BACKGROUND
I. The trial court's decision on the merits
On March 24, 2012, just after 11:00 p.m., Pasadena Police Department (PPD) officers responded to a 911 call. The caller claimed to have been robbed at gunpoint by two men. Much later, the caller admitted he had falsely reported that the robbers were armed. Responding to the call, the officers proceeded in their squad car to the area of the alleged crime. As they approached the intersection, Kendrec McDade (McDade), a 19-year-old African-American male, began running. The officers pursued McDade for about two blocks. Officer Matthew Griffin fired four shots at McDade from inside the patrol car. Officer Jeffrey Newlen, having previously exited the squad car to give chase, fired four more shots, killing McDade. It was later discovered that McDade was not
The shooting spawned multiple investigations, a citizen's complaint and a federal lawsuit by McDade's mother, Anya Slaughter (Slaughter), against the officers and the City. The Los Angeles District Attorney conducted a criminal investigation which concluded with a finding that, due to the false report, the officers reasonably believed McDade was armed. No criminal charges were filed against the officers. The Federal Bureau of Investigation (FBI) conducted a civil rights investigation of the shooting, which ultimately was closed without the filing of criminal charges or a civil complaint. Slaughter's federal action against the City and the officers was settled. ( Pasadena Police, supra , 240 Cal.App.4th at pp. 275-276,
The City also retained the Office of Independent Review Group (OIR) as a private consultant to conduct an independent review of the shooting. According to PPD Deputy Chief Darryl Qualls, " '[t]he purpose of the [OIR]'s review ... was to serve as a review of the incident for the benefit of the department and to evaluate how the [PPD] does business in the areas reviewed.' " Deputy Chief Qualls also stated that the PPD would not use the OIR report " 'to (1) affect the officers' advancement; (2) conduct an appraisal of the officers; or (3) consider discipline of the officers.' " The trial court found that the City had retained the OIR in order to evaluate the thoroughness and objectivity of the PPD's investigations of the shooting, the adequacy of officer training, what lessons had been learned from the incident and, based on the OIR's review and conclusions, to recommend institutional reforms. ( Pasadena Police, supra , 240 Cal.App.4th at pp. 276-277,
In August 2014, the OIR submitted a 70-page report entitled "Report to the City of Pasadena Concerning the Officer-Involved Shooting of Kendrec McDade" (the OIR report). The interveners
On September 9, 2014, the trial court vacated the TRO because the matter was not yet ripe and ordered the City to respond to the interveners' PRA requests and to give the Plaintiffs notice if it intended to disclose the OIR report. That same day, the interveners submitted new or renewed PRA requests for the OIR report to the City. On September 11, 2014, the City announced that unless the trial court directed otherwise, it would release the OIR report the following week but would redact portions of the OIR report containing confidential police officer personnel records. ( Pasadena Police, supra ,
On September 16, 2014, the Plaintiffs filed an ex parte application seeking to enjoin the City from releasing any portion of the OIR report. The same day, the Times filed а motion seeking to intervene in this action and also filed a writ petition seeking to compel release of the OIR report without redactions. The trial court granted leave to intervene. ( Pasadena Police, supra ,
On October 16, 2014, the trial court issued its decision. The trial court acknowledged the parties' competing positions regarding disclosure of the OIR report-the interveners contended the OIR report was a public record and should be disclosed in its entirety while the Plaintiffs claimed the OIR report was a confidential personnel record entirely exempt from disclosure under the Pitchess statutes ( Pen. Code, §§ 832.5, 832.7, 832.8 ; see Pitchess v. Superior Court (1974)
The trial court determined the OIR report was indisputably a public record and that the public's interest in disclosure was particularly substantial because it related to officer involved shootings and governmental policies regarding law enforcement and public safety. (
On November 13, 2014, after reviewing the City's and Plaintiff's proposed redactions to the OIR report, the trial court entered judgment and ordered release of the redacted report. The trial court vacated its September 16, 2014 TRO, but stayed the effect of its vacation order and judgment for 20 days to permit the parties to seek review of the judgment.
The Plaintiffs then filed a writ of mandate, seeking review of the trial court's disclosure order. ( Pasadena Police, supra ,
We held that the trial court correctly concluded the OIR report itself was a public document. The trial court also correctly determined that portions of the OIR report contained confidential personnel information exempt from disclosure under the PRA. We further held, however, that the trial court's redactions went too far. Some of the material the trial court ordered redacted was unrelated to personnel files of individual officers. The inappropriately redacted material included analyses of the PPD's administrative investigation and departmental policies, descriptions of the PPD's responsiveness (or the absence thereof), and the OIR's recommendations, none of which was privileged under the PRA. ( Pasadena Police , supra ,
Consequently, we denied the writ petition and remanded the matter to the trial court so it could reconsider which portions of the OIR report contained confidential personnel records. We also ordered additional material released, including an appendix we attached to our opinion, and directed the trial court to issue a new or modified judgment in conformance with our decision. ( Pasadena Police , supra ,
II. The trial court's attorney fees decision
On December 22, 2015, the Times filed a motion for attorney fees and costs (the fee motion).
The trial court concluded that the City had taken the correct position at trial, using the appropriate legal standard for disclosure of an OIR report redacted to protect the officers' personnel file records under the Pitchess statutes. The City maintained this position on mandamus review, except it opposed additional unredactions for procedural reasons when the issue was raised by the Court of Appeal. Therefore, the trial court held, the Times was the prevailing party against the City only for the narrow matter of fees incurred during appellate mandamus review and subsequent trial court hearings regarding additional unredactions. Thus, with respect to fee recovery under the PRA, the Times was entitled to recover attorney fees from the City only as to this particular limited time period.
With respect to fee recovery under section 1021.5, the trial court found that overall the Times had met all the elements required for a fee award-the Times had succeeded in the litigation; enforced an important right affecting the public interest; conferred a significant bеnefit on the public; and private enforcement by the Times was necessary.
As against the PPOA, the trial court determined that the Times was clearly a successful party. The PPOA sought to prevent disclosure of the entire OIR report while the Times sought the disclosure of the entire OIR report. The trial court noted that its prior judgment ordering release of the redacted OIR report-and our subsequent decision denying PPOA's mandamus claim-clearly demonstrated the Times had obtained the majority of the relief it sought when intervening in this case. The Times' advocacy also enforced an important right affecting the public interest conferring a significant benefit on the general public by ensuring disclosure of the majority of the OIR report and opposing PPOA's attempts to prevent disclosure.
The necessity and burden also weighed in favor of a fee award, given that it was unclear whether the City would adequately represent the Times' interests in opposing the PPOA. Indeed, the trial court observed, the Times and the City disagreed over the extent and necessity of the redactions in the OIR report throughout the litigation. When the Times intervened, a TRO had been issued preventing disclosure of the OIR report and the City had
Nevertheless, although the Times could theoretically recover fees from the PPOA under the statute, the trial court went on to find that recovery was barred under Adoption of Joshua S. (2008)
Here, the trial court noted, Officers Newlin and Griffith were private litigants who sought to protect their privacy rights under the Pitchess statutes
In all, the trial court awarded the Times reasonable fees under the PRA against the City-but only for a limited time period-and declined to award the Times any fees under section 1021.5 against the City or the PPOA. The court then ordered the parties to meet and confer and determine the correct amount to award the Times for attorney fees incurred in the Court of Appeal and post-appeal concerning the additional unredactions.
Pursuant to the trial court's order, the Times identified the fees it had incurred during appellate mandamus review as well as the subsequent trial court hearings regarding additional unredactions-less any fees incurred for duplicative work by counsel for the Times and the Slaughter parties. The Times submitted billing records indicating that its counsel billed $50,163 for time spent addressing the unredaction issue in the Court of Appeal and further billed $10,781 for the post-remand unredaction issues. The Times sought an additional $5,760 in attorney fees for the court-
The trial court subsequently held that a 50 percent reduction for duplicative attorney efforts was appropriate in this case and also declined to award the Times additional fees for its supplemental briefing during the meet and confer
On appeal, the Times contends the trial court incorrectly applied Joshua S. in denying section 1021.5 fees and that the Times is entitled to attorney fees against the officers and the PPOA under the statute.
