Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 36791
DAVIS, J.
Plaintiff Eileen Spencer filed a petition pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.; hereafter CPRA) to compel defendant Lassen Municipal Utility District (LMUD) to produce documents. The superior court denied the petition, denied her request for reimbursement of her legal fees, and granted LMUD’s motion to reimburse its legal fees on the ground that plaintiff Spencer’s petition was frivolous. (Gov. Code, §§ 6251, 6258, 6259, subd. (d).)
Hereafter, undesignated section references are to the Government Code.
The plaintiff appeals both from the judgment and the order after judgment setting the amount of LMUD’s legal fees. We have consolidated the appeals for purposes of briefing and argument. We shall affirm the judgment but shall remand for modification of the order after judgment in appeal No. C047584 and shall dismiss the purported separate appeal from the order after judgment (appeal No. C048829).
Scope of Review
A
Ordinarily in reviewing a superior court’s resolution of a CPRA petition, we would independently determine the application of the law to the court’s express and implied determinations of disputed factual issues that are supported by substantial evidence. (Connell v. Superior Court (1997) 56 Cal.App.4th 601, 612 (Connell).) However, the superior court’s underlying ruling on the CPRA issues in the petition itself is subject to review only in a petition for an extraordinary writ. (Butt v. City of Richmond (1996) 44 Cal.App.4th 925, 929-930 (Butt) [summarizing the holding of Powers v. City of Richmond (1995) 10 Cal.4th 85].) As a result, these issues are not cognizable in an appeal from the judgment. (Cf. People v. Webb (1993) 6 Cal.4th 494, 522-523 [peremptory motion to disqualify, which also has underlying concerns with the need for expedited review and judicial economy].) Plaintiff Spencer’s brief accordingly discusses the underlying ruling only in the context of whether her CPRA arguments in the trial court were frivolous.
The order denying an award of legal fees to the plaintiff is review able on appeal from the judgment. (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1344, fn. 2 (Motorola).) As the judgment awarded legal fees to LMUD and left only the amount for later determination, the appeal from the judgment also embraced the post judgment order in its ambit. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997-998.) Since the post judgment order was thus not a collateral matter unrelated to the judgment, it was not separately appeal able and we must dismiss the appeal from it. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.)
With respect to the ruling on the reimbursement of legal fees, the plaintiff is correct that we must review de novo the legal basis for an award of legal fees. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 424 (Honey Baked Hams).) However, in the case at bar there is no dispute about the legal basis for an award of legal fees. Rather, the issues are whether plaintiff Spencer satisfied the criteria for an award in her favor, or whether the petition was frivolous and therefore entitled LMUD to an award in its favor. For the former, we must determine whether plaintiff Spencer “prevailed” (id est, if the lawsuit motivated the release of the records), which entitles her to an award as a matter of law; we review the court’s ruling on this issue for substantial evidence. (Motorola, supra, 55 Cal.App.4th at pp. 1344, 1345-1346, 1347.) Whether the petition was frivolous is a determination within the trial court’s discretion. (Cf. Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 474, 483-484 [reviews award of CPRA costs to agency for abuse of discretion]; Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 865-866 (Rosenman) [legal fees for frivolous anti discrimination action].) The amount of legal fees awarded is also subject to review for an abuse of discretion. (Honey Baked Hams, supra, 37 Cal.App.4th at p. 429.)
B
One other fact affects our scope of review. The provisions for requesting a statement of decision apply to proceedings in mandate where, as here, the trial court has resolved questions of fact. (Code Civ. Proc., §§ 632-634, 1109; Lassen v. City of Alameda (1957) 150 Cal.App.2d 44, 48; Delany v. Toomey (1952) 111 Cal.App.2d 570, 571-572; see Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 57.) The parties did not request a statement of decision either in their briefs or before the end of the hearing on the petition. In light of this forfeiture of a statement of decision, we ordinarily would infer in favor of the judgment all necessary findings if there is substantial evidence to support them. (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 198-199.)
However, as Rosenman noted in the context of civil rights litigation, there is a strong equitable consideration to keep in mind in an award of legal fees to a prevailing defendant: a plaintiff is the instrument for the vindication of the public policy underlying the civil rights laws. (Rosenman, supra, 91 Cal.App.4th at p. 865.) As a result, a trial court has a nonforfeitable duty to make express written findings on the ability of a plaintiff to pay an award of legal fees to ensure that they do not loom as a chilling effect thwarting the public policies that underlie the statutes by subjecting the plaintiff to the threat of “‘“financial ruin.”’” (Id. at p. 868 & fn. 42 [also concluding that record could not support award of legal fees to defendant as a matter of law (id. at p. 869)]; Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831-832 & fn. 4; cf. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1562 [applying Rosenman to award of costs pursuant to Code Civ. Proc., § 998 out of concern that shifting litigation expenses to those ordinarily of modest or low incomes “would unduly discourage these plaintiffs from litigating legitimate claims”].)
