‘Failing to Produce’: San Diego is Paying Hundreds of Thousands of Dollars to Settle Public-Records Lawsuits — With More Coming

The Union-Tribune reviewed more than 20 lawsuits filed in the past five years that accused the city of failing to comply with the state open-records law.

The city of San Diego has paid more than $240,000 in attorney fees and court costs since the start of last year for denying California Public Records Act requests — and more judgments are likely coming soon.

In case after case, the city paid to settle allegations that officials improperly withheld documents, wrongly insisted there were no records or simply did not follow the law.

“The city violated the California Public Records Act by failing to produce at least one responsive, non-exempt public record,” Judge Eddie Sturgeon wrote in one February ruling, after considering the merits of a lawsuit brought by San Diegans for Open Government.

In that proceeding alone, Sturgeon awarded the watchdog group represented by San Diego attorney Cory Briggs more than $33,000 in legal fees and court costs.

The San Diego Union-Tribune reviewed almost two dozen lawsuits filed in the past five years that accused San Diego or other local jurisdictionsof failing to comply with the state open-records law by claiming unjustified exemptions or denying there were any documents to release.

All but two were lodged against San Diego.

It’s possible the number of alleged violations is even higher. As a public agency, the city is involved in hundreds of lawsuits a year; the legal complaints must be reviewed individually to determine whether they allege mishandling of Public Records Act requests.

The allegations do not represent hugely significant costs for a municipality that raises and spends more than $2 billion a year.

But experts say San Diego’s habit of rejecting Public Records Act requests is troubling because scrutinizing government documents, recordings and other material is one of the most important checks and balances on elected and appointed officials.

“Citizens have a right to know how their government operates,” said Dean Nelson, who directs the journalism program at Point Loma Nazarene University. “That’s part of being in a democratic society.

“Laws like the public-records mandates are guarantees that we can see how our officials are conducting themselves and how they are spending our money,” he said.

A spokesperson for San Diego City Attorney Mara Elliott said the city has paid $242,000 since Jan. 1, 2021, for public-records cases brought against the city. Three of those cases were lost at trial; eight others were settled out of court.

The costs are in line with costs experienced by other large cities, the office said, but Elliott is nonetheless committed to finding ways to reduce those expenses and to make sure people get the material to which they are entitled.

“The process can always be improved,” spokesperson Leslie Wolf Branscomb said by email.

“The city attorney’s office has offered global solutions since at least December 2019, when the city attorney first advocated for a centralized office under the mayor that would coordinate city response to CPRA requests to provide information to the public with greater speed, consistency, and accuracy.”

In a court appearance earlier this month, a lawyer for the city complained that Public Records Act lawsuits “are becoming such a drain on city resources.”

“We have done everything we can,” Deputy City Attorney Erin Dillon told Judge Joel Wohlfeil during a hearing called to debate whether Briggs should be paid $600 or $750 for each hour he spent winning an open-records case.

“We admitted our mistake,” she added. “And Mr. Briggs continues to insist on discovery. It rewards this sort of brinksmanship and tactics.”

Like most plaintiffs’ lawyers, Briggs relies on the legal process of discovery — collecting internal documents and conducting depositions — to support allegations in their complaints.

The city of San Diego is not alone in failing to comply with the California Public Records Act.

Chula Vista is now litigating a lawsuit filed over video records from its police department’s drone program that officials have refused to release. San Diego County recently resolved a claim over documents requested for a regional law enforcement program.

But the complaints piling up against the city of San Diego are especially notable in light of the city’s past effort to make accessing public records more difficult.

At Elliott’s request, state Sen Ben Hueso, D-San Diego, introduced a bill in early 2019 that would have required people filing requests to “meet and confer” with agencies to discuss their requests before they are fulfilled.

The legislation also would have required plaintiffs to prove a public agency “knowingly, willfully and without substantial justification failed to respond to a request for records” to prevail in any lawsuit.

The bill was vilified by good-government advocates and others who worried that it would kneecap the public’s ability to monitor their governments and would shield public officials and agencies from liability.

Hueso withdrew the bill weeks after it began generating broad statewide criticism.

“The Public Records Act is an essential component of California’s strong commitment to open government and transparency,” the senator said in announcing his change of heart.

