Filed 8/15/17

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



PONANI SUKUMAR,                                    D071527

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. 37-2015-00032528-
                                                                   CU-WM-CTL)
CITY OF SAN DIEGO,

        Defendant and Respondent.


        APPEAL from an order of the Superior Court of San Diego County, John S.

Meyer, Judge. Reversed and remanded with directions.

        Friedhofer PC and James E. Friedhofer for Plaintiff and Appellant.

        Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and

Catherine A. Richardson, Deputy City Attorney, for Defendant and Respondent.

        Litigation under the Public Records Act (PRA) (Gov. Code,1 § 6250 et seq.) is

one of the rare instances where a losing party may still be deemed a prevailing party

entitled to an attorney fee award. This is because the plaintiff has prevailed within the

meaning of the PRA when he or she files an action that "results in defendant releasing a

1       Undesignated statutory references are to the Government Code.
copy of a previously withheld document." (Belth v. Garamendi (1991) 232 Cal.App.3d

896, 898 (Belth).)

       Thus, a plaintiff need not achieve a favorable final judgment to be a prevailing

party in PRA litigation. A defendant's voluntary action in providing public records that is

induced by plaintiff's lawsuit will still support an attorney fee award on the rationale that

the lawsuit "'spurred defendant to act or was a catalyst speeding defendant's response.'"

(Belth, supra, 232 Cal.App.3d at p. 901.)

       In this PRA litigation, Ponani Sukumar appeals an order denying his motion for

prevailing party attorney fees against the City of San Diego (City). We reverse because

the undisputed evidence establishes the City produced, among other things, five

photographs of Sukumar's property and 146 pages of e-mails directly as a result of court-

ordered depositions in this litigation. We remand for the trial court to determine the

amount of attorney fees to which Sukumar is entitled.

                     FACTUAL AND PROCEDURAL BACKGROUND

       As explained post, the primary issue is whether substantial evidence supports the

trial court's finding that Sukumar's lawsuit did not cause the City to release requested

public records. To resolve this issue, it is necessary to examine the parties'

communications, the timing of the public record productions, and the nature of the

records produced.




                                              2
       A. Historical Background

       Sukumar owns a home in San Diego (the Property). In about 1992, Sukumar's

neighbors began complaining to the City about Sukumar's use of the Property. These

complaints mostly involved parking issues and noise.

       In 2005 Sukumar's neighbors complained to the City that Sukumar was operating a

business on the Property and had installed industrial equipment in the garage. The City's

Neighborhood Code Compliance Department (NCC) began investigating.

       In 2006 the City ordered Sukumar to take "immediate action to correct" municipal

code violations occurring on the Property that constituted "a public nuisance." However,

the City decided to not pursue the matter absent additional neighbor complaints.

       In 2013 NCC again investigated neighborhood complaints about the Property. An

NCC investigator inspected the Property, saw large fans mounted on the exterior wall and

a new gas line. However, after determining these improvements had been City-inspected

and approved, NCC closed the case in November 2013.

       The hiatus did not last long. In September 2014 one of Sukumar's neighbors sent

an e-mail to Sharren Carr, who works in City councilmember Sherri Lightner's office.

This e-mail complained of numerous "code violations" at the Property, and included

photographs of commercial washers and dryers, and a "large number of commercial

refrigerator freezers and commercial kitchen preparation equipment installed in the three

car garage." The e-mail also describes large fans operating five feet from the property

line, apparently to disburse heat generated by these machines in the garage. The e-mail

states these fans "generate[] the racket of high speed air blowing across the property line,

                                             3
directly through my front door and windows facing the home, and disturbing the peace of

all."

        In December 2014 the City notified Sukumar he was "subject to civil penalties"

for violating the municipal code by: (1) eliminating required off street parking by

installing "six sets of washer and dryer units, five large refrigerators, a commercial grade

sink, [and] two reverse osmosis water filtration systems" in the three-car garage; (2)

cutting the concrete garage floor to connect drains without the required plumbing permit;

(3) installing electrical circuits in the garage without the required permit; (4) causing

excessive noise by fans and air conditioning units exceeding allowable decibel limits for

a residential zone; (5) installing unpermitted outdoor lighting that illuminates adjacent

properties without the required screening; and (6) erecting a 15-foot high fence.