California voters have amended the state Constitution to designate expressly a “right of access to information concerning the conduct of the people’s business,” any limitations on which should be “narrowly construed.” (Cal. Const., art. 1, § 3, subds. (b)(1), (b)(2).) CPRA case law is replete with expressions of praise to the fundamental public policy underlying it, typical of which is CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651 (CBS): “Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.” (Accord, International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328-329, 333, fn. 6 (Local 21) [reiterating CBS, and also invoking analogous policy behind open meeting laws (“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know”)].) As a cornerstone of the preservation of the democratic process and the continued faith of the governed in the validity of their political institutions, the CPRA is no less an expression of essential public policy than the civil rights laws, and therefore the principles of Rosenman should apply by analogy. Though the present plaintiff may not be the ideal “instrument” for advancing the CPRA’s public policy in this case, we must be concerned with unsuccessful plaintiffs as a class.
As a consequence, we will not imply any finding that the plaintiff is able to pay the present award of legal fees. As we must remand to correct other errors in the calculation of the fees, the court at that time will need to take evidence and make an express finding on this issue.
Facts
The plaintiff filed her original petition in December 2002. In her amended July 2003 petition (the only pleading that appears in the record), plaintiff Spencer alleged four categories of documents that LMUD failed to produce. The first were “documents reflecting the gross salaries paid to each member of [LMUD]’s Board ‘from March 13, 2002 to the present’ . . . .” She alleged that LMUD had provided only documents redacted to the point of uselessness. The second was “a copy of the ‘Arrow Rock Hydro Project Feasibility Study[,]’” which LMUD claimed was not subject to disclosure. The third request was for “information regarding the status” of this project and the funds expended on it to date, including “‘any monies paid to RW Beck [a consultant] and Mr. Cady [LMUD’s general counsel].’” She alleged that LMUD asserted these records did not exist. The final category was “‘copies of all checks issued to [the president of LMUD’s board] from March 21, 2001[,] to present.’” She again alleged that redactions in the documents provided to her made them useless.
The parties’ appendices also do not include LMUD’s first demurrer, the plaintiff’s second petition, LMUD’s second demurrer, or LMUD’s answer to the July 2003 amended petition.
In her opening brief in support of the July 2003 petition, she clarified that she wanted invoices for the period from December 2000 through September 2002 because LMUD had provided documentation for legal work after that period.
According to the declaration of LMUD’s general manager, LMUD sent the first category of documents to the plaintiff in a letter, via its legal counsel, in early November 2002 (which also included the gross salary for LMUD’s board president). The trial court therefore rejected plaintiff Spencer’s allegation that she did not receive this information (finding indicia in the plaintiff’s own exhibit corroborating the general manager’s account of the timing).
With respect to the second category, LMUD submitted a declaration in its January 2004 opposition from an Idaho attorney who represented a consortium of irrigation districts seeking to develop hydroelectric generating capacity at the Arrowrock Dam, which they operated. The declaration stated that the only existing feasibility study was a preliminary draft that was the work product of the project developer. LMUD’s sole commitment to the project was an agreement to share expenses of the feasibility study, in exchange for the right to decide after reviewing the feasibility study whether to contract for the power output. It had no ownership rights in the preliminary or the ultimate final draft beyond reviewing it to assist in the decision to pursue this power option. RW Beck’s review of the preliminary draft identified the need for additional work before LMUD could rely on the information. Based on this declaration, the trial court concluded LMUD properly declined in a September 2002 letter to the plaintiff to produce this document because it was not a public record and was only a draft report.
In the third category of documents, the trial court agreed that a request for the “current status” of the Arrowrock project did not refer to any existing document but instead amounted to a request to prepare a report, which is not a CPRA obligation. As for her subsequent request for information on the funds expended on the project, LMUD sent her a spreadsheet in November 2002 that showed all Arrowrock invoices (including those for RW Beck) other than those for the costs for the legal services of LMUD’s general counsel. According to the declaration of Mr. Cady, he did not bill LMUD separately for Arrowrock under his retainer agreement until requested to do so in March 2003, thus the trial court agreed that LMUD properly informed her before she filed her petition in 2002 that these records did not then exist.
