Judge Mitchell L. Beckloff, Case 21STCP02295 2023-01-27 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02295, Date: 2023-01-27 Tentative Ruling

Petitioner, Tappan Zee, requests attorney’s fees in the amount of $5,550 pursuant to former Government Code[1] section 6259, subd. (d).[2]

The CPRA provides a prevailing party attorney’s fees provision. Specifically, section 7923.115 provides: “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.”

To determine whether a petitioner in has prevailed in a CPRA proceeding, courts have found a petitioner “prevails” when a public record is disclosed only because the plaintiff filed an enforcement action. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391.) Courts have also determined a CPRA petitioner may be a prevailing party entitled to attorney's fees, despite the lack of a favorable judgment or other court action, if the lawsuit was a catalyst in motivating the defendant to provide the primary relief sought. (Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1066; Rogers v Superior Court (1993) 19 Cal.App.4th 469, 482; Belth v Garamendi (1991) 232 Cal.App.3d 896, 901.)

Petitioner argues he is the prevailing party and entitled to attorney’s fees under section 7923.115. Petitioner argues:

“Despite several attempts to sway Respondent City of San Gabriel to produce responsive documents under the [CPRA], it took Petitioner’s filing of this action to motivate Respondent to produce [375] pages of documents and it took Petitioner’s filing of his federal action to motivate Respondent to produce training records of its personnel. As a result, Petitioner should be awarded his attorneys’ fees and costs in the amount of $5,500.”[3] (Motion 3:3-7.)

A “plaintiff has prevailed within the meaning of [the CPRA] 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.) This has become the “ ‘standard test’ ” of whether a plaintiff is the prevailing party in a CPRA proceeding. (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1446.) Court have also considered a petitioner to be the prevailing party “if [the] lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior [citation], or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.” (Belth v. Garamendi, supra, 232 Cal.App.3d at 901-902.)

“A plaintiff may satisfy this test even if the litigation results in disclosure of less than all of the documents the plaintiff sought, as long as the disclosure is not “minimal or insignificant.’” (Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners etc. (2015) 242 Cal.App.4th 1043, 1053; Los Angeles Times v. Alameda Corridor Transportation Authority, supra, 88 Cal.App.4th at 1391-1392 [prevailing party obtained disclosure of one of two documents sought]; see also Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1397 [partial success does not require apportionment of CPRA fees].)

Petitioner argues Respondent produced documents because of Petitioner’s enforcement action—his petition for a writ of mandate. Based on the evidence before the court, the court disagrees.

Petitioner made his CPRA request through Respondent’s website on June 4, 2021. Petitioner’s request contained 37 different categories of documents. (See Barrientos Decl., ¶ 3.) While Petitioner characterizes the documents as falling within two categories—the requests were substantial. (Barrientos Decl., Ex. A.)

On June 14, 2021, ten days after Petitioner’s request, Respondent advised Petitioner it “had undertaken a review of the Request and determined that it, in part, seeks copies of disclosable public records in the possession of the City, and that the City would inform [Petitioner’s attorney] when the responsive, disclosable documents in its possession, custody, or control are ready to be made available . . . .” (Lemieux Decl., ¶ 11, Ex. C.) By that time, Respondent had already begun “an internal search for potentially responsive documents by contacting departmental heads of the numerous departments implicated by the request. (Lemieux Decl., ¶ 10.) Respondent did not advise Petitioner, however, of the efforts undertaken to comply with Petitioner’s request.

Respondent further explained that certain CPRA requests were “vague and broad as written” and would be extremely “burdensome, expensive, and time consuming” for Respondent which could delay Respondent’s production of responsive, disclosable documents and increase the amount required for reimbursement of Respondent’s direct costs of duplication. (Lemieux Decl., ¶ 11, Ex. C.) Respondent requested Petitioner narrow 15 of the 37 requests. (Barrientos Decl., ¶ 4.)

The next day, on June 15, 2021, Petitioner narrowed 14 of his record requests as suggested by Respondent.[4] (Barrientos Decl., ¶ 4, Ex. C.)

On June 28, 2021 (nine business days after Petitioner narrowed his response), Petitioner’s attorney sent Respondent a letter entitled “Meet and Conder re: Public Records Request to City of San Gabriel.” (Lemieux Decl., ¶ 13, Ex. E.) The letter advised Respondent had not responded to Petitioner’s June 4, 4021 records request “nor asked for an extension” to produce the records. Petitioner’s counsel advised “a response is now due to my request.” (Barrientos Decl., Ex. E.) There is no dispute Petitioner’s counsel did not receive a response to the letter.[5] (Barrientos Decl., ¶ 5.)

On July 8, 2021 (eight business days later), Petitioner’s counsel wrote to Respondent about various legal issues between Petitioner and Respondent. Petitioner’s counsel sent a copy of that correspondence to Respondent’s attorney (Mr. Lemiuex) who had last communicated with Petitioner about the CPRA request on June 14, 2021. (Bao Decl., Ex. A.) The letter provides:

“As to the trellis patio, on June 3, 2021, we submitted our freedom of Information Act (‘FOIA’) request to the City and in that request, we sought the ‘address file’ for the Subject Property. On June 14, 2012, Mr. Alex Lemiuex sent us a meet and confer letter to which we agreed to narrow our request. On June 28, 2021, we followed up with our meet and confer letter to which we received no reply. As of the date of this letter, we have not received any of the requested documents which we need to better determine the illegality of the trellis patio and/or submit an updated permit application with a site plan.” (Bao Decl., Ex. A, p. 2.)

It is undisputed Respondent did not respond to Petitioner’s July 8 letter. (Bao Decl., ¶ 2.) While Respondent’s counsel attests “[n]othing clearly indicated [Petitioner’s counsel’s] comments were related to the June 4, 2012 PRA request,” Petitioner’s counsel’s letter specifically referenced a request for records, a follow-up letter on June 28 and no response from Respondent.[6] Respondent’s explanation for a failure to respond to Petitioner’s counsel’s July 8 letter is not credible.

After hearing nothing from Respondent after two letters requesting information about the status of its CPRA request, Petitioner filed his petition for writ of mandate on July 16, 2021. (Bao Decl., ¶ 4.)

Petitioner served his petition on Respondent on July 30, 3031. (Proof of Service filed August 11, 2021.)

Only two business days later, on August 3, 2021, Respondent provided 376 pages of documents responsive to Petitioner’s request. (Lemieux Decl., ¶ 16, Ex. G.)

On August 12, 2021, Petitioner’s counsel indicated Respondent’s production was inadequate. (Lemieux Decl., ¶ 17.) In response, Respondent represented the records not produced were exempt from disclosure. (Lemieux Decl., ¶¶ 18-20, Ex. I.)

The CPRA provides an agency “shall make the records promptly available” to a requester.

(§ 7922.530, subd. (a).) The CPRA makes clear the Legislature’s intent that agency’s provide prompt disclosure of disclosable records. (See §§ 7922.500, 7922.505.)

Respondent advised Petitioner it had nonexempt, disclosable records it intended to provide to Petitioner on June 14, 2021. Respondent informed Petitioner it would notify Petitioner when the documents were “ready to be made available . . . .” (Lemiuex Decl., Ex. C.) Respondent also advised Petitioner some categories of documents would require time for response. (Lemiuex Decl., Ex. C.) Prior communication acknowledging Petitioner’s CPRA request indicated Respondent’s staff was processing the request. (Lemieux Decl., Ex. B.) Respondent’s June 4 and June 14 responses were compliant with the CPRA. (§ 7922.535 [formerly § 6253, subd. (c).].) The CPRA did not require Respondent to produce documents within 10 days; this is especially true given the volume of documents requested.

