Judge Ronald F. Frank, Case Number: 24TRCP00007, Date: 2024-04-22 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCP00007, Date: 2024-04-22 Tentative Ruling

Case Number: 24TRCP00007 Hearing Date: April 22, 2024 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: April 22, 2024¿

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CASE NUMBER: 24TRCP00007

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CASE NAME: G. Joseph Buck v. City of Torrance

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MOVING PARTY: (1) Plaintiff, G. Joseph Buck, in Pro Per

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RESPONDING PARTY: (1) Defendant, City of Torrance

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Petitioner’s Petition for Injunctive Relief Ordering Compliance with California Public Records Act, Cal. Gov’t Code § 7920.000 et seq., and Cal. Constitution, Art. 1, § 3
(2) City's Request for Judicial Notice

Tentative Ruling: (1) DENIED. DJL Architects’ plans are protected by federal copyright laws that the City validly raised as grounds for refusal to permit Mr. Buck to copy, although the City complied with the CPRA in allowing him to inspect those plans. The Court can conduct in camera review of the documents submitted to confirm these grounds, and Mr. Buck can explain his intended use of the copy he seeks to make at his own expense
(2) RFJN is granted

I. BACKGROUND¿¿¿

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A. Factual¿¿¿

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On January 5, 2024, Petitioner, G. Joseph Buck filed a Petition for Declaratory and Injunctive Relief order Compliance with the California Public Records Act, Cal. Gov Code §§ 7020.000 et seq., and California Constitution Art. 1, § 3(b). In Petitioner’s Petition for Declaratory and Injunctive Relief Order for Compliance with the Public Records Act, Petitioner contends that Responded uses the label “PRE23-00013” to identify a recent request for approval of a Precise Plan of Development for property located at 22209 Susana Ave., Torrance, CA. (Petition, ¶ 17.) The Petition indicates that Respondent’s planning department holds and retains documents pertaining to Precise Plan PRE23-00013 in a file identified in The same manner. (Petition, ¶ 18.) On December 18, 2023, at Petitioner’s request, Petitioner notes that Respondent permitted Petitioner to examine the contents of the file, maintained in Respondent’s Planning Department, that contained documents filed by the Applicant for approval of Precise Plan PRE23-00013. (Petition, ¶ 19.) Later that day, Petitioner notes that he then delivered to Respondent, Petitioner’s Public Records Act request identified as “Public Records Act Request re: PRE23-00013,” which request Respondent then further identified as “Public Records Act Request:: W011717-121823.” (Petition, ¶ 20.)

The Petition further contends that in his Public Records Act Request, he asked for Respondent’s “permission to use [his] own equipment to photograph, and obtain for [him] a copy of each of the documents that [he] examined in the City of Torrance Planning Department on December 18, 2023, and that [he] described above,” i.e., “large-sized sheets of paper that bear the labels: A1 – Site Plan, A2 – First Floor Plan, A3 – Second Floor Plan, Aa5 – Elevations, A7 – Roof Plan, and TS – Boundary/Topography Survey.” (Petition, ¶ 21.) Petitioner notes that with the exception of the Document labeled “A1-Site Plan” Respondent refused to permit Petitioner to photograph any of the Documents. (Petition, ¶ 23.) Petitioner asserts that Respondent’s refusal to allow Petitioner to use Petitioner’s own equipment, to make and retain a copy of each of the Defendants (with the exception of the Document identified as A1-Site Plan), violates the provisions of the CPRA as set forth by Government Code section 7922.530(b). (Petition, ¶ 29.)

B. Procedural¿¿¿

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On April 5, 2024, Petitioner filed a brief in Support of Petitioner’s Verified Petition. On April 8, 2024, Respondent filed an opposition brief. On April 8, 2024, Respondent also filed a Notice of Lodgment of Exhibit “E” In Camera review.

II. REQUEST FOR JUDICIAL NOTICE

With Respondent’s opposition papers, Respondent has Requested this Court take judicial notice of the following:

1. Relevant excerpts from the meeting agenda for the January 17, 2024 City of Torrance Planning Commission meeting, Supplemental #1 – Item 8C and Supplemental #2 – Item 8C. (Exhibit C to the Declaration of Oscar Martinez (“Martinez Declaration”).)

2. Relevant excerpts from the minutes from the January 17, 2024 City of Torrance Planning Commission meeting. (Exhibit D to the Martinez Declaration.)

3. The complaint in the lawsuit entitled, G. Joseph Buck v. City of Torrance, Los Angeles Superior Court Case No. 22TRCP000251. (Exhibit F to the Declaration of Jennifer Vicente Guerrero (“Guerrero Declaration”.)

4. Relevant excerpt from the California Municipal Law Handbook (CEB 2023). (Exhibit G to the Guerrero Declaration.)

5. Relevant excerpt from The People’s Business, A Guide to the California Public Records Act (Cal. League of Cities Sept. 2022). (Exhibit H to the Guerrero Declaration.)

6. The Legislative History (Bill Analysis) for Senate Bill 1214, a true and correct copy of which is attached as Exhibit I to the Guerrero Declaration. 7. Circular 1: Copyright Basics published by the U.S. Copyright Office, a true and correct copy of which is attached as Exhibit J to the Guerrero Declaration.

The Request for Judicial Notice is GRANTED.

III. ANALYSIS¿¿

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A. Legal Standard

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (Code Civ. Proc. §1094.5) or of traditional mandamus. (Code Civ. Proc., §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 Code of Civil Procedure 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.

B. Discussion

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).

The California Public Rights Act (“CPRA”)

The CPRA was enacted in 1968 to safeguard the accountability of government to the public. (San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App.4th 762, 77172.) Government Code section 7921.000 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 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. In 2004, the voters endorsed the CPRA by approving Prop 59, which amended the state Constitution to declare that “the writings of public agencies…shall be open to public scrutiny.” (Cal. Const. Art. I, §3(b).)

The CPRA makes clear that “every person” has a right to inspect any public record. (Gov. Code, §7922.525(a).) The inspection may be for any purpose; the requester’s motivation is irrelevant. (Gov. Code, §7921.300.) 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. (Gov. Code, §7920.530(a).) The definition of “state agency” excludes agencies described in Articles IV and VI of the state constitution, which describe the legislative and judicial branches, except the State Bar of California. (Gov. Code, §7920.540.)

A CPRA request must reasonably describe an identifiable public record or records. (Gov. Code, §7922.530(a).) Upon receiving a request for a copy of public records, an agency must determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, but that deadline may be extended up to 14 days for unusual circumstances. (Gov. Code, §§ 7922.535(a), (b).) Nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” (Gov. Code, §7922.500.)

Even significant expense to the agency will not excuse an agency from conducting a thorough search for responsive records unless it constitutes an undue burden. (See, e.g., CBS Broadcasting Inc. v. Superior Ct., (2001) 91 Cal. App. 4th 892, 909 ($43,000 cost to agency to compile responsive public records was not valid reason to deny CPRA request).) “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. 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, (“San Jose”), (2017) 2 Cal.5th 608, 627 (citation omitted).)

The “CPRA does not prescribe specific methods of searching for those documents and 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...” (Ibid. (citation omitted).) If the agency determines that the requested records are subject to disclosure, it must state in the determination “the estimated date and time when the records will be made available.” (Gov. Code, §7922.535(a).) There is no deadline expressed in number of days for producing the records. Rather, the agency “shall make the records promptly available.” (Gov. Code, §7922.530(a).)

If the agency determines that the requested records are not subject to disclosure, the agency must promptly notify the person making the request and provide the reasons for its determination. (Gov. Code, §7922.535(a).) The agency must justify withholding a responsive record by demonstrating it is exempt or that on the facts of the case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Gov. Code, §7922.000.) The determination that the request is denied, in whole or part, must be in writing. (Gov. Code, §7922.540(a).)

CPRA Exemptions

In this case, Respondent argues that at least two exemptions from the CPRA apply to Petitioner’s request for copies of the Records, which every public agency in the state of California relies on to protect architectural plans and other copyrighted material in its files: (1) the express exemption for records where “disclosure…is exempted or prohibited pursuant to federal or state law” (Gov. Code § 7927.705); and (2) the so-called “catch all” or “public interest” exemption that applies where the “public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record” (Gov. Code § 7922.000).

The right to inspect is subject to certain exemptions, which are narrowly construed. (California State University, supra, 90 Cal.App.4th at 831.) The burden of demonstrating that exemptions apply lies with the governmental entity. (Gov. Code, §7922.000.)

Prohibited by State or Federal Law Exemption

First, Respondent asserts that Federal and State Law prohibit the City from providing copies of the records to the public, and therefore are exempt from the PRA. Here, Petitioner’s request sought to examine the contents of the Application for a Precise Plan of Development to build a two-story single-family home located at 22209 Susana, Torrance, California, and sought to make copies, with his own equipment, of certain sheets from the plans and drawings submitted with the Application. These records are a single document, consisting of a total of seven sheets, and together, constitute the project plans on file with the City submitted with the Application. Respondent notes that all of the sheets except for TS- Boundary/Topographical Survey were created by Douglas J. Leach, Architects, Inc. (DJL Architects.) Respondent further notes that the last page is a survey and topography plan originally prepared by Eagle Eye Land Surveying, and specifically, Michael A. Profet, a California licensed land surveyor, license umber LS 9806 and is included as an integral part of the Project Plans. City notes that it notified Mr. Leach, a principal of DJL Architects, of Petitioner’s request to make copies of the records. However, Respondent notes that Mr. Leach, one of the design professionals that created the records, responded that he would not provide authorization for copies of the Records, and noted they were intellectual property and that permitting copies of the records would cause him irreparable harm because anyone could reproduce them without his compensation to DJ Architects, which may result in substantial losses, including lost profits, to DJL Architects.

Pursuant to 17 U.S.C. § 102(a), Architectural plans are expressly and automatically protected by federal copyright laws. Under 17 U.S.C. § 102(a), Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:…(8) architectural works.” (17 U.S.C. § 102(a)(8).) Respondent in this case notes that the documents sought by Petitioner all include an “original work of authorship fixed in a tangible medium of expression, and fit within the categories of architectural works as well as pictorial and graphic work.

Public records are exempt from disclosure where “exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” (Gov. Code, §7927.705.) In this case, Respondent denied Petitioner’s request to make copies, with his own equipment, of certain sheets from the plans and drawings submitted with the application (Petition, ¶¶ 20-21, Ex. 1), because Respondent contends that such would violate Federal Copyright law pursuant to 17 USC § 107.

As implied by the parties’ lack of case citations, this topic is seemingly a case of first impression. However, Respondent has presented citations to California Municipal Law Handbook, noting:

Records “the disclosure of which is exempted or prohibited pursuant to federal or state law” (Govt C §6254 (k) [now Gov’t Code § 7927.705]) include federally copyrighted architectural works, defined as the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings” (17 USC §101). Architectural plans cannot be copied without the permission of the owner. (17 USC §§102(a)(8), 106.) The fair use rule (17 USC §107) is a defense only to a copyright infringement action and thus is not a separate ground for disclosure under the Public Records Act. (17 USC §107.) The official copy of building plans maintained by a local agency’s building department may be inspected but may not be copied without first requesting the written permission of the licensed or registered professional who signed the document and the original or current property owner. (Health & S C §19851.)

(California Municipal Law Handbook (Cal CEB, 2023) § 2.223; Guerrero Decl., 9, Ex. G.) Respondent has also provided instructive authority to the leading CPRA-specific treatise, entitled “The People’s Business: A Guide to the California Public Records Act,” prepared by the League of California Cities, directly addressing the sole issue presented in this case:

The PRA recognizes exemptions to the disclosure of a record “which is exempted or prohibited [from disclosure] pursuant to federal or state law ....” Under this rule, architectural and official building plans may be exempt from disclosure, because: (1) architectural plans submitted by third parties to local agencies may qualify for federal copyright protections; (2) local agencies may claim a copyright in many of their own records; or (3) state laws address inspection and duplication of building plans by members of the public. “Architectural work,” defined under federal law as the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings,” is considered an “original work of authorship,” which has automatic federal copyright protection. Architectural plans may be inspected, but cannot be copied without the permission of the owner . . .

Some requesters will cite the “fair use of copyrighted materials” doctrine as giving them the right to copy architectural plans. The fair use rule is a defense to a copyright infringement action only and not a legal entitlement to obtain copyrighted materials.

(The People’s Business (Cal. Cities, Sept. 2022), Ch. 4, p. 30 [citations omitted, emphasis added]; Guerrero Decl., ¶ 10, Ex. H.)

Based on the above, federal copyright infringement would qualify as an exemption to the CPRA. The Court notes that Petitioner’s moving papers cite to County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301 (“Santa Clara”), where the Sixth District Court of Appeal discussed the legislative history of the since repealed statute of California Government Code § 6254.9. (170 Cal.App.4th 1301, 1334. Government Code section 6254.9 permitted “the nondisclosure of computer software, defined to include computer mapping systems.” (Id. at 1330.) Specifically, Government Code section 6254.9, subdivision (e), addressed copyright as follows: “Nothing in this section is intended to limit any copyright protections.” (Ibid.) In conclusion, the Court of Appeal stated: “In sum, while section 6254.9 recognizes the availability of copyright protection for software in a proper case, it provides no statutory authority for asserting any other copyright interests.” (Id. at 1334.) Dissimilarly, this Court does not believe that the case here involves computer software and is only referencing the information in electronic format not limiting any other copyright protections. Instead, this Court notes, as did the discussions above, that the government code sections involved in the CPRA nonetheless provide protections for federal and state prohibited acts.

This Court also found instructive authority from The Rutter Group California Practice Guide – Administrative Law, Chapter 29(F): Exemptions from Right of Inspection and Copying, which states that:

Federal copyright law is another form of protection from the copying (but not inspection) of copyrighted documents (see 17 USC § 101 et seq.). However, the restriction on copying is subject to a number of exclusions, the most important of which for purposes of the PRA is the “fair use” doctrine. Under the doctrine, the fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research” is not a copyright infringement, and the statute enumerates four factors to consider in determining whether, in a given case, the use is a fair use. (17 USC § 107; see Andy Warhol Found. For the Visual Arts, Inc. v. Goldsmith (2023) 598 US 508.)

