Judge James C. Chalfant, Case Number: 22STCP00172, Date: 2024-02-29 Tentative Ruling

Los Angeles Sunshine Coalition v. Los Angeles Chinatown Business Council, 22STCP00172

Tentative decision on motion for award of (1) attorney’s fees: granted in part; (2) costs: denied as moot

Petitioner Los Angeles Sunshine Coalition (“Sunshine”) seeks an award of $148,433.14 in attorney’s fees and $3,879.39 in costs against the Respondent Los Angeles Chinatown Business Council (“Chinatown BID”). A notice of non-opposition increases the request for costs to $4,336.72.

The court has read and considered the moving papers and notice of non-opposition and renders the following tentative decision.

Petitioner Sunshine commenced this proceeding on January 14, 2022, alleging a cause of action for traditional mandamus under the California Public Records Act (“CPRA”).

The verified Petition alleges that Sunshine made CPRA requests to Chinatown BID on July 28 and August 3, 2019 for different communications between 2017 and 2019. Each time, in violation of Government Code (“Govt. Code”) sections 6252(e) and 6253(a)-(c), Chinatown BID did not respond within ten days of the request with a determination of whether it had responsive documents. It also failed to make responsive documents promptly available. Both times, Sunshine sent follow-up requests and Chinatown BID still did not respond.

Sunshine seeks (1) a writ of mandate that compels Chinatown BID make all requested documents available for inspection and provide a quote for direct costs of duplication; and (2) attorney’s fees and costs.

On February 9, 2022, Sunshine sent Chinatown BID the Petition and Summons by mail.

On April 25, 2022, Sunshine applied for an order directing service of the Petition and Summons to the Secretary of State. As part of this application, counsel for Sunshine reported that Chinatown BID never signed a notice of acknowledgement for receipt of service of the Petition and Summons.

On April 26, 2022, the court ordered that Sunshine exhaust its ability to serve Chinatown BID with the Petition and Summons by personal or substitute service. Three days later, the court rejected the April 25 application in favor of a ruling by Dept. 26.

On June 6, 2022, Sunshine filed an application in Dept. 26 for an order directing service of the Petition and Summons on Chinatown BID to the Secretary of State.

On June 26, 2022, Sunshine personally served Chinatown BID with the Petition and Summons.

On November 3, 2022, Christina M. Cameron, Esq.’s motion to be relieved as Chinatown BID’s counsel was granted.

On February 16, 2023, the court granted the Petition. Also on February 16, 2023, Sunshine issued notice of the judgment and personally served Respondent George Yu (“Yu”) with it.

On June 8, 2023, the court granted Sunshine’s ex parte application for issuance of an Order to Show Cause (“OSC”) for civil contempt. At the OSC hearing on July 25, 2023, the court issued a bench warrant for Yu.

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. Id. 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.” Id. 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, (“Motorola”) (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, (“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. [Citations.] 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. [Citations.]’” Center For Biological Diversity v. County of San Bernardino, (“Center”) (2010) 188 Cal.App.4th 603, 619.

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, (“Lunada”), (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.

Sunshine filed the Petition after the Chinatown BID failed to respond to multiple requests for public records. Garza Decl., ¶8. Shortly after the action began, Chinatown BID became wholly unresponsive. Garza Decl., ¶11. This caused Sunshine to incur additional fees via attempts to contact it. Garza Decl., ¶11. After this court granted a motion for Chinatown BID’s attorney to withdraw as counsel on November 3, 2022, Chinatown BID never responded to Sunshine. Garza Decl., ¶11; Mot. Ex. 1.

On March 13 and 20, 2023, Tasha Hill, Esq. (“Hill”), as counsel for Sunshine contacted Chinatown BID regarding a settlement offer. Hill Decl., ¶6. Also on March 13, 2023, co-counsel Maya Garza, Esq. (“Garza”) sent Yu an offer to settle the outstanding attorney’s fees for $75,650. Garza Decl., ¶12, Ex. 1. Chinatown BID did not respond to any of these efforts. Hill Decl., ¶6.

