City of Los Angeles v. Metropolitan Water Dist. etc. ( 2019 )

Filed 11/19/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CITY OF LOS ANGELES, B272169
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS157056)
v.
METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA,
Defendant, Cross-defendant
and Respondent;
WEST BASIN MUNICIPAL
WATER DISTRICT et al.,
Interveners and Appellants;
THE SAN DIEGO UNION-
TRIBUNE, LLC,
Intervener, Cross-
complainant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed as
modified.
Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant
City Attorney, and Shaun Dabby Jacobs, Deputy City Attorney,
for Plaintiff and Appellant.
Richard Doyle, City Attorney (San Jose), Nora Frimann,
Assistant City Attorney, and Elisa T. Tolentino, City Attorney,
for League of California Cities, California State Association of
Counties and California Special District’s Association as Amici
Curiae on behalf of Plaintiff and Appellant.
Olivarez Madruga Lemieux O’Neill, Steven P. O’Neill and
Manuel D. Serpa for Interveners and Appellants.
Law Offices of Kelly Aviles, Kelly A. Aviles; and Jeff
Glasser for Intervener, Cross-complainant and Appellant.
Katie Townsend, Bruce D. Brown and Daniel J. Jeon for
Reporters Committee for Freedom of the Press and 15 media
organizations as Amici Curiae on behalf of Intervener, Cross-
complainant and Appellant.
Marcia Scully, Heather Beatty, Heriberto F. Diaz and
Bryan M. Otake for Defendant, Cross-defendant and Respondent.
_____________________
2
This appeal is from the trial court’s award of attorney fees
in an action consisting of a petition for writ of mandate and a
cross-petition under the California Public Records Act (Gov.
Code,1 § 6250 et seq. (CPRA)). The mandamus petition was
brought by the City of Los Angeles Department of Water and
Power (DWP) against the Metropolitan Water District (MWD) to
prevent MWD from disclosing records of DWP customers to the
San Diego Union Tribune (Union). Union intervened and filed a
CPRA cross-petition against MWD. Three other water districts2
(Intervener Utilities) opposed disclosure and intervened in the
mandamus proceedings. The trial court denied DWP’s petition
for writ of mandate and granted Union’s CPRA cross-petition,
ordering disclosure of the records.
The court awarded Union $25,319 in attorney fees under
CPRA against MWD for Union’s work on the CPRA cross-petition
up until the point where MWD agreed it would produce complete
customer names and addresses. For its work opposing the
mandamus petition, Union received $136,645.82 in attorney fees
under Code of Civil Procedure section 1021.5 “against DWP and
Intervener Utilities jointly and severally. As between DWP and
Intervener Utilities, the award is apportioned so that DMP is
solely responsible for the $40,053 in collusion fees.’’
DWP and Intervener Utilities appeal, contending Union
was not entitled to attorney fees under Code of Civil Procedure
1 Further undesignated statutory references are to the
Government Code.
2 The water districts are West Basin Municipal Water
District, Foothill Municipal Water District, and Upper San
Gabriel Municipal Water District.
3
section 1021.5, both because such attorney fees are not
authorized in actions involving CPRA requests and because
Union has not satisfied the requirements of section 1021.5.
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. (Pasadena Police
Officers Assn. v. City of Pasadena (2018) 22 Cal.App.5th 147, 159
(PPOA).) 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. DWP and Intervener Utilities were not exempt from
attorney fees on the ground they were the equivalent of an
individual who seeks a determination of “only his or her [own]
private rights [and] has done nothing to adversely affect the
public interest.” (See Adoption of Joshua S. (2008) 42 Cal. 4th
945, 958 (Joshua S.).) DWP and Intervener Utilities sought far
more than a simple determination of the privacy rights of a few
customers.
DWP separately contends the trial court abused its
discretion in awarding Union attorney fees on its unsuccessful
claim that DWP and MWD colluded to avoid CPRA and to bring
the mandamus petition. Compensation is ordinarily warranted
even for unsuccessful early claims in a series of attacks on an
opponent’s case, and so the trial court did not abuse its discretion
in finding attorney fees warranted for Union’s initial “collusion”
claims, particularly since those claims touched on the emerging
area of “reverse-CPRA” actions.
4
Union also appeals, contending the trial court abused its
discretion in denying it attorney fees for its work preparing
separate reply briefs to three separate oppositions to fees filed by
MWD, DWP and Intervener Utilities. Union has also filed a
“protective” cross-appeal seeking reapportionment of fees in the
event we reverse any portion of the trial court’s award. Union re-
argues its claim that DWP and Intervener Utilities lacked
standing to bring a petition for a writ of mandate to prevent
disclosure of records (hereafter the reverse-CPRA action). Union
also points to numerous problems with allowing reverse-CPRA
actions and asks that we hold such actions incompatible with
CPRA and so not permissible.
