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Dennis A. Winston (SBN 68049) DENNIS A. WINSTON, A PROFESSIONAL LAW CORPORATION 3221 Carter Ave, Apt. 444 Marina Del Rey, California 90292 Telephone: (310) 306-4099 Facsimile: (310) 306-4499 Attorney for Petitioner/Plaintiff KEVIN CUMMINS

SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, NORTH DISTRICT ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

KEVIN CUMMINS,
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CASE No. 37-2010-00058511-CU-PT-NC [Hon. Timothy M. Casserly, Dept. N-31] PETITIONERS REPLY FOR MOTION FOR ATTORNEYS FEES Hearing Date: Hearing Time: Hearing Dept: December 2, 2011 1:30 p.m. N-31

Petitioner and Plaintiff, v. CITY OF ENCINITAS, and DOES 1-10, Inclusive, Respondents and Defendants _____________________________________

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THE CITYS DESCRIPTION OF THE COURTS DISCRETION IN AWARDEING FEES IS INACCURATE; THE COURTS DISCRETION IS TO BE EXERCISED TO FULLY COMPENSATE CUMMINS FOR ALL TIME REASONABLY SPENT PROSECUTING THIS ACTION Respondent City of Encinitas (City) incorrectly states that the broad

discretion to be exercised by a trial court includes whether to award attorneys fees at all. (Citys Memorandum of Points and Authorities in Opposition (City Memorandum) at 2:1.) Pursuant to Government Code 6259(d), an award of fees and costs is mandatory.

Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379; Los Angeles Times v.

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Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381; Belth v. Garamendi (1991) 232 Cal.App.3d 896, 901. The Courts discretion is to be exercised to fulfill its obligation to fully compensate those successful in obtaining public records through filing a lawsuit. Bernardi, 167 Cal.App.4th at 1323 (The CPRA also includes protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure. The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.); Ketchum v.

Moses (2001) 24 Cal.4th 1122, 1133.

By comparison, as the court explained in Horsford v. The Board of Trustees of California State University (2005) 132 Cal. App. 4th 359, 395 discussing statutory fees for a FEHA claim: the court's discretion in awarding attorney fees is, initially (absent circumstances rendering the award unjust), to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client. It has long been recognized, however, that the contingent and deferred nature of the fee award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1132-1133.) A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases. Horsford, 132 Cal. App. 4th at 394-395. 2. THE CITY INCREASED THE COST OF THIS CASE BY ENGAGING IN UNCOOPERATIVE DELAYING TACTICS A defendant cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.

International Longshoremens and Warehousemens Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 304.
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Respondent City of Encinitas (City) has chosen to attack Petitioner Kevin Cummins (Cummins) motion for attorneys fees with opinions and conclusions, not facts. The Citys attacks are evanescent since the City cites no case or principle which denies a Petitioner the right to receive an Answer in good faith and to conduct discovery. City attacks Cummins efforts to resolve factual issues before trial: first, by denigrating Cummins efforts to seek a good faith answer from the City to Cummins Petition (e.g., instead of denying that Citys employees sent correspondence); second, by condemning Cummins attempt to conduct discovery in good faith. According to the Declaration of Gregory L. Lusitana In Support Of Respondents

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Opposition (Lusitana Declaration) the City intentionally chose to refuse to authenticate

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documents in its Answer, planning to authenticate these documents as the record by

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negotiating these issues with petitioner.1 (Lusitana Declaration, 2:1-7.)

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First, what gave the City the right to proffer an Answer containing sham and evasive
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allegations of factual matters that were within the actual knowledge of the City? 5 Witkin,
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California Procedure (4th Ed.) Pleading, 993, 994 at 449-450; Oliver v. The Swiss Club
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Tell (1963) 222 Cal. App. 2d 528; Dobbins v. Hardister (1966) 242 Cal. App. 2d 787; Zenos
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v. Britten-Cook Land & Livestock Company (1925) 75 Cal. App. 299; Transworld Systems,
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Inc. v. Rogan (1989) 210 Cal. App. 3d 731.

