Sixth District Affirms Attorney’s Fees Award of $244,287.50 Against Monterey County Under the California Public Records Act

Unpublished Decision Nicely Surveys Such Topics As Standard of Review, Lodestar, and Multiplier Principles.

            In our June 30, 2008 post, we discussed a Shasta County Superior Court’s award of attorney’s fees against the City of Redding under the California Public Records Act (CPRA).  Government Code section 6259(d) provides for a mandatory award of court costs and reasonable attorney’s fees to the prevailing plaintiff in litigation to enforce disclosure of documents by public entities.  A recent Sixth District decision does a nice job of surveying CPRA and attorney’s fees principles in affirming an award of $244,287.50 in favor of plaintiffs and against Monterey County. 

            Bernardi v. County of Monterey, Case No. H031648 (6^th Dist. Sept. 30, 2008) (unpublished) involved plaintiffs seeking documents from Monterey County in connection with a pending subdivision proposal known as the September Ranch project.  After County claimed plaintiffs’ requests were overbroad, irrelevant, or exempt from production, plaintiffs filed suit and litigated over a year to obtain some of the objected-to documents.  They were successful, eventually obtaining a special master’s recommendation that about 2,000 pages of withheld documents be turned over to plaintiffs (in addition to prior rulings by which another 1,000 pages were ordered to be produced).  Plaintiffs then moved for an award of attorney’s fees under section 6259(d), seeking a lodestar amount of $194,801 that should be enhanced by a 2.0 multiplier.  Plaintiffs submitted detailed declarations by their lead counsel as well as two attorney experts on the reasonableness of the hourly rates charged by their attorneys, the reasonableness of the overall attorney work, and the reasonableness of requesting a 2.0 multiplier.  County opposed primarily on two grounds:  (1) the lodestar amount should be reduced by two-thirds (to $62,870) to reflect plaintiffs’ partial success (because many documents were held to be exempt and other requests were denied); and (2) plaintiffs were not entitled to a lodestar enhancement in light of their partial success.  After reducing the hourly rates downward, the trial court awarded plaintiffs a lodestar fee amount of $188,630, which was enhanced by a 1.25 multiplier (producing a total fee award of $244,287.50).  County was not happy and sought review.

            Justice Bamattre-Manoukian, on behalf of a 3-0 panel, affirmed the fee award as well as awarded costs on appeal to plaintiffs.  The decision, although unpublished, is must reading for litigants locked in a fee battle under CPRA; it also has a nice review of appellate review standards in the fee area, lodestar principles, and enhancement considerations.

            Under CPRA, a fee award is mandatory to a prevailing plaintiff.  (Filarsky v. Superior Court, 28 Cal.4^th 419, 427 (2002).)  A plaintiff prevails where the lawsuit motivated defendants to provide the primary relief sought or activated a modification of behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.  (Los Angeles Times v. Alameda Corridor Transp. Auth., 88 Cal.App.4^th 1381, 1391 (2001).)  County did not contest that plaintiffs’ status as prevailing parties.  Given this concession, the appropriate review standard was the deferential abuse of discretion test, with the trial court imbued to “consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney’s fees award.”  (Meister v. Regents of Univ. of California, 67 Cal.App.4^th 437, 452 (1998).) 

            The appellate panel found that the lodestar award was reasonable based on the detailed attorney declarations submitted by plaintiffs in support of their fee motion.  However, Justice Bamattre-Manoukian also confronted County’s primary argument that plaintiffs’ success in only obtaining one-third of disputed public record requests meant that only one-third of the hours were compensable.  She, on behalf of the Sixth District, rejected this mechanistic approach.  County relied on non-CPRA cases, which were inapt because special fee-shifting statutes have to be construed on their own merits.  “We also find that the decisions [relied on by County] do not stand for the general proposition that an award of attorney fees under a fee statute must always be commensurate with or in proportion to the degree of success obtained in the litigation.  As we stated in Meister, the general rule is that the prevailing party’s degree of success is only one of the factors the trial court may consider in determining the amount of reasonable attorney fees.”  (Slip Opn., at p. 21.) 

