CARLSBAD POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Respondents, v. CITY OF CARLSBAD et al., Defendants and Respondents; AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO & IMPERIAL COUNTIES et al., Interveners and Appellants.
D075723
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
Filed 5/18/20
CERTIFIED FOR PUBLICATION
Eddie C. Sturgeon, Judge.
APPEAL from an order of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Reversed and remanded with directions.
ACLU Foundation of San Diego & Imperial Counties, David Loy, and Jonathan Markovitz for Interveners and Appellants American Civil Liberties Union of San Diego & Imperial Counties and Flora Rivera.
Reporters Committee for Freedom of the Press, Katie Townsend, Bruce D. Brown, and Lin Weeks for Reporters Committee for Freedom of the Press as Amicus Curiae on behalf of Interveners and Appellants Scripps Media, Inc., et al.
Bobbitt, Pinckard & Fields, Richard L. Pinckard, Bradley M. Fields, and Amy R. Margolies for Plaintiffs and Respondents Carlsbad Police Officers Association, et al.
McDougal Love Boehmer Foley Lyon & Canlas, Morgan L. Foley and Lauren N. Hendrickson for Defendants and Respondents City of El Cajon and Jeff Davis, City of National City and Manuel Rodriguez.
City of Oceanside, Office of the City Attorney, John Mullen, Annie Higle for Defendants and Respondents City of Oceanside and Frank McCoy.
The interveners challenge the condition placed on their intervention. The scope of a court‘s power to limit intervention under
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, the Legislature passed Senate Bill No. 1421 to expand public access to police records concerning the use of deadly or serious force and significant misconduct. (Sen. Bill No. 1421, Stats. 2018, ch. 988.) The new law took effect on January 1, 2019. (
Within a month, eight POAs (Carlsbad, Coronado, El Cajon, Harbor, National City, Oceanside, San Diego, and San Diego Schools) petitioned for writ of mandate to prevent their respective police agencies from releasing pre-2019 records pursuant to Senate Bill No. 1421. The POAs maintained that applying the new legislation to records concerning events that occurred
The POAs requested a temporary stay barring disclosure of pre-2019 records. The agencies did not oppose their request. The court issued an alternative writ, set a March 1 hearing date, and entered a temporary stay.
Roughly one week later, the ACLU of San Diego and Imperial Counties and its client Flora Rivera (collectively, the ACLU interveners) filed a motion seeking leave to intervene (
A separate motion for leave to intervene was filed by Scripps Media, Inc., doing business as KGTV-TV, The San Diego Union-Tribune, LLC, KFMB-TV News 8, KNSD (NBC7), KPBS Public Broadcasting, and Voice of San Diego (collectively, the Media interveners). Each of these news organizations had filed PRA requests with the agency respondents seeking records covered by Senate Bill No. 1421 and claimed they had received inadequate responses. Like the ACLU interveners, the Media interveners sought to intervene both as of right and on a permissive basis under
Most of the agencies did not oppose the requests to intervene. Three agencies—Coronado, El Cajon, and National City—opposed intervention by
The POAs opposed both requests to intervene. Arguing the respondent agencies were inclined to produce pre-2019 records, the POAs maintained that the interveners failed to meet the third criterion for intervention of right—i.e., that their interests were inadequately represented by the original parties. Nor was permissive intervention warranted—the POAs claimed the requests for attorney‘s fees would enlarge the lawsuit
by introducing a request for additional or different relief. In addition, the POAs suggested the specter of an attorney‘s fee award would interfere with the rights of the original parties to litigate the lawsuit on their own terms.
The court held a hearing on February 15 on the motions for leave to intervene. It explained that its tentative decision was to allow intervention but require the interveners to strike their requests for attorney‘s fees because these requests would enlarge the issues in the case. The Media interveners responded that enlargement of the issues was a factor only for permissive intervention, whereas they sought intervention by right. And to the extent intervention was merely permissive, the fact that the POAs also sought attorney‘s fees demonstrated that the interveners’ request would not expand the scope of litigation. Counsel for the ACLU interveners joined in these arguments.
The court proceeded to allow intervention, finding it “appropriate under the third prong,” presumably in reference to the POAs’ argument against mandatory intervention. However, it conditioned intervention on the ACLU and Media interveners striking their request for attorney‘s fees, explaining:
“The issue of attorney fees, it‘s a big issue because I have the police officers association, and I‘ve got all of you in here. In this court‘s humble opinion, I think it‘s best to strike the attorney‘s fees. If you want to file your motion in intervention, strike the attorney fees. You could say, hold on, Judge, we don‘t like that. You can file your own separate lawsuit. That‘s up to you to make that choice. I will leave it to you. I‘ll give you my opinion. I think it‘s best to get this thing done on March 1, one way or the other. I‘m going to leave that up to you. If you want to intervene, strike the attorney fees provision.”
The ACLU and Media interveners filed their complaints in intervention, striking their requests for attorney‘s fees. They subsequently filed merits briefs opposing the POAs’ petition. The agencies took no stance. Following a hearing on March 1, the trial court denied the POAs’ petition, concluding that Senate Bill No. 1421 covered records concerning events occurring before January 1, 2019.5 After the court issued a “partial judgment denying [the POAs‘] petition for writ of mandate,” the ACLU and Media interveners appealed the February 15 order limiting the scope of their intervention.
DISCUSSION
This case presents a matter of first impression in California: can a trial court condition leave to intervene on a nonparty agreeing to forgo its request for statutory attorney‘s fees? As we explain, under the circumstances presented, the trial court could not. Accordingly, we reverse the order and remand the case for further proceedings to
permit the interveners to seek an award of attorney‘s fees against the POAs pursuant to
A. A Successful Intervener in a Reverse-PRA Action Is Entitled To Seek Attorney‘s Fees Pursuant To Section 1021.5 .
successful party‘s attorneys. (Whitley, at p. 1214.) The third factor “does not apply where, as here, a plaintiff‘s action produces no monetary recovery.” (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 218, citing Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 934–935.)
The fundamental purpose of the private attorney general doctrine is to encourage parties to bring lawsuits that effectuate a strong public policy and confer benefits to a broad class of citizens, by awarding substantial attorney‘s fees to those who successfully bring such suits. (Whitley, supra, 50 Cal.4th at pp. 1217–1218.) ” ‘The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible.’ ” (Id. at p. 1218.)
Although the statute is phrased in permissive terms, a court‘s discretion to deny attorney‘s fees to a party that meets the statutory requirements of
It is now well established that a successful intervener seeking records disclosure in a reverse-PRA action is entitled to recover attorney‘s fees under
Division Eight of the Second Appellate District reached a similar conclusion in City of Los Angeles v. Metropolitan Water District of Southern California (2019) 42 Cal.App.5th 290 (Metropolitan Water). When a city controller questioned the merits of a government-run artificial-turf rebate program, the San Diego Union-Tribune submitted a PRA request to a regional water district seeking information about who had participated in the program. After conferring with its member—a city water department—the district produced redacted records. (Id. at p. 297.) The Union-Tribune
objected to the redactions. Meanwhile, the city water department filed a reverse-PRA lawsuit seeking to enjoin the district from releasing information about turf program participants. After the Union-Tribune intervened, the trial court denied the water department‘s petition and granted the Union-Tribune‘s cross-petition to compel disclosure. The court also awarded attorney‘s fees under
Here, there is no dispute that the release of police records concerning officer misconduct and use of serious force implicates a matter of public interest. The trial court expressed as much in allowing intervention: “clearly, we have got a very important issue statewide. I‘m not the only court looking at this.” Instead, the POAs attempt to distinguish Pasadena Police by claiming their action was not a reverse-PRA claim. Whereas the officers in Pasadena Police sought to block access to a specific pending CPRA request, the POAs argue they were seeking “clarification” as to the scope of Senate Bill No. 1421. As the Media interveners suggest, however, this supposed distinction only underscores the public interest at stake. (See Pasadena Police, supra, 22 Cal.App.5th at pp. 164–165 [police officer union‘s efforts to broaden exemptions to PRA disclosure “further justifies the imposition of attorney fees,” showing an institutional rather than purely private interest].) As a factual matter, the POAs made specific reference in their writ petition to
No. 1421 that threatened to overwhelm the agency respondents. That the POAs sought to categorically impair a multitude of records requests does not change the nature of their reverse-PRA action.8
In short, Pasadena Police and Metropolitan Water have established that attorney‘s fees are available under
whether the court could validly impose such a condition on intervention. In answering this question, we first explore whether intervention here was permissive or compulsory.
B. The ACLU and Media Interveners Were Entitled To Intervention of Right.
“An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following: [¶] (1) Joining a plaintiff in claiming what is sought by the complaint. [¶] (2) Uniting with a defendant in resisting the claims of a plaintiff. [¶] (3) Demanding anything adverse to both a plaintiff and a defendant.” (
(Edwards).) These criteria are virtually identical to those for compulsory joinder of an indispensable party. (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 556 (Hodge); see
If intervention is not compulsory, leave to intervene may also be granted on permissive grounds. Under
“Whether intervention is permissive or mandatory, a petition to seek leave is required; without permission from the court, a party lacks any standing to the action.” (Lohnes v. Astron Computer Products (2001) 94 Cal.App.4th 1150, 1153.) Although a party may assert that it holds an unconditional right to intervene, that right is conditioned on a court‘s initial determination that the application to intervene is timely. (Ibid.) Here, there is no dispute that the ACLU and Media interveners’ applications were timely.
If leave to intervene is granted, “[t]he intervener becomes a party to the action with all of the same procedural rights and remedies of the original
entitled to recover costs under
As the Media interveners suggest, the record is unclear whether the trial court granted leave to intervene permissively or as of right. In finding intervention “appropriate under the third prong,” the court appeared to respond to the POA‘s argument that the interveners failed to satisfy the third requirement for mandatory intervention because the agencies would adequately represent their interests. But the minute order also stated the requests for attorney‘s fees would enlarge the issues—a criterion for permissive intervention. Where intervention is as of right, “[i]t makes no difference that such intervention will expand the issues in the case and impinge on the right of the original parties to litigate the matter in their own fashion.” (Weil et al., Civil Practice Guide: Civil Procedure Before Trial (The Rutter Group), ¶ 2:401.)
We agree that the ACLU and Media interveners qualified for intervention of right. Both had filed a series of records requests with the eight agencies, seeking pre-2019 police records pursuant to newly enacted Senate Bill No. 1421. Through their mandamus petition, the POAs sought to prevent the agencies from releasing pre-2019 records pursuant to a PRA request. Therefore, the interveners had direct interests in the subject
matter of the litigation. “A successful reverse-CPRA lawsuit seeking to prevent a public agency from releasing information on the ground the requested disclosure is prohibited by law will necessarily affect the rights of the party requesting the information—a party whose interest in access to public records is recognized by California Constitution, article I, section 3, subdivision (b)(1), as well as the CPRA, and protected by specific provisions of the CPRA authorizing litigation to compel disclosure.” (Marken, supra, 202 Cal.App.4th at pp. 1269–1270.)
Absent intervention, resolution of the petition in the POA‘s favor would, “as a practical matter impair or impede [the interveners‘] ability to protect that interest.” (Hodge, supra, 130 Cal.App.4th at p. 554; see
On this record, the Media and ACLU interveners qualified for intervention of right under
C. The Trial Court Abused its Discretion in Conditioning Intervention of Right on Forgoing Otherwise Appropriate Requests for Statutory Attorney‘s Fees.
The POAs maintain that regardless of whether intervention was mandatory or permissive, intervention was “specifically conditioned” on the interveners striking their requests for attorney‘s fees. This argument goes to the heart of the matter before us—may a trial court condition intervention on a nonparty giving up its right to request statutory attorney‘s fees? For reasons we explain, the court could not impose such a condition here.
The parties do not cite, nor have we found, California authority specifically delineating when and how a court may restrict intervention.10 It is well settled that a trial court has inherent power to exercise reasonable control over litigation pending before it ’ “in order to ensure the orderly administration of justice.’ ” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 (Rutherford); see
to enforce statutory rights. (Topa Ins. Co. v. Fireman‘s Fund Ins. Cos. (1995) 39 Cal.App.4th 1331, 1344.) Among these powers is the ability to “make discretionary orders with
Federal authorities help refine that rule. Although not identical in all respects,
two mandatory intervention statutes should have the same meaning, and we may look to authorities construing the parallel federal rule for guidance. (Hodge, at p. 556; Siena Court, at p. 1423; Edwards, supra, 29 Cal.App.5th at pp. 732–733.)
Justice William Brennan suggested an approach to evaluating the scope of a court‘s power to restrict intervention in a concurring opinion in Stringfellow v. Concerned Neighbors in Action (1987) 480 U.S. 370 (Stringfellow). He reasoned that although courts may impose reasonable conditions of intervention, a district court “has less discretion to limit the participation of an intervenor of right than that of a permissive intervener.” (Id. at p. 382 (conc. opn. of Brennan, J.).) Unlike the
be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of proceedings.’ ” (Id. at p. 383, fn. 2 (conc. opn. of Brennan, J.).) Later cases have followed Justice Brennan‘s suggested approach.
