Los Angeles Times Communications LLC v. Los Angeles County Board of Supervisors

Appellants filed suit on March 2.9, 2002, one day after the agenda for the Board’s April 2 meeting was posted. Relying in large part on the Board documents inadvertently sent to the Times, the petition alleged seven causes of action. The first alleged that the Board violated the Brown Act on December 18, 2001, when it secretly directed Pellman to violate the state elections code and keep the health care measure off the ballot. The second cause of action alleged that the Board violated the Brown Act as a result of Pellman’s December 19, 2001, phone calls to three supervisors to discuss his decision to instead change course and place that measure on the ballot. The third and fourth causes of action alleged that the Board violated the Brown Act on January 4 and 8, 2002, by discussing the events of December 18 and 19. The other causes of action alleged that the Board violated the Brown Act by failing to specify the department head supposedly being evaluated in closed session, by using the supervisors’ deputies as surrogates to hold private “shadow Board” meetings to decide the Board’s business, and by holding weekly serial meetings with the County’s administrative officer in order to secretly decide Board business. Based on those allegations, appellants sought injunctive and declaratory relief and a writ of mandate halting those practices.

Both before and after the petition was filed, the County took various steps to obtain the return of the documents it inadvertently sent to the Times and to prevent their use at trial. In early March 2002, the County Counsel’s office demanded the return of the documents. The Board later sought to exclude those documents from the trial on the ground that they were protected by the Brown Act and were otherwise privileged, contending that based on the absence of those documents, appellants would then be unable to prove their claims. The Board also contended on the merits that its actions were in full compliance with the Brown Act. To support its contentions, the Board filed under seal numerous documents that it believed were privileged, asking the trial court to review them.

At trial, the court granted only part of the Board’s motion to lodge certain documents under seal, ruling that portions of the minutes from the January 4 and 8, 2002, closed sessions, along with certain letters to the district attorney transmitting various documents, should be sealed. The court read into evidence portions of those minutes which it believed established Brown Act violations, however, disclosing for the first time that during those closed sessions the Board directed its administrative officer to develop new Brown Act protocols.

Appellants moved to recover their attorneys fees under the Brown Act’s fee provision. (§ 54960.5.) The trial court denied the motion, finding that special circumstances existed which would make a fee award unjust. Appellants contend that the trial court abused its discretion by denying their attorneys fee motion.

DISCUSSION

1. The Board’s Brown Act Violations

The Brown Act requires that most meetings of a local agency’s legislative body be open to the public for attendance by all. (§ 54953, subd. (a).) The Legislature forcefully stated its intent when passing the Brown Act: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly, [f] The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” (§ 54950.)

Among its provisions, the Brown Act requires that an agenda be posted at least 72 hours before a regular meeting and forbids action on any items not on that agenda. (§ 54954.2, subd. (a).) “The [Brown] Act thus serves to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation of public bodies. [Citation.]” (Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862 , 868 [ 104

There are several exceptions to the Brown Act. At issue here is the one permitting a public agency to meet in closed session to discuss pending litigation. (§ 54956.9.) Litigation is considered to be pending when it has been initiated against the agency. (§ 54956.9, subd. (a).) Litigation is also considered pending when, “based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.” (§ 54956.9, subd. (b)(1).) For purposes of that exception, existing facts and circumstances include facts such as accidents, incidents or transactional occurrences and the receipt of claims or other threats to sue. (§ 54956.9, subd. (b)(3)(A)-(D).) The pending litigation exception also applies when, based on existing facts and circumstances, the agency has decided to initiate or is deciding whether to initiate litigation. (§ 54956.9, subd. (c).) Closed sessions are also permitted to perform employee evaluations. (§ 54957.)

The Board met in closed session on December 18, 2001, pursuant to the Brown Act’s initiation of litigation exception. (§ 54956.9, subd. (c).) There is no dispute that its initial discussions about the propriety of suing to challenge the health care measure fell within this exception. The Board contended that when its focus shifted to having Pellman keep that measure off the ballot by violating his duties under the Elections Code as a means of prompting a suit by those backing the measure, it was still acting within the scope of section 54956.9, subdivision (c). The trial court rejected that contention, declaring the practice illegal under the Brown Act because “it was a topic that did not deal with initiation [of litigation]” and because “it was beyond the agenda. It was an action that should not have been taken, of course, in the closed meeting; and finally, it should have been reported.”

