1 SARA A. CLARK (State Bar No. 273600)
SHUTE, MIHALY & WEINBERGER LLP
2 396 Hayes Street
San Francisco, California 94102
3 Telephone: (415) 552-7272
Facsimile: (415) 552-5816
4 Clark@smwlaw.com
5 Attorney for Petitioner Stephen Bennett
6
7
8

SUPERIOR COURT OF THE STATE OF CALIFORNIA

9

COUNTY OF VENTURA

10
11 STEPHEN BENNETT,
Petitioner,

12
13

v.

14 CITY OF SAN BUENAVENTURA; CITY
CLERK OF THE CITY OF SAN
15 BUENAVENTURA; and DOES 1
THROUGH 20,
16
Respondents.
17
18
19
20
21
22
23
24
25
26
27
28
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

Case No.
VERIFIED PETITION FOR WRIT OF
MANDATE
Gov. Code § 6250 et seq. (California
Public Records Act); Cal. Const. Art. 1, §
3(b); Code Civ. Proc. § 1085

 INTRODUCTION

1
2

1.

This action challenges the failure of the City of San Buenaventura and its City

3 Clerk to provide documents related to the deadly 2017 Thomas Fire, one of the largest in
4 California’s history, pursuant to the California Public Records Act (“CPRA”), Government
5 Code section 6250 et seq. Petitioner Stephen Bennett requested certain documents to provide the
6 public with an understanding of how the City might better respond to future fire-related
7 disasters. The requested documents include existing records and communications related to
8 water tanks, water hydrants, generators, and supplemental fire personnel. The City’s failure to
9 release such records, which were generated in the standard course of business, undermines
10 California’s policy of government transparency.
11

2.

The City has infringed on Mr. Bennett’s fundamental constitutional and statutory

12 rights to access documents related to the people’s business. Specifically, the City is unlawfully
13 withholding records that Mr. Bennett requested pursuant to the CPRA, for which there are no
14 applicable exemptions. The City has also failed to provide adequate and timely reasons for not
15 providing the documents, effectively stonewalling Mr. Bennett’s rights of review. Likewise, the
16 City’s failure to provide the requested documents violates Article I, section 3 of the California
17 Constitution, which gives the people the right to access information concerning the conduct of
18 the people’s business, including the writings of public officials and agencies.
19

3.

Prompt access to these documents is necessary to fulfill the purpose of the CPRA

20 and Article I, Section 3. Thus, Mr. Bennett is entitled to a peremptory writ of mandate directing
21 the City to provide Mr. Bennett with all withheld documents responsive to his request
22 (“Withheld Documents”).
PARTIES

23
24

4.

Petitioner Stephen Bennett is an individual residing in the City of San

25 Buenaventura. He is also the elected District 1 Supervisor of Ventura County, though he
26 undertakes this litigation in his personal capacity. Through this litigation, he seeks to better
27 inform his community about mechanisms to improve the City’s preparedness for fire-related
28
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

2

 1 disasters. Mr. Bennett submitted written comments to the City objecting to the City’s
2 compliance with the CPRA.
3

5.

Mr. Bennett has a direct and beneficial interest in the City’s compliance with the

4 CPRA and the California Constitution in its response to his request for records. These interests
5 are harmed by the City’s refusal to comply with the CPRA and the California Constitution. The
6 maintenance and prosecution of this action will confer a substantial benefit on the public by
7 providing access to records concerning the City’s response to the Thomas Fire and potential
8 means of improving the City’s disaster preparedness.
9

6.

Respondent the City of San Buenaventura is a local government agency and

10 political subdivision of the State of California. The City has a duty to comply with the CPRA
11 and the California Constitution.
12

7.

Respondent City Clerk of the City of San Buenaventura is an employee of the City

13 of San Buenaventura and is responsible for providing access to public records and information.
14 Mr. Bennett received a response to his request from the City Clerk, asserting the application of
15 CPRA exemptions. The City Clerk has a duty to comply with the CPRA and the California
16 Constitution when carrying out acts for the City.
17

8.

Petitioner is unaware of the true names and capacities of Respondents Does 1

18 through 20 and sue such respondents by fictitious names. Petitioner is informed and believes,
19 and on that basis alleges, the fictitiously named respondents are also responsible for the actions
20 described in this Petition. When the true identities and capacities of these respondents have been
21 determined, Petitioner will amend this petition, with leave of the Court if necessary, to insert
22 such identities and capacities.
JURISDICTION AND VENUE

23
24

9.

This Court has jurisdiction under California Government Code sections 6258 and

25 6259, and California Code of Civil Procedure section 1085.
26

10.

Venue is proper in this Court under California Code of Civil Procedure section

27 394 because the City is a local agency situated in Ventura County. Venue is additionally proper
28
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

3

 1 under section 393 because the City Clerk is a public officer and the actions and omissions
2 forming the basis of the cause of action occurred in Ventura County.
3

11.

Petitioner has performed any and all conditions precedent to filing this action and

4 has exhausted any and all available administrative remedies to the extent possible and required
5 by law. Petitioner provided objections concerning the City’s response to his request.
6

12.

Respondents have taken final agency actions with respect to Petitioners’ request.

7 Respondents have a duty to comply with applicable state laws, including but not limited to the
8 CPRA and the California Constitution.
9

13.

Petitioner has no plain, speedy, or adequate remedy in the course of ordinary law

10 unless this Court grants the requested writ of mandate to require Respondents to produce the
11 documents. In the absence of this remedy, Respondents’ will continue to refuse to provide the
12 documents, in violation of State law. No money damages or legal remedy could adequately
13 compensate Petitioner for that harm.
14

14.

This petition is timely filed.
THE CALIFORNIA PUBLIC RECORDS ACT

15
16

15.

Under the CPRA, upon request, any public agency must make publicly available

17 for inspection and copying any record that it prepared, owns, uses, or retains that is not subject
18 to statutory exemptions to disclosure. Gov. Code § 6253.
19

16.

Before withholding any record responsive to a valid request under the CPRA, the

20 agency must “demonstrat[e] that the record in question is exempt under [the CPRA’s] express
21 provisions . . . or that on facts of the particular case the public interest served by not disclosing
22 the record clearly outweighs the public interest served by disclosure of the record.” Gov. Code §
23 6255.
24

17.

Any person may institute proceedings by certified petition for writ of mandate to

25 enforce his or her right to inspect or receive a copy of any public record or class of public
26 records, including if any agency improperly asserts an exemption. Gov. Code §§ 6258, 6259.
27

18.

The court must award costs and reasonable attorney fees to a prevailing petitioner,

28 to be paid by the agency from which the petitioner requested records. Gov. Code § 6259(d).
4
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

 THE CALIFORNIA CONSTITUTION

1
2

19.

Section 3(b) of Article 1 of the California Constitution establishes the public’s

3 right to access information as set forth in the CPRA: “[t]he people have the right of access to
4 information concerning the conduct of the people’s business, and, therefore, the meetings of
5 public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
6 Cal. Const. Art. 1, § 3(b)(1). The California Constitution requires that the CPRA shall be
7 “broadly construed if it furthers the people’s right of access, and narrowly construed if it limits
8 the right of access.” Cal. Const. Art. 1, § 3(b)(2).
GENERAL ALLEGATIONS

9
10

20.

In 2017, the Thomas Fire burned nearly 300,000 acres in the County of Ventura.

11 At the time, it was the largest wildfire in modern California history and caused devastating
12 fatalities, destroyed thousands of structures, and resulted in billions of dollars in damages. While
13 investigators determined that Southern California Edison power lines ignited the fire, affected
14 residents have also been concerned about the City’s response. Failures of City fire-fighting
15 infrastructure (including water tanks and generators) may have exacerbated the fire’s impacts.
16 Residents are concerned that the City has done little to address these issues, leaving the City ill17 prepared for another significant wildfire.
18

21.

Stephen Bennett serves on the Ventura County Board of Supervisors and

19 represents the citizens of District 1. In this role, he heard from constituents who had tried to
20 gather information about the City’s response but were unable to obtain information from the
21 City. Given the weight of the Thomas Fire’s devastation, Mr. Bennett sought to ensure that his
22 constituents are well-prepared and kept as safe as possible during any potential future wildfires.
23 Therefore, pursuant to the CPRA, Mr. Bennett requested documents related to the 2017 Thomas
24 Fire on March 25, 2019 (the “March 25 Request”). A true and correct copy of the March 25
25 Request is attached as Exhibit A. Mr. Bennett’s requests were detailed and specific, and sought
26 existing records and communications consisting of records of water levels in certain tanks
27 during the fire, records of water tank failure, communication regarding water pressure at city
28 hydrants during the fire, records of generators, and records of fire personnel staffing.
5
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

 1

22.

On April 4, 2019, Antoinette M. Mann, City Clerk of the City of San

2 Buenaventura, responded to Mr. Bennett’s request (the “April 4 Letter”). A true and correct
3 copy of the April 4 Letter is attached as Exhibit B. The April 4 Letter refused to provide access
4 to the vast majority of these records, and listed the following CPRA exemptions: (1)
5 Government Code section 6254(b) “[records pertaining to pending litigation to which a public
6 agency is a party or to claims made under the California Government Claims Act],” (2)
7 Government Code section 6254(k) “[attorney-client, attorney work-product prepared for use in
8 pending litigation or claims]” and (3) Government Code section 6255(a) “[the public interest
9 served by not disclosing these records clearly outweighs the public interest served by disclosing
10 them because the city is subject to pending and potential litigation as a defendant and as a
11 plaintiff related to the Thomas Fire].”
12

23.

