Intervenors Get Fees

Carlsbad Police Officers Assoc. v. City of Carlsbad, No. D075723 *D4d1 (May 18, 2020)

This is a “reverse public records act” lawsuit brought by some cop unions to prevent the disclosure of excessive force complaints, which are now subject to disclosure under a law passed in 2018. The ACLU and several media outlets sought to intervene. The trial court granted intervention, but conditioned it on the intervenors disclaiming any right to obtain fees under Code of Civil Procedure § 1021.5, which codifies the private attorney general doctrine. Ultimately the court agreed with intervenors’ position that the law required disclosure of the records. Intervenors then appealed the condition.

Under § 387(d)(1)(B), the intervenors were entitled to intervene as a matter of right. They had previously filed PRA requests to obtain the disputed documents, had the cops prevailed, intervenors’ ability to obtain the documents would have been impaired, and the real defendants in the case—various police departments—were essentially agnostic to the merits of the cops’ case. As the Court of Appeal explains, that didn’t necessarily preclude the court from subjecting the intervenors to appropriate conditions to ensure the efficiency of the litigation. But because intervenors of right have an interest in the controversy equivalent to that of a party, courts have less leeway to impose conditions than they do for permissive intervenors. Generally conditions on as of right intervenors are limited to “housekeeping” conditions aimed to prevent duplicative litigation.

The Court of Appeal holds that the trial court abused its discretion in imposing the condition. Indeed, “the analysis here is not close.” It is settled law that a successful intervenor in a reverse PRA case is entitled to a fee award under § 1021.5. Forcing the intervenors here to give that up impaired their substantive rights and ran contrary to the public policy justification for § 1021.5. The trial court went too far.

Reversed.

You Need Not Intervene Till You Expect You Were Sold Out

Ziani Homeowners Assoc. v. Brookfield Ziani LLC, No. G050284 (D4d3 Dec. 22, 2015)
 
Some condo owners sought to intervene in a construction defect litigation between their HOA and the condo developer. The trial court denied their motion as untimely because two years had passed since the complaint was filed. But even if its not clearly spelled out in the California case law (till now) that’s not the standard. California’s intervention statute, Code of Civil Procedure § 387 was somewhat modeled on Federal Rule of Civil Procedure 24. So the court relies on a body of analogous—and more of less uniform—federal authority to say that the intervention clock shouldn’t start running until interveners know or at least should have known that their interests weren’t being adequately represented by the current parties. Because the trial court incorrectly decided that the clock started ticking on the date of filing, the court reversed and remanded for timeliness findings based on the correct standard.

Reversed and remanded.