DISCUSSION
I. Code of Civil Procedure section 1021.5
A. STANDARD OF REVIEW
Code of Civil Procedure section 1021.5 -the private attorney general statute-authorizes an award of fees when (1) the action resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit was conferred on the general public, and (3) the necessity and financial burden of private enforcement make the award appropriate. ( Serrano v. Stefan Merli Plastering Co., Inc. (2011)
Our review of an order granting a section 1021.5 award of attorney fees is limited to whether the trial court abused its discretion. (
B. MERITS
1. Threshold issues
At the outset, the PPOA argues that the Times cannot seek fees against the union under section 1021.5 because the PRA's fee-shifting provision ( Gov. Code, § 6259, subd. (d) ) is the solely applicable statute. However, the PPOA brought its reverse-PRA action pursuant to Marken , not the PRA. Indeed, the Marken court's rationale for recognizing reverse-PRA lawsuits is that they are not permitted under and do not arise from the PRA.
The trial court also correctly determined that the Times was not collaterally estopped from recovering section 1021.5 fees based on a 2011
In Los Angeles Times v. Sheriff's Department , the Times successfully sued the
With respect to fees under section 1021.5, the trial court denied the Times' fee request against both the sheriff's department and the union because " [Government Code] section 6259 [, subdivision] (d) provides the exclusive method by which a prevailing plaintiff or defendant can obtain an award of costs following a CPRA lawsuit." The trial court recognized that the union was the cause of much of the fee award, however, and noted that "in another context [the union] would have to bear that cost."
Filing a reverse-PRA suit, which is not permitted under and does not arise from the PRA, ( Marken , supra ,
The trial court also found that the Times had satisfied all the statutory requirements of section 1021.5, which ordinarily mandates a fee award, but determined that Joshua S. precluded an award against the PPOA. Joshua S. is not applicable here, however.
Joshua S , supra ,
Our Supreme Court noted "that the litigation here did yield a substantial and widespread public benefit." ( Joshua S ., supra ,
In Serrano , supra ,
The Supreme Court granted review and reversed. The court explained that Joshua S. had only "carved out a limited exception" to section 1021.5. ( Serrano , supra ,
In the instant case, the trial court did not discuss Serrano in its opinion. However, Serrano persuades us that Joshua S .'s narrow exception does not apply in this case. In seeking to obtain the OIR report from the City, which required opposing the PPOA's attempt to block the report's release, the Times' action directly affected public rather than private rights. Indeed, we explicitly recognized the nature of the suit in our prior opinion when we noted that: "The public's interest in disclosure is 'particularly great' where, as here, the underlying case involves an officer involved shootings and policies
Instead of examining the Times' purpose in bringing the lawsuit, which plainly served the public interest, the trial court credited the motivations of the individual officers in opposing disclosure. Officers Newlin and Griffith were private litigants who sought to protect their privacy rights under the Pitchess statutes, the trial court noted, and did nothing to adversely affect the rights of the public. However, the power exercised by police officers, and their public visibility, naturally subjects them to public scrutiny and can render them public officials. (See Kahn v. Bower (1991)
Moreover, the subjective intent of the party seeking to prevent disclosure is immaterial. Although such a party must have "done something to compromise the rights of the public" before having to pay attorney fees under section 1021.5, our Supreme Court refused to impose a "bad faith" requirement. ( Joshua S ., supra ,
The officers and the PPOA claimed that the OIR report was a confidential personnel record entirely exempt from disclosure under the Pitchess statutes as well as the PRA's privilege exemption. In fact, they sought to expand the statutes' reach, inviting us to find that in addition to records generated in connection with employee advancement, appraisal, or discipline, the Pitchess statutes should be read to encompass records-like the entire OIR report-which contained information that theoretically " 'could be used' " for such purposes.