We agree with Union that the trial court abused its
discretion in denying fees for Union’s work preparing the reply
briefs, and we order Union awarded fees for its work as to DWP
and Intervener Utilities only. We need not and do not reach the
issues in Union’s “protective” cross-appeal. We hold DWP and
Intervener Utilities had standing. We decline Union’s suggestion
to find reverse-CPRA actions impermissible as Union cross-
appealed only the attorney fees award.
The trial court’s order awarding attorney fees against DWP
and Intervener Utilities is modified to add $12,350.33 in fees
against only those parties jointly and severally. We affirm the
trial court’s award in all other respects, including all standing
determinations.
FACTUAL BACKGROUND
MWD is a cooperative water wholesaler with 26 members,
including DWP and Intervener Utilities. In 2014, following then-
Governor Brown’s declaration that California was in a drought
and lawns and ornamental turf should be replaced with drought
5
tolerant landscapes, MWD began a Turf Removal Rebate
Program. MWD provided money or rebates to customers of its
member agencies who replaced their grass with drought tolerant
landscaping. MWD paid $370 to $450 million in rebates. Each
member agency had its own contract with MWD governing the
ability of the agency’s customers to participate in the program.
Some agencies offered a supplemental rebate to their customers
and some did not. There were about 40,000 participants in the
Turf program, and about 7,800 of them were DWP customers.
The Controller for the City of Los Angeles questioned the
utility of turf removal programs and called DWP’s program
“largely a gimmick – a device intended to attract attention and
publicity.” The Controller stated MWD’s turf program “came at a
rather high cost and, arguably at the cost of some fairness.” The
Controller noted the program’s rebates were concentrated in the
western San Fernando Valley and beneficiaries included “some
affluent households,” “some private golf courses,” and “[o]ne
particular contractor.” The Controller suggested DWP release
the names and addresses of residents who received rebates,
stating that “[b]illing information for customers . . . is different
than the person who chooses to ask for an incentive or [rebate]
and gets money from ratepayers for that.”
On May 19, 2015, a Union reporter made a CPRA request
to MWD for information about the participants in the turf
program, including their names, addresses, and rebate amounts.
CPRA provides a streamlined and expedited process for
public access to government records, because “access to
information concerning the conduct of the people’s business is a
fundamental and necessary right of every person in this state.”
(§ 6250.) CPRA provides that “every person has a right to inspect
6
any public record” (§ 6253, subd. (a)), “[e]xcept with respect to
records exempt from disclosure by express provisions of law.”
(§ 6253, subd. (b).) An agency has 10 days to respond to a CPRA
request. One 14-day extension is permitted for specified
purposes, including consultation with another agency having
“substantial interest in the determination of the request.”
(§ 6253, subd. (c)(3).) No further delays are authorized by the
statute.
If an agency finds disclosure is required or appropriate, the
agency may simply provide the records to the requestor. If an
agency withholds records, the agency “shall justify withholding
any record by demonstrating that the record in question is
exempt under express provisions of this chapter or that on the
facts of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest served
by disclosure of the record.” (§ 6255, subd. (a).)
Had MWD simply denied Union’s request, Union then
could have filed an action in the superior court to compel
disclosure. (§ 6258.) That action would have been entitled to
scheduling to “secur[e] a decision as to these matters at the
earliest possible time.” (Ibid.) Had Union prevailed in such an
action (as it did in this case on its cross-petition), Union would
have been entitled to reasonable attorney fees (§ 6259, subd. (d))
and expedited handling of any appeal (§ 6259, subd. (c)).
Here, MWD did not comply with the statutory timelines for
a disclosure response and did not unequivocally deny the request
when it did respond. Before responding to Union’s CPRA
request, MWD provided DWP with a copy of the request. DWP
objected to revealing its customers’ names and addresses.
Ultimately MWD agreed with DWP to limit disclosure to only
7
generalized block numbers and MWD’s share of the rebate
amount. On June 29, 2015, MWD released this redacted
information to Union. MWD stated that the production
“conclude[d] Metropolitan’s response to your PRA request.”
MWD did not provide any justification for its redactions.
On July 7 and 8, 2015, Union objected to the redactions and
MWD’s failure to provide written justification for them. MWD
again conferred with DWP, who continued to object to disclosure
of its customers’ information.
On July 31, 2015, DWP filed this lawsuit against MWD
seeking to enjoin MWD from releasing information about anyone
who participated in the turf rebate program, regardless of
whether they were DWP customers. Such an action 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.
(Marken v. Santa Monica-Malibu Unified School Dist. (2012)
202 Cal. App. 4th 1250 (Marken); see PPOA, supra,
22 Cal.App.5th 147.) 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.
On August 6, 2015, Union sought and obtained leave to
intervene in the lawsuit between DWP and MWD. At the same
time, Union filed a CPRA cross-petition against MWD to compel
disclosure of the names and addresses of turf program recipients.
At Union’s request, the trial court limited its temporary
restraining order (TRO), which temporarily prevented disclosure,
8
to DWP customers only. Thereafter Intervener Utilities joined
DWP’s lawsuit seeking their own TROs.
In opposing DWP’s mandamus petition, Union argued
MWD and DWP, by suing each other, had colluded to deny Union
the opportunity to file a CPRA petition. Union also argued they
colluded, by suing each other, to circumvent the judicial bar
which prevents public agencies from filing declaratory relief
actions under CPRA. (Filarsky v. Superior Court (2002)
28 Cal. 4th 419, 432 (Filarsky) [an agency may not institute a
declaratory relief action to determine its obligation under CPRA
to disclose documents to a member of the public].) Union
relatedly argued DWP did not have standing to assert the privacy
rights of its customers because privacy rights are personal and
cannot by asserted by third parties.
On January 15, 2016, the trial court issued its rulings on
the petitions. The court rejected Union’s collusion arguments
and found DWP was the co-custodian of the requested records
and a joint venturer with MWD and so had standing to assert the
privacy rights of DWP’s customers.3 The court denied DWP’s
petition for a writ of mandate and granted Union’s CPRA cross-
petition for disclosure. No party has appealed from these rulings.
3 Although Union believed MWD deliberately delayed its
response to facilitate collusion, the trial court found MWD’s
delayed response was due to “the large number of records
requested, the unprecedented number of CPRA requests that
came in around the same time as the Union CPRA request, and
the technological failings of MWD’s Water Efficiency Team.”
9
LEGAL BACKGROUND
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.
CPRA provides a trial court “shall award court costs and
reasonable attorney[] fees” to a requesting party who prevails in
an action to compel disclosure. (§ 6259, subd. (d).) In contrast,
agencies who prevail in the action and prevent disclosure may
only receive attorney fees if the court finds “the requestor’s case
is clearly frivolous.” (Ibid.)
While some CPRA exemptions are clear-cut, many require
the agency to perform a balancing test to determine if disclosure
is required. For example, section 6254.16, which was raised in
this case, provides that “Nothing in this chapter shall be
construed to require the disclosure of the name, credit history,
utility usage data, home address, or telephone number of utility
customers of local agencies, except that disclosure . . . shall be
made available upon request as follows: [¶] . . . [¶] (f) Upon
determination by the local agency that the public interest in
disclosure of the information clearly outweighs the public interest
in nondisclosure.” The situation is more complicated if the CPRA
request seeks records containing alleged private information of
third parties. In enacting CPRA, the Legislature was “mindful of
the right of individuals to privacy” (§ 6250), but provided no
mechanism for individuals to enforce that right. An agency
which is found to have incorrectly determined that the public
interest in nondisclosure is heavier on balance will be required to
pay the requesting party’s attorney fees.
10
Not surprisingly, agencies have attempted to avoid liability
for CPRA attorney fees. Their attempts to seek judicial
declarations of the propriety of nondisclosure were unsuccessful.
(Filarsky, supra, 28 Cal.4th at p. 432.) The court in Filarsky,
however, left open the issue of whether other non-statutory
actions were permissible in connection with CPRA requests,
stating “We . . . have no occasion in the present case to determine
whether a third party possesses the right to seek a judicial ruling
precluding a public agency from disclosing documents pursuant
to the CPRA. (See, e.g. Civ. Code, § 1798.45.) Such an action,
known as a ‘reverse FOIA’ case pursuant to the federal
counterpart of the CPRA, has been held to be authorized by a
specific federal statute authorizing judicial review of agency
actions that adversely affect another person. (5 U.S.C. § 702;
Campaign for Family Farms v. Glickman (8th Cir. 2000) 200 F.3d
1180, 1184.)” (Filarsky, at p. 431.)
Following Filarsky, agency notification to third parties of
CPRA requests began to result in some of those third parties
bringing suit to prevent the agency from disclosing records. This
District Court of Appeal formally recognized the viability of this
“reverse-CPRA action” in Marken. The action recognized in
Marken was a petition for a writ of mandate brought by an
individual teacher, pursuant to Code of Civil Procedure
section 1085, to compel the school district to refuse disclosure of
the teacher’s disciplinary records. (Marken, supra,
202 Cal.App.4th at p. 1266.)
The reasoning of Filarsky had indicated that a reverse-
CPRA action to prevent record disclosure could not invoke the
benefits of proceeding under the CPRA statute. (Filarsky, supra,
28 Cal.4th at pp. 430–431 [if the limitations of § 6258 “specifying
11
that judicial proceedings conducted pursuant to [CPRA] may be
commenced only by a person seeking disclosure of documents” do
not apply, there is no “reasoned basis” to apply other provisions of
CPRA].) In discussing the viability of a reverse-CPRA action, the
court in Marken noted that “CPRA contains expedited procedures
for determination by the superior court of the agency’s obligation
to disclose public records, as well as for appellate review by writ
of mandate of that decision. A court would be under no statutory
obligation to schedule briefing and hearings to expedite a final
decision in a reverse-CPRA action.” (Marken, supra,
202 Cal.App.4th at p. 1268.) The court also noted that “a
requesting party who participates in a reverse-CPRA lawsuit
would not be entitled to the recovery of attorney fees” under
section 6259, subdivision (d). (Ibid.) The court suggested that
the party seeking the records could rely on the agency to oppose
the reverse-CPRA action and thereby avoid attorney fees. (Ibid.)
While correct, the reasoning of Marken concerning attorney
fees is limited by its facts. The requesting party in Marken was
(improperly) denied leave to intervene, and so the case and
appeal did not involve a CPRA cross-petition. The non-party
seeking the records was forced to rely on the school district to
oppose the teacher’s reverse-CPRA action.
During the pendency of this appeal, this District Court of
Appeal considered the issue of attorney fees in a case where the
requesting party successfully intervened in and opposed a
reverse-CPRA petition for writ of mandate to prohibit disclosure
and filed a CPRA cross-petition. (PPOA, supra, 22 Cal.App.5th
147.) The court found the successful requesting party was
eligible for CPRA fees on the CPRA cross-petition and Code of
Civil Procedure section 1021.5 attorney fees on the reverse-CPRA
12
action. The court recognized it is not always reasonable for a
requesting party to rely on the agency to advocate for disclosure.
(PPOA, at p. 157.) We agree with the PPOA court’s reasoning
and conclusions.
DISCUSSION
I. DWP’S AND INTERVENER UTILITIES’ APPEAL
DWP’s and Intervener Utilities’ appeal is limited to the
amount and propriety of the attorney fees awarded against them
pursuant to Code of Civil Procedure section 1021.5.
A. Code of Civil Procedure Section 1021.5
Code of Civil Procedure section 1021.5 codifies the “private
attorney general” exception to the general rule that parties bear
their own attorney fees. (See Code Civ. Proc., § 1021.) Code of
Civil Procedure section 1021.5 authorizes a trial court to award
attorney 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.” (PPOA, supra, 22 Cal.App.5th at p. 159.)
“On appeal from an award of attorney fees under [Code of
Civil Procedure] section 1021.5, ‘ “the normal standard of review
is abuse of discretion. However, de novo review of such a trial
court order is warranted where the determination of whether the
criteria for an award of attorney fees and costs in this context
have been satisfied amounts to statutory construction and a
question of law.” ’ ” (Serrano v. Stefan Merli Plastering Co., Inc.
(2011) 52 Cal. 4th 1018, 1025–1026.)
13
DWP’s position in its opening brief that attorney fees are
never available in a reverse-CPRA action is a question of law.
We review the claim de novo and find no error. We find no abuse
of discretion in the remainder of the court’s Code of Civil
Procedure section 1021.5 fee award.
B. Attorney Fees Are Available In Reverse-CPRA Actions.
In its opening brief, DWP contends this appeal is “virtually
identical” to Marken, and urges us to follow Marken’s reasoning,
holding that attorney fees are never available in reverse-CPRA
cases. This case has significant factual differences from Marken.
In Marken, the requestor was denied leave to intervene and so
there was no CPRA cross-petition; the writ petition was brought
by a single individual and was based on that individual’s
personal circumstances. (Marken, supra, 202 Cal.App.4th at
pp. 1254–1255.) In this case, the requesting party, Union, did
intervene and file a CPRA cross-action; the writ petition was
brought by a public agency, DWP, to protect, at a minimum, the
records of thousands of customers under a general privacy theory.
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.
(Id. at p. 1268.)
More importantly, in April 2018, Division 1 of this court
issued its opinion in PPOA, explaining that attorney fees are
available to an intervening requesting party in reverse-CPRA
cases. In its reply brief, DWP argues the facts of PPOA are
“wholly different” than the facts in this appeal. 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
14
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.
That two individuals were also plaintiffs in the PPOA reverse-
CPRA case is not a reason to reject the reasoning of PPOA.4
C. The Trial Court Did Not Abuse Its Discretion in
Finding Union Met the Requirements for Attorney
Fees Under Code of Civil Procedure Section 1021.5.
DWP contends that even if Code of Civil Procedure section
1021.5 fees are permissible in reverse-CPRA actions, Union does
not meet the statutory requirements for attorney fees under
section 1021.5.
1. DWP Was Seeking to Restrict the Public’s Right to
Access Customer Information Even When Such
Information Was Relevant to an Issue of Public
Interest.
DWP contends it simply enforced the privacy rights of its
customers and did not adversely affect the rights of the public.
DWP is, in effect, arguing it qualifies for the exception to section
1021.5 attorney fees set forth in Joshua S., supra, 42 Cal.4th at
page 958 (“section 1021.5 was not intended to impose fees on an
individual seeking a judgment that determines only his or her
private rights, but who has done nothing to adversely affect the
4 DWP contends “the PPOA petitioners fought to prevent
disclosure of the records, here, DWP never contested disclosure of
any information about the inner-workings of, or the policies
behind, the Turf Rebate Program.” This claim is disingenuous at
best. DWP clearly fought to prevent disclosure of the records
containing the customer information sought by Union.
15
public interest other than being on the losing side of an
important appellate case”).
DWP is not a private business; it is a public agency. DWP
contends the trial court “recognized DWP was acting in a
representative capacity for its customers and not as a
governmental agency.” We see no such recognition anywhere in
the record. As the trial court found, DWP is a governmental
agency seeking to protect records it had obtained acting in its
capacity as a governmental entity and which it had shared with
another governmental agency as part of its joint venture with
that agency to implement state water policy using public funds.
Further, DWP did not bring its reverse-CPRA action to
protect the rights of a small number of individual customers.
DWP had no idea whether any particular customer objected to
disclosure, or whether any customer would maintain a
nondisclosure stance if preserving that stance required litigation.
DWP took, and could only credibly take, the position that all
utility customers had a right to privacy in the information
provided to their public water suppliers.5 Further, DWP itself
offered evidence that it had never before disclosed customer name
and address information unless an enumerated exception in
section 6254.16 was met. In arguing against disclosure, DWP
necessarily opposed Union’s attempts to “enforce[] an important
right affecting the public interest,” specifically the public’s “right
to know how the government uses public money.”
5 DWP argues that it was not practical to give its large
number of customers notice about the disclosure request. If, by
not practical DWP means it would be time-consuming and
expensive, we agree.
16
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. (See California State University, Fresno Assn., Inc. v.
Superior Court (2001) 90 Cal. App. 4th 810, 833–835.) 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.6
DWP’s motives for seeking to block disclosure, good or bad,
simply do not matter. “[T]he subjective intent of the party
seeking to prevent disclosure is immaterial.” (PPOA, supra,
22 Cal.App.5th at p. 164.) All that it is required for an award of
attorney fees under section 1021.5 is “ ‘that the party against
whom such fees are awarded must have done or failed to do
something, in good faith or not, that compromised public rights.’ ”
(Ibid., quoting Joshua S. supra, 42 Cal.4th at p. 958.) 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. (See PPOA, supra, 22 Cal.App.5th at
p. 164 [“Regardless of the officers’ personal motivation in filing a
reverse-[CPRA] suit, in so doing, the officers and the PPOA
6 Some of DWP’s customers had an enhanced statutory right
to privacy which those customers separately raised, and we do
not include such rights in this discussion.
17
plainly attempted to restrict the public’s right of access to [its
records].”].)
2. Union Was the Prevailing Party on the Disclosure
Issue.
DWP contends Code of Civil Procedure section 1021.5
attorney fees were improper because Union was not the
prevailing party on its claims against DWP. DWP contends it
“did not control the records sought in the CPRA request” and so
could not provide the primary relief sought. DWP asserts there
was no causal connection between Union’s involvement and the
disclosure because Union did nothing to influence DWP to change
its behavior.
The primary relief sought by Union through its
intervention in DWP’s writ petition was disclosure of records.
The trial court found DWP was a co-custodian of the records and
had provided MWD access to the records pursuant to a
confidentiality agreement. DWP absolutely did control the
records sought. Further, MWD did not oppose disclosure of the
records, and if, at any time, DWP had agreed to disclosure, the
records would have been disclosed and Union would have
received the relief sought. Instead DWP obtained a TRO
prohibiting MWD’s disclosure of the information Union sought.
There is nothing in the record to suggest DWP changed its
behavior for any reason other than Union’s intervention and
successful advocacy in court for disclosure. For this reason,
DWP’s misplaces its reliance on Marine Forests Society v.
California Coastal Com. (2008) 160 Cal. App. 4th 867 (legislative
amendment to statute provided relief sought) and Westside
Community for Independent Living, Inc. v. Obledo (1983)
18
33 Cal. 3d 348 (issuance of final regulation on unaltered timeline
provided relief sought).
DWP is correct that Union did not prevail on the collusion
and standing claims, but as we discuss in more detail below, that
does not disqualify Union as the prevailing party or prevent an
award of attorney fees for Union’s work on those claims.
3. Intervener Utilities Are Not Equivalent to Amici
Curiae.
Intervener Utilities adopt DWP’s arguments that it was
simply trying to advocate for the privacy rights of its customers
and it had no control of the records sought by Union.
Accordingly, they assert that they cannot be “opposing parties”
within the meaning of Code of Civil Procedure section 1021.5.
They analogize themselves to amici curiae. They did not make
this argument in opposition to the fee motion and so it has been
forfeited.
Even if not forfeited, the argument has no merit. As
Intervener Utilities acknowledge, an opposing party is a party
whose position in the litigation is adverse to that of the
prevailing party and who has lost on the merits. (See Nestande v.
Watson (2003) 111 Cal. App. 4th 232, 240–241.) Within two weeks
of the trial court’s ruling that DWP could only obtain a TRO
prohibiting MWD from disclosing the names and addresses of
DWP’s own customers, the Utilities had actively intervened in
the reverse-CPRA action to prevent disclosure. As each utility
intervened, the TRO in the case was broadened, at their request,
to include the customers of the intervening utility. Intervener
Utilities were not merely interested bystanders who filed briefs
hoping to ultimately persuade the court to reach a certain
decision; they were intervening plaintiffs who actively blocked
19
Union’s attempts to obtain their records. Clearly they took a
position in the litigation adverse to Union’s position, and equally
clearly Union was the prevailing party on the disclosure issue.
