Pasadena Police Officers Assn. v. City of Pasadena ( 2018 )

Filed 4/12/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
PASADENA POLICE OFFICERS B275566
ASSOCIATION et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BC556464)
v.
CITY OF PASADENA,
Defendant and Respondent;
LOS ANGELES TIMES
COMMUNICATIONS, LLC,
Intervener and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed in part and
reversed in part with directions.
Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox,
Dan Laidman; Los Angeles Times Communications, Jeff Glasser;
Jassy Vick Carolan, Jean-Paul Jassy and Kevin L. Vick for
Intervener and Appellant.
Nikki Moore for California News Publishers Association as
Amicus Curiae on behalf of Intervener and Appellant.
Katie Townsend, Bruce D. Brown and Caitlin Vogus for
Reporters Committee for Freedom of the Press as Amicus Curiae
on behalf of Intervener and Appellant.
Rains Lucia Stern St. Phalle & Silver, Timothy K. Talbot
and Jacob A. Kalinksi for Plaintiffs and Respondents.
Michele Beal Bagneris, City Attorney, and Javan N.
Radfor, Chief Assistant City Attorney, for Defendant and
Respondent.
——————————
Following our decision in Pasadena Police Officers Assn. v.
Superior Court (2015) 240 Cal. App. 4th 268 (Pasadena Police), the
Los Angeles Times (Times) moved for attorney fees from the City
of Pasadena (City) under the California Public Records Act (Gov.
Code, § 6259, subd. (d)) (PRA). The Times also sought fees from
the City, the two involved police officers and the Pasadena Police
Officers Association (PPOA), under the private attorney general
statute (Code Civ. Proc., § 1021.5 (hereafter § 1021.5)). The trial
court ultimately awarded the Times limited fees under the PRA
against the City and declined to award the Times any fees under
section 1021.5. We affirm in part and reverse in part, with
directions.
BACKGROUND
I. The trial court’s decision on the merits1
On March 24, 2012, just after 11:00 p.m., Pasadena Police
Department (PPD) officers responded to a 911 call. The caller
1 Because the underlying facts are not in dispute, we have
largely adopted the facts as set forth in our previous decision in
Pasadena Police, supra, 240 Cal. App. 4th 268.
2
claimed to have been robbed at gunpoint by two men. Much
later, the caller admitted he had falsely reported that the robbers
were armed. Responding to the call, the officers proceeded in
their squad car to the area of the alleged crime. As they
approached the intersection, Kendrec McDade (McDade), a 19-
year-old African-American male, began running. The officers
pursued McDade for about two blocks. Officer Matthew Griffin
fired four shots at McDade from inside the patrol car. Officer
Jeffrey Newlen, having previously exited the squad car to give
chase, fired four more shots, killing McDade. It was later
discovered that McDade was not armed. (Pasadena Police, supra,
240 Cal.App.4th at p. 275.)
The shooting spawned multiple investigations, a citizen’s
complaint and a federal lawsuit by McDade’s mother, Anya
Slaughter (Slaughter), against the officers and the City. The Los
Angeles District Attorney conducted a criminal investigation
which concluded with a finding that, due to the false report, the
officers reasonably believed McDade was armed. No criminal
charges were filed against the officers. The Federal Bureau of
Investigation (FBI) conducted a civil rights investigation of the
shooting, which ultimately was closed without the filing of
criminal charges or a civil complaint. Slaughter’s federal action
against the City and the officers was settled. (Pasadena Police,
supra, 240 Cal.App.4th at pp. 275–276.)
The PPD conducted its own investigations. Two of the
investigations were conducted immediately after the McDade
shooting. The purpose of the first investigation, undertaken by
the PPD’s Criminal Investigations Division (CID), was to
determine whether the officers had committed a crime. A
different group of PPD investigators conducted a separate
3
internal affairs (IA) investigation. The PPD also investigated the
citizen’s complaint during its CID and IA investigations. In
March 2013, the PPD conducted a third investigation—an
administrative review based on evidence collected during the CID
and IA investigations. That review concluded that the officers
had acted within departmental policy because they reasonably
believed McDade was armed and assaulting an officer and shot
McDade in self-defense and in defense of one another. (Pasadena
Police, supra, 240 Cal.App.4th at p. 276.)
The City also retained the Office of Independent Review
Group (OIR) as a private consultant to conduct an independent
review of the shooting. According to PPD Deputy Chief Darryl
Qualls, “ ‘[t]he purpose of the [OIR]’s review . . . was to serve as a
review of the incident for the benefit of the department and to
evaluate how the [PPD] does business in the areas reviewed.’ ”
Deputy Chief Qualls also stated that the PPD would not use the
OIR report “ ‘to (1) affect the officers’ advancement; (2) conduct
an appraisal of the officers; or (3) consider discipline of the
officers.’ ” The trial court found that the City had retained the
OIR in order to evaluate the thoroughness and objectivity of the
PPD’s investigations of the shooting, the adequacy of officer
training, what lessons had been learned from the incident and,
based on the OIR’s review and conclusions, to recommend
institutional reforms. (Pasadena Police, supra, 240 Cal.App.4th
at pp. 276–277.)
In August 2014, the OIR submitted a 70-page report
entitled “Report to the City of Pasadena Concerning the Officer-
Involved Shooting of Kendrec McDade” (the OIR report). The
4
interveners2 then submitted requests to the City for disclosure of
the OIR report pursuant to the PRA.3 On September 3, 2014,
while the PRA requests were still pending, the PPOA and
Officers Griffin and Newlen (collectively, the Plaintiffs) initiated
a reverse-PRA action, seeking and obtaining a temporary
restraining order (TRO) preventing the release of the OIR
report.4 (Pasadena Police, supra, 240 Cal.App.4th at p. 277.)
2 Atthe time, the interveners consisted of Anya Slaughter,
Kris Ockershauser, the Pasadena Branch of the National
Association for the Advancement of Colored People, ACT, and the
Interdenominational Ministerial Alliance of Greater Pasadena
(the Slaughter parties). The Times did not seek to intervene
until September 16, 2014. (Pasadena Police, supra, 240
Cal.App.4th at p. 277.) The Slaughter parties are not part of the
present appeal.
3 Instead of immediately responding to the PRA requests,
the City advised the PPOA that the City had received the
requests and would need to respond to them by September 4,
2014. The City told the PPOA that the PPOA needed to take
legal action before that date if it did not want to have the OIR
report released and noted that: “An argument has been made
that the release of the OIR report would violate certain statutory
and privacy rights of the involved officers.” It is unclear if the
City’s purposeful delay was allowed under the PRA, which
mandates that copies be provided promptly upon payment of fees
covering direct cost of duplication or statutory fee, if applicable.
(See Marken v. Santa Monica-Malibu Unified School Dist. (2012)
202 Cal. App. 4th 1250, 1268, fn. 14 (Marken).)
4A reverse-PRA action may be filed when a party believes
it will be adversely affected by the disclosure of a document it
contends is confidential and seeks a judicial ruling precluding a
public agency from disclosing the document. (Marken, supra, 202
Cal.App.4th at p. 1267.) Like an action to compel disclosure
5
On September 9, 2014, the trial court vacated the TRO
because the matter was not yet ripe and ordered the City to
respond to the interveners’ PRA requests and to give the
Plaintiffs notice if it intended to disclose the OIR report. That
same day, the interveners submitted new or renewed PRA
requests for the OIR report to the City. On September 11, 2014,
the City announced that unless the trial court directed otherwise,
it would release the OIR report the following week but would
redact portions of the OIR report containing confidential police
officer personnel records. (Pasadena Police, supra, 240
Cal.App.4th at p. 277.)
