Filed 7/14/22 J.A. v. County of Madera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Madera County. Michael J. Jurkovich, Judge.

William L. Schmidt for Plaintiffs and Appellants.

Regina A. Garza, County Counsel, Michael R. Linden, Matthew M. Lear, Deputy County Counsel; and Lozano Smith for Defendant and Respondent.

-ooOoo-

The California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.) gives citizens access to information in the possession of public agencies and governs the disclosure of public records. Government Code section 6254, subdivision (f)(4), which was added to the CPRA by Assembly Bill No. 748 (2017–2018 Reg. Sess.), requires prompt disclosure of audio and video recordings related to any use of force by peace officers resulting in death or great bodily injury. J.A., through her guardian ad litem, and Luz Ana Venegas (appellants), petitioned the Madera Superior Court for a writ of mandate compelling respondent, the County of Madera (County), to disclose audio and video recordings of a particular incident. The petition was denied as moot after County turned over all requested materials to appellants.

The narrow issue in this appeal is whether the trial court erred by finding appellants were not a prevailing party and therefore not entitled to an award of attorney fees and costs, which are otherwise recoverable under Government Code section 6259. Appellants strenuously argue County violated the CPRA by failing to disclose the recordings in a timely manner. However, the test for determining if one has prevailed under the CPRA is whether litigation spurred the disclosure of the subject records. If the public agency would have complied with the CPRA request anyway, i.e., 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. We conclude the findings made on this issue are supported by the record. The judgment will therefore be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2020, appellants’ relative was shot and killed by a deputy of the Madera County Sheriff’s Office. In June 2020, appellants’ legal counsel made a written CPRA request to County on appellants’ behalf for a variety of materials concerning the relative’s fatal encounter with law enforcement. Appellants specifically requested audio and video recordings of the incident.

In July 2020, County’s attorneys communicated with appellants’ counsel regarding the CPRA request. County’s attorneys reportedly confirmed its possession of the responsive materials, and appellants’ counsel reportedly stated “that he was primarily concerned with receiving the body cam and dash cam footage so he could determine if there were adequate grounds to bring a civil action for [the relative’s] death.” In subsequent correspondence, it was “indicated that the County would disclose the dash cam and body cam footage on August 7, 2020.” Shortly before that date, however, the district attorney reportedly asked County not to release the recordings until her office had completed an investigation into the shooting.

On or about August 7, 2020, County formally responded to the CPRA request in writing. The response stated, in relevant part: “Due to the active criminal investigation being conducted by the Madera County District Attorney’s office, relating to the officer involved shooting referenced in your request, the County has elected to delay disclosure of responsive records until the District Attorney has made its prosecutorial determination in this matter pursuant to Penal Code section 832.7.… [¶] … [¶] Since the District Attorney is still in the process of receiving the investigation materials, the County would estimate that all documents responsive to your request would be available on or about February 6, 2021, upon the completion of the District Attorney’s investigation.”

On August 10, 2020, appellants’ counsel sent an e-mail to County stating, in relevant part, “Thank you for your response to my [Public Records Act] request stating that records are being held until February 2021.” Three months later, on November 9, 2020, appellants’ counsel sent a follow-up message: “The purpose of this email is to make a clear record for our Federal complaint. Please confirm that the County of Madera refuses to … allow my review of any documents or videos related to the shooting death until February, 2021.”

On November 23, 2020, County’s counsel sent a reply e-mail confirming its reliance on Penal Code section 832.7 to delay the release of the requested items. The County again “estimate[d] that all of the requested documents would be available for disclosure on or about February 6, 2021.” The e-mail concluded with this statement: “The County is not refusing disclosure of any records, and will disclose responsive documents upon the completion of the District Attorney’s Office’s investigation, pursuant to the Penal Code.” Appellants’ counsel wrote back the next day, disputing the applicability of Penal Code section 832.7 and claiming the controlling authority was Government Code section 6254.

On December 15, 2020, appellants’ counsel sent a “‘meet and confer’” e-mail warning of appellants’ “intent to bring a motion and seek fees/costs to compel release of the video and/or audio recordings of the shooting ….” On December 17, 2020, appellants’ counsel wrote to County again. The e-mail said, “Please accept this as a courtesy notice that we are preparing, on behalf of [appellants], a motion to compel production of all recordings of the shooting incident through a Petition for Writ of Mandate [citation]. We will seek attorney fees and costs [citation]. Please let me know if the County claims any privilege or basis for not releasing the video, other than PC §832.7.” County responded the same day.

