Cal. Pub. Records Research, Inc. v. Cnty. of Yolo, C078158

Citation4 Cal.App.5th 150,209 Cal.Rptr.3d 26
Decision Date14 October 2016
Docket NumberC078158
CourtCalifornia Court of Appeals
Parties CALIFORNIA PUBLIC RECORDS RESEARCH, INC., Plaintiff and Appellant, v. COUNTY OF YOLO et al., Defendants and Respondents.

Donald W. Ricketts for Plaintiff and Appellant.

Philip J. Pogledich, County Counsel, and Eric May, Deputy County Counsel; Porter Scott, Terence J. Cassidy and Taylor W. Rhoan, Sacramento, for Defendants and Respondents.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Defendants and Respondents.

Government Affairs Consulting and Robert E. Grossglauser III for County Recorders' Association of California as Amicus Curiae on behalf of Defendants and Respondents.

RENNER

, J.

In September 2012, appellant California Public Records Research, Inc. (CPRR) filed a petition for writ of mandate and complaint challenging fees charged for copies of official records by the Yolo County Clerk Recorder's Office. The petition alleges that respondents Yolo County and County Clerk/Recorder Freddie Oakley (collectively, County) failed to perform a mandatory duty to limit copy fees, in violation of Government Code section 27366

(section 27366 ), article XIIIC of the California Constitution (Proposition 26) and California common law.1 The complaint seeks a declaration of the parties' rights under section 27366, and a further declaration that the Recorder's actual cost to produce copies does not exceed $0.10 per page. The complaint also alleges that the County was negligent in setting copying fees, and seeks damages and money had and received on behalf of a putative class of persons who paid the allegedly excessive fees.

The County moved for summary judgment on the grounds that section 27366

authorizes the Board of Supervisors (Board) to exercise discretion in setting fees, there was no genuine issue of material fact as to whether the Board abused its discretion, and fees were reasonably related to the cost of producing copies. The County also argued that CPRR's causes of action for negligence and money had and received were barred by the Government Claims Act, section 810 et seq. (the Act), and the petition for writ of mandate was moot, as the County had voluntarily reduced copy fees from $10.00 for the first page and $2.00 for each subsequent page ($10.00/$2.00) to $7.35 for the first page and $2.00 for each subsequent page ($7.35/$2.00). The trial court granted the motion and entered judgment in the County's favor.

CPRR appeals, challenging the trial court's interpretation of section 27366

and insisting the County abused its discretion in setting copy fees. CPRR also contends the trial court improperly reconsidered and reversed an earlier order overruling the County's demurrer to CPRR's causes of action for negligence and money had and received, thereby exceeding its jurisdiction. We have reviewed the record and conclude that summary judgment was properly granted. Accordingly, we shall affirm the judgment.

Following summary judgment in the County's favor, CPRR moved for an award of attorneys' fees under Code of Civil Procedure section 1021.5

, claiming the litigation served as a “catalyst” for the County's decision to reduce copy fees. The trial court denied the motion. Finding no error, we shall also affirm the order denying the motion for attorneys' fees.

I. BACKGROUND

CPRR is a California corporation “engaged in the business, inter alia, of locating and retrieving public records and has, in the course of its business, located and obtained copies of public records throughout the State of California including records maintained by [the County.] According to the petition, CPRR “has lobbied for wider access by the public to public records and otherwise sought to promote the interests of the general public regarding access to public information and the fees charged therefor.”

The Recorder's Office processes and maintains the County's public records, including real property records (e.g., deeds, deeds of trust, liens, and maps), vital records (e.g., marriage, birth, and death certificates), and other official records (e.g., professional registrations). The Recorder's Office strives “to preserve and provide for the public a true and reliable, readily accessible permanent account of real property and other official records and vital human events, both historic and current.”

The Recorder's Office maintains more than 200 different kinds of public records. Members of the public may obtain copies of these records for a fee. From 1951 through 1992, former section 27366

established a statutory copy fee of $1.00 for the first page and $0.50 for each subsequent page. (Former § 27366.)2 In 1993, the Legislature amended section 27366, repealing the statutory copy fee and requiring boards of supervisors to set fees “in an amount necessary to recover the direct and indirect costs of providing the product or service or the cost of enforcing any regulation for which the fee or charge is levied.” (§ 27366.) As we shall discuss, the present dispute turns on the meaning of the phrase “direct and indirect costs.”

