Filed 6/26/15 Certified for Publication 7/21/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LAW OFFICES OF MARC GROSSMAN,
Plaintiff and Appellant, E059579
v. (Super.Ct.No. CIVVS1103873)
VICTOR ELEMENTARY SCHOOL OPINION DISTRICT,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. David S. Cohn,
Judge. Reversed.
Law Office of Marc Grossman and Jake Richards for Plaintiff and Appellant.
Orrock, Popka, Fortino, Tucker & Dolen; Dennis G. Popka and M. Wayne Tucker
for Defendant and Respondent.
The Law Firm of Marc Grossman (plaintiff or Law Firm) represented a student of
defendant Victor Elementary School in a civil action arising from an assault that took
place at the school. The plaintiff, in the name of the law firm, filed a petition for writ of
1 mandate in the trial court under the Public Records Act (Govt. Code, § 6258) seeking
documentation reflecting the amount of money spent defending the litigation. That
petition was denied, so relief was sought in this Court, which granted the petition. Upon
issuance of the remittitur, plaintiff filed a Memorandum of Costs seeking, among other
costs, attorneys’ fees for the petition. The trial court granted defendant’s motion to tax
costs, denying attorneys’ fees. Plaintiff appealed from the denial of attorneys’ fees.
On appeal, plaintiff argues the trial court erred in denying fees on the ground
plaintiff represented itself in the trial court. We reverse.
BACKGROUND
Due to the limited record, we take judicial notice of the records in the previous
writ proceedings in Case No. E056931, Law Offices of Marc E. Grossman v. Victor
Elementary School. In that proceeding, plaintiff Law Firm filed a petition for writ of
mandate in the trial court, as a member of the public, seeking disclosure of documents
reflecting the amount defendant had expended in defense of the civil action entitled Jose
E[.], a minor, v. Victor Elementary School District, et al., San Bernardino Superior Court
Case No. VCVVS041304.
The trial court denied the petition, giving rise to the filing of a petition for writ of
mandate in this Court, again in the name of the Law Firm. We directed that the Superior
Court vacate its order denying the petition and enter a new order granting the requested
disclosure. (Law Offices of Marc E. Grossman v. Victor Elementary Sch. Dist. (Oct. 12,
2012, E056921, unpub. opn. p. *4.) Our disposition further stated that pursuant to
2 Government Code section 6259, petitioner was entitled to recover its court costs and
reasonable attorney fees. (Ibid.)
Following issuance of the remittitur, plaintiff filed a Memorandum of Costs,
including $16,327.00 for attorney fees on line 10. Defendant filed a motion to tax costs,
challenging only the amount of attorney fees sought. The trial court noted that a
judgment in the mandamus matter had not yet been entered. The court entered judgment
directing defendant to release to plaintiff all documents reflecting the total amount of
money spent on attorney’s fees defending, awarded plaintiff costs in the amount of
$1375.00, but awarded no attorney fees on the ground that an attorney representing
himself cannot recover attorneys’ fees. Plaintiff appealed.
DISCUSSION
Government Code section 6259, subdivision (d), the California Public Records
Act (CPRA), provides that the court shall award court costs and reasonable attorney fees
to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.
(Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058,
1065.)
The CPRA was enacted for the purpose of increasing freedom of information by
giving members of the public access to information in the possession of public agencies.
(Braun v. City of Taft (1984) 154 Cal.App.3d 332, 342.) The Legislature has declared
that such “access to information concerning the conduct of the people’s business is a
fundamental and necessary right of every person in this state.” (Govt. Code, § 6250; see
also, Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425–426 (Filarsky).)
3 The CPRA includes protections and incentives for members of the public to seek
judicial enforcement of their right to inspect public records subject to disclosure, one of
which is the provision that the court shall award court costs and reasonable attorney fees
to the prevailing plaintiff. (Filarsky, supra, 28 Cal.4th at p. 427.) The very purpose of
the attorney fees provision is to provide protections and incentives for members of the
public to seek judicial enforcement of their right to inspect public records subject to
disclosure. (Community Youth Athletic Center v. City of National City (2013) 220
Cal.App.4th 1385, 1447.) The CPRA mandates a fee award to a plaintiff if it prevails,
and to a defendant only if the plaintiff’s case is clearly frivolous. (L.A. Times v. Alameda
Corridor Transp. Auth. (2001) 88 Cal.App.4th 1381, 1391.)
We review an award of fees and costs by the trial court for abuse of discretion.
(Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1379.) However,
de novo review of an award is appropriate where the determination of whether the criteria
for an award of attorney fees and costs have been satisfied amounts to statutory
construction and a question of law. (Ibid.; Bertoli v. City of Sebastopol (2015) 233
Cal.App.4th 353, 365.)
Here, plaintiff was the prevailing party in the underlying mandamus proceeding.
On remand, the defendant did not initially challenge plaintiff’s entitlement to an award of
attorney fees. Instead, at the hearing on the motion to tax costs, it was the court, which,
for the first time, questioned plaintiff’s entitlement to attorney fees, referring to the
holding of Trope v. Katz (1995) 11 Cal.4th 274 (Trope). This was improper, without
giving plaintiff an opportunity to address the issue.
4 On appeal, defendant relies on the reasoning of Trope, but Trope is inapposite. In
Trope, a law firm sued an ex-client for unpaid attorney’s fees and sought attorney’s fees
with regard to the action for recovery of those attorney’s fees. There, the action to
recover fees was based on Code of Civil Procedure section 1717, which permits an award
of fees in any action on a contract where the contract specifically provides for such fees
and costs. The Supreme Court reasoned that the term “fee” related to the consideration
that a litigant actually paid or became liable to pay in exchange for legal representation,
and that an attorney litigating in propria persona pays no such compensation. (Trope,
supra, 11 Cal.4th at p. 280.) That case did not involve a petition brought pursuant to the
CPRA, and it did not involve a law firm seeking disclosure of public information relating
to civil litigation defense costs in other cases.
Here, the Law Firm represented a plaintiff, Jose E., in an action against the
defendant arising from injuries sustained in a violent bathroom assault.1 Although the
Law Firm filed the petition for writ of mandate in its own name, the petition clearly
alleged that it sought documentation relating to the amount of money spent defending the
civil case litigated on behalf of Jose E. The mandamus action was not filed to seek
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Filed 6/26/15 Certified for Publication 7/21/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LAW OFFICES OF MARC GROSSMAN,
Plaintiff and Appellant, E059579
v. (Super.Ct.No. CIVVS1103873)
VICTOR ELEMENTARY SCHOOL OPINION DISTRICT,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. David S. Cohn,
Judge. Reversed.
Law Office of Marc Grossman and Jake Richards for Plaintiff and Appellant.
Orrock, Popka, Fortino, Tucker & Dolen; Dennis G. Popka and M. Wayne Tucker
for Defendant and Respondent.
The Law Firm of Marc Grossman (plaintiff or Law Firm) represented a student of
defendant Victor Elementary School in a civil action arising from an assault that took
place at the school. The plaintiff, in the name of the law firm, filed a petition for writ of
1 mandate in the trial court under the Public Records Act (Govt. Code, § 6258) seeking
documentation reflecting the amount of money spent defending the litigation. That
petition was denied, so relief was sought in this Court, which granted the petition. Upon
issuance of the remittitur, plaintiff filed a Memorandum of Costs seeking, among other
costs, attorneys’ fees for the petition. The trial court granted defendant’s motion to tax
costs, denying attorneys’ fees. Plaintiff appealed from the denial of attorneys’ fees.
On appeal, plaintiff argues the trial court erred in denying fees on the ground
plaintiff represented itself in the trial court. We reverse.
BACKGROUND
Due to the limited record, we take judicial notice of the records in the previous
writ proceedings in Case No. E056931, Law Offices of Marc E. Grossman v. Victor
Elementary School. In that proceeding, plaintiff Law Firm filed a petition for writ of
mandate in the trial court, as a member of the public, seeking disclosure of documents
reflecting the amount defendant had expended in defense of the civil action entitled Jose
E[.], a minor, v. Victor Elementary School District, et al., San Bernardino Superior Court
Case No. VCVVS041304.
The trial court denied the petition, giving rise to the filing of a petition for writ of
mandate in this Court, again in the name of the Law Firm. We directed that the Superior
Court vacate its order denying the petition and enter a new order granting the requested
disclosure. (Law Offices of Marc E. Grossman v. Victor Elementary Sch. Dist. (Oct. 12,
2012, E056921, unpub. opn. p. *4.) Our disposition further stated that pursuant to
2 Government Code section 6259, petitioner was entitled to recover its court costs and
reasonable attorney fees. (Ibid.)
Following issuance of the remittitur, plaintiff filed a Memorandum of Costs,
including $16,327.00 for attorney fees on line 10. Defendant filed a motion to tax costs,
challenging only the amount of attorney fees sought. The trial court noted that a
judgment in the mandamus matter had not yet been entered. The court entered judgment
directing defendant to release to plaintiff all documents reflecting the total amount of
money spent on attorney’s fees defending, awarded plaintiff costs in the amount of
$1375.00, but awarded no attorney fees on the ground that an attorney representing
himself cannot recover attorneys’ fees. Plaintiff appealed.
DISCUSSION
Government Code section 6259, subdivision (d), the California Public Records
Act (CPRA), provides that the court shall award court costs and reasonable attorney fees
to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.
(Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058,
1065.)
The CPRA was enacted for the purpose of increasing freedom of information by
giving members of the public access to information in the possession of public agencies.
(Braun v. City of Taft (1984) 154 Cal.App.3d 332, 342.) The Legislature has declared
that such “access to information concerning the conduct of the people’s business is a
fundamental and necessary right of every person in this state.” (Govt. Code, § 6250; see
also, Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425–426 (Filarsky).)