The Board met in closed session on January 4 and 8, 2002, pursuant to the Brown Act’s pending litigation (§ 54956.9, subd. (b)(1)) and employee evaluation exceptions. (§ 54957.) When the trial court unsealed the minutes of those meetings, it and appellants learned for the first time that the Board ordered the development of new Brown Act protocols during those sessions. The Board offered no defense to the consideration of Brown Act protocols in closed meetings, admitting to the court that “a mistake was made.” The Board

In looking to federal precedent, the Common Cause I court was guided by Newman v. Piggie Park Enterprises, Inc. (1968) 390 U.S. 400 , 402 [ 19 L.Ed.2d 1263 , 88 S.Ct. 964 ] (Piggie Park), which held that attorneys fees are presumptively appropriate to successful plaintiffs under the federal Civil Rights Act (42 U.S.C. § 2000a-3(b)) unless the defendant comes forward to show special circumstances that would render a fee award unjust. (Common Cause I, supra, 119 Cal.App.3d at p. 663.) “Like all these [federal] cases, the Brown Act provides specific legislative authorization for attorney’s fees in actions brought to enforce a public policy in a context where actual recoverable damages are likely to be trivial. The damage is to the public integrity, and the fees are designed to make it economically feasible to rectify that damage by private legal means.” (Id. at p. 664.)

In holding that the trial court erred by denying fees based on the lack of statewide significance of the suit, the Common Cause I court acknowledged that Brown Act violations involving local agencies would rarely have statewide impact. “Nevertheless, regardless of the local nature of the agency, the Legislature has declared the goals of the Brown Act to be vital and of statewide significance. Section 54950 furthers the goal of public discussion and decision making in government which is inherent in a democratic political system and has been strongly supported in judicial and scholarly precedent. [Citations.]” (Common Cause I, supra, 119 Cal.App.3d at p. 664, fn. omitted.) According to the appellate court, the Legislature clearly intended that fees be awarded where issues of only local significance were involved. (Id. at pp. 664-665.)

Even so, the trial courts are not obliged to award fees in every Brown Act case and must “thoughtfully exercise” their discretion by examining all the circumstances to determine whether an award of fees would be unjust. The burden of showing such inequity rests on the defendant, however. (Common Cause I, supra, 119 Cal.App.3d at p. 665.) As an example, the appellate court pointed to Aho v. Clark (9th Cir. 1979) 608 F.2d 365 , 366-368 (Aho), which affirmed the denial of attorneys fees under the federal Civil Rights Act “because the award of fees might have altered the consequences of the settlement reached by the parties, defendants were already in the process of remedying the program at issue and attorney’s fees were not essential to attract competent counsel.” (Common Cause I, supra, 119 Cal.App.3d at p. 665.) The appellate court also relied, without discussion or analysis, on

B. Common Cause II

On remand from Common Cause I, the trial court again denied plaintiffs their attorneys fees. Based on the city council’s later public hearing on the matters discussed in its private letter to the city manager, the trial court found that the suit was unnecessary, that no public injury occurred, and that the problem created by the private letter had been solved by other means. Because there were no allegations of a concerted effort to avoid the law generally, combined with the trial court’s earlier finding that the private letter was not part of the council’s normal procedure, the trial court found that the violation was not likely to recur. The trial court also found that the public benefit from the action was insubstantial even at the local level. The plaintiffs appealed again, and the appellate court held that the trial court abused its discretion by denying their fees motion.

The Common Cause II court noted that the city attorney issued two written opinions concluding that no Brown Act violation occurred. In one of those letters, the city attorney wrote that it was not uncommon for council members to commence an action by way of a private letter, leading to an open and public discussion of the matter. The appellate court concluded that the latter statement rendered insupportable the trial court’s conclusion that the private letter did not represent the council’s normal procedure. “From the view of Common Cause the necessity for filing this action was to preclude further Brown Act violations. The lawsuit could have been avoided had the city attorney responded to the Common Cause letter [complaining of a Brown Act violation] by agreeing to advise the city council members not to take future action by means of circulated letter and/or acknowledging the previous action did violate the Brown Act. The city attorney refused to do either and, in fact, emphasized his belief the procedure was perfectly proper. Thus, there was reason to believe there would be continuing use of circulated letter agreements without judicial intervention. . . .” (Common Cause II, supra, 147 Cal.App.3d at p. 524.)