(F. Exemptions From Right of Inspection and Copying, California Practice Guide: Administrative Law Ch. 29-F.)

Here, the Court is uncertain, based on the moving and opposing papers, what use Petitioner is seeking to utilize the copies of the architectural plans for. Although Petitioner’s moving papers discuss fair use, he does not indicate how proposed use of the copies would fall into one of the fair use exceptions. Respondents’ application notes that Petitioner examined the contents of the Application for a precise plan of development to build a two-story single-family home. The Court is unsure whether Petitioner is attempting to copy the architectural plans to utilize them into a plan of his own, to build the same home, etc.. Thus, the Court would need more information to determine whether a fair use doctrine exemption is available to Petitioner.

Further, Petitioner argues that even if this would violate copyright law, there is no copyright on the sought copies. As noted in Respondent’s opposition, simply because a copyright is not federally registered, it does not negate that the owner’s rights are protected and secured automatically when the work was created. This Court does clarify, however, that a copyright owner may not file an infringement suit intil the copyright office has processed the application. Moreover, as noted by Respondent, the exclusive right and authority to permit Petitioner to make copies or to provide Petitioner with copies lies with the architect and/or surveyor, not the City.

Next, Respondent argues that California State law also prohibits providing the copies as Business & Professions Code section 5536.4(a) states that: “No person may use an architect’s instruments of service, as those professional services are described…without the consent of the architect in a written contract, written agreement, or written license specifically authorizing that use.” Further, Business & Professions Code section 5500.1(b) notes that an “Architects’ professional services may include any or all of the following… (1) Investigation, evaluation, consultation, and advice; (2) Planning, schematic and preliminary studies, designs, working drawings, and specifications; (3) Coordination of the work of technical and special consultants; (4) Compliance with generally applicable codes and regulations, and assistance in the governmental review process; (5) Technical assistance in the preparation of bid documents and agreements between clients and contractors; (6) Contract administration; and (7) Construction observation.” Thus, the fact that when asked by Respondent, the architect here did not consent to allowing the copying of his work by Petitioner, granting a motion based on the CPRA would violated California state law.

As far as the waiver argument is concerned, this Court notes that neither party has cited to any evidence that disclosing a document to the public would allow for copying under the waiver provision in Government Code section 7921.505. The Court requests oral argument as to this issue.

Public Interest Exemption

Second, and as a alternative ground for its refusal to permit Mr. Buck to make the requested copies, Respondent’s opposition contends that the requested records are also exempt under the CPRA’s catch-all exemption. Under the catch-all provisions of Government Code section 7922.00-.540 (formerly §6255), public records are exempt from disclosure if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.” Pursuant to the catch-all provisions, the agency must demonstrate a clear overbalance on the side of confidentiality. (California State University, Fresno Assn., Inc. v. Superior Court, (2001) 90 Cal.App.4th 810, 831.)

Respondent argues that the public interest balancing test requires the consideration of: (1) the public interest in disclosure, (2) the public interest in nondisclosure and (3) whether there are less intrusive alternatives to satisfy the public interest in disclosure. (San Jose v. Superior Court (1999) 74 Cal.App.4th 1008.) Respondent argues that the public interest served by refusing to provide copies of the copyrighted Records outweighs the public interest served by obtaining actual copies of information already available to the public. Here, Respondent acknowledges that Petitioner, like a member of the public, has already been permitted, and is permitted, to review and inspect the records in person without harming the copyright holder or subjecting the City to significant liability.

This Court further finds that both federal and state law would be violated if Petitioner was allowed access to copy the records himself and keep those copies. Thus, the public interest in protecting the rights of owners of original works as well as rights of architects to have the sole power to grant individuals use of their work would be lost. Respondent argues that providing said copies of the records would also result in a chilling effect on architects and other design professionals working on any development projects in the City, who would be reluctant to provide their work to the City for proposed developments, and could refrain working on projects in the City at all. Lastly, Respondent asserts that the City and its taxpayers have a significant interest in avoiding a lawsuit from the copyright holder, and potentially being faced with significant liability for improperly providing copies of copyrighted material. The Court thus tentatively determines that it is likely that public interest would weigh in favor of not allowing for copying of the records.

IV. CONCLUSION¿¿¿

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For the foregoing reasons, this Court’s tentative ruling is to DENY the Petition as this Court believes that said records will likely fall under the CPRA exemptions. The Court nonetheless, seeks clarifications as noted above, and will allow oral argument on the issues.

Respondent is ordered to give notice of the Court’s ruling.