        In July 2015 Sukumar's neighbors continued complaining to the City about

excessive noise caused by the heat-exhaust fans. One neighbor wrote, "When the fans

are on, I cannot have the windows open, and we are still not able to use the living or

dining rooms when the fans are on." He continued, "[A]ll of the commercial

refrigerators, washer/dryer units, reverse osmosis and commercial kitchen equipment

remain in all of the garage spaces, no cars can be parked in the garages and the

commercial passenger busses [sic] continue to be parked in [Sukumar's] driveway."

        B. PRA Request

        On August 7, 2015, Sukumar's attorney delivered a request to the City for

"production of documents and information" under the PRA. The request states the

information requested "will be used to assist [] Sukumar, and his agents . . . [in]

                                              4
addressing enforcement actions initiated and/or contemplated presently by the City"

concerning the Property.

       Sukumar's PRA request sought 54 separate categories of documents, including all

documents related to or mentioning him from 1990 to August 7, 2015, as well as all such

records related to or mentioning (1) the Property; (2) a business Sukumar operates called

Holistic Vegetarian House Corporation; (3) five of Sukumar's associates, who are

identified by name; (4) eight of Sukumar's neighbors, who are identified by name; and (5)

City investigations of Sukumar, his associates, and the Property. The PRA request states

"[t]ime is of the essence concerning this request" because Sukumar is "presently being

subjected to inquiries and/or investigations and/or actions initiated" by the City's code

enforcement division.

       C. City's Response

       Lea Fields-Bernard, a licensed California lawyer, is the City's public records

administrator who handled Sukumar's PRA request. She determined which City

departments might have responsive documents. Because Sukumar sought documents

pertaining to the Property and code enforcement issues, on August 10, 2015, Fields-

Bernard forwarded the request to the City's Code Enforcement, Development Services,

Police, Fire-Rescue, Environmental Services and Risk Management departments. Fields-

Bernard designated Development Services as the lead department responsible for

providing a written response and coordinating production of responsive documents.

       Virginia Rodriguez is the custodian of records for Development Services.

Development Services maintains hundreds of thousands of documents. After receiving

                                             5
Sukumar's request, Rodriguez looked in Development Services's "project tracking

system" for files pertaining to Sukumar and the Property. She contacted NCC, which

gave her its case file on the Property. This file included documents involving a case

opened in December 2014 as well as a prior closed case. Rodriguez also received

responsive documents from the police department. NCC's closed files were also

searched, and Rodriquez determined no additional responsive documents existed.

       On August 31, 2015 (24 days after the request), Rodriguez wrote to Sukumar's

attorney, stating, "This letter constitutes the City's final response to your August 07, 2015

request for records . . . ." (Italics added.) The letter states some potentially responsive

documents are exempt from disclosure, and responsive, nonexempt records would be

made available for Sukumar's review.

       D. City's Production of Records, Up to Filing of Writ Petition

       The next day, September 1, 2015, Sukumar's attorney sent an e-mail to Rodriguez.

He asked her to confirm the City's record search extended not only to the Property, but

also to documents related to the names of individuals identified in the request. Counsel

asked to schedule a time to review and copy responsive documents.

       On September 2, 2015, Rodriguez replied, stating the City's search was "not

limited strictly" to the Property and "City staff has searched as broadly and as thoroughly

as possible to locate documents requested." (Italics added.) She assured Sukumar's

lawyer, "There are no records being withheld entirely" (italics added), and only a portion

of the documents were being redacted based upon claims of exemption. Rodriguez

invited Sukumar's lawyer to view and copy documents at the City's records center during

                                              6
business hours. She also informed Sukumar's lawyer that because pre-2006 e-mails were

archived on "old hard drives," the City would charge Sukumar $800 to $1,000 to search

those hard drives for responsive e-mails.

       Later that same day, Sukumar's lawyer asked Rodriguez to retrieve the pre-2006

e-mails at his expense. He also asked for an estimate of the number of responsive records

so he could "immediately authorize copying."

       On September 4, 2015, Sukumar's attorneys met with Rodriguez; she produced

292 pages for inspection and copying. There is a conflict in the evidence about whether

Rodriguez told Sukumar's lawyers more documents might be produced at a later date. In

a lawyer-drafted declaration, Rodriguez states that during this meeting she told

Sukumar's lawyers that more responsive documents might be produced later because the

post-2007 e-mail search was then incomplete. However, in deposition testimony,

Rodriguez testified differently, stating:

          "Q: Did you communicate, at the time that the records were
          produced at—in the first instance—did you communicate with that
          production that the search was ongoing and more e-mail documents
          would be produced at a later date?

