Judge: Frank M. Tavelman, Case: 22STCV21262, Date: 2023-09-15 Tentative Ruling

Case Number: 22STCV21262    Hearing Date: March 22, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR PROTECTIVE ORDER

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Wayneider Singh Anand (Plaintiff) brings this action against the City of La Cañada Flintridge (La Cañada) in connection with a December 4, 2021 incident which claimed the life of Plaintiff’s wife. Plaintiff alleges La Cañada failed to maintain safe conditions for a crosswalk located at Foothill Boulevard and Union Street. Plaintiff alleges that because of this failure, his wife was struck by a vehicle while crossing the street.

Before the Court is a motion for a protective order filed by La Cañada. La Cañada requests a protective order preventing the disclosure of its Highway Safety Improvement Program (“HSIP”) grant applications and its Systemic Safety Analysis Reports (“SSAR”) along with documents that were prepared in connection with those applications and reports. La Cañada asserts documents which are privileged from disclosure pursuant to 23 USCA § 407.

Of key importance to this motion is a Public Works and Traffic Commission Agenda Report (Public Works Report) which was generated by La Cañada on April 11, 2022. La Cañada maintains this Public Works Report was created in response to a demand made by Plaintiff on January 19, 2022. (Mot. Exh. K.) La Cañada asserts the Public Works Report is privileged because it contains information directly pulled from HSIP applications and SSAR and analysis thereof. Specifically, La Cañada states the Public Works Report inadvertently included portions of the City’s 2018 SSAR and 2020 HSIP application. This information was also included in La Cañada’s response to a series of Public Records Requests.  

Plaintiff contends the Public Works report is discoverable and functions to waive the privilege of 23 USCA § 407 because the report was published on the city’s website. Plaintiff argues posting the report publicly waives the privilege asserted by La Cañada and renders the HSIP applications and SSAR discoverable.

EVIDENTIARY OBJECTIONS:

La Cañada presents the declarations of three city employees: Patrick DeChellis (DeChellis), Arabo Parseghian (Parseghian), and Tania Garcia (Garcia). Plaintiff objects to the portions of these declarations which attest that the disclosure of HSIP and SSAR data was inadvertent. Plaintiff objects to each on identical grounds that they lack foundation, are hearsay, and the declarant lacks personal knowledge.  Plaintiff’s objections are OVERRULED.

The Court finds that DeChellis, Parseghian, and Garcia all clearly indicate their positions as city officials. Each declarant establishes a knowledge of the underlying dispute and the accident. The Court finds the question of whether or not a document should be included in a public address is a matter within the knowledge of the Director of Public Works, the Director of Administrative Services, and the City Clerk respectively. Each declaration describes the Public Works Report and the Public Records Request upon which the declarant’s statement is made.

Further, the Court finds Plaintiff’s argument that the declarations are based on nothing but the advice of La Cañada’s counsel to be unpersuasive. Plaintiff cites to the deposition testimony of DeChellis, Parseghian, and Gracia state where they state they conferred with the city attorneys on this matter. The fact that the declarants consulted with La Cañada’s attorneys does not indicate that they were told to state the disclosure was inadvertent. Each declarant has demonstrated personal knowledge of the situation and relevant documents and is experienced in their position such that they can independently testify as to whether that information should have been included.

ANALYSIS: 

I.                    LEGAL STANDARD 

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. (C.C.P. § 2025.420, (a).) The motion must be accompanied by a meet and confer declaration under C.C.P. § 2016.040. (Id.)

The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (C.C.P. § 2025.420(b).) Moreover, there are “no time limits within which an application for a protective order must be filed” (Stadish v. Superior Court (1999) 71 Cal. App. 4th 1130, 1144.)

C.C.P. § 2025.420(b), provides a nonexclusive list of permissible directions that may be included in a protective order. “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

II.                 MERITS

This is the second motion for protective order concerning these documents that La Cañada has filed. The Court denied the first motion without prejudice. In doing so, the Court found that La Cañada had waived the privilege by virtue of publishing the Public Works Report on their website. The Court further found that La Cañada had not appropriately demonstrated that the disclosure in the Public Works Report was inadvertent. In renewing their motion, La Cañada does not advance any new theories of law concerning the federal privilege or waiver issues. Rather, La Cañada now presents their motion accompanied by declarations of city employees. La Cañada asserts these declarations serve as evidence that the publishing of the Public Works Report was inadvertent and has since been removed from public access.

