Judge: Jon R. Takasugi, Case: 20STCV30229, Date: 2023-07-20 Tentative Ruling

Case Number: 20STCV30229    Hearing Date: January 9, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant Rojas’ motion for a protective order is DENIED.

On 8/11/2020, Plaintiff Janet Baggett, Preston Sertich by and through his guardian ad litem Michael Sertich, Jr., Michael Sertich, Jr. and Estate of Elizabeth Baggett, by and through representatives Janet Baggett and Preston Sertich filed suit against David Rojas and the City of Los Angeles (COLA), alleging (1) invasion of privacy; (2) intentional infliction of emotional distress; (3) negligence; (4) mishandling of human remains; (5) violation of human remains; (5) violation of Civil Code section 1708.85; (6) intrusion into private affairs; and (7) violation of mandatory statutory duties.

            Now, Defendant David Rojas (Rojas) moves for a protective order to limit the scope of discovery. 

Discussion

            Rojas seeks a protective order to limit the scope of discovery to exclude any records resulting from the investigation or prosecution and ultimate diversion of the criminal charge pending against Rojas. Rojas’s request is based on the Court’s ruling in the criminal proceeding against him granting Defendant’s Motion for Mental Health Diversion, and ordering that all such records be sealed pursuant to Penal Code section 851.91, 1001.9, and 1001.36.

            In support, Rojas cites Penal Code section 1001.36, subdivision (k) which provides:

A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant's treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant's eligibility for diversion under this section may not be used in any other proceeding without the defendant's consent ... "

Rojas also cites Penal Code section 851.91, subdivisions (b)(3) through (b)(5) stating:

(3) A police investigative report related to the sealed arrest, shall, only as to the person whose arrest was sealed, be stamped 'ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR,' and shall not next to the stamp the date the arrest was sealed and the section pursuant to which the arrest was sealed. The responsible law enforcement agency shall ensure that this note is included in all master copies, digital or otherwise, of the police investigative report related to the arrest that was sealed.

(4) Court records related to the sealed arrest shall, only as to the person whose arrest was sealed, be stamped 'ARREST SEALED: DO NOT RELEASE OUTSIDE OF THE CRIMINAL JUSTICE SECTOR,' and shall note next to the stamp the date of the sealing and the section pursuant to which the arrest was sealed. This stamp and note shall be included on all master court dockets, digital or otherwise, relating to the arrest.

(5) Arrest records, police investigative reports, and court records that arc scaled under this section shall not be disclosed to any person or entity except the person whose arrest was scaled or a criminal justice agency. Nothing shall prohibit disclose of information between criminal history providers.

            In opposition, Defendant City of Los Angeles (the City) does not dispute the meaning of the statutory provisions cited by Rojas, nor does it dispute that the records within the scope of those provisions may be inadmissible as evidence. Rather, the City argues that the content of this motion is an issue for trial, not a protective order: “What Defendant/Cross-Complainant muddles is that some of these issues may or may not be able to be entered into evidence at trial due to statutory preclusions or other evidentiary standards. But, that is an issue for trial not a preclusion order masked as this motion for protective order.” (Opp., 5: 4-7.)

            The Court agrees. Here, Rojas has put his mental state at issue and in order to defend against this, the City needs to explore this through expert discovery. Moreover, there may be no other means for the City to obtain the relevant information and/or documentation but through this civil discovery process.

            There is already a protective order in place to protect the dissemination of information outside the confines of this litigation. Accordingly, the risk of prejudice to Rojas is limited, whereas the City would be greatly prejudiced if it was denied all discovery related to Rojas’s mental state. Rojas’s motion is properly raised as a trial motion in the event of trial, not a protective order motion.

            Based on the foregoing, Defendant Rojas’ motion for a protective order is denied.

It is so ordered.

Dated:  January    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.