RENNER, J. —
In September 2012, appellant California Public Records Research, Inc. (CPRR), filed a petition for writ of mandate and complaint
The County moved for summary judgment on the grounds that section 27366 authorizes the board of supervisors (Board) to exercise discretion in setting fees, there was no genuine issue of material fact as to whether the Board abused its discretion, and fees were reasonably related to the cost of producing copies. The County also argued that CPRR's causes of action for negligence and money had and received were barred by the Government Claims Act, section 810 et seq. (the Act), and the petition for writ of mandate was moot, as the County had voluntarily reduced copy fees from $10.00 for the first page and $2.00 for each subsequent page ($10.00/$2.00) to $7.35 for the first page and $2.00 for each subsequent page ($7.35/$2.00). The trial court granted the motion and entered judgment in the County's favor.
CPRR appeals, challenging the trial court's interpretation of section 27366 and insisting the County abused its discretion in setting copy fees. CPRR also contends the trial court improperly reconsidered and reversed an earlier order overruling the County's demurrer to CPRR's causes of action for negligence and money had and received, thereby exceeding its jurisdiction. We have reviewed the record and conclude that summary judgment was properly granted. Accordingly, we shall affirm the judgment.
Following summary judgment in the County's favor, CPRR moved for an award of attorneys' fees under Code of Civil Procedure section 1021.5, claiming the litigation served as a "catalyst" for the County's decision to reduce copy fees. The trial court denied the motion. Finding no error, we shall also affirm the order denying the motion for attorneys' fees.
CPRR is a California corporation "engaged in the business, inter alia, of locating and retrieving public records and has, in the course of its business,
The Recorder's Office processes and maintains the County's public records, including real property records (e.g., deeds, deeds of trust, liens, and maps), vital records (e.g., marriage, birth, and death certificates), and other official records (e.g., professional registrations). The Recorder's Office strives "to preserve and provide for the public a true and reliable, readily accessible permanent account of real property and other official records and vital human events, both historic and current."
The Recorder's Office maintains more than 200 different kinds of public records. Members of the public may obtain copies of these records for a fee. From 1951 through 1992, former section 27366 established a statutory copy fee of $1.00 for the first page and $0.50 for each subsequent page. (Former § 27366.)
In 2007, the County retained independent consultants Government Finance Research (GFR) and Peter Lauwerys to conduct a fee study. GFR and Lauwerys had previously completed similar studies for 31 other counties throughout California. The GFR study suggests a methodology for calculating fees for services offered by the Recorder's Office, which we shall describe momentarily. The GFR study served as the basis for a subsequent study, referred to by the parties as the "in-house fee study." The in-house fee study was prepared by the Recorder's Office in May 2009 using the methodology set forth in the GFR study.
The in-house fee study proposes a fee schedule for services offered by the Recorder's Office, including copy services, using a staff billing rate of
The staff billing rate was calculated by aggregating costs associated with offering services to the public. These costs fall into seven broad categories: (1) individual staff salaries, (2) office overhead, (3) services and supplies, (4) management and supervision, (5) information technology support, (6) cost studies, and (7) computer equipment. For each of the foregoing categories, an hourly rate was calculated using a concept known as the "productive hour."
According to the GFR study, "`Productive Hours' are those hours that a worker can be considered to be `on the job' in the work place." Thus, an employee's productive hours equal the sum of their annual hours (i.e., 40 hours per week times 52 weeks per year), less vacation, sick leave, holidays, and breaks. The GFR study opines that an average employee at the Recorder's Office logs 1,640 productive hours a year. Assuming an average salary of $71,908.67 per year, the cost of individual staff salaries amounts to $43.85 per productive hour ($71,908.67, divided by 1,640, equals $43.85). The in-house fee study uses a similar methodology to calculate a cost per productive hour for each of the other categories of costs incurred by the Recorder's Office (e.g., office overhead, service and supplies), which are then aggregated to arrive at the staff billing rate. These calculations are summarized below:
COST PER HOUR 1. Individual staff salaries, including $43.85 benefits 2. Office overhead $14.17 3. Services and supplies $30.30 4. Management and supervision $22.61 5. Information technology support $4.76 6. Cost studies $3.02 7. Computer equipment $11.18 Total $129.88
As the table illustrates, the staff billing rate captures all of the costs involved in providing services to the public, both direct and indirect.
The fee studies were reviewed and approved by Douglas K. Olander, a certified public accountant with almost 36 years of experience, including 12 years as the manager for cost accounting and budget for the auditor-controller's office. The proposed copy fees were then incorporated into an eight-page chart entitled "Proposed Changes to the Master Fee Schedule." The chart sets forth approximately 200 proposed fees for various services offered by nine different county departments, including the proposed copy fees for the Recorder's Office ($10.00/$2.00). The chart is attached as an exhibit to the agenda for the May 19, 2009, meeting of the Board. Neither the GFR study nor the in-house fee study is attached as an exhibit to the agenda.
The agenda explains that the Board sets fees by means of a "master fee resolution," a single resolution and integrated fee schedule which allows the Board to systematically review and establish fees for all departments. The Board adopted master fee Resolution No. 09-71 on May 19, 2009 (MFR), thereby setting the copy fees charged by the Recorder's Office at the challenged rate of $10.00/$2.00.
CPRR purchased copies of two recorded documents from the Recorder's Office on July 8, 2011. One of the documents was two pages long and one was 21 pages. The Recorder's Office charged CPRR $62.00, consistent with the $10.00/$2.00 rate.