In the response e-mail of December 17, 2020, County’s attorney began by saying “[t]he County has already maintained that it is delaying disclosure of the requested records pursuant to Penal Code § 832.7 ….” Amid further discussion of why County believed this was the controlling statute, counsel reiterated “that all of the requested documents would likely be available for disclosure on or about February 6, 2021.” The message concluded with these statements: “In sum, the County’s temporary withholding of these records comports with all applicable law, and the County will not disclose them earlier in response to your threats of frivolous litigation. Moreover, as stated, in all likelihood the records will be available in early February, which is significantly sooner that [sic] any writ petition would be heard by a court, in any event.”

On January 8, 2021, appellants filed a petition in the Madera Superior Court for a writ of mandate. As stated in the prayer for relief, appellants sought “a peremptory writ of mandate or other order … directing [County] to immediately disclose to [appellants] all video and audio recordings of the death of [appellants’ relative] in [its] possession ….” Appellants further requested “a declaration that the withheld recordings are public records as defined by the CPRA … and that [County] violated the Public Records Act by failing to promptly make the materials available to [appellants] and the public.” In addition, appellants sought “an order awarding costs and attorney’s fees incurred … pursuant, inter alia, to Government Code §6259 ….”

On January 29, 2021, County informed appellants’ counsel that the district attorney’s investigation was nearing completion and the requested documents “would be disclosed within the next week.” On February 5, 2021, County informed appellants that the items were now available. County’s counsel wrote, “We can either mail these documents to you, or if you prefer you can pick them up from our office today at your convenience.” Appellant’s counsel responded, “Please mail or email at your convenience. Our Petition for Writ of Mandate will continue; the action does not become moot because the County belatedly decides to release the video.” County furnished the records that day via certified mail.

On March 5, 2021, County filed an answer to the writ petition. In April 2021, appellants filed a “Motion for Determination of Entitlement to Writ of Mandate and Request for Attorney’s Fees.” In opposition papers, County argued the petition was moot because the requested material had already been provided. County maintained it had complied with all requirements of the CPRA and argued appellants were not entitled to attorney fees because “the instant litigation did not prompt the County to disclose the requested documents.”

On May 28, 2021, the superior court heard the matter and, as part of a tentative ruling, “agreed to permit further briefing on the issue of mootness.” The tentative ruling was to deny the petition as moot and deny the request for attorney fees because appellants had not prevailed in the litigation. In supplemental briefing, appellants conceded the issue of mootness yet continued to argue County had erroneously relied on Penal Code section 832.7 and failed to timely comply with the CPRA request.

On July 23, 2021, the superior court issued a 15-page tentative decision that was later adopted and incorporated by reference into a statement of decision. The statement of decision was filed on August 18, 2021. The petition was denied as moot “as a result of [County’s] previous disclosure of the records sought ….” The superior court noted “that the Petition for Writ of Mandate [did] not contain a separate cause of action for declaratory relief,” and it declined to treat the request for declaratory relief therein as a separate cause of action. The request for declaratory relief was also expressly denied.

Relying on Government Code section 6259 and cases such as Rogers v. Superior Court (1993) 19 Cal.App.4th 469, the superior court held the claim for attorney fees and costs depended on whether appellants were a prevailing party, and such a finding could be made only “if the lawsuit motivated the defendants to produce the documents.” (Rogers, at p. 482.) The superior court declined to make a “determination regarding the propriety of [County’s] reasoning for delaying disclosure of the requested records, or whether [it] relied on the appropriate code section in doing so.” However, the court observed that even if County’s delayed disclosure violated the CPRA, the evidence showed County intended from the outset “to release the requested records on or around February 6, 2021.”

The superior court found “no indication that [County] sought to extend this self-imposed deadline before the filing of [appellants’] Petition, or any other facts that would allow the Court to infer that the filing of the Petition had any consequence in [County’s] subsequent actions in releasing the requested records.” “Thus, it would appear from the facts, and the relevant timing involved, that [County’s] decision to release the requested documents was the result of the completion of the District Attorney’s investigation, not the filing of the present Petition.” Accordingly, the motion for attorney fees and costs was denied.

On or about September 28, 2021, the superior court entered a judgment in favor of County. On November 15, 2021, appellants filed a notice of appeal. County moved to dismiss the appeal for lack of appellate jurisdiction. Appellants opposed the motion to dismiss, representing that they are not challenging the denial of the writ petition and are only “appealing the trial court’s denial of attorney’s fees” and the related prevailing party determination. Based on that representation, this court denied the motion to dismiss.

DISCUSSION

The CPRA requires state and local law enforcement agencies to make public all audio and video recordings relating to incidents “involving the discharge of a firearm at a person by a peace officer or custodial officer” and those “in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.” (Gov. Code, § 6254, subd. (f)(4)(C)(i)–(ii).) “During an active criminal or administrative investigation, disclosure of a recording … may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation.…” (Id., subd. (f)(4)(A)(i).) Under specified circumstances, disclosure of a recording may be further delayed by up to one year. (Id., subds. (f)(4)(A)(ii), (B)(iii).)

