Opinion
D075148 D075424 D075428
06-23-2020
VOICE OF SAN DIEGO, Intervenor, Real Party in Interest and Appellant, v. TEACHER 1, TEACHER 2, AND TEACHER 3, Plaintiffs and Respondents. VISTA TEACHER 1, Plaintiff and Respondent, v. VISTA UNIFIED SCHOOL DISTRICT, Respondent; VOICE OF SAN DIEGO, Intervenor, Real Party in Interest and Appellant. TEACHER RETIREE 1, Plaintiff and Respondent, v. VISTA UNIFIED SCHOOL DISTRICT, Defendant; VOICE OF SAN DIEGO, Intervenor, Real Party in Interest and Appellant.
Law Office of Felix Tinkov and Felix M. Tinkov for Intervenor, Real Party in Interest and Appellant. Smith Steiner Vanderpool and Jon Y. Vanderpool, Dyland Griffith for Plaintiffs and Respondents. No appearance for Defendant and Respondent Vista Unified School District. Adams Silva & McNally and Dean T. Adams, Kerrie E. McNally and Laurie E. Kamerrer for San Marcos Unified School District as Amicus Curiae on behalf of Plaintiffs and Respondents, Teachers 1, 2, and 3.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on June 23, 2020, be modified as follows:
The last sentence on page 3, footnote 3, is replaced with the following sentences:
"Having done so, we deny the San Marcos Unified School District's request for judicial notice of the contents of Voice articles and podcasts, the truth of which are not the proper subject of judicial notice in any event. (Fierro v. Landry's Restaurant Inc. (2019) 32 Cal.App.5th 276, 282, fn. 6.) We also deny Voice's request for judicial notice of the Board minutes as unnecessary to our determination of this appeal."
There is no change in the judgment.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00007640-CU-WM-NC) (Super. Ct. No. 37-2018-00011807-CU-WM-NC) (Super. Ct. No. 37-2018-00011822-CU-WM-NC) CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego, Ronald F. Frazier, Judge. Affirmed. Law Office of Felix Tinkov and Felix M. Tinkov for Intervenor, Real Party in Interest and Appellant. Smith Steiner Vanderpool and Jon Y. Vanderpool, Dyland Griffith for Plaintiffs and Respondents. No appearance for Defendant and Respondent Vista Unified School District. Adams Silva & McNally and Dean T. Adams, Kerrie E. McNally and Laurie E. Kamerrer for San Marcos Unified School District as Amicus Curiae on behalf of Plaintiffs and Respondents, Teachers 1, 2, and 3.
Appellant, intervenor and real party in interest Voice of San Diego (Voice) appeals from a judgment in part denying its motion for Code of Civil Procedure section 1021.5 private attorney general fees in cases stemming from Voice's California Public Records Act (CPRA or the Act; Gov. Code, § 6250 et. seq) request for records from respondents San Marcos Unified School District and Vista Unified School District (the districts). Following Voice's records request, petitioners who are active or retired teachers brought so-called "reverse-CPRA" litigation, in which Voice intervened, to enjoin the records' release. The court ordered the records disclosed after reviewing them in camera, and eventually Voice received the requested documents without limitation or redaction. In denying attorney fees, the trial court ruled Voice did not show its intervention had an impact on the public's rights so as to entitle it to an award of section 1021.5 attorney fees in part because Voice did not show what the districts' efforts would have been had it decided to not intervene.
Undesignated statutory references are to the Code of Civil Procedure.
As we explain more fully below, a reverse-CPRA action is a nonstatutory action for declaratory relief or traditional mandamus to prevent disclosure of records requested under the CPRA. (City of Los Angeles v. Metropolitan Water District of Southern California (2019) 42 Cal.App.5th 290, 297; Amgen Inc. v. Health Care Services (2020) 47 Cal.App.5th 716, 726.)
Voice contends in these consolidated appeals that the court applied an improper standard to determine whether private enforcement was necessary. It maintains it met the necessity standard, arguing it led the successful effort to obtain full production of the unredacted documents over the districts' acquiescence to the petitioners' delay tactics. According to Voice, the court's ruling runs counter to public policy encouraging private parties to work on behalf of the public's interest when there is a need to intervene.
This court consolidated the appeals of the three underlying matters: Teacher 1, 2 and 3 v. San Marcos Unified School District (Super. Ct. S.D. County, 2018, No. 37-2018-00007640-CU-WM-NC); Vista Teacher 1 v. Vista Unified School District (Super. Ct. S.D. County, 2018, 37-2018-00011807-CU-WM-NC), and Teacher Retiree 1 v. Vista Unified School District (Super. Ct. S.D. County, 2018, No. 37-2018-00011822-CU-WM-NC). We refer generally to the first case as the San Marcos case and the second and third cases as the Vista cases. We granted the request of respondent San Marcos Unified School District to file an amicus curiae brief in support of the petitioners in the San Marcos case. The San Marcos Unified School District states it seeks in part to correct misrepresentations about its role in the matter, and it argues we should affirm the trial court's order denying attorney fees to Voice, arguing Voice's intervention was unnecessary. In response, Voice asks us to take judicial notice of official meeting minutes of the school district Board of Trustees and to disregard the amicus brief for various reasons, including because the district did not obtain its Board's authorization to appear as an amicus in this case as it must. Voice also argues the district's amicus arguments contradict its nonopposition in the trial court to Voice's request for attorney fees. In the exercise of our discretion, we disregard the amicus brief as contrary to the district's position taken in the trial court below, akin to a forfeiture or an improper change of theory on appeal. (Lynch v. California Coastal Commission (2017) 3 Cal.5th 470, 475-476; Nellie Gail Ranch Owners Association. v. McMullin (2016) 4 Cal.App.5th 982, 997.) Having done so, we deny Voice's request for judicial notice of the Board minutes as unnecessary to our determination of this appeal.
Applying the required abuse of discretion standard and reviewing the result, not the court's specific reasoning, we conclude the court reasonably rejected Voice's private attorney general fee request on grounds Voice's intervention did not significantly contribute to the outcome of the litigation. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2017, Voice made a CPRA request to the districts for "public records relating to any substantiated claims of sexual misbehavior and related misconduct for any employee, official, contractor, agent or volunteer of the District arising within the last 10 years." In mid-December and early February, the districts notified petitioners and other teachers about the records request and forwarded documents they proposed to disclose. Both districts advised petitioners' counsel that they would disclose the documents unless petitioners sought judicial review via a reverse-CPRA action. The Vista Unified School District advised Vista Teacher 1's counsel that barring legal action, it proposed to disclose the documents with teacher and student names redacted. After petitioners objected to the disclosures, the districts agreed to delay production so petitioners could file reverse-CPRA litigation.
In February and March 2018, petitioners sought preliminary injunctive relief and writs of mandate under section 1085, seeking to enjoin the districts from disclosing their confidential personnel records. Petitioners cited case law, including Los Angeles Unified School District v. Superior Court (2014) 228 Cal.App.4th 222 (LAUSD), in which the Court of Appeal held the names of teachers associated with student test scores were exempt from disclosure under the CPRA. (See LAUSD, at pp. 231, 253.) At about the same time, without objection from the districts they obtained temporary restraining orders preventing the districts from disclosing the sought-after records.
Both districts opposed petitioners' requests for preliminary injunctive relief and asked the court to deny the motion. They argued petitioners did not demonstrate a probability of success on the merits, the CPRA mandated disclosure, and petitioners did not show the records were exempt from disclosure. The Vista Unified School District invited the court's in camera review and guidance. The San Marcos Unified School District distinguished the LAUSD case protecting disclosure of teacher identities, arguing its facts were distinctly different.
In late March and early April 2018, the petitioners and the districts stipulated to protective orders designating documents as confidential and authorizing disclosure of the documents to Voice subject to the protective order's terms.
On March 29, 2018, the parties appeared for a joint hearing in the Vista cases, at which petitioners represented that Voice had been given an initial set of documents. Vista Unified School District's counsel advised the court that the district sought to comply with the CPRA and agreed a majority of the records were public records, but remarked the district was "stuck in the middle" in the matter. Counsel told the court the district had originally sought to provide records with teacher names redacted, which Voice had rejected. Both counsel asked the trial court to review the records in camera to resolve the situation. The trial court granted a 30-day injunction and set a hearing for its in camera review of the records with counsel for the districts present.
Petitioners in the Vista cases then filed a brief in advance of the court's in camera hearing, seeking to have the court limit disclosure under certain criteria and CPRA exceptions. The Vista Unified School District opposed the petitioners' requests to apply various privileges to bar production of the records, but argued under LAUSD, supra, 228 Cal.App.4th 222 there would be harm in releasing the teacher names and there was no public interest in disclosure. At about the same time the Vista petitioners notified Voice they would not object to the district's production of their records so long as their names and identities were withheld.
On April 20, 2018, per the parties' stipulation Voice was permitted to intervene in the litigation. That day, Voice filed a brief agreeing with the Vista Unified School District but arguing the law required that the teacher identities be disclosed. In part, Voice argued petitioners could not rely on LAUSD, supra, 228 Cal.App.4th 222 as a basis for withholding their identities.
On April 23, 2018, the court (Judge Ronald Frazier) conducted an in camera review in both the Vista and San Marcos cases. Petitioners' counsel advised the court that petitioners had stipulated with the districts and Voice to withdraw their objections to disclosure of their records with the exception of their names and identities, for which petitioners still sought protection. He told the court his clients were objecting to disclosing their identities under LAUSD, supra, 228 Cal.App.4th 222 and the lack of any public interest in their names. Voice's counsel sought to distinguish the LAUSD case. After that hearing, Voice filed a supplemental brief concerning the "standard under which the identities of [p]etitioners . . . must be disclosed by [the districts]." Voice also pointed out a recently decided case, Pasadena Police Officers Association v. City of Pasadena (2018) 22 Cal.App.5th 147, 159 (PPOA), held a real party in interest in a reverse-CPRA case was entitled to recover attorney fees under section 1021.5.
On May 3, 2018, the court considered the parties' and Voice's arguments. At the outset of the hearing, the court expressed its appreciation for counsel's assistance on educating it on the law, then summarized the state of the proceedings, pointing out Voice's assistance was to "a certain lesser extent because you [Voice's counsel] weren't in the in camera . . . ." In the Vista cases the court authorized release of the requested records with teachers' identities redacted. It then took all of the matters under submission.
In mid-May, the court denied the teachers' motions for preliminary injunctions and ruled case law required disclosure of their names "because their identity is an integral part of assessing the district's performance of its duties." By the end of the month, Voice received the entire set of unredacted documents sought in its CPRA requests.
Voice moved for an award of section 1021.5 private attorney general fees and costs in all three actions. It argued it enforced important rights affecting the public interest in prevailing against the petitioner teachers, maintaining petitioners attempted to shield their identities and school children's accusations of sexual misconduct against them, or conceal government investigations and decisions to either pay out taxpayer funds to a resigning teacher, take non-disciplinary transfer actions, or otherwise resolve the complaints, thereby impinging on Voice's and the public's statutory and constitutional rights to recover public records of government activity. Voice pointed out the trial court had rejected the petitioners' claims of an overriding privacy interest arising from their embarrassment for being exposed for alleged acts of sexual misconduct. It argued the records' release promoted its constitutional right to freedom of the press in gathering news about local government activity. According to Voice, it "demanded the production of the subject records as part of its effort to inform the public of a matter of significant interest—the means, procedures, and actions employed by the government in protecting the interests of school children, and others, from those who would act in a manner violative of its policies and the law."
Including fees and costs incurred in bringing the motions and preparing replies, Voice sought $40,036.26 in fees and costs against Teacher Retiree 1, $47,647.67 against Vista Teacher 1, and $35,131.16 against San Marcos Teachers 1, 2 and 3.
Voice also argued its private enforcement was necessary given "the course of action taken by Petitioners when they sought to enjoin the release of public records through litigation," and petitioners' election to not name Voice in the action to "engender further delay" in the records' release.
Voice argued that as a news organization it did not receive any direct economic benefit from this type of document disclosure: "The fact that records become 'public' means that every news organization, and every member of the public, enjoys the benefit of the disclosure, even if only one organization incurred the expense of the litigation to secure the materials."
Petitioners opposed the motions. They argued Voice could not satisfy section 1021.5's requirements as its intervention had no impact on the public's rights, and its involvement was not necessary because the districts adequately enforced the law by opposing their challenges to disclosing their records and identity. The petitioners also argued they met a private litigant exception to the statute because they asserted no "institutional interest" in the case's outcome. Pointing out an attorney fee award under 1021.5 is discretionary, they argued a court could deny a fee award if circumstances render the award unjust, and the public's interest was not served by awarding fees against individual active or retired school teachers who had asserted their privacy rights.
The trial court denied Voice's motion for attorney fees, but awarded it costs, and entered judgment in petitioners' favor. It ruled Voice had not shown its intervention had an impact on the public's rights such that it was entitled to section 1021.5 private attorney general fees. The court reasoned: "Voice has not met its burden to show that the [districts] would not have provided adequate representation or that Voice's counsel's efforts were 'more than merely helpful or even substantial' or that they were 'necessary to the ultimate success of the public prosecution' because it has not shown what [the districts'] efforts would have been had Voice decided to not intervene."
Voice filed these appeals.
DISCUSSION
I. Section 1021.5 and Standard of Review
Under section 1021.5, "a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any."