Apparently, in response to a July 2003 letter renewing the request for the Cady billings, LMUD “produced the requested Cady invoices” in August 2003 (after the plaintiff filed her amended petition), which did not include any separate category for Arrowrock work before March 2003.
As for the fourth category, the trial court found that the plaintiff’s own supporting record showed that her attorney had received all the requested checks relating to LMUD’s board president on November 18, 2002. She was not entitled to have his deductions and net salary disclosed because it would invade his privacy interests.
Discussion
I
In a conclusory one-page argument, plaintiff Spencer claims “LMUD produced numerous documents in response to the Petition, including documents reflecting gross salaries paid to LMUD board members and documents reflecting expenditures in connection with the Arrowrock project . . . . Accordingly, the lower court erred in denying appellant’s request for costs and reasonable attorney fees in this matter.”
Plaintiff Spencer does not at any point discuss the evidence on which the court rested its determination. This forfeits our plenary review of the claim. (Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1337.) As the court noted in its April 2004 order, LMUD averred that it had provided the documents for her first category of requests in November 2002, she was not entitled to production of the draft study that was the object of the second category, LMUD eventually provided all existing documents relating to the third category (except for legal expenses predating March 2003), and LMUD had provided all documents relating to the fourth category before the petition other than information that implicated privacy concerns. She did not prevail on any of her arguments at the hearing for producing these withheld documents. This is substantial evidence that none of the material disclosed to her was the result of the petition.
II
A
Based on the statute’s use of the phrase “clearly frivolous” (§ 6259, subd. (d)), the plaintiff suggests that there is an elevated standard of frivolousness required for an award of legal fees to a defendant. We disagree. “Frivolous,” as applied to litigation, means that any reasonable attorney would agree it lacked merit, or that it was subjectively intended only to harass an opponent. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) This is a terminal point on a gradient. Thus, like a square, a circle, uniqueness, or perfection, it is superfluous to add modifiers suggesting it can be made any more so. Nor do we discern from the statute’s use of the modifier that a “clear and convincing” burden of proof applies, which is irrelevant in any event in the appellate context. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)
B
The judgment entered in this matter denied the petition and awarded legal fees to the defendant without elaborating on the basis for its rulings. However, the court had earlier issued an order that expressed its reasoning on the frivolous status of the plaintiff’s petition, which we may consult for the purpose of affirming the judgment even in the absence of a final statement of decision. (9 Witkin, Cal. Procedure, supra, Appeal, § 345, p. 389.)
“Petitioner filed her petition . . . on December 16, 2002. This was after LMUD had provided her [with] every document she had requested, other than redacting private information [id est, the net salary of the LMUD board president], not producing documents that didn’t exist [id est, invoices for the Arrowrock project’s legal costs or a status report on it], and other than refusing to disclose a draft feasibility study. Petitioner filed numerous confusing, ambiguous and sometimes repetitive requests for public records. She has represented to this court [in her declaration supporting the petition] that the entire feasibility study was on file with [a federal agency], when [only its cover sheet was included as an example of due diligence in advancing the hydroelectric project]. She has represented to this court that she didn’t receive documents, when the record she submitted to the court reflects that she did receive the documents. The law is not in such a state of confusion as to have caused petitioner to reasonably believe that she was entitled to the redacted information or that she was entitled to the draft feasibility study. [¶] For these reasons the court finds that petitioner’s writ of mandate proceedings to obtain the records is clearly frivolous and therefore awards LMUD court costs and reasonable attorney’s fees.”
In the course of 18 months, the plaintiff sent 187 letters (often ambiguous as to whether they were CPRA requests), did not respond to LMUD’s efforts to clarify the nature of her requests, and refused to use a form LMUD developed for CPRA requests (though it is questionable whether the latter can be evidence of bad faith, since requests do not even need to be in writing (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1392)).
Although LMUD had also requested the court to take judicial notice of allegedly inconsistent positions the plaintiff was taking in the present action and before the federal agency (which the plaintiff rationalized in her opposition to the request), the trial court refused to grant the request for judicial notice.
Plaintiff Spencer challenges various aspects of this ruling. We address them seriatim.
1. Subjective Bad Faith
The plaintiff asserts that the trial court failed expressly in its order to ascribe subjective bad faith to her in filing the petition, and we have noted the absence of any rationale in the controlling judgment. However, the trial court did describe the numerous examples of what it considered to be improper conduct, which we assume had a purpose because it would be otherwise unnecessary to a finding of a lack of objective merit. The plaintiff does not attempt to refute the sufficiency of the evidence underlying these factual findings or the sufficiency of these findings to support an inference of her subjective bad faith. The trial court’s award of legal fees therefore can properly rest on this basis.
