Best v. County of San Diego CA4/1 ( 2022 )

Filed 1/5/22 Best v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TERRIE BEST, D078522
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00026542-CU-MC-CTL)
COUNTY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Motion to dismiss denied; judgment affirmed.
Briggs Law Corporation, Cory J. Briggs and Nora Pasin for Plaintiff
and Appellant.
Joshua M. Heinlein, Senior Deputy County Counsel for Defendants and
Respondents.
Plaintiff Terrie Best (Appellant) made a request to the Office of the San
Diego County District Attorney (SDCDA) under the California Public Records
Act (CPRA; Gov. Code, § 6250 et seq.; subsequent undesignated statutory
references are to this code) for records relating to public business between
former San Diego County District Attorney Bonnie Dumanis and six
identified groups. Dissatisfied with the documents produced and the
SDCDA’s inability to produce additional documents following questions and a
second request, Appellant filed the underlying action.
The operative complaint is a verified second amended complaint for
declaratory and injunctive relief and petition for writ of mandate (Complaint)
against the SDCDA, the County of San Diego (County), and Dumanis
(together, Respondents). In the Complaint, Appellant alleges causes of action
for a “Violation of Open-Government Laws,” for a “Violation of Record-
Retention and Record-Destruction Laws,” and for declaratory relief. (Bolding
omitted.) Following briefing and a hearing, the trial court denied Appellant
all relief under the Complaint, and approximately 10 days later the court
filed a judgment, denying the writ petition and entering judgment in favor of
Respondents.
On appeal, Appellant challenges the trial court’s denial of relief on her
claim that, with regard to the SDCDA’s retention and/or destruction of public
records, Respondents have not complied with section 26202—pursuant to
which, according to Appellant, the SDCDA was required to retain such
records for at least two years. Procedurally, Respondents contend that the
appeal must be dismissed, because, based on section 6259, subdivision (c),
appellate review is limited to a timely-filed writ petition, which Appellant has
not pursued. Substantively, Respondents contend that the judgment must be
affirmed on two independent bases: (1) under section 6200, there is no
private right of action for an allegedly unlawful failure to retain records; and
(2) section 26205.1, not section 26202, applies to and controls the SDCDA’s
destruction of nonjudicial public records—and that, in adopting and following
2
a resolution of the County Board of Supervisors, Respondents are compliant
with the CPRA.
As we explain, although section 6259, subdivision (c) precludes
appellate review of the denial of writ relief in this case, Appellant does not
seek appellate review of that portion of the judgment. As we further explain,
section 6200 does not preclude the private right of action asserted by
Appellant. As we finally explain, Appellant did not meet her burden of
establishing that the trial court erred in denying relief on Appellant’s claim
that the SDCDA’s record retention policies violate section 26202.
Accordingly, Respondents’ motion to dismiss the appeal is denied as moot,
Appellant may proceed with her appeal, and we affirm the judgment.
I. INTRODUCTION
Enacted in 1968, the CPRA grants access to public records held by state
and local agencies. (§ 6250 et seq.) The purpose of the CPRA is to “increas[e]
freedom of information by giving members of the public access to records in
the possession of state and local agencies.” (Los Angeles County Bd. of
Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290.) In adopting the
CPRA, the Legislature 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.” (§ 6250.) Since 2004, the California Constitution
has reflected this principle: “The people have 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. I, § 3, subd. (b)(1).) To this end, the CPRA
establishes a basic rule requiring, and a procedure for ensuring, prompt
disclosure of public records upon request. (§ 6253.) “In general, [the CPRA]
creates ‘a presumptive right of access to any record created or maintained by
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a public agency that relates in any way to the business of the public agency.’ ”
(City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616 (City of San
Jose), italics omitted.)
The present appeal involves section 26202, which gives the County’s
Board of Supervisors authorization to destroy certain records “more than two
years old” that might otherwise be responsive to a CPRA request. In
particular, Appellant contends that the two-year retention required under
section 26202 is “absolute,” and that the SDCDA’s policies and practices with
regard to the retention and/or destruction of certain electronic public records
violate section 26202. In response, Respondents contend that
section 26205.1, not section 26202, controls the SDCDA’s policies and
practices regarding document destruction. We will set forth and discuss
these statutes at part III.C., post.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Appellant’s CPRA Requests and the SDCDA’s Responses
In January 2018, approximately six months after Dumanis resigned
from her position as the District Attorney of San Diego County, Appellant
submitted a CPRA request to the SDCDA, requesting communications
relating to public business from Dumanis to six different groups of people
involved in San Diego politics.1 The SDCDA denied Appellant’s initial
1 While not relevant to any issues on appeal, Appellant’s request was for
communications from Dumanis to: (1) “All members of the San Diego County
Board of Supervisors and members of their staff”; (2) “The Mayor of San
Diego and members of the mayor’s staff”; (3) “Members of the City Council of
San Diego and their staff”; (4) “Any member of the California State
Legislature representing any portion of San Diego County and their staff”;
(5) “Any employee or agent of the San Diego County Republican Party”; and
(6) “Any employee or agent of the Lincoln Club of San Diego County.”