CPRR commenced the instant action on November 21, 2011. CPRR's verified second amended petition for writ of mandate and declaratory relief and complaint for damages, which is the operative pleading, alleges six causes of action. First, CPRR seeks a writ of mandate on the ground that the County violated a mandatory duty to limit copy fees. Specifically, CPRR alleges the County violated a duty "to limit the amount of fees charged for copies of recorded documents to recoupment of direct and indirect costs actually incurred in producing copies." Second, CPRR seeks a writ of mandate on the ground that the Board abused its discretion in setting copy fees. Specifically, CPRR alleges the Board lacked a reasonable basis for setting copy fees, and abused its discretion by setting fees which seek to recover indirect costs that cannot be specifically associated with the production of copies. Third, CPRR seeks a writ of mandate on the ground that the County violated "a mandatory duty to enact special taxes only by vote of the electorate" under Proposition 26 when the Board adopted the MFR. Fourth, CPRR seeks a declaration of the parties' rights under section 27366, and a further declaration that the recorder's direct and indirect costs to produce copies do not exceed $0.10 per page. Fifth, CPRR alleges that the County was negligent in setting copy fees, and seeks damages on behalf of a putative class of persons who purchased copies at the challenged rate after March 23, 2011. Finally, CPRR alleges a cause of action for money had and received on behalf of the same putative class.
The County demurred to the petition and complaint on various grounds. Among other things, the County argued that CPRR's negligence cause of action is barred by section 815, subdivision (a). The trial court (Maguire, J.) overruled the demurrer in its entirety. With respect to the negligence cause of action, the trial court concluded, "[the County] does not demonstrate that [section 27366] may not properly provide a basis for liability under [section 815.6]." The County answered the petition and complaint and the parties proceeded with discovery.
On April 25, 2014, CPRR's counsel, Donald W. Ricketts, sent the County's counsel, Eric May, a written settlement offer. On April 30, 2014, May e-mailed Ricketts, acknowledging the offer and requesting a two-month
On July 10, 2014, the County, through outside counsel, sent CPRR's counsel, Donald W. Ricketts, a letter stating: "This letter serves as a courtesy notice to let you know that due to the recent retirement of some of the senior staff members at the [Recorder's Office], an overall decrease in the total salary cost of the office has resulted. Therefore, the first page copy fee for recorded documents has been reduced from $10.00 to $7.35. The copy fee for each subsequent page remains unchanged at $2.00 per page." The letter indicates that the fee reduction was effectuated by means of "Resolution No. 14-41," which was apparently presented to the Board and adopted on April 29, 2014, the day before May's e-mail requesting an extension of time. Ricketts did not know that the Board had approved the new copy fees prior to receiving the letter.
On July 30, 2014, the County moved for summary judgment on the grounds, inter alia, that section 27366 authorizes the Board to exercise discretion in setting fees, the Board properly exercised its discretion, and fees were reasonably related to the cost of producing copies. The County also argued that CPRR's causes of action for negligence and money had and received were barred by the Act, and the petition was moot in view of the recent decision to reduce copy fees to $7.35/$2.00.
The County's motion was supported by a declaration from Chief Deputy Clerk-Recorder Jeffrey M. Barry. Barry's declaration describes the fee studies, and offers additional information regarding the costs involved in the day-to-day operation of the Recorder's Office. For example, Barry explains that the Recorder's Office incurs numerous costs associated with the digitalization of the official record, which is maintained on microfilm.
According to Barry, the Recorder's Office spends approximately $52,250 per year to license software to digitalize recorded documents. The Recorder's Office also spends money to maintain its computer servers, store and maintain digital images of official records dating back to 1970, maintain an electronic copy of the general index on the recorder's website, and purchase and maintain scanners, computers, and printers.
The County's motion was also supported by a declaration from Olander. As noted, Olander reviewed and approved the fee studies. Olander offers excerpts from federal and state accounting guidelines (which we shall discuss
CPRR opposed the motion, arguing that section 27366 imposes "mandatory limits" on copy fees, which the County violated by setting fees in amounts designed to recover "costs for recording documents and for `maintenance of the entire real estate recording system.'" Relying solely on the allegations in the petition and complaint, CPRR argued that the recorder's copy fees improperly seek to recover costs for time that was not actually spent making copies. CPRR also argued that the recorder's copy fees were "per se unreasonable and a special tax within the meaning of [article XIII C of the California Constitution]" because they allegedly violated sections 27360 and 27366. (Italics omitted.)
CPRR also argued that the Board lacked a reasonable basis for setting copy fees because (1) the Yolo County administrator (County Administrator) incorrectly advised the Board that "proposed increased fees for copies of recorded documents recouped `the actual costs of providing' copies," and (2) the County Administrator failed to provide the Board with copies of the fee studies. Again, CPRR relied solely on the allegations in the petition and complaint.
CPRR also argued the Board abused its discretion in setting copy fees because (1) the GFR study erroneously relies on section 54985 and Office of Management and Budget Circular A-87 (OMB A-87) in setting copy fees (Off. of Management and Budget, Circular A-87, 46 Fed.Reg. 9548 (Jan. 28, 1981)), (2) the methodology used in the GFR study was flawed, and (3) Lauwerys was not qualified to conduct the GFR study. CPRR also argued that Olander failed to comprehensively review the fee studies. CPRR did not offer any expert evidence to refute the fee studies.
CPRR also denied the County was immune from liability under the Act, noting that Judge Maguire had previously overruled the County's demurrer on immunity grounds. Finally, CPRR denied the petition was moot, noting the County's fee reduction did not reach the second page fee, and "that fee, which boosts the cost of multiple-page documents to astronomical heights, is still clearly at issue."
The trial court (White, J.) published a tentative ruling granting the County's motion. CPRR did not contest the tentative ruling, which became the order of
Following summary judgment in the County's favor, CPRR filed a motion seeking more than $450,000 in attorneys' fees pursuant to Code of Civil Procedure section 1021.5. The motion argued that CPRR's lawsuit was the catalyst for the County's fee reduction, which conferred a significant benefit on members of the public seeking copies of official records. The motion also argued that the County's request to continue the trial date was part of a "ploy" designed to moot CPRR's case. The motion was supported by a declaration from Ricketts. In the declaration, Ricketts claimed he spent 461.7 hours on the litigation and opined that the market rate for an attorney of comparable skill and experience was $650 an hour. Ricketts also suggested that a 1.5 multiplier of the lodestar amount was appropriate in view of the complexity of the case. Ricketts attached copies of "contemporaneously made notations of time expended on this matter," consisting of terse, and extensively abbreviated entries (e.g., "TC Client").
The County opposed the motion, arguing that CPRR failed to obtain the primary relief sought in the case. The County observed that CPRR originally sought a writ of mandate requiring the County to reduce copy fees to 10 cents a page, an objective CPRR did not come close to meeting. Relying on another declaration by Chief Deputy Clerk-Recorder Barry, the County noted that the new copy fees were calculated using the same methodology as the old fees. According to Barry, "The County used the same formulas as in 2009; it included the same direct and indirect costs as in 2009; and based its calculations on the work of the same consultant as in 2009. The difference was largely the result of changed labor costs, after senior staff members retired and [were] replaced by more junior members who had lower salary costs."
The County denied having reduced copy fees in response to CPRR's lawsuit, denied that CPRR's causes of action were meritorious, and denied that CPRR made a reasonable attempt to settle the case without litigation.
The trial court published a tentative ruling denying the motion for attorneys' fees, which was uncontested, and became the order of the court. In the order, the trial court sustained the County's objections to Rickett's declaration and denied the motion, stating: "[CPRR] does not establish that it is entitled to recover its attorneys' fees under the catalyst theory of [Code of Civil Procedure] section 1021.5. Even if [CPRR] were entitled to recover attorneys' fees under [Code of Civil Procedure] section 1021.5, it has offered no admissible evidence to support the fee request."
CPRR filed a timely notice of appeal.
We first address the County's motion for summary judgment, and then consider CPRR's motion for attorneys' fees.
Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets "his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action." (Id., subd. (p)(2).) Once the moving party has met its initial burden, "the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Ibid.)
We review the trial court's grant of summary judgment de novo, independently evaluating the correctness of the trial court's ruling and applying the same legal standards as the trial court. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 [12 Cal.Rptr.3d 615, 88 P.3d 517]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [107 Cal.Rptr.2d 841, 24 P.3d 493].) In so doing, we consider all of the evidence offered by the
We begin with an analysis of section 27366, a statute that, until recently, had not been addressed in any previous published appellate court decision.
CPRR challenges the County's right to recover overhead and other operating costs under section 27366, claiming the County can only recover indirect costs reasonably related to the actual production of copies. CPRR contends the County impermissibly seeks to recover overhead and other operating costs that would be incurred whether or not the Recorder's Office produces copies, in violation of "mandatory limits" established by section 27366 and California common law. According to CPRR, such costs are not recoverable because they are not related to the actual production of copies.
The County responds that section 27366 authorizes the County to recover a wide range of direct and indirect costs, including overhead and operating
As noted, the current version of section 27366 was adopted in 1993. (Stats. 1993, ch. 710, § 3, p. 4039.) At the time, Black's Law Dictionary defined the term "[d]irect costs" as "Costs of direct material and labor, and variable overhead incurred in producing a product." (Black's Law Dict. (6th ed. 1990) p. 459, col. 2.) Black's Law Dictionary defined the term "[i]ndirect costs" (italics omitted) as "Costs not readily identifiable with production of specific goods or services, but rather applicable to production activity in general; e.g., overhead allocations for general and administrative activities." (Id. at p. 346, col. 2.)
Similarly, Webster's Third New International Dictionary defined "direct cost" as "a cost that may be computed and identified directly with a product, function, or activity and that [usually] involves expenditures for raw materials and direct labor and sometimes specific and identifiable items of overhead — contrasted with indirect cost." (Webster's 3d New Internat. Dict. (1993) p. 640, col. 3, italics omitted.) Webster's Third New International Dictionary defined "indirect cost" as "a cost that is not identifiable with a specific product, function, or activity." (Id. at p. 1151, col. 3.)
These definitions, though not dispositive, strongly suggest that the Legislature intended to adopt a broad definition of the phrase "direct and indirect
By statute, the State Controller is required to prescribe uniform accounting procedures for counties (§ 30200), and provide each county with a manual of accounting procedures known as the State Controller's Manual of Accounting Standards and Procedures for Counties (the Manual) (Cal. Code Regs., tit. 2, § 904). The Manual incorporates accounting standards established by the Governmental Accounting Standards Board, which has the authority to issue generally accepted accounting principles for state and local governments. (See State Controller's Off., Manual (May 1992) p. i.)
