Judge James C. Chalfant, Case Number: 22STCP01795, Date: 2023-11-28 Tentative Ruling

Adam Englander v. Golden Valley Municipal Water District, 22STCP01795

Tentative decision on motion for award of (1) attorney’s fees: granted; (2) costs: memorandum of costs required

Petitioner Adam Englander (“Englander”) seeks an award of $33,300 in attorney’s fees and $3,566.30 in costs against the Respondent Golden Valley Municipal Water District (“District”).

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

Petitioner Englander filed the Petition on May 10, 2022 alleging a cause of action for mandamus for violation of the CPRA in pertinent part as follows.

The District was created in March 1970 with all five elected board (“Board”) members consisting of members of the Ralphs family. To date, the Ralphs family controls the District.

On November 5, 2021, Englander visited District headquarters to request access to agendas and supplemental agenda materials. During his wait for the production of these materials, District Office Manager and Board member Patricia Edwards (“Edwards”) asked Englander to leave and threatened to have him arrested for trespass if he did not do so.

The District called the Los Angeles County Sheriff’s Department (“LASD”) to remove Englander from the office. Two deputies arrived and talked with Englander and Edwards. Edwards eventually agreed that Englander could review files, but the deputies would remain until he left. Englander was allowed to review only three copies of Board meeting minutes from 2020 and 2021. When Englander left, the LASD deputies advised him to inform LASD in advance if he wanted to come back to inspect more documents so that deputies could also be present.

On November 19, 2021, Englander sent the District a CPRA email request for 21 categories of documents (“November 19 Requests”). The requested documents included agendas, supplemental agendas, election-related documents, communications between District staff and Board members, and District agreements with consultants, lobbyists, and law firms since 2010. Englander asked for examination on December 3, 2021.

On December 2, 2021, Edwards emailed Englander that the District would allow him inspect the documents at the District office the next day. Englander arrived on December 3, 2021 with a photocopying service to scan all produced materials. Edwards informed him that the produced documents included all responsive documents.

On December 7, 2021, the photocopying service sent Englander a copy of all scanned documents. Englander reviewed the records and it was clear that not all responsive documents were produced. The District did not produce any agendas or supplemental agenda documents, communications between Board members, or contracts and invoices from any lobbyist, law firm, or consultant. The District did not provide any reason for withholding these documents.

On December 22, 2021, Englander asked Edwards for a request-by-request breakdown of produced and withheld documents. On January 5, 2022, Edwards responded that Englander had received everything the District office had on December 3, 2021. Englander’s further attempts to contact the District’s counsel received no response.

Englander seeks (1) a writ of mandate compelling the District to comply with the CPRA by producing all documents responsive to the November 19 Requests, (2) declaratory relief that the District violated the CPRA, and (3) attorney’s fees and costs.

On November 28, 2023, the court granted the Petition and ordered the District to conduct a further search for records responsive to the November 19 Requests. The court found that Englander is the prevailing party and entitled to attorney fees.

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, (“Hadley”) (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.

Englander made his first CPRA request on November 5, 2021. Manoukian Decl., ¶2. He attempted to obtain the requested documents multiple times before filing this action. Manoukian Decl., ¶¶ 2-3.

After the Petition was filed, the court held seven trial setting conferences and orders to show cause re: dismissal when the parties believed they could resolve the matter without adjudication. Manoukian Decl., ¶¶ 2-3. Ultimately, the District refused to produce further documents without adjudication. Manoukian Decl., ¶3.

Four of the five District Board members asserted in declarations that no further available documents were responsive to the CPRA request. Manoukian Decl., ¶4. Englander therefore had to depose the fifth Board member and the District secretary. Manoukian Decl., ¶5. After two District Board members were deposed, it was obvious that the District had not conducted a proper search. Manoukian Decl., ¶5. Any declarations about the searches conducted or documents sought were either not true or non-responsive to the actual requests. Manoukian Decl., ¶5.

Englander shared these findings with the District in a meet and confer letter on March 20, 2023. Manoukian Decl., ¶6. The District then promised to produce all responsive documents but never did. Manoukian Decl., ¶7.

On November 28, 2023, after briefing and oral argument (Manoukian Decl., ¶¶ 8-12), this court ordered the District to produce additional responsive documents. Manoukian Decl., ¶12. It also found Englander as the prevailing party for the purpose of attorney’s fees and costs under section 7923.115(a). Manoukian Decl., ¶13.

