Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV 460556
Haerle, J.
I. Introduction
Appellants filed an action in San Mateo Superior Court under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.) seeking to require the disclosure of records of respondent Peninsula Humane Society & SPCA (PHS), a private, nonprofit organization providing animal control services to the County of San Mateo. The trial court sustained a demurrer without leave to amend to appellants’ first amended complaint on the ground that PHS is not subject to the requirements of the CPRA. We agree and hence affirm.
All statutory references are to the Government Code unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
PHS is a private, nonprofit, charitable corporation first formed in 1950 by private citizens. It is not chartered or licensed in any way by either the State of California, the County of San Mateo (County), or any subdivision or agency of either. It does, however, as alleged by appellants herein, provide animal control services to the County pursuant to a contract between it and the County.
Appellant Half Moon Bay Coastside Foundation is, according to appellants’ complaints, a nonprofit corporation located in the County. Appellant Citizens for Accountability is, again allegedly, a taxpayer and community-based organization that “provides oversight for local government activities.” In December 2006, appellants requested that, pursuant to the CPRA, PHS and the County provide them with copies of documents relating to PHS’s performance of various animal control duties which it performed for the County. Appellants’ request, at least per their brief to this court, was triggered by their concern regarding the “cumulative impacts on the environment of animal waste disposal from confined animal facilities and other environmental hazards of importance” to County residents. PHS declined to provide any such documents on the basis that it was not subject to the CPRA.
Appellants did not file a reply brief with this court.
On January 30, 2007, appellants sued both PHS and the County and, in their complaint, asked that those parties be ordered to supply the requested documents under the CPRA because PHS was a “local agency” subject to it. (See § 6252, subd. (a), hereafter § 6252(a).) PHS demurred on the ground that it is a private entity and not a “local agency” subject to the CPRA. The trial court agreed and sustained the demurrer with, however, leave for appellants to amend.
On May 24, 2007, appellants filed a first amended complaint which contained several additions and modifications to their original complaint. In it, they alleged on information and belief that PHS was a “local agency” as defined by section 6252. PHS again demurred and, this time, the superior court sustained its demurrer without leave to amend.
Appellants filed a timely notice of appeal.
Although the County was named as a party defendant below, the order appealed from pertains only to PHS. Thus, the County is not a party to this appeal.
III. DISCUSSION
As appellants concede, the issue before us involves the interpretation and application of the CPRA and is, therefore, clearly an issue of law subject to our de novo review. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
In their briefs to us the parties essentially agree that the core issue on this appeal is whether the law pertaining to the applicability of the CPRA to organizations such as appellant was correctly stated in (apparently) the sole reported case considering that issue, California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 825-830 (CSU Fresno), especially after the adoption of Proposition 59 (now Cal. Const., art. I, § 3) in 2004. We conclude that CSU Fresno still correctly states the applicable law.
In that case, two petitioners (1) the Board of Trustees of the California State University and (2) a private, nonprofit association known as California State University, Fresno Association, Inc. (Association), filed petitions for a writ of mandate with the Fifth District Court of Appeal seeking to overturn an order of the Fresno County Superior Court which had directed both petitioners to produce to the McClatchy Company, doing business as the Fresno Bee, documents relating to “the identity of the individuals and/or companies that purchased luxury suites” in a “$103 million multipurpose arena” to be constructed on that college’s campus. (CSU Fresno, supra, 90 Cal.App.4that p. 816.) Both petitioners had refused the Fresno Bee’s requests for such documents, and that started the litigation in the Fresno County Superior Court.
Our colleagues in the Fifth District affirmed the superior court’s order directing the Board of Trustees of CSU to produce the documents requested of them, holding that such were “public documents” and not exempt from disclosure. (CSU Fresno, supra, 90 Cal.App.4th at pp. 824-825 & 830-835.) However, the appellate court reversed the lower court’s order insofar as it pertained to the other petitioner, the Association.
That court first noted that the Association is a “University-affiliated, nonprofit auxiliary corporation” organized pursuant to Education Code section 89901. (CSU Fresno, supra, 90 Cal.App.4th at p. 825.) The court then addressed the question before us here, i.e., whether a nonprofit organization which, in whole or in part, aids or assists a state or local agency is, itself, subject to the CRPA. It wrote: “As noted by the Association, California courts have generally recognized that auxiliary organizations are not part of the state body they aid or assist. [Citations.] In Wanee v. Board of Directors [(1976) 56 Cal.App.3d 644], the court held that employees of a state university bookstore were not employees of the college or of any governmental entity, but instead were employees of a private corporation. As a result, the manager of the bookstore had no right insulating him against a dismissal made in good faith but without cause. [Citation.] [¶] The court in Coppernoll v. Board of Directors[ (1983)] 138 Cal.App.3d 915, similarly addressed whether an employee of a state university foundation (a nonprofit auxiliary organization) was entitled to a due process hearing before he was discharged by the foundation. The court recognized that Education Code section 89900, subdivision (c), requires the operation of auxiliary organizations to conform to regulations established by the trustees. These regulations require the governing board of each auxiliary organization to provide comparable salaries, working conditions and benefits for its full-time employees to those given state university employees performing similar services. The court determined that comparable working conditions include a due process hearing before discharge, and the employee had been denied this right.” (CSU Fresno, at pp. 826-827.)
