ADRIAN RISKIN, Plaintiff and Respondent, v. DOWNTOWN LOS ANGELES PROPERTY OWNERS ASSOCIATION, Defendant and Appellant.
B309814
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 3/17/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BS174792)
Horvitz & Levy, John A. Taylor, Jr., Steven S. Fleischman; Bradley & Gmelich, Barry A. Bradley, Dawn Cushman and Carol A. Humiston for Defendant and Appellant.
Law Office of Abenicio Cisneros, Abenicio Cisneros; Cannata, O‘Toole, Fickes & Olson and Karl Olson for Plaintiff and Respondent.
The Association contends the trial court erred in concluding it had no discretion under the CPRA to deny attorney fees. The argument is premised on the assertion even though
We conclude the trial court has discretion to deny attorney fees under the CPRA in some circumstances and hold the minimal or insignificant standard is applicable when the requester obtains only partial relief under the CPRA. Accordingly, we reverse and remand for the trial court to exercise the discretion it believed it lacked.
I. Factual Background
Riskin is a self-described “open records activist” who uses public records requests to investigate and understand the activities of business improvement districts (BID), Los Angeles city government, and the relationship between the two. The Association is a BID subject to the CPRA.
Riskin submitted CPRA requests to the Association on May 17, 2017, July 7, 2017, and July 31, 2017. The requests sought copies of three categories of documents: (1) emails between the Association and the South Park BID and/or Downtown Los Angeles Neighborhood Counsel, as well as Chairman of the Board Mark Chatoff‘s emails (Request No. 1); (2) emails between the Association and Urban Place Consulting (Request No. 2); and (3) Board Member Linda Becker‘s emails relating to the Association (Request No. 3).
The Association provided a substantive response to Request No. 1, which contained 46 emails the Association described as the complete response. When Riskin indicated he believed the response was deficient because it lacked emails from Chatoff, the Association contended all non-exempt records had been provided and any exemptions were protected by the deliberative process privilege.2
The Association responded to Request No. 2 by indicating certain records were exempt from disclosure under the
The Association responded to Request No. 3 by stating there were no responsive records, and it was not claiming any exemptions. When Riskin informed the Association responsive documents must exist because he himself emailed board members, the Association asserted the records were exempt from disclosure pursuant to the deliberative process privilege but agreed to produce the email Riskin identified.
The parties exchanged letters in an unsuccessful attempt to resolve Riskin‘s contentions the Association had not produced all requested documents and the deliberative process privilege was inapplicable. This lawsuit followed.
II. Procedural Background
Riskin commenced the present proceeding in August 2018 by filing a verified petition for writ of mandate/complaint for declaratory relief under the CPRA. The petition sought to compel the Association to produce various documents on grounds the Association wrongfully withheld records under the deliberative process privilege and failed to conduct a reasonable search for other records Riskin also requested a declaration stating the Association violated the CPRA by its acts and omissions. The Association filed a verified answer. The parties filed briefs on the merits of the petition, and after extensive oral argument the trial court entered judgment granting in part and denying in part the petition.
The trial court denied the petition as to Request No. 1; ordered the Association to undertake an adequate and reasonable search for documents responsive to Request No. 2; and denied the petition as to Request No. 3. As to Request Nos. 2 and 3, the trial
The Association filed a petition for writ of mandate and request for stay in this court, challenging the trial court‘s application of the deliberative process privilege. In Los Angeles Property Owners Association v. Superior Court (Sept. 30, 2019, B300697), we summarily denied the petition for failure to demonstrate entitlement to extraordinary relief.4
Following the trial court‘s entry of judgment, Riskin moved for an award of attorney fees and costs of $123,119.11 pursuant to
First, the trial court determined the referenced statement in Los Angeles Time is dicta. The trial court noted in Los Angeles Times, the lower court did not deny attorney fees based on a minimal or insignificant theory, it had not located any appellate authority finding proper the denial of attorney fees under Los Angeles Times, and the appellate court in Los Angeles Times cited no authority “to support its dicta.”
Second, the shall award language of
Third,
The Association timely appeals the order awarding Riskin attorney fees.5
I. CPRA Provisions and Principles
The CPRA (
The CPRA contains procedures for challenging a public agency‘s response to a records request.
Under the CPRA, the “court shall award court costs and reasonable attorney‘s fees to the requester should the requester prevail in litigation filed pursuant to this section.” (
Courts have applied the ” ’ “standard test” ’ ” of whether a plaintiff is a prevailing party in a CPRA action. (Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners etc. (2015) 242 Cal.App.4th 1043, 1053 (Pacific Merchant).) Under this test, a plaintiff prevails ” ‘when he or she files an action which results in defendant releasing a copy of a previously withheld document.’ ” (Ibid.) An action results in the release of previously withheld documents “if the lawsuit motivated the defendants to produce the documents.” (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1085.) The catalyst theory applies, and a plaintiff may prevail even where a court did not enter judgment in its favor, so long as the litigation caused the disclosure. (Belth, supra, 232 Cal.App.3d at pp. 901–902; Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 463 (Sukumar).)
Conversely, for purposes of the CPRA fee statute, a plaintiff does not prevail where substantial evidence supports a finding the litigation did not cause the agency to disclose any of the documents ultimately made available. (Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1382.)
II. Standard of Review
We review an award of attorney fees generally for abuse of discretion. (Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1064 (Garcia).) A fee award ” ’ “will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” ’ ” (Pasadena Police OfficersAssn. v. City of Pasadena (2018) 22 Cal.App.5th 147, 167 (Pasadena Police Officers Assn.).)
Nevertheless, a failure to exercise discretion is an abuse of discretion. (Kahn v. Lasorda‘s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124 (Kahn).) Further, an abuse of discretion is shown where a trial court errs in acting on a mistaken view about the scope of its discretion (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 782 (Platypus Wear, Inc.)) or applies the wrong legal standard (Waterwood Enterprises, LLC v. City of Long Beach (2020) 58 Cal.App.5th 955, 968 (Waterwood Enterprises, LLC)).
III. The Trial Court Had Discretion to Deny Attorney Fees
The Association contends the trial court erred in concluding it had no discretion to deny Riskin attorney fees. We agree.
In Los Angeles Times, the trial court denied the plaintiffs fee motion after it obtained just one of two documents sought. (Los Angeles Times, supra, 88 Cal.App.4th at p. 1391.) The appellate court reversed, stating if a public record is disclosed only because a plaintiff filed suit to obtain it, the plaintiff has prevailed. (Ibid.) The appellate court stated, “[c]ircumstances could 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.” (Id. at pp. 1391–1392.) But the appellate court concluded, “there is no support for such a finding in this case.” (Id. at p. 1392, italics added.)
The appellate court expressly concluded the documents obtained as a result of the litigation were not minimal or insignificant and reversed the trial court‘s denial of fees. (Los Angeles Times, supra, 88 Cal.App.4th at p. 1393.) In sum, the
In the trial court and on appeal, the parties before us have structured the question as whether or not the minimal or insignificant standard applied in Los Angeles Times is dicta.6 The question is not our primary concern, because even if it is dicta, we conclude the minimal or insignificant standard is appropriate under the CPRA and adopt it.7
Although no published case has encountered facts compelling denial of attorney fees using a minimal or insignificant standard, many cases have adopted its language, and none has denounced it.8 (See Pasadena Police Officers Assn., supra, 22 Cal.App.5th at p. 167; Sukumar, supra, 14 Cal.App.5th at p. 463; Pacific Merchant, supra, 242 Cal.App.4th at p. 1053;
In another CPRA case decided twelve years after Los Angeles Times, the court in Garcia applied the minimal or insignificant standard and affirmed a fee award challenged by a school district where the district showed “no abuse of discretion in the trial court‘s finding that the results obtained through this litigation were neither minimal nor insignificant and that those results justify an attorney fee award in favor of [plaintiff] as the prevailing party.” (Garcia, supra, 220 Cal.App.4th at p. 1067.)
Moreover, in other contexts, trial courts have discretion to deny fees despite a mandatory attorney fee provision when plaintiff obtains a result so minimal or insignificant to justify finding it did not prevail. (See, e.g., James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc. (2015) 239 Cal.App.4th 1214, 1220 [
We discern no reason not to apply a minimal or insignificant standard when determining whether plaintiff is a prevailing party under the CPRA. We hold the minimal or insignificant standard is applicable when the requester obtains only partial relief under the CPRA. Thus, if appropriate to the particular case, the trial court must determine whether a litigant who obtains partial relief under the CPRA is a prevailing party
IV. Remand is Required for the Trial Court to Properly Exercise Its Discretion
The trial court‘s lengthy ruling on Riskin‘s motion for attorney fees did not state the trial court recognized its discretion and chose to exercise it.9 Rather, the trial court concluded the minimal or insignificant language in Los Angeles Times is dicta, a conclusion we reject. As a result, the trial court appears to have been under the mistaken view it was precluded from exercising its discretion. Some of the trial court‘s comments imply it was questioning the wisdom behind Los Angeles Times. By relying on the plain language of
Additionally, the trial court‘s ruling suggests if it had discretion to deny fees it may have done so. The trial court observed the Association‘s argument the document the Association produced was so minimal and so insignificant the court should find Riskin did not prevail “has appeal.” The trial court also stated the production at issue was “not substantial in the context of the parties’ dispute” and the disclosures were “not extensive (perhaps even minimal).”10 The trial court also remarked its decision as to the adequacy of the evidence of the search undertaken by the Association was a close call. These comments suggest the trial court determined it lacked discretion to find Riskin is not a prevailing party entitled to attorney fees.
We conclude the trial court erred in determining it lacked discretion, and thus in failing to exercise its discretion. (See Kahn, supra, 109 Cal.App.4th at p. 1124; see also Platypus Wear, Inc., supra, 166 Cal.App.4th at p. 782; Waterwood Enterprises, LLC, supra, 58 Cal.App.5th at p. 968.) As case law reflects, courts have discretion under the CPRA. Thus, remand is required to permit the trial court to exercise its discretion as to whether Riskin is a prevailing party. (See Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1181.)
DISPOSITION
The order awarding attorney fees to Riskin is reversed and the case remanded. On remand, the trial court shall exercise its discretion to determine whether Riskin is a prevailing party entitled to attorney fees. The parties are to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.
KNILL, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Superior Court of Orange County, assigned by the Chief Justice pursuant to