‘Intentionally withheld’

The city of San Diego receives thousands of records requests every year, more than 6,000 so far this year.

They come from lawyers, journalists, researchers, insurance companies and everyday citizens, people who are seeking everything from billing reports and arrest data to employee emails and other internal communications.

Like many jurisdictions, San Diego operates an online portal system that residents may use to submit requests, although the law says people can ask for documents any way they like. Agencies have 10 days to provide the records or explain why it will take additional time.

The law also requires the city to help people refine requests to get them what they want.

The Public Records Act contains a handful of exceptions that allow the government to legally withhold some documents. Those include the attorney-client privilege and the more subjective finding that the public interest is better served by keeping certain records secret.

Exemption claims by San Diego officials are behind many of the lawsuits filed against the city.

In February 2021, for example, San Diego taxpayer and resident Joshua Billauer submitted a request for any writings “directed to, received or reviewed by, or sent or created” by a supervisor in the Development Services Department over the prior four months.

The city released some documents over the next several months, but Billauer suspected there were other records that were being withheld. He sued, accusing the city of failing to conduct a thorough search for the documents and refusing to disclose others.

The “city intentionally withheld the public records responsive to the CPRA request prior to the commencement of this lawsuit,” the legal complaint said.

City officials denied the allegations, citing the attorney-client privilege exemption, and a hearing is scheduled for next month.

In other cases, San Diego has insisted there were no records responsive to a particular request only to be proved wrong through the exchange of documents and testimony in advance of any trial.

Last year, for example, after La Prensa San Diego publisher Arturo Castanaras sought communications from a specific city employee, officials initially rejected the request because it was filed by his attorney, Briggs, rather than by Castanaras.

When that tactic failed, court records show, the city argued that the documents were being withheld under the attorney-client privilege and because the public interest in non-disclosure outweighed the public interest in releasing them.

After Judge Ronald Frazier directed the city to provide him the disputed records so he could determine whether they should be released, the city adopted another position.

“(The) city has now submitted a declaration stating, contrary to the city’s initial response, that no documents were withheld on the grounds of attorney-client privilege or on any other ground,” the judge ruled last month in ordering the records released.

Castanaras has filed no fewer than eight public-records lawsuits in recent years and won the majority of those that have been decided. He said public officials leave him no choice but to take his claims to court when his requests are denied.

“Either they are so incompetent that none of their CPRA responses should be believed — and everybody should be concerned about that, or they are only doing it to me and forcing me to file lawsuits to get documents that I am entitled to,” he said.

The La Prensa San Diego publisher, who has been a sharp critic of San Diego city leaders in both stories and editorials, said he does not believe the failed responses are the result of innocent mistakes.

“There are some very good attorneys in the city attorney’s office,” Castanaras said. “This is a systematic way to limit the public’s access to public documents.”

$600 an hour

For years, Briggs said, he managed a thriving practice specializing in environmental law, challenging development permits, environmental impact reports and land-use policies.

But at least 15 years ago, after discovery turned up documents that had been initially denied, he said he began filing open-records violations before proceeding with legal challenges to environmental-impact reports or general plan amendments.

“These (development) deals are all hatched before the public sees the consequences,” Briggs said. “At that point, I started exercising my rights under the open-government laws.”

It did not take long for clients to begin seeking him out for help with document requests. He has filed dozens of records cases in the past decade-plus on behalf of individuals and San Diegans for Open Government.

“Most agencies are all the same when it’s on topics that are controversial — they all try to hide it,” said Briggs, who unsuccessfully challenged Elliott in her 2020 re-election bid.

“Where San Diego is different, as you can tell by the cases, is they simply refuse to admit that they withheld documents or they didn’t do a proper search — until the person in the black robe says so,” he said.

David Loy is the legal director at the First Amendment Coalition, an open-government advocacy group based in Marin County. He said public agencies should never lose lawsuits over government records because they should not be violating the law in the first place.

“The Public Records Act is supposed to be the cornerstone of governmental accountability and transparency,” Loy said. “So if the government is forcing you to sue to enforce that, at some level the public has already lost.”

The nonprofit legal director said governments, like most businesses and organizations, should maintain an efficient and effective records-keeping program.

