Judge James C. Chalfant, Case 21STCP01632 2023-02-23 Tentative Ruling

Shanda Luckett v. City of Los Angeles, Chief Michel Moore, et al, 21STCP01632

Tentative decision on motion for attorney’s fees: granted in part

Petitioner Shanda Luckett (“Luckett”) moves for a $34,845 award of attorney’s fees from Respondent City of Los Angeles (“City”).

The court has read and considered the moving papers, opposition, and reply,and renders the following tentative decision.

Petitioner Luckett filed the Petition on May 20, 2021, against the City, Michel Moore (“Moore”) in his official capacity as Chief of Police for the Los Angeles Police Department (“LAPD”), and Lieutenant Marla Ciuffetelli (“Ciuffetelli”) in her official capacity. The Petition alleged causes of action for mandamus and declaratory relief for violation of the California Public Records Act (“CPRA”) in pertinent part as follows.

On December 18, 2020, Luckett was driving a rented U-Haul truck with her 68-year-old aunt when LAPD officers conducted a felony traffic stop. The officers alleged that the truck’s license plate number was never issued, so the truck had to have been stolen. The LAPD officers searched the truck and released Luckett after about 25 minutes without issuing a citation or arresting anyone. Luckett complained to LAPD Internal Affairs (“IA”) about the incident on December 21, 2021.

On January 12, 2021, Luckett sent LAPD a CPRA Request for five classes of documents related to the incident, including (1) information about or documents that described the incident; (2) audio recordings about the incident and copies of Luckett’s own statements and complaints about it to LAPD; (3) records about LAPD’s use of license plate users; (4) copies of any Pitchess motions the City received in the past five years for officers who were working in Reseda Patrol Division of LAPD in December 2020; and (5) records of LAPD’s use of body worn cameras and dash cameras and copies of corresponding video records from the incident.

On January 21, 2021, the City requested a 14-day extension to respond. On February 11, 2021, the City responded with some information responsive to the first category of requested records, but none responsive to the other four requests. The response also indicated that the City misread the first request and thought it only asked for information, not documents.

As to the second request, the City and LAPD have acknowledged Luckett’s complaints about the incident. LAPD must have these records but the City did not produce them in response to the request.

As to the third and fifth requests, the City said it was still searching for responsive records and would respond when possible. The City has not offered an estimated time for production of responsive records. The City also responded to the fifth request that it “does not answer questions so much as provide copies of records,” which shows that it misread the request and thought it only asked for information, not documents.

As to the fourth request, the City alleged that any responsive records were exempt from disclosure pursuant to Government Code sections 6254(c) and (k).

Luckett seeks (1) an in camera review of all documents responsive to the CPRA requests to determine if the cited exemptions apply, if the City has performed an adequate search, if it has provided all responsive records, and if it should produce the documents to Luckett; (2) an order compelling Respondents to search for the documents described in the request, make an accurate account of responsive records, and provide them to Luckett; (3) declaratory relief that the City has a duty to promptly provide responsive records and/or provide members of the public with the estimated date and time when the records will be made available; (4) an injunction ordering the City to hereafter promptly provide responsive records or an estimated date and time when the records responsive to any CPRA request will be made available; and (5) attorney’s fees and costs.

On May 25, 2021, Luckett served Respondents City, Moore, and Ciuffetelli with the Petition and Summons.

On September 13, 2022, the court denied the Petition and entered judgment on October 3, 2022.

On October 7, 2022, Luckett submitted a memorandum of costs for $798.93, which included (1) $435 for filing and motion fees, (2) $250 for service of process, and (3) $113.93 for electronic filing and service fees. On November 22, 2022, the court denied the City’s motion to strike or tax the memorandum.

“[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 7923.115 (“section 7923.115”), formerly Govt. Code section 6259^{^[1]}, provides in part: “If the requester prevails in litigation filed pursuant to this chapter, the court shall award court costs and reasonable attorney’s fees to the requester.” §7923.115(a). 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.

The CPRA Request stemmed from an incident on December 18, 2020. Luckett Decl., ¶3. Luckett was driving a rented U-Haul truck with her 68-year-old aunt when LAPD officers conducted a felony traffic stop. Luckett Decl., ¶3. The officers alleged that the truck’s license plate number did not register in the DMV system, so the truck must have been stolen. Luckett Decl., ¶3. The LAPD officers searched the truck and released Luckett after about 20 minutes without issuing a citation or making an arrest. Luckett Decl., ¶3. Luckett complained about the incident to IA on December 21, 2021. Luckett Decl., ¶3. IA did not provide any information or help. Luckett Decl., ¶3.

On January 12, 2012, Luckett submitted a CPRA request for (1) information about or documents that described the December 18, 2020 incident (“Request No. 1”); (2) audio recordings about the incident and copies of Luckett’s own statements and complaints about it to LAPD (“Request No. 2”); (3) records about LAPD’s use of license plate users (“Request No. 3”); (4) copies of any Pitchess motions the City had received in the past five years for officers who were working in Reseda Patrol Division of LAPD in December 2020, with attachments (“Request No. 4”); and (5) records of LAPD’s use of body worn cameras and dash cameras and copies of corresponding video records from the incident (“Request No. 5”). Schlueter Decl., ¶22, Ex. 1; Luckett Decl., ¶4.

On January 27, 2021, the City acknowledged Luckett’s request and said it needed more time due to unusual circumstances from the requests. Luckett Decl., ¶7, Ex. 2. On February 4, 2021, Luckett sent a letter with her email address to facilitate communications about the requests. Luckett Decl., ¶8, Ex. 3.

On February 11, 2021, the City sent a letter providing some information responsive to Request No. 1 and informing Luckett that it was searching for information responsive to Request Nos. 3 and 5. Luckett Decl., ¶9, Ex. 4. The City claimed privilege under Govt. Code section 6254(f) (investigation records) for Request No. 2, and under Govt. Code section 6254(c) (personnel records) for Request No. 4. Luckett Decl., ¶9, Ex. 4. The letter provided contact information if Luckett had any questions. Luckett Decl., ¶9, Ex. 4.

From March through June 2021, Luckett did not receive any communication from the City. Luckett Decl., ¶12. Her gmail account admittedly was not functioning properly at the time. Luckett Decl., ¶12. She also did not receive a “Next Request” Portal logon to track her CPRA Request. Luckett Decl., ¶13. This would not have mattered because the City used emails and letters to communicate. Luckett Decl., ¶13.

Because Luckett had not heard from the City, she filed her Petition on May 20, 2021 and served it five days later. Schlueter Decl., ¶32, Ex. 23. The City filed an Answer on June 24, 2021. Schlueter Decl., ¶32.

On July 15, 2021, the City sent an email to Luckett’s attorney which included a letter the City had sent on June 24, 2021. Luckett Decl., ¶11, Ex. 5. This letter included a log of all communications the City had tried to send Luckett since its February 11, 2021 letter. Luckett Decl., ¶11, Ex. 5. The log revealed that LAPD tried to send Luckett emails on February 12, March 15, April 12, and May 5, 2021 stating that it was still searching for responsive records. Luckett Decl., ¶11, Ex. 5. In the May 5, 2021 email, LAPD requested clarification about what Luckett meant when she asked for invoices for the body and dash cameras and video. Luckett Decl., ¶11, Ex. 5.

The log also revealed that LAPD responded by email to Luckett’s requests on May 7, 2021. Luckett Decl., ¶11, Ex. 5. As to Request Nos. 2 and 4, LAPD claimed that Govt. Code section 6254(f) exempted the dispatch recordings, Pitchess motions, and video evidence as investigative records. Luckett Decl., ¶11, Ex. 5. LAPD would not provide any records responsive to the requests without subpoena or court order. Luckett Decl., ¶11, Ex. 5. It also asserted that Govt. Code section 6254(f) applied to part of Request No. 5 and denied the rest of it because the request did not reasonably describe an identifiable record or records per Govt. Code section 6254(b). Luckett Decl., ¶11, Ex. 5. The email provided a response to Request No. 1 and claimed that it had already responded to Request No. 3. Luckett Decl., ¶11, Ex. 5. The email asked that Luckett respond to it if she had any questions. Luckett Decl., ¶11, Ex. 5.

On August 18, 2021, Luckett accessed her Next Request Portal which showed that the City considered her requests closed on May 7, 2021. Schlueter Decl., ¶32, Ex. 15.

On August 25, 2021, the City emailed Luckett a declaration detailing the universe of records responsive to the requests and the actions taken by the City to determine that universe. Schlueter Decl., ¶32, Ex. 6.

On September 17, 2021, the City emailed a summary of its legal position for non-disclosed but responsive records. Schlueter Decl., ¶32, Ex. 7. As to Request No. 2, the City was inclined to disclose a Facesheet/Complaint Form that contains Luckett’s statements from her IA complaint. Schlueter Decl., ¶32, Ex. 7. The City also was inclined to disclose an audio recording of her interview that followed her complaint. Schlueter Decl., ¶32, Ex. 7. The rest of Request No. 2 was still exempt from disclosure. Schlueter Decl., ¶32, Ex. 7. As to Request No. 4, the City was inclined to disclose the list of court cases with responsive Pitchess motions but not the motions themselves. Schlueter Decl., ¶32, Ex. 7.

On September 30, 2021, the City emailed responsive records. Schlueter Decl., ¶32, Ex. 7.

On November 19 and December 2, 2021, the City produced via email records responsive to Request No. 4. Schlueter Decl., ¶32, Exs. 8-9. The records from the latter email, resent on December 10 and 13, included 50 Pitchess motions and at least 1128 pages. Schlueter Decl., ¶32, Ex. 9.

On December 23, 2021, the City produced another batch of records responsive to Request No. 4. Schlueter Decl., ¶32, Ex. 10. The 23 new Pitchess motions in 29 PDF files added another 965 pages. Schlueter Decl., ¶32, Ex. 10. This email also explained that in the earlier batches, the City provided police reports and rap sheets attached to the motions that were exempt from disclosure under Govt. Code sections 6254(f) and 6254(k) and Penal Code section 13300. Schlueter Decl., ¶32, Ex. 10. Future productions would not include police reports or rap sheets. Schlueter Decl., ¶32, Ex. 10.

The City produced additional responsive Pitchess motions throughout January and February 2022. Schlueter Decl., ¶32, Exs. 11-14.

After some time as a photojournalist, Peter Schlueter (“Schlueter”) has practiced law since 1991. Schlueter Decl., ¶¶ 3-4. He has litigated a variety of civil and criminal matters in federal and state court. Schlueter Decl., ¶6.

He has prosecuted at least 15 CPRA requests and aided in others. Schlueter Decl., ¶9. In such cases, courts have awarded him fees at a rate of $450 per hour. Schlueter Decl., ¶17, Exs. 17-18, 22. Other attorneys in the community have claimed throughout the 2000s and 2010s that this is a reasonable rate. Schlueter Decl., ¶¶ 18-20, Exs. 19-21.

Schlueter accepted this case on a contingency fee basis. Schlueter Decl., ¶14. He has spent 75.8 hours on this matter. Schlueter Decl., ¶¶ 23, 42, Ex. 0. His paralegal Jessica Weeda (“Weeda”) spent 9.8 billable hours on this matter at $75 per hour. Schlueter Decl., ¶¶ 23, 42, Ex. 0.

Schlueter met and conferred with opposing counsel on October 13, 2022. Schlueter Decl., ¶38. He sent an email with Luckett’s legal position on November 1, 2022, to which the the City responded two days later. Schlueter Decl., ¶38.

LAPD did not receive Luckett’s February 4, 2021 letter with her email address until February 16, 2021. Nguyen Decl., ¶5, Ex. 4.

On March 15, April 12, and May 5, 2021, LAPD sent Luckett emails stating that it was still searching for responsive records. Nguyen Decl., ¶6, Exs. 5-7. In the May 5 email, LAPD requested clarification about what Luckett meant when she asked for invoices for the body and dash cameras and video. Nguyen Decl., ¶6, Ex. 7.

When the City received the Petition on May 20, 2021, it was the first communication received from Luckett since her February 4, 2021 letter. Nguyen Decl., ¶8. Upon reading the Petition, the City learned that Luckett disputed the City’s response to her CPRA request. Nguyen Decl., ¶8. The City also learned that Luckett did not receive LAPD’s communications from March 15, April 12, May 5, and May 7, 2021. Nguyen Decl., ¶9.

The City left Luckett a voicemail about the CPRA requests on June 17, 2021 and sent an email the next day. Nguyen Decl., ¶10. The City discovered on June 19 that this email could not be delivered because Luckett’s email account had reached capacity. Nguyen Decl., ¶11. As a result, the City sent Luckett a letter on June 24, 2021 with copies of all its correspondence to other since its February 11, 2021 letter. Nguyen Decl., ¶11, Ex. 9.

