Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2009-00122834 Jamoa A. Moberly, Judge.
Juan Hong, in pro. per.; Law Office of Juan Hong and Juan Hong for Plaintiff and Appellant.
Office of the General Counsel, Charles F. Robinson and Margaret L. Wu for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Juan Hong, an attorney, sought the disclosure of documents under the California Public Records Act (PRA) (Gov. Code, § 6250 et seq.; statutory references are to the Government Code unless otherwise stated) from two campuses of defendant Regents of the University of California. After receiving some of the documents plaintiff, representing himself, filed this action to obtain full compliance with his requests. Shortly thereafter, each campus produced the remaining documents and the trial court entered judgment denying the petition on the ground it was moot.
Plaintiff then sought recovery of his costs and attorney fees. (§ 6259, subd. (d).) Declaring plaintiff was not the prevailing party and a self-represented attorney cannot recover fees, the court denied his requests. Plaintiff appeals from this order. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Defendant administers a grant program whereby the university and private business sponsors provide matching funds for technological development research. Between January and August 2008, plaintiff filed several PRA requests with defendant’s Irvine campus (UCI) seeking the release of documents on numerous grants covered by the program. In the latter month, plaintiff also filed similar PRA requests with defendant’s Los Angeles campus (UCLA).
By mid-December 2008, UCI produced over 500 pages of documents in response to plaintiff’s requests. One request, designated PRA #1052, sought documents for a grant receiving funds from CODA Genomics (CODA). In August 2008, CODA’s general counsel informed UCI’s Public Records Office the company considered 31 pages of the grant relating to the research proposal and budget would compromise its trade secrets (§ 6254, subd. (k); Civ. Code, § 3426.1, subd. (d)). UCI then informed plaintiff it was withholding these pages from his document request.
Frances Thompson works as the records coordinator in UCLA’s Office of Information Practices. Between June 2008 and October 2009, Thompson was the only person processing the campus’s PRA requests, which averaged 20 each month. She claimed plaintiff’s two August 2008 PRA requests required more extensive review than typical applications “because they involve[d] multiple types of documents for multiple grants, with multiple individuals who had to be consulted to ensure that no trade secrets or other confidential information was released.” Thompson “repeatedly assured plaintiff that [she] was working on his requests....” In January and April 2009, she sent plaintiff e-mails stating the material sought would be released shortly, only to find each time the document review process took longer than expected.
In May 2009, plaintiff filed this action. UCI notified CODA of the lawsuit. It then learned that in late 2008 CODA “completely re[]vamped its business plan” and changed its name to Verdezyne. The new business informed UCI that it “no longer had an interest in maintaining the confidentiality of the previously withheld... documents.” The next month, UCI released the remaining 31 pages to plaintiff. On June 17, Thompson sent plaintiff nearly 200 pages of documents in response to his PRA requests.
At a January 2010 hearing, the court found all of the documents sought had been produced and entered judgment denying the petition as moot. Concerning UCI the court noted, “the evidence... indicated that it was... the passage of time” and “one of the partners that dealt with the specific grant... in dispute... had basically changed course and no longer w[as] pursuing th[e] project. So although [UCI] objected... in the beginning, that position changed[ w]hen there was a change in direction for that company....” As for UCLA, the court found it was “in the process of reviewing the [documents sought and] just needed additional time.”
Plaintiff filed a memorandum of costs requesting $430 in filing and motion fees, plus a motion for attorney fees seeking over $117,000. Defendant moved to tax costs and opposed the fee request. Repeating its earlier conclusions, “the passage of time and change in circumstances... [led] to the production of the [remaining] documents, ” the court found plaintiff had not prevailed because his “filing of this action... did not cause the production of the documents.” In addition, the court ruled plaintiff “may not recover fees as a self-represented attorney.” Thus, it granted defendant’s motion to tax costs and denied plaintiff’s motion for attorney fees.
DISCUSSION
1. Introduction
The PRA allows “[a]ny person [to] institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” (§ 6258.) A ruling on the request is only “reviewable by petition to the appellate court for the issuance of an extraordinary writ....” (§ 6259, subd. (c).)
Here, the trial court dismissed plaintiff’s petition as moot after finding defendant had fully complied with his PRA document requests. Plaintiff did not timely seek relief from that ruling. Rather, he sought recovery of his legal expenses under section 6259, subdivision (d). That subdivision declares, in part, “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” While an order granting or denying disclosure of records cannot be appealed, cases have nonetheless recognized orders granting or denying costs and attorney fees sought under section 6259, subdivision (d) are reviewable by appeal. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1385; Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1344, fn. 2.)
“[W]hen the plaintiff prevails and thus compels disclosure under the [PRA], an award of attorney’s fees and costs is mandatory. [Citation.]” (Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249, 1252.) “A plaintiff prevails within the meaning of section 6259, subdivision (d), ‘“when he or she files an action which results in defendant releasing a copy of a previously withheld document[]”’” and “[a]n action under the [PRA] results in the release of previously withheld documents ‘if the lawsuit motivated the defendants to produce the documents.’ [Citations.]” (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1085.)