On September 16, 2014, the Plaintiffs filed an ex parte
application seeking to enjoin the City from releasing any portion
of the OIR report. The same day, the Times filed a motion
seeking to intervene in this action and also filed a writ petition
seeking to compel release of the OIR report without redactions.
The trial court granted leave to intervene. (Pasadena Police,
supra, 240 Cal.App.4th at p. 277.)
On October 16, 2014, the trial court issued its decision.
The trial court acknowledged the parties’ competing positions
regarding disclosure of the OIR report—the interveners
contended the OIR report was a public record and should be
disclosed in its entirety while the Plaintiffs claimed the OIR
report was a confidential personnel record entirely exempt from
disclosure under the Pitchess statutes (Pen. Code, §§ 832.5, 832.7,
832.8; see Pitchess v. Superior Court (1974) 11 Cal. 3d 531) as well
under the PRA itself, a reverse-PRA suit seeks judicial review of
an agency decision under the PRA. It does not ask the court to
undertake the decisionmaking in the first instance. (Id. at
p. 1265.)
6
as the privilege exemption of the PRA (Gov. Code, § 6254,
subd. (k)). However, the City argued that all but about
20 percent of the OIR report (which it agreed was confidential
personnel information) should be disclosed. (Pasadena Police,
supra, 240 Cal.App.4th at p. 277.)
The trial court determined the OIR report was indisputably
a public record and that the public’s interest in disclosure was
particularly substantial because it related to officer involved
shootings and governmental policies regarding law enforcement
and public safety. (Pasadena Police, supra, 240 Cal.App.4th at
pp. 277–278.) Nevertheless, the trial court found, the
administrative and criminal investigations conducted in the case
were clearly separate investigations. (Id. at p. 278.) Although
the criminal investigation revealed no information about the
advancement, appraisal, or discipline of a particular officer, and
thus did not constitute a personnel record, the same could not be
said of the administrative investigation. (Ibid.) Therefore, those
portions of the OIR report containing privileged personnel
information generated in connection with the PPD’s
administrative investigation that qualified for protection must be
redacted.5 (Ibid.)
On November 13, 2014, after reviewing the City’s and
Plaintiff’s proposed redactions to the OIR report, the trial court
entered judgment and ordered release of the redacted report.
The trial court vacated its September 16, 2014 TRO, but stayed
the effect of its vacation order and judgment for 20 days to permit
the parties to seek review of the judgment.
5The trial court ordered approximately 14 pages of the 70-
page report to be redacted from the publicly-released copy of the
OIR report.
7
The Plaintiffs then filed a writ of mandate, seeking review
of the trial court’s disclosure order. (Pasadena Police, supra, 240
Cal.App.4th at p. 279.) According to the Plaintiffs, the entire OIR
report was privileged because it was, in effect, a personnel file.
At the very least, substantial parts of the OIR report which the
trial court had refused to redact were personnel material in
nature and type as described in Penal Code sections 832.5 and
832.6, and Evidence Code sections 1043 and 1045. (Id. at p. 281.)
Thus, the Plaintiffs sought to preclude disclosure of the entire
OIR report or, in the alternative, the production of a more heavily
redacted OIR report. (Id. at p. 275.) The Times insisted that the
OIR report was a public record and should have been disclosed in
its entirety. (Id. at pp. 277, 282.)
We held that the trial court correctly concluded the OIR
report itself was a public document. The trial court also correctly
determined that portions of the OIR report contained confidential
personnel information exempt from disclosure under the PRA.
We further held, however, that the trial court’s redactions went
too far. Some of the material the trial court ordered redacted was
unrelated to personnel files of individual officers. The
inappropriately redacted material included analyses of the PPD’s
administrative investigation and departmental policies,
descriptions of the PPD’s responsiveness (or the absence thereof),
and the OIR’s recommendations, none of which was privileged
under the PRA. (Pasadena Police, supra, 240 Cal.App.4th at p.
275.) In short, we determined that a number of redactions
proposed by the City and largely adopted by the trial court
protected not privileged information relating to the officers, but
information or findings evaluating conduct by, or the policies and
practice of, the PPD itself. Any redaction of such material, we
8
held, would subvert the public’s right to be kept fully informed of
the activities of its peace officers in order to maintain trust in its
police department. (Id. at p. 298.)
Consequently, we denied the writ petition and remanded
the matter to the trial court so it could reconsider which portions
of the OIR report contained confidential personnel records. We
also ordered additional material released, including an appendix
we attached to our opinion, and directed the trial court to issue a
new or modified judgment in conformance with our decision.
(Pasadena Police, supra, 240 Cal.App.4th at p. 299.) On remand,
the trial court conducted further proceedings as directed by our
opinion and ultimately ordered disclosure of an additional 126
lines of the OIR report, constituting about five of the 14
previously redacted pages. On December 2, 2015, the City
released this version of the report.
II. The trial court’s attorney fees decision
On December 22, 2015, the Times filed a motion for
attorney fees and costs (the fee motion).6 The Times sought
6 The Slaughter parties and the PPOA also moved for
attorney fees. The trial court ultimately awarded the Slaughter
parties $67,158 in fees. The trial court held that the PPOA’s
motion was defective because it did not identify the parties from
whom it sought fees. The trial court further held that the PPOA
was not entitled to attorney fees under the PRA because such
fees were not available to a plaintiff seeking to prevent disclosure
of a document using a reverse-PRA action. Nor was the PPOA
entitled to fees under the private attorney general’s statute
because it did not succeed in its primary litigation goal—
preventing disclosure of the OIR report in its entirety—and thus
could not be considered a successful party under the statute.
Furthermore, the trial court noted, there was no need for the
9
attorney fees from the City under the PRA (Gov. Code, § 6259,
subd. (d)) and from both the City and the PPOA under the private
attorney general statute (Code Civ. Proc., § 1021.5) Code of Civil
Procedure section 1021.5.7 Specifically, the Times sought
recovery of $261,327 for its work during the writ proceedings as
well as an additional $89,095 incurred in connection with post-
remand issues, including the fee motion, for a total of $350,422.
On April 14, 2016, the trial court issued an order granting
the Times’ fee motion in part and denying it in part. With
respect to fee recovery under the PRA, the trial court held that
the Times could recover fees only for the work it performed to
affirmatively enforce the PRA requests it had lodged with the
PPOA’s lawsuit because the City’s proposed redactions were
sufficient to protect the police officers’ personnel records.
7 If a records requester prevails against a public agency,
the requester can recover fees under the PRA (Gov. Code, § 6259,
subd. (d)). If a requester prevails against a third party that sued
to enjoin disclosure in a reverse-PRA action, the requester can
recover fees under section 1021.5. Government Code section
6259, subdivision (d), provides for mandatory fees: “The court
shall award court costs and reasonable attorney fees to the
plaintiff should the plaintiff prevail in litigation filed pursuant to
this section.” Under section 1021.5, a fee award is discretionary:
“[A] court may award attorneys’ fees to a successful party against
one or more opposing parties in any action which has resulted in
the enforcement of an important right affecting the public
interest if: (a) a significant benefit . . . has been conferred on the
general public . . . , (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity
against another public entity, are such as to make the award
appropriate, and (c) such fees should not in the interest of justice
be paid out of the recovery, if any.”
