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LEON J. PAGE, COUNTY COUNSELLAURIE A. SHADE, SENIOR DEPUTY - State Bar No. 182364REBECCA S. LEEDS, SENIOR DEPUTY - State Bar No. 221930333 West Santa Ana Boulevard, Suite 407Santa Ana, California 92701Telephone: (714)834-3906Facsimile: (714) 834-2359Email: [email protected]: [email protected]
Attorneys for Respondents, Orange County Executive Officer Frank Kim, County of Orange andOrange County Board of Supervisors
Exempt From Filing Fees Pursuant to Gov't Code § 6103
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
ASSOCIATION OF ORANGE COUNTYDEPUTY SHERIFFS,
Plaintiff/Petitioner,
V.
FRANK KIM, Orange County ExecutiveOfficer; COUNTY OF ORANGE, State ofCalifornia; BOARD OF SUPERVISORS,County of Orange, DOES 1 through 10,inclusive,
Defendants/Respondents.
) Case No. 30-2016-00832263-CU-WM-CJCASSIGNED FOR ALL PURPOSES TOJUDGE CRAIG GRIFFIN, C-17
COUNTY RESPONDENTS'OPPOSITION TO EX PARTEAPPLICATION FOR A TEMPORARYRESTRAINING ORDER;MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORTTHEREOF
[Filed concurrently herewith Declarations ofJean Pasco and Steven M. Berliner]
FLASHREPORT,
Real Party in Interest.
DATE: January 29, 2016TIME: 8:30 a.m.DEPT: C-17
Action Filed: January 28, 2016Trial Date: None
Respondents, Orange County Executive Officer Frank Kim, County of Orange and
Orange County Board of Supervisors ("County"), hereby oppose Petitioner Association of
Orange County Deputy Sheriffs' ("AOCDS") Ex Parte Application for a Temporary Restraining
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OPPOSITION TO EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER
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Order. This Opposition is based on the attached Memorandum of Points and Authorities and the
Declarations of Jean Pasco and Steven M. Berliner filed concurrently herewith.
DATED: January 28, 2016 Respectfully submitted,
LEON J. PAGE, COUNTY COUNSELLAURIE A. SHADE, SENIOR DEPUTYREBECCA S. LEEDS, SENIOR DEPUTY
R'ebecca S. Leeds, Senior Deputy
Attorneys for Respondents
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OPPOSITION TO EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER
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MEMORANDUM OF POINTS AND AUTHORITIES
1. INTRODUCTION AND STATEMENT OF FACTS
This action arises out of a request for records made pursuant to the California Public
Records Act ("CPRA") for certain documents associated with the labor negotiations taking place
between Petitioner, Association of Orange County Deputy Sheriffs ("AOCDS"), and the County
of Orange ("County"). It is essentially a "reverse-CPRA action" wherein AOCDS seeks to
enjoin the County from disclosing public documents that will shed light on the "conduct of the
people's business," (Gov. Code, § 6250.)'
On or about January 18, 2016, the County received a request pursuant to the CPRA for
"the status and all documents of all negotiations, offers and counteroffers, supposals, formal or
informal between the County of Orange and the Association of Orange County Deputy Sheriffs
(sic)." (Pasco Declaration at H 5.) As required, the County conducted a diligent search to
determine what responsive records it had and responded to the requestor. {Id, at 6-7.) The
responsive records identified consist of two proposals for a salary reopener submitted by
AOCDS and a net pay survey.^ {Id. at 17.) AOCDS was informed through counsel that the
County would release the records to the requestor on January 29, 2016, the statutory deadline
under the CPRA. {Id. at ̂ 7.)
On January 27, 2016, AOCDS, through counsel, gave the County notice of its intent to
move ex parte for a temporary restraining order prohibiting the County from releasing the
records sought by the Flash Report in its January 18, 2016 CPRA request. Thereafter, the
County was served with the moving papers. This Opposition is in response to Petitioner's Ex
Parte Application For a Temporary Restraining Order.
//
//
//
' All further statutory references are to the Government Code unless otherwise indicated.
^ The County will bring copies of the records to the January 29, 2016 hearing, under seal,should the court determine an in camera review is necessary.