Counsel was ordered to meet and confer regarding the attorney’s fees. Manoukian Decl., ¶13. After various emails about fees Englander incurred through November 31, 2023, the District agreed to fees and costs totaling $30,564.19. Manoukian Decl., ¶¶ 15-18, Ex. 1. The District asked Englander to prepare a settlement agreement to that effect, which was sent on December 15, 2023. Manoukian Decl., ¶18, Ex. 1. On December 28, the District confirmed this settlement was “Ok for signature.” Manoukian Decl., ¶20, Ex. 2.

On January 2, 2024, Englander sent the signed settlement agreement to the District. Manoukian Decl., ¶21, Ex. 3. The deadline to pay fees under the terms thereof was January 12, 2024. Manoukian Decl., ¶21, Ex. 3. Englander sent a reminder email on January 10. Manoukian Decl., ¶22, Ex. 4. On January 12, counsel for the District asserted the check was in the mail. Manoukian Decl., ¶23, Ex. 5. This check never arrived. Manoukian Decl., ¶24.

Several follow-up emails later, Englander’s attorney, Marina Manoukian Esq. (“Manoukian”), discovered that the prior counsel for the District had left his firm and the matter had been reassigned. Manoukian Decl., ¶25. Since January 29, 2024, Manoukian sent the District’s new attorneys all background information and requested payment as agreed. Manoukian Decl., ¶26. As of February 21, 2024, it has refused to pay. Manoukian Decl., ¶27.

Manoukian bills $450 per hour. Manoukian Decl., ¶28. As of the moving papers, over a period of 22 months she billed 61.5 hours, or $27,675 in fees, and incurred $3,467.15 in costs. Manoukian Decl., ¶¶ 29, 31, Ex. 6. Disputed billings are as follows.

Four entries for time to review and finalize the writ across April and May 2022 total 0.2 + 1.8 + 0.2 + 0.5 = 2.7 hours. Manoukian Decl., Ex. 6. When combined with other entries, the total time associated with filing the writ is 3.1 hours. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶2.

Entries for preparing for depositions of Patti Edwards (“Edwards”) on December 13, 2022, and “GVMWB” on February 22, 2023, total 2.4 + 0.7 = 3.1 hours. Manoukian Decl., Ex. 6. When combined with one hour on December 14, 2022 to prepare for the deposition of Ryan Ralphs (“Ryan”), the total time spent preparing to depose Board members was 4.1 hours. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶3.

Manoukian spent 0.3 hours to review and analyze a meet and confer letter from opposing counsel and discuss it with Englander. Manoukian Decl., Ex. 6. She spent another 2.8 hours to draft a response, a total of 3.1 hours. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶4.[3]

Manoukian spent 0.2 + 0.4 = 0.6 hours to email opposing counsel about document production on two different dates. Manoukian Decl., Ex. 6.

Between October 2022 and February 2023, Manoukian billed five entries of 0.2 hours each, one hour total, to send emails to schedule depositions. Manoukian Decl., Ex. 6. Those emails were not simple calendaring emails. Manoukian Reply Decl., ¶10. The hour spent on emails was because of the District’s gamesmanship in attempting to resist the depositions by canceling and rescheduling them. Manoukian Reply Decl., ¶5. Manoukian sent the emails to thwart attempts to avoid deposition, particularly as the court has already scheduled status hearings based on when it believed the depositions would take place. Manoukian Reply Decl., ¶10.

Manoukian spent 4.8 hours across three sessions to review two deposition transcripts. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶6.

In September 2023, Manoukian spent 2.7 + 6.5 + 2.8 = 12 hours to draft and revise the opening brief, 0.8 + 1.9 = 2.7 hours to draft accompanying declarations, and 0.8 hours to compile and organize 12 supporting exhibits. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶7. “Compiling exhibits ” refers to reviewing documents in the case and deciding which were relevant and useful. Manoukian Reply Decl., ¶11. The opening brief was 15 pages, and the moving papers totaled 300 pages. Manoukian Reply Decl., ¶7. Manoukian spent 15.5 hours on the moving papers. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶7.

