Burgess v. Coronado Unified School Dist. ( 2020 )


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  • Filed 12/24/20
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    RANDALL BURGESS,                           D076263
    Plaintiff and Respondent,
    v.                                  (Super. Ct. No. 37-2018-00035086-
    CU-WM-CTL)
    CORONADO UNIFIED SCHOOL
    DISTRICT,
    Defendant and Respondent;
    VOICE OF SAN DIEGO,
    Real Party in Interest and
    Appellant.
    APPEAL from an order of the Superior Court of San Diego County,
    Richard S. Whitney, Judge. Affirmed.
    Law Office of Felix Tinkov and Felix M. Tinkov for Real Party in
    Interest and Appellant.
    herronlaw and Matthew V. Herron for Plaintiff and Respondent.
    No appearance for Defendant and Respondent.
    News outlet Voice of San Diego (Voice) requested records from the
    Coronado Unified School District (District) under the California Public
    Records Act (PRA; Gov. Code, § 6250 et seq.) concerning its employee Randall
    Burgess, who had been the subject of unsubstantiated molestation
    allegations. Burgess sued the District to enjoin disclosure. After Voice
    intervened in his lawsuit, the trial court ordered the District to disclose
    publicly available court filings and materials submitted to the District at a
    public hearing. Thereafter, it denied Voice’s request for attorney’s fees
    pursuant to Code of Civil Procedure section 1021.5,1 finding the production of
    these limited materials did not confer a significant public benefit.
    Voice argues the trial court misconstrued the significant benefit
    requirement under section 1021.5 and abused its discretion in denying its fee
    request. Finding no error, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    Voice made its first records request to the District in November 2017,
    seeking “[a]ll public records relating to any substantiated claims of sexual
    misbehavior and related misconduct for any employee, official, contractor,
    agent or volunteer of the District arising within the last 10 years.” As it later
    clarified, “substantiated claims” included yet-unproven complaints that
    appeared well founded. Upon receiving this request, the District informed
    Burgess that it intended to produce certain responsive documents, which
    prompted Burgess to initiate this “reverse-PRA” petition for writ of mandate
    1     Unless otherwise specified, further statutory references are to the Code
    of Civil Procedure.
    2
    and request for injunctive relief to prevent their disclosure.2 Voice filed a
    second records request in August 2018, seeking “[a]ll letters, emails, and
    other correspondence submitted to Coronado Unified School District with
    regard to Randall Burgess starting on January 1, 2017 through to the
    present,” including “comments delivered to the school board by members of
    the public at one or more public hearings.”
    The parties appeared before Judge Judith Hayes in October 2018.
    Because Voice’s request to intervene was unopposed, the court granted it. It
    then turned to Burgess’s request for preliminary injunctive relief. The
    District submitted 27 pages of records under seal that it believed were
    responsive to Voice’s first records request. Judge Hayes concluded that five
    of the pages did not “relate to allegations of a ‘substantial nature’ and
    enjoined their disclosure.” But she reached a different result as to the
    remaining 22 pages, which consisted of publicly available filings in Burgess’s
    separate lawsuit against the District seeking his reinstatement.3
    Accordingly, the District produced 22 pages consisting of Burgess’s writ
    petition for reinstatement, the District’s Answer, and extraneous notices
    contained in the case file. Judge Hayes did not make any rulings in reference
    to Voice’s second records request, directing the parties to meet and confer
    2     “In a ‘reverse-PRA’ action, an interested party seeks a judicial ruling
    precluding a public agency from disclosing allegedly confidential documents
    pursuant to the California Public Records Act.” (Carlsbad Police Officers
    Assn. v. City of Carlsbad (2020) 
    49 Cal.App.5th 135
    , 141, fn. 2 (Carlsbad); see
    generally Marken v. Santa Monica-Malibu Unified School Dist. (2012) 
    202 Cal.App.4th 1250
    , 1267 (Marken).)
