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I SUFERIOR CCIURT OF THE STATE OF CALIFORNIA

9 FOR THE COI-INTY OF STANISLAUS

10

1l CALIFORNIANS AWARE, a non-proflt CaseNo.: 652873

corporation, Department: 24
12
Petitioner/Plaintiff.
1a
IJ
ORDER
V.
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CALIFORNIA STATE LINIVERSITY
1 5 STANISLAUS, a public university,
16 Respondent/Defendant,
1"7 CSU STANISLAUS FOLTNDATION,a non-
profit arxiliary of California StateUniversity
i8 Stanislaus,

l9 Real Party in Interest.

20
21 The matter of the Petition for Writ of Mandate, an Injunction, and Declaratory
22 Relief for violations of the California Public Records Act, Government Code sections 6250 et
z) seq., filed by Petitioner Californians Aware against Respondent Califomia State University,
l+ Stanislaus,came on for hearing on July 16,2010, in Department24 of the above-entitledcourt,
2 5 Judge Roger M. Beauchesnepresiding. Dennis Winston of Dennis A. Winston, A Professional
26 Law Corporation,Kelly Aviles of the Law Offices of Kelly A. Aviles, and JosephT. Francke
2 7 appearedon behalf of Petitioner. Dawn Theodora of the Califomia State University Office of
2 8 the General Counsel appearedon behalf of RespondentBoard of Trustees of the California

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ORDER
 I State University (erroneously served and sued as California State University Stanislaus)

2 ("University"). John A. Ramirez of Rutan & Tucker, LLP appearedon behalf of Real Party in
a
J Interest CSU Stanislaus Foundation ("Foundation"). Upon conclusion of oral argumentson

4 July 16, 2010, the court invited proposed orders from counsel which were due on August 2,

5 2010. The court took the matterunder submissionon August 2,2010.

6 After due consideration and based upon the papers filed by the parties and oral

argument,for good causeshown, the Court makesthe following rulings and ORDERS:

8
9 1. Petitioner's request for Declaratory Relief is GRANTED as to the University

l0 and DENIED as to the Foundation. This Court declares that the University violated the

l1 California Public RecordsAct in that:

lz

13 (a) University is a state agency or state body within the meaning of Government

14 Code S 6252(a);

15
16 (b) Petitioner made a public records requeston March 31,2010 (the "Request"), for

17 "all University records, other than those specifically preparedfor public release,
18 concerningthe planned appearanceofex-Governor SarahPalin as guestofhonor

19 at the University's50ft AnniversaryGala on June25,2010";

20
21 (c) On April 6, 2070, Gina B. Leguria responded to the Request on behalf of

22 University by stating that, "The University has no documentsthrt areresponsive

z) to your request;" and that the requestwould be referred to the Foundation;

24
25 (d) Petitioner Californians Aware attempted to clarify the responseto the Request

26 and to determine whether the Universitv actuallv had documents that were

27 responsiveto the Request.

28

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ORDER
 I (e) Despite Petitioner'sattemptsat clarification, University did not frrther

z contact Californians Aware concerning the Request until after University was

J servedwith the Petition in this action.

5 (f) Documents produced after this litigation was commenced show that

6 Respondent'soriginal responsethat it had no recordswas incorrect.

8 (e) GovernmentCode $ 6258 providesin part that:

9 Any person may institute proceedingsfor injunctive or declarativerelief or

writ of mandatein any court of competentjurisdiction to enforce his or her
10 right to inspector to receivea copy ofany public record or classofpublic
11 recordsunder this chapter.

t2
(h) Code of Civil Procedure$1060provides:
IJ
Any person interested... who desiresa declarationof his or her rights or
t4 duties with respect to anothef, ... may, in cases of actual controversy
15 relating to the legal rights and duties of the respective parties, bring an
original action ... for a declarationof his or her rights and duties ... and
16 the court may make a binding declarationof these rights or duties, whether
or not further relief is or could be claimedat the time....
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18 (i) GovernmentCode $ 6253.1(a)requiresthat:

19 When a member of the public requeststo inspect a public record or obtain a

copy of a public record, the public agency, in order to assistthe member of
20 the public make a focused and effective requestthat reasonablydescribesan
2l identifiable record or records, shall do all of the following, to the extent
reasonableunder the circumstances:
22 (1) Assist the member of the public to identiS records and information
aa
that are responsive to the request or to the purpose of the request, if
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stated.
24 (2) Describe the information technology and physical location in which
the recordsexist.
25 (3) Provide suggestions for overcoming any practical basis for denying
accessto the recordsor information sought. (Emphasisadded)
26
27 0) The CSU RecordsAccess Manual (Petitioner'sExhibit BB, page 5) statesthat:

28

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ORDER
 I CSU may, when appropriate,respond to a Public Records Act requestby
stating that no records exist that respondto the requestand therefore none
2 can be produced. However, this responseis permissibleonly if CSU has
J
first made a reasonableeffort to obtain additional clariffing information
from the requestorthat will help identiff the record(s) sought, and where
4 appropriate,conducteda reasonablesearch.

