Filed 8/15/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PONANI SUKUMAR,

Plaintiff and Appellant,

v.

CITY OF SAN DIEGO,

Defendant and Respondent.

 D071527

 (Super. Ct. No. 37-2015-00032528-

 CU-WM-CTL)

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.
2

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 courtordered 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.
3

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, 
4

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

Police, Fire-Rescue, Environmental Services and Risk Management departments. FieldsBernard 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 
6

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 
7

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."
8

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 email 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.
9

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. 
10

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.
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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 
12

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 
13

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 Sdrive, 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.
14

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).)
15

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 
16

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. 
17

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 
18

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 email.

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.
19

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. 
20

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. 
21

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.