Los Angeles Times v. Los Angeles County Bd.

5 Cal.Rptr.3d 776

112 Cal.App.4th 1313

LOS ANGELES TIMES COMMUNICATIONS LLC et al., Appellants, v. LOS ANGELES COUNTY BOARD OF SUPERVISORS, Respondent.

No. B164033.

Court of Appeal, Second District, Division 8.

October 29, 2003.

Review Denied February 4, 2004.

Davis Wright Tremaine and Kelli L. Sager, Los Angeles, Alonzo Wickers IV, Susan E. Seager and Karlene Goller for Appellants.

Brown, Winfield & Canzoneri, Inc., and Thomas F. Winfield III, Tracy M. Noonan and Michael H. Wallenstein, Los Angeles, for Respondent.

RUBIN, J.

INTRODUCTION

"People in an open society do not demand infallibility from their institutions but it is difficult for them to accept what they are prohibited from observing ...." (Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 572, 100 S.Ct. 2814, 65 L.Ed.2d 973 (opn. of Burger, C.J.).)

With few exceptions, the Ralph M. Brown Act obligates government agencies to meet and act in public. (Gov.Code, § 54950 et seq. (the Brown Act).)¹ Richard P. McKee is president of the California First Amendment Coalition, a group dedicated to enforcing the Brown Act and the California Public Records Act. (§ 6250 et seq. (the Public Records Act).) This appeal arises from a suit filed by McKee and the Los Angeles Times against the Los Angeles County Board of Supervisors for violating the Brown Act.²

Appellants' petition sought a writ of mandate and declaratory and injunctive relief based on seven causes of action arising from various alleged Brown Act violations. The trial court granted appellants declaratory relief on three causes of action addressing three different Board meetings, but found for the Board on the other claims. Neither side sought appellate review on the merits of the trial court's decision. Appellants' posttrial motion for attorneys fees under the Brown Act (§ 54960.5) was denied, prompting this appeal. For the reasons set forth below, we reverse the trial court's order and remand for a new hearing to determine the amount of the attorneys fee award.

FACTS AND PROCEDURAL HISTORY

In December 2001, County health care aides were backing a ballot measure to increase their pay (the health care or ballot measure). On December 18, 2001, the Board met in closed session with County Counsel Lloyd W. Pellman to discuss whether the County should sue to keep that measure off the ballot. The matter had been placed on the agenda as a closed session item under the Brown Act's exception for an agency's decision whether to initiate litigation. (§ 54956.9, subd. (c).) Because the merits of the proposed suit were unclear, Pellman floated the idea of provoking the health care aides to sue the County by refusing to submit the required ballot title and summary to the Registrar of Voters (Elec.Code, § 9105, subd. (a)), thereby keeping the measure off the ballot. Four of the five supervisors present agreed and instructed Pellman to send a letter to the ballot measure's proponents stating that Pellman would not place the measure on the ballot.³ Pellman changed his mind the next day—December 19—however, and phoned three of the supervisors to let them know he had decided to comply with the law and place the measure on the ballot.

The Board scheduled a closed session for January 4, 2002, under the Brown Act's exceptions for employee evaluations (§ 54957) and for conferences with legal counsel regarding exposure to litigation. (§ 54956.9, subd. (b).) In advance of that session, which was apparently prompted by concerns over Pellman's December 19 phone calls to three Board members, Supervisor Gloria Molina sent a letter to the other Board members on January 3, 2002 regarding the "violation of process that took place and [Pellman's] ability to represent our Board and our respective constituents in a fair and unbiased manner." According to Molina's letter, Pellman's phone calls to the other Board members on December 19, 2001, violated the Brown Act. Another closed session was scheduled for January 8, 2002, based on the Brown Act's employee evaluation exception. At both the January 4 and January 8 closed sessions, however, the Board also instructed its administrative officers to develop new protocols for closed sessions.

Based on Molina's concerns that Pellman's December 19 phone calls violated the Brown Act, the Board adopted new closed session protocols at a public Board meeting on February 5, 2002. Under those new protocols, any decision to consider a matter during a closed session had to be made by the Board's chairperson, who would approve or deny the request based upon the County Counsel's advice concerning the applicability of the Brown Act. The new protocols also directed that minutes of any closed session actions be kept, but that no minutes or sound recordings be made of the closed session discussions.

