.For All Purposes Michael J. Lampe #82199 Michael P. Smith #206927 LawOffices of_Michael J. Lampe 108 West CenterlAvenue Visalia, California 93291 FILED I Telephone (559) 738?5975 TULARE COUNTY summon COURT Assigned to Judicial . 1a. Plaintiff Ben Bru'baker (Plainti??) alleges: GENERAL ALLEGATIONSZ 1. Plaintiff is an individual residing in the City of Tulare, California, and and a ?member of the public? within the meaning of the California Public Records Act, Government Code ?6250 et seq. (the Public Records Act). 2. agency? within the meaning of the Public Records Act. 3. Plaintiff does not know the true names and capacities of the Defen herein as Does 1 through 10, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Defendant City of Tulare (the City) is, and at all times herein mentioned was, a ?local is a ?person? dants named Facsimile (559) 738?5644 - Attorneys for- Plaintiffs MAR 09 2015 ASE MANAGEMENT CONFERENCE STEPHANIE CAMERON, CLEFIK Hearing Date 7 ?7 520! Bauben Cabrera Jr. Time: 3950 AM Department: a SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF TULARE BEN BRUBAKER, Case No. 2? 2 9 8 4' Plaintiffs, VERIFIED COMPLAINT FOR DECLARATORY RELIEF VS. California Public Records Act CITY OF TULARE, and Does 1 through 10, Government Code 6250, et seq. inclusive, Defendants. Plaintiff is informed and believes and thereon alleges that each of the fictitioust named Defendants are legally responsible in some manner for theoccurrences herein alleged, and that the viola'tions'alleged herein were proximater caused by such wrongful aCts; At all times herein mentioned, each of the Defendants was the agent, employee, or partner of each of the remaining Defendants, and in doing??the things alleged herein, was acting within the purpose, scope and course. of sUch relationship. 4. The California Legislature has declared that access to information concerning the conduct of the people's business is a ?fundamental and necessary right? of every person in this state. Govt. Code ?6250. I 5. . In 2004, California voters overwhelmingly approved Proposition 59, also known as The Sunshine Act, which amended the California Constitution to provide its citizens ?the right of access to information concerning the conduct of the people?s business, and, therefore the writings of public officials and agencies shall be open to public scrutiny.? Cal. Const. Art. 1, 6. A statute, such as the Public Records Act, ?shall be broadly construed if it furthers the people?s right of access, and narrowly construed if it limits the right of access.? Cal. Const. Art. 1, 7. A public record is broadly defined as ?any writing containing information relating to the conduct of the public?s business prepared, owned, used, or retained by any state or local agency.? Govt. Code ?6252(e). 8. Unless othenNise provided bylaw, public records are open to inspection at all times during the office hours of-Vthe City. Govt. Code ?6253(a). FIRST CAUSE OF ACTION (Request for Declaratory Relief against theCity and Does through 10) 9. Plaintiff realleges and?incorporates herein by reference each and every allegation contained in paragraphs 1 through 8 of this complaint. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 10. On January 31, 2018, a Public RecOrd Act request was made on Plaintiff?s behalf, a copy of which is attached hereto as Exhibit 1 and incorporated herein by reference. 11. On February 9, 2018, the City served its initial response to Plaintiff's Public Records Act request, wherein the City represented that: "The City hereby gives notice that it requires additional time within which to search for, adequately review, and duplicate any responsive records, particularly in light of the several se arate and distinct records sought Within our request. The additional 14- ay response period contemplated by Cali ornia Government Code Section 6253(0) is- hereby invoked. Further response to your request will be provided, in writing, on or before February 23,. 2018." A copy of the City?s initial response is attached hereto as Exhibit 2 and incorporated herein by reference. No records were produced by the City in its initial response. 12. On February 23, 2018, the Cityserved a supplemental response to Plaintiff?s Public Records Act request by electronically producing certain records. A copy ofthe City?s supplemental response is attached hereto as Exhibit 3 and incorporated herein by reference. 13. The Public Records Act requires that copies of requested records be made available" to the person requesting them. Govt. Code ?8253(b). 14. The Public Records Act further requires that the City respond in no more than ten calendar days to a request for copies of public records with notification whether the records will be disclosed. Govt. Code ?6253(c). In ?unusual circumstances,? the City may extend the ten day response period for up to 14 additional days. Govt. Code ?6253(c). 15. Significantly, the Public Records Act specifically provides that, ?Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of' public records.? Govt. Code, 6253(d). 