Causation Issue Is Decided Under Substantial Evidence Review Standard.
The next case involves a dispute under the California Public Records Act (CPRA), which does allow recovery of fees by a “prevailing” plaintiff. (Gov’t Code, § 6259(d).) The next case, where a CPRA petitioner was denied fees, demonstrates two things: (1) how government entities should act and “paper” activities in order to avoid a fee award; and (2) how the appellate standard of review can steer the outcome of an appeal.
In Jentz v. City of Chula Vista, Case No. D053525 (4th Dist., Div. 1 Aug. 31, 2009) (unpublished), two petitioners and City of Chula Vista were involved in CPRA disputes involving the Urban Core Specific Plan for the downtown Chula Vista area. Although City did produce documents to petitioners after petitioners filed a CPRA action to obtain the documents, the trial court refused to award fees to petitioners under section 6259(d), determining that petitioners did not “prevail” because nothing demonstrated City would not have produced the documents anyway (a causation element—showing the CPRA action was the motivation for the document production).
The Court of Appeal affirmed the fee denial.
The definition of “prevailing party” under the CPRA is a pragmatic one. The focal concern is whether the CPRA motivated a defendant to produce the documents. (Galbiso v. Orosi Public Utility Dist., 167 Cal.App.4th 1063, 1085 (2008).) Importantly, however, this determination is a factual one reviewed under the deferential substantial evidence standard on appeal. (Ibid.) Because many factors must be considered on this causation issue, the appellate court deferred to the trial court’s conclusion that City did not decide to produce based on the instigation of the CPRA action.
For city attorneys, this case is great reading to show the type of detailed declarations from counsel that might lead a trial court to conclude the CPRA action was not spurring the City’s production of documents or its amenability to produce further documents. Rather, here are the factors that led to affirmance by the appellate court in Jentz—ones that can be utilized successfully by city lawyers in the future: (1) documents were produced to petitioners shortly after the action was filed; (2) petitioners had failed to provide clarification in response to the City’s written requests to clear up ambiguities; (3) City did a “rolling” production of documents in batches as they were located (or after they were screened for privileged documents); (4) petitioners’ requests involved a detailed search and time-consuming examination of documents that had to be culled out on the basis of certain privileges; (5) City produced a privilege log; (6) City demonstrated that the production was slowed by unavoidable administrative difficulties; and (7) the City’s attorneys kept in regular contract with petitioners’ counsel regarding the timing and logistics of document production.