Opinion
C085484 C085606
07-27-2018
PETER T. HARRELL, Petitioner, v. THE SUPERIOR COURT OF SISKIYOU COUNTY, Respondent; HORNBROOK COMMUNITY SERVICES DISTRICT, Real Party in Interest. ROGER GIFFORD, Petitioner, v. THE SUPERIOR COURT OF SISKIYOU COUNTY, Respondent; HORNBROOK COMMUNITY SERVICES DISTRICT, Real Party in Interest.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCCVPT150847) (Super. Ct. No. SCCVPT151392)
This case is about what it means to be a prevailing plaintiff under the California Public Records Act (the Act). Here, petitioners Peter Harrell and Roger Gifford (collectively petitioners) initiated separate actions under the Act after Hornbrook Community Services District (the District) failed to respond to their individual public records requests. Thereafter, the District allowed petitioners access to the records in its possession, and petitioners made copies of various records. This was not enough for petitioners, however, and they demanded the District provide access to records not within the District's possession or control. The trial court eventually denied both of the petitions finding the petitions lacked merit. The court further gave petitioners notice of its intention to find the petitions frivolous, thus entitling the District to attorney fees. Petitioners sought extraordinary relief in this court challenging multiple rulings by the trial court, including its findings that petitioners were not the prevailing plaintiffs in their actions against the District.
We issued an order to show cause directing the District and petitioners to address whether petitioners were the prevailing plaintiffs and stayed any further proceedings in the trial court. We conclude petitioners did prevail because their actions motivated the District to disclose records it had previously withheld from them. Accordingly, we reverse the trial court's orders to the extent the court determined petitioners did not prevail pursuant to the Act.
FACTUAL AND PROCEDURAL BACKGROUND
We agree with the trial court that while petitioners made separate record requests and initiated separate litigation under the Act, their cases involve common facts and applicable law, along with nearly identical pleadings. Because of the strikingly similar arguments presented, we conclude it appropriate to consolidate petitioners' cases for the purpose of oral argument and decision.
I
The District
Petitioners live or own property within the boundaries of the District, which is located in Siskiyou County and provides water services to the properties located within it. The District does not have office staff and relies solely on unpaid community volunteers to maintain the District's records and respond to record requests. In 2013, out of concern the District's water system was degrading, Harrell became certified in water treatment and distribution and was employed by the District in several positions. Harrell also attended nearly every meeting of the District from late 2006 through mid-June 2014, then resumed going to meetings in September 2014. Gifford served on the District's board from January 2014 until December 2015. These experiences with the District provided petitioners with insight into the documents the District possessed at any particular time and where those documents were stored.
II
Harrell's Request
In a letter dated June 7, 2015, Harrell requested from the then District president Michele Hanson access to and copies of five categories of public records: 1) all records associated with meetings of the District's board presided over by Hanson since June 4, 2014; 2) all contracts between the District and independent contractors, employees, and attorneys, excluding attorney-client communications, since June 4, 2014; 3) all job applications submitted to the District; 4) all communications with legal representatives that predate the representatives' hiring; and 5) all requests to the District for items to be placed on the agenda since June 4, 2014. Harrell made the same request on June 26, 2015, after the District failed to respond to his initial request. On July 7, 2015, Harrell informed Hanson that he intended to initiate litigation because of the District's failure to respond to his requests, and he followed through with that assertion on July 9, 2015, by filing a petition for writ of mandate in the superior court.
In its answer filed August 11, 2015, the District admitted it had received Harrell's requests and that it had not produced any responsive documents to him. The District claimed that it had responded to Harrell's request by providing Harrell with an estimate of costs to produce copies of the records and have them mailed to him, but Harrell refused to pay. The District did not submit to the trial court a copy of its response to Harrell's record requests or its request for payment.
III
Gifford's Request
Gifford made his request to the District and Hanson in a letter dated October 15, 2015. In the letter, he requested access to and copies of five categories of records, some of which overlapped with Harrell's request. Gifford's request included: 1) all records associated with the District's billing of customers, including the bills themselves, the District's billing policies, requests for bids, the District's communications with other public agencies, agenda packets, contracts and agreements, and all resolutions or actions taken by Hanson since July 20, 2015; 2) all job applications submitted since July 20, 2015, along with all time cards, bids, and invoices from employees and independent contractors since July 20, 2015; 3) all contracts and communications with any attorney or law firm since July 20, 2015; 4) all requests to the District for items to be placed on the agenda since July 20, 2015; and 5) all records related to water production, treatment, and distribution kept at any district property since July 20, 2015, including all meter readings of all customers. On November 9, 2015, after failing to hear from the District, Gifford initiated litigation by filing a petition for writ of mandate in the superior court.
