Judge: Curtis A. Kin, Case: 23STCP00264, Date: 2024-12-17 Tentative Ruling

Case Number: 23STCP00264    Hearing Date: December 17, 2024    Dept: 86

ORDER TO SHOW CAUSE RE: WHY THE COURT SHOULD NOT ISSUE ORDERS AS TO RESPONDENTS CITY OF LOS ANGELES AND LOS ANGELES WORLD AIRPORTS

 

Date:               12/17/24 (1:30 PM)

Case:                           Tiffany Abraham v. City of Los Angeles et al. (23STCP00264) 

  

TENTATIVE RULING:

 

Petitioner Tiffany Abraham’s evidentiary objections to the declaration of Tiffany B. Hunter are OVERRULED. As respondents’ attorney, Hunter is authorized to declare whether production in compliance with the Amended Ruling on Petition for Writ of Mandate, Judgment, Writ of Mandate, and order enforcing the writ has occurred.  

 

On 12/19/23, the Court issued its Amended Ruling on Petition for Writ of Mandate, which GRANTED IN PART petitioner’s requests that respondents City of Los Angeles (“COLA”) and

Los Angeles World Airports (“LAWA”) produce certain documents pursuant to petitioner’s 11/14/22 request under the California Public Records Act (“CPRA”). The Court ordered with respect to the COLA and LAWA: “Respondent shall produce the 1,000 to 1,900 emails it is withholding. In addition, within 30 days hereof, respondent must use the search terms provided by petitioner in her March 31, 2023 letter and produce the documents found pursuant to such search terms.” (12/19/23 Amended Ruling at 11; see also 12/19/23 Minute Order.)

 

On 5/23/24, the Court entered Judgment, which, among other things, adjudged and decreed as follows: “Respondent COLA and LAWA shall produce the 1,000 to 1,900 emails it is withholding. In addition, within 30 days hereof, respondent must use the search terms provided by petitioner in her March 31, 2023 letter and produce the documents found pursuant to such

search terms.”

 

On 6/24/24, the Clerk of the Court issued the Writ of Mandate, which, among other things “COMMANDED” the following: “Respondent COLA and LAWA shall produce the 1,000 to 1,900 emails it is withholding. In addition, within 30 days hereof, respondent must use the search terms provided by petitioner in her March 31, 2023 letter and produce the documents found pursuant to such search terms.” Further, the Writ “COMMANDED” COLA and LAWA to comply by 7/25/24.

 

On 10/10/24, during the hearing on petitioner’s Motion to Enforce Writ of Mandate Pursuant to

Code of Civil Procedure § 1097, the Court ordered as follows: “By no later than 10/24/24, respondents City of Los Angeles and Los Angeles World Airports shall make and file a return of the writ of mandate, produce a list detailing the number of documents and emails located using the search terms provided by petitioner in her March 31, 2023 letter, and state the basis upon which respondents are withholding any documents.” (10/10/24 Minute Order at 4.) The Court also ordered respondents to produce a privilege log listing any documents withheld based on privilege at the same time a return was filed. (10/10/24 Minute Order at 4.) Respondents were present at the hearing and waived notice of the ruling. (10/10/24 Minute Order at 4.)

 

Respondents did not file any return on 10/24/24 indicating that petitioner was provided with any documents or emails.

 

On 11/5/24, petitioner filed an Ex Parte Application for “Orders to Enforce this Court’s Order of October 10, 2024 and the Writ of Mandate Pursuant to Code of Civil Procedure § 1097.”  In response, on 11/7/24, this Court issued an Order to Show Cause as to Why the Court Should Not Issue the Following Orders as to Respondents City of Los Angeles and Los Angeles World Airports:

 

 

 

 

 

 

(11/7/24 Minute Order at 3.) The Court ordered responses to the Order to Show Cause to be filed and served by no later than 11/27/24. The Court ordered replies to the responses to be filed and served by no later than 12/9/24.

 

Petitioner Tiffany Abraham and respondent City of Los Angeles, through its division Los Angeles World Airports (collectively “respondents”), filed and served responses on 11/27/24. On 12/9/24, petitioner filed a reply to respondents’ response.

 

Respondents’ counsel declares that a return was filed on 11/27/24 indicating all production that has been made pursuant to petitioner’s CPRA request and search terms provided by petitioner in her 3/31/23 letter. (Hunter Decl. ¶ 3.)  The Hunter Declaration is inaccurate.  The court file reflects that no return has been filed. Nevertheless, respondents maintain that they “performed a search for responsive documents using the search terms provided by petitioner in the March 31, 2023 letter” and that they have “produced all responsive documents obtained through the search of the required search terms as identified below and is not withholding documents on the basis of privilege.” (Hunter Decl. ¶ 4; see also Hunter Decl. ¶ 10 [“All responsive documents and emails have been produced”].) Below the averment was a table identifying the responsive documents by date of production, Bates numbers, and whether respondent City of Los Angeles or its counsel produced the documents. (Hunter Decl. ¶ 4.) Respondents’ counsel also declared that no documents were withheld based on privilege. (Hunter Decl. ¶¶ 4, 10.) In reply, petitioner provided an email dated 11/27/24 indicating that she was received by email a link and password for a folder containing documents. (Gutierrez Reply Decl. ¶ 2 & Ex. 1.)

 

The declarations in connection with the instant Order to Show Cause indicate that petitioner was served with the documents and emails as ordered by the Amended Ruling on Petition for Writ of Mandate, Judgment, Writ of Mandate, or order enforcing the writ.

 

Petitioner contends that respondents did not provide a list detailing the number of documents and emails located using the search terms provided in the 3/31/23 letter. However, the table provided by counsel suffices. (See Hunter Decl. ¶ 4.) The Court notes that it is unclear why respondents listed the Bates stamps for production occurring on 9/11/23, 1/5/24, 1/26/24, and 2/9/24 as “None.” Nevertheless, the table also lists production as having occurred on 12/19/22, 1/5/23, 1/17/23, 2/8/23, 2/15/23, 7/10/23, 1/18/24, 2/21/24, 4/24/24, and 11/27/24. From the range of the Bates stamps, one can determine how many pages were in the production. For the 11/27/24 production, the Bates stamp range of CityofLA_0004998-9541 indicates that production consisted of 4,544 pages (9541 – 4998 + 1 = 4,544.) Indeed, petitioner declares that the 11/27/24 production consisted of 4,543 pages. (Gutierrez Reply Decl. ¶ 4.) Considering counsel for respondents averred that respondents “produced all responsive documents obtained through the search of the required search terms as identified below,” and below the averment was the table described above, the Court finds the table is sufficient to list the production which corresponded to documents retrieved using the search terms from the 3/31/23 letter.

 

Citing the 11/7/24 Order to Show Cause, petitioner argues that respondents did not provide a declaration from a qualified witness detailing the process used to search, identify and produce the documents and emails. The Order to Show Cause never contained such an order. Rather, it ordered respondents to show cause why the Court should not issue an order requiring respondents to “provide a sworn declaration by a qualified witness detailing the process used to search, identify, and produce such documents and emails.” (11/7/24 Minute Order at 3.) As counsel for respondents’ declaration sufficiently demonstrates that all documents obtained using the search terms contained in petitioner’s 3/31/23 letter have been produced, the Court will not order any further declaration to be filed.

 

The declaration in support of petitioner’s reply contains other averments pointing out purported defects in production. Counsel argues that “almost all, if not all” of the documents in the 11/27/24 production have been previously produced before. (Gutierrez Reply Decl. ¶ 4.) Even if the documents have been produced before, this does not necessarily preclude the same documents from having been retrieved pursuant to the search terms in the 3/31/23 letter.

 

Counsel also argues that the 11/27/24 production contains documents that are unlikely to have been located using the search terms contained in the 3/31/23 letter. (Gutierrez Reply Decl. ¶ 5.) Even if true, this does not mean that all the documents produced on 11/27/24 were located without using the search terms contained in the 3/31/23 letter. Put another way, counsel for respondents’ averment that all documents obtained using the search terms contained in petitioner’s 3/31/23 order have been produced (Hunter Decl. ¶¶ 4, 10)—the critical question as to whether the Court should issue further orders concerning production—can still be true.

 

Counsel also asserts that respondents’ production prior to 11/27/24 used Bates stamps with a prefix of “LAWA,” whereas the Bates stamp prefix for the 11/27/24 production was “CityofLA.” (Gutierrez Reply Decl. ¶ 6.) The Bates stamp prefix is not probative of whether all documents retrieved using the search terms in the 3/31/23 letter have been produced.

 

Counsel also avers that some of the documents in the 11/27/24 production state that documents have been produced in “native” format, but no documents were produced in native format. (Gutierrez Reply Decl. ¶ 7.) Counsel does not state what “native format” means. In any event, even if native format documents were not produced, it is possible that the search terms in the 3/31/23 letter did not yield native format documents as results. Petitioner fails to explain why native format documents that were not produced would have necessarily been retrieved using petitioner’s search terms. Under the Amended Ruling on Petition for Writ of Mandate, Judgment, Writ of Mandate, and order enforcing the writ, respondents were under no obligation to produce documents other than those obtained using the search terms set forth in the 3/31/23 letter.

 

Counsel also contains that the 1/5/23 production never occurred, that the Bates stamp number set forth for 1/5/23 corresponds to a California Public Records Act (“CPRA”) request different from the one at issue in this proceeding, and that the 9/11/23, 1/5/24, 1/26/24, and 2/9/24 productions all correspond to a different CPRA request. (Gutierrez Reply Decl. ¶¶ 8, 9.) With respect to 9/11/23, 1/5/24, 1/26/24, and 2/9/24, as noted above, the Bates stamps listed for these dates was “None.” (Hunter Decl. ¶ 4.) With respect to 1/5/23, even if the listed Bates stamp number corresponds to a different request, this would not necessarily mean that respondents did not produce all documents obtained using the search terms contained in petitioner’s 3/31/23 letter.

 

Because respondents sufficiently demonstrate that they served petitioner with documents and emails identified using the search terms provided by petitioner in her 3/31/23 letter and are not withholding any documents based on privilege, the Court will not issue the following orders:

 

 

 

 

The Court is now left to decide whether to issue the following orders:

 

 

 

Respondents contend that they did not file the return to the Writ of Mandate earlier because they believed that they “had thirty days to do so and had calendared the response deadline as November 8, 2024.” (Hunter Decl. ¶ 4.) As stated above, no return has been filed. Even if the return had been filed on 11/27/24 as falsely stated by respondents’ counsel (Hunter Decl. ¶ 4), respondents were ordered on 10/10/24 to “make and file a return of the writ of mandate” “[b]y no later than 10/24/24.” (10/10/24 Minute Order at 4.) Respondents’ counsel was present at the 10/10/24 hearing when the order was made and waived notice. (10/10/24 Minute Order at 4.) Accordingly, respondents’ counsel presents no good reason to have delayed in filing a return.

 

Respondents do not present any other reason why a $1,000 fine should not be imposed as to both of them or why petitioner should not recover reasonable costs and fees incurred to compel compliance with and to enforce the writ of mandate, including the Motion to Enforce Writ of Mandate, the instant ex parte application, responses to the Order to Show Cause, and all related work. As recounted in the ruling on the 11/7/24 hearing on petitioner’s ex parte application for an order to enforce writ of mandate or order shortening time, on 6/24/24, the Court issued a Writ of Mandate directing respondents to comply with the writ by 7/25/24. (11/7/24 Minute Order at 2.) Petitioner served the writ of mandate on 8/14/24. (10/10/24 Minute Order at 3.) Despite having been on notice since 8/14/24 about the writ of mandate, respondents had not complied by the time the Court issued its order enforcing the writ on 10/10/24. Respondents do not explain why they failed to file a return in a timely manner after having received notice of the writ. Thus, petitioner was entitled to file a motion to enforce the writ.

 

Further, on 10/10/24, in connection with petitioner’s motion to enforce the writ, the Court ordered respondents to “make and file a return of the writ of mandate” and “produce a list detailing the number of documents and emails located using the search terms provided by petitioner in her March 31, 2023 letter” “[b]y no later than 10/24/24.” (10/10/24 Minute Order at 4.) Respondents did not comply with the Court’s orders by the stated deadline. (11/7/24 Minute Order at 2.) Thus, petitioner was entitled to file an ex parte application to enforce the writ on 11/5/24, which led to the instant Order to Show Cause.  

 

Petitioner claims a total of $22,242 in fees and costs in connection with enforcement of the writ. (Gutierrez Decl. ¶ 6 & Ex. 3.) Having reviewed counsel for petitioner’s invoices, the Court reduces this amount by $4,620, the total fees incurred from 3/20/24 to 6/17/24, because these fees were incurred in connection with preparation of the writ, not enforcement of the writ. Otherwise, respondents did not object to the amount of fees and costs claimed by petitioner. The Court finds $17,622 ($22,242 - $4,620) to be a reasonable amount of fees and costs incurred to enforce the writ.

 

By no later than 12/31/24, the Court orders respondents City of Los Angeles and Los Angeles World Airports each to pay $1,000 to petitioner Tiffany Abraham as a fine for not having timely complied with the Writ of Mandate, thereby forcing petitioner twice to seek to enforce the writ. The Court notes that, although respondents contend that LAWA is a division of City of Los Angeles, LAWA separately responded to petitioner’s Petition for Writ of Mandate and did not otherwise object to its inclusion to this case as a separately named respondent. (See 5/31/23 Response to Petition.) Accordingly, a fine as to LAWA is appropriate. 

 

The Court also orders respondents City of Los Angeles and Los Angeles World Airports to pay petitioner, by no later 12/31/24, $17,622 in reasonable fees and costs incurred in connection with enforcement of the writ. Both respondents are jointly and severally liable for these fees and costs.

 

By no later than 12/20/24, respondents shall file the return to the Writ of Mandate their counsel incorrectly represented was filed on 11/27/24.  Lastly, counsel Tiffany Hunter is cautioned to verify the accuracy of statements she makes under penalty of perjury to the Court.  (Compare also 11/27/24 Hunter Decl. ¶ 6 [“[P]etitioner failed to provide my office with proper notice of the Ex Parte Application”] with 12/9/24 Gutierrez Decl. ¶ 10 & Ex. 3 [11/5/24 email from Hunter acknowledging notice of ex parte application was “Received”]; see also 11/27/24 Hunter Decl. ¶ 7 [claim that Hunter appeared on November 7, 2024 in “Department 82,” despite notice that ex parte would be heard in Department 86] .)