1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIGGS LAW CORPORATION [FILE: 1953.00] Cory J. Briggs (State Bar no. 176284) Anthony N. Kim (State Bar no. 283353) 99 East C Street, Suite 111 Upland, CA 91786 Telephone: 909-949-7115 LAW OFFICES OF ABENICIO CISNEROS Abenicio Cisneros (State Bar no. 302765) 2443 Fillmore Street, #380-7379 San Francisco, CA 94115-1814 Attorneys for Plaintiff and Petitioner Terrie Best SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO HALL OF JUSTICE TERRIE BEST; and DOES 1 through 10, ) ) Plaintiffs and Petitioners, ) ) vs. ) ) SAN DIEGO COUNTY DISTRICT ATTORNEY S ) OFFICE; COUNTY OF SAN DIEGO; BONNIE ) DUMANIS; and DOES 11 through 100, ) ) Defendants and Respondents. ) CASE NO. V E R I F I E D C O M P L A I N T F O R DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT AND OTHER LAWS Plaintiff and Petitioner TERRIE BEST ( PLAINTIFF ) alleges as follows: Introductory Statement 1. PLAINTIFF brings this lawsuit under the California Public Records Act ( CPRA ), as well as the California Constitution, the common law, and other applicable legal authorities. PLAINTIFF made a lawful request for public records to Defendants/Respondents, but they have illegally failed to respond to the requests and produce responsive public records. Parties 2. PLAINTIFF is a taxpayer who resides within the City of San Diego.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Defendant and Respondent SAN DIEGO DISTRICT ATTORNEY S OFFICE ( SDCDA ) is a department operating under the umbrella of Defendant and Respondent COUNTY OF SAN DIEGO ( COUNTY ). SDCDA and COUNTY are each a local agency within the meaning of Government Code Section 6252. Defendant and Respondent BONNIE DUMANIS was the head of SDCDA until on or about July 7, 2017, and is being sued as an indispensable party under Tracy Press v. Superior Court, 164 Cal. App. 4th 1290 (2008). 4. The true names and capacities of the Defendants/Respondents identified as DOES 1 through 100 are unknown to PLAINTIFF, who will seek the Court s permission to amend this pleading in order to allege the true names and capacities as soon as they are ascertained. PLAINTIFF is informed and believes and on that basis alleges that each of the fictitiously named Defendants/Respondents 11 through 100 has jurisdiction by law over one or more aspects of the public records that are the subject of this lawsuit or has some other cognizable interest in the public records. 5. PLAINTIFF is informed and believes and on that basis alleges that, at all times stated in this pleading, each Defendant/Respondent was the agent, servant, or employee of every other Defendant/Respondent and was, in doing the things alleged in this pleading, acting within the scope of said agency, servitude, or employment and with the full knowledge or subsequent ratification of his principals, masters, and employers. Alternatively, in doing the things alleged in this pleading, each Defendant/Respondent was acting alone and solely to further his own interests. Jurisdiction and Venue 6. The Court has jurisdiction over this lawsuit pursuant to Government Code Sections 6258 and 6259; Code of Civil Procedure Sections 526a, 1060 et seq., and 1084 et seq.; the California Constitution; and the common law, among other provisions of law. 7. Venue in this Court is proper because the obligations, liabilities, and violations of law alleged in this pleading occurred in the County of San Diego in the State of California. FIRST CAUSE OF ACTION: Violation of Open-Government Laws (Against All Defendants/Respondents) 8. The preceding allegations in this pleading are fully incorporated into this paragraph. 9. On or about January 10, 2018, PLAINTIFF submitted to SDCDA a request for certain public records. On or about January 26, 2018, PLAINTIFF narrowed her request at the behest of COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SDCDA. On or about February 2, 2018, SDCDA responded to PLAINTIFF s narrowed request, indicating that four disclosable hard-copy records were identified and asking PLAINTIFF for her mailing address. A true and correct copy of SDCDA s response, which recites the narrowed request, is attached to this pleading as Exhibit A. 10. A couple days after providing her address to SDCDA, PLAINTIFF received the four disclosable hard-copy records. A true and correct copy of the disclosed records is attached hereto as Exhibit B. 11. On or about February 