Government Liability Update

Court Has Discretion to Deny Fee Award under California Public Records Act Where Petitioner Obtains Minimal or Insignificant Documents

In Riskin v. Downtown Los Angeles Property Owners' Association, published March 17, 2022, the Second District Court of Appeal, Division 3 reversed an award of attorney fees under the California Public Records Act.  After the defendant association produced 46 e-mails in response to a CPRA request and asserted others were exempt from production, the plaintiff petitioned for a writ seeking to compel production of further documents.  The trial court reviewed two documents in camera, and found an e-mail string containing 20 sentences total contained some disclosable information.  The association sought an appellate writ challenging disclosure, which was summarily denied.  The plaintiff sought fees and costs totaling $123,119.11.  The trial court awarded fees of $71,075.75.  The trial court rejected the association's argument that the court had discretion to deny attorney fees where the documents obtained are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.  The court reasoned that because Government Code section 6259, subdivision (d) provides that the court shall award fees to a prevailing party, the trial court had no discretion to deny a fee award.

The appellate court disagreed.  It reviewed the case law interpreting the CPRA and fee awards in other contexts, and concluded that the minimal and insignificant standard applies to fee awards in CPRA cases.  It remanded the case to the trial court to determine whether the standard warranted denying fees in this case.

Because County Sheriff Who Enforces County Bail Schedule Acts as an Instrument of the State, the State Is Liable for Section 1988 Attorney Fees if the Enforcement Violates the Fourteenth Amendment

In Buffin v. City and County of San Francisco, published January 13, 2022, the 9th Circuit Court of Appeals affirmed a district court decision awarding $1,950,000 in attorney fees against the State of California under 42 U.S.C. section 1988.  A class action was brought under 42 U.S.C. section 1983  against a county sheriff for enforcing the county's bail schedule.  The action alleged that the enforcement of the bail schedule without consideration of financial circumstances violated the Fourteenth Amendment.  Under the statutory scheme, when a suspect was arrested without a warrant and had not had his or her first hearing, bail is set by the sheriff in an amount dictated by a uniform countywide schedule of bail.  State law imposes a duty upon the Superior Court of each county--an arm of the state--to adopt the county-wide bail schedule.  The county sheriff must comply with the schedule, without discretion.  The sheriff and the state attorney general were named as defendants. The district court ruled that the sheriff acted on behalf of the state in enforcing the bail schedule.  As a state actor, the sheriff received Eleventh Amendment immunity from monetary damages, as did the Attorney General.  But the class could seek injunctive or declaratory relief against the sheriff in her official capacity under Ex Parte Young, on the ground that the sheriff enforced the allegedly unconstitutional law.  The Attorney General was dismissed.  The Attorney General did not take over the defense of the action.  The class prevailed on summary judgment.  The parties agreed to the amount of the attorney fees.  The district court then decided that the state was liable for the attorney fees.  The state appealed.

The Court of Appeals ruled that the district court had acted within its discretion.  Case law established that the state's Eleventh Amendment immunity from monetary damages under 42 U.S.C. section 1983 did not bar its liability for attorney fees under section 1988.  An issue of first impression in the 9th Circuit was who should be liable for attorney fees in this situation--the state, the county, or the official-capacity defendant.  The state argued that because it was not a party to the suit, it should not be held liable for the fees.  The 9th Circuit followed the reasoning of sister circuits and ruled that because the official-capacity defendant, the sheriff, was sued for acting as a discretionless instrument of the state, the state was properly held liable for the fees.  The state had both notice and an opportunity to contest the fees, although it did not do so. 

School District Was Entitled to Private Attorney General Fees for Enforcing Charter School Statutes

In Sweetwater Union High School District v. Julian Union Elementary School District, ordered published June 28, 2019, the Fourth District Court of Appeal, Division 1, affirmed an award of fees to the plaintiff school district under Code of Civil Procedure section 1021.5.  The plaintiff district alleged that the defendant district authorized a defendant charter school operator to operate defendant charter schools in the plaintiff's territory.  The trial court ultimately denied the plaintiff's petition for a writ of mandate directing the defendant district to revoke the defendant operator's charter, concluding that doing so would cause disruption for students of the charter schools.  But the trial court declared that the operator's operation at two of the charter school locations would be in violation of the Education Code, and enjoined operation of both locations.  The court then granted the plaintiff district's motion for attorney fees.

The appellate court affirmed the award of fees.  The parties did not request a statement of decision concerning the fee award, and the court did not issue one.  The appellate court therefore inferred all findings necessary to support the award were made.  The appellate court ruled that the trial court could have found the plaintiff district to be a prevailing party.  Even though the district did not succeed on all of its claims, it succeeded in obtaining declaratory and injunctive relief.  It could also have ruled that enforcement of charter school law was enforcement of an important right affecting public interest, that the ruling provided a significant public benefit by advancing the public interest in lawful operation of charter schools and the legislature's oversight objectives expressed in the charter school law, that the lawsuit was necessary to enforce the law, and that the financial burden made the fee award appropriate.  It could also have found that the amount awarded (the entire amount requested) was justified by the evidence the plaintiff district submitted.

