintiff prevails within the meaning of the statute “when he or she files an action which results in defendant releasing a copy of a previously withheld document.”  Belth v. Garamendi, supra, 232 Cal. App. 3d at 898.  Cases denying attorney’s fees to a plaintiff under the CPRA have done so because “litigation did not cause the [agency] to disclose any of the documents ultimately made available…”  Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal. App. 4th at 1351. 

            Perroni points out that the court concluded at the trial that he was the prevailing party for production of the library check out information (Requests 2 and 3) and that Perroni would be the prevailing party for Request 5 if any documents were produced after the in camera review.  In fact, Perroni obtained a text string of nine redacted pages from the 2019 communications between Detective Hernandez and Finstad.  As a result, he seeks entitled to attorney’s fees under section 6259(d).  Mot. at 6-8.

LASD admits that the court found Perroni is the prevailing party for the checkout records, but a prevailing party can still not achieve an award of attorney’s fees if the result was minimal and insignificant.  James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., (“James L. Harris”) (2015) 239 Cal.App.4^th 1214, 1221.  While Perroni sought the entire 1981 LASD investigation file for Wood’s death, all he obtained were two pages of checkout records and nine pages of heavily redacted text messages.  Thus, he received a tiny fraction of what he sought.  The court should deny any award of attorney’s fees as minimal and insignificant.  Opp. at 6-8.

LASD relies on Riskin v. Downtown Los Angeles Property Owners Assoc., (“Riskin”) (2022), 76 Cal.App.5th 438, 447, in which the court held that, as in non-CPRA cases, a trial court in a CPRA case has discretion to determine whether the production resulting from the litigation was so minimal as to render the petitioner not a prevailing party.  Id. at 446-47.  The trial court determines the prevailing party on a practical level only upon final resolution of the claims and by comparing the extent to which each party succeeded and failed in its contentions.  James L. Harris. Supra, 239 Cal.App.4th at 1221. 

            It is true that Perroni lost on his principal goal: to obtain LASD’s so-called murder book or investigative file.  He claims, however, that the text messages prove that LASD has a murder book.  Reply at 3.  Perroni Fee Decl., ¶24, Ex. 6.  Not so.  Finstad’s reference to a murder book does not prove that one exists.

Nonetheless, the production of the checkout records and texts is not minimal success.  While some may not view these records as important, Perroni states that the documents he received in this case have been helpful to his investigation into Wood’s death.  Perroni Fee Decl., ¶29.  Each record was important to him and aids him as an authority on her death.  Id.  The court accepts that significance for purposes of this motion.

            The production in this action was not minimal or insignificant.  Perroni is the prevailing party and entitled to reasonable attorney fees.

            b. Reasonableness

            The court employs the lodestar analysis when looking to determine the reasonableness of an attorney’s fee award.  The lodestar figure is calculated by multiplying the number of hours reasonably spent by the reasonable market billing rate.  Serrano v. Priest, (1977) 20 Cal.3d 25, 48. The petitioner bears the burden of proof as to the reasonableness of any fee claim.  CCP §1033.5(c)(5).  This burden requires competent evidence as to the nature and value of the services rendered.  Martino v. Denevi, (1986) 182 Cal.App.3d 553, 559.  “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” Id.

            “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  Lunada Biomedical v. Nunez, (2014) 230 Cal.App.4th 459, 488.

            (i). Hourly Rates

The attorneys’ hourly rates were (1) $350 per hour for Cate, (2) $375 per hour for Chadick; (3) $220 per hour for Elmore, (4) $160 per hour for Huff, (5) $325 per hour for Longo, and (6) $275 for Harman.  Cate Fee Decl., ¶5. 

LASD does not dispute the hourly rates of Perroni’s attorneys. 

(ii). Hours

QG&T spent at total of 459.2 hours, for a total of $136,697.  Cate Fee Decl., ¶10, Ex. 1.  M&C spent a total of 41.3 hours, for a total of $11,427.50.  Cate Fee Decl., ¶11, Ex. 2.  The total fees through preparation of the motion are 500.5 hours for $148,124.50 in legal work.  Cate Fee Decl., ¶12.

            An additional 59.1 hours were expended by QG&T for the reply, for additional fees of $15,329.00.  Cate Fee Reply Decl., ¶3, Ex. 1.  M&C spent an additional 0.4 hours for the reply, for $130 in additional fees.  Cate Fee Reply Decl., ¶3.  The total fees sought are $162,723.50.

LASD dispute the reasonableness of the hours based on (1) Perroni’s limited degree of success and a consequent need for apportionment, (2) duplicative work, and (3) block billing.

            (1) Degree of Success

            As LASD admits, there is no requirement that a court award CPRA fees strictly proportionate to the degree of success because such a requirement could have a chilling effect on requesters.  Bernardi v. County of Monterey, (“Bernardi”) (2008) 167 Cal.App.4th 1379, 1397.  LASD notes, however, that the plaintiff’s degree of success is a factor that the trial court can consider.  Id. at 1398.  LASD argues that the court should exercise its discretion to do so here because Perroni failed to achieve his goal of obtaining the investigative file.  Opp. at 9.  There is no evidence that limiting his fee award will chill Perroni or any other CPRA requester in seeking documents.  Opp. at 10.  The court should apply a two-step process of apportioning fees between Perroni’s successful (Requests 2, 3, and 5) and unsuccessful claims.  The successful claims are easily set apart in terms of attorney hours or documents produced.  Opp. at 11-13. 

