Judge: James C. Chalfant, Case: 22STCP00172, Date: 2023-02-16 Tentative Ruling

Case Number: 22STCP00172    Hearing Date: February 16, 2023    Dept: 85

            Petitioner Los Angeles Sunshine Coalition (“Sunshine”) applies for a writ of traditional mandamus to compel Respondent Los Angeles Chinatown Business Council (“Chinatown BID”) to produce documents responsive to its California Public Records Act (“CPRA”) requests. 

            The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Sunshine commenced this proceeding on January 14, 2022, alleging a cause of action for traditional mandamus under the CPRA.

            The verified Petition alleges that Sunshine made CPRA requests to Chinatown BID on July 28 and August 3, 2019 for different communications between 2017 and 2019.  Each time, in violation of Government Code (“Govt. Code”) sections 6252(e) and 6253(a)-(c), Chinatown BID did not respond within ten days of the request with a determination of whether it had responsive documents.  It also failed to make responsive documents promptly available.  Both times, Sunshine sent follow-up requests and Chinatown BID still did not respond.

            Sunshine seeks (1) a writ of mandate that compels Chinatown BID make all requested documents available for inspection and provide a quote for direct costs of duplication; and (2) attorney’s fees and costs.

            2. Course of Proceedings

            On February 9, 2022, Sunshine sent Chinatown BID the Petition and Summons by mail.

            On April 25, 2022, Sunshine applied for an order directing service of the Petition and Summons to the Secretary of State.  As part of this application, counsel for Sunshine reported that Chinatown BID never signed a notice of acknowledgement for receipt of service of the Petition and Summons.

            On April 26, 2022, the court ordered that Sunshine exhaust its ability to serve Chinatown BID with the Petition and Summons by personal or substitute service.  Three days later, the court rejected the April 25 application in favor of a ruling by Dept. 26.

            On June 6, 2022, Sunshine filed an application in Dept. 26 for an order directing service of the Petition and Summons on Chinatown BID to the Secretary of State.

            On June 26, 2022, Sunshine personally served Chinatown BID with the Petition and Summons.

            On August 18, 2022, Chinatown BID filed its Answer.

            On November 3, 2022, Christina M. Cameron, Esq.’s motion to be relieved as Chinatown BID’s counsel was granted.

            B. Standard of Review

            A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Ibid.

            A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-584. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584. Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

            Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-371. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

            No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

            C. Governing Law

            1. The California Constitution

            The people have the constitutional right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.  Cal. Const. art. I, §3(b)(1).  A statute, court rule, or other authority shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.  Cal. Const. art. I, §3(b)(2).  If a statute, court rule, or other authority adopted after the effective date of this subdivision of the constitution limits the right of access, it shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.  Cal. Const. art. I, §3(b)(2). 

2. The CPRA

            The CPRA, located at Government Code (“Govt. Code”)[1] section 7920 et seq. (formerly 6250 et seq.)[2], was enacted in 1968 to safeguard the accountability of government to the public.  San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App.3d 762, 771-72.  Section 7921 declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”  The CPRA’s purpose is to increase freedom of information by giving the public access to information in the possession of public agencies. CBS. Inc. v. Block, (1986) 42 Cal.3d 646, 651. The CPRA was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. Wilson v. Superior Court, (1996) 51 Cal.App.4th 1136, 1141. This requires maximum disclosure of the conduct of government operations. California State University Fresno Assn., Inc. v. Superior Court (“California State University”), (2001) 90 Cal.App.4th 810, 823.

The CPRA makes clear that “every person” has a right to inspect any public record. §7922.525(a) (former §6253(a)). The term “public record” is broadly defined to include “any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. §7920.530 (former §6252(e)).

The right to inspect is subject to certain exemptions, which are narrowly construed. California State University, supra, 90 Cal.App.4th at 831. The pertinent exemptions for this case are found in sections 7923.600 (former §6254(f)), 7923.610 (former §6254)f(1)), and 7923.615 (former §6254(f)(2)).

Mere custody is not sufficient to establish if a writing is a public record, “but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, it is a public record. [Citation.]” Braun v. City of Taft, (1984) 154 Cal.App.3d 332, 340.  The definition of public record is not rigidly limited to only written records such as memos or letters but is instead “intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.” San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App.3d 762, 774; § 7290.545 (former §6252(g)).

The CPRA pays no heed to the possible motives of the requestor and finds irrelevant what the possible purpose could be in the use of released public records.  Los Angeles Unified School Districts v. Superior Court (Los Angeles Times Communications LLC), (2014) 228 Cal.App.4th 222, 242; §7921.300 (former §6257.5).  Instead, emphasis is put upon the determination of whether the disclosure of public records serves a public purpose or if there is a public interest in such a disclosure.  Ibid.

Upon receiving a request for a copy of public records, the agency shall determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, though that deadline may be extended up to 14 days for “unusual circumstances.” §7922.535(a), (b) (former §6253(c)).  There is no deadline expressed in a number of days for producing the records.  Rather, if the agency determines that the requested records are subject to disclosure, it shall make the records promptly available upon payment of fees for direct costs of duplication or a statutory fee if applicable.  §7911.530 ((former §6253(b).  Section 7922.500 (former §6253(d)) provides that nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”

If the agency determines that the request for records is denied in whole or in part, the agency must respond in writing and justify withholding any record by demonstrating that the record is exempt or that the facts of the case the public interest served by not disclosing clearly outweighs the public interest in disclosure.  §§ 7922.540, 7922.000 (former §6255(a)).[3]  Haynie v. Superior Court, (2001) 26 Cal.4th 1061, 1072.) Even if portions of a document are exempt from disclosure, the agency must disclose the remainder of the document.  §7922.525(b) (former §6253(a)).  The must also “[p]rovide suggestions for overcoming any practical basis for denying access to the records or information sought.” §7922.600(a)(3) (former §6253.1(a)(3).

In general, the scope of an agency’s search for public records ‘need only be reasonably calculated to locate responsive documents.’” City of San Jose v. Superior Court, (2017) 2 Cal.5th 608, 627. The “CPRA does not prescribe specific methods of searching for those documents. Agencies may develop their own internal policies for conducting searches.  Some general principles have emerged, however.  Once an agency receives a CPRA request, it must ‘communicate the scope of the information requested to the custodians of its records,’ although it need not use the precise language of the request. [Citation.].” Ibid.  “Records requests . . . inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort.” California First Amendment Coalition v. Superior Court, (1998) 67 Cal.App.4th 159, 165-66.  “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. [Citation.]

A petitioner may make a CPRA claim to compliance with a public records through mandamus or declaratory relief.  §7926.410 (formerly §§6258, 6259).  A petition for traditional mandamus is appropriate in actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”  CCP §1085.  Because the petitioner may proceed through either mandamus or declaratory relief, the trial court independently decides whether disclosure is required. See City of San Jose v. Superior Court, (1999) 74 Cal.App.4th 1008, 1018 (appellate court independently reviews trial court CPRA decision). No administrative record is required, and the parties must submit admissible evidence.

The agency bears the burden of justifying nondisclosure of requested records.  §7922.000 (former §6255(a)).  In determining whether exemptions apply, courts must follow the constitutional imperative that exemptions must be construed narrowly and that the people’s right of access must be construed broadly. Cal. Const., art. I, §3(b)(2); see Sacramento County Emp. v. Superior Court, (2011) 195 Cal.App.4th 440, 453.

Whenever the trial court decides that public records are being improperly withheld from a member of the public, the court shall order the individual charged with withholding the records to disclose the public record or show cause why he or she should not do so. §§ 7923.100, 7923.110(a) (former §6259(a), (b)).  The CPRA favors speedy resolution of litigation to ensure prompt access to records, both at the trial court and appellate levels. §7923.005 (former §6258); Times Mirror Co. v. Superior Court, (1991) 53 Cal.3d 1325, 1334-335 (purpose of CPRA extraordinary writ appellate procedure is to prevent public agencies from delaying disclosure while appeal is pending).

3. BIDs

            A “Business Improvement District” (“BID”) is a defined area within a city created by petition of property owners under the Property and Business Improvement District Law of 1994 to self-fund and provide supplemental municipal services. Streets & Highways (“St. & Hwys.”)  Code §36600 et seq.  A city forming a BID must contract with a private non-profit entity identified as an “owners’ association” to administer or implement improvements, maintenance, and activities specified in a management district plan. Sts. & Hy. Code §36612. Owners’ associations levy assessments upon businesses or real property within the BIDs to fund these improvements. Sts. & Hy. Code §36601(c). Although not considered a public entity, owners’ association must comply with the CPRA and the Brown Act.  Sts. & Hy. Code §36612.

            The management district plans governing BIDs must state a specific number of years in which assessments will be levied.  Sts. & Hy. Code §36622(h). The maximum number of years which the plan can specify is ten years.  Ibid.  Upon the plan’s expiration, a new plan may be created and the district renewed.  Sts. & Hy. Code §36630.

            A BID may be disestablished by resolution of the city council if the city finds that there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district.  Sts. & Hy. Code §36670(a)(1). A BID may also be disestablished upon written petition of the owners of real property in the district who pay 50% or more of the assessments levied if the petition is submitted in a certain 30-day period each year.  Sts. & Hy. Code §36670(a)(2).

            D. Statement of Facts[4]

            Chinatown BID is a non-profit corporation which contracts with the City of Los Angeles (“City”) to manage the Greater Chinatown BID.  Op. Br. Ex. 1.  The Agreement to Administer the Property-based BID (“Agreement”), last signed December 24, 2020, identifies Chinatown as an owners association pursuant to Sts. & Hy. Code section 36651.  Pet. Op. Br. Ex. 1.  The Agreement holds Chinatown fully responsible for developing, implementing, directing, and operating the District programs, improvements and activities.  Pet. Op. Br. Ex. 1.  The City collects and levies assessments on the parcels of real property within the District, to be used only for the purposes set forth in the City ordinance that established the District.  Pet. Op. Br. Ex. 1.  Chinatown BID agreed that it would comply with all applicable laws and regulations and maintain its non-profit status.  Pet. Op. Br. Ex. 1. 

1.      Riskin’s CPRA Requests

            In March 2018, Adrian Riskin (“Riskin”) sent three CPRA requests to Chinatown BID via email to info@chinatownla.com.  Riskin Decl., ¶3.  Chinatown BID never responded despite multiple follow-ups.  Riskin Decl., ¶4.  Riskin filed a petition for writ of mandate to compel production of the requested documents under the CPRA.  Riskin Decl., ¶5, Ex. 2.     On August 19, 2019, the court granted the 2018 Petition and ordered the requested production within 30 days.  Riskin Decl., ¶6, Ex. 3.  Chinatown did not produce the documents that it was ordered to in response to the 2018 Petition within the 30-day time limit.  Riskin Decl., ¶7.  On November 12, 2019, Riskin and his co-petitioner filed an ex parte application for Order to Show Cause Re: Contempt against Chinatown.  Riskin Decl., ¶8, Ex. D.  The court granted it on November 15, 2019.  Riskin Decl., ¶9, Ex. E.  To date, Chinatown has not complied with Riskin’s CPRA requests.  Riskin Decl., ¶10.

2.      Sunshine’s CPRA Requests

            On July 28, 2019, Sunshine emailed a CPRA Request to Chinatown BID (“July 28 Request”) for all emails from March 24, 2018 between anyone on Chinatown BID’s board or staff and anyone at (1) lacity.org, (2) lapd.online, (3) any of the following domains: hollywoodbid.org, ccala.org, historiccore.bid, downtownla.com, centralcityeast.org, epgla.com, kindelgagan.com, linerlaw.com, gslawla.com, or devine-strategies.com, and (4) any of the following email addresses: beatus821@gmail.com; jesslall@gmail.com; renamastenleddy@yahoo.com;  blairbesten@gmail.com; joshraymd@gmail.com; ellenendo@yahoo.com; jkumamoto@aol.com; robertnewman2@gmail.com.  The July 28 Request also sought all emails from January 7, 2017 through July 28, 2019 (1) between anyone on Chinatown BID’s board of directors and George Yu; (2) in George Yu’s possession and which contain any of the following words or phrases: “Theo”, “Henderson”, “Alpine”, “Mario”, or “Zen”; and 3) between George Yu and any email address at urbansolutionslaw.com.  Petition Ex. A. 

            On August 3, 2019, Sunshine emailed a second CPRA Request to Chinatown BID (“August 3 Request”) for records between January 1, 2017 and August 3, 2019 consisting of (1) all emails between anyone on Chinatown BID’s board or staff and anyone at aus.com or anyone at Allied Universal, (2) text messages between anyone on Chinatown’s BID’s board or staff and anyone at Allied Universal, (3) text messages between anyone at Allied Universal who was employed by or for Chinatown BID and anyone not covered in (2); and any photographs and videos taken by anyone on Chinatown BID’s board or staff or anyone employed by Chinatown BID as part of that employee’s duties.  Petition Ex. C. 

            On August 22, 2019, Sunshine requested an update on the July 28 and August 3 Requests.  Petition Exs. B, D.

            E. Analysis

            Petitioner Sunshine seeks to compel Chinatown BID to comply with its July 28 and August 3 Requests.  Despite the fact that Sunshine provides no actual evidence that the two requests were made or that Chinatown BID has failed to comply, both facts are obvious.  Chinatown BID has the burden to justify the non-disclosure of requested records, whether on the basis that they are not public records, they do not exist, or they are exempt.  §7922.000.  Chinatown BID has not filed an opposition and therefore has failed to meet its burden. 

The Petition is granted.  Chinatown BID is ordered to search for and produce all records responsive to Sunshine’s July 28 and August 3 Requests within 20 days of this order.