Reason Was That D.A. Conceded Petition Was Not Frivolous At The Time Costs Incurred By D.A.
Admissions or concessions in court papers get great weight, no less so on appeal.
In Harrison v. San Diego County, The District Attorney, Case No. D068603 (4th Dist., Div. 1 Mar. 18, 2016 unpublished), petitioner requested certain documents from the D.A. under the California Public Records Act (CPRA), which has a fee-shifting provision in favor of prevailing petitioners (mandatory) and in favor of governmental entities if they can establish the petitioner’s case is clearly frivolous (discretionary in nature). The D.A. initially objected, but withdrew the objection and then produced the one responsive document after having to go to court to unseal the responsive document which had previously been under seal. Petitioner pressed forward with his petition, which was denied given the earlier production. The trial judge then assessed $435 in costs against petitioner after finding the petition was frivolously prosecuted.
The appellate court affirmed the merits denial but reversed the costs award, also rejecting petitioner’s contention he was the “prevailing party” for purposes of a costs award. Even though the one document was released following the filing of petitioner’s CPRA petition, it did not logically follow that the release was related to the petition such that petitioner could be declared the “prevailing party”—rather, the D.A. quickly withdrew an objection and produced the document after getting the order to unseal the document from a court file. (This logical fallacy is known as “post hoc ergo propter hoc”; see also Motorola Communication & Electronics, Inc. v. Dept. of Gen. Services, 55 Cal.App.4th 1340, 1347-1351 (1997).) However, D.A. conceded the petition was not frivolously prosecuted until after December 22, 2014; this concession led to a reversal of the costs award because the costs were incurred in October 2014 at a time that the petition was not frivolous in nature.