Electronically Filed by Superior Court of California, County of Orange, 03/15/2022 11:26:00 AM.

30-2020-01137146-CU-WM-CJC - ROA # 58 - DAVID H. YAMASAKI, Clerk of the Court By efilinguser, Deputy Clerk.

1 LAW OFFICE OF BRENT J. BORCHERT

BRENT J. BORCHERT – State Bar No. 223917
2 2355 Westwood Blvd # 658,
Los Angeles, CA 90064-2109
3
Telephone: (442) 243-8701
4 Facsimile: (310) 773-9230
Email: [email protected]
5
Attorney for Ronald Austin
6 Petitioner and Plaintiff
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF ORANGE
10
(Central Justice Center)
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RONALD AUSTIN, Case No. 30-2020-01137146-CU-WM-CJC
12 (Unlimited Civil Case)
Petitioner and Plaintiff,
13
vs. Assigned for all purposes to:
14 Honorable Martha K. Gooding
CITY OF GARDEN GROVE; and DOES 1 Department: C32
15 through 10, inclusive
RONALD AUSTIN’S OPPOSITION TO
16 Respondents and Defendants. CITY OF GARDEN GROVE’S MOTION
FOR ATTORNEY FEES; MEMORANDUM
17 OF POINTS AND AUTHORITIES;
DECLARATION OF RONALD AUSTIN
18
19 Hearing Date: March 28, 2022
Hearing Time: 1:30 p.m.
20 Hearing Location: Dept. C32
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ……………………………………...……………..………... 1
4 II. FACTUAL BACKGROUND …………………………………………………... 3

5 III. ARGUMENT ………………………………………...……………………..…... 4

6 A. Petitioner’s Petition for Writ of Mandate Was Meritorious
And Petitioner Would Have Prevailed in This Action ……………………… 4
7
8 B. The Purpose of AUSTIN’S Request for Information from
Garden Grove Is Not a Matter for This Court to Consider ……………….… 9
9
C. The Bar for An Attorney Fee Award to A Government Agency
10 Under Govt. Code § 6259(d) Is High ………………………………..…..…. 10
11 IV. CONCLUSION ……………………………………………………..……….…. 13
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 TABLE OF AUTHORITIES
1 Cases Page(s)
2
ACLU v. Deukmejian,
3 (1982) 32 Cal.3d 440 ……………..…………….................................................…. 9

4 ACLU of Northern California v. Superior Court

(2011) 202 Cal.App.4th 55……………………………………...………..………… 9
5
Belth v. Garamenti
6 (1991) 232 Cal. App. 3d 896………………...……………...…………...…...…….. 10
7
Braun v. City of Taft,
8 (1984) 154 Cal. App. 3d 332 ……………………………………...……..………… 10

9 Community Youth Athletic Center vs. City of National City

(2013) 220 Cal. App. 4th 1385 ……………..………………………………….…... 10
10
County of Santa Clara v. Superior Court,
11 (2009) 170 Cal.App.4th 1301 ………………...…………………………...……….. 7
12
Crews v. Willows Unified School District
13 (2013) 217 Cal. App. 4th 1368………………………...……………………..…...... 11, 12

14 Filarski v. Superior Court

(2002) 28 Cal. 4th 419……………………………………………………………... 9
15
In re Marriage of Flaherty
16 (1982) 31 Cal.3d 637 ………………………………………...….………………… 11, 12
17
Jones v. Jones
18 (1986) 179 Cal.App.3d 1011…………………………………………………..…..... 12

19 L.A. Times v. Alameda Corridor Transp. Auth.

(2001) 88 Cal.App.4th 1381 ………….……………………………………..…...…. 10
20
Lavine v. Hospital of the Good Samaritan
21 (1985) 169 Cal.App.3d 1019…………...…………………………………....…….... 12
22
People v. Sumner
23 (1968) 262 Cal.App.2d [409,]415………………..…………………………...…........ 11

24 State of California ex rel. Standard Elevator Co., Inc. v. West Bay Builders, Inc.
(2011) 197 Cal.App.4th 963…………………………………...………....………….. 12
25
Wescott v. County of Yuba
26 (1980) 104 Cal. App. 3d 103 …………………….………………………….....……. 6, 7
27
Woodland Hills Residents Assn., Inc. v. City Council
28 (1979) 23 Cal. 3d 917 ………….……………………………...………...…………… 10