9, 2018, after receiving the disclosed records, PLAINTIFF asked SDCDA three follow-up questions to ensure that it had conducted a thorough, accurate search for responsive public records. A true and correct copy of PLAINTIFF s questions is attached hereto as Exhibit C. 12. On or about February 15, 2018, SDCDA responded to PLAINTIFF s follow-up questions but provided only an evasive response that did not answer any of PLAINTIFF s questions. A true and correct copy of SDCDA s evasive response is attached hereto as Exhibit D. 13. PLAINTIFF is informed and believes and on that basis alleges as follows: A. SDCDA did not do a thorough search for all public records responsive to PLAINTIFF s request, including but not limited to failing to search for responsive public records maintained on the personal accounts and/or devices of public officials. By way of example and not limitation, SDCDA has never provided PLAINTIFF with any affidavit or other evidence like that described in Smith v. City of San Jose, 2 Cal.5th 608 (2017), to satisfactorily establish that each SDCDA-affiliated agent using a personal account and/or device has thoroughly searched for and produced all responsive public records in and/or on the agent s personal account and/or device. B. SDCDA has not produced all public records responsive to PLAINTIFF s request. C. SDCDA does not have adequate policies and/or procedures in place to ensure that responsive public records maintained in personal accounts and/or on personal devices of public officials who leave their employment with SDCDA have turned over to SDCDA all public records maintained in those accounts and/or on those devices prior to leaving their employment. 14. PLAINTIFF and other members of the public have been harmed as a result of Defendants /Respondents failure to produce all public records responsive to PLAINTIFF s request. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By way of example and not limitation, the legal rights of PLAINTIFF concerning the conduct of the people s business is being violated and continues to be violated. SECOND CAUSE OF ACTION: Declaratory Relief under Code of Civil Procedure Section 1060 et seq. (Against All Defendants/Respondents) 15. The preceding allegations in this pleading are fully incorporated into this paragraph. 16. PLAINTIFF is informed and believes and on that basis alleges that an actual controversy exists between PLAINTIFF, on the one hand, and Defendants/Respondents, on the other hand, concerning their respective rights and duties under the CPRA, the California Constitution, the common law, and other applicable legal authorities. As alleged in this pleading, PLAINTIFF contends that records responsive to her request exist and that Defendants/Respondents are required by law to produce all of them to PLAINTIFF and/or take other measures to comply with the controlling legal authorities but have not done so; whereas Defendants/Respondents dispute PLAINTIFF s contention. 17. PLAINTIFF desires a judicial determination and declaration as to whether disclosable public records were unlawfully withheld by Defendants/Respondents and whether they were required by law to produce such records in a timely manner. Prayer FOR ALL THESE REASONS, PLAINTIFF respectfully prays for the following relief against all Defendants/Respondents (and any and all other parties who may oppose PLAINTIFF in this lawsuit) jointly and severally: A. On the First Cause of Action: 1. A judgment determining or declaring that Defendants/Respondents have not promptly and fully complied with the CPRA, the California Constitution, the common law, and/or other applicable laws with regard to PLAINTIFF s request; 2. A writ of mandate ordering Defendants/Respondents to promptly and fully comply with the CPRA, the California Constitution, the common law, and all other applicable laws with regard to PLAINTIFF s request; and 3. Preliminary and permanent injunctive relief directing Defendants/Respondents to fully respond to PLAINTIFF s request and to permit PLAINTIFF to inspect and obtain copies of all responsive public records. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. On the Second Cause of Action: 1. An order determining and declaring that the failure of Defendants/Respondents to disclose all public records responsive to PLAINTIFF s request and to permit PLAINTIFF to inspect and obtain copies of all responsive public records does not comply with the CPRA, the California Constitution, the common law, and/or other applicable laws; and 2. Preliminary and permanent injunctive relief directing Defendants/Respondents to respond to and disclose all public records responsive to PLAINTIFF s request and to permit PLAINTIFF to inspect and obtain copies of all responsive public records. C. On All Causes of Action: 1. An order providing for the Court s continuing jurisdiction over this lawsuit in order to ensure that Defendants/Respondents fully comply with the CPRA, the California Constitution, the common law, and/or other applicable laws; 2. All attorney fees and other legal expenses incurred by PLAINTIFF in connection with this lawsuit; and 3. Any further relief that this Court may deem appropriate. Date: May 30, 2018. Respectfully submitted, BRIGGS LAW CORPORATION By: _ Cory J. Briggs Attorneys for Plaintiff and Petitioner Terrie Best COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 5
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT AND OTHER LAWS Exhibit A
JESUS RODRIGUEZ ASSISTANT DISTRICT ATTORNEY OFFICE OF THE DISTRICT ATTORNEY COUNTY OF SAN DIEGO SUMMER STEPHAN DISTRICT ATTORNEY San Diego 330 West Broadway San Diego, CA 92101 (619) 531-4040 http://www sandiegoda com Terrie Best February 2, 2018 Re: California Public Records Act request dated January 10, 2018 and narrowed on January 26, 2018 (CPRA 18-07) Dear Ms. Best, I am a designated custodian of records for the San Diego County District Attorney s Office, and I am responsible for compliance with the California Public Records Act (CPRA). On January 10, 2018, this Office received your email CPRA request, which states: This is a request under the California Public Records Act. This is a request for communications from former San Diego District Attorney Bonnie Dumanis. 1. Please provide all communication whether those communications were via text, email, instant messenger such as gchat, or other form of communication, whether those communications were on city-owned or private device, and whether those communications were sent from city controlled or private accounts relating to public business between Dumanis and the following individuals: 2. a. All members of the San Diego County Board of Supervisors and members of their staff b. The Mayor of San Diego and members of the mayor s staff c. Members of the City Council of San Diego and their staff d. Any member of the California State Legislature representing any portion of San Diego County and their staff e. Any employee or agent of the San Diego County Republican Party f. Any employee or agent of the Lincoln Club of San Diego County Please provide this information in electronic format where available. If there will be a fee to obtain any of this information, please provide [sic] inform me of the fee prior to
incurring it. If you need any clarification, please contact me at The District Attorney s Office denied your request by letter delivered by email dated January 18, 2018, for the reasons stated in the letter. On January 26, 2018, you responded by email with a narrowed request, which states: Thank you for your response to my California Public Records Act request. In order to meet your concerns, I will narrow the request as follows: 1. The time scope of my request is narrowed to the years 2015, 2016, and 2017. 2. Regarding the names of people, my description should be sufficient for Ms. Dumanis or others in the District Attorney s office to identify records. If Ms. Dumanis was corresponding with a member of the Board of Supervisors, the Mayor, a State Legislator, or a member of their staff, or an employee of the San Diego County Republican Party or Lincoln Club of San Diego, she should be aware of that fact. As such, I decline to narrow my search with respect to the individuals named. I will, however, provide a partial list of names of individuals encompassed in my search, as a courtesy. San Diego County Board of Supervisors Members District 1: Greg Cox District 2: Dianne Jacob District 3: Dave Roberts (2015, 2016); Kristin Gaspar (2016, 2017) District 4: Ron Roberts District 5: Bill Horn Mayor of San Diego Kevin Faulconer San Diego City Council District 1: Sherri Lightner (2015, 2016); Barbara Bry (2016, 2017) District 2: Lorie Zapf District 3: Todd Gloria (2015, 2016); Chris Ward (2016, 2017) District 4: Myrtle Cole District 5: Mark Kersey District 6: Chris Cate District 7: Scott Sherman District 8: David Alvarez District 9: Marti Emerald (2015, 2016); Georgette Gomez (2016, 2017)