Agency May Recover Cost of Redacting Electronic Records Produced in Response to CPRA Request

In National Lawyers' Guild v. City of Hayward, published September 28, 2018, the First District Court of Appeal, Division 3 reversed a trial court's issuance of a writ of administrative mandate directing the respondent city to refund to the petitioner payments the petitioner made for copies of police body cam video footage the city produced in response to a California Public Records request.  The city charged the petitioner for the cost of city employees reviewing the videos and using Windows Movie Maker to redact material exempt from the CPRA on privacy or security grounds.  The city sought the cost under a portion of the CPRA, Government Code section 6253.9, subdivision (b)(2).  The statute requires the requester to bear the cost of producing a copy of an electronic record if the request would require "extraction" to produce the record.  The trial court concluded that the phrase "extraction" does not apply to redaction of an electronic record, but only to extraction necessary to produce the record.

The appellate court disagreed.  Concluding that the statute's language is ambiguous, the court reviewed the legislative history.  It noted a concern that the cost of producing only portions of electronic records would exceed the cost of redacting paper documents.  The court concluded that "extraction" as used in the statute includes the cost of redacting exempt portions of electronic documents before producing them under the CPRA.

Newspaper Entitled to Private Attorney General Fees for Opposing Police Officers' and Union's Reverse-PRA Action

In Pasadena Police Officers Association v. City of Pasadena (Los Angeles Times Communications, LLC, Intervenor), published April 12, 2018, the Second District Court of Appeal, Division 1 reversed in part and affirmed in part a trial court ruling on attorney fees in a reverse-PRA action (a suit challenging a public agency's decision to produce documents under the California Public Records Act).  A group of organizations made a California Public Records Act request to the defendant city for a report concerning a police shooting.  While the request was pending, two city police officers and the plaintiff Association filed a reverse-PRA action seeking a restraining order barring release of the report.  The Los Angeles Times later intervened in the action on the side of those seeking release of the report.  After the trial court concluded that a redacted version of the report could be released, the appellate court issued a writ petition holding that the redactions went too far.  On remand, the trial court released the report with additional information unredacted.  The Times moved for fees and costs.  The trial court granted the Times attorney fees from the city under the CPRA, but only for the period that the matters was before the appellate court.  It denied the Times private attorney general fees under Code of Civil Procedure section 1021.5, applying a rule that section 1021.5 fees were not available against a party that was attempting to protect the party's private interests--here, the officers' privacy interests.

The appellate court reversed the decision on the section 1021.5 fees.  The policy applies only when fees are sought from a private individual who seeks a judgment that determines only the individual's private rights and did nothing to adversely affect the public interest besides being on the losing side of an important case.  Here, the police officers and the Association sought a judgment preventing the report's release for the benefit of all of the associations' members, as well as police officers in general.  Further, the individual police officers essentially acted as public officials in seeking to keep the report private.  The case therefore involved public officials and a public employee union pursuing litigation designed to expand the ability of police officers and departments to withhold information from the public.  Because the Times met the other requirements for obtaining fees under section 1021.5, it was entitled to fees from the officers and the association.

The appellate court affirmed the ruling that the Times was entitled to CPRA fees from the City only for the time that the action was pending before the appellate court.  The trial court's exercise of its discretion in determining the prevailing party and the reasonable period for fees was supported by substantial evidence.

Code of Civil Procedure 998 Applies in Actions under FEHA and the Peace Officers' Bill of Rights

In Sviridov v. City of San Diego, ordered published August 15, 2017, the Fourth District Court of Appeal, Division 1 affirmed a decision awarding the defendant city its post-offer costs under Code of Civil Procedure section 998 in a lawsuit the plaintiff police officer brought under the Fair Employment and Housing Act and the Peace Officer's Bill of Rights.  The plaintiff argued that case law holds that in a FEHA action fees and costs may be awarded to a defendant only if the action was frivolous.  The appellate court ruled that the case law does not apply to section 998, under which a defendant who makes a settlement officer that the plaintiff fails to do better than is awarded the defendant's post-offer costs.  The court also rejected the argument that the costs provisions of POBRA create an exception to section 998.

Public Records Act Petitioner Is Prevailing Party if Discovery Prompts Agency to Disclose Responsive Documents

In Sukumar v. City of San Diego, published August 15, 2017, the Fourth District Court of Appeal, Division 1 reversed a trial court decision denying a fee motion brought by a California Public Records Act petitioner whose petition was defeated.  The petitioner sought records about his property and his neighbors.  Not satisfied with the city's production of documents, the petitioner brought a petition for writ of mandate under the CPRA.  The city objected to discovery the petitioner propounded, contending that discovery was not available in CPRA actions.  At a hearing on a motion to compel, a deputy city attorney stated on the record that the city had produced all responsive records.  She offered to provide a declaration to that effect.  The court ordered a deposition of a person most knowledgeable to confirm the city had produced all responsive documents.  The city undertook additional searches before and after the PMK deposition,  It located more responsive documents, and provided them to the petitioner.  The petitioner's CPRA petition was ultimately denied on the ground that the city had produced the responsive documents.  The petitioner moved for his attorney fees.  The trial court found that the petitioner was not the prevailing party, because the litigation had not motivated the city to produce the additional documents produced after the case started.

