Carlsbad Police Officers Ass'n v. City of Carlsbad

• Citation: 49 Cal.App.5th 135,262 Cal.Rptr.3d 646
• Decision Date: 18 May 2020
• Docket Number: D075723
• Court: California Court of Appeals
• Parties: CARLSBAD POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Respondents, v. CITY OF CARLSBAD et al., Defendants and Respondents; American Civil Liberties Union of San Diego & Imperial Counties et al., Interveners and Appellants.

49 Cal.App.5th 135

262 Cal.Rptr.3d 646

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

v. CITY OF CARLSBAD et al., Defendants and Respondents;American Civil Liberties Union of San Diego & Imperial Counties et al., Interveners and Appellants.

D075723

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

Filed May 18, 2020

Sheppard, Mullin, Richter & Hampton, James M. Chadwick, Tenaya Rodewald, Palo Alto, and Matthew Halgren, San Diego, for Interveners and Appellants Scripps Media, Inc., doing business as KGTV-TV, The San Diego Union-Tribune, LLC, KFMB-TV News 8, KNSD (NBC7), KPBS Public Broadcasting, and Voice of San Diego.

ACLU Foundation of San Diego & Imperial Counties, David Loy, and Jonathan Markovitz for Interveners and Appellants American Civil Liberties Union of San Diego & Imperial Counties and Flora Rivera.

Reporters Committee for Freedom of the Press, Katie Townsend, Bruce D. Brown, Fresno, and Lin Weeks for Reporters Committee for Freedom of the Press as Amicus Curiae on behalf of Interveners and Appellants Scripps Media, Inc., et al.

Bobbitt, Pinckard & Fields, Richard L. Pinckard, Bradley M. Fields, San Diego, and Amy R. Margolies for Plaintiffs and Respondents Carlsbad Police Officers Association, et al.

McDougal Love Boehmer Foley Lyon & Canlas, Morgan L. Foley, La Mesa, and Lauren N. Hendrickson for Defendants and Respondents City of El Cajon and Jeff Davis, City of National City and Manuel Rodriguez.

City of Oceanside, Office of the City Attorney, John Mullen, San Diego, Annie Higle for Defendants and Respondents City of Oceanside and Frank McCoy.

DATO, J.

Section 387 of the Code of Civil Procedure¹ permits a nonparty to intervene in a pending case, either as of right or permissively, when certain criteria are met. To encourage the pursuit of public interest litigation, section 1021.5 authorizes an award of attorney's fees to the prevailing party. In this "reverse-PRA" case,² eight police officer associations (POAs) filed a petition for writ of mandate seeking to prevent their respective agencies from disclosing certain records of police misconduct or use of force pursuant to a new law, Senate Bill No. 1421. (Stats. 2018, ch. 988, § 2.) Several media organizations and a civil rights group moved to intervene, and the trial court conditioned their participation on the interveners striking their requests to recover statutory attorney's fees. It later agreed with the interveners on the merits that Senate Bill No. 1421 required disclosure of pre-2019 police records.

The interveners challenge the condition placed on their intervention. The scope of a court's power to limit intervention under section 387 appears to be one of first impression in California. We conclude that although a trial court may place reasonable limits even as to intervention of right, the condition imposed here was unreasonable and amounted to an abuse of discretion. We therefore reverse the order and remand for further proceedings to permit the interveners to seek reasonable attorney's fees against the POAs pursuant to section 1021.5.

FACTUAL AND PROCEDURAL BACKGROUND

In 2018, the Legislature passed Senate Bill No. 1421 to expand public access to police records concerning the use of deadly or serious force and significant misconduct. (Sen. Bill No. 1421, Stats. 2018, ch. 988.) The new law took effect on January 1, 2019. ( Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).)

Within a month, eight POAs (Carlsbad, Coronado, El Cajon, Harbor, National City, Oceanside, San Diego, and San Diego Schools) petitioned for writ of mandate to prevent their respective police agencies from releasing pre-2019 records pursuant to Senate Bill No. 1421. The POAs maintained that applying the new legislation to records concerning events that occurred before January 1, 2019 would amount to impermissible "retroactive" application of the law. Their petition named as respondents the cities of Carlsbad, Coronado, El Cajon, San Diego, National City, and Oceanside; the San Diego Unified Port District; the San Diego Unified School District; and the corresponding police chiefs (collectively, the agencies).

The POAs requested a temporary stay barring disclosure of pre-2019 records. The agencies did not oppose their request. The court issued an alternative writ, set a March 1 hearing date, and entered a temporary stay.