Intervener Utilities also relatedly argue they did not have a
pecuniary or institutional interest in the litigation and so are not
subject to attorney fees. Again, they did not make this argument
in opposition to the fee motion; it is forfeited. Even if not
forfeited, the argument fails in light of the trial court’s findings
on the merits, which are uncontested on this appeal. The trial
court’s order allowing Intervener Utilities’ standing was based on
the court’s finding that each member agency of MWD had a
contract with MWD governing participation in the Turf program
and that MWD acted as a clearinghouse. This made the program
a joint venture and the member agencies co-custodians of the
records. Intervener Utilities describe themselves on appeal as
“one of several custodians of [customer] data.” As such, they had
a direct interest in the outcome.
If Intervener Utilities’ interest was only to provide general
advocacy in support of utility customers’ privacy rights, they
could have relied on DWP to do so without joining the action,
perhaps filing amici briefs in support of DWP. (Cf. Connerly v.
State Personnel Bd. (2006) 37 Cal. 4th 1169, 1173–1174 [advocacy
group designated real party in interest to argue position which
would otherwise have gone unrepresented, but without direct
interest in litigation, is not subject to attorney fees award].)
As for the rest of the arguments made by Intervener
Utilities, their claims fail for the same reasons as did DWP’s
claims. We emphasize that Intervener Utilities’ motives or
reasons for opposing disclosure are simply not material to a Code
of Civil Procedure section 1021.5 fee award. It is their active
20
compromise of public rights that matters. The same would be
true if fees were awarded under CPRA: fees are awarded against
agencies who do not prevail in litigation and are ordered by the
court to disclose records, regardless of their motive or reason for
denying disclosure.
4. The Ability of the Public to Monitor the
Expenditure of Hundreds of Millions of Dollars in
Public Funds Is a Significant Public Benefit.
DWP claims that “[g]eneral enforcement of the CPRA is not
a significant public benefit.” DWP argues that Union did not
publish any stories about the Turf Program and so there was no
widespread public benefit from the disclosure.
The trial court found that “Union enforced an important
right affecting the public interest,” specifically the public’s “right
to know how the government uses public money.” For this
reason, “the disclosure conferred a significant benefit on the
public. Union and others will be able to monitor the Turf
Program’s alleged success and excesses.”
DWP’s factual argument about the number of publications
does not appear to have been made in the trial court: it is not
mentioned in the trial court’s detailed written ruling on attorney
fees. Thus, the argument is forfeited. Even if this issue were not
forfeited, however, the number of articles published in the
relatively brief period between a news organization’s receipt of
records at the conclusion of litigation and the hearing on a motion
for attorney fees would be a particularly inappropriate measure
of how widespread the public benefit is. Here, for example,
Union sought the records of a large number of customer names
and addresses so that it could investigate how public funds were
21
spent. Only after this time-consuming investigation was
complete could reporters be expected to write their stories.
More importantly, the public benefit from disclosure is not
the number of articles written using the disclosed records. The
public benefit is the scrutiny of the records by the public. Even
when a particular disclosure does not reveal newsworthy
wrongdoing, the requirement to disclose reinforces the agency’s
awareness that its actions are open to scrutiny. “Openness in
government is essential to the functioning of a democracy.
‘Implicit in the democratic process is the notion that government
should be accountable for its actions. In order to verify
accountability, individuals must have access to government files.
Such access permits checks against the arbitrary exercise of
official power and secrecy in the political process.’ ”
(International Federation of Professional & Technical Engineers,
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal. 4th 319, 328–
329.)
D. DWP Is Not Entitled to a Reduction in the Fee Award
for Work Union Performed on Its Unsuccessful
“Collusion” Claims.
DWP contends the trial court abused its discretion in
awarding attorney fees for the work Union performed on its
“collusion” claims. The trial court found “Union was entitled to
make its collusion allegation and take discovery, even if it did not
bear fruit.” The court ordered DWP to be solely responsible for
the collusion fees.
As the trial court recognized, the party seeking attorney
fees need not prevail on all its alleged claims to qualify for an
award. (Harbor v. Deukmejian (1987) 43 Cal. 3d 1078, 1103.) The
successful party under section 1021.5 is the party that succeeds
22
on “ ‘ “any significant issue in litigation which achieves some of
the benefit the parties sought in bringing suit.” ’ ” (Maria P. v.
Riles (1987) 43 Cal. 3d 1281, 1292.)
A prevailing party who qualifies for an award under Code
of Civil Procedure section 1021.5 is entitled to compensation for
all hours reasonably spent by its counsel. (Serrano v. Unruh
(1982) 32 Cal. 3d 621, 632–633 (Serrano).) This includes fees for
proceedings “ ‘intertwined inextricably’ ” with the litigation.