10
City, but not for the work it had performed to defend against the
PPOA’s reverse-PRA action.8 According to the trial court,
however, the Times was principally opposed by the PPOA, not the
City, throughout the litigation. For example, the trial court
noted, the PPOA sought to prevent the release of the OIR report,
filed the mandamus proceedings in the Court of Appeal, and
argued against the trial court’s subsequent unredactions.9
Unlike the PPOA, the City did not seek mandamus and its sole
argument in opposition to additional disclosure occurred in letter
briefs solicited by the Court of Appeal when deciding if it could
provide affirmative relief to the interveners. The City’s position
was that the Court of Appeal should not order any unredactions
unless the City could brief the issue—an argument which the
Court of Appeal rejected.10
8 Citing Marken supra, 202 Cal.App.4th at page 1267, the
trial court noted that Government Code section 6259, subdivision
(d), has no application in a reverse-PRA action, thus precluding
the Times from seeking fees against the PPOA under the PRA.
Although the Times expressly disavowed any attempt to recover
fees from the PPOA under the PRA, the PPOA still addressed the
issue in its opposition to the Times’ fee motion.
9 As noted above, the unredactions consisted of an
additional 126 lines of the OIR report—about five of the 14
previously redacted pages.
10 We rejected this argument because the City had already
addressed the propriety of redacting portions of the OIR report,
both on appeal and before the trial court. Indeed, the City urged
us to find that the trial court’s redactions appropriately protected
the officers. Further, we noted, the City was well aware the
interveners would urge us to conclude that the OIR report was
11
The trial court concluded that the City had taken the
correct position at trial, using the appropriate legal standard for
disclosure of an OIR report redacted to protect the officers’
personnel file records under the Pitchess statutes. The City
maintained this position on mandamus review, except it opposed
additional unredactions for procedural reasons when the issue
was raised by the Court of Appeal. Therefore, the trial court
held, the Times was the prevailing party against the City only for
the narrow matter of fees incurred during appellate mandamus
review and subsequent trial court hearings regarding additional
unredactions. Thus, with respect to fee recovery under the PRA,
the Times was entitled to recover attorney fees from the City only
as to this particular limited time period.
With respect to fee recovery under section 1021.5, the trial
court found that overall the Times had met all the elements
required for a fee award—the Times had succeeded in the
litigation; enforced an important right affecting the public
interest; conferred a significant benefit on the public; and private
enforcement by the Times was necessary.
Despite satisfying the overall requirements of
section 1021.5, the trial court held that the Times could not
recover fees against the City under the statute, which does not
provide an independent basis for an attorney fee award when
there are already existing specific statutory fee provisions—such
as the PRA—that apply.
As against the PPOA, the trial court determined that the
Times was clearly a successful party. The PPOA sought to
overredacted. (Pasadena Police, supra, 240 Cal.App.4th at
p. 297.)
12
prevent disclosure of the entire OIR report while the Times
sought the disclosure of the entire OIR report. The trial court
noted that its prior judgment ordering release of the redacted
OIR report—and our subsequent decision denying PPOA’s
mandamus claim—clearly demonstrated the Times had obtained
the majority of the relief it sought when intervening in this case.
The Times’ advocacy also enforced an important right affecting
the public interest conferring a significant benefit on the general
public by ensuring disclosure of the majority of the OIR report
and opposing PPOA’s attempts to prevent disclosure.
The necessity and burden also weighed in favor of a fee
award, given that it was unclear whether the City would
adequately represent the Times’ interests in opposing the PPOA.
Indeed, the trial court observed, the Times and the City
disagreed over the extent and necessity of the redactions in the
OIR report throughout the litigation. When the Times
intervened, a TRO had been issued preventing disclosure of the
OIR report and the City had not opposed issuance of the TRO.11
Lastly, the trial noted, while the Times did not receive any direct
monetary benefit from ensuring the release of the OIR report, it
was forced to pay significant amounts of attorney fees in order to
ensure that the OIR report would be released.
11 In addition to not opposing issuance of the TRO, the City
arguably caused the PPOA to seek out a TRO in the first place.
The City told the PPOA that the PPOA needed to take legal
action before September 4, 2014, if it did not want to have the
OIR report released. The City also outlined an argument the
PPOA could make in seeking a TRO by noting that release of the
OIR report could violate certain statutory and privacy rights of
the involved officers.
13
Nevertheless, although the Times could theoretically
recover fees from the PPOA under the statute, the trial court
went on to find that recovery was barred under Adoption of
Joshua S. (2008) 42 Cal. 4th 945 (Joshua S.), which held that a
private individual could not be held liable for fees under
section 1021.5 when that individual sought a judgment that
determined only his or her private rights and did nothing to
adversely affect the public interest other than being on the losing
side of an important appellate case.
Here, the trial court noted, Officers Newlin and Griffith
were private litigants who sought to protect their privacy rights
under the Pitchess statutes from disclosure of information in
their personnel file. The PPOA, their union, was acting in a
representative capacity and not on its own behalf. According to
the trial court, while the issue was close, PPOA’s reverse-PRA
lawsuit was within the scope of Joshua S.’s protection. Officers
Newlin and Griffin, with the PPOA as their representative, were
protecting their statutory rights in filing their lawsuit. That they
sought to protect their privacy by preventing the disclosure of a
report that otherwise was required to be disclosed in the public
interest did not overcome this fact, the trial court held.
Therefore, the trial court exercised its discretion not to award the
Times fees under section 1021.5 against the PPOA or the officers.
In all, the trial court awarded the Times reasonable fees
under the PRA against the City—but only for a limited time
period—and declined to award the Times any fees under section
1021.5 against the City or the PPOA. The court then ordered the
parties to meet and confer and determine the correct amount to
award the Times for attorney fees incurred in the Court of Appeal
14
and post-appeal concerning the additional unredactions.12 The
trial court noted that the amount would be a “small fraction” of
the fees sought and would be reduced further given that the
Times and the Slaughter parties had acted together in seeking
disclosure, creating duplicative attorney efforts on these issues.
“They had the right to so,” the trial court observed, “but the City
cannot be asked to pay for multiple attorneys working on the
same issue.”
Pursuant to the trial court’s order, the Times identified the
fees it had incurred during appellate mandamus review as well
as the subsequent trial court hearings regarding additional
unredactions—less any fees incurred for duplicative work by
counsel for the Times and the Slaughter parties. The Times
submitted billing records indicating that its counsel billed
$50,163 for time spent addressing the unredaction issue in the
Court of Appeal and further billed $10,781 for the post-remand
unredaction issues. The Times sought an additional $5,760 in
attorney fees for the court-ordered meet and confer and
supplemental briefing. When added to the $15,000 previously
awarded by the trial court for counsel’s preparation of the fee
motion, the Times sought a total of $81,704.
The trial court subsequently held that a 50 percent
reduction for duplicative attorney efforts was appropriate in this
case and also declined to award the Times additional fees for its
supplemental briefing during the meet and confer process. In the
end, the trial court awarded the Times a total of $45,472 in
12 In addition to the as yet unknown number for the
unredaction issue, the Times was awarded fees of $15,000 for its
fee motion to obtain this limited award.