In its answer filed December 18, 2015, the District could not state whether it had received or responded to Gifford's record request but claimed it had provided him with access to "most" of the requested documents on "many" prior occasions.
IV
The District's Actions After Petitioners' Initiated Suit Pursuant To The Act
In November 2015, new members were elected to the District board. One member of the District's board, Patricia Slote, was also appointed the District's secretary. Upon assuming office in December 2015, Slote was given records by the District's previous president. The records consisted of four boxes and a binder. The binder held all agendas and minutes from meetings dating back to January 2013, along with other miscellaneous correspondence. Slote checked with other officers, directors, employees, and agents of the District, none of whom told her they were in possession of additional records. Slote believed she was in possession and control of all known existing District documents and was not aware of any other documents in the possession of other officers. She also thought some documents predating her tenure as secretary were missing from the records she was given and that some of those records were in the possession of the former secretary, Kimberly Olson.
Although not a party to these proceedings, Olsen is engaged in multiple cases against the District, as are petitioners. She and petitioners have worked together in making records requests and in accessing the District's records.
After receiving the District's records, Slote met with petitioners regarding their outstanding record requests. On January 4, 2016, she and board member Robert Puckett met with petitioners for three hours. The purpose of the meeting was for petitioners to view the records in Slote's possession and make copies. From this meeting, the District compiled a list of documents and indicated whether that document had been produced or not. Several of the documents on the list are those included in both of petitioners' record requests. Following the list is a hand-written note both Harrell and Slote signed, which provided: "Many responsive docs were produced with some expected documents lost, unavailable, or unlocated [sic] [at] this time. Parties agree all are acting in good faith, and will continue to search for and produce responsive documents. Olson [and] Harrell will provide [the District] feedback [and] reasonable opportunity for further product[ion]."
Following this meeting, a hearing in Harrell's case was held on January 14, 2016. Among other things, the trial court ordered the parties "to meet and confer in a good faith effort to have [Harrell] communicate to the [District] the substance of his public records request, and to give the [District] an opportunity to meaningfully respond to that request."
The group then met again on February 22, 2016, for three hours for the same purpose as the January 4, 2016, meeting. In June 2016, Slote again met with petitioners for three and one-half hours. At the end of that meeting, the group agreed to meet again if petitioners needed to view additional documents; however, petitioners never contacted her for any further meetings. At these meetings, Slote provided all of the documents in her possession, except for attorney-client communications and customer billings because they were exempt from disclosure under the Act.
The records Slote produced to Harrell for inspection in response to his request included agendas, agenda packets, minutes, resolutions and motions from the District's meetings. She did not produce videos of meetings, documents considered by the board at meetings, the District's contracts, job applications, or agenda item requests because none of these documents were in her possession. She also did not produce communications the District had with its attorney because those records were privileged communications exempted from public disclosure.
As it pertains to Gifford's request, Slote produced to him bills paid by the District, approved warrants, time cards, invoices, contracts with attorneys and their billing records, warrant requests, and "[i]ndicia" of payments to attorneys. She did not produce records that were not in her possession. These records included the District's billing policies and procedures, requests for bids, the District's communications with outside agencies, agenda packets, documents given to the District's board, the District's contracts, resolutions, minutes, motions, job applications, bids, estimates, agenda requests, and documents pertaining to the District's water production, treatments, and distribution. Finally, Slote did not produce attorney-client communications and the District's client's billing records because they were exempt from public disclosure.
Petitioners disputed Slote's claims of production arguing that the meetings wherein Slote purported to disclose records were actually meetings regarding other record requests they had made and not the ones subject to the instant litigation. Both Harrell and Gifford claimed they had still not received a written response regarding their record requests and that Slote did not conduct a reasonable search for the District's records not in her possession. Petitioners also claimed that Slote told them multiple times over the prior eight months that she had not searched for any record in Hanson's possession.