The expansion sought by the officers and PPOA further justifies the imposition of attorney fees. In Serrano , supra ,
Furthermore, the PPOA said it represented the interests of all its members, not just Officers Newlin and Griffith, in seeking to prevent the release of the OIR report. Indeed, the PPOA expressly stated its goal was to ensure that the confidential personnel information of peace officers remained confidential in the face of PRA requests and that its work in this case affected the confidential information of all peace officers. Thus, despite the trial court's determination to the contrary, the PPOA did not simply represent the two officers as private litigants-the union also acted on its own behalf. Indeed, a public employee union with a prominent role in governmental activity "has assumed the role of a public institution." ( Daniels v. Sanitarium Assn., Inc. (1963)
Although the PPOA contends it merely sought to enforce the officers' private rights, even Joshua S. , supra ,
In short, this case involves public officials and a public employee union pursuing
The cases cited by the PPOA are similarly inapposite. In Azure Ltd. v. I-Flow Corp. (2012)
Because we are convinced Joshua S. is not applicable here, we hold the trial сourt's determination to the contrary was an abuse of discretion and that the Times is thus entitled to a fee award under section 1021.5. We therefore reverse the trial court's order denying the Times fees under section 1021.5 and remand the matter to the trial court with directions to award the Times reasonable fees against the officers and/or the PPOA for its work during all stages of this case, including the present appeal.
A. STANDARD OF REVIEW
"California courts have long held that trial courts have broad discretion in determining the amount of a reasonable attorney's fee award. This determination is necessarily ad hoc and must be resolved on
The abuse of discretion standard includes a substantial evidence component: "We defer to the trial court's factual findings so long as they are supported by substantial еvidence, and determine whether, under those facts, the court abused its discretion. If there is no evidence to support the court's findings, then an abuse of discretion has occurred." ( Tire Distributors, Inc. v. Cobrae (2005)
A court's ruling on the issue whether a plaintiff is a prevailing party under Government Code section 6259, subdivision (d) -the PRA-is a factual determination reviewed under the substantial evidence standard. ( Galbiso v. Orosi Public Utility Dist. (2008)
1. Prevailing party determination
The trial court held that the Times could recover fees against the City under the PRA for the work the Times performed in affirmatively enforcing its PRA requests. However, because the Times spent the bulk of its time defending against the PPOA's reverse-PRA suit, rather than affirmatively enforcing its PRA requests against the City, the trial court found that the Times was entitled to only a fraction of the fees it sought.
The PRA generally provides for inspection of public records maintained by state and local agencies. ( Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners (2015)
A plaintiff prevailing in litigation under the PRA is entitled to reasonable attorney fees. ( Gov. Code, § 6259, subd. (d).) This fee award "is mandatory if the plaintiff prevails." ( Filarsky , supra ,
Thus, a plaintiff need not achieve a favorable final judgment to be a prevailing party in PRA litigation. A defendant's voluntary action in providing public records that is induced by plaintiff's lawsuit will still support an attorney fee award on the rationale that the lawsuit " 'spurred defendant to act or was a catalyst speeding defendant's response.' " ( Belth, supra,
Here, the trial court held that the Times was the prevailing party against the City only for the narrow matter of fees incurred during appellate mandamus review and subsequent trial court hearings regarding additional unredactions, and could recover reasonable attorney fees only as to this particular time period.
