Valenti v. City of San Diego ( 2023 )

Filed 7/18/23; certified for publication 8/8/23 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MATT VALENTI, D080133
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2017-
00044069-CU-MC-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Affirmed.
Briggs Law Corporation, Cory J. Briggs and Nora Pasin for Plaintiff
and Appellant.
Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City
Attorney, and Tyler L. Krentz, Deputy City Attorney, for Defendant and
Respondent.
INTRODUCTION
This is an action under the California Public Records Act (PRA)1 filed
by Matt Valenti against the City of San Diego (City). Valenti appeals an
order denying his postjudgment motion for prevailing party attorney fees
against the City and granting the City’s motion to strike his cost
memorandum. He contends there is not sufficient evidence to support the
trial court’s finding that his lawsuit was not a “sufficiently ‘substantial
cause’ ” of the City’s production of public records to merit an award of fees
and costs. We conclude the record does contain substantial evidence
supporting the court’s finding, so we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Valenti’s Requests for Public Records from the City
On July 28, 2017, Valenti submitted a request for public records to the
City (first request) using the City’s online web portal for public records
requests. The City processed such requests using a document management
system called NextRequest.
Valenti requested: “All records between January 1, 2016 and July 28,
2017 regarding: [¶] The San Diego Junior Theatre [(Junior Theatre)]”;
“Deputy City Attorney Catherine Morrison and [the Junior Theatre]”;
1 The PRA was previously codified as Government Code section 6250 et
seq., and was recently recodified and reorganized as Government Code
section 7921.000 et seq., without substantive change. (Stats. 2021, ch. 614,
§ 2; see Gov. Code § 7920.100 [stating nothing in the recodification of the
PRA “is intended to substantively change the law” and the “act is intended to
be entirely nonsubstantive in effect”].) Valenti brought his action under the
PRA as it was formerly codified. We refer to the relevant provisions of the
PRA throughout this opinion using their current numbers. Further statutory
references are to the Government Code unless otherwise stated.
2
“Deputy City Attorney Joan Dawson and [the Junior Theatre]”; any of seven
other individuals; as well as two attorneys and their respective law firms.
The people named in this request were members of the board of the Junior
Theatre.
Valenti submitted his request after a drama teacher from the Junior
Theatre was sentenced to prison for committing two counts of acts of sexual
misconduct with an underaged theater student. He alleged in his subsequent
lawsuit that he was attempting to “find out what officials knew and when
they knew it.”
The City processed Valenti’s first request as NextRequest No. 17-1985.
On September 14, 2017, the City produced some responsive public records
but withheld others as privileged. The same day, the City closed the request
and sent Valenti an electronic message stating, “There are no additional
responsive documents.” That evening, Valenti responded with a lengthy
message objecting to the City’s decision to close the request and asserting,
“[T]here are numerous documents known to me . . . which you have failed to
produce[.]” On September 15, a City staff member sent Valenti a response
that stated, in part, “Thank you for your email. If you are aware of other
records that are responsive, please let us know what they are.” No response
from Valenti to the staff member’s message appears in the documentation
associated with the City’s processing of NextRequest No. 17-1985.
On September 19, 2017, Valenti submitted a second public records
request to the City (second request) through the online web portal. He
requested 13 categories of records, including: agreements between the City
and the Junior Theatre; incidents of suspected child abuse; employee
information; policies and procedures; board records; legal settlements; public
meeting recordings; and reports made by the Junior Theatre to the police.
3
The date range associated with most of these requests was January 1, 2012 to
September 19, 2017, a wider date range than the date range associated with
his first request.
The City processed Valenti’s second request as NextRequest No. 17-
2567. It responded by providing responsive records on a rolling basis as
permitted by the PRA (see § 7922.535), while withholding those records it
claimed were exempt from disclosure.
II.
Valenti’s Lawsuit Against the City
On November 18, 2017, before the City closed its response to the second
request, Valenti filed the instant lawsuit. Valenti alleged the City had closed
its file on his first and second requests without disclosing all responsive
public records that were not exempt from disclosure. In a first cause of action
for “Violation of Open Government Laws,” he asserted the City had thereby
violated his right of access to public information. (Boldface omitted.) He
sought a writ of mandate and an injunction ordering the City to comply with
the PRA by fully responding to his first and second requests. In a second
cause of action for declaratory relief, he asked the court to issue an order
declaring that the City’s failure to disclose all public records responsive to his
first and second requests violated, among other provisions, the PRA.
