Pasadena Police Officers Ass'n v. City of Pasadena

22 Cal.App.5th 147

231 Cal.Rptr.3d 292

PASADENA POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Respondents,

v.CITY OF PASADENA, Defendant and Respondent;

Los Angeles Times Communications, LLC, Intervener and Appellant.

B275566

Court of Appeal, Second District, Division 1, California.

Filed April 12, 2018

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Dan Laidman ; Los Angeles Times Communications, Jeff Glasser ; Jassy Vick Carolan, Jean-Paul Jassy and Kevin L. Vick, Los Angeles, for Intervener and Appellant.

Nikki Moore for California News Publishers Association as Amicus Curiae on behalf of Intervener and Appellant.

Katie Townsend, Bruce D. Brown and Caitlin Vogus for Reporters Committee for Freedom of the Press as Amicus Curiae on behalf of Intervener and Appellant.

Rains Lucia Stern St. Phalle & Silver, Timothy K. Talbot and Jacob A. Kalinksi for Plaintiffs and Respondents.

Michele Beal Bagneris, City Attorney, and Javan N. Radfor, Chief Assistant City Attorney, for Defendant and Respondent.

JOHNSON, J.

Following our decision in Pasadena Police Officers Assn. v. Superior Court (2015) 240 Cal.App.4th 268, 192 Cal.Rptr.3d 486 ( Pasadena Police ), the Los Angeles Times (Times) moved for attorney fees from the City of Pasadena (City) under the California Public Records Act ( Gov. Code, § 6259, subd. (d) ) (PRA). The Times also sought fees from the City, the two involved police officers and the Pasadena Police Officers Association (PPOA), under the private attorney general statute ( Code Civ. Proc., § 1021.5 (hereafter § 1021.5 ) ). The trial court ultimately awarded the Times limited fees under the PRA against the City and declined to award the Times any fees under section 1021.5. We affirm in part and reverse in part, with directions.

BACKGROUND

I. The trial court's decision on the merits¹

On March 24, 2012, just after 11:00 p.m., Pasadena Police Department (PPD) officers responded to a 911 call. The caller claimed to have been robbed at gunpoint by two men. Much later, the caller admitted he had falsely reported that the robbers were armed. Responding to the call, the officers proceeded in their squad car to the area of the alleged crime. As they approached the intersection, Kendrec McDade (McDade), a 19-year-old African-American male, began running. The officers pursued McDade for about two blocks. Officer Matthew Griffin fired four shots at McDade from inside the patrol car. Officer Jeffrey Newlen, having previously exited the squad car to give chase, fired four more shots, killing McDade. It was later discovered that McDade was not armed. ( Pasadena Police, supra , 240 Cal.App.4th at p. 275, 192 Cal.Rptr.3d 486.)

The shooting spawned multiple investigations, a citizen's complaint and a federal lawsuit by McDade's mother, Anya Slaughter (Slaughter), against the officers and the City. The Los Angeles District Attorney conducted a criminal investigation which concluded with a finding that, due to the false report, the officers reasonably believed McDade was armed. No criminal charges were filed against the officers. The Federal Bureau of Investigation (FBI) conducted a civil rights investigation of the shooting, which ultimately was closed without the filing of criminal charges or a civil complaint. Slaughter's federal action against the City and the officers was settled. ( Pasadena Police, supra , 240 Cal.App.4th at pp. 275–276, 192 Cal.Rptr.3d 486.)

The PPD conducted its own investigations. Two of the investigations were conducted immediately after the McDade shooting. The purpose of the first investigation, undertaken by the PPD's Criminal Investigations Division (CID), was to determine whether the officers had committed a crime. A different group of PPD investigators conducted a separate internal affairs (IA) investigation. The PPD also investigated the citizen's complaint during its CID and IA investigations. In March 2013, the PPD conducted a third investigation—an administrative review based on evidence collected during the CID and IA investigations. That review concluded that the officers had acted within departmental policy because they reasonably believed McDade was armed and assaulting an officer and shot McDade in self-defense and in defense of one another. ( Pasadena Police, supra , 240 Cal.App.4th at p. 276, 192 Cal.Rptr.3d 486.)

The City also retained the Office of Independent Review Group (OIR) as a private consultant to conduct an independent review of the shooting. According to PPD Deputy Chief Darryl Qualls, " ‘[t]he purpose of the [OIR]'s review ... was to serve as a review of the incident for the benefit of the department and to evaluate how the [PPD] does business in the areas reviewed.’ " Deputy Chief Qualls also stated that the PPD would not use the OIR report " ‘to (1) affect the officers' advancement; (2) conduct an appraisal of the officers; or (3) consider discipline of the officers.’ " The trial court found that the City had retained the OIR in order to evaluate the thoroughness and objectivity of the PPD's investigations of the shooting, the adequacy of officer training, what lessons had been learned from the incident and, based on the OIR's review and conclusions, to recommend institutional reforms. ( Pasadena Police, supra , 240 Cal.App.4th at pp. 276–277, 192 Cal.Rptr.3d 486.)