15
attorney fees—$30,472 for the unredaction issues and $15,000 for
the fee motion.13
On appeal, the Times contends the trial court incorrectly
applied Joshua S. in denying section 1021.5 fees and that the
Times is entitled to attorney fees against the officers and the
PPOA under the statute.14 The Times also contends it is entitled
to additional attorney fees against the City under the PRA.15
According to the Times, the trial court incorrectly determined
that the Times had prevailed against the City only for a limited
time period and that the trial court’s subsequent 50 percent
reduction of the Times’ fee award under the PRA was both
unreasonable and contrary to the statute’s purpose.
13 The trial court awarded the Slaughter parties $67,158 in
attorney fees—$25,000 for the unredaction issues, as agreed to by
the City and the Slaughter parties; $27,158 for fees incurred
before September 11, 2014; and $15,000 for the fee motion. (As
noted above, on September 11, 2014, the City said that unless
directed otherwise, it would release the OIR report while
redacting those portions of the report containing confidential
personnel records. See Pasadena Police, supra, 240 Cal.App.4th
at p. 277.)
14The Times does not appeal the trial court’s
determination that attorney fees are not available against the
City under section 1021.5.
15As noted above, the Times has never argued that
attorney fees were available against the officers or the PPOA
under the PRA.
16
DISCUSSION
I. Code of Civil Procedure section 1021.5
A. STANDARD OF REVIEW
Code of Civil Procedure section 1021.5—the private
attorney general statute—authorizes an award of fees when
(1) the action resulted in the enforcement of an important right
affecting the public interest, (2) a significant benefit was
conferred on the general public, and (3) the necessity and
financial burden of private enforcement make the award
appropriate. (Serrano v. Stefan Merli Plastering Co., Inc. (2011)
52 Cal. 4th 1018, 1026 (Serrano).) “[F]ees granted under the
private attorney general theory are not intended to punish those
who violate the law but rather to ensure that those who have
acted to protect public interest will not be forced to shoulder the
cost of litigation.” (San Bernardino Valley Audubon Society, Inc.
v. County of San Bernardino (1984) 155 Cal. App. 3d 738, 756.)
Thus, the statute “ ‘acts as an incentive for the pursuit of public
interest-related litigation that might otherwise have been too
costly to bring.’ ” (Center for Biological Diversity v. County of San
Bernardino (2010) 188 Cal. App. 4th 603, 611–612.) Fees must be
awarded under section 1021.5 when the statutory criteria have
been met “unless special circumstances render such an award
unjust.” (Robinson v. City of Chowchilla (2011) 202 Cal. App. 4th
382, 391.)
Our review of an order granting a section 1021.5 award of
attorney fees is limited to whether the trial court abused its
discretion. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132
(Ketchum).) Under that standard, we will overturn an order, only
if we find “that, under all the evidence viewed most favorably in
support of the trial court’s decision, no judge could reasonably
17
have made the challenged order.” (County of Kern v. Ginn (1983)
146 Cal. App. 3d 1107, 1115.) “The ‘ “experienced trial judge is the
best judge of the value of professional services rendered in his
court, and while his judgment is of course subject to review, it
will not be disturbed unless the appellate court is convinced that
it is clearly wrong.” ’ ” (Ketchum, at p. 1132.) Here, the trial
court found that the Times satisfied all the statutory
requirements of section 1021.5 but determined that Joshua S.
precluded a fee award under the statute. Thus, the Times
contends, de novo review is appropriate here. (See Serrano,
supra, 52 Cal.4th at p. 1026.) We need not resolve which
standard of review is proper, however. The trial court erred
under either standard.
B. MERITS
1. Threshold issues
At the outset, the PPOA argues that the Times cannot seek
fees against the union under section 1021.5 because the PRA’s
fee-shifting provision (Gov. Code, § 6259, subd. (d)) is the solely
applicable statute. However, the PPOA brought its reverse-PRA
action pursuant to Marken, not the PRA. Indeed, the Marken
court’s rationale for recognizing reverse-PRA lawsuits is that
they are not permitted under and do not arise from the PRA.16
16 As the Marken, supra, 202 Cal. App. 4th 1250 court
recognized, although the PRA “provides a specific statutory
procedure for the resolution of disputes between the party
seeking disclosure and the public agency, no comparable
procedure exists for an interested third party to obtain a judicial
ruling precluding a public agency from improperly disclosing
confidential documents.” (Id. at p. 1267.) Therefore, third
parties must bring an independent action for declaratory relief or
18
(Marken, supra, 202 Cal.App.4th at p. 1267.) Consequently, as
the trial court correctly concluded, the PRA does not authorize,
and thus cannot limit, fee-shifting against third parties who
pursue reverse-PRA suits under Marken.
The trial court also correctly determined that the Times
was not collaterally estopped from recovering section 1021.5 fees
based on a 2011 ruling in a different case involving a different
police union—Los Angeles Times Communications LLC v. Los
Angeles County Sheriff’s Department, Super. Ct. L.A. County,
2011, No. BS123076 (Los Angeles Times v. Sheriff’s Department).
Collateral estoppel precludes relitigation of issues argued and
decided in prior proceedings. (Teitelbaum Furs, Inc. v. Dominion
Ins. Co., Ltd. (1962) 58 Cal. 2d 601, 604.) We apply the doctrine
only if several threshold requirements are met. First, the issue
sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second, this issue must have
been actually litigated in the former proceeding. Third, it must
have been necessarily decided in the former proceeding. Fourth,
the decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought
must be the same as, or in privity with, the party to a former
proceeding. (People v. Taylor (1974) 12 Cal. 3d 686, 691.)
In Los Angeles Times v. Sheriff’s Department, the Times
successfully sued the sheriff’s department to compel the
disclosure of public records. The Times then moved for an award
of attorney fees under the PRA and section 1021.5 against both
the sheriff’s department and a law enforcement union that had
traditional mandamus if they believe they will be adversely
affected by disclosure. (Ibid.)
19
intervened in the case. With respect to fees under the PRA, the
trial court granted the Times’ fee request against the sheriff’s
department but denied the Times’ fee request against the union
because Government Code section 6259, subdivision (d),
expressly mandates that the public agency—and only the public
agency—pay the attorney fees of a prevailing plaintiff under the
PRA.
With respect to fees under section 1021.5, the trial court
denied the Times’ fee request against both the sheriff’s
department and the union because “[Government Code] section
6259[, subdivision] (d) provides the exclusive method by which a
prevailing plaintiff or defendant can obtain an award of costs
following a CPRA lawsuit.” The trial court recognized that the
union was the cause of much of the fee award, however, and
noted that “in another context [the union] would have to bear
that cost.”
Filing a reverse-PRA suit, which is not permitted under
and does not arise from the PRA, (Marken, supra, 202
Cal.App.4th at p. 1267), is such a context. The trial court’s
determination that attorney fees against a third party were
unavailable under Government Code section 6259,
subdivision (d), following a PRA lawsuit was entirely consistent
with a conclusion that such fees are available against a third
party under section 1021.5 following a reverse-PRA action.17
17 Amici California News Publishers Association argues
that requesters also should be permitted to recover fees from
public agencies under section 1021.5 following a reverse-PRA
action. Because the Times has not appealed the trial court’s
determination that fees were unavailable against the City under
section 1021.5, we do not address the issue here.
20
Thus, Los Angeles Times v. Sheriff’s Department does not aid the
PPOA here, as the trial court in this case correctly held.