2. Objective Lack of Arguable Merit
In her reply brief in support of the petition, the plaintiff identified her objects. “This petition comes down to whether LMUD must disclose three types of public records evidencing how it has spent public funds,” those being the draft study, the cost of LMUD’s general counsel’s legal services in furtherance of the Arrowrock project, and the gross amounts on the checks to LMUD’s board president.
Although elsewhere in her trial briefs she asserted an interest in “information redacted from” these checks, her reply brief asserted that she would accept “other public records substantiating the total amount of payments . . ., such as check statements with the deductions and net amounts redacted but disclosing the gross amounts.”
In evaluating the objective merit of seeking disclosure of these records, we must keep in mind that nothing obligated the plaintiff to accept LMUD’s initial responses or characterization of these documents on their face. Rather, the CPRA requires verification of a public agency’s rationale for nondisclosure. (CBS, supra, 42 Cal.3d at p. 651; Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 373; Connell, supra, 56 Cal.App.4th at p. 617; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1585-1586.) For this reason, a court is not obligated to accept the mere representations of a public agency in support of nondisclosure; rather, the public agency bears the burden of establishing that a record is exempt with evidence (through declarations under penalty of perjury or otherwise) in support of its position. (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 299, 302-303 [burden on agency; conjectural assertion of possible endangerment does not clearly outweigh public interest in access to records]; Local 21, supra, 42 Cal.4th at pp. 336-338 [agency must present evidence in favor of nondisclosure]; CBS, supra, 42 Cal.3d at p. 652 [same]; Connell, supra, 56 Cal.App.4th at p. 617 [will not rely on Controller’s assurance that “she is performing her task properly and is herself seeking out unpaid vendors” because this is akin to giving absolute discretion without demanding accountability], see id. at pp. 612-613, 615; New York Times Co., supra, 218 Cal.App.3d at pp. 1585-1586 [will not accept water agency’s speculation without any evidentiary basis that revealing identity of “water hogs” will lead to threats or acts of violence against them]; cf. People v. Guevara (2007) 148 Cal.App.4th 62, 68-69 [court cannot deny motion for access to confidential personnel records based only on representations of custodian of records; court must review records for itself].) Otherwise there would not be a need for the provision in section 6259 for in camera review of documents to substantiate an agency’s objection to disclosing them. (E.g., American Federation of State etc. Employees v. Regents of University of California (1978) 80 Cal.App.3d 913, 916, 918.) Indeed, LMUD’s own responses invited the plaintiff to “seek redress from the Lassen County Superior Court” if she were not satisfied. After all, courts must remember in awarding legal fees for a frivolous action that “[d]ecisive facts may not emerge until discovery or trial.” (See Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 422 [54 L.Ed.2d 648] [in determining whether discrimination action frivolous, a court should keep this in mind and award legal fees only when plaintiff continued to litigate after lack of merit clear].) A fortiori, the plaintiff was entitled to demand substantiation of LMUD’s positions sufficient to satisfy a reasonable attorney that LMUD was correct to withhold them.
Nonetheless, as we will elaborate, the plaintiff for the most part persisted in this litigation well after receipt of information adequate to support LMUD’s assertions. For this reason, the award of legal fees can be supported on this basis as well.
Draft study: LMUD issued a press release in April 2001 announcing its intention to pursue the power output from the Arrowrock project. The issue subsequently appears in numerous minutes of the LMUD board. LMUD agreed to pay up to $150,000 toward the costs of the feasibility study pursuant to an August 2001 memorandum of understanding (MOU) with the irrigation districts that operated the dam. In the MOU, the parties agreed “to expeditiously proceed to negotiate a power purchase and sale agreement (‘PPA’)” for all the dam’s surplus output, containing various terms derived from a PPA with Seattle; however, “LMUD, in order to enter into a binding [PPA]must obtain approval of its Board of Directors by resolution.” (Italics added.) The MOU also reserved the right of LMUD to cancel if cost estimates exceeded a particular figure. Therefore, this was a significant project of obvious public concern for LMUD constituents with respect to the obligations LMUD might incur.
In response to plaintiff Spencer’s initial September 2002 request for a copy of the feasibility study, LMUD sent a letter with a laundry list of statutes exempting it from disclosure. These included section 6254, subdivisions (a) and (h), and the inchoate “deliberative processes” exemption (e.g., Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325). At some point after February 1, 2003, the general manager of LMUD sent the plaintiff a copy of the MOU.