" 'Section 1021.5 codifies the private attorney general doctrine the Supreme Court adopted in Serrano v. Priest (1977) 20 Cal.3d 25 . . . . [Citation.] " ' "The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." ' " ' [Citation.] ' "In short, section 1021.5 acts as an incentive for the pursuit of public interest-related litigation that might otherwise have been too costly to bring." ' " (Save Our Heritage Organisation v. City of San Diego (2017) 11 Cal.App.5th 154, 159, citing in part Woodland Hills Residents Assn., Inc. v. City Council of Los Angeles (1979) 23 Cal.3d 917, 933; see also PPOA, supra, 22 Cal.App.5th at p. 159.) Fees should be awarded absent circumstances rendering an award unjust. (PPOA, at pp. 159-160.)
In assessing the correctness of a trial court order in this context, we give significant deference to the trial court who presided over the matters: Whether a party establishes entitlement to a section 1021.5 attorney fee award "is a question best decided by the trial court." (San Diego Municipal Employees Assn. v. City of San Diego (2016) 244 Cal.App.4th 906, 915 (Municipal Employees); see RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 775-776.) Using its traditional equitable discretion, the court " ' "must realistically assess the litigation and determine, from a practical perspective" whether or not the statutory criteria have been met.' " (RiverWatch, at p. 776; see also Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344.) " 'The "experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed [on appeal] unless the appellate court is convinced that it is clearly wrong" '—meaning that it abused its discretion. [Citation.] Great deference should be given to the trial court because of its superior understanding of the litigation." (Municipal Employees, at p. 915; see RiverWatch, at p. 776.)
" 'On appeal from an award of attorney fees under . . . section 1021.5, " 'the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.' " ' " (City of Los Angeles v. Metropolitan Water Dist. of Southern California (2019) 42 Cal.App.5th 290, 301 (Metropolitan Water District), quoting Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1025-1026.)
Acknowledging this standard, Voice maintains this court must review the matter de novo because the trial court in its ruling misunderstood the relevant legal standard and "manufactured a new, and impossible standard requiring proof of events which did not occur . . . ." Petitioners disagree, arguing we must review the order for abuse of discretion, as the trial court found as a matter of fact, not law, that Voice did not satisfy an element of its fee claim.
We apply the abuse of discretion standard to the trial court's decision as to whether Voice met the necessity criteria of section 1021.5. As we explain more fully below, the inquiry concerning the need for private enforcement in reverse CPRA litigation is dependent on an assessment of Voice's contribution to the underlying proceedings. (See Municipal Employees, supra, 244 Cal.App.4th at pp. 913-914.) The trial court was in the best position to assess the effectiveness and import of Voice's participation. We ask whether "there was a reasonable basis for the decision" (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1344) and defer to its finding that Voice's counsel's efforts were not "more than merely helpful or even substantial" or "necessary to the ultimate success of the public prosecution" (id. at p. 1350), overturning it only if no reasonable judge could have reached the same conclusion.
II. Section 1021.5 Attorney Fees in the Context of Reverse-CPRA Litigation
The CPRA, enacted in 1968 and modeled after the federal Freedom of Information Act, states that " 'access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.' [Citation.] To promote this fundamental right, the CPRA provides that 'every person has a right to inspect any public record, except as hereafter provided.' [Citation.] 'In other words, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.' " (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1038-1039 (ACLU Foundation); see also Gov. Code, § 6250; Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425-426.)
The Act contains exceptions to public disclosure, many of which are designed to protect individual privacy. (See Gov. Code, § 6250 [Legislature is "mindful of the right of individuals to privacy"]; International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329.) One such exception is for "[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." (Gov. Code, § 6254, subd. (c); see Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1261 (Marken).) Another "catch-all" exemption permits a public agency to withhold a public record under the CPRA on a showing "that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." (Gov. Code, § 6255, subd. (a).) This latter exemption " ' "contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality." ' " (Becerra v. Superior Court (2020) 44 Cal.App.5th 897, 923, quoting ACLU Foundation, supra, 3 Cal.5th at p. 1043.) The CPRA's statutory exemptions from mandatory disclosure are narrowly construed (ACLU Foundation, at p. 1041; Becerra, at p. 914), and they are permissive, not mandatory, meaning they allow nondisclosure but do not prohibit disclosure. (Marken, at p. 1262.) The party opposing disclosure bears the burden of proving an exemption applies. (Becerra, at p. 914.) Here, the trial court rejected application of these exemptions at least as they applied to the disclosure of teacher identities, and no party challenged that order.
In Marken, the Court of Appeal first recognized the availability of a reverse-CPRA writ petition where a third party believes it will be adversely affected by a CPRA production and seeks to challenge an agency's decision. (Marken, supra, 202 Cal.App.4th at p. 1267; see PPOA, supra, 22 Cal.App.5th at p. 153, fn. 4.) "Such reverse actions have been viewed as necessary to protect the privacy rights of individuals whose personal information may be contained in government records, because CPRA provides no mechanism for notifying such individuals of the requested disclosure and does not specifically authorize actions to prevent disclosure." (Metropolitan Water District, supra, 42 Cal.App.5th at p. 297.) Though Marken observed that a party requesting records participating in a reverse-CPRA action would not be entitled to attorney fees under the Act as would be the case if it had prevailing against a public agency (Marken, at p. 1068, citing Gov. Code, § 6259, subd. (d)), Marken did not involve an attorney fees request; in recognizing reverse-CPRA actions, it held such lawsuits did not impair the important protections for parties making CPRA requests. (Marken, at p. 1268.) It also stated that the interests of parties seeking the documents—who plainly have a stake in the outcome—are properly addressed via the parties' joinder or intervention. (Id. at pp. 1269-1270.) "[P]ermitting intervention by the requestor in a reverse-CPRA action is simply the corollary of the recognized practice of permitting a sufficiently interested party opposed to disclosure to participate in a lawsuit under the CPRA to compel the release of the public records." (Id. at p. 1270.)
Later, a different division of the same district Court of Appeal stated that Marken's reasoning on attorney fees was limited by its facts, pointing out that in Marken the trial court denied the requesting party's request to intervene so the case did not involve a CPRA cross-petition, and the nonparty seeking records was forced to rely on the school district to oppose the reverse-CPRA action. (Metropolitan Water District, supra, 42 Cal.App.5th at p. 300.) We agree with this observation, as well as the conclusion that Marken's remarks on attorney fees is dictum. (Id. at p. 301.)
In PPOA, the Court of Appeal addressed the propriety of an award of attorney fees to a newspaper that obtained an order under the CPRA compelling a city to disclose portions of an independent report pertaining to an officer-involved shooting. (PPOA, supra, 22 Cal.App.5th at pp. 151, 166.) The court ordered the partially-redacted report's release over the objections of a police officers' association and two individual officers, all of whom had initiated a reverse-CPRA action. (Id. at pp. 152-153.) The newspaper intervened in the reverse-CPRA action, then sought an award of section 1021.5 private attorney general fees and costs from the association. (Id. at p. 155.) The trial court found the newspaper met all of the section 1021.5 elements for a fee award, and it was a successful party as it had obtained the majority of the relief it sought by intervening. (Id. at p. 157.) Nevertheless, the court denied the fee request on grounds recovery was barred under an exception set forth in Adoption of Joshua S. (2008) 42 Cal.4th 945 (Joshua S.), for individual litigants who sought to protect their own private rights and did nothing to adversely affect the public interest. (PPOA, at pp. 157-158; see Stefan Merli Plastering Co., Inc., supra, 52 Cal.4th at p. 1020, citing Joshua S., at p. 958.)
The Court of Appeal held this ruling was error under either a de novo or abuse of discretion standard of review. (PPOA, supra, 22 Cal.App.5th at pp. 160, 166.) It pointed out the California Supreme Court had emphasized the narrow scope of the Joshua S. exception as applying only to private litigants with no institutional interest in the litigation, who pursued solely private rights. (PPOA, at pp. 162-163.) The PPOA Court of Appeal held the exception did not apply in that case: the newspaper's action "directly affected public rather than private rights" and the public's interest in disclosure was " ' "particularly great" where . . . the underlying case involves an officer involved shooting[] and policies regarding public safety and law enforcement.' " (Id. at pp. 163-164.) "Any redaction of such material . . . would subvert the public's right to be kept fully informed of the activities of its peace officers in order to maintain trust in its police department." (Id. at p. 164.)
The Court of Appeal observed that the lower court did not examine the newspaper's purpose in bringing the case but instead credited the motivations of the individual officers who opposed disclosure, who, given their power and public visibility, rendered them public officials. (PPOA, supra, 22 Cal.App.5th at p. 164.) The court stated the subjective intent of the party seeking to prevent disclosure was immaterial; the officers and their association were "plainly attempt[ing] to restrict the public's right of access to police records" and sought to expand the reach of the CPRA's privilege exemption, further justifying the attorney fee award. (Id. at p. 165.) Additionally, the association had stated it was representing the interests of all of its members, not just the two officer petitioners, in seeking to prevent release of the report. (Ibid.) "In short, this case involves public officials and a public employee union pursuing litigation designed to expand the ability of police officers and a police department to withhold information from the public"—a circumstance "easily distinguishable from the private litigant in Joshua S., supra, 42 Cal.4th 945 . . . who had no institutional interest in the litigation and who sought a judgment that would have settled only her private rights as well as those of her children and former domestic partner." (Id. at pp. 165-166.) Having found Joshua S. inapplicable, the appellate court held the newspaper was entitled to a private attorney general fee award. (PPOA, at p. 166.)
