Fendel v. Berkeley Unified School Dist. CA1/4 filed 6/29/26

Filed 6/29/26 Fendel v. Berkeley Unified School Dist. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

YOSSI FENDEL and THE DEBORAH PROJECT,
Plaintiffs and Appellants,
v.
BERKELEY UNIFIED SCHOOL DISTRICT,
Defendant and Respondent.

A173728

(Alameda County
Super. Ct. No. 24CV070392)

Appellants Yossi Fendel (“Fendel”) and The Deborah Project (“Project”) appeal the trial court’s denial of their request for attorney’s fees under the California Public Records Act (Gov. Code, § 7920.000 et seq.; CPRA). Appellants contend that respondent Berkeley Unified School District (“District”) released thousands of pages of additional records in response to their requests as a result of their CPRA lawsuit, which they argue entitles them to reasonable attorney’s fees and court costs under section 7923.115, subdivision (a).We find no error and affirm.
BACKGROUND
Appellants’ Three CPRA Requests
The Project made its first CPRA request on January 13, 2023. It requested (1) “[a]ll public records relating to teaching about or preparing to teach about Israel, Palestine, and/or Palestinians” in the District; (2) “records sufficient to show the identity of all persons responsible for determining the content of [the District’s] teaching materials about or relating to ethnic studies, Israel, Palestine, and/or the Palestinians”; (3) “[a]ll public records relating to the consultation by employees of [the District] with any non-school district employees regarding the teaching of or preparing to teach ethnic studies, Israel, Palestine, and/or the Palestinians”; and (4) “[d]ocuments sufficient to show any compensation or financial consideration paid or transferred to any entity or individual relating to the development of materials used in, or consultation services regarding, teaching or training teachers to teach about Israel, Palestine, and/or the Palestinians.” The Project asked for records from January 1, 2020, to the date of the request.
The District’s preliminary search for responsive records yielded approximately 656,395 emails to review. The District’s initial response to the Project on January 23, 2023,said that the Project’s request was vague, listed the District’s interpretations of each item, and indicated that due to the large volume of potentially responsive records, the District expected “to continue to produce these records on a rolling basis until [it] completed production.”
On March 15, 2023, the Project inquired as to the status of the request. The District responded the same day, informing the Project that it needed additional time to review and prepare the records for production and reiterating that the records would be produced on a rolling basis. Acknowledging its duty under section 7922.600 to help the Project make a more focused and effective request, the District also invited the Project to contact the District if the Project wanted to clarify its request. On March 30, 2023, in an email producing more than 130pages of responsive records to the Project, the District provided an update on its progress, stating, “Below is the beginning of the District’s rolling response. Due to the broadness of this request, the number of records that must be reviewed, and the limited staff resources available, we estimate we will need to continue to provide records on a rolling basis for some time.”
After the District’s Public Information Office received the Project’s request, Senior Communications Officer Trish McDermott created a spreadsheet to track records and the status of the request. After discussions with the District’s senior leadership on January 17, 2023, McDermott formulated a strategy to locate and review the pertinent records. To compile responsive records, McDermott coordinated with union leaders, principals, teachers, and various District staff from March 2, 2023 through June 2023. To review the large volume of records, McDermott asked for assistance from another District employee and hired a contractor. Between April and June 2023, McDermott trained both individuals on how to use the District’s software for records review. From the beginning of the Gaza war in October 2023 through approximately January 2024, the District received a “large influx of PRA requests” and began researching alternative software to review and redact records.
On July 7, 2023, the District produced 169 more pages of responsive records. The accompanying email identified this as the “second rolling response” and stated the District’s intent to “produce a third response shortly.” The District, through counsel, produced more responsive records on August 27, September 20, September 27, and October 18, 2024.