The Court will provide a brief recap of the Plaintiff’s argument regarding waiver and then address the parties arguments as to the new evidentiary showings.

Waiver

Plaintiff’s argument concerning waiver primarily derives from California Government Code (“Gov. Code”) § 6254(k). The Court notes Gov. Code § 6254(k) was relocated in the government code effective January 1, 2023 and now resides at Gov. Code § 7927. Plaintiff specifically argues that Gov. Code § 6254.5 (now Gov. Code § 7921.505) creates a waiver of privilege where information was disclosed voluntarily.

In Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, the California Supreme Court explicitly held that the waiver provision of the California Public Records Act applied to intentional, and not involuntary disclosures. The California Supreme Court reasoned that this interpretation was consistent with the legislative purpose of the Public Records Act. (Ardon supra, 62 Cal.4th 1176 at 1184.) While the privilege asserted in Ardon was attorney client privilege, its stands to reason that this holding would similarly apply to privileges asserted under federal law. As such, if La Cañada’s disclosure of the 2018 SSAR and 2020 HSIP application were inadvertent, they did not waive their privilege.

Declarations

La Cañada presents the declarations of DeChellis, Parseghian, and Tania Garcia as evidence of inadvertence. The Court will provide a brief summary of each declaration.

DeChellis states that he is the Director of Public Works for La Cañada and has been for five years. (DeChellis Decl. ¶ 2.) DeChellis states that on January 19, 2022, the city of La Cañada received an email from Plaintiff regarding roadway safety and demanding an explanation for the incident involving Plaintiff’s wife. (Id. ¶ 2.) DeChellis states the city was aware of the accident and wanted to thoroughly respond to Plaintiff. (Id. ¶ 3.) DeChellis then states that “In the City’s concerted effort to provide answers to its grieving residents…the City inadvertently published information derived from its 2018 Systematic Safety Analysis Report Program.” (Id. ¶ 4.)

Parseghian is the Director of Administrative Service for La Cañada. (Parseghian Decl. ¶ 1.) Parseghian’s declaration also attests to the email received by the City. (Id. ¶ 2.) Parseghian states that La Cañada responded to the email by producing the Public Works Report “without realizing the sensitive and protected nature” of its contents. (Id. ¶ 3.) Parseghian also states that the Public Works Report and the related minutes from the public meeting have been removed from La Cañada’s website. (Id. ¶ 5.)

Garcia is the City Clerk for La Cañada and has been for nine years. (Garcia Decl. ¶ 1.) Garcia states that La Cañada received a Public Records Request on March 3, 2022 from Versus Forensic in Roseville, California. (Id. ¶ 2.) In response, La Cañada provided records for the intersection requested from years 2011 to 2021. (Id.) Garcia states that La Cañada’s HSIP application was inadvertently included in the application. (Id. ¶ 3.) Garcia also states that the Public Works Report was produced in response to a residents Public Records Request on April 1, 2022. (Id. ¶ 4.)

Depositions

In the time between the first and second motions, Plaintiff conducted depositions of DeChellis, Parseghian, and Garcia. Plaintiff argues that their deposition testimony refutes any assertion that the inclusion of the SSAR and HSIP information was inadvertent.

When questioned about his declaration, DeChellis stated that he had no personal involvement in creating the Public Works Report. (Oppo. Exh. 1, DeChellis Depo 132: 8-18.) The report was actually produced by Farhad Iranitalab, La Cañada’s Traffic Engineer. (Id.) DeChellis also testified that it is standard procedure to publish staff reports to the Public Works and Traffic Commission on the city website. (DeChellis Depo 141: 9-11.)

The portions of the of Parseghian deposition do not speak to inadvertent disclosure. The deposition excerpt provided merely attests that it only took Paraseghian around 15 minutes to remove the information from the La Cañada website. (Oppo. Exh. 3, Parseghian Depo. 83: 3-8.)