On April 17, 2019, Mr. Bennett submitted a Supplemental Request (the “April 17

13 Supplemental Request”), which sought additional documents concerning fire personnel staffing.
14 A true and correct copy of the April 17 Supplemental Request is attached as Exhibit C.
15

24.

On April 17, Mr. Bennett’s attorney sent a letter to Ms. Mann demanding that the

16 City reconsider its response in the April 4 Letter and provide access to the materials requested
17 by Mr. Bennet (the “Demand Letter”). A true and correct copy of the April 17 Demand Letter is
18 attached as Exhibit D. The Demand Letter acknowledged that the City had provided access to
19 records responsive to Request No. 7 and limited records responsive to Requests No. 4 and 5.
20 The Demand Letter refuted the three exemptions listed in the April 4 Letter and asked for a
21 response from the City within two weeks of receipt. Specifically, the Demand Letter explained
22 that:
23

a.

The requested documents were created for internal management and

24 operations purposes, and not for potential litigation;
25

b.

The requested documents concern factual information related to water

26 tanks, water pressure, generators, and fire personnel, not information subject to attorney work
27 product or attorney-client privilege; and
28
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

6

 1

c.

The City had provided no adequate justification for application of the

2 “catchall” exemption found in Government Code section 6255(a).
3

25.

On April 29, 2019, Ms. Mann sent Mr. Bennett a letter (the “April 29 Letter”). A

4 true and correct copy of the April 29 Letter is attached as Exhibit E. The April 29 Letter stated
5 that “[a]n additional fourteen days, until May 13, 2019, will be needed beyond the statutory ten
6 days to respond to [the] request [and] is necessary due to ‘[t]he need to search for, collect, and
7 appropriately examine a voluminous amount of separate and distinct records that are demanded
8 in a single request.’”
9

26.

On May 9, 2019, Andy Viets, Senior Assistant City Attorney, responded to the

10 March 25 Request and April 17 Supplemental Request (the “May 9 Letter”). A true and correct
11 copy of the May 9 Letter is attached as Exhibit F. The May 9 Letter stated that “[t]he City [had]
12 completed review with respect to request Nos. 8 and 9 in the original request and, without
13 waiving any of the exemptions asserted, . . . determined it is willing to disclose the records
14 originally withheld.” With regards to request Nos. 1 through 6, however, the City claimed it
15 “require[d] initial time to review the arguments in [the Demand] letter and re-evaluate the
16 records and exemptions.”
17

27.

On May 17, 2019, Ms. Clark wrote a letter requesting a complete response to the

18 Demand Letter by May 29, 2019, giving the City a total of six weeks to respond (the “May 17
19 Letter”). A true and correct copy of the May 17 Letter is attached as Exhibit G. Ms. Clark noted
20 that the May 9 Letter did “not comply with the [CPRA] and [was] unacceptable to [her] client.”
21 Furthermore, the May 17 Letter noted the unacceptable length of time the City took to review
22 the Demand Letter, as the City was now requesting an “unspecified number of additional
23 weeks.” Mr. Bennett had informed Ms. Clark that such delay is part of a repeated practice by the
24 City to avoid responding to requests for factual information regarding the Thomas Fire.
25

28.

Finally, on June 18, 2019, Edward B. Kang, an attorney for the City, wrote a letter

26 to Ms. Clark, which states that requests Nos. 1, 2, 3, and 6 and requests Nos. 4 and 5 (documents
27 between December 4-10, 2017 only) are exempt from the same three CPRA disclosures and that
28 “the City will not be producing any records in response” for those requests (the “June 18
7
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

 1 Letter”). A true and correct copy of the June 18 Letter is attached as Exhibit H. These records
2 are referred to herein as the “Withheld Records.”
3

FIRST CAUSE OF ACTION

4

Against All Respondents

5

(California Public Records Act, Gov. Code § 6250 et seq.; CCP § 1085)

6

29.

Mr. Bennett hereby incorporates by reference each and every allegation set forth

30.

Under the CPRA, Mr. Bennett has a clear, present, and legal right to inspect, and

7 above.
8

9 the City has a present legal duty to provide promptly and without delay, public records subject
10 to disclosure.
11

31.

Mr. Bennett submitted valid requests for records under the CPRA on March 25,

12 2019 and April 17, 2019.
13

32.

The City admits that it possesses the Withheld Records.

14

33.

The City cannot demonstrate that any of the Withheld Records, or any portion of

15 those records, is exempt under the express provisions of the CPRA or any other authority, or
16 that on the facts of this particular case the public interest served by not disclosing the record
17 clearly outweighs the public interest served by disclosure.
18

34.

The Department has failed to disclose the Withheld Records, in violation of the

19 CPRA.
20

35.

As a result of the foregoing defects, Respondents prejudicially abused their

21 discretion and failed to proceed in the manner required by law by refusing to provide the
22 Withheld Documents.
23

36.