Appellant Fendel made his CPRA request, the second at issue in this appeal, on January 18, 2024. Before his request, Fendel and his son’s ethnic studies teacher, Alex Day, exchanged emails about Day’s lessons on the “historic conflict between Israel and Palestine,” “the war in Gaza,” and “Hamas’ terrorist attack on 10/7.” Fendel also corresponded via email with Juan Reygoza, the principal of Berkeley High School, and Chris Albeck, the Berkeley Unified School District Director of Curriculum and Instruction, in December 2023 and January 2024 in the interest of obtaining a digital or printed copy of the “entire curriculum” “for Israel and Palestine.” On January 11, 2024, Albeck sat down with Fendel and showed him PowerPoint slides intended for presentation to students. On the morning of January 18, 2024, Day had an online meeting with Fendel to discuss the curriculum at issue. On the same day, Reygoza emailed Fendel to offer him another opportunity to review the curriculum with Albeck and address any questions or concerns he had about the lessons.
In the late afternoon of January 18, 2024, Fendel made his CPRA request by emailing the District Public Information Office. The body of his email reads: “I am a parent of a 9th grade student at Berkeley High School in Mr. Alex Day’s Ethnic Studies class. I have been informed by Mr. Day that he intends to use a curriculum that has recently been developed at BUSD regarding Israel and Palestine. I am writing to request a copy of this Israel-Palestine curriculum. I am also requesting to see all communication to or from Mr. Alex Day, Mr. Chris Albeck, or Mr.Juan Raygoza regarding the development of this curriculum, or any other discussion of it.”
On January 24, 2024, the District sent its initial response, which acknowledged Fendel’s CPRA request. In her response email to Fendel, McDermott estimated that the District would “begin producing responsive, disclosable records in 30 days.” On February 29, 2024, McDermott emailed Fendel two lessons Day taught to students that week but said it was not a response to his CPRA request. On March 6, 2024, McDermott emailed a third lesson to Fendel. Lastly, through counsel, the District produced more records responsive to Fendel’s request on August 27, 2024.
Approximately one year after its first CPRA request, the Project made a second request (the third at issue in this appeal) on January 11, 2024. The Project sought (1) “[a]ny and all contracts, draft contracts, or communications related to any contract or potential contract with any third party, concerning: use of a curriculum, use of curricular materials, development of a curriculum, and/or teacher training”; and (2) records of compensation or financial consideration regarding these same subjects. This request covered the period from January 1, 2018, through January 11, 2024.
The District provided an initial response to the request on February 14, 2024. In that response, the District restated the request and estimated it would be able to produce responsive documents within 60 days (falling on April 14, 2024). Prior to issuing the initial response, McDermott emailed senior leadership to seek assistance in interpreting the request, identifying possible search terms for responsive communications, and determining how best to locate and compile responsive records.
On February 22, 2024, two District staff members arranged a meeting to develop a strategy for searching through a voluminous set of records, and McDermott refined the strategy and provided support. On March 21, 2024, McDermott instructed a staff member to generate a list of possible vendors with the Business Services Department who may have contracted with the District in order to locate the actual contracts and purchase orders requested. From March to April 2024, McDermott met with the District’s information technology team for assistance in searching for records. In April and May of 2024, a District communications specialist left the District, as did McDermott’s administrative assistant. In July 2024, a District contractor who provided part-time support on CPRA matters also left her position. During this time of staff turnover, McDermott hired, onboarded, and trained two new employees.
Finally, the District produced more than five thousand pages of records in response to the Project’s January 11, 2024, CPRA request on August 27 and September 27, 2024.
Lawsuit and Fees Request
On April 4, 2024, appellants filed a petition for writ of mandate and request for declaratory relief, seeking to compel the District’s compliance with their CPRA requests for “curricular materials” and related information regarding Israel and Palestine. The petition also sought attorney’s fees and costs. The parties submitted briefing on the petition, and the case was decided on the papers and supporting declarations, including one by McDermott, after a non-evidentiary hearing on January 16, 2025.
On April 15, 2025, the trial court entered judgment in favor of the District and issued its order denying the petition and declining to award appellants attorney’s fees. In the trial court’s order, it concluded that “the District attempted to comply with its obligations under the PRA in good faith and in a reasonable timeframe.” The trial court acknowledged that the District waited to produce a final tranche of documents until weeks prior to the hearing, but it reasoned this was largely due to a minimal meet and confer process in which appellants were “in the best position” to take action by negotiating “a reasonable narrowing of [their] exceptionally broad requests.” Finally, the trial court declined to award appellants attorney’s fees “because the District’s delays were not unreasonable and because [appellants] do not appear to have done much, if anything to facilitate a meet and confer process by which the District could have more quickly complied with the requests.”