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 TABLE OF AUTHORITIES (cont.)
2 Statutes Page(s)
3 Code Civ. Proc. § 128.5 …………………...………………………………..….…… 12
4 Govt. Code § 6254 ………………………………………….……………………….. 4, 5, 7, 8, 9

5 Penal Code § 841.5 ……………………..………………………………………......... 5, 8

6 Penal Code § 11167 ……………………..……………..…………………..…......... 8, 9
7 Welfare & Inst. Code § 827………………………………………………………….. 6, 7, 8
8 Welfare & Inst. Code § 827.9………….…………………………………………….. 8
9 Welfare & Inst. Code § 828…………………………………………………………... 8
10 Other Sources

11 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 989……………………………… 3

12 65 Cal. Op. Atty Gen. 503 (1982).) …………………………………………………… 8
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Respondent has itself brought a frivolous motion with an improper purpose. Legal
4 counsel for the City of Garden Grove (“GARDEN GROVE”) has belatedly filed its motion for
5 attorney fees against an indigent litigant operating on a fee waiver, clearly without any prospect
6 of recovery, in order to generate several thousand dollars in additional billable hours. Though
7 Respondent’s motion purports itself as a noble attempt to recover taxpayer dollars, Respondent’s
8 stated purpose is to sanction and thereby curtail Petitioner’s right to request public records from
9 the government pursuant to the California Public Records Act (“CPRA”) or at least have him
10 refrain from filing lawsuits when, as here, government fails to comply and raises no lawful
11 exemption that would permit non-disclosure. Indeed, Respondent says as much in the last line of
12 the introduction to its motion by declaring, “The time has come to put a stop to Austin’s misuse
13 of the process.” (City of Garden Grove’s Motion for Attorney Fees, Pg. 5, Ln. 19.)
14 The majority of Respondent’s 77-page filing is dedicated to directing this Court’s
15 attention to a collateral attack on other cases filed by Petitioner in other jurisdictions over a five-
16 year period, none of which have any real relevance to a motion for attorney fees in the case at
17 bar. Respondent engages in this side-show because it is aware that the Petitioner’s Writ of
18 Mandate filed in this case was not only meritorious but that Petitioner certainly would have been
19 the prevailing party.
20 Petitioner made a very simple and straightforward public records request of Garden
21 Grove Police Department for the name of a victim of a crime reported on the news. (Austin
22 Declaration, Exhibit 1.) Garden Grove Police Department refused to comply by stating a bogus

23 exemption from disclosure and one that is quite obviously entirely unsupported by statute and the

24 case law cited in its written refusal.

25 Once litigation commenced, rather than simply directing its client to provide the response

26 required by law as would have been appropriate, Respondent’s counsel engaged in delay tactics,

27 followed by propounding voluminous unnecessary and improper discovery demands that have no

28 legitimate purpose in a CPRA action to harass and annoy Petitioner. Respondent’s counsel

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 followed up these discovery demands with dubious motions to compel. All of the unnecessary
2 “work product” generated by Respondent’s counsel was created at the expense of City of Garden

3 Grove taxpayers. Petitioner ultimately dismissed his case over a year after filing because, among

4 other reasons, he did not wish to further engage in a war of attrition with an opposing counsel

5 seemingly given free rein to squander unlimited taxpayer dollars on this litigation. (Austin

6 Declaration, ¶5.)

7 Not yet satisfied with having received over twelve thousand dollars from this case,

8 Respondent’s counsel has now filed this lengthy and frivolous motion for attorney’s fees replete

9 with entirely baseless accusations throughout that Petitioner “seemingly makes his living” filing

10 CPRA requests. Yet there is no evidence introduced whatsoever that Petitioner has ever made a

11 dime off of making requests for public records. Because a CPRA requester is never required to

12 state a purpose for his interest in obtaining public records, Respondent’s counsel only speculates

13 as to Petitioner’s motivation. Respondent goes on to assert that Petitioner actually intends that

14 government agencies violate the CPRA so Petitioner can be awarded attorney fees, apparently

15 unaware that it is thereby conceding that an actual violation of the CPRA is strictly necessary

16 before any claim to attorney fees is plausible and Petitioner’s lawsuits therefore have merit.