5 (k) The University failed to follow the proceduresrequired by the Public Records
6 Act, as set forth above, in respondingto Petitioner'sRequest.
l
8
0) The University failed to produce any public records called for by Petitioner's
9 Requestuntil after the initiation and service of the instant lawsuit, which records
10 established that the University did possess public records responsive to the
1l Requestas of the University's April 6 response.
t2
1a
IJ
(m) The University's failures to follow the procedures of the California Public
14 Records Act, and to produce public records when and as requested,whether
t5 deliberate,negligent or inadvertent, constitute violations of its obligations under
16 the California Public Records Act, which contains no requirementthat bad faith
11
lt
or a similar mensrea be proven in order to establishan actionableviolation. The
18 sole legal issue is rather whether "the decision to refuse disclosure (was) . . .
l9 justified nnder Section6254 or 6255 . . ." (GovernmentCode 56259,subd. ft)).
20
21 (n) The reasonableinference from the evidenceproduced is that the University, in its
22 official capacity, has "used" the contract between the Washington Speakers
aa
ZJ
Bureau in the conduct of the public's business;therefore, said contract is also a
24 public record and should have been producedto Petitioner.
25
26 2. The Petition for Writ of Mandate by Petitioner is GRANTED as to Respondent
27 University and DENIED as to the Foundation in that:
28

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ORDER
 I (a) On April 9,2010, Petitionerfollowed up on the Requestby explainingthat

2 Petitioner sought a copy of a contract enteredinto betweenthe Washington

a
J SpeakersBureau and ex-Governor SarahPalin as well as "all public records
4 related to the Palin appearancein possessionof any University official or

5 employee,regardlessof whetherthoseofficials or employeesare also officers or

6 employeesof the University Foundation."

7
8 (b) The Foundation is deemedto be an auxiliary organization pursuantto Education

9 Cade $ 89901. It is a non-profit, charitable,firndraising entity in accordance

l0 with Internal RevenueCode $ 501(c)(3). It is also a separate,private legal entity

ll not.subjectto the Public RecordsAct. (emphasisadded). SeeGovernmentCode

12 $ 62s2(e).
13
1A
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(c) In California State University, Fresno Assn., Inc. v. Superior Court (2001) 90

15 Cal. App.4th753, the Fifth District Court of Appeal held that California State

16 University-affiliated auxiliary orgarnzations,like the Foundation,are not subject

t7 to the California Public RecordsAct. Therefore,the current statusof the law

l8 designatesthe Foundation in the caseat issue outside of the ambit of the Public

19 RecordsAct. There was no convincing evidencepresentedfor this Court to

20 concludeotherwise.

21
22 (d) Petitioner's argumentthat becausecertain University employees and/orleaders

a') may either be Foundation membersor those chargedwith oversight

LJ

responsibility transforms the otherwiseprivate activities of the Foundationinto

24
public onessubjectto disclosureis unpersuasive.To acceptPetitioner's
25
argumenton this point would result in the non-privatization of all California
26
StateUniversity Foundationsand would evisceratethe holding in the California
27
StateUniversit-y.FresnoAssn case,supraas to the distinction betweena private
28

ORDER
 I foundation and a stateagency or body. The contract enteredinto between
z Ms. Palin and the Washington SpeakersBureau was therefore a private contract

J not subject to disclosrneby the Foundation.

5 (e) However, the court does find that the evidenceshows that university

6 employees,specifically California StateUniversity Chancellor CharlesReed,

7 "used" the contract. For the purpose of construing the words "used" and "use"

8 within the context of the Public RecordsAct, the court is compelledto interpret

9 thoseterms liberally.

10
1t (0 Government Code section 6250 defines a public record to include "any writing

12 containing information relating to the conduct of the public's businessprepared,

1a
IJ ormed, used,or retainedby *y stateor local agency..."

14
15 (e) Once ChancellorReed "used"the contract,it becamea public recordsubjectto

16 disclosure. Regardlessof whether or not there is a confidentiality agreement

17 amongstthe Washington SpeakersBureau, Ms. Palin and the Foundation,the

18 contract is ultimately one of the following: a public record subjectto disclosure,

19 or; a public record not subjectto disclosure,or; not a public record. The court

20 finds the contract in issue is a public record subject to disclosureby the

21 University but not the Foundation.

22
aa
/.J
(h) This finding is supportedin part by Respondent'sCSU RecordsAccessManual,

24 which states:

25 All records maintained bv the CSU are potentiallv subiect to disclosure

under the Act" includins both electronic and hard copy. unless thev fall
26 into a clearlv authorized exceotion. Records of auxiliarv orsanizations
become subiect to disclosure under the Act where thev have been
27 made a part of CSU records. or used bv a CSU emnlovee in the
nerformance of his/her iob. Gxhibit AA. Pase3)
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ORDER
1 ...tAluxiliarv orsanization records that have been. or are being. used
bv Universitv officials in the nerformance of their Universitv duties
2 are subiect to disclosure. CSU records remain oublic even when
transferredto an auxiliary organization. (Exhibit AA, Page26)
J