On June 8, 2023, Sunshine was granted an ex parte application for issuance of an OSC for civil contempt. Hill Decl., ¶7. On July 25, 2023 this court ordered a bench warrant to be issued for Yu. Hill Decl., ¶8.

Both attorneys took this case on a contingency basis. Garza Decl., ¶9. Garza’s casework consists only of CPRA cases taken on contingency basis. Garza Decl., ¶6.

Hill’s hourly rate is $750. Hill Decl., ¶9. She has spent a total of 45.5 hours on the action and an additional four hours on this motion. Hill Decl., ¶10, Ex. 1. Most of these hours were to contact or meet with either co-counsel, opposing counsel, or her client. Hill Decl., ¶10, Ex. 1.

Garza’s hourly rate is $650. Garza Decl., ¶13. She has spent 105.8 hours on this action before 14.9 hours on this motion, plus an anticipated five hours on the reply brief. Garza Decl., ¶¶ 14-15, Ex. 2. Garza’s billings are as follows.

Between August and December 2021, Garza billed $1,885 to prepare the writ and have co-counsel and Sunshine review it. Garza Decl., Ex. 2.

In February 2022, Garza billed $1,820 for matters related to notice of a trial setting conference and issues serving it with the writ. Garza Decl., Ex. 2. Garza billed another $4,615 + $325 + $195 + $650 + $520 = $6,305 from March through August 2022 to resolve this issue, including by drafting and filing an application to serve Chinatown BID via the Secretary of State. Garza Decl., Ex. 2.

Of the $6,630 Garza billed in October 2022, $130 was to email opposing counsel, $1,495 was to draft discovery requests, and the remaining $5,005 was to draft the opening brief. Garza Decl., Ex. 2. The $17,745 Garza incurred in November 2022 was also to draft and serve the opening brief. Garza Decl., Ex. 2.

Of the $7,475 in fees Garza accrued in December 2022, $975 + $845 + $1,170 + $455 + $780 + $1,625 +$195 = $6,045 were to draft a “motion to amend” and $325 + $585 + $325 + $195 = $1,430 were to draft and serve discovery. Garza Decl., Ex. 2.

Of the $11,050 in fees incurred in January 2023, $975 was to draft the reply brief or confer with opposing counsel about it. Garza Decl., Ex. 2. The remaining $11,050 - $975 = $10,075 was to either meet and confer regarding discovery or draft motions to compel. Garza Decl., Ex. 2.

Of the $7,865 incurred in March 2023, $520 was for a motion to compel. Garza Decl., Ex. 2. The remaining $7,865 - $520 = $7,345 was to draft a motion for contempt or related documents. Garza Decl., Ex. 2. The $3,965 billed in June 2023 was also to draft, file, and serve the motion for contempt and OSC re: contempt. Garza Decl., Ex. 2. The $715 incurred in July 2023 was to file proof of service of the motion and OSC, and to draft a declaration as to service. Garza Decl., Ex. 2.

In December 2023, Garza billed $12,435 for hours spent on this motion for attorney’s fees. Garza Decl., Ex. 2.

On December 27, 2023, Sunshine filed a memorandum of costs for $1,242.98 in filing and motion fees, $1,255.83 for service of process, $1,178.94 for statutory court reporter fees, $201.64 in “other” costs, and $148,433.14 in attorney’s fees. Mot. Ex. B.

Of the $3,879.39 in costs, counsel has shared responsibility for paying $3,285.08. Garza Decl., ¶10. Sunshine paid the remaining $594.31. Garza Decl., ¶10.

Since the moving papers, Sunshine has incurred an additional $417.12 in costs. Garza Non-Opp. Decl., ¶2, Ex. 1.

Sunshine’s moving papers seek an award of $148,433.14 in attorney’s fees and $3,879.39 in costs against Chinatown BID. A notice of non-opposition increased the request for costs to $4,336.72.

If a CPRA requester prevails in litigation filed pursuant to the CPRA, 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.

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, supra, 55 Cal. App. 4th at 1351.

Sunshine filed this Petition after the Chinatown BID failed to respond to multiple requests for public records. Garza Decl., ¶8. The court granted this Petition. Because Chinatown BID has not opposed, no evidence suggests that litigation was not required to compel production. Sunshine is entitled to attorney’s fees.

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.

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. Center, supra, 188 Cal.App.4th at 616. In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.

Hill asserts an hourly rate of $750, and Garza asserts an hourly rate of $650. Hill Decl., ¶9; Garza Decl., ¶13. Although these rates appear high, Chinatown BID has not opposed, and the court accepts them as reasonable.

“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, supra, 230 Cal.App.4th at 488.

Hill’s billing records show that she spent a total of 45.5 hours on this action and an additional four hours on this motion. Hill Decl., ¶10, Ex. 1. Garza’s billing records show that she spent a total of 105.8 hours on this action before an additional 14.9 hours on this motion, plus an anticipated five hours on the reply. Garza Decl., ¶¶ 14-15, Ex. 2.

In the absence of an opposition to this motion, no reply was necessary and Gaza’s five hours to prepare one are also disallowed. Before any other deductions, the lodestar is (45.5 x $750) + (4 x $750) + (105.8 x $650) + (14.9 x $650) = $115,580.

Although Chinatown BID filed its Answer through counsel on August 18, 2022, its attorney withdrew on November 3, 2022. Every motion by Sunshine was unopposed, including this motion for fees. Chinatown BID’s absence from this action renders most of the attorney hours unreasonable.

In February 2022, Garza billed $1,820 for matters related to notice of a trial setting conference and issues serving the Petition. Garza Decl., Ex. 2. Garza billed another $6,305 from March through August 2022 to resolve the service issue, including by drafting and filing an application to serve Chinatown BID via the Secretary of State. Garza Decl., Ex. 2. These fees are excessive. $6,725 of these fees are disallowed.

Garza billed $5,005 in October 2022 to draft the opening brief. Garza Decl., Ex. 2. Garza incurred another $17,745 in November 2022 to draft and serve the opening brief, a total of $22,750. Garza Decl., Ex. 2. Chinatown BID had the burden to argue exemptions, and Sunshine clearly knew that Chinatown BID did not have counsel and would not oppose. The $22,750 in fees incurred for an unopposed opening brief were excessive and $17,750 of the $22,750 is disallowed.

Garza incurred $6,045 in fees in December 2022 to draft a “motion to amend.” Garza Decl., Ex. 2. This motion is not on file, and Sunshine does not explain why it was necessary. The $6,045 in fees are disallowed.

Garza incurred the remaining $1,430 in December 2022, and $10,075 of the fees in January 2023, to draft discovery, draft motions to compel, and engage in the meet-and-confer process. Garza Decl., Ex. 2. An additional $520 in March 2023 was for a motion to compel. Garza Decl., Ex. 2. Because Sunshine had filed its opening brief in November 2022, it had no reason to conduct discovery where no opposition brief was on file. $12,025 in discovery-related fees are disallowed. Garza Decl., Ex. 2.

Garza incurred $975 in January 2023 to draft the reply brief or confer with opposing counsel. Garza Decl., Ex. 2. No reply brief was warranted and Chinatown BID did not have counsel. The $975 is disallowed.

Garza incurred $7,345 in March 2023 to draft a motion for contempt or related documents. Garza Decl., Ex. 2. She billed another $3,965 in June 2023 to draft, file, and serve the motion for contempt and OSC re: contempt. Garza Decl., Ex. 2. She incurred $715 in July 2023 to file a proof of service of the motion and OSC, and to draft a declaration as to service. Garza Decl., Ex. 2. Garza billed a total of $12,025 for matters related to contempt. The contempt appears pyrrhic when Sunshine knew that Chinatown BID was unresponsive throughout litigation. $7,525 of the $12,025 total is disallowed.