On November 16, 2021, after discussion with Luckett, the City agreed to disclose records responsive to Request No. 4. Nguyen Decl., ¶16. This led to the production between November 19, 2021 and February 15, 2022. Nguyen Decl., ¶¶ 18-19, 22, Exs. 14-20. Between February 25 and March 21, 2022, the City sent four emails to confirm resolution of the CPRA Requests. Nguyen Decl., ¶24, Exs. 21-24. Between December 23, 2021 and March 24, 2022, Luckett did not object to the fact that the Pitchess motions produced on or after December 23, 2021 did not have attachments. Nguyen Decl., ¶23.

On March 24, 2022, Luckett demanded the police reports attached to the produced Pitchess motions. Nguyen Decl., ¶24, Ex. 25. The City responded the same day and reiterated that the attachments were exempt from disclosure and the previous disclosure had been in error. Nguyen Decl., ¶24, Ex. 26. On April 25, 2022, the parties agreed that this was the last legal issue in this case. Nguyen Decl., ¶25. Nothing else from the CPRA Requests was still in dispute. Nguyen Decl., ¶25.

On September 13, 2022, the court tried Luckett’s claim and ruled that the City was not required to disclose the Pitchess motions’ attachments. On October 3, 2022, the court entered judgment in favor of the City.

Schlueter’s billings (Schlueter Decl., ¶42, Ex. O) include 25.2 hours between the April 5, 2022 final trial setting conference and the September 13, 2022 hearing. Nguyen Decl., ¶29, Ex. 28. Of these, a 6.4-hour block on July 1, 2022 includes reviewing and signing a Request for Judicial Notice. Nguyen Decl., ¶29, Ex. 28. Of the 25.2 hours spent to prepare for the hearing, Schlueter spent a total of 17.4 hours on the opening and reply brief. Nguyen Decl., ¶30, Ex. 29.

Schlueter’s billings also include 16.5 hours to prepare the opposition to the City’s motion to strike Luckett’s memorandum of costs. Nguyen Decl., ¶31, Ex. 30. He billed for 11 hours of his own work plus 9.8 hours of work from Weeda on the motion for attorney’s fees. Nguyen Decl., ¶32, Ex. 31. Much of the fee motion and Luckett’s supporting declaration are duplicative of Luckett’s opposition to the City’s motion to strike Luckett’s memorandum of costs. Nguyen Decl., ¶33, Exs. 32-33.

Petitioner Luckett moves for an award of $34,845 in CPRA attorney’s fees against the City. Although Luckett’s moving papers estimate future attorney’s fees and reserve the right to seek the actual fees incurred since the motion was filed (Mot. at 19), her reply does not include any evidence of additional fees.

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. This also means that whether the agency otherwise violated the CPRA -- such as not acting within CPRA-required timeframes or providing dates when production would occur (see Reply at 4) -- is irrelevant for an award of attorney’s fees.

The parties agree that the only issue at trial was whether the police reports and rap sheets attached to Pitchess motions responsive to Request No. 4 were exempt from disclosure under Govt. Code sections 6254(f) and 6254(k) and Penal Code section 13300. Schlueter Decl., ¶32, Ex. 10; Nguyen Decl., ¶25. Luckett did not prevail on this issue. The court denied the Petition on September 13, 2022 and entered judgment in the City’s favor on October 3, 2022.

Luckett asserts that she still is the prevailing party because the City did not produce most of the responsive documents until after she served the Petition on May 25, 2021. Mot. at 8-9; Schlueter Decl., ¶32, Ex. 23. LAPD’s February 11, 2021 letter provided some information responsive to Request No. 1 and informed Luckett that the City was searching for information responsive to Request Nos. 3 and 5. Luckett Decl., ¶9, Ex. 4. The letter claimed privilege for Request No. 2 under Govt. Code section 6254(f) (investigation records) and for Request No. 4 under Govt. Code section 6254(c) (personnel records). Luckett Decl., ¶9, Ex. 4. The letter did not suggest that the City would search for responsive, disclosable documents for Request No. 4 and provided no timeline for production of documents responsive to Request Nos. 3 and 5. See Luckett Decl., ¶10, Ex. 4.

