Judge Carolyn M. Caietti, Case 37-2022-00014740-CU-MC-CTL 2023-10-13 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2022-00014740-CU-MC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Misc Complaints - Other Discovery Hearing 37-2022-00014740-CU-MC-CTL PROJECT FOR OPEN GOVERNMENT VS CITY OF LEMON GROVE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Opposition - Other, 10/02/2023

Plaintiff/Petitioner Project for Open Government's Motion to Compel Deposition Responses is GRANTED IN PART AND DENIED IN PART.

Background Plaintiff alleges the City Council of the City of Lemon Grove (City) violated the Brown Act because there are no agendas or minutes for when the Council: (i) created a mandate that members of the Lemon Grove City Council deal with internal and external services provided by the City only through the City's City Manager and not through individual members of City's staff or third party contractors; (ii) revoked the Lemon Grove City Council members' access codes to City Hall; and (iii) ordered the City Hall conference room be locked. The City maintains its actions were proper because they occurred in closed-session meetings between the City Council and its City Attorney. Plaintiff responds the City has not provided any documents to show when the closed-session meetings occurred, who was present, how many votes were cast in favor of and/or against the item of business as required under the Brown Act.

Discussion Courts may grant a motion to compel deposition answers 'if a deponent fails to answer any question.' (C.C.P., § 2025.480(a).) As part of the discovery process, Plaintiff convened the deposition of Lydia Romero, the City's Person Most Qualified and City Manager; and a former City councilmember, Jerry Jones. At each deposition, the City objected to certain questions and advised the witnesses not to answer to the extent they could only answer based on what was learned in a closed-session meeting with the City Attorney and City Council or in discussions with the City Attorney. The City asserts the answers are protected by the attorney-client privilege, deliberative-process privilege and the duty of closed-session confidentiality under the Brown Act.

The parties largely do not dispute the applicable law. The attorney-client privilege protects confidential communications between an attorney and its client. (Evid. Code, § 954.) As explained in Wood v. Superior Court (2020) 46 Cal.App.5th 562, 576: 'It is well-settled that a public entity enjoys an attorney-client relationship with its lawyers and the attorney-client privilege protects communications made in the course of that relationship.' Calendar No.: Event ID: TENTATIVE RULINGS

3012549 43 CASE NUMBER: CASE TITLE: PROJECT FOR OPEN GOVERNMENT VS CITY OF LEMON 37-2022-00014740-CU-MC-CTL Under the deliberative process privilege, senior officials of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions and recommendations by which government policy is processed and formulated. (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1040, reh'g denied (Feb. 3, 2021), rev. denied (Apr. 21, 2021).) The key question is 'whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.' (Ibid.; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342.) 'Not every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the [one claiming the privilege] to establish the conditions for creation of the privilege.' (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 306.) Finally, Government Code section 54963(a) states, 'A person may not disclose confidential information acquired while present in a closed session authorized by [the Brown Act] to a person not entitled to receive it unless the legislative body authorized disclosure of that confidential information. (Gov. Code, § 54963(a).) 'Confidential information' means 'a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session. (Id., at subd. (b).) With this legal framework and consideration of the policies of transparency in government, protection of privileged information and the broad scope of discovery in mind, the Court reviewed the parties' separate statements, the questions posed, the objections lodged and the answers given and finds the following.

Lydia Romero's Deposition The objections to Question in Dispute (Question) Nos. 1, 4, 5 and 6 hold merit and the Court will not compel further answers. Question 1 asks for whether the city council gave direction to the city attorney.

Question 4 asks whether the city council decided members would not have access codes. Question 5 asks whether the city council ever gave instructions that access codes to city hall for members of the city council be revoked. Question 6 asks if the city council ever considered whether to revoke access codes to city hall. These questions implicate the above privileges, communications with counsel and the council's deliberative decision-making process. Critically, the witness testified she could not answer without divulging privileged information.

Question Nos. 2, 3, 7, and 8 are subject to discovery and require further answers. These questions ask 'when' the city council took various actions. They do not ask for the substance of any communications or expose any decision-making process. Further, it is foundational for whether any of the privileges apply. (Evid. Code, § 405, Assembly Committee Notes ['Under this code, as under existing law, the party claiming a privilege has the burden of proof on the preliminary facts.'].) The public interest in nondisclosure does not clearly outweigh the public interest in disclosure.

Deposition of Jerry Jones The objections to Question Nos. 2, 3, 6-9, 11, 14 and 15 hold merit and the Court will not compel further answers. The questions seek communications and substantive information of what happened in closed meetings, i.e., what the council or city manager considered and directions given. The witness also testified he could not answer without divulging privileged information.

Question Nos. 1, 4, 5, 10, (13) [sic], 16, 17, 18-22 are subject to discovery and require further answers.

These questions are about 'when' certain things happened (No. 1), whether the witness is aware of certain documentation (No. 4), whether certain facts were true as of certain dates (Nos. 5, (13)), foundational to establish a privilege (Nos. 10, 16, 17) or whether the witness read or reviewed agenda Calendar No.: Event ID: TENTATIVE RULINGS

3012549 43 CASE NUMBER: CASE TITLE: PROJECT FOR OPEN GOVERNMENT VS CITY OF LEMON 37-2022-00014740-CU-MC-CTL items (Nos. 18-22). These questions do not ask for the substance of any communications or expose the decision-making process. The public interest in nondisclosure does not clearly outweigh the public interest in disclosure.

Concluding Orders For these reasons, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART.

On resumption of the deposition, Lydia Romero is ordered to provide a further response to Questions in Dispute Nos. 2, 3, 7, and 8.

On resumption of the deposition, Jerry Jones is ordered to provide a further response to Questions in Dispute Nos. 1, 4, 5, 10, (13) [sic], 16, 17, 18-22.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Plaintiff is ordered to serve written notice of the Court's final ruling by October 17, 2023.

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