As I’m sure you’re aware I was forced in 2016 by the arrogant intransigence of the Hollywood Media District BID to file a writ petition against them asking that they be ordered to follow the damn law.1 The petition was granted in part on January 30, 2018 and the BIDdies had to hand over some emails to me. I wrote about those goodies here and here.
What happens then is exceedingly clear under the law. The CPRA §6259(d) states that: The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.
The “shall” means that a fee award is mandatory. The judge is not allowed not to award fees to the requester if the requester prevails. Of course, we have to consider what it means to prevail, but this has been settled by the courts in Belth v. Garamendi, which states: We further hold that the plaintiff has prevailed within the meaning of the statute when he or she files an action which results in defendant releasing a copy of a previously withheld document.
So the fact that the judge ordered the BID to give me those emails in February pretty much sealed their fate. Of course, they weren’t going down without a fight. My lawyer, the incomparable Colleen Flynn, asked them for $48,000 in fees. Briggs filed a response saying essentially that we shouldn’t get any fees but if we did it shouldn’t be nearly that much.
Flynn filed a simply brilliant rejoinder to that, and this very morning the judge rejected every last one of Hollywood Superlawyer Jeffrey Charles Briggs’s arguments, including his incredibly, embarrassingly whiny oral argument, and handed down a ruling awarding $30,000 in fees to Flynn. Ironically, before the ruling, Flynn offered to settle for significantly less than that and was roundly rejected by Attorney Briggs. Turn the page for a transcription of the ruling and a little more commentary.
It’s super-fabulous that Flynn will get paid for her excellent work! Without these kind of fee awards it would not be possible for ordinary citizens to find capable attorneys to represent them against the arrogant and the powerful of this City. Unfortunately, the only thing these outlaw zillionaires understand is money, and if they don’t have to pay they will never obey.
Also important, though, is the possibility that maybe this will serve as a lesson to the rest of this City’s BIDs that they really do have to comply with the law no matter what kind of mean names I call them on the blog, and that if they fail to do so they are going to waste their money paying my lawyers and, in the end, they will have to comply anyway. It doesn’t seem like a hard decision to me, but it seems to me like it seems to them like a hard decision. We’ll see what happens, I suppose.
Transcription of this morning’s ruling:
Tentative Decision on Motion for Attorneys’ Fees
Petitioner MK (“Petitioner”) seeks attorney’s fees in the amount of $48,360.00 pursuant to Government Code section 6259(d). Petitioner’s writ of mandate pursuant to the Public Records Act was granted in part on January 30, 2018, and judgment entered March 5, 2018.
On November 14, 2016, Petitioner filed his verified petition for writ of mandate.
On September 28, 2017, Petitioner filed his opening brief and administrative record. On October 27, 2017, Respondent filed its opposition brief and supplemental administrative record. On November 13, 2017, Petitioner filed his reply and supplemental administrative record.
The petition came for hearing on November 28, 2017. The court adopted its tentative ruling as the order of the court, with certain modifications made based on argument at the hearing. The court issued the following order:
Respondent is ordered to produce a privilege log identifying the responsive records it has withheld and the claimed exemptions for each record. Respondent should also file and serve a supplemental opposition, not to exceed 7 pages. Petitioner may file and serve a supplemental reply, not to exceed 7 pages. The supplemental opposition and reply should only address the claimed exemptions, and not any other issues….
Respondent is also ordered to review all files from the latest search to ensure that all responsive documents have been produced.
Counsel for respondent is to file a declaration and log produced to petitioner by January 11, 2018. (Court File, Minute Order filed 11/28/17.)
The court set a status conference for January 30, 2018.
After the January 30, 2018 hearing, the court ordered Respondent to provide access to, or produce copies of the following documents, previously claimed as exempt:
1) all e-mails withheld pursuant to the Deliberative Process Privilege; 2) all emails withheld pursuant to the Drafts exemption; and 3) all emails withheld pursuant to the Personnel Privacy exemption, redacted to exclude private personnel health information and volunteer’s address.
Petitioner is a Prevailing Party
In a CPRA action, “the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”
(Gov. Code Â§ 6259(d).) Under the CPRA, an award of attorney’s fees to a prevailing plaintiff is mandatory. (Fontana Police Dept v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249, 1252.)
