Monday, November 19, 2012
C.A. Narrowly Construes ‘Pending Litigation’ Exception to CPRA
Litigant Held Entitled to County Lawyers’ Billing Records in Pending Suit
By KENNETH OFGANG, Staff Writer
The “pending litigation” exemption from the California Public Records Act’s disclosure requirements does not apply to a request by, or on behalf of a litigant, to see the billing records of a public entity’s counsel, the Court of Appeal for this district ruled Friday.
Div. Eight denied a writ petition by Los Angeles County, which challenged Los Angeles Superior Court Judge James Chalfant’s order that it disclose billing records in the case of Venegas v. County of Los Angeles. The nearly-14-year-old litigation arose after officers of the Task Force for Regional Auto Theft Prevention detained a local couple on suspicion of auto theft.
The complaint originally involved several civil rights and tort causes of action, but the only claim to survive has been one under a state civil rights statute, Civil Code Sec. 52.1.
The plaintiffs in that action are represented by attorneys David Mann and Donald Cook. They also represent Cynthia Anderson-Barker, an attorney who shares office space with them and who is the petitioner in the CPRA action, which she brought last November.
The CPRA requires a public entity to disclose, upon written request, any public record unless an exemption created by the act itself or by another state or federal statute applies. The county claimed an exemption from Anderson-Barker’s requested disclosure under Government Code Sec. 6254(b), a subdivision of the CPRA which exempts records “pertaining to pending litigation to which the public agency is a party . . . until the pending litigation . . . has been finally adjudicated or otherwise settled.”
The county also claimed exemptions for attorney-client communications and attorney work product.
Chalfant ruled that the billing records were not attorney-client communications, that portions of them were work product, and that the pending-litigation exception did not apply because the billing records were not prepared for use in the litigation. He ordered that the records be disclosed, but said the county could redact the portions that were work product, so that only “the hours worked, the identity of the person performing the work, and the amount charged” would be made public.
The county’s writ petition challenged the judge’s ruling only with respect to Sec. 6254(b).
The Court of Appeal initially denied the petition summarily, but the Supreme Court granted review and ordered the panel to consider the merits.
Justice Laurence Rubin, writing for the Court of Appeal, noted that the CPRA makes disclosure available to “every person,” so Anderson-Barker’s reasons for her request are irrelevant. He also noted that exemptions to the act must be construed narrowly, and that prior Court of Appeal decisions have limited Sec. 6254(b) to documents specifically prepared for use in litigation.
Thus, Rubin explained, it is possible for a litigant to obtain documents under the CPRA that have some relationship to the litigation but would not be available under traditional discovery. He cited an earlier case involving a client of Mann and Cook, Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, in which the plaintiff in a civil rights suit was able to obtain documents related to the over-detention of inmates at the county jail.
In the current case, Rubin wrote, “the records in the records in question relate to pending litigation and, indeed, would not have existed but for the pending litigation.” But substantial evidence supports the trial judge’s conclusion that because the documents were prepared to facilitate payment of the lawyers’ bills and not for use in the litigation, they did not fall under the exemption, Rubin said.
Deputy County Counsel Jonathan McCaverty represented the county on appeal.
The case is County of Los Angeles v. Superior Court (Anderson-Barker), 12 S.O.S. 5863.
Copyright 2012, Metropolitan News Company