California Court of Appeals, Fourth District, Second Division
June 26, 2015
LAW OFFICES OF MARC GROSSMAN, Plaintiff and Appellant,
VICTOR ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. No. CIVVS1103873 David S. Cohn, Judge.
Law Office of Marc Grossman and Jake Richards for Plaintiff and Appellant.
Orrock, Popka, Fortino, Tucker & Dolen; Dennis G. Popka and M. Wayne Tucker for Defendant and Respondent.
RAMIREZ, P. J.
Law Offices of Marc Grossman (plaintiff or Law Firm) represented a student of defendant Victor Elementary School in a civil action arising from an assault that took place at the school. Plaintiff, in the name of the Law Firm, filed a petition for writ of mandate in the trial court under the California Public Records Act (Gov. Code, § 6258) seeking documentation reflecting the amount of money spent defending the litigation. That petition was denied, so relief was sought in this Court, which granted the petition. Upon issuance of the remittitur, plaintiff filed a Memorandum of Costs seeking, among other costs, attorneys’ fees for the petition. The trial court granted defendant’s motion to tax costs, denying attorneys’ fees. Plaintiff appealed from the denial of attorneys’ fees.
On appeal, plaintiff argues the trial court erred in denying fees on the ground plaintiff represented itself in the trial court. We reverse.
Due to the limited record, we take judicial notice of the records in the previous writ proceedings in Law Offices of Marc E. Grossman v. Victor Elementary School (Oct. 10, 2012, E056931) (nonpub. opn.). In that proceeding, plaintiff Law Firm filed a petition for writ of mandate in the trial court, as a member of the public, seeking disclosure of documents reflecting the amount defendant had expended in defense of the civil action entitled Jose E. v. Victor Elementary School District (Super. Ct. San Bernardino County, No. VCVVS041304.
The trial court denied the petition, giving rise to the filing of a petition for writ of mandate in this Court, again in the name of the Law Firm. We directed that the Superior Court vacate its order denying the petition and enter a new order granting the requested disclosure. (Law Offices of Marc E. Grossman v. Victor Elementary School, supra, E056931. Our disposition further stated that pursuant to Government Code section 6259, petitioner was entitled to recover its court costs and reasonable attorney fees. (Law Offices of Marc E. Grossman v. Victor Elementary School, supra, E056931.)
Following issuance of the remittitur, plaintiff filed a Memorandum of Costs, including $16, 327.00 for attorney fees on line 10. Defendant filed a motion to tax costs, challenging only the amount of attorney fees sought. The trial court
Noted that a judgment in the mandamus matter had not yet been entered. The court entered judgment directing defendant to release to plaintiff all documents reflecting the total amount of money spent on attorney’s fees defending, awarded plaintiff costs in the amount of $1375.00, but awarded no attorney fees on the ground that an attorney representing himself cannot recover attorneys’ fees. Plaintiff appealed.
Government Code section 6259, subdivision (d), part of the California Public Records Act (CPRA), provides 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. (Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1065 [163 Cal.Rptr.3d 689].)
The CPRA was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies. (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 342 [201 Cal.Rptr. 654].) The Legislature has declared that 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; see Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425–426 [121 Cal.Rptr.2d 844, 49 P.3d 194] (Filarsky).)
The CPRA includes protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure, one of which is the provision that the court shall award court costs and reasonable attorney fees to the prevailing plaintiff. (Filarsky, supra, 28 Cal.4th at p. 427.) The very purpose of the attorney fees provision is to provide protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure. (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1447 [164 Cal.Rptr.3d 644].) The CPRA mandates a fee award to a plaintiff if it prevails, and to a defendant only if the plaintiff’s case is clearly frivolous. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391 [107 Cal.Rptr.2d 29].)
We review an award of fees and costs by the trial court for abuse of discretion. (Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1379 [159 Cal.Rptr.3d 484].) However, de novo review of an award is appropriate where the determination of whether the criteria for an award of attorney fees and costs has been satisfied amounts to statutory construction
and a question of law. (Ibid.; Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 365 [182 Cal.Rptr.3d 308].)
Here, plaintiff was the prevailing party in the underlying mandamus proceeding. On remand, defendant did not initially challenge plaintiff’s entitlement to an award of attorney fees. Instead, at the hearing on the motion to tax costs, it was the court, which, for the first time, questioned plaintiff’s entitlement to attorney fees, referring to the holding of Trope v. Katz (1995) 11 Cal.4th 274 [45 Cal.Rptr.2d 241, 902 P.2d 259] (Trope). This was improper, without giving plaintiff an opportunity to address the issue.
On appeal, defendant relies on the reasoning of Trope, but Trope is inapposite. In Trope, a law firm sued an ex-client for unpaid attorney fees and sought attorney fees with regard to the action for recovery of those attorney fees. There, the action to recover fees was based on Code of Civil Procedure section 1717, which permits an award of fees in any action on a contract where the contract specifically provides for such fees and costs. The Supreme Court reasoned that the term “fee” related to the consideration that a litigant actually paid or became liable to pay in exchange for legal representation, and that an attorney litigating in propria persona pays no such compensation. (Trope, supra, 11 Cal.4th at p. 280.) That case did not involve a petition brought pursuant to the CPRA, and it did not involve a law firm seeking disclosure of public information relating to civil litigation defense costs in other cases.
Here, the Law Firm represented a plaintiff, Jose E., in an action against defendant arising from injuries sustained in a violent bathroom assault. Although the Law Firm filed the petition for writ of mandate in its own name, the petition clearly alleged that it sought documentation relating to the amount of money spent defending the civil case litigated on behalf of Jose E. The mandamus action was not filed to seek compensation for the Law Firm or to obtain any other relief beneficial to the plaintiff firm alone. It was filed to obtain information pertinent to three separate civil actions filed on behalf of separate clients of plaintiff. To deny fees because the petition was filed in the name of the Law Firm is to elevate form over substance. But “[w]e care about the nature of the transaction, not the label attached.” (Microsoft Corp. v. Franchise Tax Board (2006) 39 Cal.4th 750, 761 [47 Cal.Rptr.3d 216, 139 P.3d 1169].)
More importantly, our order in the previous proceedings on mandamus stated that “petitioner shall recover its court costs and reasonable attorney
fees." (Italics added.] In defendant’s motion to tax costs, the school district did not contend that attorney fees were not allowed, nor did defendant assert that plaintiff was not entitled to fees because it had litigated the mandamus petitions in propria persona. It merely objected to the amount requested by plaintiff for attorney fees. The trial court abused its discretion by applying an inapposite decision to deny attorney fees without prior notice to plaintiff.
The portion of the judgment denying attorney fees to plaintiff is reversed. The matter is remanded to the San Bernardino Superior Court for a determination of reasonable attorney’s fees to which plaintiff is entitled.
McKinster, J., and Codrington, J., concurred.