Filed 7/14/22 Austin v. City of Taft CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. William D. Palmer,* Judge.

Brent J. Borchert for Plaintiff and Appellant.

Epperson Law Group, David A. Prentice and Jason S. Epperson for Defendant and Respondent.

-ooOoo-

The California Public Records Act (CPRA or PRA) (Gov. Code, § 6250 et seq.) gives citizens access to information in the possession of public agencies and governs the disclosure of public records. (Undesignated statutory references are to the Government Code.) Under the CPRA, the name of a crime victim is public information. (§ 6254, subd. (f)(2)(A).) However, such information may be withheld if its disclosure “would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.” (Id., subd. (f), 3d ¶.)

In January 2020, Ronald Austin (appellant) petitioned the Kern Superior Court for a writ of mandate compelling the City of Taft (City) to identify the victim of a crime he had read about in a news article. The petition included a cause of action for declaratory relief, which alleged City was in violation of the CPRA. City had previously agreed to disclose the information upon conclusion of a related police investigation, and it eventually did provide the victim’s name to appellant in August 2020. In January 2021, appellant voluntarily dismissed his lawsuit.

The issue presented is whether the superior court erred by finding appellant was not a prevailing party and therefore not entitled to an award of attorney fees and costs, which are otherwise recoverable under section 6259. While appellant insists the delayed release of the victim’s name was improper, the test for determining if one has prevailed under the CPRA is whether the litigation precipitated or expedited disclosure of the requested information. If disclosure would have occurred in the same manner regardless of the legal action taken, attorney fees are generally not recoverable. A superior court’s findings as to the necessary causal connection are reviewed for substantial evidence. Because the dispositive finding in this case is supported by the record, the appealed ruling will be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On August 2, 2019, a media outlet published an article stating, inter alia, “Taft Police are investigating a stabbing that occurred somewhere in the city Wednesday evening but they have an uncooperative victim and little information to go on.” Months later, on November 18, 2019, appellant made a CPRA request to City via e-mail. He wrote:

“The following is my public records request: I read online (www.taftmidwaydriller.com/...olice-investigate-stabbing) that on or about July 31, 2019, Taft Police officers were called to the West Side Family Health Care Clinic where a 60-year-old man had gone for treatment of a stab wound to the upper right rib cage. Please email me the name of the victim.”

On November 27, 2019, City’s legal counsel provided the following written response:

“Mr. Austin: [¶] I am the City Attorney for the City of Taft, California. Please consider this a response to your request under the Public Records Act. Your request is included below.

“The very recent matter which you have requested information for is under active investigation by the Taft Police Department. Under California Government Code section 6254(f), the identity of certain individuals, including alleged victims, are not disclosable when a police investigation remains active and disclosure could endanger the safety of a person involved in the matter or endanger the successful conclusion of the investigation. Consequently, the City of Taft is not able to provide the information and/or documentation that you seek at this time. The City will be willing to provide the information/documentation at a future date when the investigation is closed.

“I appreciate your cooperation in this matter. Please do not hesitate to contact me if you wish to discuss this further.”

On January 13, 2020, appellant, through his attorney, Brent J. Borchert, filed a verified petition for writ of mandate and complaint for declaratory relief (petition) in the Kern Superior Court. As stated in the prayer for relief, appellant sought “the issuance of a peremptory Writ of Mandate directing [City] to comply with the CPRA by making all requested information available to [appellant] ….” Appellant further requested “a declaration pursuant to [section] 6259 signifying [the City had] violated [his] rights under [the CPRA].” He also requested attorney fees and costs.

City answered the petition in April 2020. Based on the superior court’s register of actions and the billing records of appellant’s counsel, it appears there was little activity in the case between May and August of that year. On May 22, 2020, appellant’s counsel reportedly spent 5.2 hours preparing discovery requests. Counsel’s billing records also note e-mail exchanges with City’s attorneys on July 31, August 10, and August 20, but the actual correspondence is not part of the record on appeal.

On August 28, 2020, counsel for City e-mailed the following message to appellant’s lawyer: “Mr. Borchert: [¶] I am the City Attorney for the City of Taft. Your client, Ron Austin, made a request under the California Public Records Act on or about November 18, 2019. I responded to him that I would provide the information he was requesting when the Taft Police Department no longer had the matter about which he was requesting information under active investigation. It is no longer under active investigation and, consequently, the name requested in his November 18, 2019 correspondence is [B.P.]” (See Cal. Rules of Court, rule 8.90 [guidelines for use of names in appellate court opinions].)