The record is unclear at what point exactly the plaintiff received a copy of the MOU. Her declaration in support of the July 2003 amended petition, which includes a copy, is tellingly silent on the point. However, in her index of the record that she filed in support of the petition (which she did not include in her appendix but with which we have augmented the record), she states that she received it from a general manager who assumed that office as of February 1, 2003.
Section 6254, subdivision (h), exempts “The contents of . . . engineering or feasibility estimates . . . made for . . . [a] local agency relative to . . . prospective public supply . . . contracts, until . . . all of the contract agreement [is] obtained.” Based on information in her possession before she filed her July 2003 amended petition, the plaintiff was well aware that the draft was a feasibility study relative to a prospective public supply contract for hydroelectric power. Her sole argument against the application of this exemption is a misreading of the MOU as being a “done deal” for the purchase of power from the consortium of irrigation districts. As we have indicated above, the MOU refutes this on its face: in return for sharing the costs of the feasibility study, LMUD obtained the right to negotiate a PPA in the future on the same material terms as Seattle, subject to the approval of LMUD’s board by a resolution, and to LMUD’s right to cancel any further obligation if the ultimate development costs were excessive. Any reasonable attorney with these facts in hand would realize the lack of objective merit in continuing litigation that sought disclosure of the draft. Whether other bases for withholding the draft were valid is consequently immaterial.
Nothing prohibited LMUD from disclosing the draft study notwithstanding the exemption in light of the overwhelming public interest in the Arrowrock project. (CBS, supra, 42 Cal.3d at p. 652.) The plaintiff, however, could not compel disclosure.
Invoices for Arrowrock legal costs: This was simply a question of whether these records actually existed in the format that the plaintiff requested. As we noted above, there is no authority requiring the plaintiff to have accepted LMUD’s representation that it did not require segregation of its attorney’s work on the Arrowrock project, as it is unusual that a public agency would not require its counsel to keep track of the hours spent on such a significant matter. There is no showing that the plaintiff had corroboration of this unusual billing format until LMUD provided copies in August 2003 (long after the initial petition and after the amended petition), and there is no showing that the plaintiff should have known that the heavily redacted portions of the August 2003 copies did not conceal pertinent information (absent the trial court’s review of the originals in camera, which the plaintiff kept unsuccessfully seeking as late as her reply brief in support of the petition). Finally, LMUD’s attorney did not provide any evidence describing his billing practice under penalty of perjury until January 2004. We therefore cannot find that any reasonable attorney would have found a lack of objective merit in pursuing this request to its ultimately unsuccessful resolution.
Gross salary amount on checks: The plaintiff asserts she only petitioned to compel disclosure of the net amounts paid to LMUD’s board president because she had never received the checks showing his gross salary, and abjures yet again on appeal any interest in the net amounts. However, we note yet again that there is substantial evidence to support a finding that she had adequate documentation of the gross amounts before filing her petition. As a result, this aspect of the petition was objectively frivolous.
Local 21 affirms at length the significant public interest in the disclosure of the names and gross salaries of almost every public employee, except perhaps for undercover peace officers. (42 Cal.4th at pp. 331-333, 337.) It has been argued that the public does not have a interest in the nature and amount of voluntary wage deductions sufficient to warrant disclosure (82 Ops.Cal.Atty.Gen. 159, 163 (Aug. 6, 1999) [concluding, however, in that particular case public does have interest in extent to which district attorney is satisfying outstanding tax liens through garnishment of salary]), but we have not identified any controlling authority that the bare net amount itself must be withheld as well.
Seeking documents already provided: It belabors the obvious to state that no reasonable attorney would think there was merit in seeking to compel that which has already happened. This was an additional objectively frivolous aspect of the petition.
Propriety of legal fees for a partially frivolous petition: We are therefore left with a petition that lacked any arguable merit except for the efforts to disclose the legal fees paid to LMUD’s general counsel for Arrowrock work, and that did not become frivolous as to the draft feasibility study until the plaintiff received a copy of the MOU sometime in 2003. Sanctions are appropriate for a complaint that is frivolous in part if those aspects are significant and material, and there is no logical obstacle to extending this principle to a frivolous petition under the CPRA. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 875-876) (Bach); Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1010.) The non frivolous portions of the present petition were only a minor part of what the plaintiff sought to disclose. As a result, an award of legal fees to LMUD is still warranted.
