This writ petition presents the following question: May a surrogate for a party to a pending lawsuit against a public entity obtain documents under the California Public Records Act (CPRA; Gov. Code, § 6250 et seq.) relating to the attorney fees charged by litigation counsel for the public entity? In this case, we answer the question in the affirmative.
Under the CPRA (Gov. Code, § 6250 et seq.),
By case law, the CPRA is broadly construed. Exemptions, however, are narrowly construed. Consistent with this construction, the trial court here ruled the pending litigation exemption did not apply to billing and payment records reflecting the amount of money the County of Los Angeles (County) had paid in attorney fees to defend itself against a pending civil rights action.
The County claims the trial court erred in construing the statutory exemption and ordering disclosure of the records in question. We reject the contention and deny the County’s petition for a writ of mandate.
FACTUAL AND PROCEDURAL HISTORY
Real party in interest Cynthia Anderson-Barker is an attorney. She works in the same office as Attorneys Robert Mann and Donald Cook, who are her attorneys of record in this CPRA action both in the trial court and in this court. Attorneys Mann and Cook also represent the plaintiffs in a civil rights action that has been pending in the Los Angeles County Superior Court since 1999—Venegas v. County of Los Angeles (No. BC207136) (the Venegas action).
One month later, in November 2011, Anderson-Barker filed a petition for writ of mandate in the superior court, seeking disclosure under the CPRA of certain records relating to the Venegas action, records that the County had refused to disclose in response to a formal CPRA request.
In its answer to the mandate petition, the County maintained that the documents in question were not subject to disclosure because, among other things, (1) they were attorney-client communications, (2) they were attorney work product, and (3) they were exempt from disclosure under the CPRA’s “pending litigation” exemption in section 6254, subdivision (b).
Before the hearing on the matter, the trial court issued a tentative decision which became the ruling of the court after the parties submitted on the tentative without substantive argument. The trial court ruled the documents in question were not attorney-client privileged communications, but they did contain some attorney work product. Thus, attorney time records reflect legal research performed, as well as the thought processes and impressions of counsel. The court ruled that the information should be redacted “to show [only] the information that is not work product—the hours worked, the identity of the person performing the work, and the amount charged.”
With respect to the pending litigation exemption, and citing Fairley v. Superior Court (1998)
The County filed a writ petition with this court challenging the trial court’s ruling. (See § 6259, subd. (c) [trial court order directing disclosure or upholding refusal to disclose under the CPRA is not appealable, “but shall be immediately reviewable by petition to the appellate court”]; Powers v. City of Richmond (1995)
We initially denied the petition summarily. However, the Supreme Court granted the County’s petition for review and transferred the matter to us with directions to issue an order to show cause. We issued such an order, received additional briefing from the parties, and heard oral argument.
DISCUSSION
1. The Standard of Review
As with any statute, the construction and interpretation of the CPRA is a question of law which we review de novo. (BRV, Inc. v. Superior Court (2006)
2. The CPRA
The CPRA was enacted in 1968 and is modeled after the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552 et seq.). (Axelrad, supra, 82
Under the CPRA, subject to certain express exemptions, “every person” has a right to inspect any “public record” maintained by a “state or local agency.” (§ 6253, subd. (a).) The County is a local agency under the CPRA (§ 6252, subd. (a)), and there is no dispute that the records at issue in this writ proceeding qualify as public records (§ 6252, subd. (e) [“ ‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”]). Because the statute furthers the people’s right of access, it must be construed broadly. (Marken v. Santa Monica-Malibu School Dist. (2012)
The CPRA “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.” (§ 6257.5.) As the Court of Appeal explained in Axelrad, supra,
Section 6254 lists a variety of exemptions to the disclosure obligations contained in the CPRA. Exemptions under the CPRA “are to be narrowly construed [citation], and the government agency opposing disclosure bears the burden of proving that one or more apply in a particular case.” (Axelrad, supra,
Among the exempt records under the act are those documents that enjoy the protection of various provisions of the Evidence Code, such as the attorney-client privilege and attorney work product doctrine. (§ 6254, subd. (k); Fairley, supra,
3. The Pending Litigation Exemption
The road to understanding the pending litigation exemption has been well traveled by appellate decisions. As the Court of Appeal explained in Board of Trustees of California State University v. Superior Court (2005)
One of the early cases adopting this construction was Fairley, supra,
In reaching its conclusion that the pending litigation exemption applied only to records specifically prepared for use in litigation, Fairley also explained that there is no blanket prohibition against a party to litigation using the CPRA to obtain documents even though those documents might be available (or not available) through traditional civil litigation discovery methods. (Fairley, supra,
As Fairley recognized, when a party to litigation seeks CPRA disclosure of documents related to that litigation, other considerations are at play. “We are mindful of one commentator’s suggestion that it would seem that the purpose of the exemption is primarily to prevent a litigant opposing a public entity from using the CPRA to accomplish earlier or greater access to records pertaining to pending litigation or tort claims than would otherwise be allowed under the rules of discovery. The construction we give to ‘pending litigation,’ which focuses on the purpose of the document, serves to protect documents created by a public entity for its own use in anticipation of litigation, which documents it reasonably has an interest in keeping to itself until litigation is finalized. In this way, a litigant opposing a public entity is prevented from taking unfair advantage of the public agency status of his or her opponent. Through this exemption, a public entity may refuse to disclose documents which it prepares for use in litigation.” (Fairley, supra, 66 Cal.App.4th at pp. 1421-1422, fns. omitted.)