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Second, when the City was faced with a meet and confer to prevent Cummins motion
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to strike from being filed, why did the City not negotiate[] these issues then? Moreover,
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since Cummins Petition sought relief under Code of Civil Procedure 1085 (Section
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1085),2 not Section 1094, the City should have known (since, according to Lusitana, writ
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of mandate proceedings are significantly less complex than a typical civil action (Lusitana
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Declaration, 8)) that there was to be no administrative record to be negotiated at all. As the
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Unless otherwise indicated, all emphasis supplied all internal quotation marks omitted. Hereinafter, statutory Section references are to the Code of Civil Procedure.
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court explained in Bright Development v. City of Tracy (1993) 20 Cal App.4th 783, 795: In a traditional mandamus proceeding, the question of abuse of discretion turns not on whether the agency's findings are supported by substantial evidence (cf. Code Civ. Proc., 1094.5, subd. (b)), but whether the agency's action was arbitrary or capricious. [Citations omitted.] And in a traditional mandamus proceeding, the parties may present evidence outside the administrative record.

Third, as to discovery, there is nothing unusual or improper about conducting discovery in Section 1085 mandate proceedings. Galbiso v. Orosi Public Utility District (2008) 167 Cal.App.4th 1063, 1072 (deposition allowed after the discovery cutoff); San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Unified School Dist. (2006) 139 Cal.App.4th 1356, 1369 (document requests propounded and responded to). Here, Special Interrogatories calling for witnesses and documents were completely proper discovery. Section 2030.010(b). Likewise, Special Interrogatories calling for facts, documents or witnesses as to the Citys Ten Affirmative Defenses were proper. Sections 2017.010, 2030.230. Discovery was particularly appropriate here since the City admits it did not answer the Petition forthrightly which would have resolved the relevant factual disputes and did not participate in any meet and confer sessions to resolve the discovery disputes between the parties. If the Citys derogatory characterization of discovery as mere boilerplate or involving unnecessary efforts to compel after City refused to provide proper responses (City Memorandum at 3:16-17; 7:6-11.) were of any substantive significance, why not participate in the invited meet and confer or maintain that position in pleadings before this Court? No, City caused the motion to compel to be filed with its silent intransigence (or inadequate routing procedures), then caved. (Declaration Of Dennis A. Winston In Support Of Petitioners Motion For Attorneys Fees (Winston Declaration) at 7-9.) By refusing to meet and confer in good faith as to the pleadings, or to meet and confer as to discovery at all, the City unnecessarily increased the cost of this litigation. The City must pay for its actions.
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Using a blunderbuss approach, City baldly contends that specific tasks should have taken less time. (City Opposition at 6-8.) The City offers no proof other than its opinions of its blanket assertions. Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal. App. 4th 550, 564 (In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.)3 The CITY also objects to Cummins submission of [Proposed] judgments. There was nothing improper done. The City filed a notice of appeal and a writ for extraordinary relief challenging the Courts Order and on June 17, 2011, the Court of Appeal (Fourth District) stayed further proceedings and invited CUMMINS to file an informal response to the petition. CUMMINS filed his informal response and the Court of Appeal denied the CITYs petition and vacated the stay on July 11, 2011. The [P]roposed judgments were not submitted during the stay and the number of pleadings was prompted by a misunderstanding of what the Court wanted the Judgment to state which was clarified, at Cummins initiative, by a hearing on the matter.

3.

THE SUB ROSA SAN DIEGO DISCOUNT IS INAPPLICABLE HERE BECAUSE CUMMINS SOUGHT BUT COULD NOT FIND EXPERIENCED COUNSEL IN SAN DIEGO TO TAKE THIS CASE

Citys contention (based upon Lusitanas unsupported opinion) that travel time should not be reimbursed is myopic and unsupported by facts. Since Cummins was unable to locate local counsel to represent him, it would be unfair to punish counsel for having to travel from Los Angeles to San Diego. Besides, the City has sought and received compensation for travel time for conducting its business. United Business Commission v. City of San Diego (1979) 91 Cal.App.3d 156, 166 n2 ([P]laintiffs' complaint in regard to the City's inclusion of the following items in determining its total cost for the sign inventory is without merit; the inspection of hazards, travel time, office supplies, telephone expenses, overhead, clerk's time, etc.)
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Cummins presented the declaration of Alonzo V. Wickers IV who is very experienced in CPRA and public law cases, including litigation in San Diego, whose billable rate is over $400/hour, and who has obtained fee awards in public records cases in excess of $90,000 in San Diego. Wickers opined that the $350 hourly rate charged by Cummins counsel and the requested fee award of $56,000 are reasonable and gave specific examples of similar recoveries (including in San Diego) in other Public Records Act cases. The Citys attempt to impose a San Diego Discount to reduce the hourly rate for Cummins counsel is improper because, according to the Declaration of Petitioner and Plaintiff Kevin Cummins In Support Of Reply For Motion For Attorneys Fees (Cummins Reply Declaration) 1-4), Cummins sought San Diego counsel experienced in Public Records Act claims who would take his case on a contingency basis, without success. The fees normally charged by San Diego counsel are not