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MEMORANDUM OF POINTS AND AUTHORITIES
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2. LEGAL ARGUMENT
A. Petitioner Has Failed To Meet The Standard For Obtaining A Preliminary
Injunction
A preliminary injunction is an extraordinary remedy. As the Court of Appeal observed in
Tahoe Keys Property Owners' Assoc. v. State Water Resources Control Bd. (1994) 23
Cal.App.4th 1459:
The showing of potential harm that a plaintiff must make in supportof a request for preliminary injunctive relief may be expressed invarious linguistic formulations, such as the inadequacy of legalremedies or the threat of irreparable injury...., but whatever thechoice of words it is clear that a plaintiff must make some showingwhich would support the exercise of the rather extraordinary powerto restrainthe defendant's actions prior to a trial on the merits.(Citations omitted.)
(M at 1471.)
Moreover, the law is well settled that the decision to grant a preliminary injunction is
discretionary and, to establish that it is entitled to such an extraordinary remedy. Petitioner must
make a two-pronged showing. {IT Corp. v. County ofImperial (1983) 35 Cal.3d 63, 69-70.)
First, Petitioner must show a reasonable likelihood he will prevail on the merits. {Ibid.)
Second, Petitioner must show that the harm he would suffer if the court denied the preliminary
injunction outweighs the harm Respondents would suffer if the injunction is granted. {Ibid.)
Here, AOCDS cannot meet either prong.
B. Petitioner Bears the Burden of Proof in a Reverse-CPRA Action
As stated above, the relief sought is a preliminary injunction and, ultimately, a writ of
mandate directing the County to withhold public records and not disclose them to the public.
However, the CPRA requires a public agency to justify the withholding of records, not the
disclosure of them. (§ 6255.) In determining whether documents must be disclosed under the
CPRA, it is the "proponent of non-disclosure" who must demonstrate that the records at issue
are not subject to disclosure, either pursuant to a specific statutory exemption or by
demonstrating a clear overbalance on the side of confidentiality. {Michaelis, Montanari &
Johnson v. Sup. Ct. (2006) 38 Cal.4^'' 1065, 1071.) In this case, a "reverse-CPRA action,"
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Petitioner bears the heavy burden to justify nondisclosure.
C. AOCDS Cannot Prevail On The Merits Because a Writ of Mandate Cannot
Compel an Exercise of Discretion
The ultimate relief AOCDS seeks is a writ of mandamus, which is only appropriate "to
compel the performance of an act which the law specifically enjoins," and a traditional writ of
mandate is the method of compelling the performance of a legal, ministerial duty required by
statute. (Code Civ. Proc., §1085; see also, Rodriguez v. Salts (1991) 1 Cal.App.4th 495, 501-
502.) Mandamus will not lie to control an exercise of discretion, i.e., to compel an official to
exercise discretion in a particular manner. {Common Cause v. Board of Supervisors (1989) 49
Cal.3d 432.)
With limited exception (see, e.g., §§ 6254.7, 6254.13), there is nothing in the CPRA that
prohibits a public agency from disclosing public records. Indeed, such a prohibition would fly
in the face of the stated legislative intent of the CPRA, which is "that access to information
concerning the conduct of the people's business is a fundamental and necessary right of every
person in this state." (Gov. Code, § 6250; see also, Gov. Code, § 6253(e) ["a state or local
agency may adopt requirements for itself that allow for faster, more efficient, or greater, access
to records than prescribed by the minimum standards set forth in this chapter"]; Gov. Code, §
6254 [" "[tjhis section does not prevent any agency from opening its records concerning the
administration of the agency to public inspection, unless disclosure is otherwise prohibited by
law."].)
In fact, exemptions are construed narrowly with a strong presumption in favor of
disclosure. (Cal., Const., art. I, sec. 3, subd. (b)(2); Marken v. Santa Monica-Malibu Unified
School Dist. (2012) 202 Cal.App.4^^ 1250, 1262.) The decision to disclose public records, even
those subject to a permissive exemption, is an exercise of discretion not proper for mandamus.
Therefore, as the CPRA does not prohibit the disclosure of public records in this instance,
AOCDS cannot use mandamus to prevent the County from disclosing the documents as that
would be forcing the County to exercise its discretion in a particular manner. This is fatal to
AOCDS' action.