The Manual defines "direct costs" as "direct expenses," which are, in turn, defined as, "Expenses specifically traceable to specific goods, services, units, programs, activities, or functions." (State Controller's Off., Manual, supra, at p. C.19.) According to the Manual, "Direct expenses differ from indirect expenses in that the latter cannot be specifically traced and so must be allocated on some systematic and rational basis." (Ibid.) The Manual defines indirect charges/costs/expenses as "overhead," which is, in turn, defined as "[t]hose elements of cost necessary in the production of a good or service which are not directly traceable to the product or service. Usually these costs relate to objects of expenditure which do not become an integral part of the finished product or service, such as rent, heat, light, supplies, management and supervision." (Id. at pp. C.30, C.38.)
The federal Office of Management and Budget attaches similar meanings to the terms "direct costs" and "indirect costs," both of which are defined in OMB A-87. (OMB A-87, 46 Fed.Reg. 9548, supra, §§ E(1), F(1).) According to OMB A-87, "Direct costs are those that can be identified specifically with a particular cost objective." (Id., § E(1).) By contrast, "Indirect costs are those (a) incurred for a common or joint purpose benefiting more than one cost objective, and (b) not readily assignable to the cost objectives specifically benefited, without effort disproportionate to the results achieved." (Id., § F(1); see also State Controller's Off., Handbook of Cost Plan Procedures for California Counties (Aug. 2016) pt. II, § 2410, p. 80 [same].)
For example, Health and Safety Code section 25206.1 (part of the Hazardous Waste Control Law, Health & Saf. Code, § 25100 et seq.), adopted just a few years after Government Code section 27366 (see Stats. 1997, ch. 870, § 31, pp. 6289, 6290), defines the term "`[d]irect costs'" as "the costs to the [Department of Toxic Substances Control] of processing applications, responding to requests, or providing other services ... that can be specifically attributed to a particular cost objective, including, but not limited to, sites, facilities, and activities." (Health & Saf. Code, § 25206.1, subd. (a).) By contrast, Health and Safety Code section 25206.1 defines the term "indirect costs" as "the costs to the [Department of Toxic Substances Control] of activity that is of a common or joint purpose benefiting more than one cost objective and not readily assignable to a single cost objective." (Health & Saf. Code, § 25206.1, subd. (b).)
A more recent statute, Education Code section 33338, which was enacted in 2012 and deals with grants or allocations of state funds to school districts (Stats. 2012, ch. 587, § 3, amended by Stats. 2015, ch. 344, § 3), defines the term "direct cost" as "a cost that provides measurable, direct benefits to a particular program of an agency." (Ed. Code, § 33338, subd. (b)(1).) "Direct costs of a local educational agency include, but are not necessarily limited to, salaries and benefits of teachers and instructional aides, costs for purchasing textbooks and instructional supplies, and costs for providing pupils with counseling, health services, and transportation." (Ibid.) By contrast, Education Code section 33338 defines the term "indirect costs" as "the agencywide, general management cost of the activities for the direction and control of the agency as a whole." (Id., subd. (b)(2).) "Indirect costs include, but are not
These statutory definitions are consistent with the generally accepted meanings of the terms "direct costs" and "indirect costs," and demonstrate that the Legislature was aware of the potentially broad meaning of the phrase "direct and indirect costs" when it amended section 27366.
Other statutes demonstrate that the Legislature knew how to limit recoverable costs when it wished to do so. For example, former section 6257 (repealed by Stats. 1998, ch. 620, § 10, p. 4121), now section 6253 (Stats. 1998, ch. 620, § 5, p. 4120) of the California Public Records Act (§ 6250 et seq.) authorizes public agencies to charge "fees covering direct costs of duplication" (§ 6253, subd. (b)). The statute does not define the phrase "direct costs of duplication." (§ 6253.) However, the Court of Appeal for the Fourth Appellate District, Division One, considered the meaning of the phrase in North County. (North County, supra, 23 Cal.App.4th at pp. 146-148.) There, the plaintiff, a nonprofit organization, requested copies of all decisions rendered by the defendant, the State Department of Education (Department) over a two-year period. (Id. at p. 146.) The Department charged $0.25 per page for the copies, resulting in a total bill of $126.50. (Ibid.) The Department's copy fee not only covered the actual cost of making copies, it also reimbursed the Department for staff time required to locate, review, and redact the requested records. (Ibid.)
The plaintiff brought an action seeking "miscellaneous relief." (North County, supra, 23 Cal.App.4th at p. 146.) The trial court determined that the Department's copy fees were permissible, and the Court of Appeal reversed, stating: "We sometimes presume too much of the Legislature, but this is assuredly not the case when we presume that the statute writers, themselves bureaucrats of a sort, knew the ancillary costs of everything government does.
We recognize that the Legislature could not have been aware of North County when it amended section 27366. Nevertheless, the North County court's interpretation of former section 6257 confirms that the Legislature knew how to limit recoverable costs.
