County of Riverside v. Super. Ct.
Filed 1/21/10 County of Riverside v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
COUNTY OF RIVERSIDE et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; JOHN BLAIR BEACH, Real Party in Interest. | E049716 (Super.Ct.No. BLC004904) OPINION |
ORIGINAL PROCEEDING; petition for extraordinary writ. Sarah Adams Christian, Judge. Petition granted.
Pamela J. Walls, County Counsel, and Jonathan D. Holub, Deputy County Counsel, for Petitioners.
No appearance for Respondent.
John Blair Beach, in pro. per., for Real Party in Interest.
In this matter we have determined that the superior court erred in granting a peremptory writ of mandate without affording the County of Riverside (County) due process. Accordingly, after reviewing Countys petition and the opposition, we grant Countys petition for writ of mandate. Because theresolution of the matter involves the application of settled principles of law, issuance of a peremptory writ in the first instance is appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
FACTS
This petition arises from a request for a disclosure of records under the California Public Records Act. (Gov. Code, 6250 et seq.) Real party in interest John Beach (Beach) made a request to County for disclosure of records pertaining to a decision regarding placement of a sexually violent predator. When he did not obtain those records, on October 26, 2009, he filed in superior court a petition for a peremptory writ of mandate to compel County to allow him access to them. At the time of filing, the superior court set a status hearing for December 4, 2009, and assigned the case to a department.
Beach filed proofs of service on October 28, 2009.
The superior courts register of actions indicates a proceeding on November 13, 2009, for default judgment by court. On the same day, the superior court granted the petition for writ of mandate, and vacated the status hearing that had been set for December 4, 2009.
The order granting the petition is on a generic form, and the clerks certificate of mailing indicates that County was not mailed a copy.
County alleges that it had no notice that the petition had been granted until it checked the superior courts electronic docket. It seeks a writ of mandate from this court to set aside the trial courts action.
DISCUSSION
Government Code section 6258 provides that in an action pursuant to the Public Records Act, the time for responsive pleadings and for hearing are to be set by the superior court with the object of securing a decision as to these matters at the earliest possible time. In this case, the superior court never set a time for responsive pleadings or a hearing other than to set a status hearing on December 4, 2009. Before this date, however, the court granted a peremptory writ of mandate on November 13. There is an entry on the docket also on November 13, 2009, referring to a default judgment.
It appears that the court may have been proceeding under Code of Civil Procedure section 1088 providing for at least 10 days notice,[1]but County has 30 days to respond. (Code Civ. Proc., 1089.5.) Thus, while County may have been given the minimum due notice, it was not given an opportunity to respond. Due process requires that the adverse party receive notice and an opportunity to be heard before a peremptory writ of mandate issue. (Palmav.U.S. Industrial Fasteners, Inc., supra,36 Cal.3d 171.) This due process requirement was not met where the petition was granted before 30 days had elapsed from the time of service, and before the date set for a status hearing. Even though Beach sought a peremptory writ in the petition, County was not on notice that the superior court would act before either of these dates or without setting a time for a responsive pleading. The superior court should have at least issued an order to show cause pursuant to Government Code section 6259, subdivision (a).
Beach asserts that the trial court did not order disclosure of the records, but only that there be an in camera review of any record, which County claims is exempt from disclosure. Thus, he claims that writ review is not provided for under Government Code section 6259, subdivision (c). However, his petition prays for the issuance of a peremptory writ of mandate directing disclosure as well an in camera review of any records County claims are exempt. The superior court granted the petition for writ of mandate without qualification and vacated the status hearing date. It has set no date for in camera review or, indeed, any future action save for the destruction of records in 2019. Even if the trial courts grant was limited, it was error for it to act on the petition without providing County due process as discussed above.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order granting a peremptory writ of mandate and to consider the petition in accordance with the principles of due process outlined in this order.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Each party to bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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[1] When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and with the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of intention to appear for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not. (Code Civ. Proc., 1088.)