16. Plaintiff contends thatthe City delayed the inspection and copying of public records, as prohibited by Govt. Code, 6253(d), when-the City-?invoked? an additional 14 day response time without 'good cause. Plaintiff?s contention ,is supported, in part, by the facts set forth'in paragraphs 17 through 32 of this complaint. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 17. Item10 Of Plaintiff?s Public Records Act request sought production of the following records: 7 I .. T?AnyRequest for Proposals for City Attorney Services prepared by City staff, pursuant to the direction of the Mayor, asreflected in the Minutes of the Tulare City Council dated April 18, 2017, Item (Closed Session Report).? (Exhibit 1, 1i10.) '18. In response to this request, on February 23 the City produced a 21 page undated Request for Proposals, a copy of which is attached hereto as Exhibit 4 and incorporated herein by reference. I 19. Plaintiff contends, and the City apparently denies, that this public record was easily retrievable and available for production atthe time ofthe City?s initial response to Plaintiff?s Public Records Act request. 2 20. Plaintiff further contends, and the City apparently denies, that no ?unusual circumstances? existed to delay the production of this public record at the time of the City?s initial response. 21. Plaintiff further Contends, and the City apparently denies, that the City delayed the copying of this readily available public record in violation of Govt. Code ?6253(d). 22. Item 16 of Plaintiff?s Public Records Act request sought production ofthe following records: I ?Any contracts for City Attorney services entered into by the City from and after April 4, 2017. (Exhibit 1, 1116.) 23. In response to this request, on February 23 the City produced an eight page agreement, a copy of which is attached hereto as Exhibit 5 and incorporated herein by reference. 24. Plaintiff contends, and the City apparently denies, that this public record was easily retrievable and available for production at the time ofthe City?s initial response to Plaintiff?s Public Records Act request. . i 25. Plaintiff further contends, and the City apparently denies, that no ?unusual circumstances? existed to delay the production of this public record at the'time of the City?s initial . response. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF _x _x _x _x A 26. Plaintiff further Contends, and the City apparently denies, that the City delayed the copying of this readily available public record in Violation of Govt. Code ?6253(d). 27. Item 17 of Plaintiff?s Public Records Act request scught production of the follow-ling records: I I "All billin statements received from the City Attorne or Phillips for legal services rendere from and after April 4, (Exhibit 1, 17.) 28. In reSponse to this request, on February 23 the City produced billing statements, copies of which are attached hereto as Exhibit 6 and incorporated herein by reference. 29. Alth0ugh the City did not produce these billing statements in its initial response of February 9, Plaintiff is informed and believes that these same documents were produced to the Valley Voice, pursuant to it own Public Records Act request, on February 8. 30. Plaintiff contends, and the City apparently denies, that this public record was easily retrievable and available for production at the time ofthe City?s initial response to Plaintiff?s Public Records Act request. 31. Plaintiff further contends, and. the City apparently denies, that no "unusual circumstances? existed to delay the production of this public record at the time of the City?s initial response on February 9 (particularly given the fact that the very same public record was produced to the Valley voice a day earlier). A I A 32. Plaintiff further contends, and the City apparently denies, that the City delayed the copying of this readily available pUinc record in violation of Govt. Code ?6253(d). - 33. Plaintiff desires ajudicial determination of his rights as an interested citizen, and the City?s duties as a public agency, under the Public Records Act. 34'. Plaintiff additionally seeks to recover his attorney's fees in this action under the provisions of Government Code 6259(d) and Code of Civil Procedure section 1021.5. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF . NNMN . SECOND CAUSE OF ACTION (Request for Declaratory Relief against the City and Does 1 through 10) 35. Plaintiff realleges and incorporates herein by reference each and every allegation contained in paragraphs 1 through 34 of this complaint. . 36. Item 1 of Plaintiff?s Public RecOrds Act request sought production of the following records: ?All billing statements received from the Prior City Attorney for legal services rendered to the City between May 1, 2016, and April 1, 2017;. (Exhibit 1, 111.) 37. Plaintiff alleges on information and belief that the City has failed to prodUCe all of the requested records. 38. Item 2 of Plaintiff?s Public Records Act request of the following records relating to the City?s retention of Attorney Heather Phillips to prosecute Tulare County Superior Court Case No. 268840, entitled City of Tulare v. Tulare Lodging Associates A, LLC, a California limited liability company DBA Fair?eld Inns, et al. (the Fairfield Inns Lawsuit): ?Any communications reflectin the City?s retention of Phillips or the City Attorney to prosecute the Fairfield Inns awsuit? (Exhibit 1, 112.) 