Judge James C. Chalfant, Case Number: 22STCP03795, Date: 2024-02-08 Tentative Ruling

Committee to Support the Recall of District Attorney George Gascon v. Dean Logan and Office of the Los Angeles County Registrar-Recorder/County Clerk, 22STCP03795

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

Petitioner Committee to Support the Recall of District Attorney George Gascón (“Committee”) moves for an award of $1,166,102.50 in attorneys’ fees under either Government Code^{^[1]} section 7923.115 or CCP section 1021.5, plus $13,354.86 in costs, from Respondents Dean Logan (“Logan”) and Office of the Los Angeles County Registrar-Recorder/County Clerk (collectively, “Registrar”). In reply, the Committee reduces the claimed costs to $8,117.32 but asserts an additional $30,000 in attorney’s fees.

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

Petitioner Committee filed this proceeding on October 18, 2022. The operative pleading is the First Amended Petition (“FAP”), filed on November 16, 2022 and alleging (1) traditional mandamus and (2) declaratory judgment, and seeking injunctive relief. The verified FAP alleges in pertinent part as follows.

After his election on December 8, 2020, George Gascón (“Gascón”) took office as the Los Angeles County (“County”) District Attorney. Gascón has since introduced controversial prosecutorial policies that frustrated some residents. On January 27, 2022, the Registrar approved the Committee’s request to circulate a petition to recall Gascón (“Recall Petition”). The Committee collected 715,833 signatures, 148,976 more than the 566,857 signatures required to trigger a recall election. The Committee submitted the Recall Petition on July 6, 2022. On July 9, 2022, the Registrar issued a press release that verified the total number of raw signatures.

After the Registrar reviewed a 5% sample, it launched a review of all Recall Petition signatures. On August 15, 2022, the Registrar announced that it had found 195,783 signatures invalid. This reduced the number of signatures to 46,807 fewer than needed to qualify the Recall Petition for a recall election. The reasons cited for invalid signatures included: (1) 88,464 signatures of voters who were not registered; (2) 43,593 duplicate signatures; (3) 32,187 signatures from voters with a different address; (4) 9,490 mismatched signatures; (5) 7,344 “cancelled” signatures; (6) 5,374 signatures from voters with an out-of-county address; and (7) 9,331 signatures invalid for one of ten other reasons.

On August 18, 2022, the Committee informed the Registrar that it intended to exercise its statutory right, under Elections Code section 11301 and section 6253.5, to examine the Recall Petition to assess “which signatures were disqualified and the reasons therefor.” On August 19, the Registrar replied that the Committee could review the Recall Petition and the voter record data or information that led to the disqualification of each signature. Such review would occur at the Registrar’s office during business hours.

On August 29, 2022, the Registrar restricted the review process whereby (1) the Committee could examine Petition signatures at the Registrar’s office only on Tuesday through Thursday, from 9 a.m. to 4 p.m.; (2) only 14 Committee representatives would be permitted per day; (3) Committee representatives would be limited to use of seven computer workstations; and (4) each computer workstation would be operated by one staff person from the Registrar’s office.

The Committee made a good faith effort to comply with these restrictions beginning on September 6, 2022. Progress has been slow, and the Registrar has not provided access to all voter signatures on file, prior addresses of registered voters, and other crucial pieces of information needed to determine whether a signature found invalid was actually valid. In other instances, the Registrar has provided this information in printed form, which slows down the Committee’s review. The Registrar has also refused to answer questions, ignoring them or claiming that the answers are beyond the scope of the examination process. It has also failed to provide information on Runbeck’s EMS-DIMS Election Management System (“DIMS”) for voter registration, such as the abbreviations the system uses.

The difficulties the Committee has faced make it clear that timely review of the Registrar’s findings is impossible with current parameters. At the current rate, the Committee would need 18 months to review the disqualified signatures which in effect denies the Committee of its right to review under section 6253.5.

The Committee seeks a writ of mandate compelling timely production of (1) all signatures on file for voters whose signature was rejected as a mismatched signature (“Request No. 1”); (2) for all persons whose signature was rejected because the voter’s residence address on the Recall Petition did not match the voter’s registered address, an electronic list of the voters’ prior addresses, dates of all changes, the reason, and notice provided for involuntary changes (“Request No. 2”); (3) a list of voters whose signatures were valid, invalid as a duplicate, invalid because registration was cancelled due to death, and invalid for “fatal pending” (“Request No. 3”); (4) all training materials or user manuals for DIMS to interpret the data contained in the system (“Request No. 4”); (5) all comments, notes, or notations made in the voter files of rejected signatures (“Request No. 5”); (6) all voter files that may exist for those voters with rejected signatures, cancelled or not (“Request No. 6”); (7) the original affidavits of registration including re-registrations for voters with rejected signatures (“Request No. 7”); (8) an electronic list of all voters whose Petition signatures were rejected during the random sample review (“Request No. 8”); and (9) all data and information the Registrar relied on in rejecting a Petition signature (“Request No. 9”).

The Committee also seeks a writ of mandate compelling the Registrar to agree that (1) Committee representatives may examine the Recall Petition five days per week; (2) up to 25 representatives may examine the Recall Petition at one time; (3) Committee representatives can use up to 25 computer workstations; and (4) Committee representatives may use personal electronic devices during the review process.

The Committee requests (1) a temporary restraining order (“TRO”), preliminary injunction, and/or permanent injunction mandating that the Registrar provide the requested documents and requested access, (2) a judicial declaration that Respondents acted unlawfully when they chose not to do so, and (3) attorney’s fees and costs.

On October 25, 2022, the court heard the Committee’s ex parte application for an order to show cause re: preliminary injunction (“OSC”) compelling the Registrar to (1) comply with Request Nos. 1-4 and (2) provide the access requested in the FAP. The court granted the ex parte application and issued the OSC.

On the same day, the Committee served Respondents with the Petition, Summons, and ex parte application.

On November 17, 2022, the court heard and denied the Committee’s ex parte application for leave to file a supplemental brief in support of the OSC.

On December 6, 2022, the court granted in part the Committee’s application for a preliminary injunction. The Registrar was ordered to allow the Committee to review prior signatures on file for voters whose signatures were denied because of a mismatch (Request No. 1). It was also required to produce electronic copies of the existing lists subject to a strict protective order to be negotiated by the parties, as well as a hard copy list of valid signatures for the petition. (Request No. 3). The Registrar was not required to allow review of addresses and change of address notices for voters whose residence address on the Recall Petition did not match the voter’s registered address (Request No. 2). It was also not required to produce additional training materials or user manuals for DIMS to interpret the data contained in the system (Request No. 4), but the parties were to meet and confer on the completeness of disclosures.