In theory, the award of legal fees should not include those billed in connection the non frivolous matters. (Bach, supra, 207 Cal.App.3d at p. 880.) However, this apportionment between recoverable and nonrecoverable legal fees is not required where common issues of fact or law underlie both the frivolous and non frivolous aspects of the petition, or if efforts underlying the recoverable fees are inextricably entwined with the remainder such that it is impracticable or impossible to segregate the conjoined activities into discrete time units. (Cf. Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [both cases involving apportionment of legal fees recoverable pursuant to contract].)
However, there is nothing in the record to indicate that the non frivolous portions of her petition were a discrete target in the “demurrer wars” that followed in 2003 (the plaintiff not having provided any of these pleadings or the supporting memoranda), or that they significantly increased the costs of responding to the petition on its merits. We therefore conclude that she has failed to carry her burden of demonstrating that legal fees for responding to the request for the draft feasibility study or for copies of the LMUD attorney’s Arrowrock billing were not hopelessly entwined with litigating the remainder of the petition as a whole such that it would be impracticable to excise them.
Moreover, in light of the finding of subjective bad faith, even these fees could be recovered on that basis. In any event, once the award of legal fees is limited on remand to an amount that the plaintiff can afford, this increment may be meaningless.
III
The plaintiff contends that permitting a large award of legal fees creates a disincentive to petitions under the CPRA. In the first place, her argument rests on the mistaken premise that her “legal arguments were valid.” As we have demonstrated above, this is not the case except for the small portions of the petition that were not initially frivolous, and in any event ignores the finding of subjective bad faith. In the second place, the standard for deciding that litigation is frivolous already incorporates the concern that legitimate claims not be discouraged. (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 648-650.) Third, the Legislature has not specified any upper limit on the amount of an award of legal fees under section 6259. The need for a cap is an evaluation that needs legislative fact finding on the frequency and amounts of awards for frivolous petitions, and a policy decision that these figures are likely to discourage CPRA litigation; these are both assessments that courts should eschew. Certainly, this court has not discerned any disturbing developing trend to this effect in CPRA cases, and does not feel the consequent need to rush in where judicial angels fear to tread. Finally, the protection under Rosenman from an award that exceeds a plaintiff’s ability to pay is sufficient to dispel any “chill.” (Rosenman, supra, 91 Cal.App.4th at pp. 867-868.)
Choate v. County of Orange (2000) 86 Cal.App.4th 312 is thus in apposite, because it reversed an award of legal fees to the defendants after finding that the action was not frivolous.
IV
A
The trial court issued a 13-page order after the entry of the judgment determining the amount of legal fees to award. We will attempt to distill it to its essence.
In support of their motion for fees, the LMUD attorneys submitted a nine-page itemized schedule of the hours the supervising partner and his associate billed for this matter between December 31, 2002, and June 2, 2004. They sought an hourly rate of $160 for the supervising partner and $140 for the associate. The total hours for the former were 133.3, for a total award of $21,000 (rounded). The total hours for the latter were 357.7, for a total award of $50,000 (rounded).
The court addressed specific claims the plaintiff had raised in her opposition to the motion. It first found that she had not provided any basis for reducing the amount of time billed for the demurrers filed to her first two petitions; it concluded that the partner’s hours on the first demurrer were reasonable, reduced the associate’s by more than half, and refused to deduct anything from the hours for the second (and allegedly identical) demurrer. In response to the plaintiff’s claim of excessive hours in answering the petition, the court disallowed half of the associate’s hours. At the plaintiff’s behest, the trial court disallowed hours billed for unused subpoenas and untimely filings that the court never considered. It rejected what it perceived to be the plaintiff’s argument of excessive billing for a “Notice of Entry of Judgment.” On the issue of the amount of time that LMUD claimed for preparing the motion for legal fees, the court again criticized the plaintiff for failing to offer any evidence of the reasonable amount of time it should have taken; however, it again found the partner’s hours to be proper and reduced the associate’s hours by more than half.
The court agreed to deduct hours at the plaintiff’s request where unrelated matters were included without apportionment, but rejected her claim that the partner and the associate needlessly duplicated each other’s work. In response to the plaintiff’s claim that the schedule did not accurately reflect the actual invoices available from March to November 2003, the court noted that there were numerous redactions in the invoices for the last three months that made it difficult to verify the hours claimed in the motion; however, “most of the readable portions of these entries do conform with the entries on the time records of [LMUD]’s attorneys,” and the court therefore allowed all of the hours claimed (subject to certain specific exceptions).
In response to the plaintiff’s claim that no published case had awarded fees in this amount in a CPRA action, the court noted the plaintiff had not cited any case that would hold them to be excessive. The court also rejected her claim that her petition was not frivolous until the Idaho attorney filed his declaration, because LMUD had itself communicated the same information to her before she filed the petition.