          "A: I don't believe that I did."2




2      On this same issue, Sukumar's lawyer filed a declaration stating, "At no time
before Sukumar's [p]etition was filed did [] Rodriguez or any other City employee tell me
that searches for responsive documents were ongoing and that I could expect more
documents to be identified and produced in the future."
                                              7
      E. Writ Petition

      After hearing nothing further from the City for about three weeks, on September

25, 2015, Sukumar filed a verified petition for a writ of mandate under the PRA. There,

he alleged that documents the City had produced "demonstrate that responsive records

existing as recently as 2013 have not been produced." He also alleged NCC employees

took photographs of the Property that the City had not produced. In addition to alleging

the City had withheld responsive documents, Sukumar also alleged the City improperly

redacted certain records by removing complainants' identifying information.

      F. Postpetition Document Production

      About two weeks later, in mid-October 2015, Sukumar's attorneys met with

Deputy City Attorney Catherine Richardson. They asked Richardson to search for an e-

mail dated September 2, 2014, pertaining to a complaint against the Property and/or

Sukumar that had been referenced in another document the City had already produced.

Sukumar's lawyer believed this document was key because it instigated the reopening of

the once-closed code enforcement action against Sukumar. Richardson told them the writ

petition was "premature" because the City was "still in the process of gathering and

producing responsive documents."

      On November 3, 2015, the City told Sukumar's lawyer to pay $925.28 for the

search for pre-2007 e-mails. A week later, counsel delivered the check.3




3      In January 2016 the City notified Sukumar's attorney that no responsive pre-2007
e-mails were located.
                                            8
       Between November 10, 2015 and January 12, 2016, the City retrieved about 900

post-2007 e-mails that were potentially responsive to Sukumar's request. Rodriguez

reviewed them for responsiveness, and Richardson reviewed them for claims of

exemption.

       On January 13, 2016, the City produced 343 pages of redacted post-2007 e-mails.

The City told Sukumar's attorney that additional unredacted e-mails would be produced

"shortly" due to difficulty copying the e-mails in native format to a compact disk.

       On February 1, 2016, the City produced another 204 pages of responsive e-mails,

which the City stated were "all remaining emails of which the City was aware . . . ."

However, at some time "shortly after February 1, 2016, the City produced an additional

105 responsive e-mails.

       G. March 2016: City Tells the Court Everything Has Been Produced

       Meanwhile, while the City was producing responsive records in January and

February 2016, Sukumar's attorneys served the City with interrogatories and requests for

admissions. Generally, these discovery requests were directed to discovering facts

relevant to the City's claims of exemption and whether more responsive documents might

exist. The City objected to these requests on the grounds discovery is not available in a

writ proceeding under the PRA. Sukumar brought motions to compel.4




4     At the time, it was unclear whether the civil discovery rules applied to a writ
proceeding under the PRA. In 2017 the court in City of Los Angeles v. Superior Court
(2017) 9 Cal.App.5th 272 held such discovery is available.

                                             9
       On March 8, 2016, the court and counsel discussed the discovery dispute. The

court asked Richardson, "[W]hy doesn't the City just produce the record?" Richardson

replied, "We did produce the record. The problem is that [Sukumar's] counsel doesn't

believe that we've produced all the records. [¶] . . . [¶] . . . We've told them we've

produced everything, and they're convinced that we haven't. [¶] So, that's where we

stand." (Italics added.)5

       The court asked Richardson, "Your position is you've produced everything?" She

replied, "We've produced the records, yes, and that discovery is inappropriate."

Richardson volunteered to provide a sworn declaration attesting to the full and complete

production of records under the PRA, stating, "Your Honor, I'm happy to provide a

verification that we've produced everything." (Italics added.)

       Stating he wanted to "cut to the chase," the court ordered the City to produce a

"PMK under oath" to confirm the City produced all responsive documents.6

       H. PMK Depositions

       On April 11, 2016, the City produced three witnesses for the ordered PMK

deposition. As explained next, as a direct result of these depositions, the City produced

three new sets of documents responsive to Sukumar's PRA request.

5      The chronology of facts in the City's brief omits any mention of this March 8,
2016 hearing. On our own motion, we augmented the record to include the reporter's
transcript of this hearing.

