Judge Frank M. Tavelman, Case Number: 22STCV03004, Date: 2023-11-03 Tentative Ruling

Judge: Frank M. Tavelman, Case: 22STCV03004, Date: 2023-11-03 Tentative Ruling

Case Number: 22STCV03004 Hearing Date: November 17, 2023 Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

TENTATIVE RULING

NOVEMBER 17, 2023

MOTION TO COMPEL COMPLIANCE WITH BUSINESS RECORDS SUBPOENA

Los Angeles Superior Court Case # 22STCV03004

MP:	Jane Doe (Plaintiff)
RP:	California Commission on Teacher Credentialing (non-party)

ALLEGATIONS:

Jane Doe (“Plaintiff”) brings this action against the Los Angeles Unified School District (“LAUSD”) and William Clyde Allen (“Allen”) alleging from 1996-1999 Allen, then a LAUSD teacher, sexually assaulted her several times. Plaintiff pleads causes of action for (1) Childhood Sexual Assault (as against Allen), (2) Intentional Infliction of Emotional Distress (as against Allen), (3) Negligence (as against LAUSD), (4) Failure to Report Suspected Child Abuse (as against LAUSD), and (5) Negligent Supervision of a Minor (as against LAUSD).

Before the Court is Plaintiff’s motion to compel non-party California Commission on Teacher Credentialing (“the Commission”) to comply with a deposition subpoena for the production of business records. The Commission opposes the motion and Plaintiff replies.

Hearing on this motion was initially held on November 3, 2023. The Court heard arguments from both sides, ultimately indicating that the Court did not believe Plaintiff had shown good cause for production. Plaintiff contended that good cause was not a required showing for a deposition subpoena on a non-party. The Court continued the matter and requested supplemental briefing from both sides as to the good cause requirement. Having reviewed the submissions, the Court now issues the following ruling.

ANALYSIS:

I. LEGAL STANDARD

California Code of Civil Procedure (“C.C.P.”) § 1987.1(a) provides: “If a subpoena requires the attendance of a witness or the production of... documents... at the taking of a deposition, the court, upon motion... may make an order... directing compliance with it upon those terms or conditions as the court shall declare.” C.C.P. § 1987.1 does not contain a meet and confer requirement, nor a requirement that good cause for production of documents be shown. The Court’s analysis does not end there.

C.C.P. § 2031, which applies to document production requests served on a party, requires the party seeking to compel such production set forth specific facts showing good cause justifying the discovery sought by the inspection demand. C.C.P. § 2020, the statute at issue, contains no such specific requirement. Since both sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place greater burdens on a non-party than on a party to the litigation, the Court reads a similar requirement into the latter section.

In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

II. MERITS

Plaintiff’s served its subpoena seeking the following documents:

1. Any and all DOCUMENTS, including statements of decision, findings, summaries, opinions, rulings, and/or minutes regarding any California Commission on Teacher Credentialing investigation and/or hearing regarding WILLIAM CLYDE ALLEN (DOB: XXXXXXXX), who was licensed by the California Commission on Teacher Credentialing.

2. Any and all DOCUMENTS regarding any disciplinary action imposed on WILLIAM CLYDE ALLEN, who is licensed by the California Commission on Teacher Credentialing.

3. Any and all DOCUMENTS regarding complaints about inappropriate behavior by WILLIAM CLYDE ALLEN.

4. Any and all DOCUMENTS regarding any response by WILLIAM CLYDE ALLEN to any complaints made against him.

5. Any and all DOCUMENTS regarding any alleged improper behavior by licensee WILLIAM CLYDE ALLEN

6. Any and all DOCUMENTS submitted to the California Commission on Teacher Credentialing by WILLIAM CLYDE ALLEN, including but not limited to applications, statements, fingerprints, and forms.

7. Any and all DOCUMENTS referring and/or regarding correspondence and/or communications between the California Commission on Teacher Credentialing and WILLIAM CLYDE ALLEN.

8. Any and all DOCUMENTS referring and/or regarding correspondence and/or communications between the California Commission on Teacher Credentialing and LOS ANGELES UNIFIED SCHOOL DISTRICT regarding WILLIAM CLYDE ALLEN.

9. The California Commission on Teacher Credentialing’s complete file of WILLIAM CLYDE ALLEN.

The Commission subsequently produced responsive documents. Among these documents, the Commission provided redacted copies of Allen’s applications to renew and reissue his teaching credentials. The Commission redacted Allen’s responses to questions related to his “Personal and Professional Fitness” which Plaintiff claims are directly related to her causes of action.

In subsequent meet and confer efforts, the Commission explained that it possessed no responsive documents relating to disciplinary records created by any agency. (Lee Decl. ¶¶ 5-6.) The Commission informed Plaintiff that they possessed a copy of the criminal case court docket history and the initial incident report created by the Los Angeles Police Department (“LAPD”). However, the Commission did not produce these records as they were not the custodians of them, and the records were publicly available to Plaintiff through other means. (Id.)

Outside of meet and confer, the Commission has identified two additional documents withheld from production. These documents are:

(1) an August 23, 2006 Notice of Delay List issued by the Commission pursuant to Education Code section 44332 and California Code of Regulations, title 5, section 80441 (1 pg.); and

(2) an August 16, 2006 Notice of Application Reject issued by the Commission to Allen (1 pg.)

Plaintiff now moves for the production of Allen’s credential applications in an unredacted form. Plaintiff also moves for the production of the criminal records and the two documents the Commission further discovered.

Good Cause

To succeed in this motion, Plaintiff must show good cause for production of each of these documents. The Court agrees with Plaintiff’s argument on supplemental briefing that the statute governing deposition subpoenas on non-parties, C.C.P. § 2031 does not explicitly state a good cause requirement. However, California courts have consistently read a good cause requirement into motions of this nature as a matter of statutory logic.

The primary case outlining this reasoning is Calcor Space Facility v. Superior Court. In Calcor, the California Court of Appeals examined with particularity the language of C.C.P. § 2020, now C.C.P. § 2031. Calcor held that while the section governing motions to compel directed at non-parties did not contain a good cause provision, good cause was still required to be shown. (Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224.) As foundation for this finding, the Calcor court reasoned that the section governing motions to compel production from parties and the section governing motions to compel non-party response to deposition subpoena were part of the same statutory scheme. (Id.) If the statutory scheme requires a showing of good cause to compel production from a party, it does not stand to reason that it would subsequently eschew this requirement for a non-party deponent who is much further removed from the litigation. “[I]t is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation.” (Id.)

In her supplemental briefing, Plaintiff argues the holding of Calcor does not apply to this motion because the “burden” of the request in Calcor and the “burden” of the request here are so factually dissimilar. The Court finds this argument misunderstands the use of the term “burden” in Calcor. In referring to the “burdens” placed on the parties, Calcor was addressing the statutory requirements as to what each party must show to defeat a motion to compel. To the Calcor court it made no sense to require a moving party to show less to compel production from a nonparty than they must show to compel production from a party. Although the use of “burden” in the context of Calcor is not usually what we think of in a legal context, the Court finds this reasoning is sound and broadly applicable regardless of the magnitude of the discovery request at issue.

The above being established, the Court does not find that Plaintiff has established good cause here.

Plaintiff states that the unredacted applications contain Allen’s answers to questions regarding disciplinary action taken against him and any potential criminal activity. (Lewis Decl. ¶ 6.) The criminal case file in the Commission’s possession, which it appears both parties believe to be the criminal case file stemming from Allen’s abuse of Plaintiff. The two records withheld from production may, under certain circumstances, be relevant to Plaintiff’s case, in that they concern the refusal of the Commission to issue Allen’s credentials after the abuse came to light. Moving Party does not show that this underlying information was communicated to the Los Angels Unified School District (“LAUSD”). The LAUSD may have learned that the teaching credential was not issued, but whether the LAUSD followed up with the Commission was not set forth. Furthermore, the LAUSD, and not the Commission, would have the files upon which the LAUSD acted.

