Sanctions, Special Fee Shifting Statutes: Prevailing CPRA Petitioner Properly Denied Fees Under Mandatory Fee-Shifting Statute And Under Code Civ. Proc. Section 128.5 Based On Her Self-Represented Status

Prevailing Petitioner Was Not Represented By Legal Counsel And Did Not Incur Or Become Liable For Attorney Fees.

            In Drevaleva v. Alameda Health Sytem, Case No. A158282 (1^st Dist., Div. 4 May 29, 2020) (unpublished), the trial court denied prevailing CPRA (California Public Records Act) petitioner’s requests for attorney’s fees, under Gov. Code section 6259(d) and Code Civ. Proc. section 128.5, because she was self-represented.  

            The 1/4 DCA affirmed.  Although the CPRA includes a mandatory fee-shifting statute (Gov. Code § 6259(d)), the appellate panel followed the reasoning in Trope v. Katz 11 Cal.4^th 274 (1995), which provides that a party need to incur/become liable for attorney fees in order to recover fees.  Likewise, the 1/4 DCA applied the same reasoning to plaintiff petitioner’s section 128.5 fees request (Musaelian v. Adams 45 Cal.4^th 512 (2009)).  Plaintiff petitioner paid no fees for legal representation, nor did she become liable to pay attorney fees.  To the extent section 6259(d) does not include the word “incur,” the 1/4 DCA found the definition of “attorney’s fees” discussed in Trope applied here – that a prevailing party is entitled to recover fees if that party were represented by counsel.