6     "PMK" refers to person most knowledgeable. Generally, under Code of Civil
Procedure sections 2025.010 and 2025.230, a deposition can be taken of any entity by
examining an officer or agent designated to testify on its behalf as the person most
knowledgeable on matters specified in the deposition notice or subpoena.
                                             10
       1. September 2, 2014 e-mail

       As the depositions were about to begin, Richardson gave Sukumar's attorney an

e-mail dated September 2, 2014. This is the e-mail Sukumar's attorney asked Richardson

to search for six months earlier, in October 2015.

       Richardson said the City had not produced this e-mail earlier "because it could not

be located in the NCC files or emails. The email was located by Sharren Carr who is a

representative in Councilmember Sherri Lightner's office." After being served with the

PMK deposition notices, Richardson asked City personnel "to check their files and emails

again to verify that all responsive documents were produced." Carr found this e-mail as a

result of that second look.

       This September 2, 2014 e-mail is addressed to Mayor Faulconer, Councilperson

Lightner, the San Diego Police Department, and Code Enforcement. The author (whose

name the City redacted) begins by stating, "On June 30, 2014 I wrote to each of your

offices and agencies to report the noise code violation by [] Sukumar . . . ." The e-mail

states the "extraordinary noise caused by commercial fans installed at [] Sukumar's

residence continues to roar from his home violating the peace of my home next door and

the rest of the neighborhood . . . ."

       2. Five photographs from the S-drive

       Second, as a result of the PMK depositions, the City found and later produced

five additional photographs of the Property, including two that appear to have been taken

from inside Sukumar's garage by City personnel. These photographs came to light during

the deposition of Gene Mavis, a NCC investigator. Mavis testified that photographs

                                            11
taken by NCC staff are downloaded to a shared drive ("S-drive") on the City's computer

system as well as printed and placed in the case file. Following Mavis's deposition,

Richardson instructed City personnel to search the S-drive to verify the City had already

produced all responsive photographs in response to Sukumar's PRA request. On April

19, 2016, the City notified Sukumar's attorney that five more responsive photographs had

been discovered on the S-drive. Two of these photographs appear to be taken from inside

Sukumar's garage. Two others show sound level readings, apparently taken outside the

Property.

      The same day, April 19, 2016, Richardson told Sukumar's attorneys that all

responsive documents had now been produced, and she was "at a loss as to what else you

could possibly want or what else we could possibly provide." (Italics added.)

      3. 146 pages of e-mails

      However, about a month later, on May 11, 2016, the City produced another 146

pages of additional responsive e-mails. Included in this production was the missing

complaining neighbor's June 30, 2014 e-mail that apparently initiated the most recent

City action against Sukumar.

      I. The Court Denies Sukumar's Writ Petition

      On June 24, 2016, the court denied Sukumar's writ petition. At the hearing, the

court commented that by this point, the City "in some fashion" had produced all

responsive documents and "[t]his isn't a case where they're refusing to produce

something." The court found the City's delay in producing responsive documents was

reasonable, in part the result of mere oversight. The court also determined the City

                                            12
properly redacted complainants' identifying information. After stating Sukumar's writ

petition was "moot" because all responsive documents had now been produced, the court

stated, "Now, you might argue that you're the prevailing party, because the City didn't

comply until after the lawsuit was filed. That's another issue."7

       J. Attorney Fee Motion

       Asserting the litigation "motivated productions of a substantial amount of

responsive public documents, even after the City represented to this [c]ourt there was

nothing left to produce," Sukumar sought $93,695 in fees (plus $5,390 incurred in

preparing the fee motion). At the hearing, Sukumar's attorney explained:

          "[O]n March the 8th . . . Ms. Richardson, on behalf of the City, in
          response to your inquiry, said, 'We've provided all of the records.
          We produced all of the records.' [¶] . . .

          " . . . They said at that point, it's done, but Your Honor allowed us to
          take the deposition of the PMK for the City, and it ended up being
          three people . . . .

          " . . . [T]he order of the PMK depositions motivated the City to look
          for more documents, and low [sic[ and behold, one of the key
          documents that had been described in the previously produced
          documents, but we didn't get it. The City said, 'We can't find it.'
          And low [sic] and behold, they found that and gave it to me on the
          day of the PMK deposition.

          "It's hard to say that the litigation did not motivate or activate the
          finding of that document.

          "And then we did the depositions, and . . . I found out about this S-
          drive, which nobody had looked at, that nobody, apparently, had


7      A writ petition is the exclusive means of appellate review of an order denying a
petition for a writ of mandate under the PRA. (§ 6259, subd. (c).) Sukumar filed such a
petition, which this court summarily denied.
                                             13
          done anything about. Clearly, my questioning about the S-drive
          motivated the City to look at that S-drive, and low [sic] and behold,
          there are more photographs of my client's property on the S-drive
          from one of the City inspections. [¶] . . .

          "We got five more photographs that were found on the S-drive, and
          we got a hundred and—some hundred and 64 other pages of
          documents. It's hard to say that the litigation did not motivate the
          City to look for and produce those documents or activated something
          or created a catalyst for it. [¶] . . .

          "Now, the question of the amount of attorneys' fees, that's a different
          question, but just the prevailing party, I don't see how that's [not]
          possible once all of the facts are considered."

       The court denied the motion, finding the City "was not motivated by this lawsuit

to produce the documents." The court also found the litigation "did not substantially

contribute to nor was it demonstrably influential in setting in motion the production of

documents."

                                      DISCUSSION

    I. SUKUMAR PREVAILED BECAUSE THE UNDISPUTED FACTS SHOW THE
     LITIGATION CAUSED THE CITY TO RELEASE RESPONSIVE DOCUMENTS

       A. The PRA, In General

       The PRA generally provides for inspection of public records maintained by state

and local agencies. (Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners

etc. (2015) 242 Cal.App.4th 1043, 1046 (Pacific Merchant.) Such "access to information

concerning the conduct of the people's business is a fundamental and necessary right of

every person in this state." (§ 6250; Filarsky v. Superior Court (2002) 28 Cal.4th 419,

425-426 (Filarsky).)



                                            14
       The PRA contains procedures to challenge a public agency's response to a records

request. Section 6258 provides: "Any person may 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" under the PRA.

       A plaintiff prevailing in litigation under the PRA is entitled to attorney fees.

(§ 6259, subd. (d).) This fee award "is mandatory if the plaintiff prevails." (Filarsky,

supra, 28 Cal.4th at p. 427.) This serves to encourage " 'members of the public to seek

judicial enforcement of their right to inspect public records subject to disclosure.' "

(Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1088 (Galbiso).)

       B. The Prevailing Party Standard in PRA Litigation

       In PRA litigation, the plaintiff may be a prevailing party even though the court did

not enter judgment in his or her favor. (Belth, supra, 232 Cal.App.3d at p. 901.) As

explained in Belth, " 'Case law takes a pragmatic approach in defining [a prevailing

party]. [Citation.]' 'In order to justify a fee award, there must be a causal connection

between the lawsuit and the relief obtained.' [Citation.] 'However, a plaintiff need not

achieve a favorable final judgment in order to be a successful party. A defendant's

voluntary action induced by plaintiff's lawsuit will still support an attorneys' fee award on

the rationale that the lawsuit spurred defendant to act or was a catalyst speeding

defendant's response.' [Citation.] . . . 'If plaintiff's lawsuit "induced" defendant's

response or was "material factor" or "contributed in a significant way" to the result

achieved then plaintiff has shown the necessary causal connection.' [Citation.] A

plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide

                                              15
the primary relief sought or activated them to modify their behavior [citation], or if the

litigation substantially contributed to or was demonstrably influential in setting in motion

the process which eventually achieved the desired result [citation]." (Id. at pp. 901-902.)

       Thus, 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." [Citation.]' [Citations.] An action . . . results in the

release of previously withheld documents 'if the lawsuit motivated the defendants to

produce the documents.'" (Galbiso, supra, 167 Cal.App.4th at p. 1085; see Los Angeles

Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391.)

Additionally, if a plaintiff succeeds in obtaining only partial relief, the plaintiff is entitled

to attorney fees unless the plaintiff obtains results "that are so minimal or insignificant as

to justify a finding that the plaintiff did not [in fact] prevail." (Los Angeles Times, at pp.

1391-1392.)

       In sum, recovery under the catalyst theory turns on causation. The question

whether the plaintiff prevailed, in the absence of a final judgment in his or her favor, is

really a question of causation—the litigation must have resulted in the release of records

that would not otherwise have been released.