LAPD’s May 7, 2021 response claimed an investigation records exemption (Govt. Code section 6254(f)) for dispatch recordings, Pitchess motions, and video evidence responsive to Request Nos. 2 and 4. Luckett Decl., ¶11, Ex. 5. LAPD would not provide any records responsive to the requests without subpoena or court order. Luckett Decl., ¶11, Ex. 5. The May 7 response also asserted an exemption under Govt. Code section 6254(f) for part of Request No. 5 and denied the rest of it because the request did not reasonably describe an identifiable record or records per Govt. Code section 6254(b). Luckett Decl., ¶11, Ex. 5. The email responded to Request No. 1 and claimed that LAPD already had responded to Request No. 3. Luckett Decl., ¶11, Ex. 5. When Luckett visited her Next Request Portal in September 2021, it showed that the City considered her request closed after the May 7, 2021 response. Schlueter Decl., ¶32, Ex. 15.

In June 2021, the City learned that Luckett had not received its previous communications before her Petition was filed. Nguyen Decl., ¶11. Over the next several months, the City cooperated with Luckett’s counsel to clarify her requests, update its legal position on exemptions, and disclose non-exempt records. Nguyen Decl., ¶¶13-15, Exs. 11-13. On September 17, 2021, the City emailed Luckett’s counsel a universe of responsive records and a summary of its actions and legal position for those records. Nguyen Decl., 13, Ex. 11. The City emailed responsive records on September 30, 2021, leaving only the request for over 200 Pitchess motions. Schlueter Decl., ¶32, Ex. 7.

On November 16, 2021, after discussion with Luckett, the City agreed to disclose Pitchess motions responsive to Request No. 4. Nguyen Decl., ¶16. The production occurred in batches between November 19, 2021 and February 15, 2022. Nguyen Decl., ¶¶ 18-19, 22, Exs. 14-20.

Luckett cites Lyon v. Chinese Hospitals (“Lyon”) (2006) 136 Cal. App. 4th 1331, 1346-47, as holding that a plaintiff is a successful party for attorney’s fees CCP section 1021.5 (“section 1021.5”) when the lawsuit was a catalyst motivating defendants to provide the primary relief sought. Mot. at 14. This case concerns a motion for attorney’s fees under CCP section 1021.5 and its use of catalyst theory. Id. at 1346. In such motions, the catalyst theory permits an award of attorneys’ fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. A plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit. Tipton-Whittingham v. City of Los Angeles, (“Tipton-Whittingham”) (2004) 34 Cal.4th 604, 608.

Clearly, a section 1021.5 catalyst theory does not apply here. It is not clear that Luckett’s Petition catalyzed the City’s production of any records. It was Luckett’s fault that there was no communication between the parties between February and June 2021 and specifically that she did not receive LAPD’s emails dated March 15, April 12, May 5, and May 7, 2021. Nguyen Decl., ¶9. The communication that took place between the parties thereafter clarified Luckett’s requests and caused the City to modify its position. The City appears to have been always willing to engage in this dialog. Even if the Petition did catalyze the production, Luckett did not reasonably attempted to settle the litigation prior to filing the lawsuit. See Tipton-Whittingham, supra, 34 Cal.4^th at 608. The section 1021.5 catalyst theory does not apply.

In reply, Luckett backs away from a section 1021.5 catalyst theory, noting that an award for attorney’s fees is permissive under section 1021.5 and is mandatory under section 7923.115. Reply at 5. True, but even section 7923.115(a) attorney’s fees are only mandatory when the petitioner has prevailed in the litigation. The limits on the definition of “prevailing party” for purposes of attorney’s fees still apply.

Luckett cites (Mot. at 14-15) Sukumar v. City of San Diego, (2017) 14 Cal. App. 5th 451, 463, which notes that a plaintiff may prevail in a CPRA case even though the court did not enter judgment in her favor. The court’s approach must be pragmatic and to justify a fee there must be a causal connection between the lawsuit and the relief obtained. Id. (citation omitted). A plaintiff prevails if the lawsuit motivated the defendant to provide the primary relief or substantial contributed or was influential in setting in motion the process achieving the desired result. Ibid. A plaintiff does not demonstrate that it is a prevailing party merely because the defendant disclosed records sometime after the CPRA action was filed. Id. at 464. Rather, the litigation must have been the motivating factor for the production. Id. at 464 (plaintiff was prevailing party for attorney’s fees because city’s search for records just as PMK depositions were about to start resulted in production of emails).

Luckett principally relies on the City’s failure to produce her IA statement (Request No. 2) and Pitchess motions (Request No. 4). Mot. at 8, 10; Reply at 3-4. The City produced her IA statement on September 30, 2021 and agreed to produce Pitchess motions after discussion between counsel on November 16, 2021. Although the parties do not explain the details of the City’s reversal of position on these two issues, the burden lay with the City to show that it would have produced both categories without Luckett’s Petition. The City shifted its position on both after communicating with Luckett’s counsel. Therefore, Luckett is entitled to mandatory attorney’s fees for her effort to obtain this production.