Manoukian spent 1.2 hours to review the opposition, 0.2 hours to draft a supplemental declaration in support of the reply brief, and 2.1 + 2.8 + 0.8 = 5.7 hours to draft the reply brief, for a total of 7.1 hours. Manoukian Decl., Ex. 6; Manoukian Reply Decl., ¶8.

Manoukian billed 0.4 hours in May 2022 to ensure that the Petition filing was correct and prepare the civil case cover sheet, 0.3 hours in May 2022 to follow up on filing and instruct on service of the Petition, 0.2 hours in July 2022 to coordinate an inspection and copying date, and 0.2 hours to email opposing counsel about the “OSC regarding dismissal ruling and dates.” Manoukian Decl., Ex. 6. Although these hours seem purely administrative, they were not. Manoukian Reply Decl., ¶9. Because this was a petition for writ of mandate, Manoukian was more involved in the instructions to attorney service to ensure that filing and service were proper. Manoukian Reply Decl., ¶9.

The $27,675 in fees and $3,467.15 in costs claimed in the moving papers preceded this motion. Manoukian Reply Decl., ¶14. The District’s refusal to cooperate with discussions on attorney’s fees has incurred additional fees and costs. Manoukian Reply Decl., ¶12.

Manoukian spent seven hours drafting the motion and declaration, one reviewing the opposition, and four drafting a reply. Manoukian Reply Decl., ¶¶ 15-16. She expects to bill 0.5 hours to attend the hearing, for a total of 12.5 hours on the fee motion. Manoukian Reply Decl., ¶16. This adds $5,625 to the fees, increasing them to $33,300. Manoukian Reply Decl., ¶¶ 17-18.

Manoukian incurred an additional $79.15 in filing costs for this motion. Manoukian Reply Decl., ¶17. She now seeks $3,566.30 in costs. Manoukian Reply Decl., ¶18.

Petitioner Englander’s moving papers seek an award of $33,300 in attorney’s fees and $3,566.30 in costs.

The court’s ruling in this action compelled the District to produce additional responsive documents and found Englander to be the prevailing party for the purpose of attorney’s fees and costs under section 7923.115(a). Manoukian Decl., ¶¶ 12-13.

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.

Manoukian seeks an hourly rate of $450. Manoukian Decl., ¶28. The District does not dispute this rate. Opp. at 2. The rate is reasonable.

A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. See Hadley, supra, 167 Cal.App.3d at 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, supra, 230 Cal.App.4th at 488.

As of the moving papers, Manoukian presents billings for 61.5 hours on this matter, or $27,675 in fees. Manoukian Decl., ¶¶ 29, 31, Ex. 6. Manoukian adds 12.5 hours for the motion for attorney’s fees, from drafting the motion to attending the hearing. Manoukian Reply Decl., ¶16.

The District asserts that Manoukian’s hours contain duplicative entries and entries for administrative tasks better spent by a paralegal or secretary. Opp. at 2. The District complains of multiple entries to review and finalize the Petition, for preparation for depositions, emailing opposing counsel about production, scheduling depositions, reviewing deposition transcripts, drafting the opening and reply trial briefs, and billing for working with an attorney service and instructing on service of the Petition, and coordinating inspection and copying. Opp. at 3-4.

The court has reviewed Manoukian’s evidence and finds the District’s objections spurious, with the possible exception of administrative tasks. Even there, the court accepts Manoukian’s explanation. Moreover, the total fees sought of $33,300 are completely reasonable.

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 an order that is appealable, which is the instant order. See Los Angeles Corridor Transportation Authority, (2001) 88 Cal.App.4^th 1381, 1388 (time for appeal of CPRA attorney’s fees denial is date of “notice of entry” of denial).

Englander asserts costs of $3,566.30 in this action. Manoukian Reply Decl., ¶18. The court granted the Petition on November 28, 2023. Manoukian Decl., ¶12. When it did, it also found Englander to be the prevailing party for the purpose of attorney’s fees and costs under section 7923.115(a). Manoukian Decl., ¶13. Englander must file a memorandum of costs to claim these costs; they will not be addressed by motion.

[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.

[2] The District filed a declaration in support of its opposition solely to reattach billing sheets that Englander also provided. Manoukian Decl., Ex. 6; Trepany Decl., Ex. 1.

[3] Manoukian misstates this as 31 hours, likely due to a typo omitting the decimal. Manoukian Reply Decl., ¶4.