“Clearly Frivolous” Means Without Any Merit Or Prosecuted For Improper Motive.
The Ninth Circuit, in M.D. v. Newport-Mesa Unified School Dist., Case Nos. 14-56443/14-56459 (9th Cir. Oct. 19, 2016) (published), affirmed a district judge’s denial of an attorney’s fees request against a plaintiff prosecuting a California Public Records Act (CPRA) request where plaintiff voluntarily dismissed the underlying claim after the school district defendant brought a motion to dismiss.
With respect to a CPRA plaintiff, fees only are justified where the prosecution of the request was “clearly frivolous,” with the federal appeals court adopting the definition of this construct from Bertoli v. City of Sebastopol, 182 Cal.Rptr.3d 308, 320 (2015) [discussed in our Jan. 21, 2015 post], which required the defense to show the request lacked any merit or was prosecuted for an improper motive.
The reviewing court agreed that the defense did not meet its burden under the CPRA fee-shifting statute. Plaintiff wanted an unedited version of a board of education meeting and, after getting it, promptly dismissed the CPRA claim after the defense brought a motion to dismiss. On the state-of-mind prong of the fee recovery test, it was unclear whether continued prosecution of a frivolous claim met the standard if the request was initially non-frivolous in nature, but the Ninth Circuit did not have to enter the fray. After all, plaintiff voluntarily dismissed the claim expediently after learning about the defense’s position on this issue such that good faith was established.