State Senate Districts 36th District: Patricia Bates 38th District: Joel Anderson 39th District: Marty Block (2015, 2016); Toni Atkins (2016, 2017) 40th District: Ben Hueso State Assembly District 71st District: Brian Jones (2015, 2016) Randy Voepel (2016, 2017) 75th District: Marie Waldron 76th District: Rocky Chavez 77th District: Brian Maienschein 78th District: Toni Atkins (2015, 2016); Todd Gloria (2016, 2017) 79th District: Shirley Weber 80th District: Lorena Gonzalez Fletcher Current Officers of the San Diego County Republican Party Tony Krvaric Barrett Tetlow Paula Whitsell Jeannie Foulkrod Bud Mcleroy Current Staff of the San Diego County Republican Party Jordan Gascon Connor Fallon Rebekah Basson Current Officers, Board of Directors, Membership Committee Members, and PAC Leadership of the Lincoln Club can be found here: https://www.sdlincolnclub.com/club-leadership-2/ Current Staff of the Lincoln Club can be found here: https://www.sdlincolnclub.com/staff/ 3. The request applies to all communications from Ms. Dumanis which relate to public business and are therefore public records under the CPRA. Communications which do not relate to public business are not public records and outside the scope of this request. I decline to narrow my scope to public records concerning certain issues. My request for all communications between Ms. Dumanis and these individuals and/or their staff reasonably describes identifiable records. Please let me know if you have any questions about this. Thank you. Please reply to or respond to:
The District Attorney s Office conducted a reasonable search for records based on your narrowed request, and four disclosable hard-copy records were identified. Please provide a mailing address and we will mail you a copy of the records. Or, if you would prefer to pick up the records in person, we can make them available to you at the downtown District Attorney s Office in the Hall of Justice, which is located at 330 West Broadway, San Diego, CA 92101. Please advise us which method of delivery you prefer. Sincerely, James E. Atkins Deputy District Attorney San Diego County District Attorney s Office Appellate and Training Division
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT AND OTHER LAWS Exhibit B
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT AND OTHER LAWS Exhibit C
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT AND OTHER LAWS Exhibit D
JESUS RODRIGUEZ ASSISTANT DISTRICT ATTORNEY OFFICE OF THE DISTRICT ATTORNEY COUNTY OF SAN DIEGO SUMMER STEPHAN DISTRICT ATTORNEY San Diego 330 West Broadway San Diego, CA 92101 (619) 531-4040 http://www sandiegoda com Terrie Best February 15, 2018 Re: California Public Records Act follow-up request dated February 9, 2018 (CPRA 18-07) Dear Ms. Best, I am a designated custodian of records for the San Diego County District Attorney s Office, and I am responsible for compliance with the California Public Records Act (CPRA). On February 9, 2018, this Office received your email CPRA follow-up request, which states in pertinent part: I have some additional questions and a follow-up request. 1. Did the District Attorney s office request records from Ms. Dumanis in relation to this request for records in her possession, or are the records all the result of a search that did not include contacting Ms. Dumanis? 2. Before she resigned, did Ms. Dumanis provide your office with a copy of all public records that exist in any of her private accounts (such as private e-mail accounts) or that exist on any of her private devices (such as mobile phones or tablets)? Request: If Ms. Dumanis provided your officer [sic] with a copy of all public records that exist in any of her private accounts (such as private e-mail accounts) or that exist on any of her private devices (such as mobile phones or tablets), please provide those records. Government Code section 6253, subdivision (c), provides in relevant part: Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. (Italics added.)
Former District Attorney Bonnie Dumanis retired on July 7, 2017. The District Attorney s Office conducted a reasonable search for records based on your follow-up request, and no records were identified. Sincerely, James E. Atkins Deputy District Attorney San Diego County District Attorney s Office Appellate and Training Division