In September and October 2018, the City produced 4,006 pages of
documents in response to discovery.
In July 2019, the trial court issued a minute order granting in part the
Junior Theatre’s motion to quash a subpoena served on it by Valenti. Within
this order, the court rejected an argument advanced by Valenti that a
funding provision within a contract between the City and the Junior Theatre
“make[s] the theatre’s records ‘public records.’ ”
4
III.
The Bench Trial
In February 2021, the trial court held a bench trial to resolve the
parties’ remaining disputes over records the City either had not produced or
had produced with redactions. In a final statement of decision, the court
ruled the City’s redactions and withholding of records were legally justified.
The court also found, among other things, that Valenti “filed the instant
lawsuit[ ] before the City officially closed NextRequest No. 17-2567 [the
second request],” and that “[d]iscovery resulted in the production of records
beyond those sought by the First Request and Second Request.” After ruling
in favor of the City on Valenti’s first cause of action, the court found that
Valenti’s cause of action for declaratory relief was moot as “[a]ll matters have
been decided under the [ ]PRA claim.” In August, the trial court entered
judgment in favor of the City and against Valenti. Valenti did not seek
review of the judgment.
IV.
Valenti’s Motion for Attorney’s Fees and Litigation Costs as the Prevailing
Party in the PRA Litigation
Valenti subsequently filed a memorandum of costs in which he sought
reimbursement of $4,114.67 in litigation costs. He also filed a motion
requesting an award of $250,000 in attorney fees, consisting of $200,000 in
incurred fees enhanced by a multiplier of 1.25.2 Relying on Sukumar v. City
of San Diego (2017) 14 Cal.App.5th 451 (Sukumar) and San Diegans for Open
Government v. City of San Diego (2016) 247 Cal.App.4th 1306 (San Diegans
2 When Valenti filed his motion, the provision of the PRA that authorized
attorney’s fees and costs was section 6259. This provision, as recently
renumbered, is now section 7923.115.
5
for Open Government), superseded by statute on other grounds as stated in In
re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 128,
Valenti argued that although he had not obtained a judgment against the
City, his lawsuit had caused the City to produce two categories of records it
would not otherwise have produced in response to his original requests,
making him a prevailing party entitled to an award of attorney fees.
The first category of records consisted of 10 pages of e-mails3 that
Valenti claimed were responsive to his first request because they fell within
the date range of January 1, 2016 and July 28, 2017, and they “mentioned”
the Junior Theatre and/or two of the individuals, and one of the law firms,
specified in the first request. Valenti asserted the e-mails had been produced
by the City in September and October of 2018, “in response to discovery [he]
propounded[.]” He claimed his lawsuit caused the City to disclose the e-mails
because the production occurred at least “a year after [the City had] closed its
file for the First Request” and was made in response to his discovery
requests.
3 These e-mails were submitted as “Exhibit ‘I’ ” to Valenti’s fee motion.
They were Bates-numbered COSDPROD-000018, COSDPROD-000249,
COSDPROD-000250, COSDPROD-000251, COSDPROD-001249,
COSDPROD-001250, COSDPROD-002781, COSDPROD-002782,
COSDPROD-002783, and COSDPROD-003293. These 10 pages consisted of
five e-mail chains with a number of different recipients and covering various
topics. Four of the e-mail chains mentioned the Junior Theatre. One of them
included Deputy City Attorney Morrison as a recipient, but it did not also
“mention” the Junior Theatre as required to meet the parameters of the first
request. (In his opening brief on appeal, after listing the foregoing 10 pages
of Bates-numbered e-mails, Valenti refers to these documents as “seven pages
of records[.]” (Italics added.) We presume he means to say “10” pages of
e-mails rather than “seven.”)
6
The second category of records consisted of “responsive public records”
that Valenti said he had received “directly from [the Junior Theatre] via
subpoena[.]” Valenti argued the City’s contract with the Junior Theatre gave
the City constructive possession over the theater’s records, and that the City
therefore should have produced the theater’s records in response to his PRA
requests. He further argued that because he instead “had to obtain
responsive public records directly from [the Junior Theatre] via subpoena,” he
was a prevailing party entitled to an award of attorney’s fees.