4
request, explaining its reasons and suggesting how she might submit an
acceptable request.
Appellant revised her CPRA request in a second submission to the
SDCDA. In response, the SDCDA conducted what it described as “a
reasonable search for records based on [Appellant’s] narrowed request,” and
it identified and offered to produce “four disclosable hard-copy records.” The
SDCDA confirmed that the four records “are all the records that are
responsive to [Appellant’s] narrowed request” and that the SDCDA “did not
withhold any documents.”
Days later, Appellant submitted two additional questions and a follow-
up CPRA request to the SDCDA.2 The SDCDA responded by explaining that
it had “conducted a reasonable search for records based on [Appellant’s]
follow-up request, and no records were identified.”
B. Appellant’s Lawsuit Against Respondents
Dissatisfied with the SDCDA’s responses to her CPRA requests,
Appellant filed the underlying action against Respondents. The operative
complaint, which followed two demurrers and discovery, is Appellant’s second
amended verified complaint (previously identified as the Complaint). In the
Complaint, Appellant, in her capacity as a San Diego taxpayer, named the
SDCDA as a department of the County (each as “a ‘local agency’ ” under the
2 The questions concerned: (1) Whether, in responding to Appellant’s
narrowed request, the SDCDA contacted Dumanis for records in her
possession; and (2) whether, prior to her resignation, Dumanis provided the
SDCDA with copies of public records that existed in her private accounts
(e.g., e-mail) or private electronic devices (e.g., mobile phone or tablet). The
follow-up request was for copies of public records that Dumanis provided the
SDCDA from her private accounts or private electronic devices.
5
CPRA) and Dumanis as “the head of” the SDCDA at the times relevant to her
request and, thus, what Appellant considered “an indispensable party.”
Alleging that Respondents violated the CPRA in various ways,
Appellant asserted three causes of action. In the first cause of action,
Appellant alleged that Respondents violated “open-government laws” (initial
capitalization and bolding omitted), by “fail[ing] to produce all public records
responsive to [Appellant’s] request and/or fail[ing] to retain documents as
required by law.” In the second cause of action, Appellant alleged that
Respondents violated “record-retention and record-destruction laws” (initial
capitalization and bolding omitted), by having “policies [that] represent a
pattern and practice of violating the applicable legal authorities governing
the retention and destruction of public records and other information.” In the
third cause of action, Appellant sought declaratory relief as to whether the
SDCDA’s responses to Appellant’s requests complied with various laws,
including the CPRA.
In the prayer of the Complaint, Appellant sought different relief in each
of the three causes of action. For the first cause of action, Appellant prayed
for: (1) a judgment declaring that, in responding to Appellant’s CPRA
requests, Respondents did not comply with various laws, including the CPRA;
(2) a writ of mandate ordering Respondents to comply with various laws,
including the CPRA; and (3) injunctive relief directing Respondents to fully
respond to Appellant’s requests and to permit inspection and copying of
responsive records. For the second cause of action, Appellant prayed for:
(1) a declaration that Respondents have not complied with “all applicable
laws governing the retention and/or destruction of public records and other
information”; (2) a writ of mandate ordering Respondents to comply with
such laws; and (3) injunctive relief directing Respondents “to refrain from any
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further acts or omissions” that are not in conformance with such laws. For
the third cause of action, Appellant prayed for: (1) a declaration that
Respondents’ responses to Appellant’s CPRA requests failed to comply with
various laws, including the CPRA; and (2) injunctive relief directing
Respondents to respond to, and permit inspection and copying of documents
responsive to, Appellant’s CPRA requests.
Following discovery, the parties submitted briefs, declarations, and
exhibits; and the court held a hearing.3 The court issued a minute order
denying all relief. As applicable to the second cause of action in the
Complaint, the court concluded that Appellant did not meet her burden of
establishing that the SDCDA was “out of compliance with the law requiring
the retention of official records.” More specifically, the court ruled that,
based on Appellant’s contention that “the two-year rule [in section 26202] is
absolute[,] . . . [Appellant] has failed to meet her burden of establishing that
the absolute rule of section 26202 applies to [the] SDCDA.”
The court later entered a judgment in favor of Respondents and against
Appellant. Appellant timely appealed from the judgment.
III. DISCUSSION
Before reaching the merits, we must first discuss Respondents’ motion
to dismiss the appeal and Respondents’ alternative argument that there is no
3 Appellant submitted declarations from herself and her attorney,
11 exhibits, and a reply declaration from her attorney. Respondents
submitted declarations from two current SDCDA employees, Dumanis, and
Respondents’ attorney.
Appellant has not provided a reporter’s transcript of the proceedings.
The clerk’s minutes indicate that the proceedings were a “Motion Hearing
(Civil).” Respondents refer to the proceedings as “a hearing on the merits of
the [Complaint]”; Appellant refers to the proceedings as a “trial.”