(Wallace v. Consumers Cooperative of Berkeley, Inc. (1985)
170 Cal. App. 3d 836, 848.) There is no requirement that each
motion or opposition be successful to be reasonable. (Folsom v,
Butte County Assn. of Governments (1982) 32 Cal. 3d 668, 685.)
“Litigation often involves a succession of attacks upon an
opponent’s case; indeed the final ground of resolution may only
become clear after a series of unsuccessful attacks.
Compensation is ordinarily warranted even for unsuccessful
forays.” (City of Sacramento v. Drew (1989) 207 Cal. App. 3d
1287, 1303.)
The trial court did not abuse its discretion in finding Union
was entitled to explore the circumstances under which DWP
brought a writ and became actively involved in Union’s request
for MWD records. Union did not request records from DWP, and
it appears that the records sought were physically in the
possession of MWD. DWP’s basis for objecting to the disclosure of
records which it had previously disclosed to MWD was not clear
at the outset of the litigation. Further, DWP is a public agency,
yet it claimed it was not acting as an agency but was simply
standing in the shoes of its customers and representing their
privacy interests — an unusual position to say the least. Privacy
rights are personal and generally may not be asserted by anyone
23
other than the person whose rights are at risk. At the same time,
a public agency’s ability to seek judicial review of a CPRA request
is limited. It was and remains an open question whether a public
agency may bring a writ against another agency over disclosure
of records requested under CPRA. Had Union succeeded on its
collusion and standing arguments, the case would have been
resolved without the need for further litigation. Further,
although the trial court did not adopt Union’s positions on
standing and collusion, the court’s ruling did clarify the status of
DWP in this lawsuit, which assisted Union’s further litigation of
the case.
II. UNION’S APPEAL AND CROSS-APPEAL
Union appeals from the trial court’s denial of attorney fees
for its work on reply briefs to Intervener Utilities’ oppositions to
Union’s fee motion. Union does not otherwise object to the trial
court’s fee award. Union has filed a “protective” cross-appeal
seeking reapportionment of fees if part of its fee award is
reversed on appeal. In doing so, Union attempts to raise the
issue of DWP’s and Intervener Utilities’ standing to bring the
reverse-CPRA action. We question whether it may do so without
appealing from the trial court’s substantive ruling on that issue,
but assuming the standing challenge is properly before this court,
we would find it without merit. Further, the standing claim does
not open the door for us to consider generally whether the
problems created by reverse-CPRA actions mandate elimination
of such actions.
A. Union Was Entitled to Attorney Fees for Its Work on
the Separate Reply Briefs.
Intervener Utilities, DWP and MWD each filed its own
individual opposition to Union’s fee motion, and Union filed
24
individual reply briefs to each opposition. Union sought
$18,525.50 in fees for its work on those replies. The court
declined the request, but did not give a reason for the its denial.
We can discern no reason from the record before us.
Generally, the lodestar figure for an attorney fees award is
calculated by multiplying the hours reasonably worked by a
reasonable hourly rate. (Serrano, supra, 32 Cal.3d at p. 639.)
“The lodestar figure may then be adjusted, based on
consideration of factors specific to the case . . . . [Citation.] Such
an approach anchors the trial court’s analysis to an objective
determination of the value of the attorney’s services, ensuring
that the amount awarded is not arbitrary.” (PLCM Group, Inc. v.
Drexler (2000) 22 Cal. 4th 1084, 1095.) “[A]bsent circumstances
rendering an award unjust, the fee should ordinarily include
compensation for all hours reasonably spent, including those
relating solely to the fee.” (Serrano, at p. 624.) Here, the trial
court found Union’s attorney’s hourly rate reasonable. The court
did not make any finding that Union’s attorney expended too
many hours on any legal work. Thus, the lodestar figure for the
reply brief work was $18,525.50. The trial court did not identify
any factor or circumstance to support its fee reduction for that
work to zero.
Intervener Utilities posit that the trial court denied the
reply brief fees because the reply briefs were submitted one day
late and the footnotes did not use the proper font. While it is true
the reply briefs were filed late and with improper footnote fonts,
the trial court expressly stated that it exercised its discretion and
considered the replies. There in nothing in the trial court’s
written ruling on the fee motion which suggests that these
25
irregularities were the basis for the trial court’s denial of all
hours expended on the reply briefs.
We have reviewed the three reply briefs.7 While there were
common or overlapping issues applicable to more than one
opposition, the parties also made arguments specific to their
situation. It was reasonable for Union to address these unique
arguments in separate reply briefs. Thus, one brief replies to
MWD’s opposition and addresses MWD’s unique position as the
respondent in the CPRA cross-petition. A second brief replies to
Intervener Utilities’ arguments that as late intervening parties
who were not involved in the collusion issues, they should not be
responsible for fees incurred before they intervened or involving
the collusion issues.8 The third reply brief responds to public
policy arguments made by DWP.
