Filed 6/29/26 Fendel v. Berkeley Unified School Dist. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
YOSSI FENDEL and THE
DEBORAH PROJECT,
A173728
Plaintiffs and Appellants,
v. (Alameda County
BERKELEY UNIFIED Super. Ct. No.
SCHOOL DISTRICT, 24CV070392)
Defendant and Respondent.
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).1 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
1 All further statutory references are to the California
Government Code except as otherwise indicated.
1
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
2
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 130 pages 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
3
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
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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:
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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
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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
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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 and
provides 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)].)2 A plaintiff need not obtain a final judgment in its
2 The Legislature repealed the prior statutory framework
and recodified it in the CPRA Recodification Act of 2021, effective
January 1, 2023. (Stats. 2021, ch. 614, §§ 1, 2; § 7920.005.) In so
doing, the Legislature made clear that the CPRA Recodification
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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)
232 Cal.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.3 The Motorola factors are (1) the temporal
Act of 2021 was “intended to be entirely nonsubstantive in effect”
(§ 7920.100) and that judicial decisions “interpreting a previously
existing provision [are] relevant in interpreting any provision of
this division, or any other provision of the CPRA Recodification
Act of 2021, which restates and continues that previously existing
provision” (§ 7920.110, subd. (a)).
3 Motorola, supra, 55 Cal.App.4th at p. 1346 & fn. 5 relied
on Alliance for Responsible CFC Policy, Inc. v. Costle (D.D.C.
1986) 631 F.Supp. 1469, which concerned a public records request
under the Freedom of Information Act, 5 U.S.C. § 552, on which
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relationship between plaintiff filing suit and the government
agency’s release 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 was
burdened 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 request as 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, undermines the 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
the CPRA is modeled. Appellants do not contest the applicability
of Motorola and address the factors in their briefs.
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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 is the 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 on the 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.)
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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.”
Appellants contend 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 imposed its 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 show that 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
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process by which the District could have more quickly complied
with the requests” indicate that it correctly applied Motorola,
which directs courts analyzing the propriety of a CPRA fee award
to consider not 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, appellants were
“in the best position to have fixed the problem by seeking to
negotiate a reasonable narrowing of its exceptionally broad
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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 its reasoned 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,
132 Cal.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
14
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
timeframe due 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
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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 include not 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 on Sukumar is misplaced. There, the
responding government agency unequivocally stated that 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,
14 Cal.App.5th at pp. 464−465.) The only reasonable inference
was therefore that, without plaintiff’s discovery 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
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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 conclusion that 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
judgment and accept the inferences the trial court drew, rather
than drawing inferences against the District and looking for
17
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)
Judge of the Superior Court of Marin County, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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