            The court declines to apportion in this case.  As Perroni argues, the court is not required to apportion in a CPRA case.  See Pacific Merchant Shipping v . Board of Pilot Commissioners, (2015) 242 Cal.App.4^th 1043, 1060-61; Bernardi, supra, 167 Cal.App.4^th at 1397. Reply at 6-7.  The court is satisfied that Perroni’s dogged efforts to extract every LASD record that he can get should be parsed into successful and unsuccessful fees.  The circumstances as a whole demonstrate that this would not be consistent with the spirit of the CPRA.

            (2) Duplicative Hours

            LASD presents a list of 266.1 hours that it asserts were excessive and unnecessarily duplicative.  De La Fuente Decl., ¶6, Ex. 4H.  LASD argues that Perroni often had three attorneys performing the same tasks, resulting in excessive hours.  Opp. at 15. 

Arguably, the case was overstaffed with five attorneys and a paralegal.  However, closer scrutiny shows that there were three lawyers working on the case at QG&T and that partner Cate and associate Elmore did most of the work.  As QG&T’s lawyers were out of state, Perroni was required to have local counsel.  At M&C, Harman performed most of the effort.  This is not by itself overstaffing.

Without further details, LASD’s list is insufficient to show duplicative and excessive effort.  Because Perroni’s counsel provided detailed billing summaries (Cate Fee Decl., ¶¶ 10-11, Ex. 1-2), the burden shifted to LASD to point to specific items challenged and a sufficient argument as to why they are excessive; general arguments do not suffice.  See Hadley v. Krepel, supra, 167 Cal.App.3d at 682; Lunada Biomedical v. Nunez, supra, 230 Cal.App.4th at 488.  LASD’s list is a general argument of duplicative effort that does not meet its burden. 

The hours are not reduced as duplicative.

            (3) Block Billing

            LASD argues that Perroni seeks 100.7 hours of work totaling $34,273 that consolidates multiple tasks under single headings without sufficient detail of all activities therein.  De La Fuente Decl., ¶6, Ex. 4C.  This block billing should be entirely disallowed, in part because no client would allow for such billing.  Opp. at 15. 

            Perroni points out that block billing is not necessarily objectionable if it does not obscure the nature of work claimed.  Christian Research Institute v. Alnor, (2008) 165 Cal.App.4^th 1315, 1325.  Reply at 9.  LASD’s argument suffers from the same lack of specificity as its duplicative hours claim.  Moreover, the court has reviewed Ex. 4C and finds that it is sufficiently specific to determine the hours claimed for each item or group of items.

The hours are not impermissible block billing that should be reduced.

c. Conclusion

Perroni has pursued LASD and the County for information related to Woods’ death in three separate lawsuits.  He never previously obtained an attorney’s fee award but the County had to know that he would do so in this lawsuit.  His effort was comprehensive but not overly so.  He is awarded $162,723.50 in attorney’s fees.^[1]

            C. Motion to Tax Costs

            LASD moves to strike or tax Perroni’s memorandum of costs.

1. Applicable Law

            Prejudgment costs allowable under statute shall be claimed and contested in accordance with rules adopted by the Judicial Council.  CCP §1034(a).  Thus, any notice of motion to strike or to tax costs shall be served and filed 15 days after service of the cost memorandum; if the cost memorandum was served by mail, the period is extended as provided in CCP section 1013.  CRC 3.1700(b)(1).  These time limitations, however, are not jurisdictional, and a trial court has broad discretion in allowing relief from a late filing where there is absence of a showing of prejudice by the opposing party.  Hoover Community Hotel Development Corp. v. Thomson, (1995) 168 Cal.App.3d 485.  Also, CRC 3.1700(b)(3) allows the parties to agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs.

            CCP section 1032 defines the term “prevailing party” as the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, or a defendant who avoids all liability.  Great Western Bank v. Converse Consultants, Inc., (1997) 58 Cal.App.4th 609, 612; Childers v. Edwards, (1996) 48 Cal.App.4th 1544, 1548; Coltrain v. Shewalter, (1998) 66 Cal.App.4th 94, 101-02.  CCP section 1032(a)(4) provides that when any party recovers other than monetary relief, the prevailing party shall be as determined by the court, and under those circumstances, the court in its discretion may allow costs or not.  Building Maintenance Services Co. v. AIL Systems, Inc., (1997) 55 Cal.App.4th 1014, 1025.