More recently, the court in Metropolitan Water District, supra, 42 Cal.App.5th 290 upheld an award of private attorney general fees to a newspaper in reverse-CPRA litigation brought by a city water department to protect against disclosure of its customer information. (Id. at p. 294.) The city, along with other intervening water districts, sought to prevent another water district from disclosing records of participants in a turf rebate program to the newspaper, which had filed a CPRA cross-petition in the matter. (Id. at pp. 294, 297, 298.) The trial court granted the newspaper's cross-petition, ordering the records' disclosure, and awarded it private attorney general fees for its work on the cross- petition up until the water district agreed it would produce complete customer names and addresses. (Id. at pp. 294, 298.)
On appeal, the Court of Appeal first rejected as a matter of law the water district's initial argument that under Marken attorney fees were never available in a reverse-CPRA action. (Metropolitan Water District, supra, 42 Cal.App.5th at p. 301.) Applying an abuse of discretion standard (id. at p. 302), the court then upheld the attorney fee award to the newspaper over the city's argument that it was exempt from attorney fees under Joshua S. because it merely enforced the privacy rights of its customers without adversely affecting public rights. (Metropolitan Water District, at p. 302.) The court held the city (the Los Angeles Department of Water and Power) and intervenor water districts were not "the equivalent of an individual who seeks a determination of 'only his or her [own] private rights [and] has done nothing to adversely affect the public interest' " but rather "sought far more than a simple determination of the privacy rights of a few customers." (Id. at p. 295.) It reasoned the city water department was a public governmental agency seeking to protect records it had obtained in its governmental capacity, and which it had shared with another government agency as part of its joint venture to implement state water policy using public funds. (Id. at p. 302.) It pointed out the city did not act on behalf of a small number of individual customers, but took the position that all utility customers had a privacy right, and necessarily opposed the newspaper's attempt to enforce an important right affecting the public interest, "specifically the public's 'right to know how the government uses public money.' " (Id. at p. 303.) The city's action would have curtailed the public's ability to obtain information on how the city, and "potentially all public utilities, spends public funds"; a "matter of clear public interest." (Ibid.) This was enough to warrant fees under section 1021.5. (Ibid.) In further holding the newspaper was the prevailing party; the court stated there was "nothing in the record to suggest [the city] changed its behavior for any reason other than [the newspaper's] intervention and successful advocacy in court for disclosure." (Id. at p. 304.)
After Metropolitan Water District was decided, this court held in Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135 that a trial court erred by requiring interveners there to forego statutory private attorney general fees as a condition to participating in a reverse-CPRA action. (Id. at p. ___ [2020 WL 2520142, *10].) This court did not reach the propriety of any attorney fee award, but acknowledged the trial court would have to determine, among other things, whether the interveners' efforts were necessary to achieve the litigation's outcome. (Ibid.) Carlsbad Police Officers Association does not change our conclusion in this case.
III. Contentions
Seeking to equate this case with PPOA, supra, 22 Cal.App.5th 147, Voice contends the trial court erred by denying it an award of private attorney general fees. It characterizes its involvement as "directly and fundamentally shap[ing] the outcome of the litigation" and "streamlin[ing]" the underlying cases by compelling petitioners to abandon their original requests for injunctive relief and merely seek an order protecting their identities. Voice argues its work, whether viewed alone or in conjunction with the districts' efforts, was necessary to the litigation because it accelerated "virtually every aspect of the litigation" in contrast to the districts' actions. Voice maintains petitioners' decision to narrow their sought-after relief was "solely due to [its] efforts." Voice argues the districts "largely stood by and did nothing" or "repeatedly acquiesced to [petitioners'] delay tactics" and "quickly made it clear . . . that the release of the subject records would be an uphill battle" while Voice's intervention forced the trial court to act only weeks later in mid-May to deny petitioners' preliminary injunction requests. According to Voice, the trial court ignored case law when it applied a " 'but-for' analysis" and required it to prove the districts would have fared worse in the litigation had it not been a party; it maintains the recovery of attorney fees under section 1021.5 "is to be determined solely upon the private party's contribution in upholding the public's interests." Voice finally argues the trial court adopted Voice's position about disclosing the petitioners' identities, but prejudicially abused its discretion by not providing a "reasonable, factual basis" for its order rejecting a fee award.
Petitioners first respond by pointing out procedural flaws in Voice's opening brief. On the merits, they argue Voice cannot show the trial court abused its discretion in denying attorney fees, stating the court "essentially decided that the [d]istricts made the correct determination at the outset and then advocated for the public's interest competently." They argue this court must accord substantial deference to the trial court, which was a percipient witness to the proceedings. According to petitioners, Voice cannot show its intervention was necessary given the districts' intentions to disclose the records before any legal action was taken. They argue Voice misconstrues and ignores critical differences between this matter and the PPOA and Marken cases in terms of the public interests involved, the nature and interests of the litigants, and the scope of the CPRA requests.
We agree that in the "Statement of the Case" portion of its opening brief and elsewhere, Voice makes many argumentative assertions and other factual assertions either unsupported by any record cite or unsupported by the cite provided. For example, Voice states, without citing to the record, that "[u]pon review of the complete set of public records, Voice determined the allegations of sexual misconduct against the Teachers to be serious and confirmed that the Districts had determined these claims to be well-founded, or that they had resulted in discipline against the Teachers." In a footnote, Voice asserts without record citation that after it learned of the PPOA case, it "immediately notified Teachers' counsel of its intent to pursue attorney's fees pursuant to this holding should it prevail in obtaining the subject public records." Voice then asserts that "[i]n response, each of the Teachers downwardly-revised their request for legal remedies to only seek an order to enjoin release of their identities." (Italics added.) For the latter proposition, Voice cites portions of a May 3, 2018 transcript at which petitioner's counsel confirmed petitioners were only seeking to protect their identities, not the disclosure of the records. The record there reflects no cause and effect relationship to Voice's actions or statements. An appellant must support each reference to matter in the record by citation to the page of the record on which it appears. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We disregard Voice's assertions that are unsupported by the record.
Petitioners additionally argue that even if Voice could meet section 1021.5's requirements, the circumstances put them within the Joshua S. exception to a private attorney general fee award. That is, they assert as individual public school teachers they held no institutional interest in the matter, but sought to enforce legitimate personnel records confidentiality and protect their right to privacy as well as their professional reputations. Because we uphold the trial court's decision on its finding that Voice did not demonstrate private enforcement was necessary in these circumstances, we need not reach that issue.
IV. Voice's Necessity and Contribution to the Litigation
This case differs from PPOA and Metropolitan Water District in several critical ways, the first being that the trial court here denied Voice's fee request, determining Voice did not meet the standards necessary to obtain such an award. This ruling necessarily implies a finding that private enforcement by Voice was not necessary. (Accord, Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 378.) The ruling on section 1021.5's necessity requirement depends on a determination of Voice's contribution to the outcome of the case, an inquiry uniquely suited to the trial judge who presided over it. (See Municipal Employees, supra, 244 Cal.App.4th at p. 915; Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1349.) Under the abuse of discretion standard, we uphold the court's decision if any reasonable judge would have made it, even if we would not have reached the same conclusion. (See Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 428.) We do not substitute our judgment. (Ibid.) Applying these principles compels us to affirm the trial court's ruling.
The necessity and financial burden elements of section 1021.5 " ' "really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys." ' [Citation.] The 'necessity' of private enforcement ' " ' "looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary." ' " ' " (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214-1215; Municipal Employees, supra, 244 Cal.App.4th at p. 912.) The necessity element "has long been understood to mean simply that public enforcement is not available, or not sufficiently available." (Whitley, at p. 1217.) "[An] award of attorney fees is not appropriate when the public rights in question are adequately vindicated by governmental action." (Whitley, at p. 1215.)
Where a private party voluntarily joins in a case that a government entity is required to prosecute or defend, the lower court exercises its discretion to determine " 'the necessity, significance, and value of private counsel's services' and is not bound by [that counsel's] characterizations or tactical decisions . . . . [Citation.] . . . [T]he court must consider whether the private party (1) raised significant factual or legal theories that were not advanced by the governmental entity and (2) produced substantial and nonduplicative evidence that significantly contributed to the court's judgment." (Municipal Employees, supra, 244 Cal.App.4th at p. 915.)
The trial court here reasonably concluded Voice's showing in this respect was lacking. Importantly, a reverse-CPRA action is only needed when a public agency agrees to provide the requested records without judicial intervention. (Marken, supra, 202 Cal.App.4th at p. 1267, fn. 13.) The districts advised petitioners at the outset that they would be producing responsive documents to Voice's CPRA request. Both districts opposed petitioners' requests for preliminary injunctive relief, with Vista Unified School District in one case agreeing to redact teacher names and identities in its production. The Vista Unified School District's position was not inflexible or uncompromising, however, as it sought guidance from the court on the issue.