On January 30, 2023, the court granted the Committee’s application for an order to enforce the preliminary injunction.

On January 31, 2023, the Registrar filed a notice of appeal from the decision granting the Committee’s application for a preliminary injunction.

On July 27, 2023, the court found this case related to Committee v. Registrar, (“Committee II”) Case No. 23STCP02365, and consolidated them before this court.

On August 10, 2023, the Second Appellate District Court of Appeal issued a decision dismissing the appeal to the December 6, 2022 order granting preliminary injunction, but granting the appeal for this court’s January 23, 2023 order to the extent it (1) authorized use of electronic lists outside the Registrar’s examination room, and (2) commanded disclosure of redacted affidavits of voter registration. The appellate court ordered both parties to bear their own costs on appeal.

On August 16, 2023, Department 1 unrelated this case and Committee II, and returned this case to Department 85 and returned Committee II to Department 86 (Hon. Mitchell Beckloff).

On October 10, 2023, this court issued a revised order pursuant to the Second Appellate District’s August 10, 2023 decision, effective once remittitur was issued. This remittitur was filed on October 11, 2023.

On November 27, 2023, the court dismissed the FAP in this case as moot after the Committee informed it the examination was complete.

Section 7923.115 (“section 7923.115”), formerly section 6259,^{^[2]} 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.

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The party seeking attorney’s fees need not prevail on all of its alleged claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. The party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. A successful party who qualifies for an award under section 1021.5 is entitled to compensation for all hours reasonably spent by their counsel. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–33.

Unlike the separate substantial benefit doctrine, “the ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” Woodland Hills Residents Assn., Inc. v. City Council, (1979) 23 Cal.3d 917, 939. “[T]he benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.” Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–940.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although cases refer to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The question is whether advancement of the public interest was merely coincidental to the attainment of the party’s personal goals. Bowman v. City of¿Berkeley (“Bowman”) (2005) 131 Cal.App.4th 173, 181. The party seeking attorney’s fees bears the burden of establishing that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (“Save Open Space”) (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (“Families Unafraid”), (2000) 79 Cal.App.4th 505, 515.

On January 27, 2022, the Registrar approved the form and wording of the Committee’s request to circulate a Recall Petition for Gascón. Thompson Decl., ¶2. The Committee collected 715,833 signatures, 148,976 more than the 566,857 signatures required to trigger a recall election. Thompson Decl., ¶¶ 2-3, Ex. 1. The Committee submitted the signatures to the Registrar on July 6, 2022. Thompson Decl., ¶3.

On July 9, 2022, the Registrar issued a press release confirming that it had received 715,833 raw signatures. Thompson Decl., ¶3, Ex. 1. The press release explained that the Registrar would use a 5% sample of signatures to decide if it needed to review all signatures. Thompson Decl., ¶3, Ex. 1.

On August 15, 2022, the Registrar announced that it had found 195,783 signatures invalid. Thompson Decl., ¶4, Ex. 2. This reduced the number of valid signatures to 520,050, which was 46,807 fewer than needed to qualify the Recall Petition for a recall election. Thompson Decl., ¶4, Ex. 2. The reasons cited for the invalid signatures included: (1) 88,464 signatures of persons not registered to vote; (2) 43,593 duplicate signatures; (3) 32,187 signatures from persons with a different address; (4) 9,490 mismatched signatures; (5) 7,344 “cancelled” signatures; (6) 5,374 signatures from those with an out-of-county address; and (7) 9,331 signatures invalid for one of ten “other” reasons. Thompson Decl., ¶4, Ex. 2.

On August 18, 2022, the Committee informed the Registrar via email that it intended to exercise its statutory right to examine the Recall Petition to assess which signatures were disqualified and why. Thompson Decl., ¶5, Ex. 3.

On August 19, 2022, the Registrar replied that the Committee could review the Recall Petition and the voter record data that led to the disqualification of each signature. Thompson Decl., ¶6, Ex. 4. If the Committee had any questions during the review, it could submit them in writing. Thompson Decl., ¶6, Ex. 4. The Registrar warned the Committee that Govt. Code section 6253.5 did not provide a method to challenge the certificate of results if the Committee found that invalidated signatures were valid. Thompson Decl., ¶6, Ex. 4.

On August 29, 2022, the Registrar imposed several restrictions on the Committee’s examination. Thompson Decl., ¶7. Only 14 Committee members could conduct the review three days per week on no more than seven computer workstations, which the Registrar staff had to operate. Thompson Decl., ¶7. Committee members also could not use personal electronic devices for recordkeeping purposes. Thompson Decl., ¶7.

The Registrar also declined to provide the Committee with access to the following data and records.

a. The Committee asked for access to all signatures on file for each voter. The Registrar only allows Committee members to review one sample signature on file for each voter. Thompson Decl., ¶8(a). But 2 CCR section20960(i) required Registrar examiners to compare the signature on the Recall Petition with all signatures in the record. Thompson Decl., ¶8(a).

b. The Committee asked for an electronic copy of the list and report of signatures invalidated as duplicates, but the Registrar only provided a 1700-page physical copy. Thompson Decl., ¶8(b). The Registrar would not allow the Committee to take this outside of the examination room or to mark it. Thompson Decl., ¶8(b). This made the review process far more laborious as the Committee wrote down every duplicate signature, reviewed every page with a duplicate signature, and took handwritten notes on each. Thompson Decl., ¶8(b).

c. The Committee requested electronic lists or reports from the Petition Signer Module that identify all voters whom the Registrar found submitted a valid signature for the Recall Petition. Thompson Decl., ¶8(c), Ex. 5. The Registrar refused to provide these lists. Thompson Decl., ¶8(c). It also refused to check whether a particular signature was rejected or validated when the challenge code was missing for that signature. Thompson Decl., ¶8(c). This left the Committee unable to efficiently determine whether a signature was validated or not. Thompson Decl., ¶8(c). Comparison of petition signatures with an electronic list of validated signatures from the Petition Singer Module would have enabled the Committee to determine if the Module count is inaccurate. Thompson Decl., ¶8(c). Otherwise, the Committee would have had to go through all 715,833 signatures and cross-check each against printed lists of rejected signatures. Thompson Decl., ¶8(c).

d. The Committee requested electronic lists or reports for signatures invalidated for death or “fatal pending” and received only printed lists. Thompson Decl., ¶8(d), Exs. 6-7.

e. The Committee asked for all signatures rejected because the voter’s residence address on the Recall Petition did not match the voter’s registered address, spreadsheets of prior addresses on file, dates of all changes, the reason for each change, and notice provided to the voter for involuntary address changes. Thompson Decl., ¶8(e). The report the Registrar provided shows only when the voter changed or updated its address during the circulation period. Thompson Decl., ¶8(e). The Registrar initially refused to provide voter notifications. Thompson Decl., ¶8(e), Ex. 8. It later agreed to produce voter notifications but warned that it would not begin the search until December 5, 2022. Id., Ex. 9.

f. On September 13, 2022, the Committee asked for a list of the names and voter ID numbers for the signatures rejected during the random sampling. Thompson Decl., ¶8(f), Ex. 37. The Registrar only agreed to do so after the Committee filed the Petition. Thompson Decl., ¶8(f).

On September 21, 2022, Committee’s counsel sent the Registrar a letter demanding that it (1) produce all requested documents for “mismatch” or “different address” signatures; (2) expand the number of Committee representatives who can participate in the review to 25; (3) expand the number of workstations to 25; (4) permit review on five days per week; (5) provide training or other materials that explain the DIMS software; and (6) respond to all questions that the Committee asks within 48 hours. Thompson Decl., ¶9, Ex. 10.

The Registrar responded on September 26, 2022 that it answered all the questions and requests that were in the scope of authorized review under Govt. Code section 6253.5 and the remaining questions were beyond that scope. Thompson Decl., ¶9, Ex. 11. It also alleged that the Committee did not have as many designees conducting the review as currently allowed. Thompson Decl., ¶9, Ex. 11. The parameters in place ensure the preservation of the Recall Petition, protect voter data not subject to public disclosure, operate within COVID-19 safety guidelines, and allocate public resources between the Committee’s inspection and the upcoming general election. Thompson Decl., ¶9, Ex. 11. The Govt. Code authorizes a review to determine which signatures were disqualified and why, not to audit the process the Registrar used to do so. Thompson Decl., ¶9, Ex. 11. The Registrar would continue its current level for support for the inspection, except that it may decrease it in response to the then-upcoming election. Thompson Decl., ¶9, Ex. 11.

On November 16, 2022, the Committee filed the FAP. Carroll Decl., ¶2, Ex. 15 (FAP). The FAP asserted that the Registrar had suppressed data that may suggest a rejection of a signature from the Recall Petition was improper. FAP, ¶5. California law specifically guarantees the proponents of a recall the right to review whether public officials have properly rejected a recall petition. FAP, ¶1. However, the purpose of this review is eviscerated unless the Committee has access to the voter record data or information that led to the disqualification of a signature. FAP, ¶5. That would allow the Committee to determine for itself whether a signature was properly rejected. FAP, ¶5. The FAP invoked the CPRA and CCP section 1085 to enforce its right to such review. FAP, ¶5.

The first prayer for relief sought production of documents pursuant to nine Requests.^{^[3]} FAP Prayer for Relief, ¶1. The argument that the Committee was entitled to these items often cited the CPRA. FAP, ¶27. The FAP also asked for a writ of mandate compelling the Registrar to permit (1) the use of electronic devices in review, (2) an increase in the number of days for the review to five days per week, and (3) an increase in number of representatives and computer stations to twenty-five each. FAP Prayer for Relief, ¶2.

On October 24, 2022, the Committee filed the ex parte application for an OSC compelling the Registrar to (1) comply with Request Nos. 1-4 and (2) provide the access requested in the FAP. Carroll Decl., ¶3. The court granted the ex parte application and issued the OSC, with the hearing set for December 6, 2022. Carroll Decl., ¶3. Until then, the parties were to meet and confer to narrow the issues in dispute. Carroll Decl., ¶3. The court also expressed its preliminary views on several of the items, stating that the Registrar was unduly restricting access to the Recall Petition and should provide the requested electronic lists. Carroll Decl., ¶3.

During the subsequent meet and confer sessions, the Registrar refused to provide any of the requested records but did agree to incrementally increase the Committee’s access. Carroll Decl., ¶4.

During the December 6, 2022 OSC hearing, the court ruled that, aside from the requested notifications and manuals, this was not a CPRA case. Carroll Decl., ¶5, Ex. 17, p. 38. However, it did seem that the Committee should have electronic files solely as a matter of convenience. Ex. 17, p. 38. The Registrar had no reason to refuse production of electronic files, provided the Committee could not take them out of the examination room. Ex. 17, p. 38.

The court also said that it seemed the Registrar had provided more than the Committee was entitled to have. Ex. 17, p. 45. In a case of “no good deed goes unpunished”, the Committee now wanted the electronic version. OSC Tr., p. 45. The court asked the Registrar if that would speed up the review process so that the Committee would finish by the end of March. Ex, 17, pp. 45-46. The Committee replied that deadline was the hope. OSC Tr., p. 46.

This court granted the preliminary injunction in part. Carroll Decl., ¶5, Ex. 16. Per Request No. 1, the Registrar was ordered to allow the Committee to review all prior signatures on file for voters whose signatures were denied because of a mismatch. Carroll Decl., ¶5, Ex. 16. Per Request No. 3, the Registrar was required to produce electronic copies of the existing lists subject to a strict protective order to be negotiated by the parties, as well as a hard copy list of valid signatures for the petition. Carroll Decl., ¶5, Ex. 16. The Registrar was not required to allow review of addresses and change of address notices for voters whose residence address on the Recall Petition did not match the voter’s registered address. Carroll Decl., ¶5, Ex. 16. It was also not required to produce additional training materials or user manuals for DIMS to interpret the data contained in the system. Carroll Decl., ¶5, Ex. 16. However, the parties were to meet and confer on the completeness of disclosures. Carroll Decl., ¶5, Ex. 16.

Although the court refused to set specific access requirements, it did order the parties to meet and confer regularly to work towards completion of the review by March 31, 2023. Carroll Decl., ¶5, Ex. 16; Ex. 17, p. 60. If satisfactory progress was not being made, the parties were to return to the court on an ex parte basis. Carroll Decl., ¶5, Ex. 16. The Committee’s use of electronic devices would also be permitted pursuant to an appropriate protective order in which they could be used for the legitimate purposes of note taking, data entry, and internet searches with the camera featured covered and an order that no pictures or videos be taken. Carroll Decl., ¶5, Ex. 16.