    3     That case, in which Burgess unsuccessfully claimed his placement on
    administrative leave violated the Education Code and his collective
    bargaining rights, was the subject of a prior appeal. (Burgess v. Coronado
    Unified School District (Oct.1, 2018, D072976) [nonpub. opn.].)
    3
    over whether Burgess had to file a separate petition to enjoin production of
    any documents responsive to that request.
    When Judge Hayes retired, the case was transferred to Judge Richard
    Whitney. In November 2018, Burgess filed an amended petition for writ of
    mandate to enjoin the District from disclosing documents responsive to
    Voice’s second request. He once again sought a preliminary injunction.
    Judge Whitney denied the request for injunctive relief in January 2019,
    reasoning that Burgess failed to show the requested documents concerned
    “complaints of a confidential nature.” The documents discussed unproven
    allegations that Burgess had molested a student, but these allegations “were
    known to the public” and were what “prompted the District to put [Burgess]
    on leave and for the public to submit comments in support of or against
    [him].” Burgess had not shown that the records were or should have been
    part of his personnel file, and thus the documents would be ordered released.
    Accordingly, the District was ordered to release a second production to Voice
    consisting of a student complaint describing alleged molestation; two short
    status update letters from the Commission on Teacher Credentialing to the
    District, 74 pages of e-mails from parents that alternately praised or
    criticized Burgess, and a petition signed by 1,144 parents seeking Burgess’s
    reinstatement. Before the District could send these documents to Voice,
    Burgess released them to another media outlet. Shortly thereafter, Burgess
    voluntarily dismissed the case.
    4
    In May, Voice filed a motion seeking $78,720 in attorney’s fees
    pursuant to section 1021.5.4 Voice claimed that it would be entitled to fees
    under the PRA had it sued the District (Gov. Code, § 6259, subd. (d)), and
    private attorney general act fees were therefore appropriate for its successful
    intervention in Burgess’s reverse-PRA suit. According to Voice, it met the
    elements of section 1021.5 by prevailing in efforts to enforce an important
    public right.
    Opposing Voice’s motion, Burgess argued, among other things, that the
    District’s opposition rendered Voice a “mere observer”; Judge Hayes enjoined
    disclosure of key documents responsive to the first records request; and the
    documents that were disclosed were “so lacking in substance” that Voice
    admitted as much in bringing its own PRA action against the District.
    Burgess lodged a copy of the separate writ petition and complaint Voice filed
    against the District.5 In it Voice alleged the District “in total, disclosed a de
    minimis set of records including publicly available court filings made by
    4     Section 1021.5 provides in relevant part: “Upon motion, a court may
    award attorneys’ fees to a successful party against one or more opposing
    parties in any action which has resulted in the enforcement of an important
    right affecting the public interest if: (a) a significant benefit, whether
    pecuniary or nonpecuniary, has been conferred on the general public or a
    large class of persons, (b) the necessity and financial burden of private
    enforcement, or of enforcement by one public entity against another public
    entity, are such as to make the award appropriate, and (c) such fees should
    not in the interest of justice be paid out of the recovery, if any.”
    5      Exhibits that Burgess lodged are not included in the record on appeal.
    Because it was properly before the trial court and formed a basis for its fee
    ruling, we augment the record on our own motion with a copy of the verified
    petition for writ of mandate and complaint for declaratory and injunctive
    relief filed in Voice of San Diego v. Coronado Unified School District (Super.
    Ct. San Diego County, 2019, No. 37-2019-00012628-CU-WM-CTL). (Cal.
    Rules of Court, rule 8.155(a)(1)(A).)
    5
    Burgess in response to his suspension by the DISTRICT and public letter[s]
    and comments made to the DISTRICT relating to Burgess.”