V
The Court's Order
In a hearing on August 23, 2017, the superior court resolved two cases involving petitioners and the District. The trial court found Harrell made a records request on June 7, 2015, and June 26, 2015. He then initiated his action on July 9, 2015. In the six months following Harrell's request, the District, through Slote and Puckett, conducted a "reasonably thorough" search for all responsive documents by contacting former officers, directors, employees, and agents of the District. During that time, Gifford filed his public record request on October 15, 2015, and then his petition on November 9, 2015, with the superior court. Harrell and Gifford were then granted access to the District's records and were permitted to scan the documents on three separate occasions -- January 4, February 22, and June 7, 2016.
By that same order, the superior court also resolved an action under the Act between Harrell and the Hornbrook Fire Protection District.
Out of the documents the District had in its possession, it did not provide Harrell and Gifford with documents containing attorney-client communications but did provide them with attorney billings listing the balances due in specific cases, without providing detail of the specific services rendered. The District also did not provide Harrell or Gifford with customer billings because the burden on the District to redact significant portions of the bills outweighed the benefit to Gifford and Harrell.
The trial court determined both Harrell's and Gifford's petitions lacked merit. Specifically, the trial court rejected Harrell's argument that he was entitled to inspect original documents and that his meetings with the District, wherein it provided him with access to the District's records, did not involve the record request subject to this action. The court reasoned that Harrell was working with the District on an ongoing basis for production of records he had requested through various record requests. Harrell also acknowledged the District was making a good faith effort to locate and provide him with all of the records he requested. Given the District's ongoing effort to locate and disclose responsive documents and the lack of an allegation that the disclosed records do not accurately reflect the original contents, the District reasonably responded to Harrell's request in its three meetings with petitioners.
It also rejected Gifford's argument that the District violated the Act by failing to respond to his record request in writing. The trial court determined that a written response is only required when denying production of a record requested, which the District did do following the January 4, 2016, meeting between the District and petitioners.
The trial court also determined the District lawfully excluded from production records between the District's special counsel and the District under the attorney-client privilege exemption because those communications exclusively pertained to litigation. Finally, the trial court rejected petitioners' arguments that the District failed to gather responsive documents to their record requests. The court determined Slote's search for records was sufficient under the Act because no evidence showed that affiliates of the District failed to give Slote records she requested from them.
Following the trial court's rejection of petitioners' claims, it found the petitions must be denied. Without determining whether petitioners' initiation of litigations resulted in the production of public records, the court found both petitions lacked merit. The court then put petitioners on notice that it would hold a hearing to determine whether petitioners' actions were frivolous and as a result they were liable to the District for attorney fees.
Petitioners sought extraordinary relief in this court, and we issued an order to show cause directing the parties to address whether petitioners are prevailing parties under the Act. Also in that order, we stayed all proceedings in the trial court.
DISCUSSION
I
We May Determine Whether Petitioners Are Prevailing Plaintiffs
The District raises several arguments for why we are prevented from considering the petitions filed in this court. First, the District argues petitioners seek review of an order that has not yet been made. Specifically, the District contends that because the trial court never entered an order finding petitioners were not prevailing parties, that their cases were frivolous, or that they must pay attorney fees to the District, their petitions seeking review of such findings are premature. While we agree no order was entered declaring petitioners' cases frivolous or that they owe attorney fees to the District, we disagree that no order was entered finding petitioners were not prevailing parties.
Government Code section 6259, subdivision (c), provides that the exclusive procedure for review of "an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure" is a petition to the appellate court seeking the issuance of an extraordinary writ. (Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1296.) The District argues the question of whether petitioners are prevailing plaintiffs was not decided in the court's order supporting the decision of the District. Instead the District argues the court will make the prevailing plaintiff finding at the hearing it set to determine whether the petitions were frivolous and petitioners owe attorney fees to the District. The proper procedure for petitioners is to appeal the order entered following that hearing, in the event the order is adverse to them. We disagree.
The trial court did make prevailing plaintiff findings by determining the petitions lacked merit. In another section of the court's order, which is not a subject of this mandamus proceeding, the trial court granted a writ petition Harrell filed pursuant to the Act stemming from a record request he made to the Hornbrook Fire Protection District. Even though the trial court granted the petition, it found Harrell was not a prevailing plaintiff under the Act because his litigation did not lead to the disclosure of any documents the fire district previously withheld. Conversely, in the two actions at issue here, the trial court denied the petitions, found them meritless, and then set a hearing to determine whether they were frivolous. Given that the trial court addressed the prevailing plaintiff issue in a related matter and then in the present actions reserved the sole issue of frivolousness after finding the petitions lacked merit, the trial court impliedly found petitioners were not prevailing plaintiffs. Because the trial court impliedly found petitioners were not prevailing plaintiffs in the order supporting the District's decision, petitioners may seek review by extraordinary writ in this court pursuant to Government Code section 6259.