DISCUSSION
I. CPRA Legal Framework
The CPRA ensures “access to information concerning the conduct of the people’s business.”(§ 7921.000.) This statutory scheme governs the process of requesting public records andprovides that “[a]ny person may institute a proceeding for injunctive or declarative relief, or for a writ of mandate, in any court of competent jurisdiction, to enforce that person’s right under [the CPRA] to inspect or receive a copy of any public record or class of public records.” (§ 7923.000.) Under the CPRA, “[i]f the requester prevails in litigation filed pursuant to this chapter, the court shall award court costs and reasonable attorney’s fees to the requester.” (§ 7923.115, subd. (a).)
The standard test for determining whether a plaintiff (or “requester”) prevailed in CPRA litigation under section 7923.115, subdivision (a) is “whether or not the litigation caused a previously withheld document to be released.” (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1088[discussing § 6259, subd. (d), predecessor statute to section 7293.115, subd.(a)].)A plaintiff need not obtain a final judgment in its favor to be a successful party entitled to fees under the CPRA; instead, “ ‘[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.’ ” (Belth v. Garamendi (1991) 232Cal.App.3d 896, 901.)A plaintiff shows the necessary causal connection if the “lawsuit ‘induced’ defendant’s response or was a ‘material factor’ or ‘contributed in a significant way’ to the result achieved.” (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 967 [determining prevailing party under Code Civ. Proc., § 1021.5].)“[T]he litigation must have resulted in the release of materials that would not otherwise have been released.” (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464 (Sukumar).)
Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1345–1346(Motorola) considered several factors when determining whether a plaintiff prevailed in CPRA litigation by causing the disclosure of documents.The Motorola factors are (1) the temporal relationship between plaintiff filing suit and the government agency’srelease of responsive records, (2) whether the government agency made a good-faith effort to respond to plaintiff’s request, (3) “whether the scope of the request caused a delay in disclosure,”and (4) whether the government agency wasburdened by other obligations or administrative issues that slowed its response. (Motorola,supra, 55 Cal.App.4th at p. 1346.)When an agency shows it was not refusing to disclose the documents but was instead processing the requestas part of an ongoing administrative process, a fee award for the requesting party is not warranted. (Id. at pp. 1350–1351 [affirming trial court’s denial of fee award where agency at no time refused to produce the requested documents and instead made “timely efforts to respond” to “uncertain[]” requests].) A requesting party’s failure to work with the agency to clarify or narrow requests, or its decision to litigate without engaging in a meaningful meet-and-confer process, underminesthe causation element necessary to achieve prevailing party status. (Valenti v. City of San Diego (2023) 94 Cal.App.5th 218, 234 (Valenti).)
II. Standard of Review
“We review an award of attorney fees generally for abuse of discretion. [Citation.] A fee award ‘“ ‘will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.’ ” ’ ” (Riskin v. Downtown Los Angeles Property Owners Association (2022) 76 Cal.App.5th 438, 445.) “[A]n abuse of discretion is shown where a trial court errs in acting on a mistaken view about the scope of its discretion [citation] or applies the wrong legal standard [citation].” (Id. at p. 446.)
Whether a plaintiff isthe prevailing party under the CPRA is a factual determination reviewed under the substantial evidence standard. (Galbiso v. Orosi Public Utility Dist., supra, 167 Cal.App.4th at p. 1085.) As explained in Crawford v. Board of Education (1988) 200 Cal.App.3d 1397, 1407, the question of whether the appellants caused the District to disclose documents it otherwise would not have “is an intensely factual, pragmatic [determination] that frequently requires courts to go outside the merits of the precise underlying dispute and focus on the condition that the fee claimant sought to change.” Thus, we defer to the trial court’s factual determination onthe central causal link between appellants’ litigation and the District’s production of records, unless there is no evidence to support its ruling. (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)“[T]he substantial evidence test is highly deferential and requires a trial court’s finding to be upheld on the basis of a mere inference.” (Valenti, supra, 94 Cal.App.5th at p.235.) Appellants “bear[] the heavy burden of establishing that there is an absence of evidence in the record to support the trial court's ruling.” (Id. at p. 233.) As a result of this burden, we determine not whether there is evidence in the record supporting appellants’ request for fees, but “whether there is an absence of evidence supporting the trial court’s rejection of the fee request.” (Ibid.)