4
(i) Further, Petitioner'srequestwas sufficiently broad to include documentation
5
related to the use of University property, personnel,facilities, or services
6
provided in connectionwith the Gala for which the university sought or will
7
seekreimbursementfrom the Foundation. Sincethe evidencerevealsthat the
8
Foundation pays for the use of the University's public resources'the Court
9
concludesthat any documentsrelated to the use of and payment for University
10
facilities must be/shouldhave been disclosedby the University.
11

12
(') The multiple requestsfor documentsby the Petitioner and the piecemeal
l3
disseminationof some documentsby the University even after the petition was
14
frled only reinforces the importanceof compliance with GovernmentCode
15
(i) this order. Had the parties
$6253.1(a)referencedin Section1, subsection of
l6
more carefully met and conferred to discuss:whether or not documentscurrentl)'
t/
exist; if they do not exist, whether or not they will exist, and when they might be
18
available, etc., the current lawsuit may have been preventable.
19
20
(k) The court is awarethat some documentsrequestedby petitioner have been
21
releasedsubsequentto the filing of the Petition as recentlyas July 16,2010'
22
(SeePetitioner'sRequestfor Judicial notice filed on August 2,2010). Whether

or not the document releaseon July 16,2010,the samedate as the hearing on the
L)

24 petition and aday after the posting of the court's tentative ruling, is coincidental
25
shall remain for others to decide'
26
27
(l) The Court acknowledgesPetitioner's Proposition 59 argumentembodiedin
28
califomia constitution, Art 1, $ 3(bX1)-(2). In part, it reads: "The peoplehave

-7-
ORDER
 1 the right of accessto information concerningthe conduct of the people's
2 business,and . . . [a] statute,court rule, or other authority . . . shall be broadly

J construedif it furthers the people's right of access,and narrowly construedif it

4 limits the risht of access."

6 3. The court is not persuadedby Petitioner's alter ego argument. Such legal

7 argument is inapt to the facfual scenariopresented.

9 4. Each party's requestfor judicial notice is grantedincluding Petitioner'sRequest

10 for Judicial Notice filed on August 2,2010. Each parfy's objectionsto evidence

11 are sustainedin their entire8.

t2
1a
t-l 5. Petitioner, Californians Aware, is awarded its costs and attomeys' fees incurred in

t4 this action according to proof upon noticed motion pursuant to Government Code

15 $62se(d).
16
17 IT IS SOORDERED
18
19
20 o,qt'eo@.2olo
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ROGERM. BEAUCHESNE
2l Judgeof the SuperiorCourt
22
af
z)

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ORDER
 PROOF OF SERVICE BY MA]L
[1013a(3) c.C.P.]
STATE OF CALIFORNIA )
) SS
COUNTY OF STANISLAUS)

J am over the age of 18 years and employed hrr l "l .ro Qrrno "i Of C OU f t Of the
h-rl _\/
State of California, County of Stanlslaus, ^^^
dIlLl ^af
lluL o- ParLJ
l
Lvo fhe
uffu w ;fhi
vv*u n

action. I certify that I served a copy of the attached ORDER by placing

said copy in an envelope addressed to the following:

Kelly A. Aviles, EsQ. John A. Ramirez, Esq.

Law Offices of Kelly A. Aviles Rutan & Tucker, LLP
15Q2- FoothiLl Blvd., #103-140 677 Anton Blvd., 14th Floor
La Verne, Co 91750 Costa Mesa, Cd 92626-1931

Dennis A. Winston, EsQ.

Dennis A. Winston, A Professional Law Corp.
I2823 Dewey Street
Los Angeles, Ca 90066

Joseph T. Francke, Esq.

Attorney at Law
22LB Homewood Way
Carmichael, Ca 95608

Dawn S. Theodora, Esq.

California State UniversitY
Office of General Counsel
401 GoIden Shore, 4'n F-loor
Long Beach, Ca 90802-4210

Sair-t en\zolone was then seafed and postage thereon fully prepaid, ancl
thereafter was an deposited in the United States
_Q323/?Jff--______,
mail at Modesto, California. That t,here ts delivery service by United
States mail at the place so addressed, or regular communication by lJnited
States mail between the place of mailing and the place so addressed.

af nor i r r r r z tha]_ f he f oreooi.^- I - rLl - "uE

- ^^d co r r e ct
I declare under PenaltY -'ll9
rJ oil

Executed on 0B/23/2010 a l- Modesf

! rv e v u uv o -
/
Cal i f orni a

SUPERIOR COURT OF THE STATE OF CALIFORNIA \

]N AND FOR THE COUNTY OF STANISLAUS

rfy
KATHY GAB IELSON, Deputy Clerk