17 Respondent’s counsel speculates on Petitioner’s motives because opposing counsel has

18 not, and apparently cannot, identify a single fraudulent statement, filing, or activity by Petitioner.

19 Rather, Respondent’s counsel diverts the Court’s attention to its attached selection of other

20 CPRA lawsuits brought by Petitioner. Yet in each of these other lawsuits where Respondent’s

21 counsel states it has represented parties alleged by Petitioner to be in violation of the CPRA,

22 Respondent’s counsel unwittingly demonstrates that each of these cases had merit because each

23 of its own clients subsequently agreed once a lawsuit was filed to comply with Petitioner’s

24 request for public records.1

25
26
27 1 It is also worth noting here that the very reasonable attorney fees
paid to Petitioner’s counsel in each of the two settlement agreements
28 attached to Respondent’s Motion are de minimis in comparison the
amount Respondents counsel have billed taxpayers in this case alone.
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 When stripped of all hyperbole and ad hominem attacks, Respondent’s sole argument is
2 that Petitioner has filed an average of twenty lawsuits a year over a five-year period in

3 connection with his requests for public records which Petitioner alleges were improperly denied

4 him. Respondent’s real issue with these lawsuits appears not to be that they lacked merit but that

5 they were successful. In this case as well, as set forth in detail below, Petitioner’s Writ of

6 Mandate was not only meritorious but Petitioner would have been the prevailing party had he

7 proceeded to litigate the matter to conclusion.

8 II. FACTUAL BACKGROUND

9 On January 3, 2020 ABC News reported that, according to Sgt. Mark Lord, a spokesman

10 for the Garden Grove Police Department, three boys and two men were arrested in the 13400

11 block of Euclid Street in the City of Garden Grove on January 2, 2020 on suspicion of attempting

12 to rob “a man and a boy” who were trying to buy a cellphone. (Austin Declaration, Exhibit 1.)

13 In March of 2020 Petitioner Ronald Austin (“AUSTIN”) requested the name of the adult

14 crime victim, “the man who was almost robbed,” from the Garden Grove Police Department.

15 This is very basic information that is specifically required to be disclosed under the California

16 Public Records Act. Garden Grove Police Department refused to provide the name of the crime

17 victim, claiming this information was exempt from disclosure.

18 In its written response Garden Grove Police Department cited an inapposite statute and

19 case law which holds that the names of juvenile perpetrators, but not the crime victims, must be

20 withheld from public disclosure. AUSTIN then followed up by requesting clarification of

21 whether it was the crime victim or the crime perpetrator that was a juvenile, since AUSTIN had

22 requested the name of the man who was the crime victim. In its reply, Garden Grove Police

23 Department held firm to its refusal to disclose the name of the crime victim by reiterating, “The

24 basis for the denial is due to the fact that the suspect(s) was a juvenile.” AUSTIN never

25 requested the name of any juveniles in this incident, whether perpetrators or victims. Moreover,

26 whether any victim was an adult or a juvenile would make no difference in any event as to the

27 mandatory disclosure since no statute or case law distinguishes between juvenile or adults as to

28 the requirement that the names of crime victims be disclosed upon a public request

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 Because GARDEN GROVE had failed in its duty to either disclose the requested
2 information or to demonstrate any lawful exemption to disclosure exists in refusing to provide

3 the information AUSTIN then filed a meritorious Petition for Writ of Mandate pursuant to the

4 CPRA

5 Six and a half months later legal counsel for GARDEN GROVE finally responded in an

6 e-mail to AUSTIN’S attorney, demanding dismissal and citing the same inapposite authority

7 stated in Garden Grove Police Department’s refusal. AUSTIN’S counsel replied by stating,

8 “The ‘court file’ protections to which you refer is for the accused criminal in a juvenile court

9 case. We are not seeking that name.” AUSTIN’S counsel went on to state that there is an

10 exemption for naming the victims of particular crimes specified in Govt. Code 6254(f) and that if

11 GARDEN GROVE was now asserting that the victim in this case was the victim of one of the

12 enumerated Penal Code violations, a request for non-disclosure would have to be made by the

13 victim or his representative (in this case the parent or guardian) in order to justify that

14 exemption. (Respondent’s Motion, Decl. of Jason M. McEwen, Exhibit B, Pg. 1).

