City of Los Angeles v. Metropolitan Water District of Southern California

          APPEAL from an order of the Superior Court of Los Angeles County No. BS157056, James C. Chalfant, Judge. Affirmed as modified.

          Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, and Shaun Dabby Jacobs, Deputy City Attorney, for Plaintiff and Appellant.

          Richard Doyle, City Attorney (San Jose), Nora Frimann, Assistant City Attorney, and Elisa T. Tolentino, City Attorney, for League of California Cities, California State Association of Counties and California Special District's Association as Amici Curiae on behalf of Plaintiff and Appellant.

          Olivarez Madruga Lemieux O'Neill, Steven P. O'Neill and Manuel D. Serpa for Interveners and Appellants.

          Law Offices of Kelly Aviles, Kelly A. Aviles; and Jeff Glasser for Intervener, Cross-complainant and Appellant.

          Katie Townsend, Bruce D. Brown and Daniel J. Jeon for Reporters Committee for Freedom of the Press and 15 media organizations as Amici Curiae on behalf of Intervener, Cross-complainant and Appellant.

          Marcia Scully, Heather Beatty, Heriberto F. Diaz and Bryan M. Otake for Defendant, Cross-defendant and Respondent.

          STRATTON, J.

         This appeal is from the trial court's award of attorney fees in an action consisting of a petition for writ of mandate and a cross-petition under the California Public Records Act (Gov. Code, ^[1] § 6250 et seq. (CPRA)). The mandamus petition was brought by the City of Los Angeles Department of Water and Power (DWP) against the Metropolitan Water District (MWD) to prevent MWD from disclosing records of DWP customers to the San Diego Union Tribune (Union). Union intervened and filed a CPRA cross-petition against MWD. Three other water districts^[2] (Intervener Utilities) opposed disclosure and intervened in the mandamus proceedings. The trial court denied DWP's petition for writ of mandate and granted Union's CPRA cross-petition, ordering disclosure of the records.

         The court awarded Union $25, 319 in attorney fees under CPRA against MWD for Union's work on the CPRA cross-petition up until the point where MWD agreed it would produce complete customer names and addresses. For its work opposing the mandamus petition, Union received $136, 645.82 in attorney fees under Code of Civil Procedure section 1021.5 “against DWP and Intervener Utilities jointly and severally. As between DWP and Intervener Utilities, the award is apportioned so that DMP is solely responsible for the $40, 053 in collusion fees.''

         DWP and Intervener Utilities appeal, contending Union was not entitled to attorney fees under Code of Civil Procedure section 1021.5, both because such attorney fees are not authorized in actions involving CPRA requests and because Union has not satisfied the requirements of section 1021.5.

         We conclude Union was eligible for attorney fees under CPRA for work on the CPRA cross-petition and for attorney fees under Code of Civil Procedure section 1021.5 for its work opposing the petition for writ of mandate. (Pasadena Police Officers Assn. v. City of Pasadena (2018) 22 Cal.App.5th 147, 159 (PPOA).) The trial court did not abuse its discretion in finding Union met the requirements of Code of Civil Procedure section 1021.5 for attorney fees. Union was the prevailing party and its action resulted in the enforcement of an important right affecting the public interest, conferring a significant benefit on the general public. DWP and Intervener Utilities were not exempt from attorney fees on the ground they were the equivalent of an individual who seeks a determination of “only his or her [own] private rights [and] has done nothing to adversely affect the public interest.” (See Adoption of Joshua S. (2008) 42 Cal.4th 945, 958 (Joshua S.).) DWP and Intervener Utilities sought far more than a simple determination of the privacy rights of a few customers.

         DWP separately contends the trial court abused its discretion in awarding Union attorney fees on its unsuccessful claim that DWP and MWD colluded to avoid CPRA and to bring the mandamus petition. Compensation is ordinarily warranted even for unsuccessful early claims in a series of attacks on an opponent's case, and so the trial court did not abuse its discretion in finding attorney fees warranted for Union's initial “collusion” claims, particularly since those claims touched on the emerging area of “reverse-CPRA” actions.

         Union also appeals, contending the trial court abused its discretion in denying it attorney fees for its work preparing separate reply briefs to three separate oppositions to fees filed by MWD, DWP and Intervener Utilities. Union has also filed a “protective” cross-appeal seeking reapportionment of fees in the event we reverse any portion of the trial court's award. Union re-argues its claim that DWP and Intervener Utilities lacked standing to bring a petition for a writ of mandate to prevent disclosure of records (hereafter the reverse-CPRA action). Union also points to numerous problems with allowing reverse-CPRA actions and asks that we hold such actions incompatible with CPRA and so not permissible.

         We agree with Union that the trial court abused its discretion in denying fees for Union's work preparing the reply briefs, and we order Union awarded fees for its work as to DWP and Intervener Utilities only. We need not and do not reach the issues in Union's “protective” cross-appeal. We hold DWP and Intervener Utilities had standing. We decline Union's suggestion to find reverse-CPRA actions impermissible as Union cross-appealed only the attorney fees award.

         The trial court's order awarding attorney fees against DWP and Intervener Utilities is modified to add $12, 350.33 in fees against only those parties jointly and severally. We affirm the trial court's award in all other respects, including all standing determinations.