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D. AOCDS Cannot Prevail on the Merits Because it Has No Standing to Prevent
Disclosure in a Reverse-CPRA Action
While the case of Marken v. Santa Monica-Malibu Unified School District, supra, 202
CaLAppA^*^ 1250 [''Marken"], contemplates that a third party may have standing to bring an
action under the CPRA to enforce his or her own individual privacy rights independent of the
CPRA, there is no authority for the idea that a third party may step into the shoes of the agency
and claim an exemption on the agency's behalf, which is exactly what AOCDS is attempting to
do here. As section 6255 expressly states, "The agency shall justify withholding any record by
demonstrating that the record in question is exempt.. (Gov. Code, § 6255(a) [emphasis
added].)
Marken involved claims of sexual harassment against a high school mathematics teacher,
which subsequently resulted in an investigation and disciplinary action by the school district
{Marken, supra, 202 Cal.App.4'^ at pp. 1255-1256.) The CPRA requestor in Marken sought
disclosure of the investigation and findings. The court, which ultimately denied Marken's
request for a preliminary injunction, did determine that Marken had a legally protected privacy
interest in his personnel files pursuant to the California Constitution, which he had standing to
assert. {Id. at pp. 1271-1272.) Marken was not claiming the records were exempt from the
CPRA but, rather, that the records were prohibited from being disclosed pursuant to law despite
the CPRA ). Despite his standing, however, the Marken court nevertheless found that the public
interest in disclosure was greater than the public interest in nondisclosure.
In this case, the right to claim an exemption to the CPRA does not belong to AOCDS, it
belongs to the County. AOCDS does not possess a right under the CPRA to prevent disclosure.
Moreover, there is no claim that the law otherwise requires nondisclosure, as in Marken, giving
the records an independent basis for exemption subject to subdivision (c) of the Government
Marken's legally cognizable privacy interest stemmed from the California Constitution,which would have also potentially made them exempt pursuant to section 6254(k), had theMarken court balanced the interests in his favor.
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Code. AOCDS does not and cannot assert a privacy right.'* Accordingly, AOCDS lacks
standing to assert that the records are exempt pursuant to 6255.
E. AOCDS is Unlikely to Succeed on the Merits On The First Cause of Action
Because The Records Are Clearly Subject To Disclosure Under The
California Public Records Act
In order to succeed on the merits of this action, AOCDS needs to show that the County is
prohibited from complying with its statutory duty to provide the records under the CPRA. (Gov.
Code, § 6250 et seq.)
As stated above, the Legislature enacted the CPRA "mindful of the right of individuals to
privacy" and to this end, has declared "access to information concerning the conduct of the
People's business is a fundamental and necessary right of every person in this state." (Gov.
Code, § 6250.) As a result, the CPRA requires disclosure of any and all public records unless
"exempt from disclosure by express provisions of law." (Gov. Code,§ 6253.) Public records are
defined as "any writing containing information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local agency regardless of physical form or
characteristics." (Gov. Code, § 6252(e).)
Here, the records at issue consist of proposals, counter-proposals and supposals^
exchanged between the County and the union for a group of public employees in the course of
collective bargaining. As such, they no doubt fall within the definition of public records under
the CPRA in that they relate to the conduct of the public's business because they reflect the
fundamental negotiation process between public employees and their public employer. In
addition, the records are used and retained by the County. Petitioner's claim that the records are
exempt implicitly concedes that the records at issue are, in fact, public records. The question
then becomes, assuming Petitioner even has standing, whether or not the records are exempt.
The Court of Appeal recently ruled on this issue, holding that the right of privacy is apersonal one; an agency or association cannot assert privacy rights on behalf of others.(Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC (2015)239 Cal.App.4th 808, 821.)
As used here, a "supposal" is a hypothetical position presented by one party to the otherparty to determine if there is any room for movement in the offer.
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Importantly, they are not exempt from disclosure by any express provision of law as no
categorical exemption applies that would prohibit the disclosure of labor contract documents
such as those requested in this case. In addition, the County is unaware of any published
California appellate decisions addressing the applicability of the CPRA to labor contract
proposals, counter-proposals and supposals.