Plaintiff has not indicated for example, that they have obtained the personnel file from the LAUSD as to what information they relied upon in making its hiring determination nor policy and procedures concerning hiring, supervision and retention that would require they rely upon underlying documents from the Commission. The basis for the documents requested is for the negligent hiring, supervising, and retaining of Allen. Without further discussion concerning what documents were reviewed by LAUSD, the Court does not find that good cause exists to make an order compelling further compliance from a third party. What was relied upon by the Commission in credentialing a teacher may or may not have been communicated to LAUSD. The Court is uncertain if LAUSD completes its own investigation and simply relies upon the Commission for a determination if the applicant is credentialed.

Alongside her supplemental briefing, Plaintiff submits the declaration of counsel Cindy K. Suh (“Suh”). Suh states that good cause exists because documents produced by the LAUSD, in response to Plaintiff’s discovery, were included in Allen’s applications for certification by the Los Angeles County Office of Education (“LACOE”). (Suh Decl. Exh. 1.) Suh states these LACOE applications inquired whether Allen’s “credential application” was reviewed by his employer, to which he responded ‘no’. (Suh Decl. ¶ 7.) Suh also states that the application submitted to the Commission contained similar questions to those in his application to LAUSD, which it appears Plaintiff already has. Suh states that good cause exists to produce the Commission records so that they can be compared to the LAUSD records to see if LAUSD ever cross-referenced Allen’s answers. (Suh Decl. ¶ 9.)

The Court finds the above statements remain insufficient to establish good cause. Plaintiff does not endeavor to explain how an application to LACOE bears any relevance on a motion to compel documents of the Commission. There exists no thread to connect the Commission and LACOE. To show good cause Plaintiff must show that LAUSD somehow relied upon the Commissions applications in hiring or retaining Allen. The LACOE application does not show that.

Plaintiff’s argument that the application questions of the LAUSD and the Commission are similar is also not demonstrative of good cause. Plaintiff offers no connection between the LAUSD and Commission applications other than to suggest that if Allen’s answers do not match up, LAUSD could be said to be negligent in failing to cross-reference the records. Plaintiff does not go so far as to state that LAUSD regularly cross-references answers with the Commission and the Court has no cause to believe this is common practice. Without a showing that LAUSD routinely, if ever, cross-references the Commission records, the Court does not find the similarity of their application questions to be indicative of good cause.

In short, the Court finds Plaintiff have not shown good cause for the production of each document. The Court need not address the other issues raised in the moving papers as the Plaintiff has not met the initial burden to show good cause to support the motion to compel.

Separately, the Plaintiff stated in reply she has exhausted all options for obtaining criminal records. Plaintiff stated that subpoenas to various law enforcement agencies have produced scant criminal records, and the Commission possesses the most complete record. The Court’s tentative ruling indicated it did not find this argument persuasive in the absence of a declaration of her counsel attesting to this fact or an attached subpoena.

Plaintiff now, through the Suh declaration, states that her requests for the criminal case file to the LAPD and the Los Angeles District Attorneys’ Office (“LADA”)

For example, did the law enforcement agencies provide crime reports and investigation reports? If not, did the agency indicate why? Often these reports have been digitized and can be located by law enforcement agencies with some effort. The fact remains that Plaintiff has produced no evidence of her efforts to obtain these records from their actual custodians. Likewise, the Commission is not the custodian of records for these underlying records. (Cooley v. Superior Court 140 Cal.App.4th 1039, 1044.)

Conclusion

The Court finds Plaintiff has not shown good cause for the production of the documents requested in her subpoena. The Plaintiff has not shown the relevance of this unredacted information in light of what was discussed in the declaration concerning the need to obtain this information base on a cause of action for negligent hiring, supervision, and retention.

The Motion to Compel will be denied without prejudice.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Jane Doe’s Motion to Compel Compliance with Business Records Subpoena came on regularly for hearing on November 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL COMPLIANCE WITH BUSINESS RECORDS SUBPOENA IS DENIED WITHOUT PREJUDICE.

UNLESS ALL PARTIES WAIVE NOTICE, THE COMMISSION IS TO GIVE NOTICE.

IT IS SO ORDERED.

DATE: November 17, 2023 _______________________________

F.M. TAVELMAN, Judge

Superior Court of California

County of Los Angeles

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

TENTATIVE RULING

NOVEMBER 17, 2023

MOTION TO COMPEL COMPLIANCE WITH BUSINESS RECORDS SUBPOENA

Los Angeles Superior Court Case # 22STCV03004

MP:	Jane Doe (Plaintiff)
RP:	Los Angeles County District Attorney’s Office (non-party)

ALLEGATIONS:

Jane Doe (“Plaintiff”) brings this actions against the Los Angeles Unified School District (“LAUSD”) and William Clyde Allen (“Allen”). Plaintiff alleges that from 1996-1999 Allen, then a teacher with the LAUSD, sexually assaulted her several times. Plaintiff states causes of action for (1) Childhood Sexual Assault (as against Allen), (2) Intentional Infliction of Emotional Distress (as against Allen), (3) Negligence (as against LAUSD), (4) Failure to Report Suspected Child Abuse (as against LAUSD), and (5) Negligent Supervision of a Minor (as against LAUSD).

Before the Court is a motion by Plaintiff to compel non-party Los Angeles County District Attorney’s Office (“LADA”) to comply with a deposition subpoena for the production of business records. LADA opposes the motion and Plaintiff replies.

ANALYSIS:

I. LEGAL STANDARD

California Code of Civil Procedure (“C.C.P.”) § 1987.1(a) provides: “If a subpoena requires the attendance of a witness or the production of... documents... at the taking of a deposition, the court, upon motion... may make an order... directing compliance with it upon those terms or conditions as the court shall declare” C.C.P. § 1987.1 does not contain a meet and confer requirement, nor a requirement that good cause for production of documents be shown.

However, C.C.P. § 2031, which applies to document production requests served on a party, requires a party seeking to compel such production to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. C.C.P. § 2020, the statute at issue, contains no such specific requirement. Since both sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation, we read a similar requirement into the latter section.

II. MERITS

On March 21, 2023, Plaintiff’s served its subpoena seeking the following documents:

“Any and all investigative reports, police reports, supplemental reports, witness statements, criminal case records, pleadings, and evidence relating to People of the State of California v. William Clyde Allen (DOB XXXXX), Los Angeles Superior Court Criminal Case Number BA280722. [Please see attached signed authorizations for release of records.]”

On May 15, 2023. LADA subsequently produced the following responsive documents:

(1) Amended Felony Complaint of 4/20/2005

(2) Information dated 09/01/2005

(3) People’s Opposition to Defendant’s Demurrer filed on 09/27/2005

(4) Opposition to Motion to Reconsider, filed on 01/24/2006

(5) Opposition to Motion to Reconsider, filed on 02/23/2006.

Plaintiff argues that LADA has produced the minimal amount of documents in compliance with the subpoena. Plaintiff further argues that LADA untimely served its responses to the subpoena and did so without objection. Plaintiff seeks an order of the Court requiring LADA to disclose further, investigative reports, supplemental reports, criminal case records, pleadings, and evidence.

To succeed in this motion, Plaintiff must show good cause for production of each of these documents. Although C.C.P. § 2031 does not explicitly state a good cause requirement, California courts have consistently read a good cause requirement into motions of this nature as a matter of statutory logic. (See Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224.) The Court finds good cause has been shown in this instance. The documents Plaintiff seeks are directly relevant to her claims against Allen, in that they appear to be the records of the criminal case in which Allen was tried for his transgressions against Plaintiff.