According to the Times, courts have consistently held that a requester who obtains a previously-withheld record has prevailed under the PRA-and is thus entitled to a fee award-even if the court determined that other records, or portions of records, were properly withheld. For example, in Los Angeles Times v. Alameda Corridor , supra ,
Notably, the Court of Appeal observed, "[n]othing in any case decided under the [PRA] supports the contention that a plaintiff who obtains only one of two documents sought has not prevailed within the meaning of the act. Other cases, without discussion, have awarded fees where disclosure is ordered for fewer than all of the documents sought." ( Los Angeles Times v. Alameda Corridor , supra ,
The Court of Appeal acknowledged the possibility that in some cases a plaintiff might obtain documents that are so minimal or insignificant as to justify a finding that it did not prevail. Absent such circumstances, however, fees and costs should be awarded. To do otherwise would be inconsistent with the express purpose of the statute, "to broaden public access to public records," and "would chill efforts to enforce the public right to information." ( Los Angeles Times v. Alameda Corridor , supra ,
In Los Angeles Times v. Alameda Corridor , supra ,
Nevertheless, as the Times notes, the trial court's conclusion that the City took the "correct position at trial" is in fact contrary to our prior opinion. As we explained, "a number of redactions proposed by the City and largely adopted by the trial court protected not privileged information relating to the officers, but information or findings critiquing conduct by or the policies and practice of the PPD itself." (
Although the Times cites Sukumar in support of its argument here, the case is distinguishable. In Sukumar , supra ,
Here, there is clearly a "substantial causal relationship" between the Times' intervention and the City's release of an additional 126 lines of the OIR report-about five of the 14 previously redacted pages. ( Sukumar , supra ,
The Times is correct that the "unredaction issue" is simply another way of characterizing the single overarching question in the entire litigation-namely, what portions of the OIR report, if any, were exempt from disclosure under the PRA given the scope of the Pitchess statutes? The
2. Award reduction
Pursuant to the trial court's order, the Times identified the fees it had incurred during appellate mandamus review as well as the subsequent trial court hearings on additional unredactions-less any fees incurred for duplicative work by counsel for the Times and the Slaughter parties. The Times submitted records indicating that its counsel billed $50,163 for time spent addressing the unredaction issue in the Court of Appeal and billed $10,781 for the post-remand unredaction issues. The Times also sought an additional $5,760 in fees for the court-ordered meet and confer and supplemental briefing.
The trial court noted that "the Slaughter [parties] raised the unredaction issue and both the L.A. Times and Slaughter [partiеs] filed separate letter briefs, and separately appeared at oral arguments, overlapping on multiple arguments." Indeed, the Times conceded that at least two arguments were duplicative. Thus, the trial court held, a 50 percent reduction for duplicative attorney efforts was appropriate.
The Times contends that the trial court erred in reducing its fee award based on "an artificial distinction" between arguments by the Times in
Admittedly, the Times could not more precisely tailor its arguments during the proceedings, which might have prevented
DISPOSITION
The order is affirmed in part and reversed in part with directions. We affirm the trial court's order awarding limited fees under the PRA ( Gov. Code, § 6259, subd. (d) ). We reverse the trial court's order awarding no fees under the private attorney general statute ( Code Civ. Proc., § 1021.5 ). The trial court is directed to award the Los Angeles Times Communications, LLC, reasonable fees under Code of Civil Procedure section 1021.5 against the officers Griffin and Newlen and/or the Pasadena Police Officers Association. The parties are to bear their own costs on appeal.
We concur:
ROTHSCHILD, P.J.
CHANEY, J.
Notes
Because the underlying facts are not in dispute, we have largely adopted the facts as set forth in our previous decision in Pasadena Police , supra ,
At the time, the interveners consisted of Anya Slaughter, Kris Ockershauser, the Pasadena Branch of the National Association for the Advancement of Colored People, ACT, and the Interdenominational Ministerial Alliance of Greater Pasadena (the Slaughter parties). The Times did not seek to intervene until Septеmber 16, 2014. (Pasadena Police, supra ,
Instead of immediately responding to the PRA requests, the City advised the PPOA that the City had received the requests and would need to respond to them by September 4, 2014. The City told the PPOA that the PPOA needed to take legal action before that date if it did not want to have the OIR report released and noted that: "An argument has been made that the release of the OIR report would violate certain statutory and privacy rights of the involved officers." It is unclear if the City's purposeful delay was allowed under the PRA, which mandates that copies be provided promptly upon payment of fees covering direct cost of duplication or statutory fee, if applicable. (See Marken v. Santa Monica-Malibu Unified School Dist. (2012)
A reverse-PRA action may be filed when a party believes it will be adversely affected by the disclosure of a document it contends is confidential and seeks a judicial ruling precluding a public agency from disclosing the document. (Marken, supra,
The trial court ordered approximately 14 pages of the 70-page report to be redacted from the publicly-released copy of the OIR report.