On February 20, 2002, Times staff writer Evelyn Larrubia wrote letters to Board members Molina and Yaroslavsky about these events. Larrubia's letter to Molina was a request under the Public Records Act seeking the release of all documents from Molina's office concerning the health care measure and Pellman's duties in regard to that measure. The letter to Yaroslavsky accused the Board of violating the Brown Act on December 18, January 4, and January 8 and demanded that the Board cure those violations within 30 days by releasing all documents concerning the actions taken and by publicly disclosing the positions taken by each supervisor, along with their reasons for doing so. (§ 54960.1, subd. (b).) In regard to the two January meetings, however, Larrubia's letter to Yaroslavsky was not based on the Board's direction to develop new closed sessions protocols. Instead, it was based on the Board's closed session receipt of a report by Pellman and the County's chief administrative officer about the duties of government lawyers in legal representation.⁴

The Board's executive officer, Violet Varona-Lukens, replied to the Times's Public Records Act request on February 28, 2002. In a letter to Larrubia, Varona-Lukens stated her refusal to release various documents that were responsive to Larrubia's request because they related to an employee performance evaluation and were therefore exempt from disclosure. However, those documents were inadvertently attached to Varona-Lukens's letter to the Times.⁵

On March 8, 2002, the Times published a story about the December 18, January 4 and January 8 meetings. On March 13, 2002, Pellman responded to the Times's Brown Act violation letter, contending that no such violations occurred during the December 18 and January 8 closed sessions. His letter did not mention the January 4 session, however. McKee wrote the Board on March 18, 2002, contending that the Board had violated the Brown Act on December 18, 2001. The Board did not respond to that letter. On March 26, 2002, the Times published a story describing how many of the Board's decisions were made during private staff meetings.

On March 28, 2002, the Board issued its agenda for its April 2 public meeting, including further proposed changes to the Board's closed session protocols, along with various other measures designed to improve and ensure the Board's compliance with the Brown Act and the Public Records Act. Those changes were approved by the Board on April 2, 2002. They included: (1) tape recording of all closed sessions; (2) requiring that all meetings by the supervisors' deputies be held as if the Brown Act applied to them; (3) requiring that all written materials related to Board agenda items be posted on the County's Web page; (4) an improved means of processing and responding to Public Records Act requests; (5) Brown Act training sessions for various County employees; and (6) improved descriptions of closed session agenda items in easily understood lay terms.

Appellants filed suit on March 29, 2002, one day after the agenda for the Board's April 2 meeting was posted. Relying in large part on the Board documents inadvertently sent to the Times, the petition alleged seven causes of action. The first alleged that the Board violated the Brown Act on December 18, 2001, when it secretly directed Pellman to violate the state elections code and keep the health care measure off the ballot. The second cause of action alleged that the Board violated the Brown Act as a result of Pellman's December 19, 2001, phone calls to three supervisors to discuss his decision to instead change course and place that measure on the ballot. The third and fourth causes of action alleged that the Board violated the Brown Act on January 4 and 8, 2002, by discussing the events of December 18 and 19. The other causes of action alleged that the Board violated the Brown Act by failing to specify the department head supposedly being evaluated in closed session, by using the supervisors' deputies as surrogates to hold private "shadow Board" meetings to decide the Board's business, and by holding weekly serial meetings with the County's administrative officer in order to secretly decide Board business. Based on those allegations, appellants sought injunctive and declaratory relief and a writ of mandate halting those practices.

Both before and after the petition was filed, the County took various steps to obtain the return of the documents it inadvertently sent to the Times and to prevent their use at trial. In early March 2002, the County Counsel's office demanded the return of the documents. The Board later sought to exclude those documents from the trial on the ground that they were protected by the Brown Act and were otherwise privileged, contending that based on the absence of those documents, appellants would then be unable to prove their claims. The Board also contended on the merits that its actions were in full compliance with the Brown Act. To support its contentions, the Board filed under seal numerous documents that it believed were privileged, asking the trial court to review them.

At trial, the court granted only...