Fairley's “for use in litigation” standard was also applied in Axelrad, supra,
The County attempts to distinguish Fairley by noting that the CPRA request in that case “had been made by a citizen prior to the institution of any litigation.” The opinion explains that Fairley had submitted a government tort claim to the city, but it is not clear whether he had filed a lawsuit. The distinction the County appears to be making has no support under the CPRA, which on its face applies both to pending litigation and to government tort claims. (§ 6254, subd. (b).) (To the extent the County is arguing the documents at issue in Fairley were prepared before litigation commenced, there is nothing in Fairley that suggests different rules apply to earlier-prepared documents.)
As for Axelrad, which followed Fairley, the County makes no mention of it in either its petition or its response filed in this court.
The County relies on the California Supreme Court decision in Roberts v. City of Palmdale (1993)
Turning to the billing and payment records at issue in this case, the trial court reasonably found that, based on the evidence before it, the records in question were not prepared for use in litigation as that term is explained in the appellate decisions. This is true even though the records in question relate to pending litigation and, indeed, would not have existed but for the pending litigation.
At best this case presents the “ ‘dual purpose’ ” situation described in Fairley. (Fairley, supra, 66 Cal.App.4th at p. 1420.) As such, the trial court was required to determine the dominant purpose for the preparation of the records. (Ibid.) Although in a CPRA review appellate courts consider legal issues under the de novo standard, we apply “the substantial evidence test with respect to any issues of fact. [Citation].” (City of Hemet v. Superior Court, supra, 37 Cal.App.4th p. 1416.)
The documents that the trial court ordered produced were the invoices to the County’s law firm in the Venegas action, the payment records to the firm, and, as redacted to exclude work product information, the time records of the firm for that matter. The trial court found that the documents “were prepared in connection with [Venegas] but not specifically for use in that case. Rather they were prepared as an incident to the lawsuit as part of the retainer agreement between [the County’s outside counsel] and the County.” A fair reading of these findings is that the court concluded the dominant purpose for preparing the documents was not for use in litigation but as part of normal recordkeeping and to facilitate the payment of attorney fees on a regular basis. That such documents may have an ancillary use in litigation—for example, in connection with a request for attorney fees—does not undermine the substantial evidence before the trial court that the dominant purpose of the records was not for use in litigation.
Because substantial evidence supports the trial court’s decision, we deny the petition for a writ of mandate.
The petition for writ of mandate is denied. Real party in interest is entitled to recover her costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
Grimes, J., and Sortino, J.,
On December 3, 2012, the opinion was modified to read as printed above. Petitioner’s petition for review by the Supreme Court was denied February 20, 2013, S207610.
Notes
Undesignated statutory references are to the Government Code.
According to the most recent appellate opinion in the matter, the Venegas action arises out of the arrest/detention of a couple by members of the Taskforce for Regional Auto Theft Prevention (TRAP). The couple and their minor son sued several public agencies and law enforcement officials—including the County—for violations of federal and state civil rights laws and state tort law. Through a series of trial court rulings and appellate decisions over the last decade, only a single claim, for violation of Civil Code section 52.1, has survived. (Venegas v. County of Los Angeles (Aug. 23, 2011, B218948) [nonpub. opn.].)
This was not the first time that an attorney affiliated with Mann and Cook has filed a CPRA request to obtain documents relating to an action in which Mann and Cook represented a party. (See Axelrad, supra,
When the trial court issued its decision, the Venegas action was still pending. According to the County’s reply to the writ petition, the case proceeded to trial, the jury returned a defense verdict, and judgment was entered for the County. This case is currently on appeal. (Venegas v. County of Los Angeles, B244429, app. pending.)
Although the exemption applies to records pertaining to pending litigation and government tort claims, for simplicity we will use the term “pending litigation” to refer to a situation where either a claim or lawsuit is pending.
To the extent findings could have been more explicit in the statement of decision, petitioner’s failure to request a more detailed statement means we imply all necessary findings. (In re Marriage of Arceneaux (1990)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.