Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. CV 06-0196, of San Luis Obispo, Roger Piquet, Judge
Burke, Williams & Sorensen; Amy E. Morgan, for Appellants.
Edmund G. Brown, Jr., Attorney General, State of California, Tom Green, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General and William S. Abbey, Deputy Attorney General, for Respondents.
YEGAN, J.
Julie Tacker, Stephen Onstot, and Gregory Murphy appeal from an order denying statutory fees and costs after the trial court dismissed their action under the California Public Records Act (CPRA; Gov. Code, § 6250, et seq). The trial court found that appellants were not prevailing or successful parties within the meaning of the CPRA (§ 6259, subd. (d)) or the private attorney general statute (Code Civ. Proc., § 1021.5). We affirm.
Unless otherwise stated, all statutory references are to the Government Code.
Appellants, who are associated with the Los Osos Community Services District, served three public document requests on respondents, Central Coast Regional Water Quality Control Board and State Water Resources Control Board.
The first CPRA request was by Julie Tucker, a Los Osos Community Services District board member. The second and third requests were by Attorneys Stephen Onstot and Gregory Murphy of the law firm of Burke, Williams & Sorenson, which represents the Los Osos Community Service District.
Respondents objected to the requests on the ground that appellants were not "members of the public" within the meaning of the CPRA. (§ 6252. subd. (b).) In the interest of "good government," respondents stated they would locate the documents, provide cost estimates, and make the documents available for appellants' review and copying. Appellants failed to clarify the scope of the requests, requiring respondents to search for documents and e-mail dating back to 1995 and provide different cost estimates based on whether appellants sought documents state wide or for Los Osos.
Section 6252, subdivision (b) states: " 'Member of the public' means any person, except a member, agent, officer, or employee of a federal state, or local agency acting within the scope of his or her membership, agency, office, or employment."
The CPRA Action
After respondents produced the documents, appellants filed a petition for writ of mandate and complaint for declaratory relief. (§ 6258.) At the hearing on the writ petition, appellants acknowledged that the documents had already been produced. When the trial court asked why the action was not moot, appellants replied "[w]e are seeking to vindicate our rights under the Public Records Act." On further questioning, appellants conceded that attorney's fees "is all we are requesting. . . ."
The trial court dismissed the action as moot and denied appellants' request for statutory fees and costs.
Attorney Fees Under CPRA
Appellants claim they are entitled to statutory fees pursuant to section 6259, subdivision (d) which provides that fees and costs shall be awarded to a prevailing plaintiff in a CPRA action. "A plaintiff prevails within the meaning of the statute 'when he or she files an action which results in defendant releasing a copy of a previously withheld document.' [Citation.]" (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391.) Here the documents were produced before the lawsuit was filed.
In Fairley v. Superior Court (1998) 66 Cal.App.4th 1414 (Fairley), the plaintiff sued the City of Long Beach for false arrest and made a CPRA request for police reports. City denied the request without explanation. After plaintiff filed a motion to produce, City claimed the reports were exempt under the "pending litigation" provision in section 6254, subdivision (b). (Id., at p. 1418.) The trial court found the exemption applied and denied the motion to compel production. (Id., at pp. 1418-1419.)
City produced the reports after plaintiff filed a writ petition. The Court of Appeal held that the document production did not moot the case and remanded to determine whether the documents were prepared by City for use in litigation. "If the question is decided in petitioner's favor, he will be entitled to collect his attorney fees and costs. (§ 6259, subd. (d).)" (Farley, supra, 66 Cal.App.4th at p. 1419.)
Unlike Fairley, respondents produced the documents in a timely fashion. Appellants could not show that the action was the motivating factor for disclosure of public records that had already produced. "The critical question is whether the requesting party was required to follow through with the implicit threat of a suit in order to obtain the documents. Here, as the record amply demonstrates, [appellants were] not required to do so." (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1351.)
Private Attorney General Fees
Appellants, in the alternative, seek attorney fees under the private attorney general statute. (Code Civ. Proc., § 1021.5.) "Section 1021.5 authorizes a court to award attorney fees to a 'successful party' when the action resulted in the enforcement of an important right affecting the public interest, a significant benefit has been conferred, and the necessity of private enforcement makes the award appropriate. [Citations.]" (National Parks & Conservation Assn. v. County of Riverside (2000) 81 Cal.App.4th 234, 238.)
To recover private attorney general fees, appellants must show that the action was a "catalyst" for respondent's changed conduct, that the lawsuit conferred a substantial benefit on the public, and that appellants made a reasonable attempt to settle the matter short of litigation. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 566-577.)
Under the "catalyst theory," a plaintiff may be a prevailing party even where the action is dismissed as moot. (Graham v. DaimlerChryslter Corp., supra, 34 Cal.4th at p. 572.) " '[T]he critical fact is the impact of the action, . . . [Citation.] The trial court in its discretion "must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award" under section 1021.5.' [Citation.]" (Id., at p. 566.)
Here the documents were timely produced but appellants disagreed with respondents' interpretation of the CPRA. Rather than attempt to settle the dispute, appellants filed suit seeking attorney's fees. The trial court aptly described the case as a standoff in which "both parties are stuck on an issue of 'principle ' and want this Court to force the other to relent. This Court declines to do so and finds the present issue moot."
Under the CPRA "every person" has a right to inspect a public record, except as provided by the statute. (§ 6253, subd. (a).) The term "every person" is seemingly at odds with the "members of the public" definition. (§ 6252, subd. (b); see ante fn. 3 and California Attorney General's Office, "Summary of the California Public Records Act 2004, p. 4. ["Government employees acting in their official capacity are not considered to be members of the public."].)
Appellants make no showing that the trial court abused its discretion in denying their request for statutory fees and costs. (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 578.)
The judgment (order denying fees and costs) is affirmed. The parties shall bear their own costs on appeal. (§ 6259, subd. (d).)
We concur: GILBERT, P.J., PERREN, J.
In Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759, the Court of Appeal recently concluded that the City of Los Angeles and the Los Angeles City Attorney had standing to make a CPRA request for production of public records from another agency.