Valenti’s motion was supported in part by the declaration of his
counsel, Cory Briggs. Briggs averred that the City had produced 4,006 pages
of documents in September and October of 2018. The 10 pages of e-mails
identified in the motion were “documents produced in response to discovery
that are responsive to [Valenti’s] first request but that were not disclosed
prior to the filing of this lawsuit.” Although the e-mails themselves were
attached to Briggs’s declaration, the discovery requests that assertedly
prompted the City to produce them were not. Briggs also averred that he
“had to obtain responsive public records from [the Junior Theatre], which
resisted the subpoena and triggered lots of law and motion, because the City
did not contact [the theater] for responsive records before or after this lawsuit
was filed.” However, he did not describe the subpoena or the records any
further, and neither the subpoena nor the records produced by the theater
were attached to Briggs’s declaration or otherwise submitted in support of
the motion.
7
V.
The City’s Opposition to Valenti’s Fee Motion and Its Motion to Strike or Tax
Valenti’s Cost Memorandum
The City opposed Valenti’s fee motion and moved to strike or tax his
costs. The City claimed Valenti was not entitled to fees or costs because he
had failed to demonstrate that his lawsuit caused the City to produce public
records it would not otherwise have produced in response to his PRA
requests.
With regard to the first category of records Valenti claimed the City
produced as a result of his lawsuit⎯the 10 pages of e-mails⎯the City argued
it was not enough for Valenti to simply show they were produced after he
filed his complaint. Rather, he had to show the production was substantially
motivated by the litigation. Valenti failed to meet this burden, the City
argued, because he filed his suit prematurely. At the time Valenti filed his
complaint, he “had yet to inform the City which records he believed were . . .
wrongfully withheld under his [f]irst [r]equest,” and the City “was still
locating records responsive to the [s]econd [r]equest.” The City further
argued that if Valenti had cooperated with the City to refine his requests
instead of “rushing to sue,” he would have received the e-mails in the
ordinary course. After filing his complaint, Valenti “failed to obtain an order
directing the City to produce even one withheld document.” Given these
facts, the City argued, the necessary causal link between Valenti’s litigation
and its production of the e-mails was missing.4
4 In addition to challenging whether the litigation caused the City to
turn over the 10 pages of e-mails, the City also argued Valenti could not be
said to have prevailed in the litigation on the basis of a production as
“minimal” as the e-mails.
8
As for the second category of records Valenti claimed the lawsuit
caused the City to produce⎯documents Valenti received from the Junior
Theatre in response to a subpoena⎯the City argued the trial court had
already ruled Valenti’s theory of constructive possession lacked merit when it
granted in part the Junior Theatre’s motion to quash the subpoena. As a
result, Valenti had no remaining basis for claiming the City was obligated to
produce these documents in response to his PRA requests.
VI.
The Trial Court’s Ruling Denying Valenti’s Fee Motion and Granting the
City’s Motion to Strike or Tax Costs
In a February 2022 minute order, the trial court denied Valenti’s
motion for attorney fees and granted the City’s motion to strike or tax
Valenti’s cost memorandum. The court explained that under Sukumar,
supra, 14 Cal.App.5th at page 464, a plaintiff claiming to have prevailed in
PRA litigation must show “a substantial causal relationship between the
lawsuit and the delivery of the information.” It further explained that proof
of a mere temporal connection between the filing of the litigation and the
production of records is not a sufficient showing.
The trial court ruled that Valenti failed to demonstrate a “sufficiently
‘substantial causal relationship’ ” between his filing of the complaint and the
City’s production of records. It found the cases Valenti relied on to be
distinguishable. It explained that in Sukumar, the defendant had repeatedly
represented to the plaintiff as well as the court that it had produced all
responsive records and nothing more would be forthcoming. It was only after
the court ordered certain depositions that the defendant produced additional,
responsive public records. And in San Diegans for Open Government, the
9
plaintiff filed its action only after confirming the defendant would not
produce any responsive public records at all.
Here, by contrast, the trial court explained, the City made no such
repeated representations. Rather, it sought to work with Valenti after he
objected to closing the first request. It was Valenti who “did not seek to
clarify or work with the City on his first request” and instead “submitted a
second more comprehensive request.” He then filed his lawsuit without
waiting for the City to complete its search. The court further explained that
unlike Sukumar, “[n]o court[-]ordered discovery led to the production of the
documents [Valenti] claim[ed] should have been produced in response to the
original requests.” For these reasons, the required causal relationship
between the litigation and the City’s production was missing.