Second, the District argues petitioners' writ petitions are vague because they do not specify the relief they seek other than to request that their petitions under the Act be granted in their entirety. Although parts of the petitions may seem vague, petitioners are clear that they seek the trial court's implied findings that they did not prevail to be vacated. Petitioners cite to relevant authority and argue they were the prevailing plaintiffs because their actions motivated the District to disclose public records it sought to withhold prior to petitioners' filing litigation pursuant to the Act. This claim is alleged with sufficient particularity.
Third and finally, the District argues Gifford's petition was untimely filed and must be dismissed. As to this contention, it appears the District is mistaken. The District argues Gifford was required to file his petition on or before October 23, 2017, after taking into account an extension of time. Because Gifford filed his petition on October 26, 2017, the District argues his petition was untimely. Gifford, however, filed his petition on September 26, 2017, meeting the deadline imposed by the trial court when granting Gifford an extension of time. Thus, his petition was timely filed and we may review his claim.
II
Petitioners Are Prevailing Plaintiffs
When denying the petitions, the trial court impliedly found petitioners were not prevailing plaintiffs by determining the petitions also lacked merit. The court based this decision on its rejection of the substantive claims contained in petitioners' briefs. When rejecting petitioners' claims, the trial court found the District conducted a reasonable search for responsive documents to petitioners' record requests because "Slote made inquiry of all district board members, officers, and employees requesting district records that they might have in their possession." After this six-month search, initiated by Harrell's record request, petitioners were granted access to the responsive documents known to exist, except those that were properly withheld for falling under an exemption, i.e., attorney-client communications and documents requiring burdensome redaction. Based on this analysis, the court believed petitioners were not entitled to a prevailing plaintiff finding because their requests were met with Slote's reasonable search and later access to the requested documents within the District's possession.
Under the Act, however, a petitioner's right to attorney fees is not tied to whether he or she has won a lawsuit. (Beth v. Garamendi (1991) 232 Cal.App.3d 896, 901-902 [the plaintiff should be awarded requested attorney fees in an action filed pursuant to the Act if her lawsuit induced the disclosure of documents regardless of whether it resulted in a judicial determination in her favor].) The Act mandates a public agency to notify a requester of public documents within 10 days of the request whether the requested documents are disclosable or the reasons the agency is withholding the documents from disclosure. (Gov. Code, § 6253, subd. (c).) Government Code section 6259, subdivision (a) permits a person requesting public records to file a petition to compel disclosure of the records if they are being improperly withheld. Subdivision (d) of the statute, an attorney fees provision, provides in relevant part: "The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section." "Litigation under the [Act] is one of the rare instances where a losing party may still be deemed a prevailing party entitled to an attorney fee award. This is because the plaintiff has prevailed within the meaning of the [Act] when he or she files an action that 'results in defendant releasing a copy of a previously withheld document.' [Citation.] [¶] Thus, a plaintiff need not achieve a favorable final judgment to be a prevailing party in . . . litigation [under the Act]." (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 454.)
A plaintiff is also " 'considered the prevailing party if [the] lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior [citation], or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.' " (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1321-1322.) "However, a . . . plaintiff does not qualify as a prevailing party merely because the defendant disclosed records sometime after the . . . action was filed." (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.) "There must be more than a mere temporal connection between the filing of litigation to compel production of records under the [Act] and the production of those records. The litigation must have been the motivating factor for the production of documents. [Citations.] The key is whether there is a substantial causal relationship between the lawsuit and the delivery of the information." (Ibid.)
We review the trial court's decision for abuse of discretion, deferring to any factual findings made by the court that are supported by substantial evidence. (San Diegans for Open Government v. City of San Diego, supra, 247 Cal.App.4th at p. 1322.) However, a trial court abuses its discretion when factual findings critical to its decision are not supported by substantial evidence. (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.)
