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In California, Attorney Fees May Be Awarded in ‘Reverse-CPRA’

November 18, 2019 | Posted in : Fee Award, Fee Doctrine / Theory, Fee Entitlement, Fee Issues on Appeal, Fee Shifting, Fee Statute, Prevailing Party Issues

A recent Metropolitan News story, “Attorney Fees May Be Awarded in ‘Reverse-CPRA’ Case,” reports that a newspaper that intervened in an action brought by a department of the City of Los Angeles seeking a declaration that certain of its records are non-disclosable, and succeeded in effecting the release of those records, is entitled to its attorney fees under the private attorney general doctrine, the Court of Appeal for this district has held.

Justice Maria Stratton of Div. Eight wrote the opinion.  It affirms a $136,645.82 award of attorney fees under the private attorney general statute, Code of Civil Procedure §1021.5, to the San Diego Union and tacks on $12,350.33, bringing the total to $148,996.15.

The records relate to pay-outs by the Department of Water & Power (DWP) to customers in the 2014-2015 fiscal year—rebates totaling nearly $18 million—for tearing up their lawns and replacing them with fake grass.

The San Diego Union on May 19, 2015, made a request under the California Public Records Act (CPRA) for records relating to the rebates.  That request was directed to the Metropolitan Water District (MWD), a cooperative water wholesaler with 26 utilities, including DWP, as its members.

MWD failed to adhere to the statutory time limits for responding, but on June 29, 2015, did release information to the Union—but with the names and addresses of DWP customers redacted.  The newspaper pressed for particularized information.  DWP on July 31, 2015, brought an action in mandate to block MWD from releasing records pertaining to rebates to approximately 7,800 of its customers. Three other water districts intervened, seeking non-disclosure.

The Union, too, intervened, urging denial of the DWP’s petition. It also filed a cross petition under the CPRA.  Meanwhile, the significance of release of the records intensified.  The Office of City Controller on Nov. 20, 2015 released an audit showing that the program cost more and was less effective than cheaper measures to deal with the drought.

City Controller Ron Galperin, in a letter on that date to the mayor, city attorney, members of the City Council, and “All Angelenos,” reported on an “Audit of DWP Customer-Based Water Conservation Programs,” saying:  “Auditors found that DWP does not adequately prioritize water conservation projects based on which are the most cost effective.  The key component of DWP’s conservation program last year-turf replacement-targeted outdoor water use, which constitutes about half of residential water use.  But evidence suggests that the turf replacement program, called ‘Cash in Your Lawn,’ was largely a gimmick—a device intended to attract attention and publicity.

“It in some ways worked as intended.  By paying more to provide customers an initial opportunity to get involved in water conservation-in hopes that participation and behavior might continue—it had value as an advertising campaign that helped stimulate major public interest in the drought.  But this came at a rather high cost and, arguably at the cost of some fairness.  Aid was distributed Citywide but was most concentrated in the western San Fernando Valley.  As well as ordinary ratepayers, beneficiaries included some affluent households and some private golf courses. One particular contractor benefited handsomely.”

Los Angeles Superior Court Judge James C. Chalfant on Jan. 15, 2016, denied the DWP’s petition and granted that of the Union. Those decisions were not appealed.  The DWP and the three water districts did appeal the attorney fee award against them.  Chalfant’s award of $25,319 against the MWD in connection with the cross-petition, pursuant to a provision in the CPRA, was not in issue in the appeal.

Stratton said that DWP’s action to block release by MWD of records “is not specifically authorized by CPRA, but this District Court of Appeal has permitted non-statutory actions to prevent disclosure of records requested under CPRA, that is reverse-CPRA actions.”

She cited Div. Seven’s 2012 decision in Marken v. Santa Monica-Malibu Unified School District, and explained:  “Such reverse actions have been viewed as necessary to protect the privacy rights of individuals whose personal information may be contained in government records, because CPRA provides no mechanism for notifying such individuals of the requested disclosure and does not specifically authorize actions to prevent disclosure.”

The jurist observed:  “This case highlights many of the issues that have emerged from permitting reverse-CPRA actions, like DWP’s, to prevent disclosure of public records.  The issue most directly implicated in this case, and the only issue we consider on appeal, is the availability of attorney fees in reverse-CPRA actions.”

She declared: “We conclude Union was eligible for attorney fees under CPRA for work on the CPRA cross-petition and for attorney fees under Code of Civil Procedure section 1021.5 for its work opposing the petition for writ of mandate….The trial court did not abuse its discretion in finding Union met the requirements of Code of Civil Procedure section 1021.5 for attorney fees.  Union was the prevailing party and its action resulted in the enforcement of an important right affecting the public interest, conferring a significant benefit on the general public.”

Stratton elaborated: “DWP’s action, if successful, would have established or expanded the ability of utilities to withhold information from the public and curtailed the public’s ability to obtain information on how the DWP, and potentially all public utilities, spends public funds. The expenditure of public funds is a matter of clear public interest….If, as DWP argued, its customers’ privacy rights outweighed the public’s clear and well-established interest in monitoring the expenditure of public funds, it is difficult to imagine when disclosure of customer information could ever be warranted.”

She went on to say: “DWP sought to block the public’s access to records necessary to monitor and assess the use and alleged misuse of public funds, and potentially to shield its customer information from disclosure in all circumstances.  That is sufficient for purposes of Code of Civil Procedure section 1021.5.”

DWP relied on the decision in Marken, which established the recognition of reverse-CPRA actions.  That case, it contended, supports its position that attorney fees may never be awarded in such cases.  There, Presiding Justice Dennis Perluss said that “a requesting party who participates in a reverse-CPRA lawsuit would not be entitled to the recovery of attorney fees, as would be the case if the party had successfully litigated his or her right to access to documents against a public agency.”

Stratton pointed to factual differences between that case and the one at hand, adding: “Further, Marken’s statement about attorney fees was part of the court’s general discussion of the viability of reverse-CPRA actions and so was dicta; no attorney fees were sought in that appeal.”

She did ascribe significance to an April 12, 2018 opinion by this district’s Div. One in Pasadena Police Officers Assn. v. City of Pasadena.  The underlying facts were that a police union sought an order in the trial court barring the public release of a report relating to a police shooting; the Los Angeles Times intervened, seeking the release of the entire report; the Los Angeles Superior Court found the report partially disclosable; the union sought a writ in the Court of Appeal; Div.  One on Sept. 10, 2015, denied the petition and directed that, on remand, disclosure of additional portions be considered; the trial court ordered further disclosures.

The Times then sought $350,422 in attorney fees under the CPRA and the private attorney general statute. It received an award of $45,472, only under the CPRA.  In the 2018 opinion, Div. One, in an opinion by Justice Jeffrey Johnson, reversed the denial of fees under §1021.5, and remanded the case.

DWP maintained that the Pasadena Police Officers Assn. case (“PPOA”) is distinguishable. Stratton responded: “We disagree.  PPOA is quite similar factually to this case. Both PPOA and this appeal involve records related to a matter of public interest; the PPOA reverse-CPRA action was brought by a union representing the interests of its large number of members, and this reverse-CPRA action to prevent disclosure was brought by a public agency, DWP, representing a large number of its customers.”