You can get documents in a Public Records Act, enforced via civil action, but you can’t use a discovery order

Tim Kowal October 17, 2023

After the County of San Benito dragged its feet in responding to a natural resources group’s Public Records Act request about the controversial Strada Verde Project, the group sued for a writ of mandate to enforce their right to transparency. They did have that right, but the court in San Benito v. Superior Court (D6 Oct. 10, 2023) No. H050285 held they pushed it too far when they tried to get the exact same documents that were the subject of the lawsuit via pretrial discovery.

True, the court noted, an expeditious resolution of Public Records Act requests is a matter of significant public importance. “But we reject their premise that strategic resort to the Civil Discovery Act is a permissible shortcut to realizing [petitioner’s] prayer for relief.”

What about the county’s foot-dragging? “The trial court was entitled to be unimpressed by the County's continuing failure to specify a meaningful schedule for compliance.” But the remedy is not a motion to compel, but rather “to orderly adjudicate the merits of the County's claimed inability to comply more expeditiously.”

But the court emphasizes that its holding is narrow: litigants in Public Records Act enforcement actions can still get discovery undisputedly non-exempt documents.

Takeaway

You almost never see the Court of Appeal get interested in a discovery issue. But here, the entire lawsuit over a Public Records Act request was about discovery. So this was an unusual case where a discovery ruling effectively would have ended the case.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

You can get documents in a Public Records Act, enforced via civil action, but you can’t use a discovery order

Takeaway

Related Posts:

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers." — H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187