The court then examined precedents from other states on the issue of whether an organization such as the Association could be a state agency, and concluded (CSU Fresno, supra, 90 Cal.App.4th at pp. 827-828) that the out-of-state authority was not conclusive one way or the other. It then held: “In resolving this uncharted territory of legislative intent, we recognize the extent of the CPRA’s coverage is a matter to be developed by the courts on a case-by-case basis. [Citation.] In attempting to divine how broadly the term ‘state agency’ can be interpreted, we are limited by rules of statutory construction, recently articulated in People v. Superior Court (Gary) (2000) 85 Cal.App.4th 207, 213 . . .: ‘ “The court’s role in construing a statute is to ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citations.] In determining the Legislature’s intent, a court looks first to the words of the statute. [Citation.] ‘[I]t is the language of the statute itself that has successfully braved the legislative gauntlet.’ [Citation.] [¶] ‘ “When looking to the words of the statute, a court gives the language its usual, ordinary meaning. [Citations.] If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. [Citations.]” [Citation.]’ [Citation.] [¶] At this juncture, it bears repeating that the CPRA defines a ‘state agency’ to mean ‘every state office, officer, department, division, bureau, board, and commission or other state body or agency . . . .’ [Citation.] There is some ambiguity in the phrase ‘other state body or agency.’ However, in resolving this ambiguity, we are bound to apply the plain meaning rule and determine what these words mean based on their ordinary usage. In doing so, we conclude a nongovernmental auxiliary organization is not a ‘state agency’ for purposes of the CPRA. The words ‘state body’ and ‘state agency’ simply do not include a nongovernmental organization. Ironically, our conclusion might well be different if in defining the term ‘state agency,’ the CPRA had incorporated broad language like that employed in the statutory schemes enacted in West Virginia, Louisiana and Ohio. [¶] Our decision is further supported by comparing the definition of ‘agency’ under the [federal Freedom of Information Act or] FOIA with that of ‘state agency’ under the CPRA. The FOIA defines ‘agency’ to include ‘any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Officer of the President), or any independent regulatory agency.’ [Citation.] As a result, federal courts examine a number of factors that indicate federal control of an entity. These include the degree of federal supervision, the use of public buildings, the financial reporting and auditing requirements, the appointment power of federal officials to the board of the entity, and the entity’s specific purposes. [Citation.] [¶] The CPRA, in contrast, does not reference any ‘state corporation’ or ‘state controlled corporation,’ despite the fact it was modeled on the FOIA. [Citation.] Although the FOIA was amended in 1974, following the enactment of the CPRA, to expand the original definition of ‘agency’ [citation], the California Legislature did not follow suit. We cannot ‘simply ignore the language used in attempting to determine what the Legislature intended since we are bound by the doctrine of stare decisis to first look to the words of a statute.’ [Citations.] [¶] We are fully cognizant of the fact that our conclusion seems to be in direct conflict with the express purposes of the CPRA—‘to safeguard the accountability of government to the public . . . .’ [Citation.] The Legislature’s decision to narrowly define the applicability of the CPRA, balanced against its sweeping goal to safeguard the public, leaves us scratching our judicial heads and asking, ‘What was the Legislature thinking?’ In many ways, the Association can be characterized as a ‘state-controlled’ corporation that should be subject to the CPRA. [Citation.] However, courts ‘do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature.’ [Citation.] The rewriting of a statute is a legislative, rather than a judicial function, a practice in which we will not engage.” (CSU Fresno, supra, 90 Cal.App.4th at pp. 828-830, italics omitted.)
Although appellants effectively concede that CSU Fresno directly addresses the issue before us here, and is apparently the only reported California case to do so, they maintain that its holding is no longer controlling because of the enactment of Proposition 59 in 2004.
Although there are, as both parties effectively concede, no other reported California cases addressing this issue, there is one other possibly pertinent authority: a 2002 California Attorney General’s opinion holding that both the CPRA and the Ralph M. Brown Act (Brown Act) relating to public meetings (§§ 54950-54962) applies to “a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city . . . .” (85 Ops.Cal.Atty.Gen. 55 (2002).) But, in addition to the fact that neither party to this appeal cites this opinion, there are two other reasons why we opt to disregard it: (1) the opinion mainly relies on language in the Brown Act as the basis for its conclusion regarding the CPRA, and (2) in our view, the opinion is fatally flawed because, in the course of its very brief consideration of the CPRA issue, it neither cites nor discusses CSU Fresno.
