Introduction
In a novel and somewhat convoluted fact pattern, the California Court of Appeal yet again sent a loud and clear message: The purpose of the California Public Records Act (“CPRA”) is to monitor governmental activities despite the requesting parties’ intended usage. As such, public entities must not only assert solid statutory bases to withhold records, but also must cooperate with the requester, create an unassailable record and uphold the letter and spirit of the law if they wish to withhold records. As we have seen time and time again, failure to do so results in severe sanctions for the violators.
Facts and Circumstances
In Law Offices of Marc Grossman v. Victor Elementary School District, Case No. E059579 (Decided July 21, 2015)(unpublished), the Second Division of the Fourth District held the trial court erred in failing to award the plaintiff/requester law firm (“Firm”) its attorneys’ fees on a writ proceeding in which it prevailed under the CPRA. The Firm represented a student of defendant/respondent Victor Elementary School District (“District”) in a civil action arising from a violent bathroom assault at Victor Elementary School. In a separate case, the Firm contemporaneously represented three (3) other District students who allege they were molested by a teacher. The Firm filed a writ of mandate under the Firm name, unambiguously seeking records related to the amount of money spent defending the aforementioned assault case. The Firm filed the mandamus action to obtain records related to the other three (3) cases filed against the District on behalf of Firm clients. The trial court denied the petition giving rise to the filing of the petition for writ of mandate in the Court of Appeal. The Court ordered the trial court to enter a new order granting the requested disclosure and allow the Firm to recover costs and attorneys’ fees. Following the issuance of the remittur, the Firm filed a Memorandum of Costs that included the amount of its attorneys’ fees.
The District challenged the Firm’s right to attorneys’ fees, not under the CPRA, but instead under Civil Code section 1717 which awards attorneys’ fees to prevailing parties in contract disputes. This legal theory was novel, and raised for the first time in the District’s motion to strike costs. The trial court denied the Firm’s fee request and granted the District’s motion to tax costs based on the ground that the Firm filed the writ of mandate in its own name, rather than on behalf of its clients. The Firm appealed.
The Court of Appeal disagreed with the trial Court’s decision, finding that the case law upon which the District relied, Trope v. Katz (1995) 11 Cal. App. 4th 274 which disallowed the recovery to a law firm representing itself in a Civil Code section 1717 dispute, did not apply to either the CPRA petition or a law firm seeking disclosure of public information for the benefit of its clients. The Court could have remanded the action back to the trial court with direction to rule on the District’s motion to tax costs. Instead, however, the Court essentially shook its finger at the District and granted the Firm its costs and fees associated with prevailing on the CPRA request.
PRA Practice and Procedure
An explanation of how the parties found themselves in superior court may be instructive to other public entities confronted with a like conundrum. Upon receipt of an appropriate CPRA request seeking actual “public records,” an entity seeking to withhold records must provide an explanation of their reasons and a legal basis therefor. This is commonly accomplished by way of a series of written correspondence where the parties offer explanations, statutes and case law in support of their respective positions. Also, the parties may communicate and negotiate over records to be disclosed as well as the method and timing of compliance.
Here, the District likely asserted privacy, litigation, attorney-client and attorney work product privileges set forth in Government Code section 6254(k), as well as the “catch all” exception (§6255). By contrast, the Firm probably responded that the public money spent does not reveal lawyers’ mental impressions and offered to accept redacted billing entries and/or verifiable totals. This presumptive interaction illustrates two critical points: 1) The parties had the opportunity to resolve the matter; and 2) There were no surprises for either the lawyers or the Board members. Everybody knew what they were getting into!
Which again, begs the question…Why did the parties litigate the matter all the way to the Court of Appeal? The answer: The Three “Ps”… Pride, Public embarrassment, and Politics. You do not have to be Clarence Darrow or even My Cousin Vinny to figure out why the Firm filed the CPRA request in the first place. It was clearly intended to publicize public money expended defending unseemly allegations to expose elected officials to criticism or even community scorn. This weaponized litigation tactic can not only help bludgeon a plaintiff-friendly settlement, but also causes the District to expend unintended resources. The District was doubtlessly loathe to succumb to such a Machiavellian battle plan. As they learned the hard way, it just doesn’t matter. The requester’s intent is entirely inconsequential in the eyes of the Court. Welcome to PRA litigation.
Conclusion
Let this be a lesson to us all. If you’re going to draw a line in the sand, make sure there is also some concrete or the line will soon vanish. Although unpublished, this decision underscores the judiciary’s sentiments concerning a public entity’s unreasonable refusal to provide public records. The District’s response and decisions may not have been entirely unjustified in light of the legal, political, and public relations pressures brought to bear. However, as the Court stated: “The CPRA includes protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure, one of which is the provision that the court shall award costs and reasonable attorney fees to the prevailing plaintiff. (Citations omitted)… The CPRA mandates a fee award to a plaintiff if it prevails, and to a defendant only if the plaintiff’s case is clearly frivolous. (Citations omitted).”
The deck is stacked in favor of disclosure. It is extremely difficult to overcome this with creative legal theories and technicalities. A difficult lesson learned by the District.
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