The scope of fees awarded will be only for the IA statement and Pitchess motions, and the latter only through November 16, 2021. She is not entitled to fees for the trial issue after November 16 of the attachments to the Pitchess motions. Nor is she entitled to fees incurred for the records that were produced on September 30, 2021 for Request No. 5. See Mot. at 9. Finally, her failure to negotiate before filing suit generally undermines the amount of fees that should be awarded.

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 (“Martino”) (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, (“Center for Biological Diversity”) (2010) 188 Cal.App.4th 603, 619 (citations omitted).

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. 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.

Schlueter asserts an hourly rate of $450 for himself and $75 for his paralegal Weeda. Schlueter Decl., ¶¶ 23, 42, Ex. 0. The City does not dispute this rate, and Schlueter provides evidence that $450 per hour has been a reasonable rate throughout the 2000s and 2010s. Schlueter Decl., ¶¶ 18-20, Exs. 19-21. The rates are approved as reasonable.

Schlueter states that he spent 75.8 hours on this matter and that Weeda spent 9.8 hours. Schlueter Decl., ¶¶ 23, 42, Ex. O. Schlueter argues that he spent all hours claimed. Reply at 7-8. The court accepts this representation but, of course, the expenditure of hours is not sufficient if those hours were not reasonable.

The City disputes the time expended (a) between the April 5, 2022 trial setting conference and the October 3, 2022 entry of judgment, including a request for judicial notice, (b) for a three-page declaration for relief from late filing of Luckett’s opposition to the motion to strike or tax costs, (c) for the opposition to the motion to strike or tax costs, and (d) for the motion for attorney’s fees. Opp. at 7-10.

Schlueter’s time records (Schlueter Decl., ¶42, Ex. O) include 25.2 hours incurred between the April 5, 2022 trial setting conference and the September 13, 2022 trial. The issue for trial was the attachments to the Pitchess motions responsive to Request No. 4, an issue on which Luckett lost. As discussed above, Luckett is not entitled to attorney’s fees for trial and the 25.2 hours are disallowed.

Schlueter’s time records include 16.5 hours to prepare the opposition to the City’s motion to strike or tax Luckett’s memorandum of costs. Nguyen Decl., ¶31, Ex. 30. The City claims that only seven hours are reasonable because this task should have taken less time than the opening brief and reply. Luckett’s opposition addressed the simple issue of prevailing party for purposes of costs and yet nearly half the opposition was expended on the history of Luckett’s CPRA request. Opp. at 9.

Both parties briefed the issue of prevailing party for the motion to tax or strike costs and most of the hours incurred are reasonable. However, the City is correct that it should not have to pay for time spent to cure Luckett’s failure to timely file the opposition. Opp. at 8-9; Nguyen Decl., ¶31, Ex. 30. Two hours are deducted for the preparation of the declaration for relief from late filing.

Luckett’s opposition to the motion to strike or tax costs is largely similar to her fee motion. Nguyen Decl., ¶33, Exs. 32-33. Schlueter incurred 11 hours and Weeda incurred 9.8 hours on the fee motion. Nguyen Decl., ¶32, Ex. 31. The City’s objection (Opp. at 10) that these hours are unreasonable for the preparation of a substantially similar document is well taken. Half of the hours -- 5.5 for Schlueter and 4.9 for Weeda – are deducted.

The court disallows a total of 32.7 of Sclueter’s hours (25.2 + 2 + 5.5 = 32.7) and 4.9 of Weeda’s hours. This reduces the number of reasonable hours to 41.9 for Schlueter (75.8 – 32.7 = 43.1) and 4.9 for Weeda (9.8 – 4.9 = 4.9).

The reasonable fees total $19,395 for Schlueter $450 x 43.1 = $19,395) and $367.50 for Weeda (75 x 4.9 = $367.50). The total reasonable fees are $19,395 + $367.50 = $19,762.50.

^{^[1]}The Legislature has confirmed that the 2023 changes in recodifying the CPRA were not intended to substantively change the law relating to inspection of public records. §7920.100. Because the parties cite to the version of the CPRA in effect at the time of the court’s judgment, the court’s citations shall be to the pre-2023 CPRA except for section 7923.115.