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Berliner Cohen wins recent case, Austin v. City of Burbank

A recent case, Austin v. City of Burbank (2021) ___Cal.App.5th ___, highlights that serial litigants under California’s Public Records Act (PRA) who wish to challenge a trial court decision under the PRA must strictly follow the PRA’s procedural requirements.  If they do not, they may lose their right to review in the court of appeal.  Berliner Cohen filed an amicus curiae—or “friend of the court”—brief in the case on behalf of the League of California Cities (Cal Cities), an organization of some 477 California cities “dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and enhancing the quality of life for all Californians.”

The PRA gives the public the right to access governmental records on request, except for records that are exempt from disclosure by law, for example, for privacy reasons (personnel, medical, and similar records), or to preserve governmental functions (such as investigative records or records related to pending litigation).  If a governmental agency improperly withholds records, a member of the public may ask a court to enforce his or her right to the records and, if successful, obtain court costs and attorney’s fees.

An unsuccessful PRA litigant, whether one seeking public records or a governmental agency resisting disclosure, cannot appeal a trial court ruling to the court of appeal.  Under the PRA, the only way to obtain appellate review is by filing a petition for a writ of mandate in the court of appeal within 20 days of an unfavorable ruling.  The reason for this rule is to afford speedy review.  Unlike an appeal, which is begun by filing of a short notice of appeal, with arguments submitted later, a writ petition must be presented as a completed package of arguments and trial court pleadings.  But under limited, extraordinary circumstances, appellate courts may treat an appeal from a trial court’s ruling on a PRA request as if it were a petition for a writ of mandate, and thus reach the merits of a challenge to such an order.

In Austin, the court of appeal considered both whether (1) a PRA order could be challenged by an appeal, and (2) there were extraordinary circumstances that would justify treating the appeal as a writ petition.  The court answered “no” to both questions and dismissed the appeal.  In Austin, the City of Burbank had declined to provide certain information concerning a crime victim, claiming they were exempt from production, and Austin sued to compel their release.  The trial court denied Austin’s request.  Some 21 days after the trial court’s order, Austin filed a notice of appeal, but did not file a writ petition.  The City of Burbank moved to dismiss the appeal, arguing that the trial court’s order could be challenged only by a writ petition and that the notice of appeal was untimely.

In its amicus brief, Cal Cities argued that there were no “extraordinary circumstances” to justify the court of appeal treating the appeal as a writ petition.  In particular, the plaintiff and his lawyer were highly experienced litigants who had brought numerous court challenges to trial court PRA rulings under the PRA.  They brought more than 30 such actions in the Los Angeles County Superior Court alone.  Therefore, Cal Cities argued, the court of appeal should not relieve them of their mistaken challenge by appeal, rather than filing a writ petition, as the PRA required.

The court of appeal agreed with the City of Burbank and Cal Cities and dismissed the appeal.  The court reasoned that the challenged ruling was not appealable but rather reviewable only by a writ petition.  It also concluded that the plaintiff had not shown any extraordinary circumstances justifying the court treating the appeal as a writ and his multiple filings demonstrated familiarity with PRA litigation.  Finally, it noted that Austin filed the notice of appeal one day after the deadline to file a writ petition.

Austin stands for the proposition that a reviewing court may consider a litigant’s familiarity with litigation under the Act in deciding whether to treat an unauthorized appeal as a writ petition.  It is also an important reminder to litigants and counsel pursuing claims under the Act, of the need to seek review of trial court orders by proper means.   

For additional questions about this or other Appellate Law questions, contact Thomas Murphy, Esq. Certified Specialist in Appellate Law.