2. Application of Joshua S., supra, 42 Cal. 4th 945
The trial court also found that the Times had satisfied all
the statutory requirements of section 1021.5, which ordinarily
mandates a fee award, but determined that Joshua S. precluded
an award against the PPOA. Joshua S. is not applicable here,
however.
Joshua S, supra, 42 Cal. 4th 945. arose from an adoption
dispute between a lesbian couple identified in the opinion only by
their first names, Sharon and Annette. Sharon gave birth to two
children through artificial insemination. When both children
were born, Sharon and Annette were in a committed relationship.
While retaining her parental rights, Sharon consented to
Annette’s adoption of the children. When Sharon and Annette
later separated, Annette filed a motion for an order of adoption.
Sharon moved for court approval to withdraw her consent to
adopt. Sharon argued that the form of second parent adoption
sought by Annette was unlawful. The California Supreme Court
held that this form of second parent adoption was lawful.
Annette subsequently moved for attorney fees pursuant to
section 1021.5. Annette argued that she was entitled to the fees
because she “had prevailed in the Supreme Court on the second
parent adoption issue, an issue of benefit to a large class of
persons.” (Joshua S., supra, 42 Cal.4th at p. 950.) The trial
court awarded attorney fees to Annette, but the Court of Appeal
reversed.
Our Supreme Court noted “that the litigation here did yield
a substantial and widespread public benefit.” (Joshua S., supra,
42 Cal.4th at p. 952.) But the court concluded that “even when
21
an important right has been vindicated and a substantial public
benefit conferred, and when a plaintiff’s litigation has
transcended her personal interest . . . section 1021.5 was not
intended to impose fees on an individual seeking a judgment that
determines only his or her private rights, but who has done
nothing to adversely affect the public interest other than being on
the losing side of an important appellate case.” (Id. at p. 958.)
The court found that Sharon “fits squarely into this category.”
(Ibid.) The court explained that Sharon was “a private litigant
with no institutional interest in the litigation, and the judgment
she sought in the present case would have settled only her
private rights and those of her children and Annette. She simply
raised an issue in the course of that litigation that gave rise to
important appellate precedent decided adversely to her.” (Id. at
p. 957, fn. omitted.) “[S]ection 1021.5 attorney fees should not be
imposed on parties such as [Sharon], an individual who has only
engaged in litigation to adjudicate private rights from which
important appellate precedent happens to emerge, but has
otherwise done nothing to compromise the rights of the public or
a significant class of people.” (Id. at p. 954.)
In Serrano, supra, 52 Cal. 4th 1018, the California Supreme
Court explained the narrow scope of Joshua S., supra, 42 Cal. 4th
945. (Serrano, at p. 1026.) The relevant Serrano facts are these:
a court reporting service, Coast Court Reporters (Coast), charged
the plaintiffs in a personal injury action an unreasonable fee for
expediting a copy of a deposition noticed by the defendant. The
plaintiffs asked the trial court to require Coast to provide the
copy without the fee, but despite finding the fee unconscionable,
the trial court believed it had no authority to determine how
much a deposition reporter may charge. (Id. at pp. 1020–1021.)
22
The plaintiffs appealed and prevailed in a published Court of
Appeal decision that established the trial court’s jurisdiction to
regulate such fees.18 The plaintiffs then sought fees under
section 1021.5 for litigating their claim against the court
reporting agency through the Court of Appeal. Based in part on
Joshua S., however, both the trial court and the Court of Appeal
denied an award, finding that the case was merely a “ ‘private
business disagreement’ ” that “ ‘did not arise from an attempt to
curtail any conduct on the part of Coast that was infringing a
statutory or public right.’ ” (Serrano, supra, 52 Cal.4th at
p. 1027.)
The Supreme Court granted review and reversed. The
court explained that Joshua S. had only “carved out a limited
exception” to section 1021.5. (Serrano, supra, 52 Cal.4th at
p. 1026.) Based on its independent review of the facts, the court
held that the Joshua S. exception did not apply. “While the
proceedings in the trial court regarding transcript charges might
be deemed a minor dispute limited to the circumstances of this
litigation, on appeal Coast strenuously defended its institutional
interest in controlling the fees charged to a nonnoticing party
without judicial oversight.” (Serrano, at p. 1027.) “Accordingly,
this is not a case in which a ‘private litigant with no institutional
interest in the litigation’ pursued ‘only [its] private rights.’ ”
(Ibid., quoting Joshua S., supra, 42 Cal.4th at p. 957.) “Rather,
we are presented with the usual circumstance where private
attorney general fees are sought from a party ‘at least partly
responsible for the policy or practice that gave rise to the
18See Serrano v. Stefan Merli Plastering Co., Inc. (2008)
162 Cal. App. 4th 1014, 1037.
23
litigation.”’ (Id. at pp. 1027–1028, quoting Connerly v. State
Personnel Bd. (2006) 37 Cal. 4th 1169, 1181.)
In the instant case, the trial court did not discuss Serrano
in its opinion. However, Serrano persuades us that Joshua S.’s
narrow exception does not apply in this case. In seeking to obtain
the OIR report from the City, which required opposing the
PPOA’s attempt to block the report’s release, the Times’ action
directly affected public rather than private rights. Indeed, we
explicitly recognized the nature of the suit in our prior opinion
when we noted that: “The public’s interest in disclosure is
‘particularly great’ where, as here, the underlying case involves
an officer involved shootings and policies regarding public safety
and law enforcement.” (Pasadena Police, supra, 240 Cal.App.4th
at p. 298.) Any redaction of such material, we held, would
subvert the public’s right to be kept fully informed of the
activities of its peace officers in order to maintain trust in its
police department. (Ibid.)
Instead of examining the Times’ purpose in bringing the
lawsuit, which plainly served the public interest, the trial court
credited the motivations of the individual officers in opposing
disclosure. Officers Newlin and Griffith were private litigants
who sought to protect their privacy rights under the Pitchess
statutes, the trial court noted, and did nothing to adversely affect
the rights of the public. However, the power exercised by police
officers, and their public visibility, naturally subjects them to
public scrutiny and can render them public officials. (See Kahn
v. Bower (1991) 232 Cal. App. 3d 1599, 1611.)
Moreover, the subjective intent of the party seeking to
prevent disclosure is immaterial. Although such a party must
have “done something to compromise the rights of the public”
24
before having to pay attorney fees under section 1021.5, our
Supreme Court refused to impose a “bad faith” requirement.
(Joshua S., supra, 42 Cal.4th at p. 958.) The court held only,
“consistent with the language and evident intent of the statute,
that the party against whom such fees are awarded must have
done or failed to do something, in good faith or not, that
compromised public rights.” (Ibid.) Regardless of the officers’
personal motivation in filing a reverse-PRA suit, in so doing, the
officers and the PPOA plainly attempted to restrict the public’s
right of access to police records.
The officers and the PPOA claimed that the OIR report was
a confidential personnel record entirely exempt from disclosure
under the Pitchess statutes as well as the PRA’s privilege
exemption. In fact, they sought to expand the statutes’ reach,
inviting us to find that in addition to records generated in
connection with employee advancement, appraisal, or discipline,
the Pitchess statutes should be read to encompass records—like
the entire OIR report—which contained information that
theoretically “ ‘could be used’ ” for such purposes. (Pasadena
Police, supra, 240 Cal.App.4th at p. 292.) As we already informed
the parties in this case: “We may not and would not do so.”
