Judge orders Apple Valley to pay $41K in attorney fees in Public Records Act lawsuit (February 21, 2017)

APPLE VALLEY — A lawsuit against the town involving access to public records concluded earlier this month with a San Bernardino County Superior Court judge’s ruling on fees.

Judge David Cohn ordered the Town of Apple Valley to pay more than $41,000 in attorneys’ fees after declaring town resident Leane Lee the prevailing party in the case, court records show.

The town initially responded to Lee’s April 13, 2015, request with a letter dated April 23, 2015, and addressed the purpose of the letter in a statement to the Daily Press.

Within ten days of the request, as permitted by the (Public Records Act), the town responded to Ms. Lee’s request and exercised its right to extend the time for response by 14 days.

According to the letter, the town extended the response time because Lee’s request was for a ‘voluminous’ amount of documents that created ‘unusual circumstances.’

Lee filed suit on May 20, 2015, after the town produced 40 pages of responsive documents on May 11, 2015, according to the town’s statement.

Among other documents, Lee requested contracts with Hayward Consulting Group, the firm that appraised the water system then owned by Apple Valley Ranchos Water Company; the 20/20 Network, the town’s public relations firm; and True North Research, the group that conducted a survey gauging support for water-system acquisition.

When the town produced documents on May 11, invoices containing confidential attorney-client privilege communications and the 20/20 contract were withheld, according to the town.

The town later acknowledged the contract should not have been withheld.

The town incorrectly believed that, because the town was not a party to the agreement and because its only copy was electronic, the contract was not a public record, the statement shows.

One month before Lee’s request, the 20/20 contract was released in the public interest, according to Town Attorney John Brown in a previous Daily Press report.

With regard to True North, the town said no formal contract for the August 2014 survey existed.

The 20/20 contract was later produced during litigation, as was the scope of work for the True North survey, which the town said it elected to produce. But Lee told the Daily Press the scope of work was provided only after her attorney, Chad Morgan, applied additional pressure.

It wasn’t until (he) served deposition notices on John Brown and True North Research that they came up with a three-page document, she said. I think it’s part of the contract. I think there’s more pages, but we can’t prove it and this has already been (dragged) out so damn long.

The town maintains a contract for the survey does not exist.

Morgan initially filed a motion for compensation that neared $100,000, court documents show. The town’s attorney — Jessica Lomakin of Best Best & Krieger LLP — then filed opposition to the requested amount. In the end, Cohn reduced Morgan’s hourly rate and lowered an enhancement multiplier utilized to ensure compensation for pro bono work, according to Lee.

She said the multiplier was reduced because the risk of Morgan doing all the work for no compensation was eliminated once the town provided documents during litigation, a move that also resulted in her prevailing in the case.

In total Morgan will receive $41,470, court documents show.

Town officials said, however, that any ‘court documents’ supporting Ms. Lee’s position that the town violated the Public Records Act are merely allegations.

It is important to note that the judge never ruled that the town violated the PRA, the statement read.

Meanwhile, Lee said she filed suit because the town withheld documents, adding that it’s her constitutional right to request records.

It’s distasteful to (file a suit), but they need to follow the law, she said. Had they followed the law with the initial request, this wouldn’t have happened. Had they complied after litigation started, it would have minimized the attorney fees.

Source: Matthew Cabe, Daily Press