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S226645
IN THE SUPREME COURT OF CALIFORNIA
No. S226645
IN THE SUPREME COURT OF CALIFORNIA
By:
No. S226645
IN THE SUPREME COURT OF CALIFORNIA
TABLE OF CONTENTS
I.
INTRODUCTION .......................................................................................1
II.
III.
B.
C.
IV.
V.
VI.
VII.
TABLE OF AUTHORITIES
Cases
Bighorn- Desert View Water Agency v. Verjil
39 Cal.4th 205, 214 (2006). 17
CBS, Inc. v. Block
42 Cal. 3d 646, 653 (1986).. 7
City of New Haven v. FOIC
205 Conn. 767, 535 A.2d 1297 (1988).. 13
City Pages v. State of Minnesota
655 N.W.2d 839, 844-847 (Minn. App. 2003).. 13
Clarke v. American Commerce Natl Bank
974 F.2d 127, 129-130 (9th Cir. 1992) 13, 17
Commission on Peace Officers Standards and Training v. Superior Court
(CPOST) 42 Cal. 4th 278, 291(2007)6
Costco Wholesale Corp. v. Superior Court
47 Cal. 4th 725, 743(2009)... 11, 13
County of Los Angeles v. Superior Court (Anderson-Barker)
211 Cal. App. 4th 57(2012) 12, 17, 21
Cypress Media, Inc. v. City of Overland Park
997 P.2d 681, 692-93 (Kan. 2000).13
Doe 2 v. Superior Court
132 Cal. App. 4th 1504, 1522 (2005)... 4
Hotel Employees and Restaurant Employees v. Davis
(1999) 21 Cal.4th 585, 602
17
ii
People v. Arias
45 Cal. 4th 169, 180 (2008) 10
People v. Sinohui
28 Cal. 4th 205, 215-216 (2002). 17
Recorder v. Commission on Judicial Performance
72 Cal. App.4th 258, 269-274 (1999). 17
Sierra Club v. Superior Court
57 Cal. 4th 157, 166-67 (2013). 4
Solin v. OMelveny & Myers
89 Cal.App. 4th 451, 457 (2001).. 9
State Board of Equalization v. Superior Court
10 Cal. App. 4th 1177, 1187 (1992). 8
Wellpoint Health Networks, Inc. v. Superior Court
59 Cal. App. 4th 110, 123 (1997). 4
Rules
Evidence Code section 952. 6, 10, 17
Government Code section 6253(b).. 7
Government Code section 6250...4
Constitutional Provisions
Article I, section 3(b)(2) of the California Constitution. passim
iii
I.
INTRODUCTION
This case involves access to information shedding light on the spending of
large amounts of public money. Los Angeles County spent $118.9 million in
litigation expenses in fiscal year 2015-15, up 24 percent from the $85.6 million it
spent in fiscal year 2013-14 .1 The $118.9 million it spent in the most recent
fiscal year included $59.9 million in judgments and settlements and an almost
equal amount, $59 million, in attorneys fees and costs. Yet if the County has its
way, the taxpayers who foot that bill will be deprived of such basic information as
who worked how many hours on what day and at what hourly rate, all because
such a basic thing as attorney invoices would be swallowed by the attorney-client
privilege.
That has never been and should not be the law. The Countys position
defies the required narrow construction of statutes required by article I, section
3(b)(2) of the California Constitution, and it ignores what this Court has described
as the strong public interest in knowing how the government spends its money.
International Federation of Professional and Technical Engineers Local 21 v.
Superior Court (Contra Costa Newspapers) 42 Cal. 4th 319, 333 (hereafter
IFPTE). The Countys position would deny the public access to spending
records, which makes it possible for members of the public to expose
corruption, incompetence, inefficiency, prejudice and favoritism. (Id. at 333,
internal quotation marks omitted.)
This Court observed in the IFPTE case, It is difficult to imagine a more
critical time for public scrutiny of its governmental decision-making process than
when the latter is determining how it shall spend public funds. (42 Cal. 4th at
County Counsel Annual Litigation Cost Report Fiscal Year 20142015, subject of accompanying Motion for Judicial Notice.
334, citation omitted.) The Countys position would block that public scrutiny in
a case which would serve none of the core interests advanced by the attorneyclient privilege.
decision of the Court of Appeal and deny the countys Petition for Writ of
Mandate.
II.
Publishing Company, LLC, publishes the Los Angeles Times, the states largest
newspaper, and a number of smaller community papers. Tribune Publishing
Company, LLC also publishes the San Diego Union-Tribune. Several recent Los
Angeles Times articles depended on using the California Public Records Act to
obtain fee invoices from public agencies to reveal government spending on legal
fees. These included UCLAs spending $4.5 million in legal fees to defend a
chemistry professor in a fatal lab fire (http://www.latimes.com/local/education/lame-ucla-legal-20141016-story.html) and a water district spending $5 million in
legal fees in 10 months defending a lawsuit brought by local cities over the
districts pumping rates, which was about $1 million more than what attorneys for
the plaintiff cities charged over five years
(http://www.latimes.com/local/california/la-me-huge-legal-fees-20150513story.html).