7
private right of action for the claim in the second cause of action that the
SDCDA’s document retention policies unlawfully allow for the destruction of
public records. In these regards, as we explain, Respondents’ motion is moot
and will be denied; and, for purposes of the second cause of action, Appellant
has standing to assert a private right of action under Code of Civil Procedure
section 526a. Proceeding to merits, as we explain, Appellant did not meet her
burden of establishing that the trial court erred in ruling that she “did not
meet her burden of establishing that the absolute rule of Government Code
Section 26202 applies to the SDCDA[’s]” record retention and/or destruction
policy.4
A. Respondents’ Motion to Dismiss is Denied
Respondents move to dismiss the appeal on the basis that section 6259,
subdivision (c) limits appellate review of the trial court’s rulings here to a
petition for an extraordinary writ that is filed within 20 days of notice of the
rulings. We disagree; as we explain, section 6259 does not apply to
Appellant’s appeal.
We begin with the understanding that “an order of the court [under the
CPRA], either directing disclosure by a public official or supporting the
decision of the public official refusing disclosure, is not a final judgment or
order within the meaning of Section 904.1 of the Code of Civil Procedure from
which an appeal may be taken, but shall be immediately reviewable by
petition to the appellate court for the issuance of an extraordinary writ.”
(§ 6259, subd. (c), italics added.) Any such petition must be filed “within
4 With regard to public records, Appellant does not distinguish between
what she characterizes as the SDCDA’s “retention” policy and the SDCDA’s
“destruction” policy. Nor shall we.
8
20 days after service upon the party of a written notice of entry of the order,
or within such further time not exceeding an additional 20 days as the trial
court may for good cause allow.” (Ibid.) This writ procedure is “the sole and
exclusive means to challenge the trial court’s ruling” directing or refusing
disclosure. (MinCal Consumer Law Group v. Carlsbad Police Dept. (2013)
214 Cal.App.4th 259, 264 (MinCal).)
In opposition to Respondents’ motion, Appellant expressly tells us that
she is not challenging the trial court’s ruling denying her (first) claim that
the SDCDA did not disclose all public records responsive to her requests.
Instead, she explains that she has specifically limited her appeal to review of
the trial court’s ruling that denied her claim in the second cause of action
“that the SDCDA’s pattern and practice of prematurely destroying official
records by scrubbing the memory of electronic devices assigned to employees
upon termination of their employment violates Government Code
Section 26202.”5 Thus, Appellant’s argument continues, section 6259,
subdivision (c) does not apply; and the general rules and time limits apply to
her appeal from the judgment.
“The purpose of [section 6259, subdivision (c)’s] provision limiting
appellate review of the trial court’s order to a petition for extraordinary writ
is to prohibit public agencies from delaying the disclosure of public records by
appealing a trial court decision and using continuances in order to frustrate
the intent of the [CPRA].” (Filarsky v. Superior Court (2002) 28 Cal.4th 419,
5 With original emphasis, Appellant tells us: “Only the latter claim is
at issue on appeal; the first claim was decided against Appellant by the
trial court, and she does not challenge it here.” Appellant raises no issue on
appeal as to her claims in the third cause of action for declaratory relief (Code
Civ. Proc., § 1060 et seq.).
9
426-427 (Filarsky); accord, MinCal, supra, 214 Cal.App.4th at p. 265.) No
such purpose is presented where, as here, an aggrieved party seeks appellate
review of a claim that a public agency does not comply with section 26202’s
statutory requirements for destruction or disposition of certain types of public
records. Accordingly, we are not persuaded that section 6259,
subdivision (c)’s limitation on appellate review applies to the sole claim
Appellant raises in this appeal. Based on the statutory language,
section 6259, subdivision (c)’s limitation applies only to appellate review of an
order “either directing disclosure by a public official or supporting the
decision of the public official refusing disclosure” under the CPRA; and
Appellant’s appeal is neither from such an order nor raises any issue with
what was or was not disclosed by the SDCDA.
Respondents argue that, because the two claims in Appellant’s
Complaint are “interdependent,” any ruling on a violation of section 26202
would necessarily affect the determination of the trial court’s ruling on the
adequacy of the SDCDA’s disclosures. We disagree. Appellant’s appeal
raises issues regarding whether the SDCDA complies with specified retention
and destruction policies under section 26202, not issues regarding the
adequacy of the SDCDA’s disclosures in response to Appellant’s CPRA
requests.
Because Appellant has raised on appeal no issue or argument related to
the SDCDA’s disclosure of records, Respondents’ motion is moot; and on that
basis, the motion is denied. Having timely appealed from the judgment,6
Appellant may proceed with her appeal.
6 Under California Rules of Court, rule 8.104(a)(1), absent exceptions
inapplicable here, the earliest deadline for filing an appeal is 60 days after
notice of entry of the judgment. Here, the court filed its judgment on
10
B. Respondents Did Not Establish the Lack of a Private Right of Action
Respondents next argue that the judgment should be affirmed, because
there is no private right of action for the determination of what Appellant has
alleged to be the SDCDA’s failure to retain documents under section 26202.
Respondents contend that the only remedies for the unlawful failure to retain
documents are the criminal penalties set forth in sections 6200 and 6201 for
the willful destruction of public records.7 According to Respondents, claims
for the destruction of public records may be “pursued only by the district
attorney.” We disagree.