15 GARDEN GROVE did nothing more to resolve this matter and so on April 26, 2021

16 Petitioner filed his Motion for Writ of Mandate to set trial in order obtain declaratory relief.

17 III. ARGUMENT

18 A. Petitioner’s Petition for Writ of Mandate Was Meritorious And

19 Petitioner Would Have Prevailed in This Action

20 An action in which a party would have prevailed, or even might conceivably have

21 prevailed under any possible legal theory, can never be deemed a frivolous action. Petitioner’s

22 action was brought on a sound legal basis as follows. Petitioner requested from Respondent the

23 name of a crime victim, to which he was and still is entitled under Government Code § 6254(f)

24 which states in pertinent part:

25 “Notwithstanding any other provision of this subdivision, state and

local law enforcement agencies shall make public the following information,
26 except to the extent that disclosure of a particular item of information would
endanger the safety of a person involved in an investigation or would endanger
27 the successful completion of the investigation or a related investigation:
(1) The full name and occupation of every individual arrested by the
28 agency, the individual’s physical description including date of birth, color of

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 eyes and hair, sex, height and weight, the time and date of arrest, the time and
date of booking, the location of the arrest, the factual circumstances surrounding
2 the arrest, the amount of bail set, the time and manner of release or the location
where the individual is currently being held, and all charges the individual is
3 being held upon, including any outstanding warrants from other jurisdictions and
parole or probation holds.
4 (2) (A) Subject to the restrictions imposed by Section 841.5 of the Penal
Code, the time, substance, and location of all complaints or requests for
5 assistance received by the agency and the time and nature of the response
thereto, including, to the extent the information regarding crimes alleged or
6 committed or any other incident investigated is recorded, the time, date, and
location of occurrence, the time and date of the report, the name and age of the
7 victim, the factual circumstances surrounding the crime or incident, and a
general description of any injuries, property, or weapons involved. The name of
8 a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265,
266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286,
9 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9,
or 647.6 of the Penal Code may be withheld at the victim’s request, or at the
10 request of the victim’s parent or guardian if the victim is a minor. When a
person is the victim of more than one crime, information disclosing that the
11 person is a victim of a crime defined in any of the sections of the Penal Code set
forth in this subdivision may be deleted at the request of the victim, or the
12 victim’s parent or guardian if the victim is a minor, in making the report of the
crime, or of any crime or incident accompanying the crime, available to the
13 public in compliance with the requirements of this paragraph.”
[Emphasis added.] Govt. Code § 6254(f)
14
15 Notwithstanding that Petitioner requested the name of the adult crime victim, the text of
16 Government Code § 6254(f) plainly states that the name of a victim of a crime who is a minor
17 shall be made public except as to those specific Penal Code sections enumerated (none of which
18 apply here) and, even then, only at the request of the minor victim’s parent or guardian.
19 On March 2, 2020 AUSTIN requested of the Garden Grove Police Department as
20 follows:
“Garden Grove police responded to an attempted cell
21 phone theft in the 13400 block of Euclid Street on
22 January 2, 2020. Apparently, a man and a boy tried
to buy the phone using the "LetGo" app. Please email
23 me the name of the man who was almost robbed.”
(Respondent’s Exhibit A, Page 1)
24
25 On March 4. 2020 Garden Grove Police Department Records Shift Supervisor Maria
26 McFarland responded to AUSTIN via e-mail stating:
27 “Your request (the "Request") seeks the name of a
28 victim involved in an attempted robbery on January 2,
2020 in the 13400 block of Euclid street. The
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 Department has identified records which are
potentially responsive to this Request.
2 However, those records pertain to an incident which
constitute a juvenile record which may not be
3
disclosed except pursuant to an order of the juvenile
4 court. (Cal. Welfare & Inst. Code §827; Wescott v.
County of Yuba (1980) 104 Cal. App. 3d 103, 105-106
5 [holding that when minors are subjects of a police
investigation the records of the investigation are
6 juvenile records which cannot be released without
court order, notwithstanding provisions of the Public
7
Records Act that permit disclosure of certain,
8 otherwise exempted, information to victims of
criminal activity])””
9 (Respondent’s Exhibit A, Page 1)