    The court heard argument on the fee motion in June 2019. Responding
    to the court’s tentative to deny the request, Voice noted that “any member of
    the public seeking records certainly has no idea of the content of the records
    they are seeking.” Although many of the produced records turned out to be
    publicly available, Voice “couldn’t know what those records were” when it
    intervened. Judge Hayes had prevented Voice from expanding the scope of
    litigation, which is what prompted the separate suit. By calling the
    production de minimis in its own pleading, Voice was referring to the volume
    of materials produced, not their substantive nature. The court took the
    matter under submission.
    In a written order, the court later confirmed its tentative and denied
    Voice’s motion. It reasoned that disclosure “was limited to public court filings
    and public letters and comments made to [the District].” Following both
    productions, Voice “sued the District and claimed the disclosure was
    ‘de minimis,’ ” and the court agreed with this assessment. Voice “did not
    cause the District or [Burgess] to disclose any public records of any
    significance that was not already available to the public in some manner.”
    Therefore, in the court’s view, attorney’s fees were not warranted.
    6
    DISCUSSION
    Voice takes issue with the court’s finding that its participation did not
    confer a significant public benefit. As we explain, the court properly
    construed the “significant benefit” requirement and did not abuse its
    discretion in finding this factor unmet.6
    1.    Legal Principles
    Section 1021.5 permits a trial court to award attorney’s fees to a
    successful party in any action that “(1) enforced an important public right,
    (2) conferred a significant public benefit, and (3) is of a type that private
    enforcement was necessary, and the financial burden justifies subsidizing the
    successful party’s attorneys.” (Carlsbad, supra, 49 Cal.App.5th at p. 145,
    citing Conservatorship of Whitley (2010) 
    50 Cal.4th 1206
    , 1214, 1216−1217
    6      Voice seeks judicial notice of the materials that were ordered produced,
    arguing it is required to “demonstrate the expansive set of materials
    recovered through the underlying litigation.” Burgess opposes the request,
    maintaining the materials were not placed before the trial court with the fee
    motion. And without the records “at the center of this case,” he claims we
    lack an adequate record to review the fee ruling on the merits. We reject
    Burgess’s contentions and grant Voice’s request for judicial notice. (See Evid.
    Code, §§ 452, subd. (d), 459.) As his order denying attorney’s fees makes
    clear, Judge Whitney knew the scope of documents initially filed under seal
    and ordered produced. He ordered one production and is presumed to have
    been aware of the prior case history. (See Save Our Uniquely Rural
    Community Environment v. County of San Bernardino (2015) 
    235 Cal.App.4th 1179
    , 1186, fn. 3 [presuming that the judge who took over the
    case after first judge’s retirement “was familiar with the issues raised in the
    case and had sufficient expertise to evaluate the attorney fees request”].)
    7
    (Whitley).)7 “Although the statute is phrased in permissive terms, a court’s
    discretion to deny attorney’s fees to a party that meets the statutory
    requirements of section 1021.5 is limited. [Citation.] Unless special
    circumstances would render an award of 1021.5 fees unjust, fees must be
    awarded under the statute where the statutory criteria are met.” (Carlsbad,
    at p. 145.) A successful intervener seeking records disclosure in a reverse-
    PRA action is entitled to seek attorney’s fees under section 1021.5. (Ibid.;
    Pasadena Police Officers Association v. City of Pasadena (2018) 
    22 Cal.App.5th 147
    , 164−166; City of Los Angeles v. Metropolitan Water District
    of Southern California (2019) 
    42 Cal.App.5th 290
    , 306.)
    The trial court denied Voice’s fee request because it did not find that
    the second eligibility criterion had been met. In its view, the documents that
    were ordered produced did not confer a significant public benefit. “On appeal
    from an award of attorney fees under 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.)
    2.    The trial court applied the proper standard.
    Voice first contends that the trial court misconstrued the significant
    benefit requirement as a matter of law. It asserts that it conferred a
    significant public benefit by securing public access to government records
    7      The final statutory factor listed in section 1021.5—whether the interest
    of justice disfavors fees being paid out of any recovery—is not relevant where
    a lawsuit produces no monetary recovery. (Woodland Hills Residents Assn. v.