At the same time, Union did not duplicate work. For
example, Union addressed the requirements of Code of Civil
Procedure section 1021.5 in the DWP reply brief and addressed
the reasonableness of the hourly rate and number of hours in
Intervener Utilities’ reply brief, and then incorporated those
arguments by reference into the other reply briefs. In fact, Union
began each brief by noting that the opposition briefs “filed by the
7 We previously granted Union’s July 8, 2019 motion to
augment the record with these briefs.
8 The trial court’s written decision considered and rejected
Intervener Utilities’ argument that they could not be responsible
for fees incurred by Union before Intervener Utilities joined the
case. The court also noted Intervener Utilities would have
benefited from any collusion between MWD and DWP, although
the court ultimately apportioned the collusion-related fees solely
to DWP.
26
other parties raise many of the same arguments in opposition to
the Union-Tribune’s fee motion, even incorporating arguments
made by the other parties, [and so] the arguments set forth in the
Union-Tribune’s two additional reply briefs . . . are incorporated
herein.”
On the record before us, we see no circumstances or
findings supporting a reduction of the fee award for work on the
reply briefs. Accordingly, we reverse the denial of attorney fees
for work on the reply briefs. We order an additional $12,350.33
in attorney fees added to the award against DWP and Intervener
Utilities.9 We do not order fees awarded for work on the MWD
reply brief, as Union expressly agreed that the existing award
against MWD was reasonable.
B. Union’s Fact-Dependent Claims That DWP and
Intervener Utilities Lacked Standing to Bring the
Reverse-CPRA Action Are Not Cognizable on This
Appeal.
Union repeats several arguments it raised in the trial
court: DWP and Intervener Utilities had no standing to assert
the privacy rights of third parties; if DWP and Intervener
Utilities co-owned the records with MWD, they lacked standing
to sue MWD because a member of a legislative body has no
standing to sue its parent body; and if DWP and the Intervener
Agencies had co-control over the records, they were public
agencies who lacked standing to seek a court determination of
their duty to disclose those records.
9 The briefs are of equal length and equal complexity.
Accordingly, we apportion the fees equally among the parties.
27
We recognize it is well settled that “ ‘contentions based on a
lack of standing involve jurisdictional challenges and may be
raised at any time in the proceeding.’ ” (Californians for
Disability Rights v. Mervyn’s, LLC (2006) 39 Cal. 4th 223, 233;
Rialto Citizens for Responsible Growth v. City of Rialto (2012)
208 Cal. App. 4th 899, 912 [standing may be raised for the first
time on appeal].) However, this general rule is not helpful under
the factual circumstances of this appeal. Here, Union is not
raising the issue of standing for the first time on appeal. Union
devoted a substantial amount of effort to the issue of standing in
the trial court. Union lost after the trial court made factual
determinations of disputed evidence and found DWP and the
Intervener Utilities had standing based on those facts. Union did
not appeal from the trial court’s substantive rulings in this case.
We do not believe the general rule that standing may be raised at
any time was intended to apply to parties who lose on standing in
the trial court, fail to appeal from that ruling, and then attempt
to raise the same fact-dependent arguments in an appeal from a
post-judgment order awarding attorney fees. Accordingly, we
find Union’s standing argument is not cognizable on this appeal.
C. Union’s Claim That Reverse-CPRA Actions Cause
Problems Which This Court Should Now Remedy Is
Not Cognizable on This Appeal.
Union urges us to recognize the problems caused by
reverse-CPRA actions and to “remedy” the issue. We certainly
recognize reverse-CPRA actions to prevent disclosure have
created problems for requesting parties, but Union did not appeal
from the trial court’s rulings permitting such actions. Thus, the
issue is not before us on appeal.
28
Union contends it may contest the viability of a reverse-
CPRA action because it may contest DWP’s and Intervener
Utilities’ standing at any point. As we explained above, we do not
believe Union may raise an issue decided by the trial court
without appealing from that decision. Even if we were to treat
this standing claim as a pure legal issue which was not squarely
before the trial court, we would see no basis to find DWP,
Intervener Utilities, or any person or entity seeking to stop
disclosure of the private information of individuals lacks standing
to bring an action to prevent disclosure. In enacting CPRA, the
Legislature was “mindful of the right of individuals to privacy”
(§ 6250), but provided no mechanism for individuals to enforce
those rights. Thus, CPRA itself does not clearly forbid actions
outside CPRA to prevent disclosures alleged to violate privacy
rights.
Current law does not clearly limit reverse-CPRA actions to
requests which involve the alleged private information of
individuals. Different considerations may be involved in reverse-
CPRA actions not based on the protection of privacy rights. We
are not faced with such an action however, and we express no
opinion on the viability of such actions.
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DISPOSITION
We modify the attorney fees award against City of Los
Angeles Department of Water and Power and the Intervener
Utilities (West Basin Municipal Water District, Foothill
Municipal Water District, and Upper San Gabriel Municipal
Water District) to add $12,350.33 for a total of $148,996.15. We
affirm the court’s order awarding attorney fees in all other
respects. DWP and Intervener Utilities shall pay Union’s costs
on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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