Thus, since no express exemption applies to these records the only other consideration is
whether, pursuant to the "catch-all" exemption provided by section 6255, the records should not
be disclosed. It should be noted, however, that section 6255 permits but does not require the
withholding of records if "on the facts of a particular case the public interest served by not
disclosing the record clearly outweighs the public interest served by disclosure of the record."
(Gov. Code, § 6255(a).)
Here, the County maintains that the public interest served by disclosure is paramount. In
order to have transparency and openness in government, the County believes that the public has
a right to know about what transpires during contract negotiations with its employees. The law
does not prevent the County from making such records available for that purpose.
The Meyers-Milias-Brown Act (Government Code section 3500 et seq.\ "MMBA" or
"Act") provides the procedures for employer-employee labor negotiations for local government
agencies. The MMBA reserves to local agencies the right to pass ordinances and promulgate
regulations consistent with the purposes of the MMBA. (See Los Angeles County Civil Service
Commission v. Superior Court (1978) 23 Cal.3d 55, 63.) The MMBA is silent regarding
whether labor negotiating sessions held pursuant to the Act are to be public or private. (See 61
Ops. Cal. Att'y Gen. 1 (1978).) In other areas of public sector labor negotiations, the
requirement that a bargaining proposal be made public, or "sunshined" have been upheld. Such
laws recognize that collective bargaining in the public sector is a matter of public concern.
These laws also recognize the importance of public participation in decisions impacting the
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governmental process, even as to matters clearly within the scope of representation. ̂ Although
the public is normally excluded from actual bargaining, mediation, and fact-finding sessions, as
well as from executive sessions of the public entity regarding negotiations, ̂ the public release ol
information about these events is permitted in other public sector employer-employee relation
settings.
Assuming that Petitioner even has standing to assert that the records are exempt^ the
burden is on the Petitioner to show that either an express exemption applies or that the public
interest in nondisclosure clearly outweighs the interest in disclosure as it applies to the
negotiation documents. Petitioner cannot show either. The only party with an interest in
nondisclosure is the Petitioner, not the public. The taxpayers of Orange County have a right to
know where, why and how their taxpayer dollars are spent. Absent the showing of a compelling
reason the public should not have access to this information, the County is obligated to produce
the records in response to the CPRA request. Indeed, the proponent of nondisclosure must show
a "clear overbalance" of the public interest on the side of nondisclosure. {California State Univ.
V. Superior Court (2001) 90 Cal.App.4th 810, 831; City ofHemet v. Superior Court {\99S) 37
Cal.App.4th 1411, 1421 (1995).)
Petitioner tenuously claims that the public interest served by not making the records
public is "public safety through effective law enforcement," claiming that release of these
records will lead to lower moral, recruitment and retention issues, ultimately resulting in
staffing shortages which "very well could create public safety issues for the communities
served." (Petitioner's Memorandum at 6:21-23, 7:4-11 [emphasis added].) This claim is
See, Government Code §§ 3523 (Dills Act, governing employee-errmloyer relations formost state agencies), 3547 (fifucational Employment Relations Act [EER/y, governingemployee-emplcwer relations for public schools), 3595 (Higher Education Employer-EmployeeRelations Act [HEERA], governing employee-emplcwer relations for the University ofCalifornia and California State University systems); Pub. Util. Code § 99569 (Los AngelesMetropolitan Transportation Authority Transit Employer-Employee Relations Act [TEERA],governing employee-employer relations for the Los Angeles Metropolitan TransportationAuthority ana its supervisors).
^ See, Government Code § 54957.6 which exempts meet-and-confer sessions of local publicemployers with employee representatives pursuant to the MMBA from the public meetingrequirements of the Brown Act, but does not prohibit release of information from those closedsessions if authorized by the legislative body.
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speculative at best. AOCDS appears to concede that, even were this "parade of horribles" to
take place, it could, not would, create public safety issues. Moreover, even cases where there
was an acknowledged public safety issue, courts have consistently held the records subject to
disclosure.
For example, in Commission on Peace Officer Standards & Training v. Superior Court
(2014) 42 Cal.4*'^ 278, the commission resisted disclosure of names and employment data of
peace officers throughout the state, claiming that "in light of the 'dangerous and demanding
work' performed by peace officers, releasing such information to the public creates a 'potential
for mischief.'" {Id. at p. 301). The Supreme Court disagreed:
The safety of peace officers and their families is most certainly alegitimate concern, but the Commission's contention that peaceofficers in general would be threatened by the release of informationin question is purely speculative. 'A mere assertion of possibleendangerment' is insufncient to Justify nondisclosure. [Citations.]The Commission has not offered any persuasive illustration of howdisclosure of the innocuous information at issue could 'createmischief for peace officers in general.
{Id. at pp. 301-302; see also, American Civil Liberties Union ofNorthern Cal v. Sup. Ct. (2011)
202 Cal.App.4th 55, 72.)
Additionally, in CBS, Inc. v. Block (1986) 42 Cal.3d 646, the Supreme Court rejected the
Los Angeles County Sheriffs argument that the press and public were prohibited under the
CPRA from obtaining information contained in applications for and licenses to possess a
concealed weapon, even though the sheriff argued that disclosure would "allow would-be
attackers to more carefully plan their crime against licensees and will deter those who need a
license from making an application," finding the argument conjectural. {Id. at p. 625; see also,
American Civil Liberties Union of Northern Cal, supra, 202 Cal.App.4th at pp. 72-73.)
In fact, the nature of the threat required to justify exemption under section 6255 is
discussed in Times Mirror v. Superior Court (1991) 53 Cal.3d 1325, the facts of which involved
a CPRA request for the Governor's appointment schedules and calendars. The evidence in
Times Mirror, established that that disclosure of the Governor's daily and weekly schedules in
exhaustive detail would impair the ability to assure the Governor's security and "constitute an a
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potential threat to the Governor's safety, because the information... will enable the reader to
know in advance and with relative precision when and where the Governor may be found, those
persons who will be with him, and when he will be alone" {Id. at p. 1346) Here, the public
safety "threat" is far more speculative—^there is no evidence, let alone explanation, presented
that establishes that release of the documents will undermine the ability of the parties to bargain
effectively, that it will cause them to bargain politically, or that it will result in lower pay and
subsequent problems in recruitment and retention, thereby having an impact on public safety.
These assertions are nothing short of conjecture.
Petitioner also cites Michaelis, Montanari & Johnson v. Superior Court (2006) 38
Cal.4th 1065 [Michaelis'\, for the proposition that the public interest in nondisclosure at the
negotiating stage outweighs the public interest in disclosure, claiming that Michaelis is
analogous to the case at hand. However, Petitioner's reliance on Michaelis is misplaced, as the
facts of that case are vastly different and readily distinguishable.
In Michaelis, the court considered whether proposals submitted to the City of Los
Angeles Department of Airports, also known as Los Angeles World Airports (LAWA), for the
lease of a 7.2854-acre parcel of land at Van Nuys Airport were subject to disclosure after the
deadline for submitting proposals had passed, but before LAWA had negotiated with or selected
the successful proposer. LAWA informed Petitioner in that case, a law firm engaged in aviation
related business, that it would provide copies of all proposals requested pursuant to the CPRA
after LAWA had concluded negotiations with the (yet to be named) successful proposer. While
the Supreme Court concluded that the public disclosure of the competing proposals could await
conclusion of the negotiation process, the case at bench is distinguishable on several distinct and
significant grounds.
First and foremost, the County here, unlike the LAWA, has decided that the public
interest in disclosure outweighs any benefit of keeping the negotiations between the County and
AOCDS. As discussed above, since it is public agency's discretion as to whether to release the
documents, and as no specific exemption applies, the analysis should end here. Second, unlike
in the Michaelis case, there is no risk here that a competitor of AOCDS would have an unfair
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advantage in the negotiation process, thereby hampering the County's ability to get the best deal
The only two negotiating parties are the County and AOCDS. In light of the CPRA's statement
that "access to infomiation concerning the conduct of the people's business is a fundamental and
necessary right of every person in this state," the public has a right to the documents relating to
this negotiation process.