That initiative, now embodied in our Constitution as article I, section 3, provides: “(b)(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore. . . the writings of public officials and agencies shall be open to public scrutiny. [¶] (2) A statute . . . including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” (The remainder of that section consists of four subdivisions providing that nothing in the just-quoted provisions “supersedes or modifies” or “repeal[s] or nullifie[s]” the right of privacy, other provisions of the Constitution, etc.; thus, the two subdivisions quoted above contain the gist of Proposition 59.)
We agree with PHS that nothing in the quoted provisions of that proposition can reasonably be deemed to change––or even modify––the holding of CSU Fresno. That holding centered very specifically on the language of what was then section 6252(a) (now § 6252, subd. (f)) and its definition of “state agency.” That definition, and the CSU Fresno court’s interpretation of it, parallels the very similar terminology pertinent here, the definition of “local agency” in the present section 6252(a), i.e.: “[A] county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) or (d) of section 54952.” (§ 6252(a).)
Several times in its brief to us, respondent PHS cites this definition as appearing in section 6252, subdivision (b). It did until 2004, but that provision was then “redesignated” as section 6252(a). (See Stats. 2004, c. 937, formerly A.B. 1933.)
As with the “state agency” definition examined in CSU Fresno, nothing in that wording suggests the Legislature intended it to include private organizations that volunteered to undertake, and then performed, functions otherwise normally done by a public body. Further, the language of Proposition 59 suggests that its intention was that the CPRA should, thereafter, be interpreted to require more disclosure of records from public agencies subject to it, and not to broaden the definitions of what constitutes such an agency.
Interestingly, since the enactment of Proposition 59, two of our sister courts have held that, even before it, the law required a “broad construction” of the CPRA regarding the documents required to be produced under it. (See BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750, and Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759, 765.) And as our Supreme Court noted well before the passage of Proposition 59, the CPRA “was modeled on its federal predecessor, the Freedom of Information Act . . . which was ‘broadly conceived’ [citation] to require ‘full agency disclosure unless information is [statutorily] exempted. . . .’ [Citation.].” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338.)
Aside from the non-applicability of Proposition 59, there are several other reasons which support the trial court’s well-reasoned opinion in this case. They are:
1. Appellants’ first amended complaint alleges, in its first mention of PHS, that it is a “non-profit corporation” located in San Mateo County. It then goes on to allege, in the same paragraph, that appellants “are informed and believe and thereupon allege that defendant PHS is a ‘local agency’ as defined [in . . . section] 6252(a).” However, in an immediately succeeding paragraph of the same complaint, appellants allege that PHS is a “private contractor” (albeit, by its allegations, one performing a “mandated government function,” i.e., animal control services).
2. Aside from CSU Fresno, there are several other appellate cases holding that, to be considered a public agency, the entity in question has “to be created by statute or Constitution.” (McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.App.4th 354, 359; see also to the same effect, Imperial Irrigation Dist. v. State Wat. Resources Control Bd. (1990) 225 Cal.App.3d 548, 567.) There is no allegation in appellants’ first amended complaint addressing this requirement.
Similarly, the Ninth Circuit Court of Appeals held some decades ago that the American Red Cross, which holds a federal government charter, is not subject to the FOIA, notwithstanding the broader definitions used in the statute (see CSU Fresno, supra, 90 Cal.App.4th at pp. 829-830) as to what constitutes a government agency. (See Irwin Memorial, etc. v. American Nat. Red Cross (9th Cir. 1981) 640 F.2d 1051, 1052-1057.)
3. As the CSU Fresno court pointed out, although there are appellate decisions from other states holding that, under similar public-document-disclosure statutes, a private organization assigned to perform allegedly public duties can be considered a public entity, the cases so holding are interpreting statutes which “cast a much broader net than the CPRA when defining a covered public entity. If anything, the comparatively narrow scope of the CPRA lends some credence to the Association’s position that it is not a ‘state agency’ under the CPRA.” (CSU Fresno, supra, 90 Cal.App.4th at p. 828.)
4. Finally, we find it quite significant that, three years after the publication of CSU Fresno, the Legislature amended section 6252. As noted above (see fn. 5, ante), in so doing it “redesignated” the subdivisions defining the terms “state agency” and “local agency,” but changed neither substantively. And it made that choice notwithstanding the fact that, in CSU Fresno, the Fifth District rather pointedly noted that the “Legislature’s decision to narrowly define the applicability of the CPRA, balanced against its sweeping goal to safeguard the public, leaves us scratching our judicial heads and asking, ‘What was the Legislature thinking?’ ” (CSU Fresno, supra, 90 Cal.App.4th at p. 830.)
In view of the combination of the 2001 CSU Fresno decision (especially the just-quoted passage) and the Legislature’s very limited amendment to the CPRA three years later, we have no difficulty in concluding that an admonition in that decision is even more pertinent now: “The rewriting of a statute is a legislative, rather than a judicial function, a practice in which we will not engage.” (CSU Fresno, supra, 90 Cal.App.4th at p. 830 .)
Especially under the pertinent circumstances, neither will we.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P. J., Richman, J.