10 On March 4. 2020 AUSTIN replied:

11 “To clarify, is the juvenile the victim or the
perpetrator?”
12 (Respondent’s Exhibit A, Page 1)
13 On March 4. 2020 Garden Grove Police Department Records Shift Supervisor Maria
14 McFarland responded to AUSTIN via e-mail stating:
15
“The basis for the denial is due to the fact that
16 the suspect(s) was a juvenile.”
(Respondent’s Exhibit A, Page 1)
17
18 GARDEN GROVE’S assertion that AUSTIN filed a frivolous action is predicated upon
19 Respondent’s intentionally deceptive statement in its instant fee motion that “On March 4, 2020,
20 the City provided a written response to Austin’s request indicating that the requested information
21 was being withheld as exempt from disclosure under the CPRA due to the fact that the incident
22 involved a juvenile victim and multiple juvenile suspects.” [Emphasis added.] (Respondent’s
23 Motion, Pg. 3, Lns. 25-28.) As is evident from the e-mail’s reprinted above, the Garden Grove
24 Police Department never took the position from the outset, or at any subsequent time in this
25 / / /
26 / / /
27 / / /
28 / / /

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 litigation, that its refusal was based upon an assertion that the victim was a juvenile but instead
2 based its refusal on the contention that the perpetrators were juveniles. 2
3 Moreover, the fact that Respondent now alleges that one or more of the suspects in this
4 case was a juvenile is unavailing for two reasons.

5 First, Petitioner requested the name of, “the man who was almost robbed,” but not the
6 boy, who was referred to as such as being a crime victim by Sgt. Mark Lord, of the Garden
7 Grove Police Department. Second, even if Petitioner had requested the name of a juvenile
8 victim, the boy in this case, the plain language of Government Code 6254(f) demonstrates that
9 the legislature intended for the names of juvenile victims to be disclosed unless one of the cited
10 Penal Code sections is involved and the parent or guardian of the juvenile specifically requests

11 non-disclosure. Respondent failed to even assert that either condition was met, though
12 Respondent’s counsel was invited to do so by Petitioner’s counsel in e-mail. (Respondent’s
13 Exhibit B, Pg. 1, ¶4.)
14 Had this case proceeded to trial Respondent would have borne the impossible burden of
15 proving the application of the specious exemption it continues to assert. “Since disclosure is
16 favored, all exemptions are narrowly construed. [Citation.] The agency opposing disclosure bears

17 the burden of proving that an exemption applies. [Citation.]” (County of Santa Clara v. Superior
18 Court, (2009) 170 Cal.App.4th 1301, 1321.)
19 Neither the code section nor case law cited in Garden Grove Police Department Records
20 Shift Supervisor Maria McFarland response, i.e. Cal. Welfare & Inst. Code § 827 and Wescott v.
21 County of Yuba (1980) 104 Cal. App. 3d 103 (“Wescott”), permit the withholding of the name of
22 a crime victim simply because the perpetrator of the crime is a juvenile. Wescott presented a

23 wholly inapposite scenario where the mother of a minor who was injured in a shooting incident
24 involving several juveniles was otherwise clearly entitled as the victim’s representative by Govt.
25 Code § 6254(f) to a copy of a police report itself which would have revealed the names of the
26
2 The Court should conduct an in camera review of the material issue of
27 whether, contrary to GARDEN GROVE’S assertion here, the withheld
information in this case includes the names of adult victim(s), which
28 would comport with the facts as stated to ABC News on January 3, 2020
by Garden Grove PD Sgt. Mark Lord.
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 juvenile perpetrators which were otherwise confidential under Cal. Welfare & Inst. Code § 827.
2 The court therein balanced these competing interests by holding, that while the mother’s access
3 to the police report itself may be somewhat impaired by the requirement that a court order first
4 be obtained, this requirement did not place a substantial or onerous burden on her.