In opposition to the motion, LADA relies primarily on the ruling in Cooley v. Superior Court.

Cooley concerned a civil action against an individual who was found to have committed vehicular manslaughter when he drove his vehicle down a closed street in Santa Monica, killing ten people. Cooley v. Superior Court 140 Cal.App.4th 1039, 1042.) The plaintiff in Cooley issued a subpoena duces tecum for LADA to produce “…items which were previously produced to counsel for defendant George Russell Weller in the companion Criminal Case including investigative reports, statements by Weller, photographs, field interview notes, and results of any tests or examinations.” (Id. [internal quotations marks omitted].) LADA objected on grounds that the documents sought were not prepared by their office, but rather the California Highway Patrol and the Santa Monica Police Department. (Id. at 1043.) LADA contended that they were not the custodians of such records such that they would be compelled to produce them on subpoena which would require execution of an affidavit under Evidence Code § 1561. (Id.)

The Court of Appeal agreed with LADA, finding that “…the custodian of records or other qualified witness contemplated by Evidence Code section 1561 must also be able to attest to various attributes of the records relevant to their authenticity and trustworthiness. As such, execution of a section 1561 affidavit is more than simply a clerical task.” (Id. at 1044.) The court found that LADA could not have made the required attestation under Evidence Cod § 1561(a)(4) that the records were made in the ordinary course of business. (Id.)

LADA argues Plaintiff’s vague requests for investigative reports, police reports, criminal case records and evidence are all documents for which LADA is not the custodian. LADA argues that any documents pertaining to the criminal investigation and evidence against Allen are the ward of the Los Angeles County Police Department (“LAPD”). LADA further argues that hearing transcripts requested by Plaintiff in her moving papers, were not generated by their office and are maintained by the court reporters who created them.

Plaintiff argues the holding in Cooley is inapplicable here, primarily relying on the factual distinction between the criminal case here and that in Cooley. Plaintiff primarily argues that Cooley is inapplicable because the date of the criminal case in this instance is 20 years removed from this action, causing the availability of the documents from their original sources to be substantially more difficult. Plaintiff further argues the existence of other avenues of authentication, citing specifically Evidence Code § 1410. The Court finds Plaintiff’s arguments unpersuasive.

To begin. it is not entirely clear what Plaintiff means by “criminal case records”. There are many documents which comprise a criminal record generated from a great number of sources. Plaintiffs request demands production of all of these records from one source without specific reference to what any of these records actually are.

Further, Plaintiffs efforts to obtain these records from their actual custodians are unclear. Plaintiff stated in reply she has exhausted all options for obtaining criminal records. Plaintiff stated that subpoenas to various law enforcement agencies have produced scant criminal records, and the Commission possesses the most complete record. However, Plaintiff provides no declaration as to her attempts to obtain these records from the LAPD or from the court reporters who generated them. As such, the Court has no basis to determine the unavailable nature of these documents. For example, did the LAPD provide crime reports and investigation reports? If not, did the agency indicate why? Often these reports have been digitized and can be located by law enforcement agencies with some effort.

As for the criminal case court docket history for cases in Los Angeles County, this information is publicly available to Plaintiff’s counsel and Plaintiff has set forth no reason why they are unable to obtain a copy from the Criminal Division of the Los Angeles Superior Court. Plaintiff’s argument that LADA is permitted to produce court reporter transcripts is similarly unpersuasive. Again, Plaintiff has submitted no declaration as to their attempts to acquire these documents from their custodian of records. Regardless of whether LADA is statutorily capable of producing the records, their execution of a § 1561 affidavit would still be impossible.

In short, the Court finds Plaintiff has not produced declarations as to the unavailability of the various records sought in her subpoena. As such, the Court sees no reason to set aside the holding of Cooley on the basis of necessity and to compel LADA to authenticate these documents through other means. Accordingly, the motion to compel compliance with the deposition subpoena for business is DENIED without prejudice.

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