Another statute that governs fee setting by local governments, section 54985, confirms that the Legislature knew how to limit recoverable indirect costs. Enacted in 1983, section 54985 provides in pertinent part: "Notwithstanding any other provision of law that prescribes an amount or otherwise limits the amount of a fee or charge that may be levied by a county, a county service area, or a county waterworks district governed by a county board of supervisors, a county board of supervisors shall have the authority to increase or decrease the fee or charge, that is otherwise authorized to be levied by another provision of law, in the amount reasonably necessary to recover the cost of providing any product or service or the cost of enforcing any regulation for which the fee or charge is levied. The fee or charge may reflect the average cost of providing any product or service or enforcing any regulation. Indirect costs that may be reflected in the cost of providing any product or service or the cost of enforcing any regulation shall be limited to those items that are included in [OMB A-87]." (§ 54985, subd. (a), italics added; see County of Orange v. Barratt American, Inc. (2007) 150 Cal.App.4th 420, 434 [58 Cal.Rptr.3d 542].) OMB A-87 attaches a non-exclusive list of "allowable costs," ranging from "Accounting" to "Travel." (OMB A-87, 46 Fed.Reg. 9548, supra, Att. B, § B.)
CPRR challenges this conclusion in two ways. First, CPRR contends the applicable legislative history indicates the Legislature intended to cap copy fees by limiting recoverable costs. Second, CPRR claims article I, section 3, subdivision (b)(2) of the California Constitution requires us to construe section 27366 narrowly. We address these arguments in reverse order below.
In 2004, California voters passed Proposition 59, known as the "Sunshine Initiative," which amended article I, section 3 of the California Constitution by adding subdivision (b). (Cal. Const., art. I, § 3, subd. (b); POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 750 [160 Cal.Rptr.3d 69].) Subdivision (b)(1) states that the "people have the right of access to information concerning the conduct of the people's business...." (Cal. Const., art. I, § 3, subd. (b)(1).) Subdivision (b)(2) provides in pertinent part: "A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." (Id., subd. (b)(2).)
As noted, article I, section 3, subdivision (b)(2) of the California Constitution applies "when a court is confronted with resolving a statutory ambiguity related to the public's access to information." (POET, LLC v. State Air Resources Bd., supra, 218 Cal.App.4th at p. 750.) Having concluded that section 27366 is unambiguous, we have no occasion to apply article I, section 3, subdivision (b)(2) of the California Constitution's interpretive rule. (POET, LLC v. State Air Resources Bd., supra, at p. 750.) We therefore reject CPRR's contention that article I, section 3, subdivision (b)(2) of the California Constitution requires us to disregard the established meaning of "indirect costs."
From 1951 through 1992, former section 27366 established statutory copy fees at the rate of $1.00/$0.50. Section 27366 was amended by Assembly Bill No. 130 (1993-1994 Reg. Sess.) in 1993. (Stats. 1993, ch. 710, § 3, p. 4039.) The initial version of the bill would have increased the statutory copy fee from $1.00/$0.50 to $1.00 per page. (Assem. Bill No. 130 (1993-1994 Reg. Sess.) § 2, as introduced Jan. 13, 1993.) A subsequent version of Assembly Bill No. 130 would have repealed section 27366 and amended section 54985, bringing recorder's copy fees within the reach of the latter statute and subjecting them to the limitations set forth in OMB A-87. (Assem. Bill No. 130 (1993-1994 Reg. Sess.) §§ 4-5, as amended June 20, 1993.) Still another version of Assembly Bill No. 130 would have retained section 27366 and revised section 54985, thereby giving boards of supervisors authority to set copy fees, so long as they observed the limitations set forth in OMB A-87. (Assem. Bill No. 130 (1993-1994 Reg. Sess.) § 1, as amended Aug. 12, 1993.) The Legislature ultimately rejected these proposed amendments in favor of the final version, which contains no such limitation on indirect costs. (§ 27366.)
Nothing in the applicable legislative history suggests that the Legislature intended to make section 27366 more restrictive than section 54985. If anything, the legislative history suggests the Legislature intended to give boards of supervisors more flexibility in setting fees, not less. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 130 (1993-1994 Reg. Sess.), as amended Aug. 23, 1993 ["This bill gives the counties flexibility in determining on their own what the fees will be relative to the two services [certification and copying of official records]"].) We therefore conclude that the applicable legislative history supports the County's interpretation of section 27366.
Having concluded that section 27366 authorizes the County to recover overhead and other operating costs not specifically associated with the production of copies, we now consider CPRR's claims for mandamus relief, declaratory relief and damages. As we shall discuss, our interpretation of section 27366 resolves most of these claims.
CPRR asserts three claims for mandamus relief. First, CPRR claims the County violated a "mandatory duty under California law to limit the amount of fees charged for copies of recorded documents." Second, CPRR claims the Board abused its discretion in setting copy fees. Third, CPRR claims the County violated "a mandatory duty to enact special taxes only by vote of the electorate" under Proposition 26. We first review the requirements for a writ of mandate and then consider CPRR's claims for mandamus relief.
"Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial. [Citation.] `A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. Discretion ... is the power conferred on public functionaries to act officially according to the dictates of their own judgment. [Citation.]' [Citations.] Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner. [Citation.]" (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, supra, 197 Cal.App.4th at pp. 700-701.) "Mandamus may also issue to correct the exercise of discretionary legislative power, but only where the action amounts to an abuse of discretion as a matter of law because it is so palpably unreasonable and arbitrary. [Citation.]" (Ellena v. Department of Ins. (2014) 230 Cal.App.4th 198, 206 [178 Cal.Rptr.3d 435].)