Mr. Bennet is entitled to a writ of mandate to enforce its and the public’s right to

24 obtain the Requested Records pursuant to the CPRA.
25
26
27
28
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

8

 1

SECOND CAUSE OF ACTION

2

Against All Respondents

3

(Article 1, Section 3(b) of the California Constitution; CCP § 1085)

4

37.

Mr. Bennett hereby incorporates by reference each and every allegation set forth

38.

Article 1, Section 3(b) of the California Constitution enshrines the public’s right to

5 above.
6

7 access to information about how the government is conducting the people’s business.
8

39.

This constitutional provision requires that any statute or court rule must be broadly

9 construed if it furthers the public’s right of access and narrowly construed if it limits the right of
10 access.
11

40.

The Requested Records are clearly included within these constitutional mandates

12 regarding the public’s right of access. The City has a present legal duty to provide the Withheld
13 Documents.
14

41.

As a result of the foregoing defects, Respondents prejudicially abused their

15 discretion and failed to proceed in the manner required by law by refusing to provide the
16 Withheld Documents.
17

42.

Mr. Bennet is entitled to a writ of mandate to enforce its and the public’s right to

18 obtain the Requested Records pursuant to the California Constitution.
PRAYER FOR RELIEF

19
20

WHEREFORE, Petitioner prays for judgment as follows:

21

1.

That the Court issue a peremptory writ of mandate directing the City to provide

22 Mr. Bennett with all of the Requested Records within ten (10) days of the Court’s order
23 directing the City to do so;
24

2.

For a declaration pursuant to Government Code section 6259 that the Department

25 has violated Mr. Bennett’s rights under the California Constitution, Article 1, section 3, and
26 Government Code sections 6250 et seq.;
27

3.

For costs of the suit;

28
VERIFIED PETITION FOR WRIT OF MANDATE
Case No.

9

 I
2

4.

For attorneys' fees under Government Code section 6259, Code of Civil Procedure

section 1021.5, and other applicable authority; and

J

5.

4

DATED: August

For such other and further relief as the Court deems just and proper.

2,2019

SHUTE, MIHALY & WEINBERGER LLP

5

6

By:
SARA A. CLARK

7
8

Attorneys for Petitioner Stephen Bennett

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VERIFIED PETITION FOR WzuT OF MANDATE
Case No.

  

 




 

 

VERIFICATION

1, Stephen Bennett, declare as follows:

I am Petitioner in this action. I have read the foregoing Petition for Writ of Mandate and
am familiar with its contents. All facts alleged in the above Petition, and not otherwise
supported by exhibits or other documents, are true of my own knowledge, except to matters
stated on information and belief, and as to those matters, I believe them to be true.

I declare under penalty of perjury that the above is true and correct.

Executed thi53_o day of July, 2019, in 70 4'29 California.

 

Stephen Bennett

1 142025 3

1 1
VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE
Case No.

 

EXHIBIT A

Public Records Request per the Public Records Act
March 25, 2019
From: Steve Bennett stephenbennett@charter.net cell phone 805 850 5663
To: Ventura City Manager Alex McIntyre,
Dear Mr. McIntyre, Please redirect this to the appropriate persons and or departments.
Please provide copies of any and all public records including emails of the City of San Buenaventura
including but not limited to the City of Ventura’s Water Department and Fire Department as listed
below.
1. All records of water levels in each of the water tanks above Poli Street or Foothill Road starting
on December 1, 2017 and through December 6, 2017.
2. Any and all records of when various water tanks referenced in #1 above lost the ability to
provide minimum fire flows to hydrants.
3. Emails or communication indicating what time water pressure dropped at any city fire hydrant
that caused fire trucks to leave that hydrant connection on December 4, or December 5 of 2017.
4. All records of generators purchased or rented, to provide backup power to the water system in
the event of a power failure, from January 1, 2000 through December 10th, 2017 including the
date of purchase or rental.
5. All records of locations of those generators starting on December 1, 2017 and through
December 11, 2017.
6. All records of movements of the generators listed in items #4 and #5 above on December 4, or
December 5 of 2017.
7. All records, with names redacted, of fire personnel, with rank, on duty as of 6:00 PM
December4, 2017.
8. All records, with names redacted, of fire personnel, with rank, placed on the payroll to
supplement normal staffing from 6:00 PM December 4, 2017 through 11:59 P.M. December 4.
2017, including the time their service began that date.
9. All records, with names redacted, of fire personnel, with rank, placed on the payroll to
supplement normal staffing starting at 12:00 AM December 5, 2017 through 6:00 AM. December
5, 2017, including the time their service began that date.