    City Council (1979) 
    23 Cal.3d 917
    , 935 (Woodland Hills); see Carlsbad, supra,
    49 Cal.App.5th at p. 145.)
    8
    that Burgess sought to shield. But this argument conflates two statutory
    factors. To meet the eligibility criteria, a litigant must show both that the
    action “has resulted in the enforcement of an important right affecting the
    public interest” and that it has conferred “a significant benefit, whether
    pecuniary or nonpecuniary . . . on the general public or a large class of
    persons.” (§ 1021.5; see Whitley, 
    supra,
     50 Cal.4th at p. 1214.) We can accept
    that Voice vindicated an important public right in securing access to
    government records about potential teacher misconduct that Burgess sought
    to withhold. But that does not answer the separate question whether the
    records thereby produced resulted in a significant public benefit. Any other
    construction would render part of section 1021.5 superfluous, which we seek
    to avoid. (See Vanderpol v. Starr (2011) 
    194 Cal.App.4th 385
    , 395.)
    As a policy matter, Voice suggests that the significant benefit element
    under section 1021.5 must be expansively construed to curtail abusive
    reverse-PRA litigation. Understanding this argument requires additional
    background. In public records litigation, the PRA grants attorney’s fees to a
    prevailing plaintiff; a prevailing agency receives fees only if the requester’s
    case “is clearly frivolous.” (Gov. Code, § 6259, subd. (d).) This fee-shifting
    aims to encourage members of the public to seek judicial enforcement of their
    rights to access public records. (Filarsky v. Superior Court (2002) 
    28 Cal.4th 419
    , 427 (Filarsky).) But attorney’s fees under the PRA are unavailable to an
    intervener in a reverse-PRA suit. (Marken, supra, 202 Cal.App.4th at
    p. 1268; National Conference of Black Mayors v. Chico Community
    Publishing, Inc. (2018) 
    25 Cal.App.5th 570
    , 583, 587.) Instead, such an
    intervener is limited to seeking fees under section 1021.5 where it meets all
    eligibility criteria. (See Carlsbad, supra, 49 Cal.App.5th at pp. 145−146.)
    9
    Against this backdrop, Voice criticizes Marken for importing the
    reverse-PRA procedure from federal law without addressing the fact that, in
    its view, federal law (unlike the PRA) permits a fee award in reverse-FOIA
    suits.8 Voice further maintains that Marken unintentionally undermined the
    holding of Filarsky that public agencies may not file preemptive declaratory
    relief actions to determine their disclosure obligations under the PRA.
    (Filarsky, 
    supra,
     28 Cal.4th at p. 432.) By approving a nonstatutory reverse-
    PRA right of action, Voice believes Marken facilitates “lawsuits from straw
    men in the form of unions and public employees whose positions align with
    the agencies.”9 It urges us to remedy these perceived adverse effects by
    construing the significant benefit element of section 1021.5 expansively in the
    reverse-PRA context. Drawing from authorities finding a significant benefit
    when important statutory and constitutional rights are enforced in the public
    interest, it suggests that “as a general rule, the significant benefit element of
    [Code of Civil Procedure] section 1021.5 is met when a party prevails in
    securing the disclosure of public records.”
    8      The Freedom of Information Act (FOIA) (
    5 U.S.C. § 552
     et seq.), is the
    federal counterpart to the PRA. (See Filarsky, 
    supra,
     28 Cal.4th at p. 425.)
    It permits a court to “assess against the United States reasonable attorney
    fees and other litigation costs reasonably incurred in any case under this
    section in which the complainant has substantially prevailed.” (
    28 U.S.C. § 552
    (a)(4)(E)(i).) In restating Voice’s argument, we express no opinion as to
    its premise—i.e., whether FOIA in fact authorizes attorney’s fees in a
    reverse-FOIA action.