CPRR's first cause of action alleges the County violated a "mandatory duty under California law to limit the amount of fees charged for copies of recorded documents to recoupment of direct and indirect costs actually
In County of Yolo, the county brought an action against various school districts alleging they failed to pay their election bills. (County of Yolo, supra, 5 Cal.App.4th at p. 1248.) The school districts responded with a challenge to the county's new formula for billing election costs. (Ibid.) Among other things, the school districts argued that the county improperly charged them for the "administrative costs" of operating the elections office. (Id. at p. 1247.) The term "administrative costs," which is not defined by statute, was used by the county to refer to costs associated with "maintaining and purging registered voter files; establishing and reviewing precinct lines; training poll workers; and maintaining poll sites." (Id. at p. 1249.)
This court carefully reviewed the applicable statutory framework for school district election costs, focusing on Elections Code former section 23524, which provides, in pertinent part: "Each district involved in a general district election in an affected county shall reimburse such county for the actual costs incurred by the county clerk thereof in conducting the general district election for that district." (Elec. Code, former § 23524, italics added, repealed by Stats. 1994, ch. 920, § 1, p. 4690; County of Yolo, supra, 5 Cal.App.4th at p. 1250.) Applying Elections Code former section 23524, the court concluded, "a county cannot charge a school district for the costs of election functions, activities or operations the county would have to undertake or engage in regardless of whether the school district was in the election." (County of Yolo, supra, at p. 1258.)
Contrary to CPRR's contention, County of Yolo does not articulate mandatory duty or "common-law recoupment standard." In County of Yolo, the court simply interpreted and applied the applicable statute, without purporting to announce a common law duty or generally applicable standard for recoverable costs. Significantly, County of Yolo involved an entirely different statutory scheme, with different provisions and objectives than section 27366. We therefore conclude that County of Yolo is inapposite, despite a superficial resemblance to our case.
CPRR's reliance on CAPS is also misplaced. CAPS involved a constitutional challenge to flat fees charged by the Department of Fish and Game to cover some of its costs of meeting environmental review obligations under
Relying on the italicized language, CPRR observes that CAPS recognizes a "fundamental distinction" between "regulatory fee[s]" and ordinary "user fees." (CAPS, supra, 79 Cal.App.4th at p. 952.) Taking this observation a step further, CPRR argues that regulatory fees "`may be burdened with the full costs of the agency — administrative, overhead, wages, pensions, benefits, travel, etc. But an ordinary user fee may recoup only those costs that are related to the actual goods or services provided.'"
Having concluded that neither the applicable statutes nor California common law establish a ministerial duty to limit copy fees, we further conclude that the trial court properly granted the County's motion for summary adjudication of CPRR's first cause of action. (Brierton v. Department of Motor
CPRR's second cause of action alleges the Board lacked a reasonable basis for setting copy fees, and abused its discretion by setting fees that recover indirect costs that cannot be specifically correlated with the actual production of copies.
As noted, the petition alleges the Board lacked a reasonable basis for setting copy fees, and abused its discretion by setting fees to recover indirect costs that cannot be specifically correlated with the actual production of copies. On summary judgment, the County established that copy fees were calculated according to a methodology developed by independent consultants (GFR and Lauwerys) and reviewed and approved by the County's manager for cost accounting and budget for the auditor-controller's office (Olander). Specifically, copy fees were calculated using a staff billing rate of $2.16 per minute. The staff billing rate reflects all known costs involved in operating the Recorder's Office. The staff billing rate was multiplied by the average time to produce copies (4.5 minutes for the first page and one minute for each subsequent page) to arrive at the rate of $10.00/$2.00.
As noted, CPRR offered no admissible evidence demonstrating that the Board's actions were arbitrary, capricious, or lacking in evidentiary support. For example, CPRR argued the County Administrator failed to present the Board with copies of the fee studies, thereby depriving the Board of an evidentiary basis for setting fees. CPRR renews this argument on appeal. We assume for the sake of argument that the Board needed copies of the fee studies in order to make an informed decision as to the reasonableness of the proposed copy fees. Even so assuming, CPRR failed to support its argument with admissible evidence, choosing instead to rely on the allegations of the petition. The County objected, and the trial court properly sustained the objection. (Code Civ. Proc., § 437c, subd. (p)(2); see College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7 [34 Cal.Rptr.2d 898, 882 P.2d 894] ["It is generally understood ... that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context"].) On appeal, "we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089], italics added.) In the absence of any admissible evidence that the County Administrator failed to present the fee studies to the Board, we conclude that CPRR failed to raise a triable issue of fact as to the Board's evidentiary basis for setting fees.
We likewise conclude that CPRR failed to raise a triable issue as to whether the Board abused its discretion by using the methodology set forth in the GFR study to calculate copy fees. As noted, the County supported its motion for summary judgment with a declaration from Olander. Olander's declaration opines that "the `productive rate' or `billing rate' methodology ... [is] a sound and appropriate accounting methodology commonly used in accounting practice to allocate a pro rata share of direct and indirect costs to a specific product or service." CPRR did not offer any expert evidence to
CPRR's third cause of action alleges that (1) the recorder's copy fees constitute a "special tax" within the meaning of Proposition 26, and (2) the County violated a "mandatory duty to enact special taxes only by vote of the electorate" in setting copy fees pursuant to the MFR. We conclude that, in the circumstances of this case, Proposition 26 does not impose a ministerial duty for which mandamus will lie.
As previously discussed, an essential element of a cause of action for mandamus is the existence of a clear, present and usually ministerial duty upon the part of the respondent. (Code Civ. Proc., § 1085; Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540 [28 Cal.Rptr.2d 617, 869 P.2d 1142].) CPRR finds support for the existence of such a duty in Proposition 26, which provides in pertinent part: "No local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote." (Cal. Const., art. XIII C, § 2, subd. (b).) We are not persuaded.