The parties made little progress in meet and confer sessions during the next 45 days. Carroll Decl., ¶6. On December 30, 2022, the Registrar provided a Recall Random Sample Report. Carroll Decl., ¶6. On January 20, 2023, it produced voter notification card spreadsheets. Carroll Decl., ¶6. On March 1, 2023, it produced voter notification cards returned as undeliverable. Carroll Decl., ¶6.

On January 23, 2023, the Committee filed an ex parte application to enforce the preliminary injunction. Carroll Decl., ¶7. The Registrar filed an ex parte application to clarify the preliminary injunction and set the Committee’s preliminary injunction bond to $985,000. Carroll Decl., ¶7.

At the hearing on these applications, the court asked for a reminder of what right the Committee had to electronic records. Carroll Decl., ¶7, Ex. 18, p. 243. The Committee confirmed that the court had just ordered for electronic records because it believed that would save a lot of time during the review. Ex. 18, p. 243. As for the Registrar’s bond application, the court acknowledged that a bond was required and, after argument, set the bond at $500. Ex. 18, p. 304.

On January 30, 2023, the court issued an order partly granting both applications. See Carroll Decl., Ex. 22. It authorized the Committee’s use of electronic data outside the examination room, subject to a protective order. See Carroll Decl., Ex. 22. It also compelled the Registrar to disclose redacted hardcopy affidavits of registration. See Carroll Decl., Ex. 22.

On February 3, 2023, the Registrar appealed the court’s preliminary injunctive orders. Carroll Decl., ¶8. It notified the Committee via email that because the appeal subjected the orders to an automatic stay, the Registrar would not provide any electronic signature lists pending the appeal. Carroll Decl., ¶8, Ex. 19.

Because of the time-sensitive nature of the examination process, the Registrar moved to expedite the appeal hearing. Carroll Decl., ¶9. The appellate court granted the motion. Carroll Decl., ¶9, Ex. 21.

The Committee moved to dismiss the appeal for lack of jurisdiction. Carroll Decl., ¶9, Ex. 22 (Comm. to Recall Gascon v. Logan, (“Recall Gascon”) (2023) 94 Cal. App. 5th 352, 358). The Committee argued that an order of the court either directing disclosure or supporting a public official’s decision to refuse disclosure under the CPRA is not a final judgment under CCP section 904.1. Govt. Code §7923.500(a); Recall Gascon, supra, 94 Cal. App. 5th at 358. Any appellate review of such an order must therefore be reviewed by petition to the appellate court for issuance of an extraordinary writ. Govt. Code §7923.500(a); Recall Gascon, supra, 94 Cal. App. 5th at 358. Under Govt. Code section 7923.500(b), a party must file such a petition within 20 days of service of a written notice of entry of the order, although the trial court may for good cause allow a 20-day extension. Recall Gascon, supra, 94 Cal. App. 5th at 371.

In its August 10, 2023 opinion, the appellate court held that the Registrar had appealed from non-appealable orders under Govt. Code section 7923.500(a). Id. at 367. This court had granted the preliminary injunction for electronic lists (Request No. 3) and notations in the Registrar’s data management files (Request No. 5) under Govt. Code sections 7924.110. Id. at 362. The orders either commanded the Registrar to disclose records in hardcopy and/or electronic form or support the Registrar's refusal to do so based on exemptions under the CPRA. Id. at 367. The Registrar’s own appellate argument cited Govt. Code section 7924.110(b)(2) and Elections Code section 2194. Id.

The Registrar asserted that it worked with the Committee to expedite the examination. Id. However, it also relied on the stay pending appeal to refuse documents previously ordered by the trial court. Id. at 369-70. This resistance reflected the very dangers Govt. Code sections 7924.110 and 7923.500 seek to avoid. Id. at 370. To effectuate their purpose and harmonize the examination procedures set in Govt. Code section 7924 et seq. with the rest of the CRPA, the court construed section 7923.500 as covering orders directing or refusing disclosure of records in connection with the examination of an unsuccessful recall petition. Id.

The appellate court dismissed most of the appeal from the trial court’s December 2022 preliminary injunction order for lack of jurisdiction. Id. at 371. Because the Registrar’s appeal was untimely as to the December 2022 injunction order, the appellate court lacked jurisdiction to consider its merits. Id.

The trial court’s January 30, 2023 order did fall within the jurisdictional deadline. Id. at 372. Of the issues therein, the appellate court declined to consider the bond amount. Id. at 372-73 The appellate court reviewed and reversed the trial court’s January 30 order’s new directives (1) allowing the Committee to use electronic voter lists outside the examination room and (2) compelling the disclosure of current and former affidavits of voter registration, and (3) ordering redacted hard copies of affidavits of registration. Id. at 373-78.

On July 7, 2023, the Committee filed the petition in Committee II. Carroll Decl., ¶12, Exs. 23-24. The petition asserted the Registrar improperly denied the Recall Petition due to an inflated signature requirement, incorrectly rejected signatures, and unlawfully rejected signatures. Carroll Decl., ¶12, Ex. 24.

The law firm Ellis George Cipollone O’Brien LLP (“EGC”) incurred $13,270.86 in costs. Carroll Decl., ¶14, Exs. 33-34. Kathleen Cady incurred another $84. Carroll Decl., ¶14, Ex. 36.

When the Registrar conducted a random sampling of the signatures on the Recall Petition, it concluded 72.55% of the 519,362 signatures would be valid. Flores Decl., ¶5. This would mean it only had 91.6% of the signatures needed to qualify. Flores Decl., ¶5. Per Elections Code section 1122(c), the Registrar began a full count to verify all signatures. Flores Decl., ¶5.

The Registrar completed the full count on August 15, 2022. Flores Decl., ¶6. It found that of the 195,783 invalid signatures, 88,464 were not registered to vote, 43,593 were duplicates, 32,187 had different addresses, 9,490 contained mismatched signatures, 7,344 were canceled, 5,374 had an out-of-county address, and 9,331 were invalid for other reasons. Flores Decl., ¶6.

When the Committee asked to inspect the Recall Petition per Elections Code section 11301 and Govt. Code section 7924.110, the Registrar agreed to let the Committee review the disqualified signatures and the reasons for disqualification. Flores Decl., ¶7. The Registrar’s procedures for such examinations under Govt. Code section 7924.110 comply with policies articulated in the Failed Petitioner Examination Guidelines distributed by the California Association of Clerks and Election Officials. Flores Decl., ¶8.