39. In response to this request, the City produced a copy of Exhibit 5 to this complaint, dated June 6, 2017. Plaintiff alleges that Attorney Phillips executed a substitution of Attorney in the Fairfield Inns Lawsuit two months earlier, on April 7, 2017, and on that basis alleges that the City has failed to produce all of the requested records. - 40. Plaintiff desires a judicial determination of his rights as an interested citizen, and the City?s duties as. a public agency, under the Public Records Act. 7 41. Plaintiff additionally seeks to recover his attorney?s fees in this action under the provisions of Government Code 6259(d) and Code of Civil Procedure section 1021.5. VERIFIED COMPLAINT FOR DECLARATORY AND RELIEF THIRD CAUSE OF ACTION (Request for Declaratory Relief against the City and?Does 1 through 10) 42. Plaintiff realleges and incorporates herein by reference eachand every allegation contained in paragraphs 1 through 41 of this complaint. I 43. Item 17 of Plaintiff?s PUblic Records Act request sought production of the following recordst ?All billin statements received from the City Attorne o'r Phillips for legal services ,rendere from and after April 4, (Exhibit 1, 17.) . 44. In response to this request, on February 23 the City produced 23 pages of attorney billing statements, copies of which are attached hereto as Exhibit 6 and incorporated herein by reference. - I 45. In further response to this request, on March 1 the City produced an additional 28 pages of attorney billing statements?for the months of April and May, 2017, copies of which are 3 attached hereto as Exhibit 7 and incorporated herein by reference. The City provided no explanation for the delay in producing these additional billing statements. 46. Also in further response to this request, on March 1 the City produced an additional '90 pages of attorney billing statements for the period commencing October 1, 2017, and ending January 31, 2018, copies of which are attached hereto as Exhibit 8 and incorporated herein by reference. 47. Plaintiff is informed and believes and thereon alleges that the attorney billing statements attached hereto as Exhibit 8 were not produced by the City in its previous responses because the records did not exist at the time of the previous reSponses, and were created after the fact. 1 48. Every attorney billing entry (over 2,000 entries) contained in Exhibits 6, 7, and 8 have been completely redacted ina manner to keep members of the public from discerning any unprivileged information relating to the conduct of the City Attorney. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF A _x 4.x I 49. Although the City may redact attorney billing entries relating to pending litigation under Govt_.Code entries that are attorney?client privileged communications under Evidence Code ?_954, Plaintiff alleges on information and belief that not all 2,000 of the redacted entries relate to pending litigation or would disclose attorney-client privileged communications. As such, the City?s overly broad redaction of these public records violates the Public Records Act. 47. Plaintiff desires ajudicial determination ofhis rights as an interested citizen, and the City?s duties as a public agency, under the Public Records Act. 48. Plaintiff additionally seeks to recover his attorney?s fees inthis action under the provisions of Government Code 6259(d) and Code of Civil Procedure section 1021.5. WHEREFORE, Plaintiff prays judgment as follows: 1. For an injunction, enjoining the City, its agents, employees and attorneys, from engaging in conduct designed to delay or obstruct the inspection or copying of public records. 2. Fer a declaration that the City has not complied with the January 31, 2018, Public Records Act request, and that additional responsive documents be produced forthwith. 3. For an in camera review by the court, or the appointment of a special master, to review the redacted attorney billing entries with a view toward disclosing to the public all billing entries that do not relate to pending litigation exempt from disclosure under Govt. Code ?6254(b), and are not attorney-client privileged communications exempt from disclosure under Evidence code ?954. 4. That Plaintiff be awarded reasonable attorneys? fees in this action under the provisions of Government Code 6259(d) and Code of Civil Procedure section 1021.5; 5. That Plaintiff be awarded his costs of suit incurred herein; and 6. That Plaintiff be aVvarded such other relief as this court may consider proper. (4 OF MICHAEL J. LAMPE, Attorne for Plaintiffs By: Mic ael J. Lampe Date: March 2, 2018 VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND INJUNCTIVE RELIEF VERIFICATION Ben Brubaker, have read the foregoing Verified Complaint for Declaratory Relief, and know the contents thereof. The matters contained therein are true of my own knowledge, except as to those matters whiChare alleged on information and belief, and as to those matters I believe them to be true. i 7 I I declare under penalty of perjury under the laws of the State of the California that the foregoing is true and correct. Dated: March 2, 2018 VERIFIED COMPLAINT FOR DECLARATORY