III. The Trial Court Applied the Appropriate Legal Standards.
In the “Conclusion” section of its order, the trial court stated that it declined to award attorney’s fees “because the District’s delays were not unreasonable and because [appellants] do not appear to have done much, if anything, to facilitate a meet and confer process by which the District could have more quickly complied with the requests.” Appellants construe this language as a standalone statement, arguing that the trial court improperly applied a fabricated standard that analyzes whether appellants “informally pestered the government enough to release its records in addition to filing its case in court.” Appellantscontend this sentence from the order demonstrates that the court abused its discretion, ignored the statutory requirements for an award of attorney’s fees under the CPRA, and imposedits own requirement for the parties to meet and confer.
Under the abuse of discretion standard, we “presume that the court properly applied the law and acted within its discretion unless the appellant affirmatively shows otherwise.” (Mejia v. City of Los Angeles (2007) 156 Cal. App.4th 151,158.) The quoted statement from the court’s order, which appellants take out of context and isolate from the remainder of the order,does not affirmatively showthat the trial court acted beyond the bounds of reason.
The trial court’s statement that the District’s delays “were not unreasonable” and its comment regarding“a meet and confer process by which the District could have more quickly complied with the requests” indicate that it correctly appliedMotorola, which directs courts analyzing the propriety of a CPRA fee award to considernot only the timing of the government agency’s release of responsive records, but also whether the government agency made a good-faith effort, whether the scope of the request caused a delay in disclosure, and whether the agency provided a delayed response because of other duties or administrative obstacles. (Motorola, supra, 55 Cal.App.4th at p.1346.)Indeed, in multiple pages preceding the sentence on which appellants rely, the trial court specifically found that appellants “appear[ed] to be wrong” when they claimed that the District did not respond to Fendel’s request before the lawsuit; the Project’s requests were “exceptionally” and “unreasonably broad,” covering more than 650,000 potentially responsive emails and extending back to 2018; the District unexpectedly received “a large influx” of CPRA requests after October 7, 2023; McDermott repeatedly sought assistance and engaged in extensive efforts to respond to the requests, despite employee departures and “issues with the District’s existing software for document review and redaction”; “[t]he District sent out timely initial responses to all the requests, and followed them up with meaningful productions of documents over time”; and, although the parties did not communicate regarding a potential narrowing of the requests, appellantswere “in the best position to have fixed the problem by seeking to negotiate a reasonable narrowing of its exceptionally broad requests,” such that “[t]he fault for the lack of communication cannot all be laid at the District’s proverbial feet.”
We are thus unpersuaded by appellants’ claim that the trial court abused its discretion by applying the incorrect legal standard and improperly shifting the burden of timely production onto appellants. Instead, a fair reading of the trial court’s order reflects itsreasoned determination that appellants did not prevail under the CPRA because the District provided responsive records to appellants’ requests on a reasonable timeline, given the breadth of the requests, the lack of a meaningful meet-and-confer (for which the District was not solely responsible), and the administrative challenges the District faced. This analysis of appellants’ fees request was consistent with the applicable law. (Motorola, supra, 55 Cal.App.4th at p. 1346.)
