Judge: Frank M. Tavelman, Case: 24NNCV01174, Date: 2024-12-06 Tentative Ruling

Case Number: 24NNCV01174    Hearing Date: December 6, 2024    Dept: A

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

NOTICE:

The Court is requesting oral argument on this matter as to the limited issue of whether the City of Burbank should provide the notice mandated by CCP §1983.5(h) on behalf of Plaintiff as the City of Burbank is the sole party in possession of the information necessary to comply with CCP §1983.5(h).  Such an order is based on CCP §1983.5(b).  See discussion herein.

ALLEGATIONS: 

D.S., by and through his guardian ad litem Michelle S. (Plaintiff), brings this action against Burbank Unified School District (BUSD) and Does 1-50. Plaintiff, a minor, alleges he was attacked by fellow student John Roe (Roe) at John Muir Middle School. Plaintiff alleges BUSD negligently ignored reports of Roe’s prior aggressive behavior. Plaintiff states he sustained serious injury in connection with the attack.

Before the Court is a motion by Plaintiff to compel the Burbank Police Department (BPD) to comply with a June 12, 2024 deposition subpoena. Plaintiff seeks the police report to ascertain the identity of Roe and potential witnesses to the assault. The City of Burbank (Burbank) responded to this subpoena, stating it would not comply as the subpoena failed to include a Notice to Consumer are required by C.C.P.§ 1985.3. Burbank has opposed this motion on those same grounds.

ANALYSIS: 

I.                    LEGAL STANDARD 

The service of a deposition notice, pursuant to C.C.P. § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition. (C.C.P. § 2025.280(a).) To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant C.C.P. § 2020.010, et seq. (C.C.P. §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by C.C.P. §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (C.C.P. § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (C.C.P. § 2025.480(i).)

II.                 MERITS

Notice to Consumer

The basis for Burbank’s objection to the subpoena is Plaintiff’s failure to provide notice to potential “consumers” as per C.C.P. § 1985.3. In making this motion, Plaintiff argues that C.C.P. § 1985.3 does not apply to requests for police records because the BPD is not one of the entities listed under C.C.P. § 1985.3(a)(1). This argument is unpersuasive.

As Burbank correctly points out, the consumer notice requirements apply to all requests for “personal information” tendered to a state agency. (See C.C.P. § 1985.4) The term “personal information” in this contexts refers to any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. (C.C.P. § 1798.24) A “consumer,” in this context, means any natural person. (C.C.P. § 1985.4.)

Plaintiff undoubtedly seeks the personal information of each person identified in the police report. The above statutes are clear that Plaintiff is required to provide notice to those persons when serving his subpoena. For obvious reasons, this was not done here. Plaintiff correctly points out that he cannot provide notice to consumers whose identity he does not know. In such instances, C.C.P. § 1983.5(h) provides guidance. C.C.P. § 1983.5(h) provides:

Upon good cause shown and provided that the rights of witnesses and consumers are preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown.

In other words, a party issuing a subpoena can petition the Court to waive the consumer notice requirement upon demonstrating that they have no other way to learn the identity of the person to be noticed. In order to do so, the issuing party would need to demonstrate due diligence in otherwise obtaining the necessary information. Here, Plaintiff’s motion does not demonstrate due diligence. The declaration of Plaintiff’s counsel is entirely silent as to other efforts to obtain the identity of Roe and other witnesses who may be identified in the police report.  Given Plaintiff has failed to demonstrate due diligence, the Court finds waiver of the consumer notice requirement is, as of yet, unwarranted.

In the alternative, CCP 1985.3(b) states, “Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena …[.] (emphasis added).”  Since the information sought to give notice is the information sought by the Plaintiff, perhaps the City of Burbank should provide the necessary notice as the information is in their sole possession.  Section 1985.3(b) can be met if the Plaintiff serves the consumer or causes the consumer to be served.   This requirement can be met with an order issued by this Court to the City of Burbank which has sole possession of the information necessary to comply with CCP 1985.3(h) to serve the notice requirement.  This properly balances the needs of the Plaintiff to obtain discoverable information and comply with the statute, the requirement to protect the consumer, and the desire of the City of Burbank not to release information without compliance with the statute.

