California Court of Appeals, Second District, Eighth Division
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
...