On August 29, 2022, the parties met to discuss the inspection date and hours. Flores Decl., ¶9. Although the Registrar wanted to limit the Committee’s review to 10 participants at 5 computer stations, it agreed to 14 participants at 7 stations three days per week from 9:00 a.m. to 4:00 p.m. Flores Decl., ¶9. This was large compared to most reviews, which involve only 3-5 representatives. Flores Decl., ¶9.

On September 7, 2022, the Committee purchased a printout of the names and voter information for all signatures on the Petition that were invalidated, including the reason for each invalidation. Flores Decl., ¶11. It purchased a PDF copy of this on CD on September 19. Flores Decl., ¶11.

Because almost 200,000 signatures were disqualified, the Registrar provided hard copy lists of voters whose signatures were disqualified as (1) duplicate signatures, (2) voters whose address did not match the affidavit of registration, (3) voters whose signatures did not match, and (4) signers who are deceased. Flores Decl., ¶13. These lists were made specifically for the Committee’s review, are not usually made available in the petition examination process, and include non-public voter information. Flores Decl., ¶13. The Registrar made this list with the understanding the Committee would only use this information in the examination room to expedite the review process. Flores Decl., ¶13.

After the General Election, the Registrar agreed to increase the number of representatives from 14 to 20. Flores Decl., ¶21. Even after that, the Committee never had 20 volunteers in the examination room. Flores Decl., ¶21. Sign-in sheets show an average of less than nine per day over 186 days, with more than 14 only on 27 of those days. Flores Decl., ¶21, Ex. A. Despite this, the Committee demanded access for 25 representatives to 25 computer stations. Flores Decl., ¶21.

Outside of this litigation, the Registrar has responded to 21 CPRA requests from the Committee between September 2022 and November 2023. Flores Decl., ¶23. One request was for voter notification cards. Flores Decl., ¶24. The Registrar could not do this during the normal timeframe because of election deadlines and responsibilities. Flores Decl., ¶24. It told the Committee it would provide these cards after the election, but the Committee still included that request in this action. Flores Decl., ¶24. After some confusion over what the Committee wanted, the Registrar provided tens of thousands of cards. Flores Decl., ¶24.

The Registrar diverted $1.3 million in resources to the Recall Petition Review, not including attorney’s costs to defend this action. Flores Decl., ¶20. The Committee’s Recipient Committee Campaign Statement for October through December 2022 shows it spent over $8 million to qualify the Recall Petition. Gevercer Decl., Ex. C.

In its December 6, 2022 tentative on the Committee’s application for a preliminary injunction, the court held that, for Request No. 1, Elections Code section 11301 and then-Govt. Code section 6253.5 only permit inspection of a recall petition and the memoranda prepared by county election officials. Gevercer Decl., Ex. A, p. 15. Notwithstanding any other law, Elections Code section 2194(b)(2) deems voter signatures on affidavits of registration confidential. Gevercer Decl., Ex. A, p. 15. Under Elections Code section 2194(c)(2), they shall be disclosed, but not copied, when a person seeks to compare that signature with a signature on a petition. Gevercer Decl., Ex. A, p. 15.

The court agreed with the Committee that because Elections Code section 2194(c)(1) allows the signature’s release as necessary to adjudicate a signature challenge, this review must be co-extensive with Registrar’s sample review of voter signatures. Gevercer Decl., Ex. A, p. 15. The Committee could therefore review all signatures on file. Gevercer Decl., Ex. A, p. 15; Flores Decl., ¶22.

As for Request No. 3, the Registrar had made electronic notations in the DIMS voter files identifying who signed the Recall Petition, whether the signature was accepted or rejected, and the reasons why. Gevercer Decl., Ex. A, p. 19. The court agreed with the Committee that those notations and lists were memoranda subject to disclosure under then-Govt. Code section 6253.5. Gevercer Decl., Ex. A, p. 19. The question then became whether the Registrar must provide such lists in electronic form. Gevercer Decl., Ex. A, p. 20.

Then-Govt. Code section 6253.9(a) required that any agency with information constituting an identifiable public record not exempt from disclosure that is in an electronic format shall make that information available in an electronic format when requested by any person. Gevercer Decl., Ex. A, p. 20. Although the Registrar was concerned that use of an electronic copy outside the examination room would make a record public, this could be addressed with a protective order limiting the lists’ use. Gevercer Decl., Ex. A, p. 20.

The court held the Committee had demonstrated a probability of success on the argument that the Registrar must produce electronic copies of the existing lists subject to a strict protective order. Gevercer Decl., Ex. A, p. 20. It must also produce a physical copy of the list of valid signatures, but not an electronic copy. Gevercer Decl., Ex. A, p. 20.

The court then held that it saw no reason why the Committee cannot use electronic devices in the examination room with a protective order. Gevercer Decl., Ex. A, p. 22. It did not set specific access requirements, but it did order that the parties meet and confer regularly to finish the examination by March 31, 2023. Gevercer Decl., Ex. A, p. 22. This section did not cite to statute. Gevercer Decl., Ex. A, p. 22.

As to balance of harms, the Committee did not expect to finish its review of the Recall Petition until May 2024 without injunctive relief. Gevercer Decl., Ex. A, p. 23. Because this is only six months before the end of Gascón’s term, that long a delay would almost deprive the Recall Petition of its purpose. Gevercer Decl., Ex. A, p. 23.

On January 5, 2023, the Registrar offered to provide the electronic lists of disqualified signatures in the examination room. Flores Decl., ¶22; Gevercer Decl., Ex. B. However, the Committee wanted to remove these lists from the examination room. Flores Decl., ¶22.

After the decision in Recall Gascon, supra, 94 Cal. App. 5th at 371, the Registrar again offered to make the electronic lists of disqualified signatures available in the examination room. Flores Decl., ¶22. The Committee did not review them until October 2023, when it only looked at them for a few days before it moved on. Flores Decl., ¶22.

From April to June 2023, the Committee received monetary contributions of $330,010. Gevercer Decl., Ex. D.

After reviewing EGC and Cady’s billing statements (Pet. Exs. 34, 36), the Registrar has identified and analyzed the $13,354.86 in claimed costs. Kaminski Decl., ¶¶ 3-5, Ex. A. Assuming arguendo the Committee had filed a timely memorandum of costs, only $2,110.42 in costs were allowable under CCP section 1033.5. Kaminski Decl., ¶10.