Accordingly, the motion to compel is DENIED without prejudice such that the Plaintiff may petition this Court to have the City of Burbank provide statutory notice or to supplement Plaintiff counsel’s declaration concerning good cause to waive the requirement.

CPRA

Burbank argues that the records sought by Plaintiff are subject to exemption from disclosure under the California Public Records Act (CPRA). This argument is irrelevant to his motion because Plaintiff has made no public records request pursuant to CPRA. Plaintiff’s demand for information took the form of a deposition subpoena in a civil action, not a public information request. Thus, the provisions of the CPRA discussed by Plaintiff and Burbank were never triggered. Regardless, disclosure of police reports under the CPRA is an issue which the Court has seen with great frequency in recent months. As such, the Court finds further discussion could be illuminating.

Gov. Code § 7923.605 provides:

Notwithstanding Section 7923.600, a state or local law enforcement agency shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger either of the following: (1) The safety of a witness or other person involved in the investigation. (2) The successful completion of the investigation or a related investigation.

Gov. Code § 7923.600 defines an exemption to compelled production under Gov. Code § 7923.605. This section provides in relevant part:

[T]his division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.

In other words, the CPRA does not require law enforcement agencies to turn over the entirety of their investigative reports when a request is made. However, law enforcement agencies are still required to provide certain identifying information to the victim of a crime when a request has been made under the CPRA. The only exception to this required disclosure is where it would endanger the success of an investigation or the safety of an individual being investigated.

If Plaintiff’s request had been made under the CPRA, Burbank would be required to demonstrate that disclosure of Roe’s personal information would endanger the successful completion of an investigation. In Williams v. Superior Court, the California Supreme Court held that that personal information is only exempt from disclosure under Gov. Code § 7923.605 when “…the prospect of enforcement proceedings is concrete and definite.” (Williams v. Superior Court (1993) 5 Cal.4th 337, 341, citing Uribe v. Howie (1971) 19 Cal.App.3d 194, 212.) The existence of a concrete and definite enforcement proceeding must be supported by some evidentiary showing. This showing can be relatively straightforward and based on testimony of the investigators involved. For example, in Rackauckas v. Superior Court, the California Court of Appeal held that the testimony of investigators alone was sufficient to establish the existence of enforcement proceedings. (Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 178.)

Here, Burbank’s opposition does not aver to any investigation in connection with the Roe’s assault on Plaintiff. Burbank instead states, “…given the confidentiality of juvenile proceedings, the City is unable to determine whether there are any pending criminal matters related to this lawsuit.” (Mot. p. 5, Aguado Decl. ¶ 3.) This statement would not suffice to substantiate Burbank’s objection under the CPRA. Just because the Burbank City Attorney’s Office doesn’t prosecute minors does not mean Burbank is without any means of determining whether there was/is any investigation related to this incident.  For example, there may have been a referral to the District Attorney’s Office for a juvenile petition.   The petition request may have been denied or a petition filed.  The Burbank Police Department would be aware of any such filing decisions.

Conclusion

In short, the Court finds Plaintiff has not sufficiently demonstrated due diligence in obtaining the identity of Roe such that the consumer notice requirement should be waived. Burbank’s argument that they were correct to refuse production under the CPRA is misguided, as Plaintiff made no public information request.   The Plaintiff may seek to have the City of Burbank provide the notice requirement mandated by statute as that entity solely has the information for which Plaintiff needs to provide such notice, and the balancing of all the parties interests and the need for discovery may best be made with notice to involved parties rather than the Court finding that Plaintiff has exercised due diligence and waived the requirement.

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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 

D.S.’s Motion to Compel Compliance with Deposition Subpoena came on regularly for hearing on December 6, 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 TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA IS DENIED WITHOUT PREJUDICE.

THE CITY OF BURBANK TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 6, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles