Filed 6/26/15 Law Offices of Marc Grossman v. Victor Elementary School CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           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

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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




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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).)


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       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.


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       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.



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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.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                         P. J.


We concur:

McKINSTER
                           J.

CODRINGTON
                           J.




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