Court Finds For Concussion Inc. in California Public Records Act Case Against University of California — 730 New Pages Laid Bare in Cover-Up of Ted Agu’s 2014 Football Conditioning Death From a Sickle Cell Trait Attack

George Gibney Didn’t Vanish (full text from the Irish news site Broadsheet)
August 27, 2020
No, Britain’s Guardian Newspaper — I Didn’t ‘Try Unsuccessfully to Have George Gibney Deported From the United States.’ Also, There’s No Past Tense About It.
September 9, 2020

by Irvin Muchnick

In a major victory for exposure of the University of California-Berkeley’s cover-up of the circumstances of the 2014 death of football player Ted Agu, from an exertional collapse associated with sickle cell trait during an extreme and unorthodox offseason conditioning drill, a state court judge ruled late Wednesday that Concussion Inc. is “the prevailing party” in a California Public Records Act (CPRA) case.

The tentative ruling by Alameda County Superior Court Judge Jeffrey S. Brand culminates three and a half years of litigation by this reporter and attorney Roy S. Gordet. If Brand finalizes his ruling in the near future, following a Thursday hearing, the prevailing party tag means that our side will be awarded reimbursement by the university of attorney fees and costs, in a sum to be determined in another motion.

The case, called a “petition” in California, resulted in the release of more than 700 pages of internal administrators’ emails and other documents that were previously withheld by the Berkeley campus CPRA compliance office after I made a series of formal records requests beginning in April 2016. The court ruling designated us the “catalyst” for the release of new public information and thus entitled to fees.

The full text of the ruling is below. The text is a crude capture from the Superior Court’s online docket.

Concussion Inc. already has published many of the most important primary-source documents obtained through the CPRA case. In the near future we’ll be publishing more of them.

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Case Number: RG17857115Title: Muchnick VS University Of California, Board Of Regents
9/9/2020
This Tentative Ruling is made by Judge Jeffrey Brand The Motion for an Order Designating The Regents as the Prevailing Party and Entitled to Court Costs and Attorney’s Fees is DENIED. The Motion for Attorney’s Fees filed by Petitioner Irvin Muchnick is GRANTED.

This matter arises from a Public Records Act (“PRA”) request by Petitioner, a journalist, to U.C. Berkeley relating to the death of a student athlete and an altercation between two other student athletes. Petitioner commenced this action on April 18, 2017. Both Petitioner and The Regents seek a Court declaration as to which is the prevailing party in this matter, and an award of attorney’s fees.


THE REGENTS ARE NOT ENTITLED TO ATTORNEY’S FEES BECAUSE THE PETITION WAS NOT FRIVOLOUS

The PRA provides that the court shall award court costs and reasonable attorney fees to a petitioner should the petitioner prevail in litigation. (Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 367-368.) Public agencies such as The Regents are ordinarily not entitled to attorney fees and costs from a requestor who fails to secure public documents in a court challenge based on a PRA request. (Id.) Rather, a public agency may recover its attorney fees and costs only if the trial court “finds that the plaintiff’s case is clearly frivolous.” (Id., citing Govt. Code sec. 6259(d).)

Here, the Regents argue the Petition in this matter was frivolous because Petitioner failed to obtain any new or additional documents from the Regents as a result of the Petition. The Regents point to “an unbroken chain of adverse rulings” by the Court. (MPA, p. 1:9.) The Regents conclude the Petition was frivolous because “[n]ot a single record was released to Petitioner as a result of filing and serving the Petition or continuing to prosecute this time-consuming and protracted action.” (Id., p. 1:20-22.)

A petition “may be deemed frivolous only when prosecuted for an improper motive–e.g., to harass the respondent or for purposes of delay–or when lacking any merit–i.e., when any reasonable attorney would agree the appeal is totally without merit.” (Id. at 368.) The conclusion that an action lacks merit does not determine whether it was frivolous: A lack of success does not mean a petition is utterly devoid of merit or brought solely to harass. (Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1371-1374.)

Here, The Regents have proffered no evidence that the Petition was brought solely to harass. Thus, The Regents are entitled to attorney’s fees only if the Petition was “utterly devoid of merit.” The Court finds that regardless of whether Petitioner was the prevailing party, the Petition was not frivolous because it represented Petitioner’s attempt to challenge The Regents withholding of documents claimed to be exempt from disclosure. (Crews, supra at 1383.)

Accordingly, the Regents Motion for Attorney’s Fees is DENIED.


PETITIONER IS THE PREVAILING PARTY IN THIS MATTER

Under the Public Records Act, a plaintiff is the prevailing party “when he or she files an action which results in defendant releasing a copy of a previously withheld document. An action results in the release of previously withheld documents if the lawsuit motivated the defendants to produce the documents.” (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 463.) “A plaintiff is considered the prevailing party if the lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.” (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1321-1322.)

Petitioner contends he is the prevailing party in this matter because The Regents produced 730 pages of documents that had not previously been produced, many of which had been withheld on privacy grounds. Some of these documents were produced after The Regents obtained a privacy waiver from the family of the deceased student whose demise was the subject of Petitioner’s journalism. The Regents argue that Petitioner was not the “catalyst” that motivated The Regents to obtain the waiver and therefore Petitioner is not the prevailing party. Petitioner argues the release of previously withheld documents should be credited to Petitioner for having steadfastly litigated various issues that ultimately resulted in production of the documents.

The Court finds that the Petition substantially contributed to setting in motion The Regents’ request for a privacy waiver from the deceased student’s family, which waiver resulted in the release of previously withheld documents. (See Belth v. Garamendi (1991) 232 Cal.App.3d 896, 898.) It is undisputed that the documents produced as a result of the waiver had been withheld prior to this litigation. In addition, Petitioner made clear that he contested The Regents’ privacy claims and intended to bring these issues before the Court. (CMC Statement dated 11/8/2017.) And as The Regents themselves acknowledge, it was Petitioner’s counsel who first broached the issue of obtaining a waiver from the family and only thereafter did The Regents pursue and obtain the waiver. 

In sum, the Court finds Petitioner the prevailing party in this litigation. Petitioner’s Motion for Attorneys’ Fees is therefore GRANTED.

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