 EXHIBIT 

CITY OF

VENTURA

CITY CLERK
April 4 2019 

 

 

Steve Bennett
stephenbennett@charter.net

Re: Public Records Act Request - March 25, 2019
Dear Mr. Bennett:

The following is in response to your March 25, 2019 Public Records Act requests, based
on the numbering system in your letter:

NosThese records are exempt from disclosure pursuant to (1) Government Code ?6254(b)
[records pertaining to pending litigation to which a public agency is a party or to claims
made under the California Government Claims Act], (2) Government Code ?6254(k)
[attorney-client privileged communications and attorney work product prepared for use in
pending litigation or claims], and (3) Government Code ?6255(a) [the public interest
served by not disclosing these records clearly outweighs the public interest served by
disclosing them because the City is subject to pending and potential litigation as a
defendant and as a plaintiff related to the Thomas Fire]. The City will therefore not be
producing these records. This decision was made by the undersigned in conjunction with
the Office of the City Attorney.

Nos. 4 and 5:

The records in response to these requests involving information prior to December 4,
2017 are available in the City Clerk?s Office for your inspection.

The records in response to these requests involving information between December 4,
2017 and December 10, 2017 are exempt from disclosure pursuant to (1) Government
Code ?6254(b) [records pertaining to pending litigation to which a public agency is a party
or to claims made under the California Government Claims Act], (2) Government Code
?6254(k) [attorney-client privileged communications and attorney work product prepared
for use in pending litigation or claims], and (3) Government Code ?6255(a) [the public
interest served by not disclosing these records clearly outweighs the public interest
served by disclosing them because the City is subject to pending and potential litigation
as a defendant and as a plaintiff related to the Thomas Fire]. The City will therefore not
be producing these records. This decision was made by the undersigned in conjunction
with the Office of the City Attorney.

Mr. Bennett
April 4, 2019
Page 2

No. 7:

 

The records in response to this request are available in the City Clerk?s Office for your
inspec?on.

For the records that are noted as available, please contact the City Clerk's Office at 805-
658-4787 to schedule a time to inspect the materials. If you decide you want copies of
the records, the required payment is $.15 per page. Thank you for your attention to the
above.

If you have any questions, please do not hesitate to contact me at (805) 658-4745 or
amann@citvofventura.ca.qov

Sincerely,



Antoinette M. Mann
City Clerk

cc: City Attorney, Ventura Water, Fire Department, Public Works

EXHIBIT 

Public Records Request per the Public Records Act

April 17, 2019
From: Steve Bennett stephenbennett@charter.net cell phone 805 850 5663
To: Ventura City Clerk Antoinette Mann and Ventura City Manager Alex McIntyre,
Dear Ms. Mann and Mr. McIntyre,
Please provide copies of any and all public records including emails of the City of San Buenaventura
including but not limited to the City of Ventura’s Water Department and Fire Department as listed
below.
1. All payroll and other records, of fire department personnel showing when their service time
began and ended on the days of December 4, 2017, December 5, 2017, December 6, 2017 and
December 7, 2017.
1146788.1

 EXHIBIT 

396 HAYES STREET, SAN FRANCISCO, CA 94102

SARA A. CLARK

T: (415) 552-7272 F: (415) 552-5816

Attorney

www.smwlaw.com

Clark@smwlaw.com

April 17, 2019
Via E-Mail and U.S. Mail
Antoinette M. Mann
City Clerk
City of Ventura
501 Poli Street, Room 204
Ventura, CA 93002
E-Mail: amann@cityofventura.ca.gov
Re:

Public Records Act Request – March 25, 2019

Dear Ms. Mann:
I write in response to your April 4, 2019 letter directed to my client Steve
Bennett concerning his Public Record Act request to the City of Ventura. For the reasons
outlined below, your response does not comply with either the letter or the spirit of the
Public Records Act. For this reason, I urge the City to reconsider its response and provide
access to the materials requested by Mr. Bennett. If the City continues to refuse to
comply with the Public Records Act, however, we are prepared to seek a court order
directing your compliance.
Mr. Bennett initially requested documents related to the 2017 Thomas Fire,
as shown in Exhibit A. His requests were detailed and specific, and sought existing
records and communications related to water tanks, water hydrants, generators, and
supplemental fire personnel. In response, the City refused to provide access to the vast
majority of such records, claiming application of three exemptions. 1 None of these
exemptions, however, are applicable to Mr. Bennett’s requests.

1

Mr. Bennett acknowledges that the City has provided access to records responsive to
Request No. 7 and limited records responsive to Requests Nos. 4 and 5.

 City of Ventura
April 17, 2019
Page 2
Pending Litigation Exemption
The City first relies on Government Code section 6254(b), which exempts
from disclosure “[r]ecords pertaining to pending litigation to which the public agency is a
party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until
the pending litigation or claim has been finally adjudicated or otherwise settled.”
While the language in subsection (b) may suggest a broad application of
this exemption, the Courts of Appeal have “given it a more restricted reading.” County of
Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 64. Specifically, “[a]
document is protected from disclosure under the pending litigation exemption only if the
document was specifically prepared for use in litigation.” Id. (emphasis in original). This
construction focuses “on the purpose of the document” and serves to protect only those
documents “created by a public agency for its own use in anticipation of litigation.”
Board of Trustees v. Sup. Ct. (2005) 132 Cal.App.4th 889, 897.
As a result of this more limited interpretation, there are a number of
significant problems with respect to the City’s application of the pending litigation
exemption to the requested documents. First, none of Mr. Bennett’s requests seek records
or communications that would have been “specifically prepared for use in litigation.” Id.
He seeks standard tracking documents and records concerning water tanks, water
pressure, generators, and fire personnel. The City likely created or maintained such
documents for internal management and operations purposes, not for potential litigation.
Second, even if such documents may ultimately be relevant to Thomas Fire
litigation, such “dual purpose” documents are still subject to disclosure. Specifically, to
the extent a document may be prepared for dual purposes, it is only exempt under the
pending litigation exemption if the litigation use was the “dominant purpose” behind its
creation. Id. at 65. Again, the records requested by Mr. Bennett are not likely to be
documents created specifically for litigation, but for general City operations.
Finally, the City faces a significant timing problem. According to our
research, the earliest complaints related to the Thomas Fire were not filed until December
13, 2017; the City may not have been served until after this time. 2 Records created
between December 4th and 11th could not have been “specifically prepared for use in
litigation,” as no litigation was pending at that time. Even if the City could have
2

See, e.g., https://www.usatoday.com/story/news/nation-now/2018/01/04/lawsuitsallege-southern-california-edison-negligently-started-thomas-fire/1005879001/ (lawsuits
filed December 13, December 15 and December 22, 2017).

 City of Ventura
April 17, 2019
Page 3
reasonably anticipated that it would soon become a plaintiff and/or defendant in Thomas
Fire litigation, the chance that the requested records were specifically prepared for such
anticipated litigation, as opposed to standard tracking or management tasks, is remote or
non-existent.
The City draws a distinction between records concerning the purchase,
rental, and location of generators dated prior to December 4, 2017 (“pre-fire generator
records”) and those records dated between December 4, 2017 and December 10, 2017
(“during-fire generator records”). 3 But this distinction is without a difference. The
during-fire generator records sought by Mr. Bennett were not “specifically prepared for
use in litigation,” but are records of City operations. While we acknowledge that these
documents may now be relevant to Thomas Fire litigation, the City “cannot take records
which were not exempted in their genesis and transform them into exempt ‘litigation’
documents simply because they later become relevant to a lawsuit.” City of Los Angeles
v. Superior Court (Axelrad) (2000) 82 Cal.App.4th 819, 831.
Attorney-Client Privilege Exemption
The City next relies on Government Code section 6254(k), which exempts
from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to
federal or state law, including, but not limited to, provisions of the Evidence Code
relating to privilege.” This subsection has been interpreted to encompass documents
subject to attorney-client privilege and attorney work product privilege, as referenced in
your response letter. Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1420-22.
Attorney-client privilege confers a privilege on the client “to refuse to
disclose, and to prevent another from disclosing, a confidential communication between
client and lawyer.” Evid. Code § 954. Consequently, an agency may refuse to disclose
confidential communications with an agency lawyer concerning his or her legal opinions
and advice. Los Angeles County Bd. of Supervisors v. Sup. Court (2016) 2 Cal.5th 282,
292-93. Likewise, the attorney work product rule “creates for the attorney a qualified
privilege against discovery of general work product and an absolute privilege against
disclosure of writings containing the attorney’s impressions, conclusions, opinions, or
legal theories.” Axelrad, 82 Cal.App.4th at 833. This rule therefore exempts from
disclosure documents and other records drafted by an attorney or containing his or her
opinions or conclusions.

3

The Thomas Fire began on December 4, 2017 and was not extinguished until January
12, 2018. See https://en.wikipedia.org/wiki/Thomas_Fire.

 City of Ventura
April 17, 2019
Page 4
None of the records requested by Mr. Bennett obviously relate to attorney
work product or attorney-client communication. As discussed above, the requested
records concern factual information related to water tanks, water pressure, generators,
and fire personnel. While we acknowledge that attorney materials analyzing these factual
matters or their implication for City liability could be protected based on Government
Code section 6254(k), the underlying factual records are decidedly not. E.g., State Farm
Fire & Casualty Co. v. Sup. Ct. (1997) 54 Cal.App.4th 625, 640 (attorney-client privilege
“does not protect disclosure of underlying facts which may be referenced within a
qualifying communication”).
The City again draws an irrelevant distinction between pre-fire generator
records and during fire generator records. Facts do not become privileged simply because
they may be communicated to or relied on by an attorney in assessing litigation risk.
Public Interest Exemption
Finally, the City relies on the “catchall” exemption found in Government
Code section 6255(a), which allows a public agency to withhold a record by
demonstrating that “on the facts of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest served by disclosure of the
record.”
The courts have repeatedly held that this catchall exemption must be
construed against the presumption of disclosure enshrined in the state’s constitution. “The
people have a 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. I, § 3(b)(1). To support this right, the Public Records
Act must 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. I, § 3(b)(2). Consequently, an
agency is entitled to rely on the catchall exemption only if it can “demonstrate a clear
overbalance” in favor of nondisclosure. Los Angeles County Bd. of Supervisors v. Sup.
Ct. (2016) 2 Cal.5th 282, 291.
The City’s letter provides no adequate justification for the application of
the public interest exception. The only reason provided is that the “City is subject to
pending and potential litigation as a defendant and as a plaintiff related to the Thomas
Fire.” However, an agency’s own interest in concealing factual information that may be
relevant to ongoing litigation is not adequate to outweigh the public interest in
understanding mechanisms to better protect city residents in future catastrophic fires. See
California Attorney General’s Office, Summary of the California Public Records Act

 City of Ventura
April 17, 2019
Page 5
(2004), at 11 (“A particular agency’s interest in nondisclosure is of little consequence in
performing this balancing test; it is the public’s interest, not the agency’s that is
weighed.”); League of California Cities, The People’s Business, A Guide to the
California Public Records Act (April 2017), at 54 (“Agency interests . . . that are not also
public interests are not considered.” (citing Coronado Police Officers Assn. v. Carroll
(2003) 106 Cal.App.4th 1001, 1015-16)). The City has identified no public interest that
would be served by keeping these records confidential; indeed, we can identify none.
Supplemental April 17, 2019 Request
On April 17, 2019, Mr. Bennet submitted a supplemental request to the
City of Ventura. To the extent the City intends to apply any of the cited exemptions to the
supplemental request, I reiterate the points raised above. The newly requested documents
are not subject to the pending litigation or the catchall exemption, nor are they protected
as attorney-client communications or work product. Instead, the requested records are
created and kept in the course of ordinary business for human resources and operations
purposes.
Conclusion
According to the California Courts of Appeal, exemptions under the Public
Records Act “are to be narrowly construed [], and the government agency opposing
disclosure bears the burden of proving that one or more apply in a particular case.”
County of Los Angeles v. Sup. Ct. (2012) 211 Cal.App.4th 57, 63; County of Los Angeles
v. Sup. Ct. (2000) 82 Cal.App.4th 819, 825. The City has not met its burden here. We
urge you to reconsider you position and to release the documents to Mr. Bennett as soon
as possible.
To the extent the City continues to refuse to provide the requested records,
we request that you prepare a privilege log to assist us it better understanding the scope of
the responsive documents and the application of the cited exemptions. Such
documentation may help us avoid lengthy and expensive litigation. However, to the
extent the City refuses to provide an adequate explanation regarding the requested
records, we are prepared to seek relief in superior court.
We ask for a response from the City within two weeks of receipt. If you
have any questions, please do not hesitate to contact me.

 City of Ventura
April 17, 2019
Page 6
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP

Sara A. Clark
cc: Gregory Diaz, City Attorney (via email only to: cityattorney@cityofventura.ca.gov)
Steve Bennett (via email only to: stephenbennett@charter.net)

 EXHIBIT 

April 29, 2019

Steve Bennett
stephenbennett@charter.net
Re:

Public Records Act Request – April 17, 2019

Dear Mr. Bennett:
As a preliminary matter, the California Public Records Act authorizes members of the
general public the right to inspect and receive copies of existing records which have been
reasonably identified by the requestor and are not otherwise exempt from disclosure.
These records may be viewed during normal business hours at no cost. In addition, the
CPRA does not require the City to create new documents or lists for your convenience.
We have received your California Public Records Act request dated April 17, 2019. An
additional fourteen days, until May 13, 2019, will be needed beyond the statutory ten days
to respond to your request. See Cal. Gov’t Code §6253(c). The additional fourteen days
is necessary due to:
The need to search for, collect, and appropriately examine a voluminous amount
of separate and distinct records that are demanded in a single request.
Sincerely,

Antoinette Mann
Antoinette M. Mann
City Clerk
cc: Sara Clark (clark@smwlaw.com) City Attorney’s Office,

 EXHIBIT 

CITY OF

 

 

 

VENTURA

CITY ATTORNEY

 

May 9, 2019

Sara A. Clark
Clark@smwlaw.com

CC: Mr. Steve Bennett
stephenbennett@charter.net

Re: Public Records Act Request March 25, 2019)
Dear Ms. Clark:

The City has received your letter dated April 17, 2019 regarding your client?s
Public Records Act request dated March 25, 2019, and Supplemental Request
submitted April 17, 2019. My colleague Miles Hogan has spoken briefly with you twice
regarding your letter first, confirming that correspondence regarding this matter should
be sent to you with a copy to your client, and second, informing you that your letter was
under consideration and that the City needed an additional two weeks to consider and
respond. In addition, the City Clerk?s Office sent a letter to you and your client on April
29, 2019, extending the time for the City to respond to your client?s Supplemental
Request by two weeks.