“The solutions to these problems are not rocket science,” Loy said. “Document control is a standard feature of any large bureaucracy. The other question is: They have the documents — and are they wrongly asserting exemptions?”

Click here to read the full article at the SD Union Tribune

Baseless Lawsuits May Begin and End with California

court gavelCalifornians may not know it, but their courts are creating an unprecedented “super tort” that could be used against anyone that makes and sells a lawful product. Today, it is paint and tomorrow it could be you or your company.

In February, California’s Supreme Court surprised many experts by declining to review a high-profile case against paint and pigment makers that has been in the state’s court system since the early 2000s. In unprecedented rulings, the lower courts are making three companies pay more than a billion dollars to remove lead paint from all private homes built before 1951 across 10 California counties. The only option left for the companies is to take the case to the U.S. Supreme Court.

To some, this may not sound like a case of national importance, but it is. Lawsuits that seek to pursue businesses for money, regardless of wrongdoing, have been tried for four decades. In the past, state courts have stopped this including in Rhode Island, New Jersey and Illinois. This case is the first time a state high court has allowed this type of deep pocket jurisprudence to stand.

The legal theory is a new twist on the centuries-old tort of public nuisance. The lawsuit argues that three companies can be liable for all lead paint remaining in homes today simply because they sold paint containing lead pigment decades ago. The passage of time, the development of knowledge about specific risks and any semblance of actual causation were jettisoned from the case. Incredibly, the lower courts are requiring the companies to remove lead paint from homes even if their paints were never in those homes.

Now, lawyers representing eight California communities are pushing a similar version of public nuisance theory against energy manufacturers. In lawsuits filed last year, they allege the companies are contributing to climate change and, therefore, should be liable for any potential impacts of the global phenomenon. Even though energy products are used by every American and around the world, the lawsuits want to hold a handful of companies responsible. It may be good for politicians seeking headlines or lawyers seeking financial gain, but it won’t solve the problem. It does, however, threaten the jobs of manufacturing workers. U.S. District Court Judge William Alsup agreed that the courts are not the proper venue to address this issue and recently dismissed the complaints brought by San Francisco and Oakland.

With these public nuisance lawsuits in their infancy, along with a similar one brought by New York City, the U.S. Supreme Court should hear the case against the paint manufacturers. The Supreme Court could go a long way in halting the onslaught of baseless lawsuits cropping up across the country.

If the Supreme Court grants review, the plaintiffs may have their work cut out for them. The Court shut down similar lawsuits in the past. In American Electric Power v. Connecticut, a state-led coalition sued six power companies claiming that their emissions were a federal public nuisance. In an 8-0 decision, the Court dismissed the suit, explaining that emissions are not to be regulated by the courts. Similarly, lead paint, once its harms were known, was subject to regulation by the legislative and executive branches— not the courts. If American Electric Power v. Connecticut is any indication, Supreme Court consideration of the lead paint case may help shut the door on these baseless lawsuits.

More than one million Californians work in manufacturing and more than twelve million men and women nationally. These types of lawsuits undermine the fairness of our nation’s legal system, our manufacturing base, and our economy.

Lindsey de la Torre is Executive Director of the National Association of Manufacturers’ Manufacturers Accountability Project.

Federal Bill To Curb Shakedown Ada Lawsuits Introduced

There has been a lot of focus on what will California do this year to stop the shakedown lawsuits associated with the Americans with Disability Act (ADA). Many bipartisan bills have been introduced at the state level (including AB 52, AB 54 and SB 67), but to solve the problem we also need the federal government to take steps to stop these shakedown artists.

Well, there’s good news on that front. Congressman Ken Calvert (CA-42) and Congressman Duncan Hunter (CA-50) have re-introduced the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act – . This legislation is designed to help small businesses comply with the ADA, and stop the abusive ADA lawsuits that have hurt so many businesses in California.

“The purpose of the ADA is not to give abusive trial lawyers access to the hard earned money earned by small businesses,” said Rep. Calvert when he reintroduced the bill. “The ACCESS Act will ensure that disabled individuals continue to have access throughout our communities while protecting small businesses from abusive lawsuits. The important thing is to find ways to improve access, not fleece small business owners and jeopardize jobs.”