Roughly one week later, the ACLU of San Diego and Imperial Counties and its client Flora Rivera (collectively, the ACLU interveners) filed a motion seeking leave to intervene ( § 387 ). The ACLU had filed a series of requests under Senate Bill No. 1421 since January 1, 2019 directed to the agency respondents. Among them was a request filed on February 8 on behalf of Rivera, whose brother was killed in an encounter with San Diego Police Department officers in 2018. The ACLU interveners sought leave to intervene both as of right and on a permissive basis under section 387. Their proposed complaint in intervention sought attorney's fees against the POAs.

A separate motion for leave to intervene was filed by Scripps Media, Inc., doing business as KGTV-TV, The San Diego Union-Tribune, LLC, KFMB-TV News 8, KNSD (NBC7), KPBS Public Broadcasting, and Voice of San Diego (collectively, the Media interveners). Each of these news organizations had filed PRA requests with the agency respondents seeking records covered by Senate Bill No. 1421 and claimed they had received inadequate responses. Like the ACLU interveners, the Media interveners sought to intervene both as of right and on a permissive basis under section 387. Unlike the ACLU interveners, the Media interveners requested relief against the agencies, asserting an affirmative cause of action for violations of the PRA and the California Constitution and seeking a writ of mandate directing the agencies to respond to their pending records requests. As relevant to this appeal, the Media interveners sought attorney's fees against both the POAs and the agencies.³

Most of the agencies did not oppose the requests to intervene. Three agencies—Coronado, El Cajon, and National City—opposed intervention by the Media interveners but not by the ACLU interveners. They believed the Media interveners' request for affirmative relief would impermissibly transform a reverse-PRA action into an effort to enforce still-pending PRA requests. They further objected to the Media interveners' request for attorney's fees, arguing that their interests and the Media interveners' interests were aligned. To the extent intervention would be allowed, the three agencies urged the court to preclude the Media interveners from recovering attorney's fees.

The POAs opposed both requests to intervene. Arguing the respondent agencies were inclined to produce pre-2019 records, the POAs maintained that the interveners failed to meet the third criterion for intervention of right—i.e., that their interests were inadequately represented by the original parties. Nor was permissive intervention warranted—the POAs claimed the requests for attorney's fees would enlarge the lawsuit by introducing a request for additional or different relief. In addition, the POAs suggested the specter of an attorney's fee award would interfere with the rights of the original parties to litigate the lawsuit on their own terms.

The court held a hearing on February 15 on the motions for leave to intervene. It explained that its tentative decision was to allow intervention but require the interveners to strike their requests for attorney's fees because these requests would enlarge the issues in the case. The Media interveners responded that enlargement of the issues was a factor only for permissive intervention, whereas they sought intervention by right. And to the extent intervention was merely permissive, the fact that the POAs also sought attorney's fees demonstrated that the interveners' request would not expand the scope of litigation. Counsel for the ACLU interveners joined in these arguments.

The court proceeded to allow intervention, finding it "appropriate under the third prong," presumably in reference to the POAs' argument against mandatory intervention. However, it conditioned intervention on the ACLU and Media interveners striking their request for attorney's fees, explaining:

"The issue of attorney fees, it's a big issue because I have the police officers association, and I've got all of you in here. In this court's humble opinion, I think it's best to strike the attorney's fees. If you want to file your motion in intervention, strike the attorney fees. You could say, hold on, Judge, we don't like that. You can file your own separate lawsuit. That's up to you to make that choice. I will leave it to you. I'll give you my opinion. I think it's best to get this thing done on March 1, one way or the other. I'm going to leave that up to you. If you want to intervene, strike the attorney fees provision."

In a minute order, the court indicated it was exercising "its discretion" to grant leave to intervene, "provided however" that both interveners "strike their request for attorney's fees which will enlarge the issues in this case."⁴

The ACLU and Media interveners filed their complaints in intervention, striking their requests for attorney's fees. They subsequently filed merits briefs opposing the POAs' petition. The agencies took no stance. Following a hearing on March 1, the trial court denied the POAs' petition, concluding that Senate Bill No. 1421 covered records concerning events occurring before January 1, 2019.⁵ After the court issued a "partial judgment denying [the POAs'] petition for writ of mandate," the ACLU and Media interveners appealed the February 15 order limiting the scope of their intervention.

DISCUSSION

This case presents a matter of first impression in California: can a trial court condition leave to intervene on a nonparty agreeing to forgo its request for statutory attorney's fees? As we explain, under the...