California Code of Civil Procedure §998 authorizes a particularly hardball negotiating tactic in lawsuits in California. One party can make what’s called a 998 settlement offer to the other. If the other party wins but doesn’t get awarded more money than in the 998 offer, the losing party doesn’t have to pay more than the offer. The idea is to encourage parties to seriously consider reasonable settlement offers rather than litigating for the sake of litigation.
And don’t forget that the only mechanism for enforcing the California Public Records Act is by filing a petition. The legislature has made this financially possible by including a mandatory award of attorney’s fees to the requester if they win.1 This is at §6259(d).2 There are built-in protections for requesters as well. Most notably that public agencies can’t recover their own costs from requesters even if they win, except under very rare circumstances.3 This is also found at §6259(d).
Without this potential award of attorney’s fees having court cases be the only mechanism for enforcement would be really unfair. Requesters would have to pay lawyers up front and public agencies would end up ignoring the CPRA altogether except if they thought requesters could afford expensive lawyers. And that would be a really bad outcome. As the CPRA itself says, right up at the top in §6250, “In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
Finally, it is not unheard of for lawyers representing public agencies to make 998 offers.4 When such an offer is received it’s necessary to put some careful thought into rejecting it, because it could end up costing the attorney a lot of money if the fee award ends up being less than the offer. And the serious problem with this is that it could well induce plaintiffs’ attorneys to settle for less money than the case is worth.
In turn, this makes it more difficult for lawyers to be able to afford to take these cases, and this ends up eroding the financial viability of the only CPRA enforcement mechanism available. But judicial enforcement of the CPRA protects a “fundamental and necessary right of every person in this state.” So it’s bad public policy to allow 998 offers in CPRA cases.
Enter state senator Bob Wieckowski. He’s well-known for his attention to essential yet technical flaws in the CPRA. Just for instance, last year he introduced a bill to widen access to records and protect requesters from financial retaliation by public agencies who inadvertently released privileged records. Some aspects of it didn’t survive the legislative process, but it did accomplish its main goal.
And in keeping with this tradition, yesterday, February 21, he introduced SB 518, whose purpose is to outlaw 998 offers in CPRA cases.5 This is really important for all the reasons given above and probably some others that didn’t occur to me. Turn the page for a transcription of the legislative counsel’s digest and of the changes to the statute being proposed.
Legislative Counsel’s Digest
SB 518, as introduced, Wieckowski. Public records: disclosure: court costs and attorney’s fees.
The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.
The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why that officer or person should not do so. The act requires the court to award court costs and reasonable attorney’s fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney’s fees to the public agency if the court finds that the plaintiff’s case is clearly frivolous.
This bill, for purposes of the award of court costs and reasonable attorney’s fees pursuant to the above provisions, would specifically notwithstand a provision of existing law that prescribes the withholding or augmentation of costs if an offer is made before judgment or award in a trial or arbitration.
6259. (a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why
he or she the officer or person should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.
(b) If the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255,
he or she the judge shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she the judge shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.
(c) In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, 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. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon
him or her that party of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she that person is not in contempt of court.
The Notwithstanding Section 998 of the Code of Civil Procedure, the court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the requester’s case is clearly frivolous, it shall award court costs and reasonable attorney attorney’s fees to the public agency.
(e) Nothing in this section shall be construed to limit a
requestor’s requester’s right to obtain fees and costs pursuant to subdivision (d) or pursuant to any other law.
Image of Bob Wieckowski is ©2019 MichaelKohlhaas.Org and is kind of based on this lil Facebook item.
- Glossing over some technicalities here. They get fees paid if they’re the “prevailing party” as that phrase is defined by the law. So it’s possible for a requester to lose on some or all of their claims and still “prevail” under various circumstances, e.g. if the petition induces the public agency to cough up some more records.
- The court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the requester’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.
- In particular, if the requester’s lawsuit if “frivolous.” This is another technical term defined by the law. I’m not sure what the definition is in full, but part of it seems to be that in order for a case to be frivolous no reasonable lawyer would bring it before a court. So all it takes to protect against this outcome is to hire a reasonable lawyer. If they bring your case it’s not frivolous.
- In fact, the world’s angriest CPRA lawyer, Carol Humiston, who represents BIDs all over Los Angeles in CPRA matters, made such an offer in the two cases I was forced by the weirdo intransigence of Donald R. Duckworth to file against his BIDdies in Westchester and on Melrose, did exactly that. It was obvious even to her that her client was completely and utterly at fault, but rather than handing over the records and agreeing to pay my lawyer for her work on the cases, she made an insultingly lowball 998 offer. We didn’t take it and the BIDdies coughed up a lot of damn money, but it took serious consideration.
- It also fixes a few spelling errors, infelicities, and typographical oddities in the bill’s language.