According to the appellate court, the lawsuit was not brought to undo the council’s action but was instead brought in good faith to judicially determine

In order to carry out that purpose, the Common Cause I court endorsed the standard announced in Piggie Park, supra, 390 U.S. at page 402: fees are “presumptively appropriate” and a successful plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” (See also Common Cause I, supra, 119 Cal.App.3d at p. 663.) The trial court’s discretion under this standard “has been interpreted very narrowly. To act as an effective incentive for injured parties to seek judicial relief for civil rights violations, ‘fee awards should be the rule rather than the exception.’ ” (Ackerley Communications v. City of Salem, OR (9th Cir. 1985) 752 F.2d 1394 , 1396, quoting Teitelbaum v. Sorenson (9th Cir. 1981) 648 F.2d 1248 , 1251 (Teitelbaum).) An abuse of discretion exists where the trial court either misperceives the law or does not consider relevant factors and therefore misapplies the law. (Ackerley, at p. 1396.)

In short, the trial court has the discretion to deny successful Brown Act plaintiffs their attorneys fees, but only if the defendant shows that special circumstances exist that would make such an award unjust.

B. The Law of Special Circumstances

As one might imagine, given the variety of federal laws subject to private enforcement, the fact patterns justifying a denial of fees vary greatly. Nevertheless, a few basic guidelines have emerged. In Briggs, the District Court gave the following examples:

“ Instances in which special circumstances were found to justify a denial of a fee award include outrageous conduct on the part of plaintiff, and situations in which a defendant is powerless to provide the remedy sought by plaintiff. Other instances where counsel fees were denied include circumstances wherein plaintiff’s claims were clothed as [42 U.S.C.] § 1983 actions but clearly were state law claims, and where plaintiffs, with the barest standing, attacked an antiquated rarely-enforced curfew statute without prior attempts to remedy the grievance without litigation.” (Briggs, supra, 687 F.Supp. at p. 1524, fhs. omitted [federal civil rights claim].) Briggs itself involved a challenge to a long-accepted Utah practice of allowing government litigation settlement agreements to remain confidential. The court acknowledged that, if the public entity had released the settlement agreement in question to the public without court order, the government would have presumptively breached the settlement agreement’s confidentiality provision, thus exposing the government to “substantial damages.” This factor justified the denial of attorneys fees. (Ibid.)

The Fifth Circuit has also recognized that denial of fees due to special circumstances arises only in unusual situations. “For example, several cases upholding decisions to deny attorney’s fees involve situations in which the plaintiff filed under [42 U.S.C.] section 1983 to recover what was essentially a tort claim for private monetary damages. These suits did not require injunctive relief or confer significant civil rights to the public. [Citations.]” (Riddell v. National Democratic Party (5th Cir. 1980) 624 F.2d 539 , 544 (Riddell).) Among the decisions cited by Riddell for this proposition were Zarcone, supra, 581 F.2d at pages 1042-1045 (courthouse coffee vendor sued for civil rights violation after judge ordered plaintiff brought to chambers in handcuffs, where judge berated plaintiff for brewing lousy coffee), and Chastang v. Flynn & Emrich Co. (4th Cir. 1976) 541 F.2d 1040 , 1045 (Chastang) (male employees successfully sued on their own behalf for sex discrimination in pension benefits; fees properly denied because the plan was legal when first implemented, the defendant employer did not have unrestricted right to change the plan, the plan was amended to eliminate the discrimination before plaintiffs sued, and defendant had no financial interest in the plan and therefore lacked incentive to discriminate).

Riddell also cited to cases where special circumstances existed justifying a denial of attorneys fees because plaintiffs’ efforts did not contribute to their litigation success. Among the decisions cited were Aho, supra, 608 F.2d 365 , which was relied upon by both Common Cause I and the trial court here.

Aho was a federal civil rights class action alleging that Hawaiian school board officials violated federal guidelines by providing an inadequate school breakfast program. Suit was filed within weeks after the school board

The Ninth Circuit held that the district court did not abuse its discretion in denying plaintiffs their fees because special circumstances made such an award unjust. The Aho court relied heavily on the absence of a fees provision in the consent agreement, concluding that plaintiffs must have compromised in order to avoid the risk and expense of further litigation. Awarding fees in that circumstance “would alter the consequences of that compromise and would thus be manifestly unfair to [defendants].” (Aho, supra, 608 F.2d at p. 367.) Further, the statutory attorneys fee provision did not take effect until four months after the suit was filed and just two months before it was settled. Under the law as it existed during much of the negotiations, the plaintiffs would not have been entitled to recover their fees unless the defendants were found to have acted in bad faith. Because the defendants may well have believed that they were not liable for fees, and because they contended they would not have settled if they had known plaintiffs would seek to recover their fees, a fee award “would be unduly harsh.” (Ibid.)