The appellate court ruled that no substantial evidence supported the trial court's finding.  A CPRA petitioner who loses the petition is nevertheless the prevailing party if the litigation results in documents responsive to the CPRA request being produced.  It is not enough that the documents are produced after the litigation begins; there must be a causal connection between the litigation and the production, so that the agency produces documents it would not have produced if the litigation had not taken place.  Here, the deputy city attorney's representation that everything had been produced, and then the additional production of documents after the PMK deposition was ordered, indicated that the city undertook additional searches in response to the PMK deposition order and discovered documents it had mistakenly not produced before.  That established that the petitioner was the prevailing party, and entitled to his fees under the CPRA.

Outside Counsel's Billing Invoices for Ongoing and Active Litigation Not Subject to CPRA

In Los Angeles County Board of Supervisors v. Superior Court (ACLU), published December 29, 2016, a divided California Supreme Court reversed the lower appellate court's ruling that a public entity's outside counsel's billing invoices were categorically excluded from the California Public Records Act as attorney-client privileged communications.  The ACLU had sought invoices specifying the amount any outside firm had billed the petitioner county for defense in nine specified lawsuits.  The county agreed to produce redacted invoices from three lawsuits no longer pending, but declined to produce invoices in the six pending lawsuits.  Among its grounds was that they were privileged attorney-client communications that contained work product, were therefore privileged under the Evidence Code, and were therefore exempt from the CPRA under Government Code section 6254(k).  The appellate court issued a writ petition reversing the decision, and holding that all billing invoices are protected attorney-client communications.

The Supreme Court split 4-3 on the question of whether the invoices were protected from the CPRA.  The majority held that the contents of an attorney's invoice to a client are privileged only if they either communicate information for the purpose of legal consultation, or risk exposing information that was communicated for such a purpose. The majority further held that the latter category includes any information in any invoice that reflects work in active and ongoing litigation.  The majority reasoned that invoices in themselves are not protected communications, because they are submitted for the purpose of getting paid rather than for purposes that are the "heartland" of attorney-client privilege: information conveyed for the purpose of legal representation.  But they can contain information conveyed for that purpose.  Because invoices in ongoing and pending litigation pose too great a risk of disclosing the substance of legal consultation and strategy.  But information such as cumulative totals of billing for long-concluded litigation pose less of a danger of disclosing the substance of legal consultation.

The dissent opined that the attorney-client privilege applies to all attorney-client communications in the course of a representation, regardless of content; and that the passage of time does not affect the privilege.

 

Plaintiff's Failure to File Amended Complaint until Two Days after Deadline, Based on Calendaring Error, Was Excusable Neglect; District Not Entitled to Fees under CPRA

In M.D. v. Newport-Mesa School Dist., published October 19, 2016, the Ninth Circuit Court of Appeals reversed a district court decision dismissing a plaintiff's lawsuit for failure to file an amended complaint on time.  The plaintiffs were a student and parent who sued the school district for alleged retaliation.  After the district moved to dismiss the FAC, the plaintiffs voluntarily dismissed  two claims (including a California Public Records Act claim).  The district court then dismissed the remaining claim, but granted 30 days' leave to amend.  The order was originally calendared on the CMF/ECF efiling system as made "in chambers."  Two days later, a notice of clerical error was entered and the same order was redocketed as a separate entry.  Plaintiffs' counsel, who did not customarily practice in the federal courts, erroneously calendared the 30 days as running from the correction of the clerical error.  The plaintiffs therefore did not file within the 30 days.  The day after the 30 days ran, the district filed a proposed judgment of dismissal.  The plaintiffs filed their second amended complaint the next day.  The district court nevertheless dismissed the case for failure to amend within the time allowed.  The plaintiffs moved for relief under Fed. R. Civ. P. 60(b)(1) based on excusable neglect.  The district court denied the motion.

The Ninth Circuit ruled that the district court abused its discretion by denying the motion.  A 60(b)(1) motion requires that the court consider at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.  The district court addressed only the third factor, finding the reason for the delay insufficient.  The defendant would not be prejudiced by granting relief; the length of delay was minimal; there was no evidence the movant acted in bad faith; and the calendaring error was excusable neglect.

The district court also denied the district's motion for attorney fees for the dismissal of the CPRA request. The appellate court held that the district court properly denied the request.  The CPRA claim was not frivolous when brought, and the plaintiff eventually dismissed it. 

State Courts Are Bound by U.S. Supreme Court's Interpretation of Federal Law

In James v. City of Boise, published January 25, 2016, the United States Supreme Court reversed an Idaho Supreme Court decision awarding a defendant attorney fees under 42 U.S.C. section 1988.  In  Hughes v. Rowe  (1980) 449 U. S. 5, the U.S. Supreme Court held that a defendant could recover fees under section 1988 only if the plaintiff's action was frivolous, unreasonable, or without foundation.  The Idaho court concluded that it was not bound by that interpretation of section 1988.  The U.S. Supreme Court held that it was.