Judge James C. Chalfant, Case Number: 24STCP00268, Date: 2024-07-18 Tentative Ruling

In the Matter of A.D. v. CA Office of the Inspector General, 24STCP00268

Tentative decision on motion to proceed as Petitioner 1 and for protective order: granted in part

Fictitiously named Petitioner 1 moves to continue in this action as Petitioner 1 and for a protective order limiting the disclosure of information that could publicly associate him with his sealed juvenile conviction.

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

Petitioner 1 filed the Petition against Respondent CA Office of the Inspector General (“Inspector General”) for a writ of mandate and declaratory relief on January 26, 2024. The operative pleading is the First Amended Petition (“FAP”) filed on February 7, 2024. The FAP alleges in pertinent part as follows.

Respondent Inspector General improperly voided Petitioner 1’s appointment as a civil service attorney based on his failure to disclose a sealed record of a juvenile conviction. This practice contravenes Welfare and Institutions (“W&I”) Code section 781, Government Code section 12952, Labor Code section 432.7, and Article 1, section 1 of the California Constitution.

On October 9, 2024, the Inspector General extended Petitioner 1 an offer of employment contingent on a criminal background check. Pet., ¶15. Petitioner 1 completed his background check paperwork on October 10, 2023. Pet., ¶16. The Inspector General provided Petitioner 1 with a Personal History Form (“PHF”) that asked for him to identify persons he knew who were affiliated with, or currently or formerly incarcerated by, the California Department of Corrections and Rehabilitation. Pet., ¶¶ 16-18. In a “PRIVACY STATEMENT” accompanying these prompts, the PHF advised Petitioner: “You do not need to list those offenses that have been sealed, expunged, or destroyed under Penal Code Sections 851.7, 851.8, 1203.45...or Welfare and Institutions Code Section 781.” Pet., ¶18.

Petitioner 1 completed the form truthfully and in good faith. Pet., ¶17. He identified two individuals responsive to the prompt. Pet., ¶17. He did not disclose his prior juvenile commitment, believing he had no duty to do so based on W&I Code section 781 and equivalent protections. See Pet., ¶22.

On October 26, 2023, the Inspector General advised Petitioner 1 that his background check was complete and extended him an offer of employment. Pet., ¶19. On October 30, 2023, he received written confirmation of his new appointment. Pet., ¶20.

On November 17, 2023, the Inspector General gave Petitioner notice that it intended to void his appointment because he “may have provided dishonest, misleading, or incomplete responses” on his PHF. Pet., ¶21. The Inspector General alleged that on an unspecified date following completion of Petitioner 1’s background investigation, it became aware of several newspaper articles which suggested that Petitioner 1 had been the subject of a juvenile adjudication that may have resulted in a commitment to the California Youth Authority. Pet., ¶21.

Petitioner 1 responded in writing that he had responded fully and truthfully to the extent required, but his conviction was sealed and the PHF and relevant statutes expressly exempted it from disclosure. Pet., ¶22.

On November 22, 2023, Respondent voided Petitioner 1’s appointment. Pet., ¶23.

Petitioner 1 seeks a writ of mandate directing the Inspector General to reinstate him to his civil service position, a declaration that its practice violated the relevant laws, and damages incidental to mandamus.

On the same date, Petitioner 1 applied ex parte for an order permitting him to file all documents under seal and for a protective order limiting the disclosure of information that could publicly associate him with his sealed juvenile conviction. The court denied the application but ordered as follows:

“Petitioner is directed to file in open court, a redacted first amended petition, naming petitioner as ‘Petitioner 1’. Petitioner may proceed as ‘Petitioner 1’ for now. The identification of the juvenile case and any reference to its contents in the amended petition may be redacted. Petitioner may make a noticed motion to continue as ‘Petitioner 1’ and for a protective order, after respondent has been served.”

On February 7, 2024, Petitioner 1 filed the FAP. On March 29, 2024, Respondent Inspector General answered.

