April 15, 2008 — The Court of Appeal of the State of California Third Appellate District has remanded the case of Eileen Spencer v. Lassen Municipal Utility District to the Lassen County Superior Court. The appeals court’s decision was filed on Wednesday, April 9. While the court upheld LMUD’s right to collect attorneys fees from Spencer, the case was returned to Lassen County so the original trial court may “redetermine” how many hours LMUD’s attorneys spent defending the case and then consider Spencer’s ability to pay those fees.

Spencer filed a petition in December 2002 alleging LMUD, a publicly owned utility district, failed to provide documents or redacted the documents in such as way as to render them meaningless.

Spencer also sought a copy of a draft feasibility study for a proposed hydroelectric project for Arrowrock Dam near Boise, Idaho. The court determined the draft feasibility study was not a public document.

LMUD alleged Spencer’s petition was frivolous, and the utility district sought to collect the money it spent to defend the case.

In its decision in this case, the appeals court said frivolous, “as applied to litigation, means that any reasonable attorney would agree it lacked merit, or that it was subjectively intended only to harass an opponent.”

According to the court file, “Petitioner filed her petition on Dec. 16, 2002. This was after LMUD had provided her with every document she had requested, other than redacting private information, not producing documents that didn’t exist and other than refusing to disclose a draft feasibility study. Petitioner filed numerous confusing, ambiguous and sometimes repetitive requests for public records.

“She has represented to this court that she didn’t receive documents, when the record she submitted to the court reflects that she did receive the documents. The law is not in such a state of confusion as to have caused the petitioner to reasonably believe that she was entitled to the redacted information or that she was entitled to the draft feasibility study. For these reasons, the court finds that petitioner’s writ of mandate proceedings to obtain the records is clearly frivolous and therefore awards LMUD court costs and reasonable attorney’s fees.”

According to the appeals court, “In the course of 18 months, the plaintiff (Spencer) sent 187 letters (often ambiguous as to whether they were California Public Records Act requests), did not respond to LMUD’s efforts to clarify the nature of her requests and refused to use a form LMUD developed for CPRA requests (though it is questionable whether the latter can be evidence of bad faith, since requests do not even need to be in writing … ”

The appeals court noted Spencer failed to have the original trial judge, former Lassen County Superior Court Judge Ridgely Lazard, review LMUD’s documents in camera and “substantiate an agency’s objection to disclosing them … Indeed, LMUD’s own responses invited the plaintiff to ‘seek redress from the Lassen County Superior Court’ if she were not satisfied … the plaintiff was entitled to demand substantiation of LMUD’s positions sufficient to satisfy a reasonable attorney that LMUD was correct to withhold them … the plaintiff for the most part has persisted in this litigation well after the receipt of information adequate to support LMUD’s assertions.”

While the court found some of the information Spencer sought was not frivolous, “The nonfrivolous portions of the present petition were only a minor part of what the plaintiff sought to disclose. As a result, an award of legal fees to LMUD is still warranted.”

The court sent the case back to the local court to “redetermine the general accuracy of the hours claimed … Once the total award is corrected, the trial court must them determine the plaintiff’s ability to pay it.”