In County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119(County of Santa Clara), the plaintiffs, in their capacity as taxpayers, filed an
November 24, 2020, and Appellant filed her appeal less a month later on
December 18, 2020. Respondents do not suggest that Appellant’s appeal is
untimely under rule 8.104(a)(1).
7 Section 6200 provides: “Every officer having the custody of any record,
map, or book, or of any paper or proceeding of any court, filed or deposited in
any public office, or placed in his or her hands for any purpose, is punishable
by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code for two, three, or four years if, as to the whole or any part of the record,
map, book, paper, or proceeding, the officer willfully does or permits any
other person to do any of the following: [¶] (a) Steal, remove, or secrete. [¶]
(b) Destroy, mutilate, or deface. [¶] (c) Alter or falsify.”
Section 6201 provides: “Every person not an officer referred to in
Section 6200, who is guilty of any of the acts specified in that section, is
punishable by imprisonment pursuant to subdivision (h) of Section 1170 of
the Penal Code, or in a county jail not exceeding one year, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment.”
Neither of these statutes is contained within the CPRA, section 6250
et seq.
11
action under Code of Civil Procedure former section 526a,8 seeking
declaratory and injunctive relief against: five cities, one town, and their six
police departments and police chiefs; a county and its sheriff’s department
and sheriff; the state and its commissioner of highway patrol. (County of
Santa Clara, at p. 124.) The plaintiffs alleged that the defendants
implemented and enforced a number of specifically described policies and
practices as to certain requests for public records in violation of the CPRA,
the Political Reform Act (§ 81000 et seq.), section 12525 (which deals with the
public records associated with the death of a person in custody), and Health
and Safety Code section 11495 (which deals with funds received by law
enforcement agencies). (County of Santa Clara, at p. 124.) The trial court
overruled the defendants’ demurrer, and the defendants obtained appellate
review by way of a traditional writ proceeding. (Id. at p. 125.)
Like Respondents here, the defendants in County of Santa Clara
argued that “ ‘the CPRA is the exclusive procedure for litigating disputes
concerning access to public records,’ ” yet the CPRA provides no remedy for
the alleged wrongs. (County of Santa Clara, supra, 171 Cal.App.4th at
p. 128.) In response, like Appellant here, the plaintiffs in County of Santa
8 Both at the time of the filing of the County of Santa Clara action and at
the time Appellant filed the present action, Code of Civil Procedure former
section 526a provided in relevant part: “An action to obtain a judgment,
restraining and preventing any illegal expenditure of, waste of, or injury to,
the estate, funds, or other property of a county, town, city or city and county
of the state, may be maintained against any officer thereof, or any agent, or
other person, acting in its behalf, either by a citizen resident therein, or by a
corporation, who is assessed for and is liable to pay, or, within one year
before the commencement of the action, has paid, a tax therein.”
(Stats. 1967, ch. 706, § 1; see County of Santa Clara, supra, 171 Cal.App.4th
at p. 124, fn. 4.)
12
Clara argued that, despite limitations in the CPRA, as taxpayers, Code of
Civil Procedure section 526a allowed them to bring their claims for
declaratory and injunctive relief against the defendants for policies and
practices that allegedly violated the CPRA. (Ibid.)
Agreeing in part with the defendants, the County of Santa Clara court
explained: “The judicial remedy set forth in the CPRA is available . . . only
where the public entity is allegedly improperly withholding [public] records
[subject to disclosure]. [Citations, quoting portions of §§ 6258, 6259,
subds. (a)-(c).] The CPRA provides no judicial remedy . . . that may be
utilized for any purpose other than to determine whether a particular record
or class of records must be disclosed.” (County of Santa Clara, supra, at
p. 127.) Rather, “[t]he CPRA’s judicial remedy is limited to a requestor’s
action to determine whether a particular record or class of records must be
disclosed.” (Id. at p. 130.)
Agreeing in part with the plaintiffs, the County of Santa Clara court
nonetheless held that section 526a authorized the claims for declaratory and
injunctive relief (based on alleged CPRA violations) by the plaintiffs as
taxpayers, explaining: “ ‘Code of Civil Procedure section 526a permits a
taxpayer to bring an action to restrain or prevent an illegal expenditure of
public money. No showing of special damage to a particular taxpayer is
required as a requisite for bringing a taxpayer suit. [Citation.] Rather,
taxpayer suits provide a general citizen remedy for controlling illegal
governmental activity. [Citation.] [¶] Citizen suits may be brought without
the necessity of showing a legal or special interest in the result where the
issue is one of public right and the object is to procure the enforcement of a
public duty. [Citation.] Citizen suits promote the policy of guaranteeing
citizens the opportunity to ensure that governmental bodies do not impair or
13
defeat public rights.’ ” (County of Santa Clara, supra, 171 Cal.App.4th at
p. 129.)
