Judge: Sandy N. Leal, Case: 2022-01277268, Date: 2023-08-17 Tentative Ruling
Motion for Attorney Fees
The Regents of the University of California’s (“Defendant”) Motion for Attorney’s Fees (“Motion”) is DENIED.
Defendant moves for attorney’s fees pursuant to Government Code section 7923.115(b) in the amount of $9,030 on the grounds that Plaintiff’s case is clearly frivolous.
Government Code section 7923.115 provides in part: “ (b)[i]f the court finds that a requester's case pursuant to this chapter is clearly frivolous, the court shall award court costs and reasonable attorney's fees to the public agency.”
“The PRA does not define the term ‘clearly frivolous’ for purposes of an award of fees and costs under that statute.” (Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 368 (supra).) However, California courts have adopted the test articulated in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), 183 to determine whether an appeal is frivolous. (Id.) Specifically, an appeal may be deemed “frivolous” “ “only when prosecuted for an improper motive--e.g., to harass the respondent or for purposes of delay--or when lacking any merit--i.e., when any reasonable attorney would agree the appeal is totally without merit.” [citation]” (Id.) The Court in Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368 (Crews) “adopted the Flaherty paradigm when analyzing whether PRA litigation was ‘clearly frivolous’ for purposes of section 6259, subdivision (d).” (Id.)
A finding that a petition is “clearly frivolous” “can only be supported if the Petition, itself, was such that “any reasonable attorney” would agree that the Petition was totally without merit.” (Bertoli, supra, 233 Cal.App.4th at 371.)
Bertoli, Flaherty and Crews cite to former Government Code section 6259, which was repealed in 2021. (Stats 2021, ch. 614 (A.B. 473), § 1) Government Code section 6259 was continued in current Government Code section 7923.115, effective January 1, 2023.
Here, Defendant’s motion relies on the Declaration of John Gherini (Gherini) in support of its argument that Plaintiff’s claims are clearly frivolous. Gherini attests: “On August 30, 2022, Plaintiff provided notice to UCI that he intended to appear on an ex parte basis on August 31, 2022, in an improper attempt to get the writ of mandate issued. [¶] Counsel for The Regents informed Plaintiff his ex parte was defective, was not in conformity with the CPRA and that his entire petition and complaint were defective, in no small part, because it was moot on account of the fact that documents had been produced. That email asked that the ex parte be withdrawn and the case be dismissed. It also warned Plaintiff that proceeding could result in The Regents seeking sanctions against Plaintiff. [¶] In the interim, counsel for the University engaged Plaintiff in further meet and confer on the defects in the pleadings. Even to the extent of notifying Plaintiff the pleadings were not supported by law and were otherwise moot. In that exchange, counsel for the University warned Plaintiff that proceeding could result in the University seeking its attorney fees under CPRA. [¶] On September 29, 2022, counsel for The Regents reached out to Plaintiff in an effort to meet and confer on issues to be presented in the Demurrer. That email included an Opposition that counsel for the University prepared in response to the ex parte that also explained why the First Amended Complaint was defective and not supported by the CPRA.[¶] The Court heard arguments on the Demurrer on February 23, 2023. During the hearing, Plaintiff made it clear his argument was that when he showed up, unannounced, at an office on the campus of a public agency, he was somehow entitled to review public records on the spot. As he has done throughout the case, he pointed to one sentence from the CPRA, that he misreads out of context, as support for this position. [¶] The proposition that a member of the public can show up at any office of a public agency and demand to review records on the spot, when the statute clearly contemplates that it can take the public agency up to 24 days just to determine whether public records are even sought through the request, is so absurd, no case even remotely touches on the subject.” (Gherini Decl., ¶¶ 5-7, 10, 11-12.)
Based on the Gherini Declaration and attached exhibits, it cannot be said that Plaintiff filed this case only for an improper motive, such as to harass. There does not appear to be evidence of Plaintiff’s motives for filing this case one way or another from the documents attached to the Gherini Declaration.
Additionally, it does not appear that Plaintiff’s claims “lack any merit.” Defendant appears to argue that Plaintiff’s case is completely frivolous because Plaintiff maintained the case despite admitting to receiving the records at issue. Specifically, Exhibit E to the Gherini Declaration shows that Plaintiff received the records at issue in its Complaint after the case was filed on or about 9-1-22. Although Plaintiff received the records at issue prior to the conclusion of its case, this does not mean Plaintiff’s CPRA case itself totally without merit, as Plaintiff did not have access to the records at issue when it filed the case.
Because the Court finds that Plaintiff’s claims are not clearly frivolous, the Court DENIES Defendant’s motion.