       However, a PRA plaintiff does not qualify as a prevailing party merely because

the defendant disclosed records sometime after the PRA action was filed. There must be

more than a mere temporal connection between the filing of litigation to compel

production of records under the PRA and the production of those records. The litigation

must have been the motivating factor for the production of documents. (Rogers v.

                                               16
Superior Court (1993) 19 Cal.App.4th 469, 482 (Rogers); Motorola Communication and

Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1345

(Motorola).) The key is whether there is a substantial causal relationship between the

lawsuit and the delivery of the information.

       C. The Standard of Review

       "We review a trial court's determination of whether a litigant is a prevailing party

for abuse of discretion." (San Diegans for Open Government v. City of San Diego (2016)

247 Cal.App.4th 1306, 1321-1322.) "We accept the trial court's resolution of credibility

and conflicting substantial evidence, and its choice of reasonable inferences from the

evidence." (Ibid.) However, a trial court abuses its discretion when factual findings

critical to its decision are not supported by substantial evidence. (See Silver Creek, LLC

v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1539 [applying abuse

of discretion standard to prevailing party determination under Civil Code section 1717].)

       D. Analysis

       The trial court's finding that the City "was not motivated by this lawsuit" to

produce responsive and material documents is not supported by substantial evidence. As

of March 8, 2016, the City unequivocally claimed it had produced every responsive

nonexempt document. The City's lawyer told the court, "We did produce the record" and

had produced "everything." She even offered to say so under penalty of perjury,

volunteering "to provide a verification that we've produced everything" if the court

desired. The only reasonable inference from these undisputed facts is that but for the



                                               17
subsequent court-ordered depositions, the City would not have searched for, nor

produced any responsive documents after March 8, 2016.

        The City's attorney did not produce the September 2, 2014 e-mail until the PMK

depositions were about to start. The compelling inference from that undisputed fact is

that but for the court-ordered PMK depositions, the City would not have produced that e-

mail.

        Similarly, it is indisputable that but for the court-ordered depositions, the City

would not have produced the five photographs that were only on the City's S-drive. The

City did not even think of searching the S-drive until its contents were revealed during

Mavis's court-ordered deposition. Motivated by Mavis's deposition testimony,

Richardson instructed City personnel to search the S-drive to verify that all responsive

photographs had been produced. The only reasonable inference from these undisputed

facts is that had the court not ordered the PMK depositions, the City would not have

produced any of these five photographs. In fact, the City would not have even looked for

them.

        It is also undisputed that as a direct result of the court-ordered PMK depositions,

Richardson instructed City personnel to search again for responsive e-mails. This

resulted in the May 2016 production of 146 pages of previously undisclosed e-mails.

        In the face of the City's unequivocal assertion in March 2016 that it had already

produced everything, the conclusion seems inescapable that but for Sukumar's persistent

demand for discovery and the court-ordered depositions that resulted from those efforts,

the City would not have produced any of the above-mentioned responsive documents.

                                              18
      E. City's Contentions Unpersuasive

      Attempting to support the order denying Sukumar fees, the City contends it did not

withhold any documents. The City asserts it told Sukumar's attorney that additional

documents would be produced before he filed this litigation. The City argues this lawsuit

did not motivate it to produce any "previously withheld" documents because the City had

already agreed to produce all responsive documents before the lawsuit, was in the process

of searching for additional responsive documents during the lawsuit, and ultimately

produced all responsive documents after they were located.

      However, the City's argument fails because it ignores this crucial fact: On March

8, 2016, the City told the court and Sukumar that it had produced everything and there

was nothing more to produce. The deputy city attorney was so convinced there were no

responsive nonexempt documents to be produced, she even offered to so attest under

penalty of perjury. Assuming these representations were made in good faith and believed

to be true—the City would not have continued searching for documents it had just

claimed did not even exist.

      However, the PMK depositions proved these representations to be incorrect. As of

March 8, 2016, the City had not produced the September 2, 2014 e-mail, the five

photographs of the Property only on the S-drive, and 146 pages of additional responsive

e-mails.

      The City correctly states there is no evidence it intentionally withheld known

responsive documents. At the hearing on the fee motion, even Sukumar's attorney

admitted there was no evidence City representatives acted in bad faith.

                                           19
       However, bad faith is not the test. The effect of the City's inability or

unwillingness to locate and produce these documents until court-ordered discovery

ensued after March 8, 2016, is tantamount to withholding requested information from a

PRA request. (See Community Youth Athletic Center v. City of National City (2013) 220

Cal.App.4th 1385, 1425 ["The effect of the City's inability or unwillingness to locate the

records had the same effect as withholding requested information from the public."].)