The CPRA’s enforcement provisions are found in Government Code sections 6258 and 6259. “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 ….” (Gov. Code, § 6258.) “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.” (Id., § 6259, subd. (a).) Attorney fees are recoverable pursuant to Government Code 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.”

In a CPRA enforcement action, an order “either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.” (Gov. Code, § 6259, subd. (c).) In other words, “[a] writ petition is the exclusive means of appellate review of an order denying a petition for a writ of mandate under the [C]PRA.” (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 461, fn. 7.) However, case law holds that an order denying attorney fees under the CPRA is reviewable by direct appeal. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1385.)

Because appellate writ review is “the sole and exclusive means to challenge the trial court’s ruling” on the merits of a CPRA lawsuit (MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 264), appellants’ claims regarding County’s alleged violations of the CPRA, including those concerning the timeliness of its disclosure of the recordings, are outside the scope of this appeal. All such claims pertain to the denial of the underlying petition. As noted, the petition’s prayer for relief requested “a declaration … that [County] violated the Public Records Act by failing to promptly make the materials available to [appellants] and the public.” The superior court denied this request. Any challenge to that ruling needed to be made “by petition to the appellate court for the issuance of an extraordinary writ.” (Gov. Code, § 6259, subd. (c).)

Furthermore, the CPRA “provides no remedy for failure to timely comply with a request for records.” (Rogers v. Superior Court, supra, 19 Cal.App.4th at p. 483.) “Under the CPRA, 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.’” (Riskin v. Downtown Los Angeles Property Owners Assn. (2022) 76 Cal.App.5th 438, 444–445, quoting Gov. Code, § 6259, subd. (d).) “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, at p. 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 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 [C]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 production of specific documents 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.)

Broadly stated, the test is whether the CPRA lawsuit “motivated defendants to provide the primary relief sought or activated them to modify their behavior [citation], or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result [citation].” (Belth v. Garamendi (1991) 232 Cal.App.3d 896, 901-902.) In short, “the standard test for determining if a plaintiff has prevailed under the Public Records Act is whether or not the litigation caused a previously withheld document to be released.”[1] (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1088.) “The litigation must have been the motivating factor for the production of documents.” (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.)

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., supra, 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 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. We view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that reasonably can be deduced from the evidence.” (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99.) Where, as here, the judgment is based on a statement of decision, “‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.’” (Community Youth Athletic Center v. City of National City, supra, 220 Cal.App.4th at p. 1407.)

The finding that appellants did not prevail in their CPRA lawsuit is clearly supported by substantial evidence. As discussed, the issue “is really a question of causation—the litigation must have resulted in the release of records that would not otherwise have been released.” (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464.) Beginning with its earliest responses to appellants’ CPRA demand, County expressly agreed to provide the requested materials. When appellants began threatening litigation, County reiterated that it was “not refusing disclosure of any records, and [would] disclose responsive documents upon the completion of the District Attorney’s Office’s investigation.” (Cf. Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1382 [upholding finding that service of CPRA writ petition upon defendant school district “‘did not result in any benefit whatsoever to” the plaintiff; “[a]lthough the District indicated its limited resources would require time to produce the documents, it did not refuse to comply with the [C]PRA request”].)

In its formal response of August 7, 2020, County estimated “that all documents responsive to [appellants’] request would be available on or about February 6, 2021.” This anticipated date of compliance was repeatedly noted in County’s subsequent communications with appellants’ counsel. Appellants began threatening legal action in November 2020, but neither the threats nor the filing of the writ petition in January 2021 appear to have expedited County’s disclosure of the recordings. All responsive materials were released on February 5, 2021, which admittedly was one day earlier than previously estimated. However, the record plainly supports the superior court’s finding of no causal connection between appellants’ lawsuit and County’s disclosure of the subject recordings. (See Rogers v. Superior Court, supra, 19 Cal.App.4th at p. 483 [“Although there may have been conflicting evidence and inferences available, [the superior] court could properly find that the [requested] documents were not disclosed in response to the [CPRA] lawsuit”].)

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

PEÑA, Acting P. J.

WE CONCUR:

MEEHAN, J.

DE SANTOS, J.

[1]At least one published opinion holds that a party may be deemed to have prevailed in a CPRA enforcement action if they “sought and obtained declaratory relief that there had been [C]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 for determining the prevailing party does not apply here because (1) County produced the requested items and (2) appellants did not obtain any form of declaratory relief. We note that despite their request below for a judicial declaration regarding County’s alleged violation of the CPRA’s disclosure requirements, appellants’ position on appeal, as stated in their opening brief, is that they “did not seek declaratory relief in this case.”