Accordingly, even if this court were to allow AOCDS to assert an exemption to the
CPRA, for which there is no authority to do so, AOCDS does not and cannot show that the
public interest in nondisclosure "clearly outweighs" the public interest in disclosure.
F. AOCDS Is Unlikely To Prevail On The Second Cause Of Action Because The
Release Of Public Records Pursuant To A CPRA Request Is Not A Violation
Of The Duty To Bargain In Good Faith
Petitioner contends that if County produces the requested documents pursuant to the
CPRA it would violate the duty to bargain in good faith under Government Code section 3505.
This contention is wholly without merit.
As an initial matter, Petitioner misstates the law in alleging that "reneging on an
established ground rule is a violation of the duty to bargain." (See Petitioners' Memorandum of
Points and Authorities at p.8.) (Emphasis added.) This statement implies that failure to comply
with a ground rule constitutes a "per se violation" when at best, the PERB decisions cited by
Petitioner hold that it is merely an indicia of bad faith to be considered under the "totality of the
circumstances" in determining whether there is good faith bargaining.
In Stockton Unified School District (1980) PERB Dec. No. 143, cited by Petitioner, the
Board quoted from an earlier decision which delineated the distinctions between the two tests as
follows:
In Pajaro Valley Unified School District (1978) PERB Dec. No. 51,pages 4-5. The Board noted:
The National Labor Relations Board (hereafter NLRB) has long heldthat [a duty to bargain in good faith] requires that the employernegotiate with a bona fide intent to reach an agreement. Citationomitted.] The standard generally applied to determine whether goodfaith bargaining has occurred has been called the 'totality of conduct'test. [Citation omitted.] This test looks to the entire course of
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negotiations to determine whether the employer has negotiated withthe requisite subjective intention of reaching an agreement.
There are certain acts, however, which have such a potential tofrustrate negotiations and to undermine the exclusivity of thebargaining agent that they are held unlawful without anydetermination of subjective bad faith on the part of the employer.
The latter violations are considered per se violations. {NLRB v. Katz(1962) 369 U.S. 736.) An outright refusal to bargain or a unilateralchange in the terms and conditions of employment are two examplesof per se violations of the duty to negotiate. {Id.)
Notwithstanding Petitioner's misapplication of the standard. County did not renege on an
established ground rule. As Petitioner has acknowledged, the agreement was that the parties
would not publicize the documents and County has adhered to that agreement. It should be
noted that agreeing "not to go to the press" is not akin to agreeing that public records would not
be released pursuant to a request made under the CPRA. Petitioner has not alleged, and cannot
allege that the County agreed not to comply with the CPRA. (See Berliner Declaration at fl 3-
6.) And, to be sure, complying with a CPRA request is not the same as the County unilaterally
and on its own volition publicizing the documents. Thus if County were to comply with the
CPRA request and release the documents, no violation of the "ground rules" would occur nor
would it constitute a violation of the duty to bargain in good faith under the Government Code.
Assuming arguendo that the Court was to find that the County would in fact be reneging
on a ground rule by producing the requested documents, the analysis would not end there. In
establishing the presence or absence of good faith in pursuant to Government Code section
3505, the trier of fact reviews the "totality of the circumstances" and makes a factual
determination as to whether the bargaining conduct of the parties is indicative of a subjective
intention to participate in good faith in the bargaining process and ultimately reach an
agreement. (See, Placentia Fire Fighters v. City of Placentia {\91(>) 57 Cal.App.3d 9, 25.) In
other words, the court would need to consider all of the bargaining conduct to date to decide if
the County has breached its duty to bargain in good faith. Notably, Petitioner has not alleged,
and cannot allege that to date, County has done anything indicating bad faith with respect to its
negotiations with AOCDS. And, unless the conduct is egregious, the mere presence of one
indicia alone is generally insufficient to establish bad faith. {Regents of the University of
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California (1985) PERB Dec. No. 520-H.) '
Although unclear, Petitioner's secondary argument appears to be that the release of the
documents will compromise negotiations and interfere with the bargaining process but offers no
proof that this would in fact occur and cites no authority that this would constitute a per se
violation of the duty to bargain in good faith. Again, even if Petitioner could demonstrate that it
constitutes indicia of bad faith, under the totality of the circumstances test it would merely be
one factor for the Court to consider.