On the issue of the proper hourly rate, the court found that the fair market value for the attorneys’ services was $135, as reflected in their invoices to LMUD for work performed between March and September 2003, and found the same rate should apply to work preceding March 2003. Starting on September 10, 2003, it found the fair market value reflected the rates sought in the motion. For numerous specific dates, the court set the rate at $100 (apparently reflecting a lower rate billed to LMUD in the actual invoices). It rejected the plaintiff’s claim that the rate should be limited to the $110 set in a 1997 retainer, which the court found was insufficiently contemporaneous evidence of the fair market value for their services.
In the final six pages of its order, the court went through the entries on the itemized schedule. For the period through March 9, 2003, it reiterated the various exclusions that it had recited earlier in its order. For the period from March 10, 2003, through September 9, 2003, it listed the specific dates and hours that it was allowing. Finally, for the period after September 9, it simply accepted the itemized schedule except for a list of the dates on which it allowed a rate of only $100. The court also disallowed any costs for want of adequate documentation.
B
The plaintiff contends that erroneous statements in the order calculating the legal fees are evidence of “passion and prejudice against [her].” Even if the plaintiff were correct that the passages are erroneous, “[e]rrors of law standing alone do not constitute bias or prejudice . . . .” (Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, 423.) Moreover, we note that LMUD explains correctly why none of the cited statements were erroneous in its opposition brief at pages 45 to 49.
C
Relying on dictum in Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano) (“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether”), and a holding that denied any award of legal fees for litigating a motion that sought an unwarranted amount of legal fees for litigating the underlying action (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 455), the plaintiff contends the trial court should have denied an award of legal fees altogether because it had found over 70 hours to be unwarranted. The plaintiff forgets that it is the trial court’s discretion, not ours, to deny an award of legal fees on this basis. It is therefore not surprising that she has not cited any case in which there was a reversal on this ground of a trial court’s award of legal fees. In the present matter, the trial court made an extensive examination of the fees requested and hardly acted as a rubber stamp on the motion. As noted, the LMUD attorneys initially sought a total of 491 hours in the amount of $71,000 (rounded). We do not find an abuse of discretion in the implicit conclusion (the plaintiff not having argued against an award of fees on this basis in the trial court) that a reduction in hours and fees of approximately 15 and 25 percent respectively does not render the original request “exorbitant.”
D
The plaintiff contends the trial court abused its discretion because it awarded fees for work performed throughout the case and disregarded her argument that the litigation over disclosing the draft study did not become frivolous until LMUD produced the declaration of the Idaho lawyer. She does not demonstrate how this declaration has any impact on the frivolous character of the rest of her petition. Moreover, we have concluded that the MOU in her possession before she filed her July 2003 amended petition would have alerted a reasonable person that the “feasibility study” exemption would apply. Therefore, the declaration was not the point at which the litigation became frivolous.
E
The plaintiff makes several arguments that the trial court erred in failing to reduce the fees claimed. We note with some vexation that LMUD abjured its responsibility to respond to these claims specifically in its opposition brief (reflecting a similar failure in the trial court).
1. Misstatements in Itemized Schedule
Renewing and amplifying her contention below, the plaintiff points to the discrepancies between the invoices that the LMUD attorneys sent to their client and the itemized schedule that they submitted to the trial court. These amounted to about $5,000 over the course of nine months. She contends that the trial court erred in disregarding these discrepancies and, plucking a figure from the air, argues we should assume that the months for which no actual invoices are available are similarly overstated on the average by $1,000 per month and thus we should reduce the award accordingly.
The plaintiff prepared an exhibit that made a painstaking comparison between the itemized statement and the actual invoices from March 10 to November 20, 2003. Although finding redactions in the September through November invoices too extensive to allow meaningful comparison, the trial court neither asked LMUD for unredacted copies to review in camera, nor expressly considered the apparent errors that the plaintiff identified in the invoices for March through August. As the plaintiff produced affirmative evidence of the unreliability of the itemized schedule at least in this regard, the trial court’s course of action amounted to an abuse of discretion. On remand, LMUD shall either produce the unredacted copies of the invoices for review in camera, or the trial court shall disallow any fees for the September-November 2003 period. The trial court shall also evaluate irregularities that the plaintiff identified for the March-August 2003 period.
2. Fees for Filing Judgment
Renewing another trial court argument, the plaintiff claims it was an abuse of discretion to accept a claim of 4.8 hours for filing the judgment in this matter. As noted above, the trial court concluded this was an unsubstantiated argument.
