Group v. Carlsbad Police Dep't

• Decision Date: 13 February 2013
• Docket Number: D060415
• Citation: 214 Cal.App.4th 259,153 Cal.Rptr.3d 577
• Court: California Court of Appeals Court of Appeals
• Parties: MINCAL CONSUMER LAW GROUP, Plaintiff and Appellant, v. CARLSBAD POLICE DEPARTMENT et al., Defendants and Respondents.

214 Cal.App.4th 259

153 Cal.Rptr.3d 577

MINCAL CONSUMER LAW GROUP, Plaintiff and Appellant,

v.CARLSBAD POLICE DEPARTMENT et al., Defendants and Respondents.

D060415

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

Filed February 13, 2013

Appeal dismissed.

See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 169.

APPEAL from a judgment of the Superior Court of San Diego, Thomas P. Nugent, Judge. Appeal dismissed. (Super. Ct. No. 37–2010–00057548–CU–WM–NC)

Melissa Bobrow for Plaintiff and Appellant.

Daley & Heft, Lee H. Roistacher; Ron Ball and Celia A. Brewer, City Attorney, Paul Gregory Edmonson, Assistant City Attorney for Defendants and Respondents.

Best Best & Krieger, Shawn Hagerty, Rebecca J. Andrews for League of California Cities as Amicus Curiae on behalf of Defendant and Respondent City of Carlsbad.

O'ROURKE, J.

Appellant MinCal Consumer Law Group (MinCal) made a request to respondent Carlsbad Police Department (Department) in the City of Carlsbad ¹ under the California Public Records Act (the Act; Gov.Code, § 6250, et seq.) for records stemming from identity theft incidents for nine months before the request date. Department permitted MinCal to inspect a media log, and otherwise denied access to records more than thirty (30) days old on grounds they were considered “historical.” MinCal unsuccessfully filed a petition for writ of mandate under the Act, and then filed a notice of appeal from the superior court's judgment denying the petition. MinCal contends that as a matter of statutory interpretation, disclosure of the requested information is mandatory under the terms of the Act, and it is not exempt from disclosure as historical.

City responds that this court lacks jurisdiction and thus we should dismiss MinCal's purported appeal because MinCal's sole remedy is to file a petition for writ of mandate, and MinCal appeals from a nonappealable judgment or order. It otherwise maintains that under the applicable appellate standards of review and a reasonable construction of the Act's provisions, MinCal has not met its burden to establish the trial court erred by its ruling.

We agree the exclusive means to challenge an order granting or denying disclosure under the Act is via writ petition filed within 20 days after service of written notice of the order's entry, a jurisdictional requirement MinCal did not meet. Under these circumstances, we are without power to review the matter, and thus are not presented with extraordinary circumstances that would justify our treating the appeal as an extraordinary writ. Accordingly, we must dismiss MinCal's appeal. We deny the request of the League of California Cities to file an amicus brief in the matter, as well as its and City's motions for judicial notice.

FACTUAL AND PROCEDURAL BACKGROUND

In April and May 2010, attorney Ehson Salaami from MinCal, a consumer law firm, corresponded with Department records manager Delphine Fisk regarding MinCal's desire to review information pertaining to reports of identity theft filed with Department, particularly the victims' names and addresses. Fisk initially invited Salaami to view Department's publicly available log, which contained information for the past 30 days. After Salaami viewed Department's logs, he made a more specific request, asking Fisk for access to all public records pertaining to identity theft incidents for the past nine months, from November 2009 to May 2010.² Fisk again invited Salaami to view the media log, and, citing County of Los Angeles v. Superior Court (Kusar) (1993) 18 Cal.App.4th 588, 22 Cal.Rptr.2d 409 ( Kusar ), advised him that after 30 days, any information was considered historical and not subject to mandatory disclosure under the Act.

MinCal filed a verified petition for writ of mandate seeking declaratory and injunctive relief to compel City to make the requested public records available. In part, it argued nine months of records was sufficiently contemporaneous under Kusar, supra, 18 Cal.App.4th 588, 22 Cal.Rptr.2d 409. In response, City provided Fisk's declaration explaining how Department makes publicly available its press reports through logs generated daily by its computer aided dispatch (CAD) system and the system's limitations, including the fact that victim names and ages are not recorded by that system. It presented evidence that based on Kusar, other California law enforcement agencies established a 30–day retention policy for Government Code section 6254, subdivision (f) information and their press reports, which likewise did not contain the names and ages of victims. City's evidence showed that Department destroys press reports older than 30 days.

