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Under The Public Records Act, A Losing Party May Be The Prevailing Party

When the California legislature enacted the Public Records Act,  it declared “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state”.  Gov’t Code § 6250.  The legislature was serious, granting “any person may institute proceedings for injunctive or declarative [sic] 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”.  Gov’t Code § 6258.  A plaintiff prevailing in litigation under the PRA is entitled to attorney fees.  Gov’t Code § 6259(d).

Surprisingly, a plaintiff in PRA litigation may be considered to be the prevailing party even if she loses.  Courts will find that a plaintiff is the prevailing party if the litigation causes the disclosure of records even if the plaintiff does not obtain a final judgment in her favor. California courts refer to the requisite connection as the “catalyst theory”.

In Sukumar v. City of San Diego, Cal. Ct. Appeal Case No. D071527 (Aug. 8, 2017), the city notified a homeowner that he was subject to civil penalties for code violations.  The homeowner’s attorney requested documents under the PRA.  The city responded that it had completed its search and produced everything.  After the court ordered depositions of city officials, the city produced additional documents.  The Court of Appeal found that because this was undisputed, the homeowner must be regarded as the prevailing party even though the trial court had determined that his petition for a writ had become moot.  It is now up to the trial court to determine the amount of fees in light of 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.'” quoting (Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners etc., 242 Cal. App. 4th 1043, 1061 (2015).  The homeowner had asked the trial court to award more than $93,000 in attorney’s fees.

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...