IV. Substantial Evidence Supports the Trial Court’s Finding That Appellants Did Not Prevail Under the CPRA.
In assessing whether there is substantial evidence supporting the trial court’s finding that appellants did not prevail in litigation under the CPRA, we defer to the trial court’s factual determination, including inferences, on the central issue of causation. (Tire Distributors, Inc. v. Cobrae, supra, 132Cal.App.4th at p. 544; Valenti, supra, 94 Cal.App.5th at pp.232, 235.)For appellants to prevail within the meaning of the CPRA and therefore become entitled to attorney’s fees, they must have caused the District to release materials that would not have otherwise been released. (Sukumar, supra, 14 Cal.App.5th at p.464.)The trial court determined that appellants did not prevail under the CPRA because the District’s delays were not unreasonable, and we find substantial evidence to support that conclusion.
The McDermott declaration details the District’s various administrative efforts in its production of records both before and after appellants filed suit and shows the District was dealing with administrative difficulties and trying in good faith to produce responsive documents before appellants filed suit. (See Motorola,supra, 55 Cal.App.4th at p. 1346.) McDermott created a spreadsheet to track records, formed a strategy with District senior leadership to review responsive records, hired a contractor to assist with reviewing records,met with an information technology team, and contended with staff turnover as the District received a large influx of requests.The trial court cited this declaration no less than a dozen times in its order. It provides substantial evidence that the District was making significant efforts to produce responsive documents before April 4, 2024, and faced challenges in doing so in a reasonable timeframedue to its own resource constraints and the breadth of appellants’ requests. The trial court therefore had sufficient basis to reject appellants’ position that it was their lawsuit that spurred the District to act or was a catalyst in the production of documents.
Appellants rely heavily on the temporal relationship between their filing suit and the District’s production of records, even claiming a total lack of responsive records before they filed suit. Not only is this contention untrue, as respondent released relevant records on multiple occasions to both the Project and Fendel prior to the lawsuit, but the premise of appellants’ primary argument is inherently flawed. 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.” (Sukumar, supra, 14 Cal.App.5th at p. 464.) The Motorola factors indicate that timing alone will not necessarily be dispositive, since they includenot just the time sequence but also an agency’s good-faith efforts and other obligations or administrative issues that could have slowed the agency’s response. (Motorola,supra, 55 Cal.App.4th at p. 1346.)
Appellants’ reliance onSukumarismisplaced. There, the responding government agency unequivocally statedthat it had produced every responsive record prior to plaintiff’s motion to compel,but then subsequently found and produced more documents after the court ordered it to provide a witness for a person most knowledgeable deposition. (Sukumar, supra, 14Cal.App.5th at pp. 464−465.) The only reasonable inference was therefore that,without plaintiff’sdiscovery motion,the agency would not have searched for or produced any responsive documents after March 8, 2016. (Id.at p. 465.)Here, in contrast to Sukumar, the District released responsive records prior to the lawsuit and indicated on several occasions that more records would follow on a rolling basis. At no point before appellants filed suit did respondent indicate that it had finished releasing responsive records. The mere fact that the District produced records after the initiation of litigation or by a court-established deadline does not compel a conclusionthat appellants prevailed in their suit.
Appellants also point out that they filed suit more than a year after the Project’s first request. They fault the District for not fulfilling its duty to help appellants formulate their requests. (See § 7922.600, subd. (a).) They claim the District stonewalled Fendel’s requests for a copy of the curriculum.And they repeatedly emphasize the large proportion of documents produced after appellants filed suit. But there is evidence contrary to these assertions, such as the District’s production of three curriculum lessons after Fendel filed his CPRA request and before he filed suit, or the District’s acknowledgement of its duty to help the Project formulate its request and invitation to the Project to contact the District if the Project wanted to clarify its request in light of its breadth. The most important evidence contrary to appellants’ position is of course the McDermott declaration on which the trial court relied, which appellants dismiss by drawing inferences against the District based on perceived ambiguities or omissions in McDermott’s statements. We look for substantial evidence supporting the trial court’s judgmentand accept the inferences the trial court drew, rather than drawing inferences against the Districtandlooking for substantial evidence that would support a contrary ruling.(Valenti, supra, 94 Cal.App.5th at p. 233.) Appellants have failed to carry their heavy burden of proving an absence of evidence supporting the trial court’s judgment (ibid.), so we must affirm.
DISPOSITION
The judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.
SWEET, J.

Fendel v. Berkeley Unified School District (A173728)