    9     Whether an employee filing a reverse-PRA suit is acting as a “straw
    man” for a public agency is fact-dependent. There was no cooperation
    between Burgess and the District here to suggest that he initiated this
    reverse-PRA suit at the District’s behest to prevent disclosure, in
    circumvention of Filarsky, supra, 28 Cal.4th at page 432.
    10
    It is certainly true that “the ‘significant benefit’ that will justify an
    attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain
    but, in some cases, may be recognized simply from the effectuation of a
    fundamental constitutional or statutory policy.” (Woodland Hills, supra,
    23 Cal.3d at p. 939.) But that does not settle the matter:
    “Of course, the public always has a significant interest in
    seeing that legal strictures are properly enforced and thus,
    in a real sense, the public always derives a ‘benefit’ when
    illegal private or public conduct is rectified. Both the
    statutory language (‘significant benefit’) and prior case law,
    however, indicate that the Legislature did not intend to
    authorize an award of attorney fees in every case involving
    a statutory violation. We believe rather that the
    Legislature contemplated that in adjudicating a motion for
    attorney fees under section 1021.5, a trial court would
    determine the significance of the benefit, as well as the size
    of the class receiving benefit, from a realistic assessment,
    in light of all the pertinent circumstances, of the gains
    which have resulted in a particular case.” (Id. at
    pp. 939−940.)
    In other words, the significant benefit requirement of section 1021.5
    requires more than a mere statutory violation. It would therefore go too far
    to construe this factor to authorize attorney’s fees in every or nearly every
    reverse-PRA suit where the court orders some disclosure. Instead, a trial
    court must make a realistic assessment of the gains achieved in a reverse-
    PRA case, just as it would in any other matter. (Woodland Hills, supra,
    23 Cal.3d at pp. 939−940.) To the extent Voice believes section 1021.5 should
    be broadened in the reverse-PRA context or thinks the PRA should itself
    authorize attorney’s fees in reverse-PRA suits consistent with federal law,
    these contentions are properly addressed to the Legislature, not the courts.
    (See, e.g., Williams v. Superior Court (1993) 
    5 Cal.4th 337
    , 351−352 [courts
    11
    may not read FOIA language into the PRA that the PRA itself does not
    contain].)
    3.    The trial court did not abuse its discretion in finding no substantial
    benefit.
    Turning to the record, Voice argues that the trial court abused its
    discretion in denying attorney’s fees. It claims that records pertaining to
    alleged sexual misconduct “are inherently of significant benefit to the public”
    because they “reflect matters of substantial concern.” It further asserts that
    the production of court filings and public comments aligns with the PRA’s
    transparency goals. In evaluating whether the court erred in its factual
    determination, our standard is “deferential”: we evaluate if there was a
    reasonable basis for the denial and reverse only if it “ ‘ “exceeds the bounds of
    reason and results in a miscarriage of justice.” ’ ” (Lafferty v. Wells Fargo
    Bank, N.A. (2018) 
    25 Cal.App.5th 398
    , 420.) As we explain, the trial court
    reasonably found that Voice failed to secure a significant public benefit. (Id.
    at pp. 421−422 [no abuse of discretion where “the record supports the trial
    court’s finding the [movant] failed to secure a significant benefit for the
    public”].)
    Voice made two separate records requests. In response to the first,
    which sought records of employee sexual misconduct, the court ordered
    production of publicly available court filings connected to Burgess’s writ
    petition seeking reinstatement. As Voice explained at the hearing on
    Burgess’s preliminary injunction motion, its second request sought “public
    comments made at public hearings -- emails, correspondence, letters sent to a
    public agency by members of the public.” Denying injunctive relief, the court
    ordered the District to produce letters and comments submitted by parents at
    a public hearing in October 2017. Although the original molestation claim
    was among these records, the court ordered its disclosure precisely because
    12
    the allegations were already publicly known.10 Carefully assessing the gains
    from the documents that were ordered produced, the trial court reasonably
    concluded that Voice’s intervention conferred only an insubstantial benefit.