McClatchy Newspapers, Inc. publishes The Sacramento Bee, The Fresno
Bee, The Modesto Bee, and the Merced Sun-Star.
The First Amendment Coalition (FAC) is a non-profit organization
whose members include citizens and media organizations. FACs core mission is
to promote the publics right to know what its government is doing. It has
participated as an amicus in all of this Courts recent Public Records Act cases.
support base throughout the state, reflected in a board comprising equal numbers
of directors, including lawyers, from the fields of journalism, government service,
and community watchdog advocacy. Further information about its mission and
activities is available at https://www.calaware.org/calaware.
III.
the County both as the party resisting disclosure of public records and as the party
claiming an attorney-client privilege.
A consistent past practice of disclosure is relevant in determining whether
records should be disclosed. (IFPTE, supra, 42 Cal.4th at 337 [citing past practice
of disclosing salaries in ruling that named public employees salaries must be
disclosed].
There is a long history of disclosure including in Los Angeles County
of attorney invoices. Going at least as far back as 1991, Los Angeles County was
producing the costs billed by private firms to the county to defend lawsuits. See
Los Angeles Times January 22, 1991 article entitled $6 Million Spent by County
in Voting Case: Lawsuit: The legal bill in the losing battle will rise because
plaintiffs' costs must be paid. Supervisors defend the expense,
http://articles.latimes.com/1991-01-22/local/me-627_1_legal-expenses [showing
that Los Angeles County spent $6 million in fighting a voting-rights lawsuit].
The Court of Appeals decision thus overturns decades of practice in this state of
turning over redacted invoices, with nary a problem about revealing client
confidences. The Court of Appeals decision thus solves a problem which
doesnt exist revealing client confidences and endorses keeping secret a
problem that does exist, outside attorneys in some cases spending unusually high
amounts of taxpayer money with little oversight from the bureaucrats who hire
them.
The right of access is most clear, and most essential, when the spending of
public money is at issue. As this Court observed in International Federation of
Professional and Technical Engineers Local 21 v. Superior Court (hereafter
IFPTE) (2007) 42 Cal. 4th 319, 334, It is difficult to imagine a more critical
time for public scrutiny of its governmental decision-making process than when
the latter is determining how it shall spend public funds.
The Court of Appeal here paid lip service to the constitutional mandate of
broad construction of statutes favoring access, but largely ignored it. Instead, it
broadly construed Evidence Code section 952, the attorney-client privilege, in a
way that blocks all access to attorney invoices to public agencies, rather than
simply providing for the ability of public agencies to redact privileged portions of
an invoice such as descriptions of the content of an attorney-client communication
or descriptions of specific topics researched by an attorney.
This Court has rejected such an all or nothing or in this case nothing
approach in Public Records Act cases. In Commission on Peace Officers
Standards and Training v. Superior Court (CPOST) (2007) 42 Cal. 4th 278,
291, this Court rejected a broad interpretation of the term personnel files which
would shield an entire file from disclosure, observing, In light of the
Legislatures policy favoring disclosure of public records, the court [in an earlier
case] concluded it was unlikely that the Legislature intended an all or nothing
approach.
Here, the Court of Appeals ruling takes an all or nothing approach,
leaving the public with nothing in the way of information about how tens of
millions of public dollars are spent. A typical attorney-client invoice contains
virtually nothing in the way of confidential information: it will have pages upon
pages of descriptions of what an attorney did (attended a deposition, made a court
appearance), virtually none of which is confidential. The confidential parts can
easily be redacted, and are redacted in fee motions. For example, if the invoice
says phone call with client re whether to raise waiver argument, or phone call
with client regarding whether x should be part of direct examination, everything
after the re can be redacted but the rest including obviously how much time
was spent and what the rate is should be disclosed.
The Court of Appeals decision that entire invoices are privileged also
disclosure of an agencys working law. On the other side of the equation, the
Board overstates the burden of segregating the exempt from the nonexempt
material. As noted, the record contains exemplars of similar documents the Board
has disclosed in the past with confidential information excised. ... [S]egregation
here would not impose a burden on the Board to inquire from numerous outside
sources whether information contained on the documents is confidential. (Id. at
1190.)
Many of the rules on segregability derive from Northern California Police
Practices Project v. Craig (1979) 90 Cal. App. 3d 116, 123-124. In that case, the
Court of Appeal held that agencies must endeavor to segregate and disclose
nonsensitive information in records rather than withhold them. Id.