The primary purpose of Code of Civil Procedure section 526a “is to
‘enable a large body of the citizenry to challenge governmental action which
would otherwise go unchallenged in the courts because of the standing
requirement.’ ” (Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268.) To achieve
this remedial purpose, Code of Civil Procedure section 526a must be
construed liberally. (Blair, at p. 268.) Applying this standard, we agree that
“[t]he purpose of the CPRA is furthered, not obstructed, by citizen suits under
Code of Civil Procedure section 526a to enforce the CPRA’s provisions” by
way of declaratory or injunctive relief. (County of Santa Clara, supra, 171
Cal.App.4th at p. 130.)
Accordingly, Appellant has standing to assert a private right of action
for the violation of the CPRA that she alleges in the second cause of action of
the Complaint.9 Having rejected Respondents’ procedural arguments, we
turn to the substantive issue Appellant raises in her appeal.
C. Appellant Did Not Establish that the Trial Court Erred
1. Additional Background
In her appellate brief, Appellant tells us that, during discovery related
to her first cause of action against Respondents (for failing to produce and/or
9 As we explain at part III.C., post, just because Appellant has standing
as a taxpayer (Code Civ. Proc., § 526a) does not mean that she is able to state
a claim under the CPRA for a violation of section 26202. In County of Santa
Clara, the taxpayer standing issue arose as a pleading issue in the
defendants’ demurrer. (County of Santa Clara, supra, 171 Cal.App.4th at
p. 125.) In the present appeal, in addition to standing, we are called on to
review the trial court’s ruling on the merits of Appellant’s second cause of
action—which we discuss at part III.C., post.
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retain public records as required by law), she learned facts that caused her to
amend her complaint to include the second cause of action (for having
document retention policies that violate the law governing retention of public
records). In particular, according to Appellant’s opening brief, these “facts”
are that “the SDCDA had a pattern and practice of destroying electronic
public records on computers and portable devices (such as mobile phones and
tablets) issued to SDCDA personnel upon termination of their employment,
for that is what happened with equipment used by Dumanis.” The record
reference for these “facts,” however, does not support, or have anything to do
with, Appellant’s recitation of such “facts.”10 Thus, we disregard these
“facts” for purposes of understanding the evidence that was before the trial
court. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1079
(Delta); Cal. Rules of Court, rule 8.204(a)(1)(C).) Nonetheless, we accept
Appellant’s representation that she amended her complaint to add the second
cause of action based on Respondents’ responses to discovery conducted on
the first cause of action.
In the second cause of action of her Complaint, Appellant alleges that
“Respondents’ document retention policies allow for the automatic
destruction of some [electronic public records11] . . . in violation of the two-
10 The record reference is to page 948, lines 19-21, of the appellant’s
appendix. Page 948 has no numbered lines and appears to be a half page of
an email from Appellant to the SDCDA, narrowing the scope of her original
CPRA request. It is dated four months before the filing of this action and a
year before the discovery to which Appellant refers.
11 While not entirely clear, we understand that Appellant’s reference to
“electronic public records” is to emails and text messages that that were
“official records” on SDCDA employees’ computers, tablets, mobile phones.
15
year minimum retention period prescribed by state law.” For purposes of the
evidentiary hearing, Appellant argued that section 26202 mandates that the
County “may not destroy any ‘record, paper, or document’ — whether or not
prepared pursuant to any state statute or the County charter — for at least
two years.” The trial court referred to this argument as Appellant’s
contention that section 26202 established “an absolute rule” precluding the
County from destroying any document.
On appeal, Appellant tells us that the evidence submitted to the trial
court at the hearing included the fact that “the SDCDA utilizes an agency
e-mail system that automatically deletes messages after 90 days unless
someone takes affirmative steps to preserve the messages.” (Italics added.)
This is not an accurate characterization of the language on which Appellant
relies; in fact, it provides, “If an email message constitutes an official record,
the user must take affirmative steps to save/retain the message because it
will be deleted after 90 days if no steps are taken to preserve the message.”12
Based on the testimony from the Assistant District Attorney for San
Diego County, the uncontradicted evidence at the hearing established the
following practices and policies of the SDCDA’s office with regard to retention
of electronic public records:
• All SDCDA employee “email messages are initially retained for a period
of 90 days. During that time, the employee that sent or received the
12 On appeal, Appellant does not discuss or provide authority as to what
constitutes an “official record” for purposes of the SDCDA’s record retention
policy. Instead, she asserts with no authority—and for that reason we
disregard (Delta, supra, 48 Cal.App.5th at p. 1079)—the statement: “There is
no dispute that electronic records such as e-mail and text messages are
themselves official records.”
16
email must decide whether the email constitutes an ‘official record.’
‘Official records’ are defined [in the SDCDA’s written] policy. If an
email is an official record, the employee must save the email into an
archive folder, to SDCDA’s case management system, and/or print a
hard copy of the email and save it.” The SDCDA is unaware of any
employee failing to retain emails that constitute an official record
under this policy, and Appellant did not produce any evidence to the
contrary.
• None of the emails sent to or from a SDCDA employee’s SDCDA-issued
cellular telephone are “saved directly to the phone; they are all saved to
the SDCDA network and an employee can save any and all emails sent
to or from his or her SDCDA cell phone” in the manner described in the
preceding bullet point. “Text messages are saved directly to the
phones. The default setting on SDCDA cell phones is to save all text
messages forever.”