The Slaughter parties and the PPOA also moved for attorney fees. The trial court ultimately awarded the Slaughter parties $67,158 in fees. The trial court held that the PPOA's motion was defective because it did not identify the parties from whom it sought fees. The trial court further held that the PPOA was not entitled to attorney fees under the PRA because such fees were not available to a plaintiff seeking to prevent disclosure of a document using a reverse-PRA action. Nor was the PPOA entitled to fees under the private attorney general's statute because it did not succeed in its primary litigation goal-preventing disclosure of the OIR report in its entirety-and thus could not be considered a successful party under the statute. Furthermore, the trial court noted, there was no need for the PPOA's lawsuit because the City's proposed redactions were sufficient to protect the police officers' personnel records.
If a records requester prevails against a public agency, the requestеr can recover fees under the PRA (Gov. Code, § 6259, subd. (d) ). If a requester prevails against a third party that sued to enjoin disclosure in a reverse-PRA action, the requester can recover fees under section 1021.5. Government Code section 6259, subdivision (d), provides for mandatory fees: "The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section." Under section 1021.5, a fee award is discretionary: "[A] court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit ... has been conferred on the general public ..., (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any."
Citing Marken supra ,
As noted above, the unredactions consisted of an additional 126 lines of the OIR report-about five of the 14 previously redacted pages.
We rejected this argument because the City had already addressed the propriety of redacting portions of the OIR report, both on appeal and before the trial court. Indeed, the City urged us to find that the trial court's redactions appropriately protected the officers. Further, we noted, the City was well aware the interveners would urge us to conclude that the OIR report was overredacted. (Pasadena Police , supra ,
In addition to not opposing issuance of the TRO, the City arguably caused the PPOA to seek out a TRO in the first place. The City told the PPOA that the PPOA needed to take legal action before September 4, 2014, if it did not want to have the OIR report released. The City also outlined an argument the PPOA could make in seeking a TRO by noting that release of the OIR report could violate certain statutory and privacy rights of the involved officers.
In addition to the as yet unknown number for the unredaction issue, the Times was awarded fees of $15,000 for its fee motion to obtain this limited award.
The trial court awarded the Slaughter parties $67,158 in attorney fees-$25,000 for the unredaction issues, as agreed to by the City and the Slaughter parties; $27,158 for fees incurred before September 11, 2014; and $15,000 for the fee motion. (As noted above, on September 11, 2014, the City said that unless directed otherwise, it would release the OIR report while redacting those portions of the report containing confidential personnel records. See Pasadena Police,
The Times does not appeal the trial court's determination that attorney fees are not available against the City under section 1021.5.
As noted above, the Times has never argued that attorney fees were available against the officers or the PPOA under the PRA.
As the Marken , supra ,
Amici California News Publishers Association argues that requesters also should be permitted to recover fees from public agencies under section 1021.5 following a reverse-PRA action. Because the Times has not appealed the trial court's determination that fees were unavailable against the City under section 1021.5, we do not address the issue here.
See Serrano v. Stefan Merli Plastering Co., Inc. (2008)
Therefore, we need not address the Times' alternative argument that California Constitution article I, section 3 (b) independently justifies reversal of the trial court's decision.
Save Our Heritage Organisation v. City of San Diego (2017)
The trial court then directed the Times and the City to meet and confer and file supplemental briefs to determine the amount of that award. The Times' supplemental brief expressly stated the Times was submitting its request solely in compliance with the court's order and reserved its right to appeal the order. The Times' notice of appeal also stated it was appealing the April 14th order, the May 17th order and "all other appealable rulings entered or embodies within those Orders." Thus, any claim that the Times has waived its right to appeal any portion of the trial court's orders is incorrect.
The Times' reliance on Thompson Pacific Const., Inc. v. City of Sunnyvale (2007)
The trial court also declined to award the Times additional fees for its supplemental briefing during the meet and confer process.