A trial court’s decision on whether a plaintiff prevailed in an action under the PRA is reviewed under the substantial evidence rule. (Galbiso v. Orosi Public Utility Dist., supra, 167 Cal.App.4th at p. 1085; Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th at p. 1347.) “‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Thus, “‘[w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Ibid.) “When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]” (Primm v. Primm (1956) 46 Cal.2d 690, 694.) The same principles of review apply even where, as here, the case was presented to the trial court on the basis of competing declarations and documentary evidence. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)
2. Plaintiff’s Right to Recover Legal Expenses Under the PRA
As noted, “[a] plaintiff prevails in litigation under the [PRA] if the litigation motivated the defendant to release the requested documents. [Citation.]” (Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th at p. 1344; see also Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 844 [“In order to justify a fee award, there must be a causal connection between the lawsuit and the relief obtained”].) Factors to be considered in determining whether the plaintiff prevailed in a PRA action include “the timing of the disclosure in relation to the filing of the lawsuit, ” “‘whether the agency made a good faith effort to discover and disclose material, whether the scope of the request caused a delay in disclosure, and whether the agency was burdened by other duties that delayed its response. [Citations.]’ [Citation.]” (Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th at 1346.)
Plaintiff argues his petition triggered each campus’s full compliance with his PRA requests. As for UCI, he cites to a 2007 letter from a person named Bette Malone who claimed to be CODA’s controller that stated the grant proposal did not contain any confidential information, plus the fact UCI informed him of its final decision not to disclose the remaining 31 pages of PRA #1052 in February 2009, several months after CODA’s business transformation. Concerning UCLA’s delay in responding to his PRA request, plaintiff cites to several redacted January 2009 e-mails between Thompson and others, including defendant’s legal counsel, in which, he claims, “Thompson was instructed not to release the documents” he had requested.
However, the trial court expressly found defendant’s disclosure of the remaining documents resulted from a change of circumstances and the passage of time. The record supports these findings.
UCI presented evidence it sought authority to release documents covered by PRA #1052 in the summer of 2008. Shortly thereafter, CODA’s general counsel informed UCI that it believed 31 pages of the request contained trade secrets. As for Malone’s earlier contrary statement, CODA’s general counsel claimed Malone was actually a consultant and lacked authority to comment on the confidentiality of the material. Based on this information, UCI informed plaintiff it would not provide copies of the 31 pages of material. It was not until UCI contacted the company after plaintiff filed this action that its Public Records Office learned of CODA’s transformation into Verdezyne and its change of position concerning the confidentiality of the grant documents.
A similar situation was presented in Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th 1340. Motorola submitted a PRA request to the California Department of General Services and when the department failed to fully comply, initiated legal action. The trial court issued a writ compelling full compliance with Motorola’s request and the Department produced the additional documents. It then dismissed the proceeding as moot, but also denied Motorola’s request for costs and attorney fees. (Id. at pp. 1341-1342.)
The appellate court affirmed, finding the agency’s “delay in producing documents” resulted from “uncertainty over the scope of the request and administrative difficulties.” (Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th at p. 1344.) While full disclosure did not occur until after the plaintiff filed a lawsuit, the court held this alone did not support a determination the plaintiff was the prevailing party. “More than post hoc, ergo propter hoc must be demonstrated.” (Id. at p. 1345.)
As for UCLA’s belated compliance, Thompson’s declaration stated the campus never objected to granting plaintiff’s PRA requests. Rather, the delay resulted from Thompson’s status as the sole person responsible for handling PRA requests and the complex nature of the documents plaintiff sought. “The fact a delay in production was slight and was due in part to unavailability of critical personnel is relevant to show the delay was due to administrative problems rather than agency intransigence. This in turn suggests production would ultimately have occurred whether or not suit was filed.” (Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th at p. 1346; see Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 483 [“The [PRA] provides no remedy for failure to timely comply with a request for records”].) As defendant notes, “Had Ms. Thompson been directed... to withhold the documents, there is no reason why she would have spent so much time and effort following up on the request, especially in light of her other job responsibilities.”
The cases plaintiff relies on are distinguishable. In Los Angeles Times v. Alameda Corridor Transportation Authority, supra, 88 Cal.App.4th 1381, the trial court denied the plaintiff’s request for costs and attorney fees based on an erroneous conclusion the request was untimely. Zarcon, Inc. v. National Labor Relations Board (8th Cir. 2009) 578 F.3d 892 merely recognized a recent statutory amendment to the corresponding federal Freedom of Information Act (5 U.S.C. § 552) expanding a party’s right to recover attorney fees and costs even where it obtains relief through a defendant’s “‘voluntary or unilateral change’” in its decision to disclose material, but held the amendment did not apply retroactively. (Zarcon, Inc. v. National Labor Relations Board, supra, 578 F.3d at pp. 895-896.)
In Belth v. Garamendi (1991) 232 Cal.App.3d 896, the plaintiff sought documents concerning a particular insurance company from the Insurance Commissioner. The Commissioner denied the request citing the confidentiality of the documents. The plaintiff filed a mandamus action and the trial court issued an alternative writ. Thereafter, the Insurance Commissioner disclosed the documents, citing the insurance company’s consent to do so. The appellate court held the plaintiff was the prevailing party. “In this case, the Commissioner initially refused Belth’s request for documents she claimed were confidential. After he filed a writ petition, she obtained [the insurer’s] consent to disclosure of the documents and released them to Belth. It is undisputed that she took this initiative in response to, and in hopes of resolving this litigation.” (Id. at p. 902.)
Here, UCI initially sought permission from CODA to disclose materials relating to PRA request #1052 when plaintiff made his request, not after he filed this action. UCLA presented evidence it never disputed plaintiff’s right to the documents he sought, claiming only that compliance with his requests took longer than expected.
In summary, the parties presented conflicting evidence on the reasons for each campus’s delay in fully complying with plaintiff’s PRA requests. Merely showing a conflict in evidence and inferences available to the trial court is insufficient to establish the evidence fails to support a finding plaintiff was not the prevailing party. In light of this conclusion, we need not consider the trial court’s alternative finding plaintiff could not recover attorney fees for representing himself in this action.
DISPOSITION
The order is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: ARONSON, J., FYBEL, J.