Regardless of how Petitioner couches this argument, it fails for the reasons stated infra as
Petitioner has failed to prove a violation of Government Code section 6255 will occur or that the
negotiation process will be affected by the release of these documents to the requestor. Indeed
Petitioner's entire Application and argument is based on speculation as to the County's behavior
as well as the behavior of its membership in response to a release of these documents while
ignoring the fact that this is only a small part of a comprehensive bargaining process.
G. Petitioner Cannot Show That It Will Suffer Irreparable Harm If The
Injunction Is Not Granted
As with the public interest in nondisclosure, any harm that Petitioner alleges should the
court not grant its TRO and preliminary injunction is speculative at best. Petitioner has simply
not met its burden. In contrast, the County has a very real statutory deadline to comply with the
CPRA and, if the County fails to comply within that deadline, the Real Party in Interest is
entitled to bring an action pursuant to the CPRA and recover attorneys' fees. The CPRA
provides for an expedited method of resolving CPRA disputes and fostering disclosure, while
discouraging delay. (See Filarsky v. Sup. Ct. (2002) 28 Cal.4''^ 419,426-427.) There is a "clear
legislative intent that the determination of the obligation to disclose records requested from a
public agency be made expeditiously." (Jbid.)
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MEMORANDUM OF POINTS AND AUTHORITIES
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3. CONCLUSION
For all the foregoing reasons, the County respectfully requests that the request of AOCDS
for a temporary restraining order be denied.
DATED; January 28, 2016 Respectfully submitted,
LEON J. PAGE, COUNTY COUNSELLAURIE A. SHADE, SENIOR DEPUTYand REBECCA S. LEEDS, SENIOR DEPUTY
Rebecca S. Leeds, Senior Deputy
Attorneys for Respondents
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MEMORANDUM OF POINTS AND AUTHORITIES
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PROOF OF SERVICE
I declare that I am a citizen of the United States employed in the County of Orange, over18 years old and that my business address is 333 West Santa Ana Boulevard, Suite 407, SantaAna, California 92701; and, my email address is [email protected]. I am not a partyto the within action.
On .lanuary 28, 2016,1 served the foregoing COUNTY RESPONDENTS'OPPOSITION TO EX PARTE APPLICATION FOR A TEMPORARY RESTRAININGORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTTHEREOF on all other parties to this action in the following manner:
[X] (BY ELECTRONIC SERVICE) Pursuant to California Rules of Court, rule 2.251(c)(2),I caused an electronic version of the document(s) to be sent to the person(s) listed below.
[] (BY U.S. MAIL) I placed such envelope(s) addressed as shown below for collection andmailing at Santa Ana, California, following our ordinary business practices. I am readilyfamiliar with this office's practice for collecting and processing correspondence for mailing. Onthe same day that correspondence is placed for collection and mailing, it is deposited in theordinary course of business with the United States Postal Service in a sealed envelope withpostage fully prepaid.
[] (BY FACSIMILE) I caused such document to be telefaxed to the addressee(s) andnumber(s) shown below, wherein such telefax is transmitted that same day in the ordinarycourse of business.
[] (BY PERSONAL SERVICE) I caused such envelope(s) to be hand-delivered to theaddressee(s) shown below.
[] (BY ELECTRONIC SERVICE) Based on an agreement of the parties to accept electronicservice, I caused the document to be sent to the persons at the electronic addresses listed below.
I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct.
DATED: January 28, 2016
Marzette L. Lair
NAME AND ADDRESS TO WHOM SERVICE WAS MADEAdam E. Chaikin, Esq.OLINS RIVIERE COATES AND BAGULA,LLP2214 Second AvenueSan Diego, CA92101Tel.: (619)272-4235Facsimile: (619)272-4309Email: [email protected]
Attorneys tor Plaintift/Petitioner,Assoeiation of Orange County DeputySheriffs
Craig P. Alexander, Esq.Law Ofc Craig P Alexander24681 La Plaza Ste250Dana Point, CA 92629Phone Number: (949)481-6400Fax Number; (949) 242-2545e-mail: [email protected]
Attorney for Real Party in Interest,FlashReport
PROOF OF SERVICE