       The City also contends Rogers, supra, 19 Cal.App.4th 469 "is on point" and

establishes that Sukumar cannot be deemed a prevailing party. However, the facts in

Rogers are significantly different from the operative facts here. In Rogers, the petitioner

filed his complaint on June 26, 1992. (Id. at p. 482.) A mere six days later, on July 1, the

public agency produced the requested records, based on a records search it had initiated

several weeks earlier, before Rogers commenced the PRA litigation. (Id. at pp. 482-483.)

Thus, Rogers is a case where the litigation did not trigger production or motivate the

public agency to produce documents. The documents in Rogers would have been

produced even if the litigation had not been filed because they were produced based on a

search in progress when the lawsuit was commenced.

       In sharp contrast here, the undisputed evidence is that as of March 8, 2016, the

City firmly believed it had already produced everything. Unlike the situation in Rogers,

supra, 19 Cal.App.4th 469, but for the litigation and its court-ordered depositions, the

City would never have produced the post-March 2016 documents.

       The City's reliance on Motorola, supra, 55 Cal.App.4th 1340 is similarly

misplaced. There, Motorola requested the public agency to produce certain documents.

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When the agency failed to comply to Motorola's satisfaction, Motorola filed a petition for

a writ of mandate. (Id. at pp. 1341-1342.) The day after the superior court issued an

alternative writ commanding the agency to comply with the records request, the agency

produced additional documents. The evidence established this production was not

prompted by the litigation, but rather the delay in production was due to uncertainty over

the scope of the request and administrative "difficulties"—the unavailability of critical

personnel to process the records request. (Id. at pp. 1344, 1346.) The Motorola court,

therefore, found that the records would have been produced ultimately, whether or not

suit was filed. (Id. at p. 1346.)

       Motorola, supra, 55 Cal.App.4th 1340 is off point because here, as of March 8,

2016, the City believed it had produced every responsive document. The delay in

producing documents here was not due to uncertainty over the scope of Sukumar's

request, or the absence of key personnel to process the records request. The City never

claimed it did not understand what Sukumar was seeking, or that it lacked the personnel

to find and produce the responsive records.

       Rather, the City's response in March 2016 was it had performed a comprehensive

search and had already produced everything. The court-ordered depositions proved the

City's March 2016 position to be significantly mistaken.

       Unlike the facts in Motorola, the undisputed evidence here shows there would

have been no April-May 2016 production of responsive documents without the PMK

depositions. And there would have been no PMK depositions without this litigation.

Therefore, the undisputed evidence compels the conclusion that Sukumar's writ petition

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motivated the City to produce material responsive documents. Therefore, Sukumar must

be deemed a prevailing party entitled to attorney fees under section 6259, subdivision (d).

(Galbiso, supra, 167 Cal.App.4th at p. 1085 [a plaintiff prevails under section 6259,

subd. (d) when the lawsuit "motivated the defendant[] to produce the documents"].)

       F. Amount of Fees

       In addition to challenging Sukumar's entitlement to an attorney fees award, the

City also challenged the amount he claimed. The City asserted many hours of claimed

attorney time was excessive in light of the task performed and counsel's experience, and

such claimed fees should be substantially reduced or in some cases entirely rejected.

Because the court determined Sukumar was not entitled to any fees, the court never

reached this issue.

       Section 6259, subdivision (d) provides the court "shall award court costs and

reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed

pursuant to this section." On remand, the court should determine the appropriate amount

to award, considering a number of factors, "'"'including the nature of the litigation, its

difficulty, the amount involved, the skill required in its handling, the skill employed, the

attention given, the success or failure, and other circumstances in the case.'"'" (Pacific

Merchant, supra, 242 Cal.App.4th at p. 1061.)

                                        DISPOSITION

       The order denying Sukumar's motion for attorney fees is reversed with directions

to enter a new order determining that Sukumar is the prevailing party. On remand, the



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court is directed to determine the amount of reasonable attorney fees and costs Sukumar

is entitled to under section 6259, subdivision (d).

       Sukumar is also entitled to costs incurred on appeal.




                                                                              NARES, J.

WE CONCUR:



McCONNELL, P. J.



AARON, J.




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