Respondent argues that Petitioner did not prevail because he did not achieve his primary purpose of the litigation – to obtain a court order requiring Respondent to conduct another search, and a declaration that the search previously conducted was legally inadequate. Respondent also argues that the documents obtained were so minimal and insignificant compared to what Petitioner sought in the Petition, the court should conclude Petitioner did not prevail. While Petitioner did not obtain the full relief he was seeking, the lawsuit did result in Respondent producing additional documents.
Under these circumstances, Petitioner is the prevailing party.
“A plaintiff prevails within the meaning of the [CPRA] when he or she files an action which results in defendant releasing a copy of a previously withheld document.'” (Los Angeles Times v. Alameda Corridor Transp. Authority ( 2001) 88 Cal.App.4th 1381, 1391; Belth v. Garamendi (1991) 232 Cal.App.3d 896, 898). Respondent has not persuasively shown that the documents which were ordered to be produced were so minimal and insignificant so as to support a denial of attorneys’ fees. Petitioner obtained records such as draft meeting agendas, information regarding a dog bite incident and LAPD’s response, committee vacancies, bylaws, and a project presentation. Petitioner published the records to his website. The court does not conclude that these documents are so trivial that they support departure from the rule that a prevailing Petitioner in CPRA litigation is entitled to attorneys’ fees.
Reasonable Amount of Attorney’s Fees
“The determination of what constitutes a reasonable fee generally “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’ [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4 th 140, 154.)
Respondent seek attorneys’ fees for 71.9 hours of work on this matter, at the rate of $650.00/hour, for a total award of $48,360.00. Petitioner’s counsel claims that in determining the 71.9 hours, she discounted the number of hours by approximately 20% to account for the failure to obtain a court order to conduct an additional search.
Petitioner presents evidence, in the form of declarations from his counsel, and an expert, that $650/hour is a reasonable rate for attorney Flynn’s work. Respondent argues that the hourly rate should be no greater than $350/hour, the fee charged by Respondent’s counsel.
Ms. Flynn was admitted to practice in 2004, and has worked primarily as a civil rights attorney. She also has experience in litigating Public Records Act and FOIA cases. (See Flynn declaration). Flynn declares that in past litigation, she has been awarded attorneys’ fees at the rate of $590/hour, and $400/hour in 2016 and 2015.
Taking into account the Flynn, Sobel, and Briggs declarations, as well as the court’s familiarity with reasonable rates charged for this type of litigation in this legal community, the court finds that $600/hour is a reasonable hourly rate.
Amount of Time Spent
“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” ( Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable. (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4 th 550, 560-63.) The Court has discretion to reduce fees that result from inefficient or duplicative use of time. ( Horsford
Respondent does not challenge particular billing entries as duplicative, or inefficient. Rather, Respondent argues that given Petitioner’s limited success, the hours claimed are excessive, and Petitioner should be compensated only for 11% of the total hours expended. Respondent focuses on the assertion that the issue of exemptions was not raised until late in the litigation, and that Petitioner never sought to informally resolve that issue prior to filing suit.
The court agrees that the degree of Petitioner’s success is a factor the court may consider in determining an award of reasonable attorneys’ fees under the CPRA. (See Bernardi v. County of Monterey, 167 Cal. App. 4th 1379, 1398). The court disagrees, however, that the fact the issue of exemptions was framed later in the litigation supports such a drastic reduction. The litigation did result in previously withheld documents being produced. Taking into account the manner in which the litigation was conducted and considering the results achieved, the court concludes that $30,000 is a reasonable award of attorneys’ fees in this matter.
Although Respondent did not file a motion to strike or tax costs, the parties appear to interpret their stipulation to allow Respondent to challenge costs in his opposition to the motion for attorneys’ fees. Respondent contends that Petitioner is entitled to no costs, as she did not prevail. As discussed above, the court disagrees. The only specific item of costs Respondent challenges is $323.75 for deposition costs. In reply, Petitioner agrees that he is not seeking reimbursement for the cost of the deposition. The cost bill is taxed in the amount of $323.75 for a total award of costs of $74.45.
Image of Hollywood Superlawyer Jeffrey Charles Briggs is ©2018 MichaelKohlhaas.Org and is a highly transformative re-envisionitude of this lil Briggsy right here.
- A lot of the paper filed in the case is available here on Archive.Org.