Riskin v. Downtown L. A. Prop. Owners Ass'n

76 Cal.App.5th 438

291 Cal.Rptr.3d 534

Adrian RISKIN, Plaintiff and Respondent,

v.DOWNTOWN LOS ANGELES PROPERTY OWNERS ASSOCIATION, Defendant and Appellant.

B309814

Court of Appeal, Second District, Division 3, California.

Filed March 17, 2022

Horvitz & Levy, John A. Taylor, Jr., Steven S. Fleischman, Burbank; Bradley & Gmelich, Barry A. Bradley, Dawn Cushman, Glendale, and Carol A. Humiston for Defendant and Appellant.

Law Office of Abenicio Cisneros, Abenicio Cisneros; Cannata, O'Toole, Fickes & Olson and Karl Olson, San Francisco, for Plaintiff and Respondent.

KNILL, J.^*

Adrian Riskin filed a petition in the trial court under the California Public Records Act (CPRA) ( Gov. Code, § 6250 et seq. )¹ seeking to compel Downtown Los Angeles Property Owners Association (the Association) to produce certain categories of documents. The trial court granted in part the petition, and the Association appeals from a postjudgment order awarding Riskin attorney fees of $71,075.75.

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 section 6259, subdivision (d) provides the court shall award court costs and attorney fees to the requester should the requester prevail in litigation, the trial court has discretion to deny attorney fees when the plaintiff obtains documents "that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail." ( Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391–1392, 107 Cal.Rptr.2d 29 ( Los Angeles Times ).)

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.

FACTUAL AND PROCEDURAL BACKGROUND

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 deliberative process privilege and it did not have responsive records.

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 court examined in camera two records (exhibits 9 and 10) withheld by the Association on grounds they were protected by the deliberative process privilege. The trial court found exhibit 9 was not responsive but found exhibit 10, consisting of five pages containing two email strings of approximately 20 sentences in total, contained some information subject to protection under the deliberative process privilege and some information requiring disclosure. The trial court ordered disclosure of the non-privileged matter³ but otherwise denied declaratory relief.

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 section 6259, subdivision (d). Relying on Los Angeles Times , the Association opposed the motion asserting Riskin was not the prevailing party, because the one document he obtained (exhibit 10) was minimal or insignificant and the trial court has discretion to deny attorney fees. After receiving additional briefing from both parties on the issue of whether the redacted exhibit 10 constituted only a minimal or insignificant document, the trial court awarded Riskin attorney fees of $71,075.75.

The trial court recognized Los Angeles Times 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." ( Los Angeles Times, supra, 88 Cal.App.4th at p. 1391, 107 Cal.Rptr.2d 29.) Nevertheless, the trial court rejected the Association's argument for three reasons.

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 section 6259, subdivision (d) is clear and mandatory, and it promotes the CPRA policies to increase freedom of information and favors disclosure.

Third, section 6257.5 provides a requester's motivation behind the CPRA request is irrelevant, yet in evaluating whether a forced disclosure is material, the court would be required to consider the requester's purpose. The trial court stated, "[i]f documents produced did not inform on the requester's purpose, a court could deem the production insignificant when considering attorney[ ] fees."

The Association timely appeals the order awarding Riskin attorney fees.⁵

DISCUSSION

I. CPRA Provisions and Principles

The CPRA ( § 6250 et seq. ) governs the inspection of public records and provides access to information concerning the conduct of people's business is a fundamental and necessary right of every person in this state. ( § 6250 ; see Cal. Const., art. I, § 3, subd. (b)(1) [guaranteeing people right of access to information concerning conduct of people's business and providing meetings of public bodies and writings of public officials and agencies shall be open to public scrutiny].) Rooted in the CPRA and implicit in the democratic process is the notion government should be accountable for its actions, and in order to verify accountability, individuals must have access to government files. ( California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 823, 108 Cal.Rptr.2d 870.)

The CPRA contains procedures for challenging a public agency's response to a records request. Section 6258 provides, "[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record" under the CPRA.

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." ( § 6259, subd. (d).) "An award of costs and attorney fees pursuant to this provision is mandatory if the plaintiff prevails." ( Filarsky v. Superior Court (2002) 28 Cal.4th 419, 427, 121 Cal.Rptr.2d 844, 49 P.3d 194 ; see Belth v. Garamendi (1991) 232 Cal.App.3d 896, 899–900, 283 Cal.Rptr. 829 ( Belth ) [" ‘ "shall" ’ " is mandatory and there is no indication Legislature did not intend section 6259, subdivision (d) to be mandatory].)

The Legislature did not define the term "prevail" or explain the circumstances in which a plaintiff is deemed the prevailing party under section 6259, subdivision (d...