In December 2023, Garza billed $12,435 for hours this fee motion. Garza Decl., Ex. 2. Hill spent four hours, or $3000, on this motion. The total motion fees are $15,435. Hill Decl., Ex. 1. These fees are excessive for an unopposed CPRA fee motion. $11,935 of these fees are disallowed.

Hill’s billing records assert she spent a total of 45.5 hours on this action before the motion for attorney’s fees. Most of these hours were to contact or meet with either co-counsel, opposing counsel, or her client. Hill Decl., ¶10, Ex. 1. At best, some of these are tasks that Garza could have performed and billed at a lower rate. At worst, these were excessive both as administrative tasks and in light of Chinatown BID’s general failure to respond. Ten hours, or $7,500 in fees, are disallowed.

In sum, $6,725 + $17,750 + $6,045 + $12,025 + $975 + $7,525 + $11,935 + $7,500 = $70,480 of the fees are disallowed as unreasonable. The reasonable fees total $45,100 ($115,580 - $70,480).

Sunshine requests a 1.25 multiplier. Sunshine argues that every CPRA case reflects an important public right, and a requester faces a high risk of failure because the agency inherently knows more about the documents being requested. This is especially true in this case because Chinatown BID did not communicate its reasons for withholding the requested records. Mem. at 7-8.

“[T]he unadorned lodestar figure reflects the general local hourly rate for a fee bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III.” Ketchum v. Moses, (2001) 24 Cal.4th 1122, 1138. The factors to consider for adjustment to the lodestar include the novelty and difficulty of the litigation, the extent to which the litigation precluded other employment by the attorneys, the contingent nature of the fee award, the fact that an award against the state would ultimately fall on the taxpayers, the fact that the attorneys received public and charitable funding for the purpose of bringing lawsuits of the character involved, and the fact that the moneys awarded would inure not to the benefit of the individual lawyers but the organizations employing them. Ramos v. Countrywide Home Loans, Inc., (2000) 82 Cal.App.4th 615, 622-23.

Conversely, a trial court may reduce attorney fees based on the plaintiff’s lack of success. SOURCE, supra, 235 Cal. App. 4th at 1185. A petitioner’s lack of success on legally distinct causes of action can weigh against a positive multiplier or warrant imposition of a negative multiplier. Chavez v. City of Los Angeles, (2010) 47 Cal.4th 970, 989; Californians for Responsible Toxics Management v. Kizer, (1989) 211 Cal.App.3d 961, 975. Opp. at 17-18.

Sunshine’s argument for a multiplier is frivolous. The only favorable factor is that its counsel accepted the case on a contingency basis. Garza Decl., ¶9. Sunshine cites Bernardi v. County of Monterey (“Bernardi”) (2008) 167 Cal.App.4th 1379, 1399, which held that contingency risk is one of the most common fee enhancers. Mem. at 8. An enhancement brings the financial incentives for attorneys enforcing important constitutional rights in line with incentives to undertake claims on a fee-for-services basis. Id. at 1399. An enhancement is supposed to approximate market-level compensation based on the risk of nonpayment or delay in payment of attorney fees. Id.

This factor is insufficient. The case was virtually unopposed, it was not novel or difficult for Sunshine’s counsel, and it did not preclude other employment by Sunshine’s attorneys. Sunshine cannot even say that it succeeded because it has not obtained the documents at issue from Chinatown BID. The request for a 1.25 enhancement is denied.

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).

The court granted the Petition on February 16, 2023 and Sunshine issued notice of the order on the same date and personally served Yu with it. Sunshine did not file a memorandum of costs until December 27, 2023 (Mot. Ex. B), which was well after the deadline under CRC 3.1700(a). However, Chinatown BID has not filed a motion to tax costs and the clerk has a ministerial duty to award costs based on the late-filed memorandum. The clerk will comply with this duty, rendering the motion for costs moot.

The motion for attorney’s fees is granted in the amount of $45,100. The motion to award costs is denied as moot because the clerk will comply with her duty to enter them based on the memorandum of costs.

[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.