3 The CPRA includes protections and incentives for members of the public to seek
judicial enforcement of their right to inspect public records subject to disclosure, one of
which is the provision that the court shall award court costs and reasonable attorney fees
to the prevailing plaintiff. (Filarsky, supra, 28 Cal.4th at p. 427.) The very purpose of
the attorney fees provision is to provide protections and incentives for members of the
public to seek judicial enforcement of their right to inspect public records subject to
disclosure. (Community Youth Athletic Center v. City of National City (2013) 220
Cal.App.4th 1385, 1447.) The CPRA mandates a fee award to a plaintiff if it prevails,
and to a defendant only if the plaintiff’s case is clearly frivolous. (L.A. Times v. Alameda
Corridor Transp. Auth. (2001) 88 Cal.App.4th 1381, 1391.)
We review an award of fees and costs by the trial court for abuse of discretion.
(Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1379.) However,
de novo review of an award is appropriate where the determination of whether the criteria
for an award of attorney fees and costs have been satisfied amounts to statutory
construction and a question of law. (Ibid.; Bertoli v. City of Sebastopol (2015) 233
Cal.App.4th 353, 365.)
Here, plaintiff was the prevailing party in the underlying mandamus proceeding.
On remand, the defendant did not initially challenge plaintiff’s entitlement to an award of
attorney fees. Instead, at the hearing on the motion to tax costs, it was the court, which,
for the first time, questioned plaintiff’s entitlement to attorney fees, referring to the
holding of Trope v. Katz (1995) 11 Cal.4th 274 (Trope). This was improper, without
giving plaintiff an opportunity to address the issue.
4 On appeal, defendant relies on the reasoning of Trope, but Trope is inapposite. In
Trope, a law firm sued an ex-client for unpaid attorney’s fees and sought attorney’s fees
with regard to the action for recovery of those attorney’s fees. There, the action to
recover fees was based on Code of Civil Procedure section 1717, which permits an award
of fees in any action on a contract where the contract specifically provides for such fees
and costs. The Supreme Court reasoned that the term “fee” related to the consideration
that a litigant actually paid or became liable to pay in exchange for legal representation,
and that an attorney litigating in propria persona pays no such compensation. (Trope,
supra, 11 Cal.4th at p. 280.) That case did not involve a petition brought pursuant to the
CPRA, and it did not involve a law firm seeking disclosure of public information relating
to civil litigation defense costs in other cases.
Here, the Law Firm represented a plaintiff, Jose E., in an action against the
defendant arising from injuries sustained in a violent bathroom assault.1 Although the
Law Firm filed the petition for writ of mandate in its own name, the petition clearly
alleged that it sought documentation relating to the amount of money spent defending the
civil case litigated on behalf of Jose E. The mandamus action was not filed to seek
compensation for the Law Firm or to obtain any other relief beneficial to the plaintiff
firm alone. It was filed to obtain information pertinent to three separate civil actions filed
on behalf of separate clients of plaintiff. To deny fees because the petition was filed in
1 The Law Firm asserted in its opening brief that it also represented several of Jose E.’s classmates who had been molested by their teacher, an employee of defendant.
5 the name of the Law Firm is to elevate form over substance. But “[w]e care about the
nature of the transaction, not the label attached.” (Microsoft Corp. v. Franchise Tax
Board (2006) 39 Cal.4th 750, 761.)
More importantly, our order in the previous proceedings on mandamus stated that
“petitioner shall recover its court costs and reasonable attorney fees.” [Italics added.] In
defendant’s motion to tax costs, the school district did not contend that attorney fees were
not allowed, nor did defendant assert that plaintiff was not entitled to fees because it had
litigated the mandamus petitions in propria persona. It merely objected to the amount
requested by plaintiff for attorney fees. The trial court abused its discretion by applying
an inapposite decision to deny attorney fees without prior notice to the plaintiff.
DISPOSITION
The portion of the judgment denying attorney fees to plaintiff is reversed. The
matter is remanded to the San Bernardino Superior Court for a determination of
reasonable attorney’s fees to which plaintiff is entitled.
RAMIREZ P. J.
We concur:
McKINSTER J.
CODRINGTON J.
6 Filed 7/21/15 CERTIFIED FOR PUBLICATION
ORDER
LAW OFFICES OF MARC GROSSMAN, E059579 Plaintiff and Appellant, (Super.Ct.No. CIVVS1103873) v. The County of San Bernardino VICTOR ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent. _______________________________________
A request having been made to this court pursuant to California Rules of Court, rule 8.1120(a), for publication of a nonpublished opinion heretofore filed in the above matter on June 26, 2015, and it appearing that the opinion meets the standards for publication as specified in California Rules of Court, rule 8.1105(c),
IT IS SO ORDERED that said opinion be certified for publication pursuant to California Rules of Court, rule 8.1105(b).
I concur: