This case was last updated from Los Angeles County Superior Courts on 11/26/2020 at 00:32:51 (UTC).

BRIAN SANDERS VS TORRANCE POLICE DEPARTMENT

Case Summary

On 10/17/2019 BRIAN SANDERS filed an Other - Writ Of Mandamus lawsuit against TORRANCE POLICE DEPARTMENT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4466

  • Filing Date:

    10/17/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • County, State:

    Los Angeles, California

 

Party Details

Petitioner

SANDERS BRIAN

Respondent

TORRANCE POLICE DEPARTMENT

Attorney/Law Firm Details

Petitioner Attorney

BORCHERT BRENT

Respondent Attorney

THOMPSON-BELL DELLA

 

Court Documents

Trial Brief

10/5/2020: Trial Brief

Opposition - OPPOSITION BRIEF

10/22/2020: Opposition - OPPOSITION BRIEF

Declaration - DECLARATION OF DELLA THOMPSON-BELL IN SUPPORT OF RESPONDENT/DEFENDANT'S CITY OF TORRANCE OPPOSITION BRIEF

10/22/2020: Declaration - DECLARATION OF DELLA THOMPSON-BELL IN SUPPORT OF RESPONDENT/DEFENDANT'S CITY OF TORRANCE OPPOSITION BRIEF

Declaration - DECLARATION OF OFFICER ANDREW LEE IN SUPPORT OF OPPOSITION TO PETITION FOR WRIT OF MANDATE

10/22/2020: Declaration - DECLARATION OF OFFICER ANDREW LEE IN SUPPORT OF OPPOSITION TO PETITION FOR WRIT OF MANDATE

Proof of Service (not Summons and Complaint)

10/27/2020: Proof of Service (not Summons and Complaint)

Reply - REPLY REPLY BRIEF; DECLARATION OF BRENT BORCHERT

11/3/2020: Reply - REPLY REPLY BRIEF; DECLARATION OF BRENT BORCHERT

Minute Order - MINUTE ORDER (HEARING ON PETIITON FOR WRIT OF MANDATE)

11/24/2020: Minute Order - MINUTE ORDER (HEARING ON PETIITON FOR WRIT OF MANDATE)

Notice of Ruling

11/25/2020: Notice of Ruling

Case Management Statement

2/4/2020: Case Management Statement

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

2/6/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

Answer

11/25/2019: Answer

Amended Complaint

11/1/2019: Amended Complaint

Summons - SUMMONS ON COMPLAINT

10/17/2019: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

10/17/2019: Notice of Case Assignment - Unlimited Civil Case

Civil Case Cover Sheet

10/17/2019: Civil Case Cover Sheet

Notice of Trial Setting Conference and Attached Orders Thereon

10/17/2019: Notice of Trial Setting Conference and Attached Orders Thereon

Order on Court Fee Waiver (Superior Court)

10/17/2019: Order on Court Fee Waiver (Superior Court)

Complaint

10/17/2019: Complaint

6 More Documents Available

 

Docket Entries

  • 11/25/2020
  • DocketNotice of Ruling; Filed by Torrance Police Department (Respondent)

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  • 11/24/2020
  • Docketat 09:30 AM in Department 82; Hearing on Petition for Writ of Mandate - Held

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  • 11/24/2020
  • DocketMinute Order ( (HEARING ON PETIITON FOR WRIT OF MANDATE)); Filed by Clerk

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  • 11/03/2020
  • DocketReply (BRIEF); Filed by Brian Sanders (Petitioner)

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  • 10/27/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Torrance Police Department (Respondent)

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  • 10/22/2020
  • DocketDeclaration (of Della Thompson-Bell in support of Respondent/Defendant's City of Torrance Opposition Brief); Filed by Torrance Police Department (Respondent)

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  • 10/22/2020
  • DocketDeclaration (of Officer Andrew Lee in Support of Opposition to Petition for Writ of Mandate); Filed by Torrance Police Department (Respondent)

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  • 10/22/2020
  • DocketOpposition (Brief); Filed by Torrance Police Department (Respondent)

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  • 10/05/2020
  • DocketTrial Brief; Filed by Brian Sanders (Petitioner)

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  • 02/06/2020
  • Docketat 1:30 PM in Department 82; Trial Setting Conference - Held

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1 More Docket Entries
  • 02/04/2020
  • DocketCase Management Statement; Filed by Brian Sanders (Petitioner)

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  • 11/25/2019
  • DocketAnswer; Filed by Torrance Police Department (Respondent)

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  • 11/01/2019
  • Docket1st Amended Complaint; Filed by Brian Sanders (Petitioner)

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  • 11/01/2019
  • DocketAmended Complaint (1st); Filed by Brian Sanders (Petitioner)

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  • 10/17/2019
  • DocketCivil Case Cover Sheet; Filed by Brian Sanders (Petitioner)

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  • 10/17/2019
  • DocketSummons (on Complaint); Filed by Brian Sanders (Petitioner)

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  • 10/17/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 10/17/2019
  • DocketComplaint; Filed by Brian Sanders (Petitioner)

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  • 10/17/2019
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 10/17/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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Tentative Rulings

Case Number: *******4466    Hearing Date: March 16, 2021    Dept: 82

Brian Sanders,

v.

Torrance Police Department,

Judge Mary Strobel

Hearing: March 16, 2021

*******4466

Tentative Decision on Motion for Attorney’s Fees

Petitioner Brian Sanders (“Petitioner”) moves for an award of attorney’s fees and costs pursuant to Government Code section 6259(d) against Respondent Torrance Police Department (“Respondent” or “Department”) in the amount of $18,888.

Background

On August 7, 2019, Petitioner submitted a CPRA request to the Torrance Police Department seeking the names of the victims of an assault with a deadly weapon. (Sanders Decl. Exh. A.)

On August 13, 2019, Petitioner received a declaration of Christy Witherspoon, Police Administrative Services Manager of the Torrance Police Department, informing him that his CPRA request would not be fulfilled based on California Government Code section 6254(c) and California Government Code section 6255(a). (Sanders Decl. ¶ 3, Exh. B, C.)

On October 17, 2019, Petitioner filed his verified petition for writ of mandate and complaint for declaratory relief. On November 1, 2019, Petitioner filed a first amended petition and complaint for declaratory relief.

On or about November 6, 2019, Respondent served on Petitioner’s counsel an amended declaration of Witherspoon in response to the CPRA request. In this amended declaration, signed under penalty of perjury, Witherspoon asserted: “releasing the requested information of the victim's name would endanger both a person involved in this investigation and the successful completion of the investigation,- no documents or information is being transmitted. See Government Code section 6254(f) ….” (Thompson-Bell Decl. ¶¶ 6-7, Exh. D-E.) Petitioner’s counsel acknowledged receipt of the amended declaration by email on November 6, 2019. (Ibid.)

On November 25, 2019, Respondent filed an answer, which asserted affirmative defenses under Government Code sections 6254(f) and 6255(a).

On February 6, 2020, the court held a trial setting conference attended by counsel for Petitioner and Respondent. The court set the writ petition for hearing on November 24, 2020, and set a briefing schedule. Petitioner was ordered to file and serve the opening brief 60 days before the hearing. The opposition was due 30 days before the hearing, and the reply 15 days.

On October 5, 2020, Petitioner untimely filed and served an opening brief.

On October 22, 2020, Respondent timely filed and served an opposition. On November 3, 2020, Petitioner timely filed and served a reply.

On October 5, 2020, when Petitioner served his opening brief, Respondent’s counsel requested information from the Los Angeles Superior Court regarding the status of the underlying criminal matter for which Petitioner had requested the victim’s name. Respondent’s counsel was provided, among other things, a copy of the dockets for case number YA100231, demonstrating that the defendants were convicted and sentenced in this matter on September 21, 2020. (Thompson-Bell Decl. ¶ 13, Exh. I.) Respondent’s counsel then requested the Records Divisions of the Torrance Police Department to prepare a second amended response to petitioner's CPRA request. (Id. Exh. J.)

On or about October 20, 2020, Respondent produced an amended declaration of Christy Witherspoon disclosing the name and age of the victim of the assault at issue in Petitioner’s CPRA request: Andres Gomez-Zepeda, age 24. (Id. Exh. J.)

On November 24, 2020, the court denied the writ petition as moot for the reasons set forth in the official notices of the court reporter. At the request of Petitioner’s counsel, the court did not rule on Petitioner’s request for a declaration that Respondent violated the CPRA. (Thompson-Bell Decl. Exh. L.)

On March 31, 2021, Petitioner filed his motion for fees and costs. The court has received Respondent’s opposition and Petitioner’s reply.

Analysis

In a CPRA action, “the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” (Gov. Code ; 6259(d).) Under the CPRA, an award of attorney’s fees to a prevailing plaintiff is mandatory. (Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249, 1252.)

“A plaintiff prevails within the meaning of the [CPRA] ‘when he or she files an action which results in defendant releasing a copy of a previously withheld document.’” (Los Angeles Times v. Alameda Corridor Transp. Authority (2001) 88 Cal.App.4th 1381, 1391.) “A plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.” (See Belth v. Garamendi (1991) 232 Cal.App.3d 896, 901.) “The appropriate benchmarks in determining which party prevailed are (a) the situation immediately prior to the commencement of suit, and (b) the situation today, and the role, if any, played by the litigation in effecting any changes between the two.' ” (Id. at 902.) Significantly to this motion, “a plaintiff need not achieve a favorable final judgment in order to be a successful party.” (Id. at 901.)

[A] PRA plaintiff does not qualify as a prevailing party merely because the defendant disclosed records sometime after the PRA action was filed. There must be more than a mere temporal connection between the filing of litigation to compel production of records under the PRA and the production of those records. The litigation must have been the motivating factor for the production of documents. [Citations.] The key is whether there is a substantial causal relationship between the lawsuit and the delivery of the information.” (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464.) “If a plaintiff succeeds in obtaining only partial relief, the plaintiff is entitled to attorney fees unless the plaintiff obtains results ‘that are so minimal or insignificant as to justify a finding that the plaintiff did not [in fact] prevail.’” (Sukumar, supra at 464.)

Petitioner is the Prevailing Party and Is Entitled to Attorney’s Fees and Costs Under Government Code Section 6259(d)

Petitioner contends that this writ petition “motivated Respondent to disclose the victim’s name” and “was the sole catalyst for Respondent’s voluntary disclosure.” (Mot. 6.) Respondent contends that the writ petition did not motivate to release the victim’s name. Rather, Respondent contends that “City promptly released the name of the victim once it was made aware that the criminal defendants were convicted.” (Oppo. 6.)

On August 7, 2019, Petitioner submitted a CPRA request to the Torrance Police Department seeking the names of the victims of an assault with a deadly weapon. (Sanders Decl. Exh. A.) On August 13, 2019, Respondent denied the request based on exemptions in Government Code section 6254(c) and section 6255(a). (Sanders Decl. ¶ 3, Exh. B, C.) On October 17, 2019, Petitioner filed his verified petition for writ of mandate and complaint for declaratory relief. On November 1, 2019, Petitioner filed a first amended petition. On or about November 6, 2019, shortly after the amended petition was filed, Respondent served a supplemental response to the CPRA request, denying disclosure of the victim’s name under section 6254(f). (Thompson-Bell Decl. ¶¶ 6-7, Exh. D-E.) On October 5, 2020, Petitioner untimely filed and served an opening brief in support of the petition. On or about October 20, 2020, just two days before Respondent filed its opposition brief, Respondent produced an amended declaration of Christy Witherspoon disclosing the name and age of the victim of the assault at issue in Petitioner’s CPRA request: Andres Gomez-Zepeda, age 24. (Id. Exh. J.) As discussed below, Respondent, which has the burden of proof on the issue, has failed to establish at the writ trial or its opposition to this motion that it properly withheld the victim’s name pursuant to a CPRA exemption, including sections 6254(c), 6255, or sections 6254(f). This timing of events, coupled with Respondent’s failure to justify non-disclosure, establishes that Respondent produced the victim’s name in response to Petitioner filing the writ petition and litigating this action through trial.

Respondent contends that “City is no longer required to ‘justify’ its initial non- disclosure because, Petitioner waived that issue at the hearing on the writ when the Court gave him that opportunity.” (Oppo. 4-5.) Petitioner waived a ruling from this court on his claim for declaratory relief. However, Petitioner did not waive his request for attorney’s fees. While Respondent is not required to justify its initial non-disclosure to oppose the fee motion, it also cannot claim that the non-disclosure was justified without proving that a CPRA exemption applied. 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.)

Respondent has not met its burden of proof to establish that it properly withheld the victim’s name at the time of the CPRA request or at any time thereafter. The court addressed this issue at length in its written tentative ruling for the writ hearing on November 24, 2020. The court stated in pertinent part:

Section 6255 “allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.” (City of San Jose v. Sup. Ct. (1999) 74 Cal.App.4th 1008, 1017.) “The burden of proof is on the proponent of nondisclosure, who must demonstrate a ‘clear overbalance’ on the side of confidentiality.” (Id. at 1018.)

Section 6254(f)(2)(A) provides in pertinent part:

(f) …. [¶]

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

….[¶] the name and age of the victim, ….¶¶ [emphasis added.]

In opposition, Respondent submits a declaration of Andrew Lee, a police officer who has been assigned as a detective to the Department’s Special Investigations unit since May 2019. Lee declares under penalty of perjury: “As a detective, I was assigned to incident number 19001971, which is an assault with a firearm case.” (Lee Decl. ¶ 4.) Petitioner’s CPRA request “identifies [the] case identified as incident number 19001971.” (Id. ¶ 5.) “Based on my training and experience, the release of the victims'/witnesses' names in this particular case would endanger the safety of these persons and it would endanger the successful completion of this matter.” (Id. ¶ 6.) “If the court required more specific information regarding the danger the release of the victims'/witnesses' names would pose in this particular case, I would request that the court allow me either to appear in camera or submit a declaration under seal, detailing the specific facts of this case.” (Id. ¶ 7.)

The October 20, 2020 amended CPRA response identifies the factual circumstances of the crime as follows: “On 02 May19, at approximately 2120 hours, a shooting took place in the 23100 block of Ladeene Ave.'s west alley. Officer's investigation revealed a kidnapping and attempted homicide.” (Thompson-Bell Decl. Exh. J.) Minutes from the underlying criminal cases show that a preliminary hearing was not held until September 19, 2019, after Petitioner made the CPRA request and after Respondent was required to respond. (Id. Exh. I.) Officer Lee was present for the hearing. (Ibid.) The court required the defendants to answer certain charges. (Ibid.) Defendants pleaded nolo contendere on September 21, 2020 to certain charges. One defendant was sentenced to 10 years in prison, and the other defendant was placed on probation for 5 years. (Ibid.) The defendant sentenced to 10 years pleaded nolo contendere to and was convicted of a violation of Penal Code section 245(b), “an assault upon the person of another with a semiautomatic firearm.” That defendant also admitted to special allegations under Penal Code sections 12022.7(a) and 12022.5(a).

Lee declares that “based on my training and experience, the release of the victims'/witnesses' names in this particular case would endanger the safety of these persons and it would endanger the successful completion of this matter.” (Lee Decl. ¶ 6 [emphasis added].) Although Lee’s declaration is terse and somewhat vague as to time period, the evidence supports that Lee was the investigating officer and should be knowledgeable of the risks of premature disclosure of the victims’/witnesses’ names under the facts of this case. However, the CPRA request did not ask for witness names, only the name of the victims. Further, two people had already been arrested as reported in the newspaper before the CPRA request was made. Under these circumstances, Lee’s declaration does not completely explain why release of the victim’s name at that juncture would jeopardize the investigation. It may be that release of the victim’s name could endanger the victim, but presumably only if the victim were a stranger to the persons arrested for the crime. The court cannot discern these answers from the Lee declaration.

In his declaration, Lee offered to provide supplemental information in camera or under seal. The court does not find an in camera proceeding justified on the information provided. However, the court will give Respondent an opportunity to provide a supplemental declaration. If Respondent wishes the declaration or portions of it to be sealed, Respondent must file the declaration conditionally under seal along with a motion to seal pursuant to California Rules of Court, Rule 2.550 et. seq. (See Tentative Ruling Distributed Prior to November 24, 2020 Hearing.)

The court did not adopt this tentative ruling because Petitioner declined to pursue the claim for declaratory relief and elected to proceed directly to a fee motion. The court’s tentative ruling should have alerted Respondent that it had not met its burden of proof on the CPRA exemptions based on the Lee declaration and other evidence already submitted in this case. Despite this tentative ruling, Respondent has not submitted a supplemental declaration from Lee or anymother involved officer to explain how release of the victim’s name could have endangered the investigation or the victim at the time Petitioner made his CPRA request or at any time thereafter. The exemption under section 6254(f) is based on the same underlying facts as the exemptions under section 6255(a) and section 6254(c). Accordingly, the court has insufficient basis to conclude that Respondent properly withheld the victim’s name.

Respondent contends: “[T]he City withheld the name of the victim in a violent crime case until after that case concluded. (DTB Decl, 113.) The City promptly released the name of the victim once it was made aware that the criminal defendants were convicted. (Id ) Therefore the petition was not the motivating factor for the release of the requested information, but rather the successful completion of the criminal case motivated the release of the information.” (Oppo. 6.) This argument is unpersuasive because it assumes, without foundation or evidence, that Respondent properly withheld the victim’s name until after the criminal defendants were convicted. Absent a showing by Respondent that a CPRA exemption authorized non-disclosure until October 2020, the most reasonable inference is that Respondent disclosed the name, just weeks before trial, because of Petitioner’s litigation.

Petitioner is the prevailing party in this action pursuant to the catalyst theory.

Reasonable Fees and Costs

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’ [T]he lodestar is the basic fee for comparable legal services in the community….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

Hourly Rate

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. (Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 616.) In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.)

Petitioner requests an hourly rate of $495/hour for attorney Brent Borchert, who has about 18 years of experience as an attorney and who regularly litigates CPRA cases. (Borchert Decl. ¶¶ 4-10.) The court finds this hourly rate reasonable given Borchert’s legal experience, including in CPRA actions. Respondent has not disputed the reasonableness of this hourly rate.

Amount of Time Spent

“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford at 395.)

Petitioner’s counsel declares that he incurred 31.9 hours on the case through the fee motion, and that he expects to incur 6 hours on the reply. (Borchert Decl. ¶¶ 9-10.) Counsel authenticates a billing record detailing the individual tasks performed in this action. (Id. ¶ 8, Exh. A.) The court generally finds the hours on this billing record to be reasonable for this CPRA writ action considering that Petitioner was required to litigate the case through trial. Petitioner also reasonably requests 6 hours for the reply and appearance at the hearing on this motion, which has been opposed by Respondent.

Respondent challenges 4.1 hours that Petitioner incurred on discovery and 0.9 hours to prepare an amended petition. (Oppo. 6.) Petitioner withdraws his request for those five hours. (Reply 6.) Accordingly, Petitioner’s counsel reasonably spent 32.9 hours on this action (31.9 + 6 hours for reply – 5 hours withdrawn.)

Respondent contends that “[t]he remainder of Petitioner's counsel's hours should be reduced as he has filed almost identical petitions against public agencies throughout the state of California approximately 68 times as of October 2020.” (Oppo. 6-7.) Respondent contends: “[A]lthough sometimes under a different petitioner's name, counsel's hours should be reduced using all 68 petitions that were filed by Petitioner's counsel on behalf of his clients. Thus, if this Court were to award any attorney's fees in this matter, this Court should reduce the requested hours to 1/68 of the remaining hours to .39 of an hour making the reasonable fee $195.05 [$495 x .39 hour].” (Ibid.)

This argument is unpersuasive. Respondent cites no authority supporting the proposition that Petitioner’s fee request should be reduced because his attorney has litigated other CPRA cases. Moreover, that Petitioner has filed some previous CPRA actions provides no basis to reduce his fees in an entirely separate action. Respondent has not made a showing that the fact Petitioner’s counsel filed, and presumably worked on, other CPRA petition casts doubt on the relatively modest number of hours Petitioner’s counsel has claimed in connection with this Petition.

Petitioner’s reasonable fee for this action is $16,285.50 (32.9 hours x $495).

Conclusion

The motion is GRANTED in the amount of $16,285.50.



Case Number: *******4466    Hearing Date: November 24, 2020    Dept: 82

Brian Sanders,

v.

Torrance Police Department,

Judge Mary Strobel

Hearing: November 24, 2020

*******4466

Tentative Decision on Petition for Writ of Mandate

Petitioner Brian Sanders (“Petitioner”) petitions for a writ of mandate directing Respondent Torrance Police Department (“Respondent” or “Department”) to disclose the names of the victims of a crime pursuant to a request made by Petitioner under the California Public Records Act (“CPRA”). The First Amended Complaint also asks for a declaration that Respondent violated Petitioner’s rights under the CPRA.

Background

On August 7, 2019, Petitioner submitted a CPRA request to the Torrance Police Department seeking the names of the victims of an assault with a deadly weapon. (Sanders Decl. Exh. A.)

On August 13, 2019, Petitioner received a declaration of Christy Witherspoon, Police Administrative Services Manager of the Torrance Police Department, informing him that his CPRA request would not be filled based on California Government Code section 6254(c) and California Government Code section 6255(a). (Sanders Decl. ¶ 3, Exh. B, C.)

On October 17, 2019, Petitioner filed his verified petition for writ of mandate and complaint for declaratory relief. On November 1, 2019, Petitioner filed a first amended petition and complaint for declaratory relief.

On or about November 6, 2019, Respondent served on Petitioner’s counsel an amended declaration of Witherspoon in response to the CPRA request. In this amended declaration, signed under penalty of perjury, Witherspoon asserted: “releasing the requested information of the victim's name would endanger both a person involved in this investigation and the successful completion of the investigation,- no documents or information is being transmitted. See Government Code section 6254(f) ….” (Thompson-Bell Decl. ¶¶ 6-7, Exh. D-E.) Petitioner’s counsel acknowledged receipt of the amended declaration by email on November 6, 2019. (Ibid.)

On November 25, 2019, Respondent filed an answer, which asserted affirmative defenses under Government Code sections 6254(f) and 6255(a).

On February 6, 2020, the court held a trial setting conference attended by counsel for Petitioner and Respondent. The court set the writ petition for hearing on November 24, 2020, and set a briefing schedule. Petitioner was ordered to file and serve the opening brief 60 days before the hearing. The opposition was due 30 days before the hearing, and the reply 15 days.

On October 5, 2020, Petitioner untimely filed and served an opening brief. Respondent objects to Petitioner’s untimely brief and asks the court to disregard it. (Oppo. 3, fn. 1.) Petitioner has provided no justification for the late filing. Petitioner’s counsel is admonished to comply with court rules and filing deadlines. Given that Respondent has fully addressed the merits in opposition and submitted evidence, the court exercises it discretion to consider the opening brief.

On October 22, 2020, Respondent timely filed and served an opposition. On November 3, 2020, Petitioner timely filed and served a reply.

On October 5, 2020, when Petitioner served his opening brief, Respondent’s counsel requested information from the Los Angeles Superior Court regarding the status of the underlying criminal matter for which Petitioner had requested the victim’s name. Respondent’s counsel was provided, among other things, a copy of the dockets for case number YA100231, demonstrating that the defendants were convicted and sentenced in this matter on September 21, 2020. (Thompson-Bell Decl. ¶ 13, Exh. I.) Respondent’s counsel then requested the Records Divisions of the Torrance Police Department to prepare a second amended response to petitioner's CPRA request. (Id. Exh. J.)

On or about October 20, 2020, Respondent produced an amended declaration of Christy Witherspoon disclosing the name and age of the victim of the assault at issue in Petitioner’s CPRA request: Andres Gomez-Zepeda, age 24. (Id. Exh. J.) In reply, Petitioner admits that Respondent disclosed the requested information about the victim of the assault with its opposition brief. (Reply 1.)

Summary of Applicable Law

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.) To facilitate the public’s access to this information, the CPRA mandates, in part, that:

[E]ach 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 . . .” (Gov. Code ; 6253(b).)

While the CPRA provides express exemptions to its disclosure requirements, these 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

The Petition for Writ of Mandate is Moot

Respondent contends that the petition for writ of mandate is moot. (Oppo. 6.) The court agrees. “A writ of mandate will issue … to compel the performance of an act specially enjoined by law.” (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 706.) On or about October 20, 2020, Respondent produced an amended declaration of Christy Witherspoon disclosing the name and age of the victim of the assault at issue in Petitioner’s CPRA request: Andres Gomez-Zepeda, age 24. (Id. Exh. J.) In reply, Petitioner admits that Respondent disclosed the requested information about the victim of the assault with its opposition brief. (Reply 1.) There would be no purpose in the court issuing a writ compelling Respondent to produce information that it has already produced to Petitioner. Accordingly, Petitioner’s request for a writ of mandate is moot. (See Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.)

Declaratory Relief

In reply, Petitioner contends: “Petitioner now has the information he sought, but still requires a judicial determination of whether Respondent violated the CPRA by withholding the information in the first place.” (Reply 1.) Although not clear from this short statement, Petitioner may refer to the prayer for declaratory relief in the petition. (See FAP p. 8, citing Gov. Code ; 6259.) Petitioner does not explain why he now is entitled to declaratory relief under the CPRA once the information was disclosed. The parties may address this at the hearing.

Assuming arguendo that Petitioner may be entitled to a judicial declaration, Respondent argues that the requested information was exempt under Government Code sections 6255(a) and 6254(f) at the time the request was made in August 2019 and was properly withheld at that time.

Section 6255 “allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.” (City of San Jose v. Sup. Ct. (1999) 74 Cal.App.4th 1008, 1017.) “The burden of proof is on the proponent of nondisclosure, who must demonstrate a ‘clear overbalance’ on the side of confidentiality.” (Id. at 1018.)

Section 6254(f)(2)(A) provides in pertinent part:

(f) …. [¶]

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

….[¶]

(2)(A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved…. (emphasis added.)

On August 7, 2019, Petitioner submitted his CPRA request to the Torrance Police Department seeking the names of the victims of an assault with a deadly weapon. (Sanders Decl. Exh. A.) Respondent was required to act on the request within 10 days and provided a response on August 13, 2019. (Gov. Code ; 6254(c); Sanders Decl. Exh. B-C.)

In opposition, Respondent submits a declaration of Andrew Lee, a police officer who has been assigned as a detective to the Department’s Special Investigations unit since May 2019. Lee declares under penalty of perjury: “As a detective, I was assigned to incident number 19001971, which is an assault with a firearm case.” (Lee Decl. ¶ 4.) Petitioner’s CPRA request “identifies [the] case identified as incident number 19001971.” (Id. ¶ 5.) “Based on my training and experience, the release of the victims'/witnesses' names in this particular case would endanger the safety of these persons and it would endanger the successful completion of this matter.” (Id. ¶ 6.) “If the court required more specific information regarding the danger the release of the victims'/witnesses' names would pose in this particular case, I would request that the court allow me either to appear in camera or submit a declaration under seal, detailing the specific facts of this case.” (Id. ¶ 7.)