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controlling.
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[T]he court erred in failing adequately to consider the propriety of a higher hourly rate for Murray, a San Francisco attorney, in order to accomplish the purposes of FEHA. [] In the present case, Horsford submitted a declaration stating that he tried to find local counsel and was wholly unsuccessful: I first contacted attorney[] Barry Bennett, who specializes in labor and employment law, and he told me that he would not be able to represent me. [] I then attempted to obtain an attorney by calling various attorneys listed in the Fresno Yellow Pages as practicing labor and employment law. I spoke with about six different attorneys who represented employees. ... All of them appeared to be apprehensive to take my case, and they all declined to represent me. Finally, a friend gave me the name of Larry Murray, an attorney in the San Francisco area. [] While we doubt a plaintiff needs to make anything more than a good-faith effort to find local counsel [Citation omitted] in order to justify the fees of out-of-town counsel, the evidence in the present case satisfies even the higher standard adopted by the trial court. Horsford, 132 Cal. App. 4th at 397-398, 399.
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4.

CUMMINS MOTION FOR FEES PROPERLY MEETS THE FACTORS TO ENHANCE THE LODESTAR AMOUNT The City accepts the standards for applying a multiplier to the lodestar figure

determined by the Court (Bernardi, 167 Cal. App. 4th at 1399), but initially contends this case was not novel and that Cummins counsels skill was demonstrated only at oral argument of the writ. (City Opposition at 8-9.) Well. The novelty of this case was established by the fact that there were no cases on all fours dealing with the Citys attempted application of the deliberative process privilege to provide blanket protection to all actions of City staff. If the case were so simple, why did the City not just turn over the public records sought? Why did the City appeal the Courts decision, unsuccessfully? As for counsels skill, someone had to write the papers and deal with the Citys unjustified strategies. Those strategies continue here in the City contending that this litigation was not necessary to compel the City to produce the draft Report submitted by Nichols to City staff which was reworked and ultimately provided to the City Counsel. (City Opposition at 9: 3-5.) The contention is either disingenuous or an attempt to mislead this Court. As a result of this litigation, the City produced the draft of the Nichols Report submitted to City staff which took six months to review and edit before being presented to City Council. (City Of Encinitas City Council Agenda Report For Meeting Date: September 22, 2010 (Agenda Report) at 1-3.) If the initial draft Nichols Report were the exact same unaltered version submitted to City Council six months later, why did the City not just say that a year ago, or deny the allegations in the Petition that City had withheld the Report? Why did the City argue against producing the Report to this Court at the trial of this matter? The City should be more careful in its rhetoric. Cummins submits that his counsels thirty plus years of legal experience were

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instrumental in prevailing in this case and causing production of a public record that was being withheld. As for the case precluding other employment, it did so because of the efforts necessary to counteract the Citys stratagems which were made more impactful because of counsels medical condition. (Winston Declaration at 4.) Cummins counsel turned down other cases because of this matter. (Id.) According to well-established principles: An enhancement of the lodestar amount to reflect the contingency risk is "[o]ne of the most common fee enhancers ... ." (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 579.) The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights ... into line with incentives they have to undertake claims for which they are paid on a fee-for-services basis.

Bernardi, 167 Cal. App. 4th at 1399.

The City offers no argument not to consider the contingency nature of this action, which has lasted for over a year and resulted in a trial and a rejection of Citys appeal by the Fourth District. During all of this time, Cummins counsel has not been paid his fees. 5. CONCLUSION For the foregoing reasons, CUMMINS motion for attorneys fees should be granted and fees awarded in the amount of $56,175.00. Dated: November ____, 2011 DENNNIS A. WINSTON, A PROFESSIONAL LAW CORPORATION

By__________________________________ Dennis A. Winston Attorney for Petitioner and Plaintiff Kevin Cummins

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