5 In an attempt to confuse the Court, Respondent continues conflate the police report
6 sought in Westcott, which is an investigative file to which the victim’s mother Ms. Wescott,
7 would otherwise be entitled (but for the inclusion of identities of juvenile perpetrators to which
8 she was not entitled), with the victim name sought by AUSTIN which is required by the CPRA to
9 be made public even though the public is generally not entitled to police reports. Respondent
10 either fails or refuses to recognize that court “case files” protected under Cal. Welfare & Inst.

11 Code § 827 and/or “police reports” protected by Westcott are not the same thing as “the name of
12 a victim” which is plainly required to be disclosed under Govt. Code 6254(f), whether or not the
13 victim is a juvenile.
14 Respondent’s reliance upon Welfare & Institutions Code § 827 is likewise misplaced.
15 § 827 applies only to juvenile court records. Section 827 addresses and restricts inspection of a
16 juvenile court case file. Petitioner’s counsel stated to Respondent’s counsel in e-mail on

17 September 23, 2020 that “The "court file" protections to which you refer is for the accused
18 criminal in a juvenile court case. We are not seeking that name.” (Respondent’s Exhibit B, Pg.
19 1, ¶1.) And even assuming arguendo that Petitioner had requested the name of a juvenile
20 perpetrator in this particular case, proceedings are open when the juvenile is charged with any of
21 the serious offenses listed in Welfare & Institutions Code § 676 which includes robbery such as
22 was reported to have been committed here. In those cases, the California Attorney General has

23 issued an opinion that law enforcement may release the name of the juvenile defendant (See, 65
24 Cal. Op. Atty Gen. 503 (1982).)
25 Respondent was possibly instead referring to Welfare & Institutions Code § 828, a code
26 section regarding law enforcement records concerning juveniles. § 828 does not address the
27 names of minor victims. It only restricts the release of info about “taking of a minor into
28 custody” or a minor’s escape from detention.

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 Welfare & Institutions Code § 827.9 is another section concerning disclosure of juvenile
2 police records. Under § 827.9 police departments cannot refuse to release the names of minors
3 who are victims and witnesses of crimes unless specific restrictions apply. § 827.9 specifically
4 says that “[t]his section does not govern release of police records involving a minor who is a

5 witness or victim of a crime who is protected by other laws including, but not limited to, Section
6 841.5 of the Penal Code, Section 11167 et seq. of the Penal Code, and Section 6254 of the
7 Government Code.” None of these restrict release of the name of a minor victim — 841.5
8 prohibits release of a victim’s or witnesses’ address to a defendant, 11167 deals with the victims
9 of suspected child abuse, and, as noted, 6254 by its plain language actually requires disclosure of
10 the names of minor victims except at the request of a parent or guarding and only with regard to

11 specific crimes There is no conceivable argument as to why our Legislature would carve out
12 exemptions to the mandatory release of the names of minor victims in cases of child abuse or the
13 Penal Code sections enumerated in Govt. Code Section 6254 if the particular sections of the
14 Welfare & Institutions Code dealing with minors mandate the withholding of names of all minor
15 victims of crime.
16 Regardless of these requirements and restrictions for the release of the names of both

17 minor perpetrators and minor victims, it bears repeating that Garden Grove Police Department’s
18 statements to On January 3, 2020 ABC News were that in addition to any juveniles involved, two
19 adult men were arrested, one adult man was a victim. AUSTIN requested only “the name of the
20 man who was almost robbed.”
21 B. The Purpose of AUSTIN’S Request for Information from
22 Garden Grove Is Not a Matter for This Court to Consider

23 The CPRA removes any focus on the requestor from consideration. (ACLU v.
24 Deukmejian (1982) 32 Cal.3d. 440,451) [CPRA “imposes no limits upon who may seek
25 information or what he may do with it.”] “Unless exempted, all public records may be examined
26 by any member of the public, often the press, but conceivably any person with no greater
27 interest than idle curiosity [emphasis added].” ACLU of Northern California v. Superior Court
28 (2011) 202 Cal.App.4th 55, 67. The CPRA includes protections and incentives for members of