• “When an employee leaves the SDCDA office, it is that employee’s
responsibility to save all official records[, including emails and text
messages,] to the appropriate place in the SDCDA system prior to
departure. . . . After departure, the cell phone or tablet is
sanitized/wiped so that it may be re-used by another SDCDA employee.
This process is typically done within a few days of the former employee
leaving the office. A former employee’s laptop or desktop computer is
held for 90 days after the employee leaves the office. After 90 days, the
computer is sanitized/wiped so that it may be re-used by another
SDCDA employee.”
• “A former employee’s transient emails — those that are not saved to an
archive folder or to the SDCDA case management system — are
17
retained for 90 days after the employee leaves the office. After 90 days,
the employee’s emails are deleted.”
• All SDCDA employees receive “substantial training” when they join the
office. During this training, employees are: instructed to “save
important documents, including those that qualify as official records”;
shown how to access the SDCDA’s policies and procedures regarding
document retention and destruction; and “required” to familiarize
themselves with these policies and procedures.
• The SDCDA “presume[s] and expect[s]” that its employees will perform
their job duties in accordance with SDCDA policies and procedures, as
well as the law—including specifically with respect to “retaining/saving
documents pursuant to the [SDCDA’s] document retention policies.”
The SDCDA is unaware of any employee who has not “follow[ed] the
[SDCDA’s] document retention policies and procedures.”
In the trial court, Respondents did not argue that the SDCDA’s record
retention policies or procedures complied with section 26202. Instead,
Respondents argued that section 26205.1 allowed the County Board of
Supervisors to have authorized Resolution No. 17-170, which established the
SDCDA’s record retention policy at issue—i.e., the one described in the
testimony above from the assistant district attorney.
As relevant to the issue on appeal, the trial court made a number of
rulings. First, the court commented that Appellant did not identify any
authority that “designat[ed] SDCDA’s emails as ‘official records’ for purposes
of this case.” (See fn. 12, ante.) The court next concluded that, because
section 26205.1 expressly delegates to a county board of supervisors the
power to adopt a resolution authorizing the county officer with custody of
“nonjudicial public records” to destroy “any or all of [them]” pursuant to
18
terms and conditions set forth in the statute, Appellant failed to meet her
burden of establishing that section 26202 contains an “absolute rule”
requiring the SDCDA to retain all documents for at least two years. Finally,
the court ruled that Appellant did not show that the County Board of
Supervisors violated any law in enacting Resolution No. 17-170, the County’s
record retention policy.
Appellant’s specific claim on appeal is that “the SDCDA’s pattern and
practice of prematurely destroying official records by scrubbing the memory
of electronic devices assigned to employees upon termination of their
employment violates Government Code Section 26202.”13
Consistent with their presentation in the trial court, Respondents do
not contend on appeal that the SDCDA’s record retention policies or
procedures comply with section 26202. Instead, Respondents again argue
that section 26205.1 allowed the County Board of Supervisors to have
authorized Resolution No. 17-170, which established the SDCDA’s record
retention policy at issue. Issues related to compliance with section 26205.1 or
Resolution No. 17-170, however, are not before us in this appeal.14 The only
13 Appellant also argues that, due to a lack of training and supervision of
the SDCDA’s employees as to the retention of public records, the SDCDA’s
policies and practices violate section 26202. This argument necessary fails,
since Appellant does not rely on any evidence of the SDCDA’s training or
supervision of employees—let alone a lack thereof—regarding the retention of
public records. In any event, Appellant’s disapproval of certain of SDCDA’s
employment practices regarding training and supervision does not support a
claim that the SDCDA’s document retention policies—in theory or as
applied—violate section 26202.
14 Although Appellant argues on appeal both that Respondents are not in
compliance with section 26205.1 and that the SDCDA’s record retention
policies violate Resolution No. 17-170, the trial court made no such rulings.
19
issue on appeal is whether the trial court erred in denying relief on
Appellant’s claim that the SDCDA’s record retention policies violate
section 26202.
Neither Appellant nor Respondents focus on the trial court’s rulings.
Such a presentation makes appellate review extremely difficult, since (with
exceptions inapplicable here) the purpose of an appeal is not to decide the
case on its merits, but to review trial court rulings for error. (See In re
Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.) [“ ‘essential distinction between
the trial and the appellate court . . . [is] that it is the province of the trial
court to decide questions of fact and of the appellate court to decide questions
of law’ ”].) To this end, “a trial court judgment is ordinarily presumed to be
correct and the burden is on an appellant to demonstrate, on the basis of the
record presented to the appellate court, that the trial court committed an
error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5
Cal.5th 594, 609.)
In her appellate briefing, Appellant does not once mention what she
considers the trial court’s error to be.15 Instead, on appeal Appellant
presents the same arguments and relies on the same evidence as she
presented to the trial court, asking that we come up with a different ruling.
An appeal is not “another bite at the apple,” a “second chance,” a “mulligan,”
This is not surprising, since Appellant neither alleged such violations in the
Complaint nor included such issues for resolution by the trial court.
Accordingly, Appellant forfeited appellate consideration of these arguments.