Costs that are expressly not allowable include (1) $1,186.73 in photocopying, postage, and telephone costs, under CCP section 1033.5(b)(3); (2) $1,198.99 for a transcript not ordered by the court, under CCP section 1033.5(b)(5); and (3) $5,001.28 for computer online research and investigation, including Westlaw and PACER charges, under CCP section 1033.5(b)(2). Kaminski Decl., ¶7.

Other costs are not allowable because the Committee has not shown they were reasonably necessary to the conduct of the litigation. Kaminski Decl., ¶8. These include: (1) $111.02 in parking costs under CCP section 1033.5(c)(2); (2) $1,073.44 in delivery costs to the Court; (3) $51.25 in fees paid to the State Bar for pro hac vice admission for an attorney for the Committee, when local counsel was already part of the case; (4) $2,199.72 for three items that have no description; (5) $135.71 in filing fees predating the action; and (6) $1,458.70 in e-filing fees. Kaminski Decl., ¶8.

Some delivery costs to the court were on dates when no case documents were filed. Kaminski Decl., ¶8b. Some were for papers for which courtesy copies are required under the court’s standing order and the Local Rules. Kaminski Decl., ¶8b. Others were for Committee II. Kaminski Decl., ¶8b. At best, $567.44 of these costs may have been allowable. Kaminski Decl., ¶8b.

EGC asserts e-filing fees with a $150 difference when the documents were of the same type. Kaminski Decl., ¶8f. Some filings were withdrawn, and others coincide more with the date for filings in Committee II than in this case. Kaminski Decl., ¶8f. The Committee must also bear its own cost for filing a notice of election on appeal. Kaminski Decl., ¶8f. At best, $1,117.95 in e-filing costs may have been allowable. Kaminski Decl., ¶8f.

The Committee asserts service charges of $512.99 for Logan and $425.03 for the Registrar in general. Kaminski Decl., ¶9. It fails to explain why service charges for the same document on the same date for two parties at the same address are different. Kaminski Decl., ¶9. It does not even explain why two service charges for the same address are reasonably necessary. Kaminski Decl., ¶9.

On December 22, 2022, the Committee sent the Registrar a letter pursuant to the meet and confer process the court had ordered when it granted a preliminary injunction. Carroll Supp. Decl., ¶4, Ex. 38. This included the finality of the decision without the judge’s signature and whether the Committee needed to post a bond. Carroll Supp. Decl., ¶4, Ex. 38. The Committee argued that the court did not order a bond or for the parties to meet and confer over a bond. Carroll Supp. Decl., ¶4, Ex. 38. The Registrar never asked for one in its briefing on the application for a preliminary injunction. Carroll Supp. Decl., ¶4, Ex. 38. The Committee saw no basis to reopen or reconsider the issue of a bond. Carroll Supp. Decl., ¶4, Ex. 38.

The $5,001.28 in legal research costs were necessary to formulate legal arguments and effectively pursue litigation. Carroll Supp. Decl., ¶5. Some of these costs were to obtain court orders when counsel did not receive a mailed copy. Carroll Supp. Decl., ¶5.

The $111.02 in travel expenses, including parking in downtown Los Angeles, were necessary to effectively present the Committee’s argument to the court. Carroll Supp. Decl., ¶5.

The Committee was required to serve both Defendants with the Petition and Summons to effectuate proper service. Carroll Supp. Decl., ¶5. The $512.99 in service charges for Logan and $425.03 in service charges for the Registrar were therefore both reasonably necessary. Carroll Supp. Decl., ¶5.

The $135.71 in messenger fees on September 21, 2022 was to deliver a letter to Registrar in an attempt to resolve items ultimately litigated in this action. Carroll Supp. Decl., ¶5.

The Committee paid the $51.25 pro hac vice fee on October 24, 2022 because the out-of-state counsel’s familiarity with the case made its involvement necessary. Carroll Supp. Decl., ¶5.

On July 12, 2023, the Committee incurred $26 in delivery fees for a courtesy copy of the Notice of Related Case for Committee II. Carroll Supp. Decl., ¶5. The Committee needed to timely apprise the court of this in a time-sensitive case. Carroll Supp. Decl., ¶5.

On October 9, 2023, the Committee incurred $82.25 in delivery fees for a courtesy copy of the Status Report so the court had time to review it before the next day’s Status Conference. Carroll Supp. Decl., ¶5.

The $76.20 e-filing fee for an ex parte application on August 16, 2023, was reasonably necessary at the time. Carroll Supp. Decl., ¶5. It was subsequently withdrawn after a subsequent court order mooted the requested relief. Carroll Supp. Decl., ¶5. The $10.20 e-filing fee for the next day’s Notice of Withdrawal of the application therefore was reasonably necessary. Carroll Supp. Decl., ¶5.

The Registrar’s only challenge to $567.44 in delivery and messenger charges and $1,117.95 in e-filing charges is the absence of a memorandum of costs. Carroll Supp. Decl., ¶5. When combined with the above items, costs total $8,117.32. Carroll Supp. Decl., ¶5. The Committee withdraws its request to recover any other costs. Carroll Supp. Decl., ¶5.

The Committee seeks an award of $1,196,102.50 in attorney’s fees and $8,117.32 in costs.

The Committee asserts this action compelled the Registrar to expand the Committee’s physical access to the Recall Petition, permit the use of electronic devices in the examination room, produce historic voter signatures, produce five electronic lists, and disclose a physical list of valid signatures. Mot. at 15.

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.

During the December 6, 2022 OSC hearing, this court stated that, aside from the requested notifications and manuals, this was not a CPRA case. Carroll Decl., ¶5, Ex. 17, p. 38. However, it seemed that the Committee should have electronic files solely as a matter of convenience. Ex. 17, p. 38.

This court granted the preliminary injunction in part. Carroll Decl., ¶5, Ex. 16. For Request No. 1, the Registrar was ordered to allow the Committee to review all prior signatures of voters whose signatures were denied because of a mismatch. Carroll Decl., ¶5, Ex. 16. It also ordered the production of a hard copy list of valid signatures but did not require an electronic copy. Gevercer Decl., Ex. A, p. 20; Carroll Decl., ¶5, Ex. 16. The court expressly stated that it could not grant Request No. 1 under the CPRA because it permits only inspection of the recall petition and the memoranda prepared by county election officials. Gevercer Decl., Ex. A, p. 15. Instead, the court granted this relief under Elections Code section 2194, which identifies this information as confidential but requires its disclosure when a person seeks to compare that signature with a signature on a petition. Gevercer Decl., Ex. A, p. 15.[5]

For Request No. 3, the Registrar was required to produce electronic copies of the existing lists subject to a protective order to be negotiated by the parties, as well as a hard copy list of valid signatures for the petition. Carroll Decl., ¶5, Ex. 16. The court did not rely on the CPRA or any other law to justify this decision. Gevercer Decl., Ex. A, p. 22. Instead, it relied on equity and convenience to expedite the Recall Petition’s review process rather than the CPRA. Ex. A, pp. 38, 45-46.