(Ibid.)
The expansion sought by the officers and PPOA further
justifies the imposition of attorney fees. In Serrano, supra, 52
Cal. 4th 1018, for example, Coast strenuously defended its
institutional interest in controlling the fees charged to a non-
noticing party. (Id. at p. 1027.) Because the company had an
institutional interest in the litigation, rather than a purely
private interest, Joshua S. did not apply and a fee award could be
imposed under section 1021.5. (Serrano, at pp. 1027, 1030.)
25
Here, as in Serrano, a litigant defended against a suit that
sought to expand the government’s power to curtail important
public rights. (See Joshua S., supra, 42 Cal.4th at p. 957.)
Therefore, attorney fees are not precluded by the narrow
exception set out in Joshua S. (See ibid.; see also County of San
Luis Obispo v. Abalone Alliance (1986) 178 Cal. App. 3d 848, 866–
869 [section 1021.5 fees awarded to protesters when suit by
county and private parties to pay for damage would have chilled
right to protest].)
Furthermore, the PPOA said it represented the interests of
all its members, not just Officers Newlin and Griffith, in seeking
to prevent the release of the OIR report. Indeed, the PPOA
expressly stated its goal was to ensure that the confidential
personnel information of peace officers remained confidential in
the face of PRA requests and that its work in this case affected
the confidential information of all peace officers. Thus, despite
the trial court’s determination to the contrary, the PPOA did not
simply represent the two officers as private litigants—the union
also acted on its own behalf. Indeed, a public employee union
with a prominent role in governmental activity “has assumed the
role of a public institution.” (Daniels v. Sanitarium Assn., Inc.
(1963) 59 Cal. 2d 602, 608.) Although section 1021.5 was not
intended to impose fees on an individual seeking a judgment that
determined only his or her private rights (see Joshua S., supra,
42 Cal.4th at p. 958), here, a public organization sought a
judgment that determined the rights of all its members.
26
Consequently, Joshua S.’s narrow limitation on the imposition of
section 1021.5 fees is inapplicable here.19
Although the PPOA contends it merely sought to enforce
the officers’ private rights, even Joshua S., supra, 42 Cal. 4th 945
noted that fees can be imposed “[w]hen a party initiates litigation
that is determined to be detrimental to the public interest.” (Id.
at p. 957.) “Moreover, attorney fees have been awarded to those
defending against suits by public entities, or those purporting to
represent the public, that seek to expand the government’s power
to curtail important public rights.” (Ibid.) In other words, even
litigation that enforces important statutory rights—such as
lawsuits involving the Pitchess statutes—can lead to fee-shifting
against the unsuccessful plaintiff if the suit is determined to be
adverse to the public interest. (See Joshua S., at p. 957.)
In short, this case involves public officials and a public
employee union pursuing litigation designed to expand the ability
of police officers and a police department to withhold information
from the public. The position taken by the officers and the PPOA
is easily distinguishable from the private litigant in Joshua S.,
supra, 42 Cal. 4th 945, who had no institutional interest in the
litigation and who sought a judgment that would have settled
only her private rights as well as those of her children and former
domestic partner. (Id. at p. 957; see Serrano, supra, 52 Cal.4th at
p. 1027 [Joshua S. did not apply when unsuccessful party
“strenuously defended its institutional interest” throughout
litigation].)
19
Therefore, we need not address the Times’ alternative
argument that California Constitution article I, section 3(b)
independently justifies reversal of the trial court’s decision.
27
The cases cited by the PPOA are similarly inapposite. In
Azure Ltd. v. I-Flow Corp. (2012) 207 Cal. App. 4th 60, one
business sued another for breach of fiduciary duty. (Id. at
pp. 63–64.) The lawsuit resulted in a California Supreme Court
decision bearing on the rights of all property owners whose
property has been wrongfully transferred to the state by another
private party. (Id. at p. 63.) Nevertheless, the Fourth District
found, the underlying litigation still involved a private dispute
and “merely advancing the state of the law does not transform a
private dispute over substantial economic losses into a section
1021.5 case in which fees may be awarded to attorneys for
serving the public interest as private attorneys general.” (Ibid.)
However, in denying fees, the Fourth District noted that the
unsuccessful party had “no institutional interest in the litigation”
and was not a “quasi-public agent in any sense” but instead
“merely sought to avoid paying significant damages . . . in this
particular case.” (Id. at pp. 68–69.) In other words, this was a
standard dispute among two private parties who “fought over
who would be left holding the bag for losses that had already
occurred.” (Id. at p. 68.) Consequently, the case has no bearing
on a suit involving public officials who sought to suppress an
important public record, thus adversely affecting the public
interest. (See id. at p. 69.)20
20 Save Our Heritage Organisation v. City of San Diego
(2017) 11 Cal.App.5th 154, is also inapt. There, the Fourth
District declined to impose fees on a private, nonprofit
organization that unsuccessfully challenged the City’s approval of
a development project. (Id. at pp. 157–158.) However, the court
limited its holding to the circumstances of the case and refused to
hold that “a court may never award 1021.5 attorney fees to a
project proponent because such an award would defeat section
28
Because we are convinced Joshua S. is not applicable here,
we hold the trial court’s determination to the contrary was an
abuse of discretion and that the Times is thus entitled to a fee
award under section 1021.5. We therefore reverse the trial
court’s order denying the Times fees under section 1021.5 and
remand the matter to the trial court with directions to award the
Times reasonable fees against the officers and/or the PPOA for its
work during all stages of this case, including the present appeal.
II. Government Code section 6259, subdivision (d)
A. STANDARD OF REVIEW
“California courts have long held that trial courts have
broad discretion in determining the amount of a reasonable
attorney’s fee award. This determination is necessarily ad hoc
and must be resolved on the particular circumstances of each
case.” (Meister v. Regents of University of California (1998) 67
Cal. App. 4th 437, 452.) In exercising its discretion, the trial court
may accordingly “consider all of the facts and the entire
procedural history of the case in setting the amount of a
reasonable attorney’s fee award.” (Ibid.) 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.’ ” (Blickman Turkus, LP v. MF Downtown
Sunnyvale, LLC (2008) 162 Cal. App. 4th 858, 894.)
The abuse of discretion standard includes a substantial
evidence component: “We defer to the trial court’s factual
findings so long as they are supported by substantial evidence,
and determine whether, under those facts, the court abused its
1021.5’s purpose of encouraging public interest litigation.” (Id. at
p. 160.)
29
discretion. If there is no evidence to support the court’s findings,
then an abuse of discretion has occurred.” (Tire Distributors, Inc.
v. Cobrae (2005) 132 Cal. App. 4th 538, 544 (Tire Distributors).)
A court’s ruling on the issue whether a plaintiff is a
prevailing party under Government Code section 6259,
subdivision (d)—the PRA—is a factual determination reviewed
under the substantial evidence standard. (Galbiso v. Orosi
Public Utility Dist. (2008) 167 Cal. App. 4th 1063, 1085 (Galbiso);
see Motorola Communication & Electronics, Inc. v. Department of
General Services (1997) 55 Cal. App. 4th 1340, 1351.) Numerous
courts have applied this review standard to the issue whether a
plaintiff’s lawsuit caused the production of public records. (See,
e.g., Motorola Communication, at p. 1351; see also Los Angeles
Times v. Alameda Corridor Transp. Authority (2001) 88
Cal. App. 4th 1381, 1391 (Los Angeles Times v. Alameda
Corridor).) Courts have recognized that this causation question
is an intensely factual and pragmatic one, frequently requiring
courts to go outside the merits of the precise underlying dispute
and focus on the condition that the fee claimant sought to change.