            In dispatching the partial success reduction argument by County, the appellate panel continued by observing:  “Moreover, the County has not cited any authority for the proposition that an attorney fees award in a CPRA action must always be proportionate to the prevailing party’s degree of success in obtaining the disclosure of public records . . . A rule requiring an award of attorney fees to be commensurate with the degree of success in CPRA litigation could have a similar chilling effect [i.e., chill efforts to enforce the public right to information], if, as the County proposes, the trial court was required to reduce the lodestar amount in strict proportion to the ratio of successful to unsuccessful public record requests.”  (Slip Opn., at p. 21.)  Thus, the Court of Appeal rejected County’s argument to reduce the lodestar by two-thirds to $62,870. 

            County also argued that the fee motion was not adequately documented, because only attorney declarations were used in lieu of detailed billing records.  Wrong again, said the appellate court, citing to cases indicating that attorney’s declarations can be sufficient or other proof about the actual work performed.  (See, e.g., Steiner v. Thexton, 163 Cal.App.4^th 359, 380 (2008); Melnyk v. Robledo, 64 Cal.App.3d 618, 624-625 (1976).)  However, the appellate panel did note that “a fee request ordinarily should be documented in great detail.”  (Slip Opn., at p. 22.)

            Because the trial court used contingency risk as a primary factor in enhancing the lodestar by a 1.25 multiplier, the Court of Appeal found no abuse of discretion in such decisionmaking.  One of the most common fee enhancers is the contingency risk of a particular case.  (See Graham v. DaimlerChrysler Corp., 34 Cal.4^th 553, 579 (2004).)  Plaintiffs’ attorneys had worked on a pure contingent basis for two years in a case laden with risk given the County’s aggressive defense of the matter.  The trial court did reduce the requested multiplier from 2.0 to 1.25, showing that exercise was carefully exercised.

            Finally, the appellate panel would not fix fees for plaintiffs having prevailed on appeal, remanding to the trial court for such a determination—which we blogs have found to be the overwhelming practice by the California appellate courts.

            BLOG OBSERVATION—One of the attorneys providing an expert declaration to plaintiffs was attorney Neil Shapiro.  Mike Hensley, one of the co-contributors, litigated against Mr. Shapiro when Mike was a “puppy” lawyer (no negative inference intended to Mike’s Labrador retriever Riffle).  Mike sends his greetings to Neil. 

Comments

[Ina Bendis]

Monterey then requested depublication,
but their arguments did not hold water,
and on Feb Eignteen the Caliofornia Supreme
did exactly what I felt they oughter!

So when agencies smirk and wax recalcitrant,
in CPRA actions you file,
just make sure you prevail to at least some extent,
cite this case, and walk off with a smile!

Ina

[Neil L. Shapiro]

And Neil returns Mike's greetings.

[Dr. Ina K. Bendis, Esq.]

On October 20, 2008 Mr. Christopher Stampolis, a non-party acting in propria persona, filed a Petition for Certification. Though I did not represent Mr. Stampolis, I provided him a bit of pro bono legal research and writing support in this endeavor.

On October 27, 2008 Monterey County (represented by Charles J. McKee, Esq. and Wendy S. Strimling, Esq.) filed an Opposition to Request to Certify for Publication with the Court of Appeal, and copied their document to the Supreme Court.

On October 29, 2008, the Appeals Court acted favorably on Mr. Stampolis's Petition, and certified the case for publication.

As a fairly "green" attorney, I am not clear on whether Monterey's copying the Supreme Court with its Opposition (which it filed with the Appeals Court two days prior to the case's publicaton), suffices to trigger the Supreme Court's depublicaton review under 8.1105(e). Or, conversely whether Monterey must now file a depublication requst letter with the Supreme Court to trigger a review.

FYI, Mr. Stampolis (a non-attorney) and I are both proud alums of Concord Law School. Due to its Internet-enabled Law education, Concord is not eligible for ABA approval. Nonetheless, we received a great education there. Mr. Stampolis serves as a Trustee of the West Valley Mission Community College District and owns a small local newspaper. I serve as a Trustee of the Santa Clara Unified School District.