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Public Records Case Costs Monterey County

Monterey County has been ordered to pay more than $244,000 in attorney fees and costs in a California Public Records Act case involving a long-controversial development proposal in Carmel Valley.

The Sixth District Court of Appeal upheld a trial court's award of $244,287 in fees and costs to the Open Monterey Project, an organization that sought records related to the proposed September Ranch project. The Sixth District also directed the trial court to award the Open Monterey Project attorney fees related to the appeal.

Plans to build houses on the 900-acre September Ranch have been around since the 1990s, and in 1998 the Monterey County Board of Supervisors approved a 109-unit subdivision. However, the Sixth District Court of Appeal invalidated the project approval because of an improper water supply study (Save Our Peninsula Com. v. County of Monterey, 87 Cal.App.4th 99; see CP&DR Legal Digest, April 2001). After conducting additional environmental analysis, the county approved a 95-home project on a small portion of the ranch in 2006; however, a Monterey County judge last year rejected the revised cumulative water analysis.

While the county was processing the revised project, the Open Monterey Project made several California Public Records Act (CPRA) requests. Although the county produced some records, the organization was not satisfied and went to court in March 2005. A special master was appointed and ultimately recommended the county turn over another 2,000 pages of records. Superior Court Judge Robert O'Farrell accepted the recommendation and ordered the county to produce the records. Open Monterey Project then filed a request for attorney fees of $194,800, with a multiplier of two because attorneys worked on a contingency basis and because of the protracted nature of the litigation. Judge O'Farrell approved fees of $188,630, applied a multiplier of 1.25, and then added costs to reach a total award of $244,287.  

On appeal, the county argued that the fee amount should be cut by two-thirds because Open Monterey Project was successful in only one of three areas of requests, and that no multiplier was appropriate. The county said that the special master rejected most of the group's requests for private records of the environmental impact report consultant, and all requests for correspondence with the county's legal advisor. The Sixth District, however, found no legal basis for the county's argument, and concluded that the county's approach could diminish efforts to enforce the Public Records Act.

"[W]e determine that there is no requirement that the trial court make an award of attorney fees in an amount that is commensurate with or in proportion to the degree of success in the CPRA litigation," Justice Patricia Bamattre-Manoukian wrote for the court.

The appellate panel also upheld the fee enhancement because of the incentive it provided to an attorney to enforce "important constitutional rights" on a contingency basis.

The case is Bernardi v. County of Monterey, No. H0231648, 08 C.D.O.S. 13725, 2008 DJDAR 16415. The opinion was filed on September 30, 2008, and ordered published on October 29, 2008.
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