A. The Fee Studies

In 2007, the County retained independent consultants Government Finance Research (GFR) and Peter Lauwerys to conduct a fee study. GFR and Lauwerys had previously completed similar studies for thirty-one other counties throughout California. The GFR study suggests a methodology for calculating fees for services offered by the Recorder's Office, which we shall describe momentarily. The GFR study served as the basis for a subsequent study, referred to by the parties as the “in-house fee study.” The in-house fee study was prepared by the Recorder's Office in May 2009 using the methodology set forth in the GFR study.

The in-house fee study proposes a fee schedule for services offered by the Recorder's Office, including copy services, using a staff billing rate of $129.88 per hour, or $2.16 per minute. The in-house fee study calculates fees by multiplying the staff billing rate by the average time required to perform a given service. For example, the in-house fee study indicates that copy requests require an average of four minutes and 30 seconds of staff time for the first page, and one minute for each subsequent page.3 Applying the staff billing rate of $2.16 per minute, the in-house fee study recommends that copy fees be $10.00 for the first page ($2.16 per minute multiplied by 4.5 minutes equals $9.72, rounded to the nearest dollar) and $2.00 for each subsequent page ($2.16 per minute multiplied by one minute, rounded to the nearest dollar). As we shall discuss, CPRR challenges the manner in which the GFR study and in-house fee study (together, the fee studies) calculate the staff billing rate.

The staff billing rate was calculated by aggregating costs associated with offering services to the public. These costs fall into seven broad categories: (1) individual staff salaries, (2) office overhead, (3) services and supplies, (4) management and supervision, (5) information technology support, (6) cost studies, and (7) computer equipment. For each of the foregoing categories, an hourly rate was calculated using a concept known as the “productive hour.”

According to the GFR report, ‘Productive Hours' are those hours that a worker can be considered to be ‘on the job’ in the work place.” Thus, an employee's productive hours equal the sum of their annual hours (i.e., 40 hours per week times 52 weeks per year), less vacation, sick leave, holidays, and breaks. The GFR study opines that an average employee at the Recorder's Office logs 1,640 productive hours a year. Assuming an average salary of $71,908.67 per year, the cost of individual staff salaries amounts to $43.85 per productive hour ($71,908.67, divided by 1,640, equals $43.85). The in-house fee study uses a similar methodology to calculate a cost per productive hour for each of the other categories of costs incurred by the Recorder's Office (e.g., office overhead, service and supplies), which are then aggregated to arrive at the staff billing rate. These calculations are summarized below:

COST PER HOUR

1. Individual staff salaries, including benefits

$43.85

2. Office overhead

$14.17

3. Services and supplies

$30.30

4. Management and supervision

$22.61

5. Information technology support

$4.76

6. Cost studies

$3.02

7. Computer equipment

$11.18

Total

$129.88

As the table illustrates, the staff billing rate captures all of the costs involved in providing services to the public, both direct and indirect.4 Because the staff billing rate reflects direct and indirect costs, and because the staff billing rate was used to calculate proposed copy fees, the proposed copy fees also reflect the direct and indirect costs of providing copies to the public. Put another way, the in-house fee study proposes copy fees that not only recoup the direct cost of making copies (such as the cost of running the copy machine), they also recoup a share of the indirect costs incurred in the day-to-day operation of the Recorder's Office, such as staff salaries and overhead.

B. The Master Fee Resolution

The fee studies were reviewed and approved by Douglas K. Olander, a certified public accountant with almost 36 years of experience, including 12 years as the manager for cost accounting and budget for the Auditor–Controller's Office. The proposed copy fees were then incorporated into an eight-page chart entitled “Proposed Changes to the Master Fee Schedule.” The chart sets forth approximately 200 proposed fees for various services offered by nine different county departments, including the proposed copy fees for the Recorder's Office ($10.00/$2.00). The chart is attached as an exhibit to the agenda for the May 19, 2009, meeting of the Board. Neither the GFR study nor the in-house fee study is attached as an exhibit to the agenda.

The agenda explains that the Board sets fees by means of a “master fee resolution,” a single resolution and integrated fee schedule which allows the...

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