In August 2014, the OIR submitted a 70-page report entitled "Report to the City of Pasadena Concerning the Officer-Involved Shooting of Kendrec McDade" (the OIR report). The interveners² then submitted requests to the City for disclosure of the OIR report pursuant to the PRA.³ On September 3, 2014, while the PRA requests were still pending, the PPOA and Officers Griffin and Newlen (collectively, the Plaintiffs) initiated a reverse-PRA action, seeking and obtaining a temporary restraining order (TRO) preventing the release of the OIR report.⁴ ( Pasadena Police, supra , 240 Cal.App.4th at p. 277, 192 Cal.Rptr.3d 486.)

On September 9, 2014, the trial court vacated the TRO because the matter was not yet ripe and ordered the City to respond to the interveners' PRA requests and to give the Plaintiffs notice if it intended to disclose the OIR report. That same day, the interveners submitted new or renewed PRA requests for the OIR report to the City. On September 11, 2014, the City announced that unless the trial court directed otherwise, it would release the OIR report the following week but would redact portions of the OIR report containing confidential police officer personnel records. ( Pasadena Police, supra , 240 Cal.App.4th at p. 277, 192 Cal.Rptr.3d 486.)

On September 16, 2014, the Plaintiffs filed an ex parte application seeking to enjoin the City from releasing any portion of the OIR report. The same day, the Times filed a motion seeking to intervene in this action and also filed a writ petition seeking to compel release of the OIR report without redactions. The trial court granted leave to intervene. ( Pasadena Police, supra , 240 Cal.App.4th at p. 277, 192 Cal.Rptr.3d 486.)

On October 16, 2014, the trial court issued its decision. The trial court acknowledged the parties' competing positions regarding disclosure of the OIR report—the interveners contended the OIR report was a public record and should be disclosed in its entirety while the Plaintiffs claimed the OIR report was a confidential personnel record entirely exempt from disclosure under the Pitchess statutes ( Pen. Code, §§ 832.5, 832.7, 832.8 ; see Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 ) as well as the privilege exemption of the PRA ( Gov. Code, § 6254, subd. (k) ). However, the City argued that all but about 20 percent of the OIR report (which it agreed was confidential personnel information) should be disclosed. ( Pasadena Police, supra , 240 Cal.App.4th at p. 277, 192 Cal.Rptr.3d 486.)

The trial court determined the OIR report was indisputably a public record and that the public's interest in disclosure was particularly substantial because it related to officer involved shootings and governmental policies regarding law enforcement and public safety. ( Pasadena Police, supra , 240 Cal.App.4th at pp. 277–278, 192 Cal.Rptr.3d 486.) Nevertheless, the trial court found, the administrative and criminal investigations conducted in the case were clearly separate investigations. ( Id . at p. 278, 192 Cal.Rptr.3d 486.) Although the criminal investigation revealed no information about the advancement, appraisal, or discipline of a particular officer, and thus did not constitute a personnel record, the same could not be said of the administrative investigation. ( Ibid . ) Therefore, those portions of the OIR report containing privileged personnel information generated in connection with the PPD's administrative investigation that qualified for protection must be redacted.⁵ ( Ibid . )

On November 13, 2014, after reviewing the City's and Plaintiff's proposed redactions to the OIR report, the trial court entered judgment and ordered release of the redacted report. The trial court vacated its September 16, 2014 TRO, but stayed the effect of its vacation order and judgment for 20 days to permit the parties to seek review of the judgment.

The Plaintiffs then filed a writ of mandate, seeking review of the trial court's disclosure order. ( Pasadena Police, supra , 240 Cal.App.4th at p. 279, 192 Cal.Rptr.3d 486.) According to the Plaintiffs, the entire OIR report was privileged because it was, in effect, a personnel file. At the very least, substantial parts of the OIR report which the trial court had refused to redact were personnel material in nature and type as described in Penal Code sections 832.5 and 832.6, and Evidence Code sections 1043 and 1045. ( Id . at p. 281, 192 Cal.Rptr.3d 486.) Thus, the Plaintiffs sought to preclude disclosure of the entire OIR report or, in the alternative, the production of a more heavily redacted OIR report. ( Id . at p. 275, 192 Cal.Rptr.3d 486.) The Times insisted that the OIR...