Undoubtedly, the requirement of segregation casts a tangible burden on
governmental agencies and the judiciary, the court explained. Nothing less will
suffice, however, if the underlying legislative policy of the PRA favoring
disclosure is to be implemented faithfully. If the burden becomes too onerous,
relief must be sought from the Legislature. Id.
Nothing in Evidence Code section 952 or this Courts attorney-client
privilege jurisprudence mandates or justifies departure from these settled
principles in a Public Records Act case. Evidence Code section 952s definition
of confidential communication states that it includes a legal opinion formed
and the advice given by the lawyer in the course of that relationship. The
purpose of the privilege is to promote full and open discussion of the facts and
tactics surrounding individual legal matters. Mitchell v. Superior Court (1984)
37 Cal. 3d 591, 599; Solin v. OMelveny & Myers (2001) 89 Cal.App. 4th 451,
457. The dominant purpose of an attorneys invoice is to get paid, not to
convey legal advice. (See Montebello Rose Co. v. Agricultural Labor Relations
Board (1981) 119 Cal. App. 3d 1, 32 [communications were not privileged unless
10
B.
The Court of Appeals decision upset what virtually all attorneys have
always taken for granted and conflicted with another Second District decision
only three years old. In County of Los Angeles v. Superior Court (Anderson-
11
Barker) (2012) 211 Cal. App. 4th 57 (hereafter Anderson-Barker), the Court of
Appeal held that a party to a pending lawsuit against a public entity can obtain
documents under the Public Records Act relating to the attorney fees charged by
litigation counsel for the public entity. (Id. at 60.) In that case, as here, a Public
Records Act petition was filed against the County of Los Angeles seeking access
to invoices submitted to the County by law firms defending it. (Id. at 61.) In that
case, as here, the County argued that the invoices were attorney-client
communications. (Ibid.) In that case, as here, the Los Angeles County Superior
Court rejected the argument that the attorney-client privilege shielded entire
invoices, although the Court ruled that portions of the invoices showing attorney
work product could be redacted. (Id. at 61.)
The County thought so little of its attorney-client privilege argument in the
Anderson-Barker case that it did not challenge the trial courts ruling with respect
to the attorney-client and work product privileges. (Id. at 62.) Rather, it argued
only that the redacted documents it was ordered to disclose were exempt from
disclosure under the CPRAs pending litigation exemption. (Id. at 62.) The Court
of Appeal rejected that argument: it upheld the trial courts finding that the
dominant purpose for preparing the documents was not for use in litigation but as
part of normal record keeping and to facilitate the payment of attorney fees on a
regular basis. That such documents may have an ancillary use in litigation for
example, in connection with a request for attorney fees does not undermine the
substantial evidence before the trial court that the dominant purpose of the records
was not for use in litigation. (Id. at 67.)
Although the Court of Appeal in the Anderson-Barker case did not
explicitly discuss the attorney-client privilege because the County in that case
did not challenge the trial courts ruling rejecting the privilege argument on
appeal both the result in that case and the Court of Appeals reasoning are in
12
C.
This Court in the IFPTE case, 42 Cal. 4th at 333, cited the strong public
interest in knowing how the government spends its money. As we have observed
in the context of the publics right of access to court proceedings and documents,
public access makes it possible for members of the public to expose corruption,
13
14
news/20130509/humcpr-county-reach-100k-settlement-over-transparencylawsuit-humboldt-county-acknowledges-california-public-records-act-violation;
http://www.scpr.org/news/2014/02/03/41912/central-basin-water-districtdrowning-in-legal-fee/; http://www.sfgate.com/news/article/State-PUC-faces-5-1million-in-legal-fees-6163404.php;
http://www.utsandiego.com/news/2015/mar/26/cpuc-set-to-spend-52m-ondefense-lawyers/; http://www.utsandiego.com/news/2015/mar/26/cpuc-set-tospend-52m-on-defense-lawyers/. Only access to the invoices sent by outside
counsel can reveal whether, and to what extent, the attorneys who were hired to
study a problem ended up magnifying it by spending way too much time studying
and reporting on the obvious, or whether attorneys defending agencies spent far
more than was reasonably necessary. Invoices may show that inefficient or
inexperienced attorneys spent considerable time when it was not warranted, or
they may show that counsels time and expenses were reasonable. Either way, the
public should have a right to see them, with privileged material redacted.
Outside law firms have been accused of employing scorched earth
litigation tactics in defending excessive force lawsuits. II PE 5:424. The County
paid $20 million in the 2012-13 fiscal year alone just on litigation expenses in
excessive force cases. Access to the invoices at issue here would reveal whether
inefficiency was responsible for such a large expense.