“‘[A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.’” Doe v. Lincoln Unified School Dist., (2010) 188 Cal.App.4th 758, 767 (quoting Does I thru XXIII v. Advanced Textile Corp., (9th Cir. 2000) 214 F.3d 1058, 1068). A court may permit plaintiffs to use pseudonyms in three situations: “(1) when identification creates a risk of retaliatory physical or mental harm [Citation]; (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature’ [Citation]; and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.’ “ Does I thru XXIII v. Advanced Textile Corp., supra, 214 F.3d at 1068. Where the request for anonymity is based on the purported need “to preserve privacy in a matter of sensitive and highly personal nature,” the proper test is whether “the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Ibid; Doe v. Lincoln Unified School District, supra, (2010) 188 Cal.App.4th 758, 767.) “Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.’” Department of Fair Employment and Housing v. Superior Court of Santa Clara County, (2022) 82 Cal.App.5th 105, 111-12.

Pursuant to CRC 2.550 the court may seal a record “only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d).)

Petitioner 1 seeks to continue in this proceeding as Petitioner 1 and also seeks a protective order requiring the Inspector General to redact his personal identification and identification of, and any reference to, his juvenile case from its pleadings and exhibits.

Petitioner 1 seeks to continue in this action under a fictitious name. The Inspector General does not oppose to the extent Petitioner seeks to proceed as ‘Petitioner 1’ and the court finds an overriding interest. Opp. at 8.

Case law unequivocally recognizes the sensitive, highly personal nature of juvenile criminal records. See Welfare and Institutions Code §827 (strictly limiting access to juvenile case records); see also J.E. v. Superior Court, (2014) 223 Cal.App.4th 1329, 1337 [“There is a strong public policy of confidentiality of juvenile records”; discretion over record confidentiality granted to juvenile court due to its “‘sensitivity and expertise’”); In re Keisha T., (1995) 38 Cal.App.4th 220, 231 (public policy to protect confidentiality of juvenile proceedings and records).

For this reason, and for additional reasons discussed with Petitioner 1’s counsel and known to the Inspector General, the court finds there is an overriding interest in protecting Petitioner 1’s anonymity, confirmed by the statutory scheme protecting the confidentiality of juvenile criminal records. The motion to continue under the fictitious designation as “Petitioner 1” is granted.

The Inspector General argues that Petitioner 1 seeks a prospective sealing order rather than a protective order because the latter is a discovery device and does not, strictly speaking, apply to court filings. Opp. at 4.

This is technically correct but immaterial for purposes of this motion. Applying CRC 2.550, there is an overriding interest in the confidentiality of juvenile records which overcomes the right of public access and supports sealing. The overriding interest will be prejudiced if the record is not at least partly sealed because Petitioner 1’s juvenile conviction record will be exposed to public view.

The Inspector General criticizes Petitioner 1’s motion on two other grounds: (1) he has not specifically lodged any material to be sealed; and (2) it is overbroad, particularly the phrase “reference to [the juvenile record’s] contents” which will likely sweep all the parties’ filings within its scope. Opp. at 5-6.

On the first issue, CRC 2.551(b)(1) requires a party to file a motion and an application for an order, a memorandum, and a declaration of facts. Petitioner 1 has done so. A party must also lodge the documents proposed to be sealed “unless good cause exists for not lodging it”. CRC 2.551(b)(4). There is good cause as the sealing request is prospective in nature.

On the second issue, the court agrees that Petitioner 1’s proposed sealing is overbroad. The term “reference to its contents” is impermissibly vague and would result in a sealing order that applies to the whole record of the proceedings. Petitioner 1’s interest in privacy can be equally served by a more narrowly tailored order. The sealing order will require redaction of (1) any personal identifying information of Petitioner 1, and (2) any juvenile case number or equivalent identifying information for Petitioner 1’s juvenile conviction.

There remains an issue whether the parties may refer to the facts underlying Petitioner 1’s juvenile conviction without identifying information. Petitioner 1’s authority concerns the release of juvenile records by state and local authorities (see T.N.G. v. Superior Court, (191) 4 Cal.3d 767, 778-79), not the use of such information. Petitioner 1 has cited no authority that juvenile convictions may not be discussed in a court proceeding in which the juvenile is not identified. The court declines to issue a redaction order on this issue but the court will discuss with counsel what information is likely to be disclosed in court filings and whether a petition to the juvenile court will be necessary.

The motion is granted in part. Petitioner 1 may continue in the case under that pseudonym. The parties are ordered to redact in all filings (1) any personal identifying information of Petitioner 1, and (2) any juvenile case number or equivalent identifying information for Petitioner 1’s juvenile conviction. The court will discuss with counsel what information is likely to be disclosed in court filings and whether a petition to the juvenile court will be necessary.