Judge: Mary H. Strobel, Case: 21STCP04149, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCP04149    Hearing Date: December 8, 2022    Dept: 82

             Petitioner Ben Eilenberg (“Petitioner”) petitions for a writ of mandate directing Respondent City of Los Angeles (“Respondent” or “City”) to disclose to Petitioner all records that are responsive to 25 requests made by Petitioner pursuant to the California Public Records Act (“CPRA”). 

Relevant Background and Procedural History

            Petitioner manages the Stanford Neighborhood Association, which addresses issues in the area of Stanford Avenue at Gage in the City of Los Angeles.  (Eilenberg Decl. ISO Motions to Compel Filed 4/25/22 ¶¶ 2-3.)  “Two of these issues that the Stanford Neighborhood Association is currently addressing are: a. The property located at 6510, 6600 and 6622 Stanford Avenue, Los Angeles, CA is currently operating in defiance of a shut-down order issued by the City of Los Angeles. b. The owners of the property located at 6535 Stanford Avenue, Los Angeles, CA are allegedly being discriminated against by Dexter Jackson, Tim Griffith, and the Los Angeles Department of Building and Safety’s Plumbing Department regarding the permits necessary to open a food truck commissary at their property.”  (Ibid.; see also Pet. ¶¶ 1-2.) 

On December 8, 2021, as part of his investigation into these issues, Petitioner sent 25 requests for records under the California Public Records Act (“CPRA”) to Respondent’s Department of Building and Safety (“LADBS”).  Specifically, Petitioner requested the following records:

1. All permits issued regarding 6535 Stanford Avenue, Los Angeles, CA.

2. All communications regarding 6535 Stanford Avenue, Los Angeles, CA from any City of Los Angeles employee from 2018 to the present.

3. All communications regarding 6535 Stanford Avenue, Los Angeles, CA to any City of Los Angeles employee from 2018 to the present.

4. Dexter Jackson's personnel file.

5. All communications regarding Dexter Jackson to any City of Los Angeles employee from 2018 to the present.

6. All communications regarding Dexter Jackson from any City of Los Angeles employee from 2018 to the present.

7. All permits issued after an inspection was performed by Dexter Jackson from 2018 to the present.

8. All complaints against Dexter Jackson.

9. All regulations applying to commercial food truck commissaries in the City of Los Angeles from the Department of Building and Safety that have been active at any time from 2018 to the present.

10. All regulations regarding the ability of Los Angeles Department of Building and Safety inspectors to rescind permits that have been previously issued that have been active at any time from 2018 to the present.

11. All regulations regarding the ability of Los Angeles Department of Building and Safety inspectors to rescind permits that have been previously finalized that have been active at any time from 2018 to the present.

12. All permits ordered rescinded by Dexter Jackson from 2010 to the present. 13. All documents supporting the basis for any permits ordered rescinded by Dexter Jackson from 2010 to the present.

14. All documents supporting the basis for rejection of any permits for 6535 Stanford Avenue, Los Angeles, CA.

15. Tim Griffith's personnel file.

16. All communications regarding Tim Griffith to any City of Los Angeles employee from 2018 to the present.

17. All communications regarding Tim Griffith from any City of Los Angeles employee from 2018 to the present.

18. All permits issued after an inspection was performed by Tim Griffith from 2018 to the present.

19. All complaints against Tim Griffith.

20. All documents setting forth the basis for the City of Los Angeles not shutting down operations at 6510 Stanford Avenue, Los Angeles, CA after the operators refused to comply with the order to discontinue use issued on March 3, 2021.

21. All documents setting forth the basis for the City of Los Angeles not shutting down operations at 6600 Stanford Avenue, Los Angeles, CA after the operators refused to comply with the order to discontinue use issued on March 3, 2021.

22. All documents setting forth the basis for the City of Los Angeles not shutting down operations at 6622 Stanford Avenue, Los Angeles, CA after the operators refused to comply with the order to discontinue use issued on March 3, 2021.

23. All correspondence addressing 6510 Stanford Avenue, Los Angeles, CA from 2018 to the present.

24. All correspondence addressing 6600 Stanford Avenue, Los Angeles, CA from 2018 to the present.

25. All correspondence addressing 6622 Stanford Avenue, Los Angeles, CA from 2018 to the present.  (Pet. ¶ 13.)  (hereafter “CPRA Requests”).

Respondent’s initial deadline to respond was December 20, 2021.  (Pet. ¶ 15.)  On December 17, Michael Van Do, LADBS’s Custodian of Records, began drafting a letter requesting additional time pursuant to Govt. Code § 6253(c).  (Van Do Decl. ¶ 2.)  Van Do declares that “because of the enormous volume of requests I handle, I inadvertently did not send the letter on its due date of December 20.” (Ibid.) 

On December 21, 2021, Petitioner filed the instant petition for writ of mandate pursuant to the CPRA.  That same date, Petitioner emailed Van Do a copy of the petition and reminded him of City’s duties under the CPRA.  (Id. ¶ 3, Exh. A.)

On January 3, 2022, Respondent produced 190 pages of documents in response to the CPRA Requests.  For many of the CPRA Requests, Respondent did not produce responsive records and stated exemptions or other reasons it could not produce records.  (Id. ¶ 4, Exh. B.) 

On January 4, 2022, Petitioner sent Van Do an email asserting that Respondent’s stated exemptions and other reasons did not justify non-disclosure of records.  (Hagan Decl. Exh. A.) 

On January 21, 2022, Van Do provided another response to the CPRA Requests, produced an additional 1,700 pages of documents, and requested additional time to locate and produce records for certain of the CPRA Requests.  Respondent also maintained that its stated reasons for not producing records was “satisfactory” with respect to certain CPRA Requests.  (Van Do Decl. ¶ 5, Exh. C.)  For Requests 7 and 18, Respondent supplemented its response to state that the document search of LADBS’s database would require a Systems Analyst and approximately (5) hours of programming time (per request) to create, test and run a query to obtain the responsive data. (Van Do Decl., Exh. C.) The City estimated the cost of that programming time (per request) as $383.40, and requested payment of that estimate pursuant to California Government Code section 6253.9(b) before proceeding with the search.  (Ibid.)  Van Do declares, as follows: “I did not receive any correspondence from Petitioner objecting or responding to my January 21, 2022 supplemental response.”  (Id. ¶ 5.) 

On January 26, 2022, Respondent filed its answer, which asserts multiple affirmative defenses, including waiver and estoppel, lack of standing, unclean hands, failure to exhaust administrative remedies, and mootness. 

On February 18, 2022, Respondent further supplemented its response to the CPRA Requests.  Van Do explains this supplemental response as follows: “I supplemented the City’s response to Petitioner again, this time providing 12,353 pages of responsive documents to requests 5, 6, 16, and 17. To prepare this response, I conducted a search (using Google Vault) of the email accounts of Dexter Jackson's and Tim Griffith's; and after reviewing the emails for any non-privileged material, I found 13,353 pages to be responsive.”  (Van Do Decl. ¶ 6.)  Van Do further declares, “I again did not receive any correspondence from Petitioner objecting or responding to the City’s February 18, 2022 supplemental response.”  (Ibid.) 

On March 10, 2022, the court held a trial setting conference, which was attended by counsel for Petitioner and Respondent.  The court set the petition for hearing on December 8, 2022, and set a briefing schedule.  Petitioner’s opening brief was due 60 days prior to the hearing. 

On April 22, 2022, Respondent produced about 159 pages of records in response to CPRA Requests Nos. 4 and 15, which seek the personnel file of Dexter Jackson and Tim Griffith.  (Id. ¶ 7, Exh. E.)  Van Do declares that Respondent “offered to produce the non-confidential material within those files (employment agreements, salary-related documents, etc.) subject to the copying cost recovery provisions of the PRA.”  (Ibid.)  He further declares that “[t]o date, Petitioner has not remitted payment for the copying costs.”  (Ibid.) 

Petitioner has not filed an opening brief or any evidence in support of the petition.  On October 26, 2022, Respondent timely filed and served an opposition brief.  No reply has been received. 

Summary of CPRA; Burden of Proof; and Standard of Review

Pursuant to the CPRA (Gov. Code § 6250, et seq.), individual citizens have a right to access government records.  In enacting the CPRA, the California Legislature declared that “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.”  (Gov. Code, § 6250; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)  The CPRA defines “public records” as follows:

(e) “Public records” includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.  (Gov. Code § 6252(e).)

Government Code section 6253(b) states that “each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available.”  (See also Id. § 6253(c) [subject to extension in unusual circumstances, agency shall respond to CPRA request within 10 days].) 

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) “To establish an agency has a duty to disclose under [the CPRA], the petitioner must show that: (1) the record ‘qualif[ies] as [a] ‘public record[ ]’ within the meaning of section 6252, subdivision (e); and (2) the record is ‘in the possession of the agency.’”  (Anderson-Barker v Sup.Ct. (2019) 31 Cal.App.5th 528, 538.)  “Whether a record falls within the statutory definition of a ‘public record’ involves a ‘distinct inquiry’ from whether the agency is in possession of that record…. The duty to disclose applies only when the petitioner has satisfied both elements.”  (Id. at 539.)

CPRA exemptions must be narrowly construed and the agency bears the burden of showing that a specific exemption applies.  (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) 

Analysis

Petitioner Has Not Filed an Opening Brief, and Has Not Met His Initial Burden of Proof

An agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)   As applied in a CPRA action, “[g]overnment agencies are, of course, entitled to a presumption that they have reasonably and in good faith complied with the obligation to disclose responsive information.”  (American Civil Liberties Union of N. Cal. v. Superior Court (2011) 202 Cal App 4th 55, 85.)  

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)  A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

A memorandum of points and authorities is required for a noticed mandamus motion. (See CCP § 1094; CRC 3.1113(a).)   The absence of a memorandum is an admission that the motion is not meritorious and may be denied.  (CRC 3.1113(a).)  “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”  (CRC 3.1113(b); Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [Cal. Rules of Court, Rule 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories”].) 

Here, Petitioner has not filed an opening brief or any evidence in support of his writ petition.  Accordingly, he has not met his initial burden to show that Respondent did not comply with its duties under the CPRA.  On that basis alone, the petition is DENIED.

Respondent Submits Evidence of Compliance with the CPRA, Which Petitioner Does Not Rebut

            In its opposition brief, Respondent contends that the petition is moot because Respondent has fully responded to each of Petitioner’s CPRA requests.  (Oppo. 9-11.)  Respondent submits evidence that it has substantively responded to all 25 CPRA requests and made available all nonexempt documents that have been requested of it (including 14,000 pages already produced to Petitioner), subject to the cost-recovery provisions of the CPRA.  (Van Do Decl. ¶¶ 5-8, Exhs. B, C, D, E.)  Respondent further submits evidence that Petitioner has not objected to, responded to, or identified any deficiencies in Respondent’s January 21, February 18, and April 22 supplemental responses.  (Ibid.)  Nor has Petitioner paid the copying costs described in the April 22 letter.  (Ibid.)

            Since Petitioner did not file an opening brief, the burden of proof never shifted to Respondent to prove its compliance with the CPRA.  Nonetheless, Respondent has submitted evidence that it complied with the CPRA as to all 25 CPRA requests at issue.  Petitioner has not responded to or opposed this evidence.  (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)  Nor does Petitioner make any argument that Respondent’s supplemental responses are deficient.  In these circumstances, a writ will not issue.  (See Zagoren v. Hall (1932) 122 Cal.App. 460, 462 [a writ is an equitable remedy and will not issue if it is unnecessary].)   

For these additional reasons, the petition is DENIED.

Conclusion

            The petition is DENIED. 

Because a motion for attorney’s fees is not presently before the court, the court does not reach Respondent’s argument that Petitioner is not entitled to attorney’s fees.  (Oppo. 11-13.)