The October 20, 2020 amended CPRA response identifies the factual circumstances of the crime as follows: “On 02 May19, at approximately 2120 hours, a shooting took place in the 23100 block of Ladeene Ave.'s west alley. Officer's investigation revealed a kidnapping and attempted homicide.” (Thompson-Bell Decl. Exh. J.) Minutes from the underlying criminal cases show that a preliminary hearing was not held until September 19, 2019, after Petitioner made the CPRA request and after Respondent was required to respond. (Id. Exh. I.) Officer Lee was present for the hearing. (Ibid.) The court required the defendants to answer certain charges. (Ibid.) Defendants pleaded nolo contendere on September 21, 2020 to certain charges. One defendant was sentenced to 10 years in prison, and the other defendant was placed on probation for 5 years. (Ibid.) The defendant sentenced to 10 years pleaded nolo contendere to and was convicted of a violation of Penal Code section 245(b), “an assault upon the person of another with a semiautomatic firearm.” That defendant also admitted to special allegations under Penal Code sections 12022.7(a) and 12022.5(a).

Lee declares that “based on my training and experience, the release of the victims'/witnesses' names in this particular case would endanger the safety of these persons and it would endanger the successful completion of this matter.” (Lee Decl. ¶ 6 [emphasis added].) Although Lee’s declaration is terse and somewhat vague as to time period, the evidence supports that Lee was the investigating officer and should be knowledgeable of the risks of premature disclosure of the victims’/witnesses’ names under the facts of this case. However, the CPRA request did not ask for witness names, only the name of the victims. Further, two people had already been arrested as reported in the newspaper before the CPRA request was made. Under these circumstances, Lee’s declaration does not completely explain why release of the victim’s name at that juncture would jeopardize the investigation. It may be that release of the victim’s name could endanger the victim, but presumably only if the victim were a stranger to the persons arrested for the crime. The court cannot discern these answers from the Lee declaration.

In his declaration, Lee offered to provide supplemental information in camera or under seal. The court does not find an in camera proceeding justified on the information provided. However, the court will give Respondent an opportunity to provide a supplemental declaration. If Respondent wishes the declaration or portions of it to be sealed, Respondent must file the declaration conditionally under seal along with a motion to seal pursuant to California Rules of Court, Rule 2.550 et. seq.

Petitioner’s arguments in reply are mostly unpersuasive. (Reply 1-7.) Petitioner points out that Respondent’s initial response on August 13, 2019, was based on Government Code sections 6254(c) and 6255(a), not section 6254(f). (Reply 1; see Sanders Decl. ¶ 3, Exh. B, C.) Respondent seeks to establish that the information was exempt under section 6255(a), which was identified in the initial response. Petitioner cites no authority that precluded Respondent from amending its response to include section 6254(f). The exemption under section 6254(f) is based on the same underlying facts as the exemption under section 6255(a).

Petitioner contends that “a police department ‘may not shield a document from disclosure with the bare assertion that it relates to an investigation.’ Williams v. Superior Court (1993) 5 Cal.4th 337, 356.” (Reply 2; see also Id. 3-6 [discussing section 6254(f)].) Petitioner’s discussion of the exemptions for investigatory files and records of investigation in section 6254(f) appears irrelevant to this case. Respondent did not withhold the victim’s name as part of an investigatory file or record of investigation.

Attorney’s Fees

In a CPRA action, “the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” (Gov. Code ; 6259(d).) “A plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.” (See Belth v. Garamendi (1991) 232 Cal.App.3d 896, 901.) “If a plaintiff succeeds in obtaining only partial relief, the plaintiff is entitled to attorney fees unless the plaintiff obtains results ‘that are so minimal or insignificant as to justify a finding that the plaintiff did not [in fact] prevail.’” (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464.)

In reply, Petitioner argues that “[i]f the Court is inclined to find that the case is moot, Petitioner requests that the Court find that Petitioner is the prevailing party now that he has received the information that he requested and set a hearing date for a motion for attorney’s fees.” (Reply 3.) Should Petitioner contend that he is a prevailing party, Petitioner may notice a separate motion for fees. The court has no reason to make a prevailing party determination unless a fee motion is filed.

Conclusion

The petition for writ of mandate is moot. Pending further argument at the hearing regarding the need for declaratory relief, the matter is continued for receipt of a supplemental declaration.



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