Following a hearing on the matter, the trial court denied MinCal's petition. Thereafter, on June 21, 2011, the court issued a written minute order reflecting its ruling and stating: “Pursuant to Government Code [section] 6254[, subdivision] (f), the local law enforcement agency is required to make public the information set forth in subsection (2)—e.g., the name and age of the victim—‘to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded[.’] As Respondent alleges, not all of the information set forth in subsection (f), including the name and age of the victim, is always recorded by CAD in the police log. Nothing in this statute requires that such a recording must be made especially because in many circumstances, such information must be held private. [¶] Further, Petitioner has failed to cite any compelling authority to show that Respondent's interpretation of the term ‘contemporaneous' in accordance with the decision in [ Kusar, supra, 18 Cal.App.4th 588, 22 Cal.Rptr.2d 409] is unreasonable. Respondent has shown that other local law enforcement agencies apply the same interpretation and impose a thirty day limit on the records.” The clerk served the minute order by mail on all parties on the same day the minute order was issued, June 21, 2011.

On June 23, 2011, City served by mail a proposed judgment on MinCal. The next day, the trial court entered the judgment in City's favor. MinCal filed a notice of appeal on August 19, 2011.³

DISCUSSION

City maintains we lack jurisdiction to entertain MinCal's appeal, which is from a nonappealable order or judgment. We agree. The “existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” ( Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074; Harrington – Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1494, 68 Cal.Rptr.3d 209; First Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468, 472, 119 Cal.Rptr.2d 787.)

Government Code section 6259 provides that an order of the trial court supporting the decision of a public official refusing disclosure of material requested under the Act “is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.” (Gov.Code, § 6259, subd. (c); see Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426, 121 Cal.Rptr.2d 844, 49 P.3d 194 ( Filarsky ); Powers v. City of Richmond (1995) 10 Cal.4th 85, 89, 40 Cal.Rptr.2d 839, 893 P.2d 1160; Consolidated Irr. Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 702–703, 140 Cal.Rptr.3d 622.) This provision of the Act, which has been upheld against a challenge that it violates the “appellate jurisdiction” provision of the state Constitution ( Powers v. City of Richmond, 10 Cal.4th at pp. 89–90, 40 Cal.Rptr.2d 839, 893 P.2d 1160 ⁴), unambiguously forecloses an appeal and instead expressly authorizes a writ as the sole and exclusive means to challenge the trial court's ruling. (See, e.g., People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 802, 123 Cal.Rptr.2d 31, 50 P.3d 743 [ Code of Civil Procedure section 170.3, subdivision (d), providing the “determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by writ of mandate from the appropriate court of appeal ... filed within 10 days after service of written of notice of entry of the court's order ...” is the exclusive means for seeking review of a ruling on a preemptory challenge to a judge]; see also People v. Hull (1991) 1 Cal.4th 266, 275, 2 Cal.Rptr.2d 526, 820 P.2d 1036 [“The Legislature, through [Code of Civil Procedure] section 170.3(d), has specifically determined that a writ of mandate shall be the exclusive means of challenging a denial of a motion to disqualify a judge”].)

Further, the writ petition must be filed within 20 days after service of the notice of entry of the order either directing disclosure or supporting the decision refusing disclosure, or within an additional 20 days as the trial court may allow for good cause. (Gov.Code, § 6259, subd. (c); Filarsky, supra, 28 Cal.4th at p. 426, 121 Cal.Rptr.2d 844, 49 P.3d 194.) The 20–day period within which to file the petition “shall be increased by five days” if the notice is served by mail. (Gov.Code, § 6259, subd. (c).) Such legislatively prescribed statutory deadlines are mandatory and jurisdictional. (See In re Antilia (2009) 176 Cal.App.4th 622, 630, 97 Cal.Rptr.3d 849 [“A time limit prescribed by the Legislature for filing a petition for writ of mandate is jurisdictional”] ); e.g., Eldridge v. Superior Court (1989) 208 Cal.App.3d 1350, 1352, 256 Cal.Rptr. 724 [then 10–day statutory time limitation for filing a petition for extraordinary writ review of an order summarily adjudicating issues is jurisdictional]; Abadjian v. Superior Court (1985) 168 Cal.App.3d 363, 369, 214 Cal.Rptr. 234 [same]; Sturm, Ruger & Co. v. Superior Court (1985) 164 Cal.App.3d 579, 210 Cal.Rptr. 573 [same]; Bensimon v. Superior Court (2003) 113 Cal.App.4th 1257, 7 Cal.Rptr.3d 151 [20–day statutory time limit in Code...