While Proposition 26 is "mandatory" in the sense that local governments must comply with it (see State Board of Education v. Levit (1959) 52 Cal.2d 441, 460 [343 P.2d 8] [Cal. Const., art. I, § 26 "not only commands that [the Constitution's] provisions shall be obeyed, but that disobedience of them is
CPRR's fourth cause of action seeks a declaration of the parties' rights under section 27366. We have already extensively addressed the proper interpretation of section 27366, and need not repeat our analysis here. However, CPRR's fourth cause of action also incorporates by reference CPRR's constitutional challenge to the recorder's copy fees, an argument which, at first blush, we have yet to consider. We turn to this issue momentarily, pausing first to review applicable declaratory relief principles.
Code of Civil Procedure section 1060, which governs actions for declaratory relief, provides: "Any person interested under a written instrument ..., or under a contract, or who desires a declaration of his or her rights or duties with respect to another ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ... for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract."
Summary judgment is appropriate in a declaratory relief action when only legal issues are presented for the court's determination. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401-1402 [120 Cal.Rptr.2d 392].) The defendant's burden in a declaratory relief action "is to establish the plaintiff is not entitled to a declaration in its favor. It may do this by establishing (1) the sought-after declaration is legally incorrect; (2) undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for declaratory relief." (Id. at p. 1402.)
CPRR contends the recorder's copy fees constitute a "special tax" within the meaning of Proposition 26 and section 50076. The petition and complaint generally allege that the copy fees constitute a special tax because they exceed the reasonable cost to the Recorder's Office of making copies. On summary judgment, the County argued the copy fees are reasonable because they recover the "direct and indirect costs" of making copies within the meaning of section 27366. CPRR responded that the copy fees were "per se unreasonable" because they purportedly violate sections 27360 and 27366.
On appeal, CPRR again argues that the County's alleged violation of section 27366 establishes a violation of Proposition 26. According to CPRR, "because [the County] violated the cost-recoupment standards of the statutes and the common law (narrowly construed) there is an ipso facto violation of the reasonableness standard just as violation of a statute constitutes an ipso facto violation of the reasonableness standard in negligence cases (negligence per se)." (Italics omitted.) We reject this premise and conclude that CPRR has failed to demonstrate error.
Proposition 26, section 3 added subdivision (e), to section 1 of article XIII C, broadly defining "tax" to include "any levy, charge, or exaction of any kind imposed by a local government." (Cal. Const., art. XIII C, § 1, subd. (e).) Subdivision (e) incorporates seven exceptions to this definition of tax. (Ibid.) As pertinent here, article XIII C, section 1, subdivision (e)(2) provides that the definition of "tax" does not include "[a] charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product." (Cal. Const., art. XIII C, § 1, subd. (e)(2).) Proposition 26 further provides that "[t]he local government bears the burden of proving by a preponderance of the evidence that a levy, charge, or other exaction is not a tax, that the
Proposition 26 does not apply to local taxes that existed prior to its November 3, 2010, effective date. (Brooktrails, supra, 218 Cal.App.4th at pp. 205-207.) The MFR was adopted on May 19, 2009, almost 18 months prior to the adoption of Proposition 26. Because the MFR predates Proposition 26, the County contends the copy fees were grandfathered in, and cannot be characterized as "special taxes." CPRR counters that the Board adopts a master fee resolution every year as part of the County's budget process.
We cannot discern, on the record before us, whether the copy fees were established by means of a single legislative act (the MFR) which predates the adoption of Proposition 26, such that they are grandfathered in, or whether they were annually reenacted by master fee resolution following the adoption of Proposition 26, such that they are not. (Cf. Barratt American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 702-704 [37 Cal.Rptr.3d 149, 124 P.3d 719] [discussing the "`reenactment rule'" in a different statutory context]; Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, 262-266 [86 Cal.Rptr.3d 598]; see also Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 825 [107 Cal.Rptr.2d 369, 23 P.3d 601] ["Cities and counties must eventually obey the state laws governing their taxing authority and cannot continue indefinitely to collect unauthorized taxes"].) Giving CPRR the benefit of the doubt, we assume that the copy fees were not grandfathered in. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1098 [38 Cal.Rptr.3d 240] [opposing party's evidence is liberally construed on summary judgment].)
Assuming for the sake of argument that Proposition 26 applies, we next consider whether the trial court erred in summarily adjudicating CPRR's constitutional challenge. We conclude that CPRR has failed to demonstrate error.
On appeal, CPRR contends the recorder's copy fees violate Proposition 26 because they fail to comply with section 27366. Significantly, CPRR does not contend the County cannot constitutionally recover indirect costs, as we have interpreted that term. It is therefore unnecessary for us to parse the differences, if any, between "reasonable costs" (Cal. Const., art. XIII C, § 1), as used in Proposition 26 and "direct and indirect costs," as used in section 27366. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [36 Cal.Rptr.3d 6] ["Though summary judgment review is de novo,
We have already considered and rejected CPRR's contention that the recorder's copy fees run afoul of section 27366 and California common law. Having done so, we likewise reject CPRR's contention that the claimed violation of section 27366 and California common law establishes, ipso facto, a violation of Proposition 26. We therefore conclude, for the reasons previously discussed, that CPRR failed to rebut the County's showing that the recorder's copy fees comply with section 27366. (Gafcon, Inc. v. Ponsor & Associates, supra, 98 Cal.App.4th at p. 1402.) The trial court properly granted the County's motion for summary adjudication of CPRR's fourth cause of action.