The ACCESS Act requires someone who wants to file a lawsuit against a business for an ADA violation provide the business owner/operator a written notice of the violation. The owner/operator would have 60 days to provide the plaintiff a description outlining the improvements that would be made to address the barrier, and then have 120 days to address the violation. If the owner/operator fails to meet any of these conditions, the lawsuit could then move forward.

CALA applauds Representatives Calvert and Hunter for reintroducing this critical legislation. A whole host of additional elected officials have signed on to H.R. 241. I hope more will join them, and that it can be a truly bipartisan effort like the ADA bills here in California.

California has over 40% of the nation’s ADA lawsuits, while having only 12% of the country’s population.  But this isn’t just a California problem. Other states like Florida, Louisiana New York and Minnesota are beginning to see more of these lawsuits. That’s why the ACCESS Act deserves to become law.

Originally published by Fox and Hounds Daily

Tom Scott is executive director, California Citizens Against Lawsuit Abuse

Report: CA Remains “Judicial Hellhole”

California is home to innovation, from advances in the movie industry to the development of the iPad. But not all innovations here are beneficial, and some of the “innovations” of California’s lawyers are nothing but attempts to get large settlements or win large verdicts.

Those innovations are one reason why California was yet again named one of the worst “Judicial Hellholes” in the nation. We’ve all heard about the crazy lawsuits against food manufacturers that are filed here in California, such as lawsuits about a footlong Subway sandwich not measuring exactly one foot. But the Judicial Hellholes report also highlights an especially troubling trend: contingency-fee lawyers prospecting on the backs of taxpayers by using “public nuisance” lawsuits to sue entire industries looking of a big payday.

For years now, California Citizens Against Lawsuit Abuse has been watching the progress of a lawsuit against paint manufacturers who in the early 1900s manufactured paint with lead-based pigments, a product specified for use on government buildings and repeatedly endorsed by federal, state, and local governments until the mid-1970s. In this case, the plaintiffs’ attorneys – who are working on a contingency fee and have profit, not public health as a motive – have creatively alleged that paint manufacturers violated the state’s public nuisance laws, creating a much lower bar for liability and thus a much easier way to make money.

Unfortunately, the judge in this case bought this absurd argument hook, line and sinker, and awarded $1.15 billion to the plaintiffs – of which 17 percent will go to the contingency fee lawyers who took this case on – nearly $200 million. And while the lawyers are laughing all the way to the bank, California’s homeowners will suffer the consequences of this decision. That’s because the decision labels all homes built before 1981 with lead paint inside them in the ten plaintiff cities and counties as “public nuisances,” – a decision that could “precipitate the worst plunge in California home values since the housing crash of 2007,” according to Giuseppe Veneziano, president of the Los Angeles County Boards of Real Estate.

There may be even more far-reaching effects. The judge’s decision in this case requires inspectors to look for evidence of lead paint in pre-1981 homes, forcing occupants to vacate their homes and relocate until safety is restored to the satisfaction of authorities. This ruling will affect 2.6 million homes in Los Angeles County alone, and an estimated 5 million homes statewide.  How long will it take to inspect all those homes? What will the effect be on the value of those homes until inspection and abatement is complete? Will there be a lasting effect on home values even after abatement takes place? These questions remain unanswered but the results could be catastrophic for California homeowners, as well as the local governments that rely on property taxes to provide services.

But those are just minor details to lawyers looking for a payday. In fact the windfall victory has encouraged other lawyers to try to cash in, too. Contingency fee lawyers have convinced two counties in California (Orange and Santa Clara) and Cook County in Illinois to sue the pharmaceutical industry using the same “public nuisance” argument regarding the use of opioid-based drugs.

These lawsuits are textbook examples of one of the biggest problems facing our lawsuit system – it mainly serves the interests of lawyers rather than ordinary people. But it doesn’t have to be this way. It’s up to all of us to take a stand against this abuse of our courts. We need to challenge our elected leaders to take a stand against these brazen attempts to get wealthy through lawsuits. After all, our court should be used to make people whole – not rich.

Originally published on Fox and Hounds Daily

Tom Scott is Executive Director, California Citizens Against Lawsuit Abuse