(Crawford v. Board of Education (1988) 200 Cal. App. 3d 1397,
1407.) An appellate court must defer to the trial court’s
determinations on the causation issue, unless there is no
evidence to support the trial court’s factual conclusion. (See Tire
Distributors, supra, 132 Cal.App.4th at p. 544.)
B. MERITS
1. Prevailing party determination
The trial court held that the Times could recover fees
against the City under the PRA for the work the Times
performed in affirmatively enforcing its PRA requests. However,
because the Times spent the bulk of its time defending against
30
the PPOA’s reverse-PRA suit, rather than affirmatively enforcing
its PRA requests against the City, the trial court found that the
Times was entitled to only a fraction of the fees it sought.
The PRA generally provides for inspection of public records
maintained by state and local agencies. (Pacific Merchant
Shipping Assn. v. Board of Pilot Commissioners (2015) 242
Cal. App. 4th 1043, 1046.) Such “access to information concerning
the conduct of the people’s business is a fundamental and
necessary right of every person in this state.” (Gov. Code, § 6250;
Filarsky v. Superior Court (2002) 28 Cal. 4th 419, 425–426
(Filarsky).) The PRA contains procedures to challenge a public
agency’s response to a records request, and provides that: “Any
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 PRA. (Gov. Code, § 6258.)
A plaintiff prevailing in litigation under the PRA is entitled
to reasonable attorney fees. (Gov. Code, § 6259, subd. (d).) This
fee award “is mandatory if the plaintiff prevails.” (Filarsky,
supra, 28 Cal.4th at p. 427.) The PRA’s fee award provision is
designed to encourage members of the public to seek judicial
enforcement of their right to inspect public records subject to
disclosure. (See Galbiso, supra, 167 Cal.App.4th at p. 1088.)
Litigation under the PRA is one of the rare instances where a
losing party may still be deemed a prevailing party entitled to an
attorney fee award. This is because the plaintiff has prevailed
within the meaning of the PRA when he or she files an action
that “results in defendant releasing a copy of a previously
withheld document.” (Belth v. Garamendi (1991) 232 Cal. App. 3d
896, 898 (Belth).)
31
Thus, a plaintiff need not achieve a favorable final
judgment to be a prevailing party in PRA litigation. A
defendant’s voluntary action in providing public records that is
induced by plaintiff’s lawsuit will still support an attorney fee
award on the rationale that the lawsuit “‘spurred defendant to
act or was a catalyst speeding defendant’s response.’ ” (Belth,
supra, 232 Cal.App.3d at p. 901.) Additionally, if a plaintiff
succeeds in obtaining only partial relief, the plaintiff is entitled to
attorney fees unless the plaintiff obtains results “that are so
minimal or insignificant as to justify a finding that the plaintiff
did not [in fact] prevail.” (Los Angeles Times v. Alameda
Corridor, supra, 88 Cal.App.4th at pp. 1391–1392.)
Here, the trial court held that the Times was the prevailing
party against the City only for the narrow matter of fees incurred
during appellate mandamus review and subsequent trial court
hearings regarding additional unredactions, and could recover
reasonable attorney fees only as to this particular time period.21
In finding that the Times prevailed against the City for this
limited period only, the trial court determined that the City “took
the correct position at trial.” According to the trial court, the City
adopted the appropriate legal standard regarding disclosure of
21 The trial court then directed the Times and the City to
meet and confer and file supplemental briefs to determine the
amount of that award. The Times’ supplemental brief expressly
stated the Times was submitting its request solely in compliance
with the court’s order and reserved its right to appeal the order.
The Times’ notice of appeal also stated it was appealing the
April 14th order, the May 17th order and “all other appealable
rulings entered or embodies within those Orders.” Thus, any
claim that the Times has waived its right to appeal any portion of
the trial court’s orders is incorrect.
32
the OIR report and maintained its position on mandamus review,
except it opposed additional unredactions for procedural reasons
when the issue was raised by the Court of Appeal.
According to the Times, courts have consistently held that a
requester who obtains a previously-withheld record has prevailed
under the PRA—and is thus entitled to a fee award—even if the
court determined that other records, or portions of records, were
properly withheld. For example, in Los Angeles Times v.
Alameda Corridor, supra, 88 Cal. App. 4th 1381, the trial court
held that the Times was not the prevailing party, principally
because it did not obtain all the documents it sought. The Court
of Appeal reversed, noting that cases denying attorney fees to a
plaintiff under the PRA have done so because substantial
evidence supported a finding that the litigation did not cause the
defendant to disclose any of the documents ultimately made
available. (Id. at p. 1391.) “In short, if a public record is
disclosed only because a plaintiff filed a suit to obtain it, the
plaintiff has prevailed.” (Ibid.)
Notably, the Court of Appeal observed, “[n]othing in any
case decided under the [PRA] supports the contention that a
plaintiff who obtains only one of two documents sought has not
prevailed within the meaning of the act. Other cases, without
discussion, have awarded fees where disclosure is ordered for
fewer than all of the documents sought.” (Los Angeles Times v.
Alameda Corridor, supra, 88 Cal.App.4th at p. 1391.) The Court
of Appeal also flatly rejected the defendant’s argument that it
should look to other statutes for the definition of “prevailing
party,” such as the costs statute (Code Civ. Proc., § 1032) and
case law interpreting the Federal Freedom of Information Act
(FOIA). (Id. at p. 1391, fn. 9.) Under FOIA, the court has
33
discretion to withhold fees. Even a plaintiff who has
“ ‘substantially prevailed’ ” and is thus eligible for fees will
receive an award only after the court balances a number of
factors, including among others the reasonableness of the
agency’s withholding and the benefit to the public. (Ibid.) “That
is not the standard under the [PRA],” the Court of Appeal
observed. (Id. at p. 1392, italics added.)
The Court of Appeal acknowledged the possibility that in
some cases a plaintiff might obtain documents that are so
minimal or insignificant as to justify a finding that it did not
prevail. Absent such circumstances, however, fees and costs
should be awarded. To do otherwise would be inconsistent with
the express purpose of the statute, “to broaden public access to
public records,” and “would chill efforts to enforce the public right
to information.” (Los Angeles Times v. Alameda Corridor, supra,
88 Cal.App.4th at p. 1392.)
In Los Angeles Times v. Alameda Corridor, supra, 88
Cal. App. 4th 1383, however, it was undisputed that the sought-
after document was disclosed only because the Times sued to
obtain it. (See id. at p. 1391.) Here, however, the Times did not
seek to compel release of the OIR report without the City’s
proposed redactions until September 16, 2014—approximately
two weeks after the Slaughter parties first requested the report
under the PRA. (See Pasadena Police, supra, 240 Cal.App.4th at
p. 277.) While the Times’ intervention undoubtedly led to the
subsequent disclosure of additional information contained within
the report, we cannot say that the report itself was disclosed only
because the Times sued to obtain it. Arguably, it was the
Slaughter parties who initially spurred the City to act or who
34
served as a catalyst speeding the City’s response. (See Belth,
supra, 232 Cal.App.3d at p. 901.)