(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 700
[appellate court is “ ‘loath to reverse a judgment on grounds’ ” not presented
to the trial court].)
15 The trial court’s ruling is nine single-spaced typewritten pages with
more than three pages devoted solely to the second cause of action.
20
or a “do-over” with the hope of achieving a better result from a different
arbiter. It is the appellant’s opportunity to explain specific legal errors that
the appellant contends the trial court committed.
2. Analysis
We agree with Appellant (and Respondents) that, in reviewing the trial
court’s interpretation of a statute, we apply a de novo standard of review.16
(Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190 [“The interpretation of a
statute presents a question of law that [an appellate] court reviews
de novo”].)
“ ‘When we interpret a statute, “[o]ur fundamental task . . . is to
determine the Legislature’s intent so as to effectuate the law’s purpose.
We first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of
the statutory framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the Legislature did
not intend. If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.” ’ ” (City of San Jose, supra, 2 Cal.5th
at pp. 616-617 [interpreting the CPRA].) In the context of the present appeal,
16 We disagree, however, with Appellant’s suggestion that none of the
facts “leading up to the trial court’s ruling and final judgment” in this case
are in dispute. Thus, to the extent Appellant believes that our de novo
review includes making factual findings in the first instance, she is wrong.
The purpose of an appeal is not to determine disputed issues (especially
factual issues) in the first instance, but to review decisions of the trial court
for error. (Zeth S., supra, 31 Cal.4th at p. 405.)
21
we proceed with an understanding and appreciation of “ ‘ “the strong public
policy of the people’s right to information concerning the people’s business
(Gov. Code, § 6250), and the constitutional mandate to construe statutes
limiting the right of access narrowly (Cal. Const., art. I, § 3, subd. (b)(2)).” ’ ”
(City of San Jose, at p. 617.)
Section 26202 is entitled “Destruction of old records” and provides in
full:
“The [county] board [of supervisors] may authorize the
destruction or disposition of any record, paper, or document
which is more than two years old and which was prepared
or received in any manner other than pursuant to a state
statute or county charter. The board may authorize the
destruction or disposition of any record, paper or document
which is more than two years old, which was prepared or
received pursuant to state statute or county charter, and
which is not expressly required by law to be filed and
preserved if the board determines by four-fifths (4/5) vote
that the retention of any such record, paper or document is
no longer necessary or required for county purposes. Such
records, papers or documents need not be photographed,
reproduced or microfilmed prior to destruction and no copy
thereof need be retained.” (Italics added.)
Appellant tells us that, based on section 26202, “the County (including
the SDCDA) may not destroy any ‘record, paper, or document’ — whether or
not prepared pursuant to any state statute or the County charter — for at
least two years.”17 (Italics added.) That is not what section 26202 says. It
provides only that a county board of supervisors may authorize the
17 This is the same “absolute rule” that Appellant presented to the trial
court and on which the trial court based its decision that Appellant “failed to
meet her burden of establishing that the absolute rule of section 26202
applies to [the] SDCDA.”
22
destruction of a county public record “which is more than two years old”; and
depending on whether the record at issue was “prepared or received pursuant
to state statute or county charter” (and, if so, whether such record is
“expressly required by law to be filed and preserved”), the authorization
procedure is somewhat different. Very simply, section 26202 does not apply
to all agency records. For example, an agency’s records that were “prepared
or received pursuant to state statute or county charter” and which are
“expressly required by law to be filed and preserved” do not fall within the
scope of section 26202.
Appellant suggests that, when section 26202 is considered along with
sections 26205 and 26206.7, “together, these statutes clearly imply that
official records less than two years old may not be destroyed unless they are
duplicates and the original has been preserved.” (Italics added.) We
disagree. As we just explained, the plain and commonsense meaning of the
language in section 26202 does not mandate that the County must retain all
documents for at least two years. Where, as here, the statutory language
permits only one reasonable interpretation, we do not consult other statutes
to imply of a meaning that is contrary to the literal interpretation. (City of
San Jose, supra, 2 Cal.5th at pp. 616-617.)
Focusing on what she characterizes as the SDCDA’s “pattern and
practice of destroying electronic public records on computers and portable
devices . . . issued to SDCDA personnel upon termination of their
employment,” Appellant contends that, because departing employees’
electronic devices “are wiped clean of all data without verification that any
data requiring preservation have in fact been archived,” the SDCDA’s
practice violates section 26202. However, Appellant did not make a showing
in the trial court (and does not argue on appeal) that such electronic records
23
are in fact among those to which section 26202 applies; nor has she presented
or described any “official record” of the SDCDA that she contends was not
disclosed in violation of 26202.18 Appellant has not attempted to explain, for
example, either whether this “data” were prepared or received pursuant to a
state statute or county charter or whether this “data” are expressly required
by law to be filed and preserved.