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 the public to seek judicial enforcement of their right to inspect public records subject to
2 disclosure, one of which is the provision that the court shall award court costs and reasonable
3 attorney fees to the prevailing plaintiff. (Filarski v. Superior Court (2002) 28 Cal. 4th 419,427.)
4 Respondent points to the number of CPRA cases filed over a five-year period by

5 AUSTIN as its only evidence that Petitioner is abusing the intended legislative purpose with an
6 improper motive by his filing of numerous cases.” To the contrary, as AUSTIN himself
7 addresses the public purpose served in his attached Declaration, “This motive is not an ‘improper
8 purpose’ as enforcement of the California Public Records Act which benefits the public can only
9 be achieved by a private party like myself, in a private action, and it is only the prospect of
10 having to pay attorney fees for willful non-compliance that ultimately forces compliance.” The

11 Courts have echoed this sentiment emphasizing that “the very purpose of the attorney fees
12 provision is to provide protections and incentives for members of the public to seek judicial
13 enforcement of their right to inspect public records subject to disclosure.” (Emphasis added)
14 Community Youth Athletic Center vs. City of National City (2013) 220 Cal. App. 4th 1385, 1447.
15 An example of the built-in fee imposition incentive factor for government agencies under
16 § 6259(d), is found in Belth v. Garamenti (1991) 232 Cal. App. 3d 896. In Belth the court

17 pointed out that the recognition of the prospect of imposition of attorney fees, when an agency

18 improperly withholds public records, amounts to a consequence that would likely make them

19 think twice about doing so. Belth, supra. at 902. That position upholds the CPRA’s objective of

20 increasing freedom of information. Ibid.

21 “[A] court may award attorney fees to a successful

party in an action resulting in the enforcement of an
22 important right affecting the public interest. It is a
codification of the common law private attorney general
23
doctrine which “rests upon the recognition that privately
24 initiated lawsuits are often essential to the
effectuation of the fundamental public policies embodied
25 in constitutional or statutory provisions, and that,
without some mechanism authorizing the award of attorney
26 fees, private actions to enforce such important public
policies will as a practical matter frequently be
27
infeasible." (Woodland Hills Residents Assn., Inc. v.
28 City Council (1979) 23 Cal. 3d 917, 933.) Similarly,

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 "Section 6259 was enacted to carry out the purposes of
the California Public Records Act. Through the device of
2 awarding attorney fees, citizens can enforce its salutary
objectives." (Braun v. City of Taft, (1984) 154 Cal. App.
3
3d 332, 349.)” [Emphasis added.] (Belth, supra. at 902, Fn. 2.)
4

5 C. The Bar for An Attorney Fee Award to A Government

6 Agency Under Govt. Code § 6259(d) Is High

7 The CPRA mandates a fee award to a plaintiff if it prevails, and to a defendant only if the

8 plaintiff’s case is clearly frivolous. (L.A. Times v. Alameda Corridor Transp. Auth. (2001) 88

9 Cal.App.4th 1381, 1391.) A legal claim is frivolous only if no reasonably competent attorney

10 could conclude that it has any 'reasonable chance of success' or is a reasonable argument to

11 change existing law. Respondent’s sole case cited in support of an award of attorney fees under

12 Govt. Code Govt. Code § 6259(d) is one involving an attorney fee award to a defendant in a

13 CPRA in which the Court of Appeal found plaintiff’s case lacked merit, but nevertheless

14 reversed the lower court award holding, “We conclude the PRA petition lacked merit but was not

15 frivolous.” Crews v. Willows Unified School District (2013) 217 Cal. App. 4th 1368:

16 “To support the policy of disclosure, section 6259,

subdivision (d), provides the trial court “shall award
17 court costs and reasonable attorney fees to the plaintiff
should the plaintiff prevail in litigation filed pursuant
18 to this section.” However, public agencies are
ordinarily not entitled to attorney fees and costs from a
19 requester who has failed to secure documents under the
PRA. Public agencies may recover attorney fees and costs
20 only “[i]f the court finds that the plaintiff’s case is
clearly frivolous.” (§6259, subd. (d).)
21
Section 6259 does not define the term “clearly
22 frivolous.” Thus, we turn to the guidance of the
California Supreme Court in In re Marriage of Flaherty
23 (1982) 31 Cal.3d 637 (Flaherty). In Flaherty, the court
articulated the test for determining whether an appeal is
24 frivolous. In formulating the test, the Flaherty court
explained that “[a]n appeal that is simply without merit
25 is not by definition frivolous and should not incur
sanctions. Counsel should not be deterred from filing
26 such appeals out of a fear of reprisals. Justice Kaus
stated it well. In reviewing the dangers inherent in
27 any attempt to define frivolous appeals, he said the
courts cannot be ‘blind to the obvious:  the borderline
28 between a frivolous appeal and one which simply has no
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 merit is vague indeed․ The difficulty of drawing the line
simply points up an essential corollary to the power to
2 dismiss frivolous appeals:  that in all but the clearest
cases it should not be used.’ (People v. Sumner [ (1968) ]
3 262 Cal.App.2d [409,] 415.) The same may be said about
the power to punish attorneys for prosecuting frivolous
4 appeals:  the punishment should be used most sparingly to
deter only the most egregious conduct.” (Flaherty,
5 supra, at pp. 650–651.) Thus, the Supreme Court held
that an appeal may be deemed frivolous only when
6 prosecuted for an improper motive—e.g., to harass the
respondent or for purposes of delay—or when lacking any
7 merit—i.e., when any reasonable attorney would agree the
appeal is totally without merit. (Ibid.; 9 Watkin, Cal.
8 Procedure (5th ed. 2008) Appeal, § 989, p. 1039.)
9 The same test—with its objective and subjective
prongs—has been applied in determining whether an action
10 is frivolous from the start. (E.g., Jones v. Jones
(1986) 179 Cal.App.3d 1011, 1018 [citing Flaherty]; Lavine
11 v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d
1019, 1029; see also Code Civ. Proc. § 128.5, subd. (b)(2)
12 [defining a frivolous action to be one that is “(A)
totally and completely without merit or (B) for the sole
13 purpose of harassing an opposing party”].) The addition
of the adverb “clearly” to frivolous does not change the
14 test for purposes of section 6259, subdivision (d).
Since a frivolous action is one entirely lacking in
15 merit, there can be no lower standard for a “clearly
frivolous” action. (See Flaherty, supra, 31 Cal.3d at
16 pp. 650–651; State of California ex rel. Standard Elevator
Co., Inc. v. West Bay Builders, Inc. (2011) 197
17 Cal.App.4th 963, 982 [“clearly frivolous” action under
the False Claims Act is one devoid of merit].)” Crews v.
18 Willows Unified School District (2013) 217 Cal. App. 4th 1368, 1381.
19 A legal claim is deemed frivolous only if no reasonably competent attorney could
20 conclude that it has any 'reasonable chance of success' or is a reasonable argument to change
21 existing law. Here, as demonstrated, Petitioner not only had a reasonable legal argument and a
22 reasonable chance of success, he would have actually prevailed had he chosen to continue to
23 subject himself to Respondent’s abuse of process to the point of trial. (Austin Declaration, ¶5.)
24 Because of the high bar for an attorney fee award to a government agency under Govt. Code
25 § 6259(d) any reasonable attorney would conclude that at the time of filing Respondent’s
26 attorney fee motion GARDEN GROVE had no chance of success, that Respondent’s own instant
27 fee motion is frivolous, and that is brought solely to generate revenue from its own governmental
28 client.

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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES
 1 IV. CONCLUSION
2 For all of the foregoing reasons this Court must deny the City of Garden Grove’s Motion
3 for Attorney Fees and consider whether further proceedings are appropriate to impose sanctions
4 on Respondent’s counsel pursuant to Code of Civil Procedure section 128.5.

5 Dated: March 15, 2022 Respectfully submitted,

6
7 / s/
______________________________
BRENT J. BORCHERT
8 Attorney for Ronald Austin
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RONALD AUSTIN’S OPPOSITION TO CITY OF GARDEN GROVE’S MOTION FOR ATTORNEY FEES