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Court's ruling - partial rough Draft - 5-2-14

THE COURT: Thank you. Recalling line number three, Aurora
Advisors, Incorporated, versus CalPERS.
Good morning, again. Counsel are all here.
MS. MORROW: Good morning.
THE COURT: I am ready to make my ruling.
THE COURT: I considered the Petition for Writ of Mandate,
as well as the written submissions that were filed that I
articulated at the beginning of the hearing.
I also considered the testimony today and the exhibit that
was introduced in evidence today, Exhibit 1.
Let me start by ruling on the evidentiary objections.
The objections to the Gregory declaration, the first and the
second Gregory declarations, are overruled.
The objections to the second declaration of Michael Olenick,
O-L-E-N-I-C-K, I am sustaining the following objections.
Objection number 7 is irrelevant.
Objection number 10, sustained. Hearsay. Argumentative.
Objection number 11, sustained. Irrelevant. Improper
opinion.
Objection number 12, sustained. Hearsay.
Objection number 14, sustained. Irrelevant. Lacks
foundation.
Objection number 15, sustained. Improper argument.
And I am referring to the objection numbers in the written
objections to evidence that were filed by the objecting party,
CalPERS.
The remainder of the objections are overruled.
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Then I will give my ruling on the motion.
The Petition for Writ of Mandate is denied.
This case, in essence, is about whether CalPERS responded to
a Public Records Act request for the same data it gave the
authors of an Oxford Private Equity Study in 2009.
CalPERS has never objected to producing the records Aurora
has asked for.
CalPERS provided data before and after the Writ Petition was
filed.
CalPERS has indicated a willingness to investigate
further, and to confirm it has produced all requested documents.
And if not, to produce any remaining data.
The Public Records Act Request has been somewhat of a moving
target since the request asks for a specific 2009 data set
provided to -- that CalPERS produced to the authors of a study,
and then morphed into seeking additional data.
Respondent's explanation or CalPERS' explanation for the
initial closure of the request is reasonable, and the e-mail
exchanges between CalPERS and the authors of the article in
question support this explanation.
CalPERS demonstrates with evidence its intent to produce all
of the information requested by Petitioner, and its attempts to
clarify what that request encompasses render a writ unnecessary.
I find that the Plaintiff is not the prevailing party and
not entitled to award of attorney's fees and costs pursuant to
Government Code 6259(d).
I find that the litigation did not motivate CalPERS to
release the requested documents. The Public Records Act doesn't
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specify when records must be produced. And I am citing the
Motorola Communication & Electronics Incorporated versus
Department of General Services, 55 Cal.App.4th, 1340 at 1349.
At no time did CalPERS ever refuse to produce documents or
claim an exemption, yet repeatedly offered if there were any
further questions or missing documents that Petitioners should
let them know.
So pursuant to 6259(d) of the Government Code and the
standards set forth explicating that in the Motorola
Communications case, I find an award of attorney's fees and
costs is not warranted in the case.
That's my ruling, and I thank everybody for your papers and
for your arguments here today.
MR. GREGORY: Thank you, Your Honor.
MR. FONG: Thank you, Your Honor.
THE COURT: And, Mr. Fong, the clerk has asked me to return
Exhibit 1 to you for safekeeping. I'll do that now and note
that Exhibit 1 is a eight-page document. I'm just counting the
one-side aspect of it and not the two-side aspect of it.
I will give it to the deputy to give to you.
MR. GREGORY: Thank you.
(Proceedings concluded.)

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