Garcia testified that as the City Clerk, her procedure in responding to Public Records Requests would consist of reviewing the documents compiled by her department personnel (Opp. Exh. 2, Garcia Depo 18: 12-24.) Garcia could not recall whether she sought approval for any of the documents from another authority before responding to the March 3, 2022 Public Records Request. (Garcia Depo 42: 14-19.) In response to the April 1, 2022 Public Records Request, Garcia testified that the City Attorney’s office was involved in replying. (Garcia Depo 84: 7-10.) Garcia testified that the City Attorney made the decision to redact certain information from the documents prepared by the clerk’s office in response to the request. (Id.)

Plaintiff also conducted a deposition Farhad Iranitalab (Iranitalab). In his deposition Iranitalab testifies that all of the information in the Public Works Report was intended to be provided. (Oppo. Exh. 4, Iranitalab Depo 134: 18-9, 22.) Iranitalab also testified that the report was reviewed by DeChellis and went through a revision process. (Iranitalab Depo 137: 16-22.)

Inadvertent Disclosure

Plaintiff’s main contention in opposition is that none of the declarations show the disclosure of the HSIP and SSAR data was inadvertent. The Court notes that neither party defines inadvertence within the context of this motion. As the statute is silent on what constitutes a “voluntary” disclosure, we are left to define inadvertent disclosure in the negative.

First, Black's Law Dictionary defines inadvertence as an “accidental oversight; a result of carelessness.” (Black's Law Dict. (9th ed. 2009) p. 827.) This definition comports with the common sense understanding of the word inadvertence. Simply put, it means that something occurred by mistake due to lack of care.

The Court also finds a review of the analysis in Ardon to be helpful. In determining whether inadvertent disclosure waived privilege, the Ardon court analyzed the legislative intent of the statute. (Ardon supra, 62 Cal.4^th at 1183.) The court held that it was not likely the Legislature intended to enact the statute such that any mistaken disclosure would constitute a waiver of privilege. (Id.) The court further held that it was more likely the statutory purpose was to allow for waiver where a public agency made a “voluntary and knowing disclosure.” (Id.)

Lastly, the Court notes the context of inadvertence as it is employed in C.C.P. § 473, which governs motions for relief. Courts considering the use of inadvertence in the context of C.C.P. § 473 have found the word was used to distinguish intentional or deliberate conduct from accidental. (See Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192 Cal.App.4th 75, 85.)

Taken together, the Court construes inadvertence in this case to mean that La Cañada did not purposefully include the HSIP and SSAR data in the Public Works Report or responses to the Public Records Requests. Having reviewed the declarations and the deposition testimony, the Court finds the disclosure was indeed inadvertent.

The declarations of DeChellis, Parseghian, and Garcia attest that the information should not have been included in any of the disclosures. While Plaintiff’s depositions reveal that a great deal more care could have been taken, the fact remains that the inclusion of the materials appears to have been a mistake. Just because DeChellis did not catch the issues with the Public Works Report does not mean that La Cañada made a knowing disclosure. The same can be said for the City Attorney’s failure to redact the information in response to the April 1, 2022 request. The information attested to in the depositions only reveals that the city employees included this information by mistake. Whether or not these mistakes could or should have been prevented, the fact remains that the disclosure was not “voluntary and knowing”.

As concerns the deposition of Iranitalab, Plaintiff contends that he stated everything in the Public Works Report was intended to be included. The Court notes that Iranitalab’s inclusion of the privileged data in the Public Works Report may have been intentional, but this does not mean its subsequent publishing on La Cañada’s website was also intentional. It is clear that an editorial process occurred which should have caught the mistaken inclusion of privileged information but did not. Again, a mistake in editing does not constitute a knowing disclosure.

Conclusion

In short, the Court La Cañada has submitted sufficient evidence that the disclosure of HSIP and SSAR data was inadvertent. This having been determined, the Court also finds La Cañada has shown good cause for the application of a protective order pursuant to 23 USCA § 407. La Cañada is to submit a proposed order for the Court to review and approve.

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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 

The City of La Cañada La Cañada’s Motion for Protective Order came on regularly for hearing on March 22, 2024, 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 FOR PROTECTIVE ORDER IS GRANTED.

LA CAÑADA IS TO PREPARE AND SUBMIT A PROPOSED ORDER FOR THE COURT TO SIGN.  

UNLESS NOTICE IS WAIVED BY ALL PARTIES, LA CAÑADA TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 22, 2024

                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles