Judge: Curtis A. Kin, Case: 22STCP01498, Date: 2023-09-19 Tentative Ruling
Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.
Case Number: 22STCP01498 Hearing Date: November 28, 2023 Dept: 82
MOTION FOR PROTECTIVE ORDER
Date: 11/28/23
(9:30 AM)
Case: Parents United for
Public School Choice v. Los Angeles Unified School District et al. (22STCP01498)
TENTATIVE RULING:
Respondent Los Angeles Unified School District’s Motion for
Protective Order is GRANTED IN PART.
Respondent’s evidentiary objections are OVERRULED.
On September 27, 2023, petitioner Parents United for Public
School Choice served a deposition notice on respondent, seeking testimony from
respondent’s person most qualified concerning the following categories:
CATEGORY NO. 1:
YOUR specific efforts to date to search for RECORDS
responsive to each of the REQUESTS.
CATEGORY NO. 2:
The basis of YOUR position as of August 7, 2023 that YOU
produced all documents responsive to the REQUESTS.
CATEGORY NO. 3:
The basis of YOUR position as of August 7, 2023 that with
the production of document made “this matter is closed.”
CATEGORY NO. 4:
The basis of YOUR determination as of August 28, 2023 that
YOU believed that additional RECORDS exist that are responsive to the REQUESTS.
CATEGORY NO. 5:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 1 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT
responsive to Request No. 1., the practices of the DISTRICT and its Charter
Schools Division with respect to such RECORDS, and the custodian(s) of such
RECORDS, but does not require testimony on each and every RECORD in existence
to the extent voluminous.
CATEGORY NO. 6:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 2 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT
responsive to Request No. 2., the practices of the DISTRICT and its Charter
Schools Division with respect to such RECORDS, and the custodian(s) of such
RECORDS, but does not require testimony on each and every RECORD in existence
to the extent voluminous.
CATEGORY NO. 7:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 3 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT responsive
to Request No. 3., the practices of the DISTRICT and its Charter Schools
Division with respect to such RECORDS, and the custodian(s) of such RECORDS,
but does not require testimony on each and every RECORD in existence to the
extent voluminous.
CATEGORY NO. 8:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 4 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT responsive
to Request No. 4., the practices of the DISTRICT and its Charter Schools
Division with respect to such RECORDS, and the custodian(s) of such RECORDS,
but does not require testimony on each and every RECORD in existence to the
extent voluminous.
CATEGORY NO. 9:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 5 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT responsive
to Request No. 5., the practices of the DISTRICT and its Charter Schools
Division with respect to such RECORDS, and the custodian(s) of such RECORDS,
but does not require testimony on each and every RECORD in existence to the
extent voluminous.
CATEGORY NO. 10:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 6 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT responsive
to Request No. 6., the practices of the DISTRICT and its Charter Schools
Division with respect to such RECORDS, and the custodian(s) of such RECORDS,
but does not require testimony on each and every RECORD in existence to the
extent voluminous.
CATEGORY NO. 11:
RECORDS in the possession, custody, and control of the
DISTRICT that are responsive to Request No. 7 of the REQUESTS; for the
avoidance of doubt, this topic seeks testimony on the existence, types,
examples of, subjects, and volume of RECORDS maintained by the DISTRICT responsive
to Request No. 7., the practices of the DISTRICT and its Charter Schools
Division with respect to such RECORDS, and the custodian(s) of such RECORDS,
but does not require testimony on each and every RECORD in existence to the
extent voluminous.
CATEGORY NO. 12:
YOUR record retention policies, to the extent applicable to
the REQUESTS.
CATEGORY NO. 13:
YOUR efforts to preserve RECORDS as of the date that the
above-captioned action was served on YOU.
(Id. ¶ 3 & Ex. A.)
Petitioner also sought production of the following documents
at the deposition:
1. All nonprivileged documents that the person(s) designated
by the District to testify at deposition reviewed in preparation for the
deposition.
2. Copies of all internal communications of the District
that are in response to or pertain to the California Public Records Act
requests that Parents United for Public School Choice transmitted to the
District on June 21, 2023, a copy of which is attached hereto as Exhibit A.
3. A privilege log of any documents withheld from production
at the deposition.
(Ibid.)
Respondent contends that discovery in California Public
Records Act (“CPRA”) cases is not available because it is continuing to
cooperate with petitioner’s public records request. (Hamor Decl. ¶ 19; Hamor
Reply Decl. ¶ 4; Martinez Decl. ¶ 7; Martinez Reply Decl. ¶ 8.) Respondent maintains that, under City of
Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, discovery is
available under the CPRA “only if the plaintiff ‘make[s] a [sufficient] showing
of bad faith,’ or is able to provide ‘tangible evidence’ that the records have
been improperly withheld. [Citation.]” (City of Los Angeles, 9
Cal.App.5th at 290.)
Respondent misconstrues
City of Los Angeles. In City of Los Angeles, the Court of
Appeal held as a matter of first impression that the Civil Discovery Act
applies to CPRA proceedings. (City of Los Angeles, 9 Cal.App.5th at
287.) In so holding, the Court further
noted that the discovery sought in a CPRA proceeding must be “relevant to the
subject matter involved in the pending action” (id., citing CCP § 2017.010(a)) and thus further held
that the discovery sought must be “necessary to resolve whether the agency has
a duty to disclose [the requested records], and to additionally consider
whether the request is justified . . .” (Id. at 289.) That was the Court’s primary holding
concerning the scope of permissible discovery in a CPRA action. As part of its analysis regarding the scope
of discovery, the Court of Appeal adopted federal authorities interpreting
discovery obligations in FOIA (Freed of Information Act, 5 U.S.C. § 552, et seq.) cases, which
“generally found” that discovery is warranted only if a plaintiff makes a
showing of bad faith or provides tangible evidence of improper withholding
“when the government has provided a detailed factual basis in support of its
decision to withhold documents (generally through affidavits).” (Id. at 290.) Respondent unduly elevates the importance of
the federal FOIA cases and, more to the point, ignores entirely that the
requirement for evidence of bad faith or improper withholding arises where the
agency has first provided evidence of a “detailed factual basis” to support its
decision to withhold documents.
The City of Los
Angeles approach to discovery in a CPRA action was further endorsed by the
Court of Appeal in County of San Benito v. Superior Court (2023) 96
Cal.App.5th 243, 314 Cal.Rptr.3d 269. In
County of San Benito, the petitioner submitted two public records
requests to the County of San Benito. For the first request, the petitioner
found the County’s production to be insufficient. The County agreed to provide
additional records by a specified date, only to later not comply with its
agreement. (San Benito, 314 Cal.Rptr.3d at 274.) For the second request,
the County proposed search terms for identifying responsive records. After the
petitioner did not agree to the search terms, the County refused to search
responsive emails. However, three days after petitioner filed its CPRA complaint,
the County agreed to begin a rolling production of records responsive to the
second request. (Id. at 275.)
Citing City of Los Angeles, the Court of Appeal in San
Benito stated that “the general
‘scope of discovery’ in Public Records Act proceedings remain[s] circumscribed
by its relevance to the ‘narrow issue: whether a public agency has an
obligation to disclose the records that the petitioner has requested.’” (San
Benito, 14 Cal.Rptr.3d at 277, quoting City of Los Angeles v. Superior
Court (2017) 9 Cal.App.5th 272, 289.) A public agency’s obligation to
disclose records includes documents that may inform petitioner about whether
respondent conducted a reasonable search for records in response to the subject
public records request. (San Benito, 314 Cal.Rptr.3d at 280 [finding
information about record retention policies discoverable because policies
“may well inform [requestor’s]
assessment of the reasonableness of the [public agency’s] search for documents
in response to its public records request”]; see also Gov. Code §
7922.530(a) [request to public agency must “reasonably describe[] an
identifiable record or records”].)
Here, the Court
finds that the testimony concerning the 13 categories for examination may
inform petitioner as to whether respondent conducted a reasonable search in
response to petitioner’s public records request. Category No. 1 concerns
respondent’s efforts to comply with petitioner’s records request. Category Nos.
2 and 3 concern the basis for respondent’s previous and incorrect assertion on
August 7, 2023 that it had produced all documents responsive to petitioner’s
public records request. (See Hamor Decl. ¶ 11 & Ex. D.) Category No. 4 concerns the basis for
respondent’s subsequent assertion that additional responsive documents existed
that had not yet been produced. (See id.. ¶¶ 12, 13 & Ex. E.)
Category Nos. 5-11 concern the seven categories of documents set forth in
petitioner’s June 21, 2023 public records request, including the
existence, types, subjects, volume, and practices of respondent with respect to
the requested records. (Rosenberg Decl. ¶ 3 & Ex. B.) Category No. 12
concerns respondent’s record retention policies as applicable to petitioner’s
public records request. Category No. 13 concerns respondent’s efforts to
preserve records as of the commencement of the instant action.
Considering that
respondent previously stated that it produced all responsive documents, only to
later state that additional documents existed (Hamor Decl. ¶ 13), petitioner is
entitled to propound discovery to allow it to determine whether all responsive
documents have been produced.
However, with respect to the second and third request for
documents contained in the deposition notice, specifically for “[c]opies of all
internal communications of the District that are in response to or pertain to
the California Public Records Act requests that Parents United for Public
School Choice transmitted to the District on June 21, 2023” and a “privilege
log of any documents withheld from production at the deposition,” these
requests for disclosure of records impermissibly seek an “order compelling
compliance with the Public Records Act by way of the Civil Discovery Act.” (County
of San Benito, 314 Cal.Rptr.3d at 281.) “[A] party seeking judicial
enforcement of the Public Records Act may not reframe its public records
request as a discovery request unconstrained by the narrow issue of whether the
Public Records Act requires the public agency to disclose the records the
petitioner has requested.” (Id. at 284-85.)
With respect to Request No. 1 for “[a]ll nonprivileged
documents that the person(s) designated by the District to testify at
deposition reviewed in preparation for the deposition,” to the extent that
documents responsive to Request No. 1 overlap with the second and third
document requests, the person or persons designated by respondent are not
obligated to bring such documents to the deposition.
The motion for protective order is GRANTED IN PART. Respondent
Los Angeles Unified School District is not obligated to bring documents
responsive to the second and third document requests contained in the
deposition notice.
On ___________________ at 9:00 AM at Young Minney & Corr
LLP, 5200 Lankershim Blvd.. Suite 370, North Hollywood, CA 91601, respondent
Los Angeles Unified School District is ordered to produce a witness or
witnesses who can competently and fully testify as to Category Nos. 1-13, as
set forth in the Notice of Deposition, and produce documents responsive to
Request No. 1, subject to the limitation set forth above.
Considering the mixed result, petitioner’s request for
monetary sanctions is DENIED.