An e-mail dated September 3, 2020, shows the parties had settlement discussions and addressed the question of mootness in light of City’s disclosure of the victim’s name. On October 2, 2020, the parties exchanged e-mails wherein appellant’s counsel offered to dismiss the petition if City provided “informal discovery” showing its representations about the police investigation were true, e.g., “the name of the Criminal Defendant who committed the crime against the victim in this case, the name of the investigating officer, the date the D.A. filed the complaint, and the date of the final disposition.” City’s attorney wrote back, “If you want to move forward, let’s try the case.”

A case management conference (CMC) was held on November 5, 2020. The CMC was continued to December 4, 2020, at which time further proceedings were scheduled for January 29, 2021. Although it is somewhat unclear, the register of actions indicates the latter date was the original trial date. Meanwhile, in November 2020, appellant propounded additional discovery requests upon City.

In December 2020, City filed a motion for summary judgment (MSJ). On January 21, 2021, the superior court vacated the trial date and rescheduled the proceeding as a CMC. In addition, “[u]pon the court’s own motion,” City’s MSJ was set to be heard on March 17, 2021.

On January 29, 2021, appellant moved to dismiss his petition without prejudice. The request for dismissal was granted. During the same proceeding, appellant evidently stated his intention to file a motion for attorney fees and costs. The March 2021 hearing date for the City’s MSJ, which was apparently withdrawn or deemed moot, was redesignated as the hearing date for appellant’s motion.

On February 22, 2021, appellant filed moving papers alleging he “should be awarded reasonable attorneys’ fees as the prevailing party.” He sought an award of $20,671. This figure was said to represent approximately 41.6 hours of attorney time at the rate of $495 per hour, “plus miscellaneous costs.”

City opposed the motion and argued for an award of fees and costs in its favor on the ground appellant’s CPRA lawsuit was “‘clearly frivolous.’” The opposition was supported by two attorney declarations and a declaration of the Chief of Police for the City of Taft Police Department. The chief of police declared there was a departmental policy “not to release the name of a victim until the criminal investigation into the matter has been closed or a sufficient amount of time has passed without additional information or leads regarding the case.” The declaration elaborated: “The period of time this takes varies greatly depending on the nature and circumstances of the alleged crime. If the suspected perpetrator is not immediately identified, then the matter will not be concluded or closed for several months, and possibly up to a year or more. Obviously, if the alleged perpetrator is identified and arrested then the matter can be closed much sooner.”

The chief of police attested to three reasons for the policy of delayed disclosure. First, “when investigating a suspected attempted murder (such as the investigation which gave rise to this matter), identifying the victim’s name gives the perpetrator the opportunity to locate the victim, and then to return and ‘finish the job.’ If the name of the victim is not known to the perpetrator, then releasing his or her name puts the victim in direct physical jeopardy at a time when the investigators do not even know the identity of the perpetrator.” The second reason “is to avoid witness intimidation.” Third, “it is common for law enforcement to rely on tips from the public and from criminal informants. … One method to establish the credibility of such information is to determine that the informant knows the victim’s unpublished name.”

The chief of police further declared that “[o]nce a criminal investigation has concluded, or has grown old enough that no further investigation is appropriate, the standard practice of the Taft Police Department is to release the names of victims.” He attested as follows regarding the incident cited in appellant’s CPRA request:

“During or about August 2020 I decided that the investigation of the underlying case in this matter was investigated thoroughly with no new information discovered. I made this decision despite the fact that only about nine (9) months had passed since the alleged attack, and despite the serious nature of the alleged attack. It is not uncommon to keep such investigations open and active for much longer than nine months. Regardless, I made my decision based partially upon the amount of time that had elapsed since the incident, the nature of the incident, and the progress that had been made and was being made in the investigation. I then provided the name of the victim to [counsel for] the City of Taft, to be provided in response to the request … which was made under [the] California Public Records Act ….”

On March 17, 2021, appellant’s motion was heard and submitted. The motion was denied in a written ruling issued the following day. The ruling states, in pertinent part:

“The Court determines that … City responded to [appellant]’s request for records timely, although there was clearly a delay which City justifies by reliance on Cal. Gov. Code 6254. The reason for the delay was communicated to [appellant]. During the delay period, Counsel for [appellant] filed a Writ. There is no evidence before the Court that the filing of the Writ, in any way, precipitated the City’s disclosure of the subject victim’s name. Thus the rule set forth in Crews v. Willows Unified School Dist. 217 C.A.4th 1368 at 1382 controls.

“The Court does not find that [appellant] acted frivolously. City’s use of a ‘policy’ in regard to its claimed Exemptions for disclosure of victim names, although not necessary for the instant analysis, may well need review in light of the January 1, 2020 amendment to Government code section 6254.”

On April 15, 2021, appellant filed a timely notice of appeal.