            The statutory scheme clearly establishes two mutually exclusive sets of trial preparation expenses – one set which is allowable as a matter of right to the prevailing party (CCP §§1032(b), 1033.5(a)), and one which is not (CCP §§ 1033.5(b), 1032(b)).  Expenses which do not fit into either of these two categories fall into a special statutory safety net: they may be recovered only at the discretion of the court.  CCP §1033.5(c).  Science Applications Internat. Corp. v. Superior Court, (“Science Applications”) (1995) 39 Cal.App.4th 1095, 1103.  CCP section 1033.5(a) contains a list of expenses which are allowable as costs, and includes filing fees, deposition transcripts, models, blowups, exhibits and copies of exhibits if reasonably helpful to the trier of fact. Michell v. Olick, (1996) 49 Cal.App.4th 1194, 1200; Science Applications, supra, 39 Cal.App.4th at 1102 & n.7.

            Even where a party receiving a favorable judgment is entitled to costs “as of course,” the trial court has broad discretion to disallow unnecessary costs.  Perko’s, supra, 4 Cal.App.4th 238.  It is generally held that costs awarded should be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.  Thon v. Thompson, (1994) 29 Cal.App.4th 1546, 1548.  When items claimed as costs do not appear on their face as proper and necessary and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs.  Whitney v. Whitney, (1958) 164 Cal.App.2d 577.  The court in Bach v. County of Butte (“Butte”) (1989), therefore held that a properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred.  215 Cal. App. 3d 294, 308.  Documentation must be submitted only when a party dissatisfied with the costs claimed in the memorandum challenges them by filing a motion to tax costs.  Butte (1989), 215 Cal. App. 3d at 308.

            2. Analysis

            Respondents move to strike Perroni’s memorandum of costs totaling $11,752.56 in its entirety, or alternatively to tax it. 

            A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.  CRC 3.1700(a).  In a CPRA action, the 15-day deadline to file a memorandum of costs begins with the notice of entry of order as that is appealable.  See Los Angeles Corridor Transportation Authority, (2001) 88 Cal.App.4^th 1381, 1388 (timing for appeal may be from date of “notice of entry” of denial of CPRA attorney’s fees). 

            LASD served notice of the entry of judgment on March 25, 2022.  Perroni’s memorandum of costs was due no later than April 13, 2022 and he did not file it until more than a month later on May 24 ,2022.  Birenbaum Decl., ¶¶ 2-3. LASD concludes that the memorandum of costs should be stricken as untimely.  Mot. at 4-5.

Perroni does not deny CRC 3.1700(a) required him to file his memorandum of costs within 15 days of the March 25, 2022 notice of entry of judgment and that his memorandum of costs is untimely.  He asserts that section 6259(d) makes an award of costs mandatory and a CRC imposing a restriction on this right, such as CRC 3.1700(a)’s filing deadline, is inconsistent and invalid.  Opp. at 3-4.

            Perroni is wrong.  As LASD argues, section 6259(d) makes an award of costs mandatory, but it says nothing about the procedure which must be followed to obtain those costs.  CCP sections 1032 and 1033.5 are the procedural mechanism to obtain a cost award in any action or proceeding (CCP §1032(a)), and a CPRA suit for mandamus is a special proceeding (CCP §1063, 1084) and declaratory relief is an action (CCP §22).  CRC 3.1700(a) implements the procedures of CCP section 1032-34.  Thus, a memorandum of costs under section 6259(d) must comply with the procedural deadlines of CRC 3.1700(a).  As LASD argues (Reply at 2), any other rule would permit an award of costs years after a CPRA lawsuit has concluded.

            The case law concerning the similar rule for an award of attorney’s fees in CRC 3.1702 supports this conclusion.  See Community Youth Athletic Center v. City of National City, (2013) 220 Cal.App.4^th 1386, 1443 (relying on good cause element of CRC 3.1702(d) to uphold trial court’s grant of relief in CPRA case from untimely attorney’s fee motion).  CRC 3.1700(a) applies to all costs awardable under CCP section 1033.5; the rule does not apply only where the cost is not allowable under CCP section 1033.5 and may be claimed separately.  See Anthony v. City of Los Angeles, (2008) 166 Cal.App.4^th 1011, 1016 (expert fees in a FEHA case could not be entered on a memorandum of costs under CRC31700 and therefore could be obtained by motion within the timeframe for attorney’s fees).

            There is nothing incompatible or inconsistent between section 6259(d)’s mandatory costs and CRC 3.1700(a)’s 15-day deadline to file a memorandum of costs.  The costs sought by Perroni are costs that can be obtained pursuant to CCP section 1033.5 and are not separately specified in the CPRA as allowable.  As a result, Perroni was required to file a timely memorandum of costs to obtain them.  This conclusion is consistent with the purpose of the CPRA to broaden access to public records (Community Youth Athletic Center v. City of National City, supra, 220 Cal.App.4th at 1447) and section 6259(d)’s purpose of providing protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records.  Community Youth Athletic Center v. City of National City, 220 Cal.App.4th at 1447.  Perroni enforced his right to inspect public records and, like any other prevailing party in a civil action or special proceeding, merely had to comply with a reasonable procedural deadline to obtain an award of costs.

            The motion to strike the memorandum of costs is granted.