The billing entries for May 25-27, 2004, which she cited in her opposition in the trial court, state “Research entry of judgment issue” (2.3 hours), “Further research entry of judgment issue; draft judgment denying petition for writ of mandate” (6 hours, not the .6 that the plaintiff apparently believes), and “Further work on points and authorities [for the attorney fees motion]; draft judgment denying petition for writ of mandate” (1.9 hours), for a total of 10.2 hours (not 4.8).
We cannot fathom what research and drafting efforts were necessary for a judgment scarcely longer than one page that, other than recite historic facts, simply denies the petition and awards legal fees in two sentences. We believe the trial court was misled as a result of the plaintiff’s misdescription of these entries as applying to the filing of the notice of the entry of the judgment in this matter (which occurred a few weeks after the entries that the plaintiff was actually challenging). Putting aside the problem of apportioning the 1.9 hours on May 27, 2004, between the judgment and the points and authorities for the attorney fees motion, it would be an abuse of discretion to award 8.3 hours for filing this judgment. On remand, now that its attention is drawn to the proper entries, the trial court can determine the amount of time a reasonable member of its legal community would take to prepare a judgment such as the one in this matter.
3. Fees for Identical Demurrer
On another issue raised in the trial court, the plaintiff argues the court abused its discretion in reimbursing LMUD an additional 18.5 hours for work on March 11-13, 2003, to prepare and file the second demurrer. As noted above, the court reduced the total reimbursable hours for the associate on the first demurrer by more than one-half, and found the hours for the second demurrer were reasonable.
The plaintiff, as noted, failed to include the two pleadings anywhere in her appendix. Having failed to provide a sufficient record to determine whether it was an abuse of discretion to allow additional hours for the second demurrer, this contention is forfeited on appeal.
4. Hourly Rate
The plaintiff, without citing any authority in support, renews her argument that the hourly rates for the LMUD attorneys cannot exceed the rate ($110) in the 1997 retainer. This claim is contrary to the black-letter principle under the “lodestar” method of determining an award of legal fees, where it is the reasonable market value of the attorneys’ services and not their actual compensation that is relevant. (Serrano, supra, 32 Cal.3d at p. 643 [denying discovery of salaries of opposing counsel as irrelevant]; Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274-275 [fact that paralegal services were voluntary is not a basis for denying recovery as part of legal fees]; see Flannery v. Prentice (2001) 26 Cal.4th 572, 585; 16 Cal.Jur.3d (2002) Costs, § 133, p. 187.) The lodestar method applies to awards of legal fees absent an express legislative indication to the contrary. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134-1136.) Section 6259 allows either a prevailing plaintiff or the defendant in a frivolous action to recover “reasonable” legal fees, which reflects the general rule rather than any limitation on defendants to their actual legal costs.
For example, in “private attorney general” cases, there is an express prohibition on the use of a “multiplier” in awards of legal fees to public entities. (Code Civ. Proc., § 1021.5.)
In any event, the trial court in fact did limit the rate for the most part to what the attorneys charged LMUD at the time of this proceeding, finding this to be the fair market value. The plaintiff has not supplied any contemporaneous evidence that would render this determination to be an abuse of discretion.
5. “Credibility Issues”
The plaintiff contends the trial court “overlooked serious credibility issues” in the documentation of the LMUD attorneys. To the extent these claims echo her contentions in the trial court, the trial court either expressly or impliedly resolved them, and such credibility resolutions are not for this court to determine de novo. To the extent she raises them for the first time on appeal, they are forfeited.
F
This leaves her claim that the total represents an abuse of discretion compared with other cases (paired with the argument we have already rejected regarding the potential chilling effect of a large award on other CPRA litigation). She simply cites a case that does not give any indication of the basis for an award of almost $4,000 in sanctions that it affirms (the analysis in the published part of the opinion being limited to the appeal ability of the order). (Butt, supra, 44 Cal.App.4th 925.) The case is therefore not authority as an outer limit on the amount of an award of legal fees under the CPRA.
Disposition
In appeal No. C047584, the judgment is affirmed as to the denial of legal fees to the plaintiff and the entitlement of LMUD to legal fees, but the matter is remanded to redetermine the general accuracy of the hours claimed from March through November 2003 and specifically for preparing the judgment. Once the total award is corrected, the trial court must then determine the ability of the plaintiff to pay it. The purported separate appeal from the post judgment order (appeal No. C048829) is dismissed. Neither party shall recover costs of appeal. (Cal. Rules of Court, rule 8.278.)
We concur: SCOTLAND, P.J., MORRISON, J.