    The court’s reasoning is further supported by Voice’s own verified
    pleading. Challenging the District’s conduct, Voice alleged that the first
    records production “amount[ed] to nothing more than Burgess’s complaint
    against the DISTRICT for the suspension he endured” and had “nothing to do
    with the underlying allegations, the DISTRICT’s investigation of the
    allegations, if any, and the outcome of that investigation.” The second
    production fared no better; Voice explained that it “offer[ed] no additional
    documents relating to the DISTRICT’s investigation of the claims of sexual
    misconduct made against Burgess nor the outcome of such an investigation or
    investigations if they were performed, and instead release[d] only public
    comments and correspondence relating to Burgess.” As Voice put it, “[T]he
    DISTRICT, in total, disclosed a de minimis set of records including publicly
    available court filings made by Burgess in response to his suspension by the
    DISTRICT and public letter and comments made to the DISTRICT relating
    to Burgess.”
    Voice renews its argument on appeal that the records were de minimis
    in volume rather than substance. But as we read its pleading, Voice sued the
    District precisely because both sets of records revealed almost nothing
    regarding the underlying allegations or the District’s actions in response. In
    10     The court’s ruling did not specifically address letters from the
    Commission on Teacher Credentialing to the District. But these letters
    likewise did not disclose information that was confidential in nature. In
    September 2017, the Commission sent a two-line acknowledgement letter to
    the District confirming receipt of the District’s letter. It followed up with a
    brief letter in January 2018 indicating “no adverse action is warranted at this
    time”—a fact apparent given Burgess’s reinstatement.
    13
    other words, there was no substantive benefit. The court reasonably reached
    the same conclusion based on its review of the records produced.
    Sexual misconduct allegations concerning a school employee and
    Voice’s vindication of rights under the PRA undoubtedly implicate matters of
    substantial public concern. But that does not resolve whether Voice’s
    intervention in this case, facilitated by the efforts of its counsel, produced a
    substantial public benefit. The mere possibility that intervention might
    result in a substantial public benefit does not mean a significant benefit was
    ultimately conferred. (See Woodland Hills, supra, 23 Cal.3d at p. 939
    [section 1021.5 does not authorize attorney’s fees “in every case involving a
    statutory violation”].) A court “must carefully walk the line between
    unreasonably transmuting section 1021.5 into an unwarranted cornucopia of
    attorney fees for those who intervene in, or initiate litigation against, private
    parties under the guise of benefiting the public interest while actually
    performing duplicative, unnecessary, and valueless services, and providing
    appropriate compensation under that statute in cases where the colitigating
    private party does render necessary, significant services of value and benefit
    to the public.” (Committee to Defend Reproductive Rights v. A Free Pregnancy
    Center (1991) 
    229 Cal.App.3d 633
    , 643−644.) Realistically assessing the
    value of materials produced, the trial court reasonably found that Voice’s
    intervention in this case led to the release of only insignificant, insubstantial
    records, which did not warrant an award of attorney’s fees.
    Without fee-shifting, Voice claims that few news outlets would
    intervene in actions like this to protect public access. It notes that a party
    requesting records under the PRA “has no access to the content of the records
    before securing the court’s order for disclosure, such that denial of a fee
    motion after prevailing in the substantive action results in a subjective
    14
    lottery.” While these observations surely underscore the challenges of
    intervention in reverse-PRA litigation, the substantial benefit requirement
    also serves to discourage wasteful litigation. On our record, the court acted
    reasonably in denying Voice’s request.
    DISPOSITION
    The order denying Voice’s request for attorney’s fees is affirmed.
    Burgess is entitled to his appellate costs.
    DATO, J.
    WE CONCUR:
    O’ROURKE, Acting P. J.
    AARON, J.
    15
    

Document Info

Docket Number: D076263

Filed Date: 12/24/2020

Precedential Status: Precedential

Modified Date: 12/24/2020