DISCUSSION

“The CPRA was modeled on the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552 et seq.) and was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) Section 6254 “sets out several exemptions from the CPRA’s general rule of disclosure.” (Williams v. Superior Court (1993) 5 Cal.4th 337, 348.) Relevant here is section 6254, subdivision (f), which “(1) articulates a broad exemption from disclosure for law enforcement investigatory records, (2) requires law enforcement agencies to provide certain information derived from the records about the incidents under investigation, and (3) permits the withholding of information that (a) would endanger the safety of a witness or other person, (b) would endanger the successful completion of an investigation, or (c) reflects the analysis or conclusions of investigating officers.” (Williams, at p. 349.)

Section 6254, subdivision (f), has “subparts that require law enforcement agencies to disclose information about arrests and arrestees [citation] and about complaints and requests for assistance [citation].” (Williams v. Superior Court, supra, 5 Cal.4th at p. 349.) Those categories of information include “the name and age of the victim.” (§ 6254, subd. (f)(2)(A).) “As before, however, these additional disclosure requirements do not apply ‘to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.’” (Williams, at p. 349.)

Except as specified for certain records, the CPRA does not establish deadlines for the production of documents or disclosure of information to a requesting party. (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1349; see, e.g., § 6254, subd. (f)(4)(A) [timeline for furnishing recordings of specified uses of force by peace officers].) Section 6253 says a public agency, “upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” (Id., subd. (c).) Nonexempt records are to be made “promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” (Id., subd. (b).) There are no stated deadlines for communicating requested information.

In any event, the CPRA “provides no remedy for failure to timely comply with a request for records.” (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 483.) The enforcement provisions are found in sections 6258 and 6259. Section 6258 provides: “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records ….”

“Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why the officer or person should not do so.” (§ 6259, subd. (a).) Attorney fees are recoverable pursuant to section 6259, subdivision (d): “The court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to this section.… If the court finds that the requester’s case is clearly frivolous, it shall award court costs and reasonable attorney’s fees to the public agency.”

“The Legislature did not define the term ‘prevail’ or explain the circumstances in which a plaintiff is deemed the prevailing party,” but appellate courts have consistently “applied the ‘“‘standard test’”’ of whether a plaintiff is a prevailing party in a CPRA action.” (Riskin v. Downtown Los Angeles Property Owners Assn. (2022) 76 Cal.App.5th 438, 445.) “Under this test, a plaintiff prevails ‘“when he or she files an action which results in defendant releasing a copy of a previously withheld document.”’” (Ibid.) A plaintiff also prevails if the lawsuit was “a catalyst speeding defendant’s response.” (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 967.)

At least one case holds a party may be found to have prevailed if they “sought and obtained declaratory relief that there had been PRA violations.” (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1447.) The case involved “somewhat anomalous” circumstances “in that the subject requested records were never produced.” (Id. at p. 1446.) This exception to the standard test does not apply here because (1) City disclosed the requested information and (2) appellant did not obtain any form of declaratory relief. We thus decline to address the merits of appellant’s contentions regarding City’s alleged violation of the CPRA, as his dismissal of the underlying petition renders those claims outside the scope of this appeal. “The question whether the plaintiff prevailed, in the absence of a final judgment in his or her favor, is really a question of causation—the litigation must have resulted in the release of records that would not otherwise have been released.”[1] (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464.)

“A CPRA plaintiff does not qualify as a prevailing party merely because the defendant disclosed records sometime after the CPRA action was filed.” (Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners etc. (2015) 242 Cal.App.4th 1043, 1053.) “There must be more than a mere temporal connection between the filing of litigation to compel production of records under the PRA and the production of those records.” (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.) “On the other hand, the plaintiff need not have obtained a court order compelling [disclosure] in order to qualify as the prevailing party.” (Pacific Merchant Shipping Assn., at p. 1054.) “The catalyst theory applies, and a plaintiff may prevail even where a court did not enter judgment in its favor, so long as the litigation caused the disclosure.” (Riskin v. Downtown Los Angeles Property Owners Assn., supra, 76 Cal.App.5th at p. 445, italics added.)

A trial court’s “prevailing party” determination for purposes of awarding fees and costs is generally reviewed for abuse of discretion. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) If the issue requires statutory interpretation, the standard of review is de novo. (Ibid.) This appeal does not require de novo review, as the test for determining the prevailing party in a CPRA action is well settled. In Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, this district said, “We fully agree with that test and do not doubt that it must be applied in virtually all cases under the Public Records Act.” (Id. at pp. 1088–1089.) Deviating from the standard test may be warranted “under highly unique circumstances” (id. at p. 1089), but this case does not present such circumstances.

“‘An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice.’” (Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1064.) “We defer to any factual findings made by the trial court in connection with the ruling if they are supported by substantial evidence.” (Ibid.) Thus, “for purposes of the CPRA fee statute, a plaintiff does not prevail where substantial evidence supports a finding the litigation did not cause the agency to disclose any of the documents [and/or information] ultimately made available.” (Riskin v. Downtown Los Angeles Property Owners Assn., supra, 76 Cal.App.5th at p. 445.)

“Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible, and of solid value.” (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99.) “When two or more inferences can reasonably be deduced from the evidence, the reviewing court has no authority to substitute its decision for that of the trial court.” (Galbiso v. Orosi Public Utility Dist., supra, 167 Cal.App.4th at p. 1078.) This means we accept “‘the trial court’s resolution of credibility and conflicting substantial evidence, and its choice of possible reasonable inferences.’” (Ibid.)

As in his moving papers below, appellant relies on the fact his CPRA lawsuit was filed prior to City’s disclosure of the requested information. However, as discussed, proof of causation requires “more than a mere temporal connection between the filing of litigation” and the disclosure. (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.) Appellant’s briefing repeatedly alleges the City’s disclosure of the victim’s name occurred on “the eve of trial,” which is demonstrably untrue. The disclosure occurred on August 28, 2020, months before a trial date had even been set. The first CMC was held on November 5, 2020.

Appellant also claims to not understand why the motion ruling cites to Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, at page 1382. It is apparent to us. The appellate court in Crews upheld a finding that service of a CPRA writ petition on the defendant school district (District) “‘did not result in any benefit whatsoever to [the plaintiff].’” (Ibid.) Prior to the lawsuit, upon receiving the plaintiff’s CPRA request, “the District responded it would comply with his request but would withhold documents exempt from disclosure. Although the District indicated its limited resources would require time to produce the documents, it did not refuse to comply with the PRA request.” (Ibid.) The relevant parallel is City’s stated willingness, in response to appellant’s CPRA request, to disclose the victim’s name at a future point in time.

Appellant also complains City “did not even submit evidence that the [police] investigation was still active when it initially denied [his] request[,] [n]or did it submit evidence of when the investigation concluded.” These points are unavailing. Again, we must view the record in the light most favorable to the motion ruling. (Motorola Communication & Electronics, Inc. v. Department of General Services, supra, 55 Cal.App.4th at p. 1347; Rogers v. Superior Court, supra, 19 Cal.App.4th at p. 482–483.)

City’s evidence included a declaration by the attorney who initially responded to the CPRA request, with the response itself attached as an exhibit. The declaration strongly implies, and the exhibit plainly states, there was an active police investigation into the incident involving the subject victim when appellant requested the victim’s name. The declaration of the chief of police stated, in relevant part: “If the suspected perpetrator is not immediately identified, then the matter will not be concluded or closed for several months, and possibly up to a year or more.” He went on to state that “no new information” had been discovered as of August 2020, which permits the inference an investigation was ongoing during the relevant time period.

The chief of police attested to multiple reasons for deciding to reveal the victim’s name in August 2020, all of which generally pertained to the status of the investigation at that time. This was consistent with City’s initial response to appellant in November 2019, i.e., its stated willingness to identify the victim “when the investigation is closed.” The chief of police gave no indication the timing of the disclosure was affected by the filing of appellant’s CPRA enforcement action. Therefore, regardless of any conflicting inferences arguably permitted by the evidence, the record supports the finding of no causation. Put differently, the superior court had a sufficient evidentiary basis to conclude appellant’s lawsuit did not precipitate or expedite City’s disclosure of the requested information.

DISPOSITION

The order from which the appeal is taken is affirmed. The parties shall bear their own costs.

PEÑA, Acting P. J.

WE CONCUR:

MEEHAN, J.

DE SANTOS, J.

*Retired judge of the Kern Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1]We realize part of the appealed ruling says, “The Court determines that … City responded to [appellant]’s request for records timely, although there was clearly a delay which City justifies by reliance on [section] 6254.” The statement is ambiguous, but it seems to refer to City’s initial response to appellant’s CPRA request, which occurred within the 10-day window described in section 6253, subdivision (c). (See Filarsky v. Superior Court, supra, 28 Cal.4th at p. 426 [“A state or local agency, upon receiving a request by any person for a copy of public records, generally must determine within 10 days whether the request seeks public records in the possession of the agency that are subject to disclosure”].) Insofar as the court may have found City’s disclosure was timely, the finding was obiter dictum, i.e., not essential to its denial of the motion. (See People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 [providing definition of obiter dictum]; Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 474 [“discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally regarded as obiter dictum”].) We also note the court acknowledged that determining the propriety of “City’s use of a ‘policy’ in regard to its claimed [e]xemptions for disclosure of victim names” was “not necessary for the instant analysis.” (Italics added.)