Finally, the Aho court considered the statutory purposes of the federal attorneys fee statute: “Although the class of children who might benefit from the school breakfast program is a large one, we are not persuaded that an award of attorneys’ fees was ‘ “essential to attract competent counsel.” ’ [Citation.] [Defendants] were already in the process of establishing a breakfast program at the time this suit was filed. Nor can we conclude that appellants’ suit was essential in order to bring the existing program within federal standards, since that determination was expressly left unresolved by the consent agreement. Furthermore, [defendants] did not manifest bad faith or obdurate conduct; they were apparently quite willing to expand the breakfast program. In these circumstances, the policies underlying the [civil rights fees] Act do not mandate an award of attorneys’ fees.” (Aho, supra, 608 F.2d at pp. 367-368.)

With these guiding principles in mind, we next conclude that" there were no special circumstances to justify the trial court’s order denying appellants their fees.

Tracking both Common Cause I and Aho, the trial court denied appellants their fees for three reasons. First, their suit was unnecessary. Second, there was insufficient public injury. Third, attorneys fees were not needed to attract competent counsel because the Times had “plenty of incentive, other than attorneys’ fees, to bring this action.” The first two findings are a blend of several factors: the fact that the Board corrected its December 18 violation one day later when Pellman changed his mind, followed by its January 4 and 8 closed sessions initiating a series of protocols designed to improve the Board’s Brown Act compliance; the fact that the Board’s final changes to its Brown Act protocols—two days after appellants filed suit—were posted as agenda items the day before suit was filed; the existence of a good faith dispute as to whether a Brown Act violation occurred; and the unlikely recurrence of the violations, as shown by the absence of a recurring policy, the unusual and specific factual setting which gave rise to the Board’s violations, and the Board’s eventual steps to improve its Brown Act procedures. As we explain below, we conclude that the trial court erred.

Critical to the trial court’s order was its finding that the Board remedied its Brown Act violations when Pellman shifted gears on December 19 and when the Board adopted new Brown Act protocols before appellants sued. Based on this, the trial court concluded that no repeat violations were likely and that the action was unnecessary and conferred an insufficient public benefit to justify an award of fees. We disagree with the trial court both factually and legally.

First, Pellman’s change of heart the day after the Board voted to have him violate state election laws was not based on his belief that a Brown Act violation occurred on December 18. Neither was Supervisor Molina’s initiation of new Brown Act procedures on January 4 and 8. Instead, as the Board’s records show, it was prompted by Molina’s belief that the Brown Act had been violated on December 19 when Pellman phoned three Board members to discuss his decision to comply with the election laws.

Nor did the Board’s later adoption of new Brown Act protocols remedy the situation. At the time suit was filed on March 29, 2002, the Board had initially adopted a new protocol which barred the taking of discussion minutes or the tape recording of closed sessions. The new protocols also left it to the Board chairperson, acting on the advice of county counsel, to decide whether a matter was properly slated for closed session under the Brown Act. However, County Counsel Pellman was then demanding the return of the documents that were accidentally disclosed to the Times while insisting that no Brown Act violations occurred. Based on this, appellants could properly

We disagree with the trial court that the net result of this litigation conferred insufficient public benefit because there was no injury apart from the three violations themselves. As discussed earlier, the litigation was necessary to uncover the January 4 and 8 violations. The trial court found those violations insignificant because they initiated an overhaul of the Board’s Brown Act compliance procedures. We believe the trial court overlooked the timing and context of those two meetings, which occurred before any public disclosure of the events of December 18, 2001. Their purpose was to rectify a different perceived Brown Act violation and led to the adoption of new protocols in February that included a ban on discussion minutes or audiotapes of closed sessions. It was only after the events of December 18 became public that the Board undertook the further revisions of its Brown Act protocols. We also find the court’s reasoning unpersuasive because, as discussed earlier, those changes did not address the December 18 violation and, given the Board’s continued resistance to appellants’ assertions, left open the possibility that the same violation could recur. Finally, we reject the notion that it was somehow proper to violate the Brown Act in order to save the Brown Act.

Even though appellants lost on four of their causes of action and did not obtain injunctive or writ relief, the Brown Act expressly permits actions to “determine the applicability” of the act. (§ 54960, subd. (a).) As a result of their petition, appellants also obtained a declaration that the Board’s actions

For the reasons set forth above, the order denying appellants their attorneys fees is reversed. The matter is remanded to the trial court with directions to hold a hearing on the proper amount of fees to be awarded. Appellants are to recover their costs on appeal, including their appellate attorney’s fees. (See International Longshoremen’s & Warehousemen’s Union v. Los Angeles Export Terminal, supra, 69 Cal.App.4th at p. 304.)

Cooper, P. L, and Boland, 1, concurred.

Respondent’s petition for review by the Supreme Court was denied February 4, 2004. George, C. 1, did not participate therein.