Excessive force cases are by no means the only kind of litigation in which
public entities may spend excessive amounts of money on outside counsel. After
all, when outside counsel are defending public entities, neither the attorney nor
the client has any incentive to economize. Public officials who choose to employ
outside counsel especially in Public Records Act cases may be motivated by a
desire to make themselves look good and to avoid the disclosure of embarrassing
documents. (See IFPTE, supra, 42 Cal. 4th at 331 [public disclosure of an
15
IV.
16
17
which payment was made, the amount of the fee, and the general nature of the
services performed [o]ur previous decisions have held that this type of
information is not privileged; court found nothing in the statements that reveals
specific research or litigation strategy which would be entitled to protection from
disclosure] and out-of-state cases. If, as the County contends, the privileged
status of invoices is crystal clear and completely unambiguous (Answer Brief
on Merits at 44-46), and if acceptance of the ACLUs narrow-construction
argument and the narrow-construction mandate of article I, section 3(b)(2) of the
Constitution would lead to absurd results, as the County heatedly contends, the
crystal clarity of the statute and the absurdity of making invoices subject to
disclosure seems to have escaped a number of courts.
Likewise, the Countys argument that it would be absurd for this Court
to make invoices subject to disclosure in the Public Records Act context but not in
other contexts assumes too much. The County has failed to establish that invoices
fall within the privilege even outside the Public Records Act context. Adherence
to the narrow construction mandate of article I, section 3(b)(2) to resolve a
question which may have previously escaped clear resolution both under the
Public Records Act and in other California cases would not be absurd, it would
be faithful to a constitutional enactment which came into being with an 83
percent vote of the people for Proposition 59 in 2004.
V.
seeks by saying that no one contends the privilege extends to every word or
writing exchanged between lawyer and client. (Answer Brief on Merits at 48.)
But its far from clear what would not be privileged under the Countys definition.
The County argues that any transmission of information between a lawyer and a
18
client falls within the privilege, including but not limited to a legal opinion or
invoice. (Answer Brief at 49.) Under that definition, even giving directions to a
lawyers office or communications about the time of a meeting would fall within
the privilege, since such ministerial communications would involve the
transmission of information during the course of a lawyer-client relationship.
Such a broad construction of section 952 is neither compelled by that statute nor
consistent with the required narrow construction of exemptions.
VI.
19
itemization of who did what when and how many hours it took to do it.
In the context of spending on counsel by public agencies, the real
client is the public, the people whose taxes foot the bill. If the County gets
its way and invoices are shielded, the real client will be deprived of the
ability to see invoices, and will essentially be writing blank checks. That
would no doubt be convenient for the bureaucrats who decide to hire
outside counsel, but that sort of taxation without representation has never
been the norm in this country and should not become the norm now.
VII.
20
simply to facilitate the payment of attorney fees on a regular basis. (AndersonBarker, 211 Cal. App. 4th at 67.) The Court of Appeals decision conflicted with
the result reached by another division of the Second District less than three years
ago. As this Court stated in the IFPTE case, 42 Cal. 4th at 334, It is difficult to
imagine a more critical time for public scrutiny of its governmental decisionmaking process than when the latter is determining how it shall spend public
funds. This Court should reverse the Court of Appeals decision, to preserve
the efficacy of the Public Records Act.
21
By:
22
County
PROOF OF SERVICE
No. 5226645
101
over the age of eighteen years and not a party to this action. On the date set
forth below, I served the foregoing documents described as:
California that the foregoing is true and correct and that this declaration
was executed on February 11, 2016, at Saikrancisco California.
David Blum
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SERVICE LIST
Frederick Bennett
Los Angeles Superior Court
111 North Hill Street, Room 546
Los Angeles, CA 90012
y.
CFAC
2701 Cottage Way#12
Sacramento, CA 95825
Attorneys for Caljfornians Aware The Center for
Peter Eliasberg
ACLU Foundation of Southern California
1313 West 8th Street
Jennifer Brockett
Rochelle L. Wilcox
Colin Wells
Diana Palacios
DAVID WRIGHT TERMAINE LLP
865 S. Figueroa, Suite 2400
Los Angeles, CA 90017
Attorneys for Real Parties in InterestACLU of
Southern California and Eric Preveis
Mary Wickham
Roger Granbo
Jonathan McCaverty
648 Kenneth Hahn Hall of Administration
500 West Temple Street
Los Angeles, CA 90012
Barbara Ravitz
GREINES, MARTIN, STEIN & RICHLAND,
LLP
5900 Wilshire Blvd., 12th Floor
Los Angeles, CA 90036
Attorneys for County of Los Angeles Board of Attorneys for County of Los Angeles Board of
Supervisors and The Office of County
Supervisors and The Office of County Counsel
Counsel
Sally Suchil
Los Angeles County Bar Association
P.O. Box 55020
Los Angeles, CA
Attorneys for Los Angeles County Bar
Amicus curiae
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