When the Registrar appealed the court’s December 2022 preliminary injunction and January 30, 2023 order, the Committee moved to dismiss the appeal for lack of jurisdiction. Recall Gascon, supra, 94 Cal. App. 5th at 358. The appellate court applied section 7923.500, which requires a party to appeal an order in a CPRA case by petition for issuance of an extraordinary writ within 40 days. Id. at 367, 371. Because the Registrar’s appeal was untimely for the December 2022 preliminary injunction, the appellate court lacked jurisdiction to consider its merits. Id.

Based on the appellate court decision, the Committee asserts that all this court’s orders arose under the CPRA even if they did not concern public records. To argue otherwise would create procedural disharmony when the appellate court sought to harmonize examination procedures. Recall Gascon, supra, 94 Cal. App. 5th at 371. Reply at 7.

On appeal, the Registrar argued the CPRA jurisdictional limit in section 7923.500(a) did not apply to its appeal; the trial court did not order disclosure of public records because they are excluded under section 7924.110(a)(2). Recall Gascon, supra, 94 Cal. App. 5th at 366-67. The appellate court held that the policy reasons for expedited appellate review of orders related to the production of public records – namely, the limited opportunity to examine an unsuccessful petition and the scope of access to materials subject to disclosure -- also applied to orders under section 7924.110(b)(2). Id. at 368-70. It therefore harmonized the examination procedures within the CPRA by construing section 7923.500 to cover a trial court order connected to the examination of an unsuccessful recall petition as permitted under section 7924.110(b)(2). Id. at 370.

The appellate court’s harmonization of access under section 7924.110(b)(2) and the right to review under section 7924.500 is not dispositive. The appellate court held that the trial court granted Request Nos. 1 and 3 based on section 7924.110(b)(2) and that provision must be harmonized with section 7923.500. Recall Gascon, supra, 94 Cal. App. 5th at 362. The appellate court never decided that the trial court’s orders were for access to CPRA records, and they are not public records under section 7924.110(a)(2).

The Registrar asserts that the production of non-public records pursuant to section 7924.110(a)(2) does not entitle the Committee to attorney’s fees under section 7923.115, which provides that “[f]f the requester prevails in litigation filed pursuant to this chapter, the court shall award costs and reasonable attorney’s fees to the requester.” The Registrar cites LA Times v. Alameda Corridor Transp. Auth., (“LA Times”) (2001) 88 Cal.App.4th 1381, 1391 (if a public record is disclosed because a plaintiff filed a suit to obtain it, the plaintiff is the prevailing party). Opp. at 4-5.

LA Times is not on point. It does not limit a prevailing plaintiff to the circumstance where a public record is disclosed and, in fact, references the broader rule that an action need only motivate the defendants to produce previously withheld documents. Id. at 1391. To hold otherwise would also ignore the policy analysis of Recall Gascon which sought to harmonize the interpretation of CPRA review procedures for orders based on the disclosure of public and non-public records. 94 Cal. App. 5th at 368, 370. Because fee-shifting makes CPRA litigation feasible, the standard should be the same for orders disclosing both public and non-public records.

The court-ordered production of non-public records can justify an award of attorney’s fees under section 7923.115.

Circumstances may arise under which a plaintiff obtains documents as a result of a lawsuit that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail. LA Times, supra, 88 Cal.App.4th at 1391-92.

The Committee asserts that the Registrar cannot argue that the ordered production was insignificant because Recall Gascon expressly found that all this court’s orders were made under the CPRA. Additionally, the Registrar demanded a high preliminary injunction bond and then appealed all this court’s orders, thereby demonstrating the significance of production. Reply at 7.

The Registrar argues that the Committee obtained very few of the documents requested in the FAC. The Registrar cites Community Youth Athletic Center v. City of National City (“CYAC”), (2013) 220 Cal. App. 4th 1385, 1447, n. 29. In that case, the plaintiff had received a number of documents from the city without the necessity of declaratory relief. The appellate court advised the trial court to focus on the amount of effort reasonably related to the limited scope of the CPRA declaratory relief that was granted and the relationship of the relief to other orders. Id. at 1447, n. 29. Opp. at 5-6.

The Committee replies that no apportionment is necessary because all forms of relief granted in this action arose under the CPRA. Reply at 7-8.

The Committee is incorrect. The Committee ultimately failed on the new issues addressed in the court’s January 2022 order and only prevailed on Request Nos. 1 and 3 of the five Requests addressed in the court’s December 6, 2022 ruling. See Opp. at 2. For Request No. 1, the Registrar was ordered to allow the Committee to review all prior signatures on file for voters whose signatures were denied because of a mismatch. Carroll Decl., ¶5, Ex. 16. For Request No. 3, the Registrar was ordered to produce three electronic copies of lists the Registrar already provided in physical form, and a physical copy of one new list. Carroll Decl., ¶5, Ex. 16. The Registrar asserts that the Committee consulted these lists for only a few days before moving on. Flores Decl., ¶22.^{^[6]}

This case was about access to and review of Registrar voter information. No final judgment was entered, and the case ultimately was dismissed as moot. The Committee is a prevailing party under the CPRA and is entitled to attorney’s fees under section 7923.115, but only for the fees incurred in obtaining access to such records and not any fees incurred in obtaining the means to review the information or in performing the inspection of records. The Committee also is not entitled to any fees incurred in connection with the reversed portions of the January 2023 order. Even the fees incurred in obtaining access through the December 6, 2022 preliminary injunction must be apportioned to the two Requests on which the Committee prevailed.

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at 565. A successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, supra, 43 Cal.3d at 1292.

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, (2004), 34 Cal. 4th 604, 608.

The Committee argues that it is a successful party because the preliminary injunction significantly expanded the Committee’s physical access to the Recall Petition, allowed it to use electronic devices in the examination room, and compelled the production of various lists and historic signatures. Mot. at 17.

The Registrar asserts that this relief is minimal because the court also denied the preliminary injunction in part. Of the 13 remedies sought in the FAP, three were denied, one was reversed on appeal, one requested a document that did not exist, and four were never pursued. Opp. at 2. The Registrar compromised on the final request, which was the right to have more Committee representatives in the examination room. Flores Decl., ¶21. The Committee still rarely had more representatives than the Registrar had allowed to begin with. Flores Decl., ¶21, Ex. A. Opp. at 7.