Prior to July 16, 2021, Respondent never contradicted its position it would produce nonexempt, disclosable records to Petitioner. While Respondent’s failure to respond to Petitioner’s inquiries of June 28 and July 8, 2021 is—in the court’s view—poor form and discourteous, Petitioner waited just 32 days (23 business days) before filing his petition. Moreover, while certainly not required but nonetheless would have been helpful to Petitioner’s position, Petitioner did not advise Respondent it intended to promptly file a petition if Respondent continued its failure to communicate.

Nothing suggests Respondent complied with its responsibilities under the CPRA only after Petitioner served it with the petition. In fact, Respondent produced 375 pages of documents only two business days after Petitioner served it with the petition. The reasonable inference—where Petitioner had not advised Respondent it intended to file the petition in advance of that—is Respondent had been processing Petitioner’s request well prior to service of the petition. Respondent’s production under the CPRA only two business days after having been served with the petition undermines Petitioner’s claim the petition served as a catalyst to production.

Contrary to Petitioner’s position, Respondent did not have a specific obligation to respond to Petitioner’s meet and confer letters in the relatively brief time permitted by Petitioner. (Certainly, professional courtesy would dictate as much.) The court cannot find on the evidence, however, Petitioner’s lawsuit spurred Respondent to act. Respondent indicated it had records and would produce them at some future time. Respondent also requested Petitioner narrow 15 categories of records because of the burdensome nature of the request. Nothing suggests Respondent did not intend to comply with Petitioner’s request. Respondent’s production given the totality of the circumstances was prompt and consistent with the CPRA.

Accordingly, the court finds Petitioner is not the prevailing party under section 7923.115 for purposes of this litigation.

[1] All further undesignated statutory references are to this code.

[2] As of January 1, 2023, the California Public Records Act (CPRA) has been recodified. (See § 7920.000, et seq.) Former section 6254, subdivision (d) is now recodified at section 7923.115.

[3] Petitioner’s federal lawsuit does not inform on Petitioner’s entitlement to fees in this action.

[4] Respondent advises, “Despite this tailoring of the Request, the scale of potentially responsive documents remained enormous.” (Lemieux Decl., ¶ 12.) Nonetheless, it appears Respondent never advised Petitioner of the issue, and Respondent ultimately produced 375 documents.

[5] The ongoing issues between Petitioner and Respondent about alleged ongoing building code violations and administrative citations is not particularly relevant to Respondent’s obligations under the CPRA. Petitioner’s CPRA request—and Respondent’s obligation thereunder—is distinct from any ongoing issues with an administrative citation.

[6] The court acknowledges Petitioner’s counsel’s letter also referenced a request for evidence. Petitioner’s counsel made the request for evidence, however, pursuant to four email communications. Given Petitioner’s counsel’s reference to documents sought under the Freedom of Information Act, the reference to Petitioner narrowing the requests as well as the June 28 follow-up letter, Respondent’s counsel’s attestation that, “Nothing clearly indicated Mr. Bao’s comments were related to the June 4, 2021 PRA Request submitted by Ms. Barrientos” is disingenuous. The court notes at the hearing on the petition, Respondent’s counsel attested, “Even though [Petitioner’s] counsel was told that the City was still in the process of gathering responsive emails, [Petitioner] filed his [petition] on July 16, 2021.” (Lemieux Decl., ¶ 15, filed July 1, 2022.) The court’s order on the petition noted Respondent’s statement in the declaration was vague as it did not reveal “when the communication occurred, who made it or the contents of it.” (Court’s Order filed July 28, 2022 p. 2 n. 4.) Respondent’s counsel again provides the same vague statement to support its opposition it had some ongoing communication with Petitioner about the CPRA request. (Lemieux Decl., ¶ 15.) Given the court’s prior concern about the evidence, Respondent’s opportunity to provide more specificity, and Respondent’s failure to do so, the court finds the statement is entitled to no weight.