DISCUSSION
Relying once again on Sukumar and San Diegans for Open
Government, Valenti claims the trial court erred when it denied his motion
for attorney fees and granted the City’s motion to strike his memorandum of
costs. Here, we conclude Valenti fails to establish an abuse of discretion. As
a result, we affirm the court’s order.
I.
Relevant Legal Principles
A. The PRA
The PRA was enacted to “increas[e] freedom of information by giving
members of the public access to information in the possession of public
agencies.” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) It
provides that “access to information concerning the conduct of the people’s
business is a fundamental and necessary right of every person in this state.”
(§ 7921.000; Riskin v. Downtown Los Angeles Property Owners Assn. (2022)
10
76 Cal.App.5th 438, 444 (Riskin).) The PRA also requires courts to award
costs and reasonable attorney’s fees “[i]f the requester prevails in litigation
filed pursuant to [the PRA].” (§ 7923.115.) This encourages “members of the
public to seek judicial enforcement of their right to inspect public records
subject to disclosure.” (Filarsky, at p. 427.)
“In PRA litigation, the plaintiff may be a prevailing party even
though the court did not enter judgment in his or her favor.” (Sukumar,
supra, 14 Cal.App.5th at p. 463.) A plaintiff on the losing side of a judgment
may still be eligible for fees under a “catalyst theory.” (Id. at p. 464.) “ ‘ “A
defendant’s voluntary action 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.”
[Citation.] . . . “If plaintiff's lawsuit ‘induced’ defendant’s response or was
[a] ‘material factor’ or ‘contributed in a significant way’ to the result
achieved then plaintiff has shown the necessary causal connection.” ’ ” (Id.
at p. 463; see also San Diegans for Open Government, supra, 247 Cal.App.4th
at pp. 1321–1322.) “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.’ ” (Sukumar, at p. 464.)
“[R]ecovery under the catalyst theory [thus] turns on causation. The
question whether the plaintiff prevailed, in the absence of a final judgment
in his or her favor, is really a question of causation—the litigation must
have resulted in the release of records that would not otherwise have been
released.” (Sukumar, supra, 14 Cal.App.5th at p. 464.)
11
Under the catalyst theory, however, correlation does not equal
causation. As one court stated, “[m]ore than post hoc, ergo propter hoc[5]
must be demonstrated.” (Motorola Communication & Electronics, Inc. v.
Department of General Services (1997) 55 Cal.App.4th 1340, 1345.) “[A] PRA
plaintiff does not qualify as a prevailing party merely because the defendant
disclosed records sometime after the PRA action was filed. 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.” (Sukumar, supra, 14 Cal.App.5th at p. 464.) Rather, “[t]he
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.)
In Sukumar, this court reversed a trial court order denying a plaintiff’s
motion for attorney fees under the PRA. (Sukumar, supra, 14 Cal.App.5th at
pp. 464–468.) The plaintiff had requested public records from the City of San
Diego after being charged with municipal code violations stemming from
neighbors’ complaints about his use of his property. (Id. at pp. 454–457.)
The City responded with a letter stating it would make responsive,
nonexempt records available for the plaintiff’s review, and that this was its
“final response” to the plaintiff’s request. (Id. at p. 457, italics omitted.)
When the plaintiff’s attorney sent an e-mail asking the City to confirm the
scope of its search, the City responded that City staff had searched “ ‘as
broadly and as thoroughly as possible’ ” and “ ‘no records [were] being
withheld entirely.’ ” (Ibid., italics omitted.) At an in-person meeting between
5 After this, therefore resulting from it. (Black’s Law Dict. (11th ed.
2019) p. 1412, col. 1.)
12
the plaintiff’s attorney and a City staff member, the staff member failed to
tell the attorney that the City’s search was ongoing and more responsive
documents would be produced at a later date. (Id. at pp. 457–458 & fn. 2.)
After several weeks of silence from the City, the plaintiff filed a petition
for writ of mandate under the PRA. (Sukumar, supra, 14 Cal.App.5th at
p. 458.) Within six months of the filing (specifically, in March 2016), after
producing several hundred more responsive documents and e-mails, the City
claimed it had produced all remaining documents of which it was aware. (Id.
at pp. 458–459.) However, shortly after making this statement, the City
produced 105 more responsive e-mails. (Id. at p. 459.)