The Committee responds that the Registrar improperly narrows the Committee’s goal to specific forms of relief. Its litigation goal was to review the Recall Petition in a timely manner. The increased access and additional documents obtained partly helped achieve that goal. Reply at 8.

Although the Committee’s degree of success was not high, it achieved some of the benefit it sought in bringing suit. The Committee was a successful party under section 1021.5.

The first prong of the section 1021.5 test — whether a petitioner’s action has resulted in the enforcement of an important right affecting the public interest — requires a determination of the strength or societal importance of the right involved. Roybal v. Governing Bd. of Salinas City Elementary School Dist., (2008) 159 Cal.App.4th 1143, 1148. The right, whether constitutional or statutory, must be an important right affecting the public interest, not something involving trivial or peripheral public policies. Ibid. The societal importance of a right generally is determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.

The Committee argues it has vindicated the constitutional right to recall elected officials and the statutory rights that are a part of that process. Cal. Const. Art. II §§ 13-19. The ability to examine a recall petition that the Registrar has deemed insufficient also increases accountability and public confidence in government functioning. Mot. at 18. The right to examine such petitions includes the right to do so promptly. See Recall Gascon, supra, 94 Cal. App. 5th at 369. Reply at 9.

The Registrar argues that the Committee cannot argue that a right was vindicated by the preliminary injunction. The court granted relief based on equity and convenience rather than any right under the CPRA. Further, because the case was dismissed as moot before any final adjudication, any relief was limited to this particular action. Opp. at 8.

The Committee replies that the Registrar focuses on the rationale underlying the benefit obtained and not the effect. See Choi v. Orange Cnty. Great Park Corp., (2009) 175 Cal. App. 4th 524, 531 (courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals). Because the Committee was able to obtain documents and expedite the review process, whether it did so through a preliminary injunction or a final judgment is irrelevant. Reply at 10.

Public access to registrar records is an important right affecting the public interest.

The second prong of the section 1021.5 test is whether plaintiff’s action has conferred a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. The trial court must determine the significance of the benefit and the size of the group favorably impacted by making a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case. Bui v. Nguyen, (2014) 230 Cal.App.4th 1357, 1366.

The Committee asserts that this action has helped protect statutory examination rights that are a crucial part of the constitutional right to petition for the recall of elected officers. This in turn forms a check on the arbitrary exercise of government power. This action also had a more tangible benefit insofar as the Committee has now identified thousands of voters whose signatures on the Recall Petition were wrongly rejected. The injunctive relief allowed the Committee to timely file suit against the Registrar to hold it accountable for disenfranchising those voters and finding the Recall Petition insufficient. Mot. at 19.

The court disagrees. While important right affecting the public interest is involved, the Committee did not confer a significant benefit on the public. Mere access to Registrar records generally does not by itself confer a significant benefit and the Committee’s argument about the identification of thousands of wrongly rejected signatures is an argument that should be made in Committee II. This case was mostly about the means and timing of access to Registrar records and the Committee obtained only limited relief in the December 2022 preliminary injunction. This relief concerned prior signatures on file for voters whose signatures were denied because of a mismatch and the production of three electronic copies of lists the Registrar already had provided in physical form, along with a physical copy of a list of valid signatures for the Recall Petition. This relief aided the Committee’s effort but did not confer a significant benefit.

No significant benefit to the public resulted from the court’s rulings on these issues.^{^[7]}

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 Committee asserts $8,117.32 in costs. Carroll Supp. Decl., ¶5. The Registrar concedes that $2,110.42 in costs would be allowable under CCP section 1033.5 but asserts that the rest either are disallowed as a matter of law, are disallowed for failure to demonstrate they were reasonably necessary, or reveal unexplained discrepancies in the amounts charged for the same service. Kaminski Decl., ¶¶ 7-9.

The court need not discuss costs in detail. A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under CCP section 664.5, 15 days after 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)(1); Hydratec, Inc. Sun Valley 260 Orchard & Viineyard Co., (1990) 223 Cal.App.3d 924, 928-29. The Committee failed to file a memorandum of costs. Opp. at 15. As a result, it is not entitled to them.

The Committee cites Kaufman v. Diskeeper Corp., (“Kaufman”) (2014) 229 Cal. App. 4th 1, 6, to assert that a party seeking attorney’s fees need not separately file a memorandum of costs. Reply at 15. This is incorrect. Kaufman held that a party moving for attorney’s fees under Civil Code section 1717 need not file a memorandum of costs. Id. at 6. It said nothing about relieving a party from filing a timely cost memorandum for other costs when a timely attorney’s fee motion is filed.

The Committee did not file a timely cost memorandum and was required to do so. In any event, the appellate court ordered each side to bear its own costs and the court does the same. See CCP §1032(a)(4); Building Maintenance Services Co. v. AIL Systems, Inc., supra, 55 Cal.App.4th at 1025.

The motion is granted in part for attorney’s fees and denied as to costs. The parties are directed to file new papers for a hearing on the reasonableness of CPRA fees and must meet and confer before they do so.

^{^[1]} All further statutory references are to the Government Code unless otherwise stated.

^{^[2]}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.

^{^[3]}The Registrar asserts the FAP requests ten categories of documents, dividing Request No. 3 into (1) electronic copies of three hard copy lists of signatures invalidated for various reasons, and (2) an electronic list of valid signatures. Opp. at 2.

^{^[4]} The court need not rule on the Committee’s evidentiary objections as they have no bearing on the outcome of this motion.

[5] The appellate court noted that the Registrar cited this Elections Code provision in its appellate argument. Recall Gascon, supra, 94 Cal. App. 5th at 367.

^{^[6]} The Registrar also argues it has provided the Committee with substantial resources to expedite its review. It agreed to almost triple as many Committee representatives in the examination room as most reviews, and it provided lists that it does not normally create. Flores Decl., ¶¶ 9, 11, 13. It also responded to 21 CPRA requests beyond the scope of this litigation. Flores Decl., ¶23. The Registrar diverted $1.3 million in resources to the Recall Petition review, not including attorney’s costs to defend this action. Flores Decl., ¶20. Opp. at 6. The Registrar’s effort does not significantly bear on the Committee’s entitlement to fees.

^{^[7]} The court need not consider the remaining section 1021.5 element of the necessity and financial burden of private enforcement.