Because permissive intervention “is addressed to the discretion of the court,” a district court “may impose various conditions or restrictions on the scope of intervention.” (Lesz v. Kavanaugh (N.D.Tex. 1991) 783 F.Supp. 286, 292.) For example, in Department of Fair Employment & Housing v. Lucent Technologies, Inc. (9th Cir. 2011) 642 F.3d 728 (DFEH), a California agency sued Lucent Technologies for violating the Fair Employment and Housing Act (
Courts may likewise impose reasonable conditions “of a housekeeping nature” on interveners of right. (7C Wright, Miller & Kane, Fed. Practice & Procedure (3d ed. 2007), § 1922, pp. 630–632.) A unilateral right to intervene “does not prevent the
imposition of reasonable limitations on Applicants’ participation to ensure the efficient adjudication of the litigation.” (United States v. Duke Energy Corp. (M.D.N.C. 2001) 171 F.Supp.2d 560, 565 (Duke); see Beuregard, Inc. v. Sword Services LLC (5th Cir. 1997) 107 F.3d 351, 353 [same].) For example, where interveners of right in public-law litigation “have a sufficient interest to intervene as to certain issues in an action without having an interest in the litigation as a whole,” it may be reasonable “to limit intervention as of right to discrete phases of the litigation.” (Harris v. Pernsley (3d Cir. 1987) 820 F.2d 592, 599 & fn. 11; see also United States v. Detroit (6th Cir. 2013) 712 F.3d 925, 931–932.) Likewise, to avoid duplication, expense, and delay when discovery is already underway, a magistrate judge may require leave of court for the intervener to initiate unilateral independent discovery. (Duke, at p. 565.)
By contrast, a court abuses its discretion by severely restricting the participation of an intervener of right. (Columbus-America Discovery Group v. Atlantic Mutual Ins. Co. (4th Cir. 1992) 974 F.2d 450, 469–470 [court could not effectively deny all discovery to intervener of right] (Columbus).) “While the efficient administration of justice is always
an important consideration, fundamental fairness to every litigant is an even greater concern.” (Id. at p. 470.) A court consequently has limited authority “to make significant inroads on the standing of an intervenor of right; in particular, it should not be allowed to limit the intervenor in the assertion of counterclaims or other new claims.” (7C Wright, Miller & Kane, supra, § 1922; see Florida Medical Assn., Inc. v. Dept. of Health, Educ., & Welfare (M.D.Fla. May 18, 2011, No. 3:78-cv-00178–MMH–MCR) 2011 U.S.Dist.Lexis 11180, *21 [rejecting party‘s request to strike intervener‘s cross-claims as a condition of intervention of right] (Florida).) As one scholar put it, reasonable limits on interveners of right “do not preclude effective presentation of the intervener‘s interest.” (Shapiro, Some Thoughts on Intervention before Courts, Agencies, and Arbitrators (1968) 81 Harv. L.Rev. 721, 756.)
In short, although the issue is one of first impression in California, federal authorities help us derive the following guidelines. A trial court may place reasonable conditions on a nonparty‘s intervention under
We review the propriety of conditions imposed for abuse of discretion. (See Columbus, supra, 974 F.2d at p. 470; In re Financial Oversight and Management Board for Puerto Rico (1st Cir 2017) 872 F.3d 57, 64.) So long as there exists a reasonable justification for the condition imposed, the trial
Turning to our record, the analysis here is not close. The trial court conditioned intervention by the ACLU and Media interveners on striking their requests for attorney‘s fees.
Given the weighty policy considerations that motivated the enactment of
In any event, we need not resolve the broader question. A court has less discretion to restrict participation of by intervener of right, and the ACLU and Media interveners qualify for such intervention. It was an abuse of discretion to condition participation by interveners of right on forgoing their
On remand, the ACLU and Media interveners are entitled to request attorney‘s fees under
Many of the concerns raised by the POAs as to whether the interveners unnecessarily expanded the scope of the litigation, or whether their efforts were necessary to achieve the outcome, can be addressed in resolving the attorney‘s fee motion itself. (See Whitley, supra, 50 Cal.4th at p. 1226 [“the court may legitimately restrict the award to only that portion of the attorneys’ efforts that furthered the litigation of issues of public importance“].) Suffice to say, the potential merits of the interveners’ claims for attorney‘s fees “are far too complex to take up on (or serve as grounds to limit) intervention.” (Florida, supra, 2011 U.S.Dist.Lexis 11180, *21.)
DISPOSITION
The February 15 order conditioning intervention by the ACLU and Media interveners on striking their requests for attorney‘s fees is reversed, and the superior court is directed to enter a new order granting intervention without that condition. The matter is remanded for further proceedings consistent with this opinion to permit the ACLU and Media interveners to request attorney‘s fees under
as to their appeal against the City of Oceanside, City of El Cajon, or National City and their respective police chiefs.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.