CPRR's fifth cause of action asserts claims for breach of mandatory duty (§ 815.6) and negligence based on the County's alleged breach of a "duty to refrain from demanding and collecting user fees for copies of recorded documents from [CPRR] and the public that exceeded the direct and indirect costs that were actually incurred in making copies and which would not have been incurred but for the copy-making activity." The trial court properly granted the County's motion for summary adjudication of CPRR's negligence cause of action.
Preliminarily, we reject CPRR's contention that Judge White improperly reconsidered and reversed Judge Maguire's previous order overruling the County's demurrer to the fifth cause of action. The County demurred to the fifth cause of action pursuant to section 815, subdivision (a). (See § 815, subd. (a) ["A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person"].) The trial court (Maguire, J.) overruled the demurrer, stating "[the County] does not demonstrate that ... section 27366 may not properly provide a basis for liability under ... section 815.6." Later, the
Contrary to CPRR's contention, Code of Civil Procedure section 1008 did not deprive Judge White of jurisdiction to consider the County's immunity defense on summary judgment. As the Court of Appeal for the Second Appellate District, Division Six, explained in Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199 [56 Cal.Rptr.2d 732]: "[A] motion for summary judgment or adjudication is not a reconsideration of a motion overruling a demurrer. They are two different motions. To hold that a trial court is prevented in a motion for summary judgment or adjudication from revisiting issues of law raised on demurrer is to condemn the parties to trial even where the trial court's decision on demurrer was patently wrong. The result would be a waste of judicial resources, the very evil Code of Civil Procedure section 1008 was intended to avoid. Nothing in the language of [Code of Civil Procedure] section 1008 compels its application to the instant motion for summary adjudication. In fact, to apply it here would run contrary to its purpose." (Id. at p. 205.) Following Community Memorial Hospital, we likewise conclude that nothing in the language of Code of Civil Procedure section 1008 prevented Judge White from considering the County's immunity defense on summary judgment.
Having rejected CPRR's procedural objection, we next consider whether the undisputed facts establish a defense to liability. We conclude they do.
Under section 815.6, "the government may be liable when (1) a mandatory duty is imposed by an enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury." (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 [188 Cal.Rptr.3d 309, 349 P.3d 1013].) Our Supreme Court
CPRR's sixth cause of action, for money had and received, alleges that CPRR and the putative class "have paid to [the County], at [the County's] special instance and request, in excess of $25,000 in illegal overcharges, have been damaged thereby, and are entitled to recoupment of the overcharges according to proof." The trial court granted the County's motion for summary adjudication of the sixth cause of action on immunity grounds. On appeal, CPRR contends the trial court erred because section 814 provides for liability based upon contract.
As the County observes, nothing in the record suggests the existence of a contractual relationship between CPRR and the County. CPRR does not explain why section 814 might be relevant or otherwise elaborate on the claim of error. In the absence of any reasoned analysis or argument, we treat the claim as waived. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [91 Cal.Rptr.3d 726] ["`When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived'"].)
Finally, CPRR contends the trial court abused its discretion in denying its request for more than $450,000 in attorneys' fees. According to CPRR, "Only one inexperienced in the realities of litigation, or naïve, can believe that the suit did not motivate the fee reduction." We disagree, and perceive no abuse of discretion in the denial of attorneys' fees.
"Generally, whether a party has met the statutory requirements for an award of attorney fees is best decided by the trial court, whose decision we
Code of Civil Procedure section 1021.5 provides in pertinent part: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any."
"The `catalyst theory' permits an award of attorney fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. [Citation.] To obtain attorney fees under this theory, a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit." (Coalition, supra, 238 Cal.App.4th at p. 521.) We need not consider all of these factors because we conclude that CPRR failed to achieve its primary objective, which was to change the way in which the County calculates copy fees.
The judgment and order denying attorneys' fees are affirmed. Respondents County of Yolo and Freddie Oakley shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
Raye, P. J., and Nicholson, J., concurred.
We decline the County's request because, as indicated in the text, "relevant dictionary definitions are those extant before or at least near in time to the statutory or contractual usage." (Siskiyou County Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 434 [188 Cal.Rptr.3d 141].) Nevertheless, we take judicial notice sua sponte of the definitions in place during the relevant period. (Evid. Code, § 451, subd. (e) [judicial notice shall be taken of "[t]he true signification of all English words and phrases and of all legal expressions"].) We overrule CPRR's anticipated hearsay objection, noting that such definitions are aids to the court's understanding, not evidence. (Nix v. Hedden (1893) 149 U.S. 304, 307 [37 L.Ed. 745, 13 S.Ct. 881] [taking judicial notice of meaning of English words and emphasizing that, "upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court"].)
Similarly, Welfare and Institutions Code section 4681.1, which was enacted in 1988 and amended in 1998 to add examples of "indirect costs" in the context of community care facilities (Stats. 1988, ch. 85, § 2, p. 384, amended by Stats. 1998, ch. 1043, § 10, p. 7988), provides that, "`Indirect costs' include managerial personnel, facility operation, maintenance and repair, other nondirect care, employee benefits, contracts, training, travel, licenses, taxes, interest, insurance, depreciation, and general administrative expenses." (Welf. & Inst. Code, § 4681.1, subd. (a)(4).)