As described, the trial court did not believe petitioners' legal actions led to disclosure of requested documents because the District, through Slote and Puckett, searched for responsive documents upon receiving Harrell's record request in June 2015 and would have released the records without legal action. This finding, however, is not supported by substantial evidence.
In its moving papers, the District indicated it had elected an entirely new board in November 2015. Slote declared she was a member of the new board and was also appointed as the District's secretary in December 2015. Puckett was also a member of this entirely new board. Slote declared that it was only after her appointment as secretary that she received the records in the District's possession and instituted a search for documents responsive to petitioners' requests. From this evidence it is clear the search initiated by Slote and Puckett the trial court referenced in its order was not initiated until they took office in December 2015, after both Harrell and Gifford filed actions pursuant to the Act.
Missing from the record is the steps the District took to answer petitioners' record requests after the requests were made and before petitioners initiated litigation. The first time the District produced responsive documents, according to the evidence and the trial court's order, was at the January 4, 2016, meeting between Slote and petitioners. This meeting occurred six months after Harrell filed his action pursuant to the Act and two months after Gifford filed his action. Even after this January 4, 2016, meeting, the court ordered the District to further meet with Harrell so it could meaningfully respond to his record request. All the steps the District points to showing it complied with petitioners' record requests -- conferring with Harrell, searching for responsive documents, and allowing petitioners access to responsive documents -- did not occur until after petitioners initiated their actions pursuant to the Act, leading us to conclude the pending litigation motivated the District to comply with the provisions of the Act.
Still, however, the District argues litigation under the Act did not motivate it to produce records in response to petitioners' record requests. Specifically, the District argues that neither of petitioners believes the January 4, 2016, meeting, or any meeting thereafter, concerned the record requests at the center of this litigation. Because petitioners do not believe their actions motivated the meetings between the District and themselves, this court should not conclude otherwise. We reject this argument.
As the trial court found, following the January 4, 2016, meeting the District responded to petitioners' records requests by providing them with a list of the documents produced and the documents not produced because the District either did not possess them or because the District thought they fell under a disclosure exclusion in the Act. The list provided by the District details the records requested by petitioner in the requests subject to this litigation and whether the records in those requests were produced by the District. Whether petitioners believed this writing to be in response to the record requests subject to the instant litigation is immaterial because the District obviously thought it in response to the record requests, as declared to by Slote. The District, however, needed to make this response after receiving petitioners' record requests, not after being sued under the Act.
No evidence in the record exists to show that the January 4, 2016, meeting between the District and petitioners was motivated by anything other than the litigation filed by petitioners. The District showed a complete lack of action in responding to petitioners' record requests prior to the lawsuits. Following the filings, the District engaged in an extensive search for records culminating in three separate meetings between petitioners and the District, wherein the District produced responsive documents. This change in the District's efforts to respond to petitioners' record requests from pre- to post-initiation of litigation leads to the conclusion that petitioners' actions under the Act were a substantial cause of the District's production of responsive records. Thus, petitioners are prevailing plaintiffs under the act. (See Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.)
The fact that petitioners may have been motivated to make their record requests and even to file actions under the Act to harass the District does not change our conclusion. Indeed, Government Code section 6257.5 provides: "This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure." "[T]he motive of the particular requester is irrelevant; the question instead is whether disclosure serves the public interest. 'The Public Records Act does not differentiate among those who seek access to public information.' " (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1324.) "The purpose of the requesting party in seeking disclosure cannot be considered." (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1018.) Petitioners' purpose in obtaining the requested materials is immaterial when determining whether they prevailed in this litigation. Rather, the proper determination is whether the District should have released the requested materials without litigation, and whether it eventually did disclose documents due to the suit. Here, the answer to both questions is yes.
DISPOSITION
Petitioners' motions to augment their respective records are denied. --------
Let preemptory writs of mandate issue directing the respondent court to vacate its orders dated August 23, 2017 determining petitioners are not prevailing plaintiffs, and to enter new orders determining that petitioners are prevailing plaintiffs. The court is also directed to determine the amount of reasonable attorney fees and costs, if any, petitioners are entitled to under Government Code section 6259, subdivision (d). The stays issued by this court on September 22, 2017 and September 28, 2017 are vacated upon finality of this opinion. In the interest of justice, the parties will bear their own costs. (Cal. Rule of Court, rule 8.493(a)(1)(B).)
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.