Instead, Appellant describes as “astounding” what she considers the
SDCDA’s “pattern and practice” of “scrubbing a departing employee’s
electronic devices clean of records.” This is a valid concern. However,
“astonishment” is not the standard of review we apply in an appeal from a
judgment following an evidentiary hearing. Here, based on the evidence
presented, the trial court ruled that Appellant did not meet her burden of
establishing that section 26202 contains an “absolute rule” that precludes the
SDCDA from following its record retention policy—i.e., a policy that allows
for the destruction of emails or text messages from the electronic equipment
of a departing employee. The language in section 26202 is unambiguous, and
on the record before us, there has been no finding of any electronic record
that the SDCDA failed to retain in violation of section 26202. Further,
Appellant’s astonishment does not take into consideration the possibility that
the SDCDA may have retained copies or otherwise complied with public
records obligations, despite having “destroy[ed] electronic public records”
18 In litigating her first cause of action, Appellant failed to establish that
the SDCDA did not disclose any requested official record—which includes
official records not retained by the SDCDA as a result of its pattern and
practice of record retention. That ruling is final, no longer subject to
appellate review, and expressly unchallenged by Appellant in this appeal.
(See pt. III.A. & fn. 5, ante.)
24
upon the termination of an electronic public record-holder’s employment with
the SDCDA.19
Finally, Appellant argues that, because Respondents’ “pattern and
practice” of record retention results in the destruction of electronic “ ‘official
records’ ” less than two years old “without preserving a copy,” Respondents’
conduct is illegal and must be stopped. However, the trial court made no
finding that Respondents do not maintain copies of destroyed records;
Appellant provides no record reference for such a statement; and the
uncontradicted evidence is that, with regard to electronic “Official Records”
less than two years old and not retained by the SDCDA, the SDCDA’s written
policies and procedures require employees to save copies, and there are no
known instances of employees who have not followed the SDCDA’s record
retention policies and procedures. Accordingly, we decline to consider
Appellant’s argument further.
In closing, we note that Appellant’s reliance on public record retention
or destruction in violation of section 26202 is misguided. Section 26202 does
not direct or require that a county agency retain (or not destroy) public
records. That is because “[the CPRA] itself does not undertake to prescribe
what type of information a public agency may gather, nor to designate the
19 We do not fault the trial court for not reaching issues regarding the
SDCDA’s compliance with Resolution No. 17-170. After ruling that Appellant
failed to meet her initial burden, the trial court was not required to make
findings as to Respondents’ defense that its compliance with section 26205.1
eliminated any need to comply with section 26202. Although issues
associated with section 26205.1 are not before us (see fn. 14, ante), we
nonetheless note that, in its analysis of section 26205.1, the trial court found
that, given the scope of what section 26205.1 allows a county to authorize for
a record retention policy, section 26202 does not mandate an “absolute rule”
that all of a county’s documents must always be retained.
25
type of records such an agency may keep, nor to provide a method of
correcting such records. Its sole function is to provide for disclosure.” (Los
Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 668, italics
added; see County of Santa Clara, supra, 171 Cal.App.4th at pp. 127, 130
[“The CPRA provides no judicial remedy . . . that may be utilized for any
purpose other than to determine whether a particular record or class of
records must be disclosed. [¶] . . . [¶] . . . The CPRA’s judicial remedy is
limited to a requestor’s action to determine whether a particular record or
class of records must be disclosed.” (Italics omitted and added.)]; § 6253.)
Here, however, Appellant does not claim that Respondents’ violation of
section 26202 is based on the SDCDA’s policies and practices as to document
disclosure (i.e., the “sole function” of the CPRA); her claim is limited to
document retention or destruction, which is not covered by the CPRA
generally or section 26202 specifically. The obligation, if any, to retain
official records is contained in other legislation.20
For the foregoing reasons, Appellant has not met her burden of
establishing that the trial court erred in denying relief on her claim in the
second cause of action of the Complaint that the SDCDA’s document
20 For example, in Golden Door Properties, LLC v. Superior Court (2020)
53 Cal.App.5th 733, 771, we observed that, for purposes of the CPRA, Public
Resources Code section 21167.6, subdivision (e)(7) & (10) identified specified
records in CEQA proceedings that “are required by law to be kept.”
Similarly, in County of Santa Clara, supra, 171 Cal.App.4th at page 124, the
appeal involved Health and Safety Code section 11495, subdivision (a), and
section 12525 as legislation that, for purposes of the CPRA, require the
retention of records involving reports related, respectively, to the death of a
person in custody and to funds received by law enforcement agencies.
26
retention/destruction policies with regard to specific electronic records violate
section 26202.21
IV. DISPOSITION
Respondents’ motion to dismiss the appeal is denied. The judgment is
affirmed. Respondents are entitled to their costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
21 We understand and appreciate Appellant’s concern that the SDCDA
disclosed only four records that were responsive to a CPRA request for
records—including electronic communications—over a three-year time period
of a person who served as the District Attorney of San Diego County.
However, as we explained ante: Section 26202, which deals with disclosure—
not retention—of public records, does not provide a statutory basis for relief
under the CPRA; Appellant failed to pursue appellate review of the SDCDA’s
disclosure under the CPRA; and the second cause of action in Appellant’s
Complaint does not raise issues related to the SDCDA’s compliance with
record retention requirements under SDCDA internal administrative
procedures, Resolution No. 17-170, or legislation other than section 26202.
27