Upon receipt of your letter, the City began a process of reviewing the arguments
therein and re-evaluating the records withheld under the applicable exemptions under
the California Public Records Act. The City has completed that review with respect to
request Nos. 8 and 9 in the original request and, without waiving any of the exemptions
asserted, the City has determined it is willing to disclose the records originally withheld.
Those documents are attached to this letter. Those documents also address your
client?s Supplemental Request and the City?s response to that request is now complete.

For the remaining records withheld under original request Nos. 1 through 6, the
City requires additional time to review the arguments in your letter and re?evaluate the
records and exemptions. At this time, we anticipate completing that process in the next
couple of weeks.

Thank you for your attention to the above. If you have any questions, please do
not hesitate to contact me.

Sincerel

  

 

   

Andy Viets
Senior Assistant City Attorney

 

SOI Poll Street Room 2l3 Ventura, California 9300! - 805?654?78l8 - Fax 805?64l?0253 

 

 

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EXHIBIT 

396 HAYES STREET, SAN FRANCISCO, CA 94102

SARA A. CLARK

T: (415) 552-7272 F: (415) 552-5816

Attorney

www.smwlaw.com

Clark@smwlaw.com

May 17, 2019
Via E-Mail and U.S. Mail
Andy Vets
Senior Assistant City Attorney
501 Poli Street, Room 213
Ventura, CA 93001
Re:

Public Records Act (S. Bennett - March 25, 2019)

Dear Mr. Vets:
I write in response to your letter dated May 9, 2019, regarding my client’s March
25, 2019 Public Records Act request. In that letter, you state that the City anticipates
completing the process of reviewing the arguments in my April 17th letter and reevaluating the records and exemption “in the next couple of weeks.” This response does
not comply with the California Public Records Act and is unacceptable to my client.
Under Government Code section 6253(c), the City was required to respond to the
initial request within 10 days. While Mr. Bennett received a responsive letter within that
time, the City cited exemptions that were facially inapplicable to the requested records.
On his behalf, I responded to the City within two weeks demanding the requested
documents.
Your office has already taken three additional weeks to review my April 17th
letter. You now request an unspecified number of additional weeks. I understand from
my client that such delay is part of a repeated practice by the City to avoid responding to
requests for factual information regarding the Thomas Fire. Such efforts do not comply
with the PRA, which states that “[n]othing in [the law] shall be construed to permit an
agency to delay or obstruct the inspection or copying of public records.” Gov. Code §
6253(d).
I request a complete response to my April 17th letter by Wednesday, May 29,
2019. This request provides the City with a total of six week to respond to a straight-

 Andy Vets
May 17, 2019
Page 2
forward request for factual documents. If we do not receive a complete response by this
time, we will evaluate our legal options.
Please let me know if you have any questions.
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP

Sara A. Clark
cc: Stephen Bennett (via email only: stephenbennett@charter.net)
1120159.1

 EXHIBIT 

June 18, 2019

BY EMAIL
Email: Clark@smwlaw.com
Sara A. Clark
Shute Mihaly & Weinberger, LLP
396 Hayes Street
San Francisco, CA 94102
Re:

Public Records Act Request – March 25, 2019 (Steve Bennett)

Dear Ms. Clark:
This office represents the City of San Buenaventura (“City”). I am writing to follow up
on the City’s May 9, 2019 letter to you regarding your client’s Public Records Act (“PRA”)
request dated March 25, 2019. Please be advised that with respect to request Nos. 1-6, the City
re-asserts the exemptions asserted in the City’s April 4, 2019 letter to your client.
Specifically, with respect to request Nos. 1, 2, 3 and 6 and requests Nos. 4 and 5
(documents between December 4-10, 2017 only), the records sought are exempt from disclosure
pursuant to: (1) Government Code § 6254(b) [records pertaining to pending litigation to which a
public agency is a party or to claims made under the California Government Claims Act], (2)
Government Code § 6254(k) [attorney-client, attorney work-product prepared for use in pending
litigation or claims] and (3) Government Code § 6255(a) [the public interest served by not
disclosing these records clearly outweighs the public interest served by disclosing them because
the city is subject to pending and potential litigation as a defendant and as a plaintiff related to
the Thomas Fire.] Accordingly, the City will not be producing any records in response to the
foregoing requests.
Additionally, it is my understanding that your client has requested that the City pay a
portion of his attorneys’ fees in connection with this matter. The City declines your client’s
request.
Very truly yours,

Edward B. Kang
cc by email:

Andy H. Viets, Senior Assistant City Attorney
Jonathan Fiske
Thomas M. Madruga