In the meantime, the plaintiff served the City with written discovery to
which the City objected, requiring the plaintiff to file motions to compel.
(Sukumar, supra, 14 Cal.App.5th at p. 459.) At the motion to compel
hearing, the City’s attorney told the trial court the City had already
“ ‘produced everything.’ ” (Ibid., italics omitted.) The attorney even offered to
provide a verification to that effect. (Ibid.) Rather than accept this offer, the
court ordered the City to produce witnesses who could testify that the City
had indeed produced all responsive public records. (Id. at p. 460.) In
anticipation of the ensuing depositions, the City renewed its search and
ended up locating and producing three more sets of documents responsive to
the plaintiff’s original PRA request. (Id. at pp. 460–461.)
The trial court ultimately denied the plaintiff’s writ petition after
concluding all responsive documents had ultimately been produced and the
delay in production was reasonable. (Sukumar, supra, 14 Cal.App.5th at
p. 461.) The plaintiff then filed a motion for attorney fees, asserting the
litigation was the catalyst for the City’s production of a substantial amount of
responsive public documents. (Id. at pp. 461–462.) The trial court denied the
13
motion, finding in part that the City “ ‘was not motivated by th[e] lawsuit to
produce the documents.’ ” (Id. at p. 462.)
This court reversed. We held the trial court’s finding that the City was
not motivated by the lawsuit to produce responsive and material documents
was not supported by substantial evidence. (Sukumar, supra, 14 Cal.App.5th
at pp. 464–465.) We reasoned that in March 2016, the City “unequivocally
claimed it had produced every responsive nonexempt document,” and its
attorney told the court it “had produced ‘everything.’ ” (Ibid.) The City’s
attorney “even offered to say so under penalty of perjury, volunteering ‘to
provide a verification that we’ve produced everything’ if the court desired.”
(Ibid.) We concluded: “In the face of the City’s unequivocal assertion in
March 2016 that it had already produced everything, the conclusion seems
inescapable that but for [the plaintiff’s] persistent demand for discovery
and the court-ordered depositions that resulted from those efforts, the City
would not have produced any of the [subsequently-produced] responsive
documents.” (Id. at p. 465.)
In San Diegans for Open Government, supra, 247 Cal.App.4th 1306, the
plaintiff submitted a PRA request to the City of San Diego seeking all e-mails
pertaining to official city business sent to or from the personal e-mail account
of then San Diego City Attorney Jan Goldsmith. (Id. at p. 1320.) The City
refused to produce any e-mail communications, stating the e-mails in
Goldsmith’s personal account were not retained by the City and did not
qualify as public records. (Ibid.)
After confirming the City would not produce any responsive records,
the plaintiff filed a PRA action. (San Diegans for Open Government, supra,
247 Cal.App.4th at p. 1321.) The City claimed that after reading the
complaint, it realized the plaintiff was seeking e-mails stored in the City’s
14
own computer system. It then conducted a search and discovered over 900
pages of e-mails. (Ibid.)
The trial court entered judgment in favor of the plaintiff, reasoning the
City’s failure to produce records in response to the original PRA request was
attributable to the City’s failure to ask the plaintiff for clarification.6 (San
Diegans for Open Government, supra, 247 Cal.App.4th at p. 1321.) The court
also granted the plaintiff’s request for attorney’s fees, “finding City disclosed
public records as a result of the action and could have avoided litigation had
it not improperly narrowed the request, but instead sought clarification.”
(Ibid.)
On appeal by the City, this court affirmed the fee award. We noted
that the PRA defines “ ‘ “[p]ublic records” ’ ” to include writings “ ‘retained by
any state or local agency.’ ” (San Diegans for Open Government, supra, 247
Cal.App.4th at p. 1321.) We further noted that the relevant standard of
review required us to “accept the trial court’s . . . choice of possible reasonable
inferences that can be drawn from the evidence.” (Id. at p. 1322.) We
reasoned that in response to plaintiff’s request, the City “claimed it did not
6 A third party subsequently petitioned this court for a writ of mandate
on the ground the e-mails sought by the plaintiff were privileged. (See
League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976,
981–982.) We granted the petition and issued a writ of mandate directing the
trial court to vacate its order requiring disclosure of the e-mails and to review
all e-mails in camera to determine whether they were exempted from
disclosure by the attorney-client privilege or attorney work product doctrine.
(Id. at p. 995.) It appears that following remand, after considering the
privilege claims, the trial court ordered production of only one e-mail. (See
San Diegans for Open Government, supra, 247 Cal.App.4th at p. 1321 [noting
the City’s argument that “after the trial court ruled on its claimed privilege,
it produced only one insignificant e-mail with the fate of other e-mails at
issue in the prior action still undecided”].)
15
retain the requested documents without verifying the veracity of this
statement.” (Ibid.) We found this evidence sufficient to support inferences
that the City improperly narrowed the PRA request, and that “the filing of
the action motivated City to actually look for and produce the . . . e-mails.”
(Ibid.) As a result, we held that the trial court did not abuse its discretion
when it found the plaintiff to be the prevailing party in the action.
B. Standard of Review
The abuse of discretion standard of review applies to a ruling on a
motion for attorney’s fees (Riskin, supra, 76 Cal.App.5th at p. 445) as well
as a motion to tax costs (Berkeley Cement, Inc. v. Regents of University of
California (2019) 30 Cal.App.5th 1133, 1139). Under this standard of
review, appellate courts will disturb a trial court’s ruling only if “ ‘ “a clear
case of abuse is shown[.]” ’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
The question on appeal is whether the challenged ruling “ ‘transgresses
the confines of the applicable principles of law[.]’ ” (Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th 359, 393.)
A trial court’s decision “ ‘ “ ‘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.’ ” ’ ” (Riskin, at p. 445.)
Whether a PRA action caused a government entity to produce public
records so as to support recovery of fees and costs under a catalyst theory
is a factual issue reviewed for substantial evidence. (Pasadena Police
Officers Assn. v. City of Pasadena (2018) 22 Cal.App.5th 147, 167
(Pasadena Police Officers Assn.).) “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.” (Ibid.) “ ‘The burden is on the
16
party complaining to establish an abuse of discretion[.]’ ” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 566.)
II.
Valenti Fails to Establish That the City’s Production in Response to Discovery
of 10 Pages of E-mails Responsive to His First Request Compels the
Conclusion That He Prevailed in the Litigation
Valenti first challenges the trial court’s ruling on the ground that the
City’s production of the 10 pages of e-mails in response to his discovery
requests during the litigation were sufficient to establish a substantial causal
relationship between his lawsuit and the delivery of the records. His
arguments on appeal are almost indistinguishable from the arguments he
advanced in the trial court. He asserts that his first request “was deemed
closed by the City prior to the filing of [his] lawsuit.” In September and
October 2018, the City produced 10 pages of e-mails7 that “existed pre-
lawsuit but were not disclosed to [Valenti] by the City except in response to
discovery.” (Italics and boldface omitted.) “Thus,” he concludes, “had it not
been for [his] lawsuit, those records would never have been produced by the
City.” He suggests that the facts of this case are like those of Sukumar and
San Diegans for Open Government and compel reversal of the order denying
his motion for fees and granting the City’s motion to strike his cost
memorandum.
The City responds that Valenti is merely relitigating the original
factual issue on appeal when his real burden is to show there is no
substantial evidence in the record to support the trial court’s finding that he
failed to demonstrate “a sufficiently ‘substantial causal relationship between
7 See footnote 3, ante.
17
the lawsuit and the delivery of the information.’ ” The City further contends
Valenti cannot meet his appellate burden because substantial evidence in the
record supports the trial court’s findings that Valenti filed his suit
prematurely without working with the City or waiting for the City to
complete its search. It argues Sukumar and San Diegans for Open
Government remain distinguishable for the same reasons identified by the
trial court and do not support reversal of the court’s order.
We agree with the City. Under the standard of review that governs
this appeal, we “defer to the trial court’s determinations on the causation
issue, unless there is no evidence to support the trial court’s factual
conclusion.” (Pasadena Police Officers Assn., supra, 22 Cal.App.5th at
p. 167; see also Shaw v. City of Santa Cruz (2008) 170 Cal.App.4th 229,
279 [stating that when the trier of fact “has expressly or implicitly
concluded that the party with the burden of proof failed to carry that
burden and that party appeals,” the question on appeal becomes “whether
the evidence compels a finding in favor of the appellant as a matter of
law”].)
Valenti, as the appealing party, therefore bears the heavy burden of
establishing that there is an absence of evidence in the record to support
the trial court’s ruling. Rather than take on this burden, he merely
reargues his trial court motion. This is not a strategy that can succeed on
appeal, because the question this court must answer is different from the
question that was presented to the trial court. We must determine not
whether there is evidence in the record supporting Valenti’s request for
fees, but whether there is an absence of evidence supporting the trial
court’s rejection of the fee request. (See In re Marriage of Rothrock (2008)
159 Cal.App.4th 223, 230 [“The showing on appeal is insufficient if it
18
presents a state of facts that affords only an opportunity for a difference of
opinion.”].)
Moreover, we agree with the City that substantial evidence
supported the trial court’s conclusion that Valenti failed to prove that his
litigation was a sufficiently substantial cause of the City’s production of
records responsive to the first request to warrant a determination that he
had prevailed in the litigation. Under Sukumar, determining whether a
particular action was the cause of a government entity’s decision to
produce responsive public records is a matter of determining whether the
agency would not have produced the records “but for” the action. (See
Sukumar, supra, 14 Cal.App.5th at p. 465.) “[A] mere temporal connection
between the filing of litigation to compel production of records under the PRA
and the production of those records” does not suffice. (Id. at p. 464.)
Here, the trial court’s conclusion that Valenti failed to demonstrate a
sufficiently substantial causal relationship between his lawsuit and the
delivery of the e-mails was both consistent with and supported by the
evidence in the record before it. Valenti’s showing was limited to establishing
that the City produced e-mails responsive to his first request after he filed his
lawsuit and served discovery on the City. This was tantamount to relying on
the “mere temporal connection between the filing of litigation . . . and the
production of those records” that Sukumar deemed insufficient. (See
Sukumar, supra, 14 Cal.App.5th at p. 464.)
Consistent with the “but-for” causation test articulated in Sukumar,
the trial court appropriately focused on facts relevant to determining
whether the e-mails the City produced in discovery “would not have been
obtained otherwise.” The court reasoned, in part, that “even though the
City may have closed the first PRA request prematurely, the City sought
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to work with Plaintiff regarding his objections. Plaintiff did not seek to
clarify or work with the City on his first request and instead submitted a
second more comprehensive request. Then, Plaintiff filed his lawsuit
without working with the City or waiting for the City to complete its
search.”
The trial court’s analysis was amply supported by the documentation
relating to the City’s processing of Valenti’s requests. This documentation
showed that after Valenti objected to the City’s September 14, 2017
decision to close his first request, telling the City “there are numerous
documents known to me . . . which you have failed to produce,” a City staff
member responded to him the next day and asked him to “please let us
know what [the referenced responsive documents] are.” There was no
recorded response from Valenti. Valenti’s second request, submitted to the
City on September 19, encompassed a much broader time frame than the
first request and sought records relating to topics that were not identified
in the first request. The court’s finding that Valenti did not “seek to
clarify or work with the City on his first request and instead submitted a
second more comprehensive request” was supported by this evidence.
Moreover, this evidence tended to refute the conclusion that the City
would not have produced the e-mails but for the litigation. (See Sukumar,
supra, 14 Cal.App.5th at p. 464.)
Further, as the City persuasively argues, Sukumar and San Diegans
for Open Government are distinguishable and do not establish that the
trial court erred. In Sukumar, the City “unequivocally” confirmed
multiple times, including in a representation by its counsel to the superior
court judge, that it had produced “everything and there was nothing more
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to produce.” (Sukumar, 14 Cal.App.5th at pp. 464, 465–466.) It was only
when the judge ordered the City to produce witnesses to testify to the
absence of additional records that the City renewed its search. The City
then discovered and produced a critical e-mail, five photographs of the
plaintiff’s property, and 146 pages of additional responsive e-mails. (Id. at
pp. 460–461.) It was on the basis of these undisputed facts that we found
it “inescapable that but for [plaintiff’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.)
Here, by contrast, there were no representations by the City,
unequivocal or otherwise, that it was unwilling or unable to produce more
records responsive to Valenti’s first or second requests. No court order
was issued compelling the City to confirm the thoroughness of its search
for responsive public records. Indeed, the trial court found “ ‘[d]iscovery
resulted in the production of records beyond those sought by’ the PRA
requests,” which was an indication the City was voluntarily erring on the
side of overproduction. In short, Sukumar involved materially distinct
facts and does not establish that the trial court’s resolution of the
causation issue in this case was unwarranted.
In San Diegans for Open Government, unlike this case, the plaintiff
had prevailed on its fee motion under a catalyst theory after the trial court
found the City disclosed public records “as a result of the action.” (San
Diegans for Open Government, supra, 247 Cal.App.4th at p. 1321.) We
were required to defer to this finding so long as we could determine that it
reflected the trial court’s “choice of possible reasonable inferences that can
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be drawn from the evidence.” (Id. at p. 1322.) We found the trial court’s
decision adequately supported by evidence that prior to the litigation, the
City “claimed it did not retain the requested documents without verifying
the veracity of this statement,” even though it knew private e-mails stored
on its server were public records. (Ibid.) We concluded this evidence
“suggest[ed] the filing of the action motivated [the] City to actually look for
and produce the private e-mails[.]” (Ibid.)
In short, San Diegans for Open Government is procedurally and
factually inapposite. Procedurally, it stands for the unremarkable
proposition that the substantial evidence test is highly deferential and
requires a trial court’s finding to be upheld on the basis of a mere
inference. In this case, as the City correctly points out, Valenti did not
prevail in the trial court, so “the deference cuts the opposite way.” In
other words, San Diegans for Open Government does not stand for the
proposition that a trial court’s prevailing party determination must be
reversed on the basis of a comparably minimal amount of evidence
favoring the plaintiff.
Factually, San Diegans for Open Government is materially
distinguishable from this case. Here, unlike San Diegans for Open
Government, the City’s last word to Valenti about his first request was not
an unequivocal claim that the City had not retained the requested
documents. Instead, the City asked Valenti for guidance after he claimed
its initial search failed to produce all responsive records, which suggested
it was willing to take another look. Unlike San Diegans for Open
Government, it was Valenti who ended the dialogue, not the City.
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For all of these reasons, Valenti fails to persuade us that the City’s
production during discovery of the 10 pages of e-mails responsive to his
first request was evidence compelling the conclusion he prevailed in his
PRA action.8
III.
Valenti Fails to Establish That Evidence the Junior Theatre Produced
Records in Response to Subpoena Compels the Conclusion He Prevailed in
the Litigation
Valenti also seeks reversal of the trial court’s order on the ground that
he prevailed in the PRA litigation to the extent he succeeded in obtaining
public records from the Junior Theatre in response to a subpoena. He argues
that because he “obtained responsive public records by subpoena in this
lawsuit,” and “because the City never attempted to obtain those records itself
despite having ownership and constructive possession via contract, this
lawsuit resulted in the disclosure of responsive records.”
Valenti’s argument fails for two reasons. First, he cites no evidence in
the record establishing that the documents he assertedly received from the
Junior Theatre qualified as public records or were responsive to either of his
PRA requests. Without evidence he originally requested public records he
later received as a result of the litigation, he can hardly be deemed a
“requester” who “prevail[ed] in litigation filed pursuant to [the PRA].”
(§ 7923.115, subd. (a).) Valenti’s failure to identify such evidence results in
8 Based on our resolution of Valenti’s first challenge to the trial court’s
order, we need not and do not reach the City’s alternative argument that the
10 pages of e-mails were too minimal or insignificant to justify a finding that
he prevailed. (See Riskin, supra, 76 Cal.App.5th at p. 447.)
23
the conclusion he has not met his appellate burden of showing the trial
court’s ruling was erroneous.
Second, the fundamental premise of his argument—that the City was
contractually obligated to produce records held by the San Diego Junior
Theatre—was rejected by the trial court in a discovery order issued prior to
trial. The court’s ruling on the matter became final upon entry of judgment.
Valenti failed to seek review of the judgment and cannot collaterally attack
the ruling now. (See Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52
Cal.App.5th 360, 387 [any challenge to a discovery order must be made on
appeal from a final judgment]; Estate of Buck (1994) 29 Cal.App.4th 1846,
1854 [a litigant “may not collaterally attack a final judgment for
nonjurisdictional errors”].)
DISPOSITION
The order is affirmed. The City is entitled to its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)
DO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
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Filed 8/8/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MATT VALENTI, D080133
Plaintiff and Appellant,
(Super. Ct. No. 37-2017-
v. 00044069-CU-MC-CTL)
CITY OF SAN DIEGO,
ORDER GRANTING REQUEST
Defendant and Respondent. FOR PUBLICATION
THE COURT:
The opinion in this case filed July 18, 2023 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
O’ROURKE, Acting P. J.
Copies to: All parties