         FACTUAL BACKGROUND

         MWD is a cooperative water wholesaler with 26 members, including DWP and Intervener Utilities. In 2014, following then-Governor Brown's declaration that California was in a drought and lawns and ornamental turf should be replaced with drought tolerant landscapes, MWD began a Turf Removal Rebate Program. MWD provided money or rebates to customers of its member agencies who replaced their grass with drought tolerant landscaping. MWD paid $370 to $450 million in rebates. Each member agency had its own contract with MWD governing the ability of the agency's customers to participate in the program. Some agencies offered a supplemental rebate to their customers and some did not. There were about 40, 000 participants in the Turf program, and about 7, 800 of them were DWP customers.

         The Controller for the City of Los Angeles questioned the utility of turf removal programs and called DWP's program “largely a gimmick - a device intended to attract attention and publicity.” The Controller stated MWD's turf program “came at a rather high cost and, arguably at the cost of some fairness.” The Controller noted the program's rebates were concentrated in the western San Fernando Valley and beneficiaries included “some affluent households, ” “some private golf courses, ” and “[o]ne particular contractor.” The Controller suggested DWP release the names and addresses of residents who received rebates, stating that “[b]illing information for customers... is different than the person who chooses to ask for an incentive or [rebate] and gets money from ratepayers for that.”

         On May 19, 2015, a Union reporter made a CPRA request to MWD for information about the participants in the turf program, including their names, addresses, and rebate amounts.

         CPRA provides a streamlined and expedited process for public access to government records, because “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (§ 6250.) CPRA provides that “every person has a right to inspect any public record” (§ 6253, subd. (a)), “[e]xcept with respect to records exempt from disclosure by express provisions of law.” (§ 6253, subd. (b).) An agency has 10 days to respond to a CPRA request. One 14-day extension is permitted for specified purposes, including consultation with another agency having “substantial interest in the determination of the request.” (§ 6253, subd. (c)(3).) No further delays are authorized by the statute.

         If an agency finds disclosure is required or appropriate, the agency may simply provide the records to the requestor. If an agency withholds records, the agency “shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (§ 6255, subd. (a).)

         Had MWD simply denied Union's request, Union then could have filed an action in the superior court to compel disclosure. (§ 6258.) That action would have been entitled to scheduling to “secur[e] a decision as to these matters at the earliest possible time.” (Ibid.) Had Union prevailed in such an action (as it did in this case on its cross-petition), Union would have been entitled to reasonable attorney fees (§ 6259, subd. (d)) and expedited handling of any appeal (§ 6259, subd. (c)).

         Here, MWD did not comply with the statutory timelines for a disclosure response and did not unequivocally deny the request when it did respond. Before responding to Union's CPRA request, MWD provided DWP with a copy of the request. DWP objected to revealing its customers' names and addresses. Ultimately MWD agreed with DWP to limit disclosure to only generalized block numbers and MWD's share of the rebate amount. On June 29, 2015, MWD released this redacted information to Union. MWD stated that the production “conclude[d] Metropolitan's response to your PRA request.” MWD did not provide any justification for its redactions.

         On July 7 and 8, 2015, Union objected to the redactions and MWD's failure to provide written justification for them. MWD again conferred with DWP, who continued to object to disclosure of its customers' information.

         On July 31, 2015, DWP filed this lawsuit against MWD seeking to enjoin MWD from releasing information about anyone who participated in the turf rebate program, regardless of whether they were DWP customers. Such an action is not specifically authorized by CPRA, but this District Court of Appeal has permitted non-statutory actions to prevent disclosure of records requested under CPRA, that is reverse-CPRA actions. (Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250 (Marken); see PPOA, supra, 22 Cal.App.5th 147.) Such reverse actions have been viewed as necessary to protect the privacy rights of individuals whose personal information may be contained in government records, because CPRA provides no mechanism for notifying such individuals of the requested disclosure and does not specifically authorize actions to prevent disclosure.

         On August 6, 2015, Union sought and obtained leave to intervene in the lawsuit between DWP and MWD. At the same time, Union filed a CPRA cross-petition against MWD to compel disclosure of the names and addresses of turf program recipients. At Union's request, the trial court limited its temporary restraining order (TRO), which temporarily prevented disclosure, to DWP customers only. Thereafter Intervener Utilities joined DWP's lawsuit seeking their own TROs.

         In opposing DWP's mandamus petition, Union argued MWD and DWP, by suing each other, had colluded to deny Union the opportunity to file a CPRA petition. Union also argued they colluded, by suing each other, to circumvent the judicial bar which prevents public agencies from filing declaratory relief actions under CPRA. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 432 (Filarsky) [an agency may not institute a declaratory relief action to determine its obligation under CPRA to disclose documents to a member of the public].) Union relatedly argued DWP did not have standing to assert the privacy rights of its customers because privacy rights are personal and cannot by asserted by third parties.

         On January 15, 2016, the trial court issued its rulings on the petitions. The court rejected Union's collusion arguments and found DWP was the co-custodian of the requested records and a joint venturer with MWD and so had standing to assert the privacy rights of DWP's customers.^[3] The court denied DWP's petition for a writ of mandate and granted Union's CPRA cross-petition for disclosure. No party has appealed from these rulings.

         LEGAL BACKGROUND

         This case highlights many of the issues that have emerged from permitting reverse-CPRA actions, like DWP's, to prevent disclosure of public records. The issue most directly implicated in this case, and the only issue we consider on ...