Nevertheless, as the Times notes, the trial court’s
conclusion that the City took the “correct position at trial” is in
fact contrary to our prior opinion. As we explained, “a number of
redactions proposed by the City and largely adopted by the trial
court protected not privileged information relating to the officers,
but information or findings critiquing conduct by or the policies
and practice of the PPD itself.” (Pasadena Police, supra, 240
Cal.App.4th at p. 298.) Redacting this material, we found, would
have subverted the public’s right to be kept fully informed of
police activities, which is necessary to maintain trust in a police
department. (See ibid.) The inappropriately redacted material
“include[d] analyses of the PPD’s administrative investigation
and departmental policies, descriptions of the PPD’s
responsiveness” (or lack thereof), and the OIR’s
recommendations, “none of which [was] privileged under the
PRA.” (Id. at p. 274.)
“However, a PRA plaintiff does not qualify as a prevailing
party merely because the defendant disclosed records sometime
after the PRA action was filed.” (Sukumar v. City of San Diego
(2017) 14 Cal.App.5th 451, 464 (Sukumar).) “There must be more
than a mere temporal connection between the filing of litigation
to compel production of records under the PRA and the
production of those records. The litigation must have been the
motivating factor for the production of documents. [Citations.]
The key is whether there is a substantial causal relationship
between the lawsuit and the delivery of the information.” (Ibid.)
Although the Times cites Sukumar in support of its
argument here, the case is distinguishable. In Sukumar, supra,
35
14 Cal.App.5th 451, a single requester sought records from the
city. After receiving several batches of records, Sukumar
continued to ask the city if additional material would be
forthcoming. Although the city repeatedly assured Sukumar that
it had fully responded to his records request, it subsequently
produced an additional five photographs and 146 pages of emails
as a result of court-ordered depositions in the case. (See id. at
pp. 454–461.) The Fourth District reversed the trial court’s
finding that Sukumar was not a prevailing party under
Government Code section 6259, subdivision (d), holding that the
litigation led to the release of additional responsive and material
documents. (Id. at pp. 464–465.) “[B]ut for Sukumar’s persistent
demand for discovery and the court-ordered depositions that
resulted from those efforts, the City would not have produced any
of the above-mentioned responsive documents.” (Id. at p. 465.)
The Fourth District remanded the case so the trial court could
determine the amount of reasonable attorney fees. (Id. at p. 468.)
Thus, we have no published record as to whether Sukumar
received the full amount of fees he sought. More importantly,
Sukumar was the only requester in that case. Consequently,
when determining causation, there was no need to establish
which action by Sukumar prompted the city’s compliance—it was
enough that the litigation itself resulted in the release of records
that would not otherwise have been released. (Id. at p. 464.)
Here, there is clearly a “substantial causal relationship”
between the Times’ intervention and the City’s release of an
additional 126 lines of the OIR report—about five of the 14
previously redacted pages. (Sukumar, supra, 14 Cal.App.5th at
p. 464.) But there is no such relationship between the Times’
intervention and the City’s initial decision to release (an overly
36
redacted version) of the report. Nor can there be, given the
chronology of this case.
The Times is correct that the “unredaction issue” is simply
another way of characterizing the single overarching question in
the entire litigation—namely, what portions of the OIR report, if
any, were exempt from disclosure under the PRA given the scope
of the Pitchess statutes? The Times focused on this issue
throughout the litigation, both in enforcing its own PRA petition
against the City and in opposing the PPOA’s reverse-PRA action.
We agree that the Times’ advocacy helped shape our prior
opinion. But the overlapping nature of the Times’ substantive
legal arguments against both the City and the PPOA does not aid
its argument here. The PRA only allows for recovery from the
City.22 Thus, the trial court was tasked with determining what
portion of the Times’ work was spent battling that entity alone.
The trial court found that the Times was the prevailing party
against the City only for the narrow matter of fees incurred
during appellate mandamus review and the subsequent hearings
over additional unredactions. If there is no evidence to support a
22 The Times’ reliance on Thompson Pacific Const., Inc. v.
City of Sunnyvale (2007) 155 Cal. App. 4th 525 is misplaced.
There, the Sixth District held that allocation of fees is not
required when the issues are “ ‘so interrelated that it would have
been impossible to separate them into claims for which attorney
fees are properly awarded and claims for which they are not.’ ”
(Id. at p. 555.) But Thompson involved multiple issues, not
multiple defendants. Although the plaintiff’s legal work could
not be so easily parsed in Thompson, the same cannot be said
here. (See Sweeney v. McClaran (1976) 58 Cal. App. 3d 824, 830
[fees for work related to interpleader claim clearly separable
temporally from fees incurred before claim was added].)
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trial court’s findings, then an abuse of discretion has occurred.
(Tire Distributors, supra, 132 Cal.App.4th at p. 544.) We cannot
say an abuse of discretion occurred here.
2. Award reduction
Pursuant to the trial court’s order, the Times identified the
fees it had incurred during appellate mandamus review as well
as the subsequent trial court hearings on additional
unredactions—less any fees incurred for duplicative work by
counsel for the Times and the Slaughter parties. The Times
submitted records indicating that its counsel billed $50,163 for
time spent addressing the unredaction issue in the Court of
Appeal and billed $10,781 for the post-remand unredaction
issues. The Times also sought an additional $5,760 in fees for the
court-ordered meet and confer and supplemental briefing.
The trial court noted that “the Slaughter [parties] raised
the unredaction issue and both the L.A. Times and Slaughter
[parties] filed separate letter briefs, and separately appeared at
oral arguments, overlapping on multiple arguments.” Indeed, the
Times conceded that at least two arguments were duplicative.
Thus, the trial court held, a 50 percent reduction for duplicative
attorney efforts was appropriate.23
The Times contends that the trial court erred in reducing
its fee award based on “an artificial distinction” between
arguments by the Times in opposing PPOA’s reverse-PRA action
and arguments made to affirmatively enforce the PRA requests it
had lodged with the City. As discussed above, we do not believe
the trial court erred in this respect. The Times could not rely on
23 The trial court also declined to award the Times
additional fees for its supplemental briefing during the meet and
confer process.
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the City to oppose the PPOA’s efforts to bar access to the OIR
report. As a result, the Times unavoidably incurred fees against
both entities. But while this circumstance justifies a fee award
under section 1021.5 and the PRA, it has nothing to do with the
duplicative efforts by the Times and the Slaughter parties.
Admittedly, the Times could not more precisely tailor its
arguments during the proceedings, which might have prevented
potentially duplicative efforts, given that the Times did not have
access to the withheld portions of the OIR report. (See Pasadena
Police, supra, 240 Cal.App.4th at p. 296.) However, based on the
broad discretion afforded trial courts under these circumstances,
(see, e.g., Graciano v. Robinson Ford Sales, Inc. (2006) 144
Cal. App. 4th 140, 161), we cannot say that the trial court abused
its discretion in its fee allocation.
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DISPOSITION
The order is affirmed in part and reversed in part with
directions. We affirm the trial court’s order awarding limited
fees under the PRA (Gov. Code, § 6259, subd. (d)). We reverse
the trial court’s order awarding no fees under the private
attorney general statute (Code Civ. Proc., § 1021.5). The trial
court is directed to award the Los Angeles Times
Communications, LLC, reasonable fees under Code of Civil
Procedure section 1021.5 against the officers Griffin and Newlen
and/or the Pasadena Police Officers Association. The parties are
to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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