By the time the court ordered Voice's intervention, the districts had produced interim sets of records to Voice under a protective order; petitioners had already conceded that the records, with redactions for their identities, could be produced; and both the districts and petitioners put in place the in camera trial court review of the documents to assess whether redaction of teacher identities was appropriate. Throughout the litigation the San Marcos Unified School District placed no restrictions on its production and argued against protecting the teachers' identities, distinguishing case law on which petitioners' relied (LAUSD, supra, 228 Cal.App.4th 222) as irrelevant to petitioners' sought-after protection. The trial court presided over all of these proceedings, and had ample opportunity to observe the performance of all counsel so as to decide the necessity element. (Accord, Municipal Employees, supra, 244 Cal.App.4th at p. 916.)
We cannot agree the record supports Voice's assertions that it "shaped the call of the question" and compelled a change in petitioners' legal position by its briefing of PPOA, or that its intervention "forced the action" and "prompt[ed] the trial court's speedy resolution of the litigation . . . ." These assertions and others seek to draw inferences from the record in Voice's own favor, rather than in the light most favorable to the court's factual findings. And the record permits a conclusion to the contrary: Voice filed its supplemental briefing on PPOA after petitioners had agreed to disclose the records with identities redacted, eliminating any causal connection between Voice's advocacy and petitioner's change in position. On this record, the trial court could have been compelled to reach its ruling on the identity issue by adopting the San Marcos Unified School District's positions and arguments. There is nothing in the record that shows the trial court was swayed by Voice's briefing or persuaded to reach its ruling as a result of Voice's involvement. Rather, the court's remarks at the May 3, 2018 hearing suggest Voice's contribution to that point was not significant. Unlike Metropolitan Water District, supra, 42 Cal.App.5th 290 in which there was "nothing in the record to suggest [the city] changed its behavior for any reason other than [the newspaper's] intervention and successful advocacy in court for disclosure" (id. at p. 304), here, the trial court could reasonably conclude petitioners changed their position due to the advocacy of the districts, not due to Voice's intervention. We conclude for purposes of the necessity prong of section 1021.5 the trial court did not manifestly abuse its discretion by finding Voice did not provide a material non de minimus and nonduplicative contribution to its judgment. (San Diego Municipal, supra, 244 Cal.App.4th at p. 915.)
Nor are we persuaded by Voice's criticism of the trial court's use of a supposed "but-for" standard. Voice argues the court misapplied the law; that it "merely looked at the result and determined that the Districts had performed more work than Voice . . . ." Even if this characterization is accurate, the fact the court expressed a specific rationale for its ruling is of no moment because we do not review its reasons. (Save Our Heritage Organisation v. City of San Diego, supra, 11 Cal.App.5th at p. 162; RiverWatch v. County of San Diego Dept. of Environmental Health, supra, 175 Cal.App.4th at p. 776.) Rather, we affirm the order if it is correct on any theory apparent from the record. (Save Our Heritage, at p. 162; RiverWatch, at p. 776 [appellate court "will affirm an order correct in theory, even where the court's reasoning is erroneous"].) We presume the court properly applied the law and acted within its discretion unless Voice affirmatively shows otherwise. (Espejo v. The Copley Press, Inc., supra, 13 Cal.App.5th at p. 379.)
Finally, PPOA does not persuade us that the trial court erred in denying Voice private attorney general fees. PPOA does not mandate that all requesters in reverse-CPRA actions be awarded attorney fees; it points out such a party "can recover fees under section 1021.5." (PPOA, supra, 22 Cal.App.5th at p. 155, fn. 7.) A requester must still satisfy all of the requirements for such an award. As we have summarized above, the lower court in PPOA found the news agency in that case met all of the requirements for a private attorney general award, including by finding private enforcement by the newspaper was necessary. (PPOA, supra, 22 Cal.App.5th at p. 156.) The appellate court in PPOA did not review or address the necessity requirement, its holding was directed only to the Joshua S. exception and whether it applied to the newspaper. (Id. at pp. 162-166.) PPOA does not compel us to reverse the trial court's attorney fees order or its finding that Voice did not demonstrate the necessity of private enforcement.
Because we conclude the trial court had a reasonable basis to find the public rights in this case were " 'adequately vindicated by [the districts'] action' " (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215), we uphold the court's decision to deny Voice private attorney general fees.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.