Judge: Jon R. Takasugi, Case: 22STCV33306, Date: 2024-09-10 Tentative Ruling

Case Number: 22STCV33306    Hearing Date: September 10, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to compel CTC’s compliance with her subpoena for business records is GRANTED IN PART, DENIED IN PART consistent with the ruling set forth below.

On 10/12/2022, Plaintiff Martha Gonzalez (Plaintiff) filed a suit against Doe Unified School District and Doe 1. On 7/24/2024, Plaintiff filed a second amended complaint (SAC) alleging: (1) general negligence; (2) negligent supervision of a minor; (3) negligent hiring, retention, and supervision of an unfit employee; (4) negligent failure to warn, train, or educate; and (5) negligent misrepresentation.  

On 6/28/2024, Plaintiff moved to compel California Commission for Teacher’s Credentialing (CTC)’s compliance with her subpoena for business records.

Discussion

            Plaintiff argues that CTC must be compelled to comply with Plaintiff’s Deposition Subpoena because CTC responded by “providing meritless and boilerplate objections, refusing to produce all relevant and responsive documents, and further refusing to produce a privilege log identifying the withheld documents and information.” (Motion, 1: 7-8.)

            In opposition, CTC contends that the 82 pages produced to-date constitute all responsive materials that it can produce:

Most of the potentially responsive records CTC did not produce were prepared by third parties, and thus CTC cannot authenticate them. ([Yee Decl.] ¶4.) The other records are exempt from disclosure under the deliberative process privilege, and compelling production of CTC’s investigative reports and deliberations would have a chilling effect on CTC’s disciplinary functions

(Opp., 8: 5-9.)

After review, the Court disagrees in part and agrees in part.

First, CTC contends that Plaintiff cannot compel it to produce documents which are not CTC business records.

However, in all cases, “it is not necessary that the witness called to present foundational facts have personal knowledge of every transaction; he need only be familiar with the procedures followed.” (Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 449 [citing Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322].) As such, the Court agrees with Plaintiff that it is improper for the CTC to withhold non-privileged records that it can authenticate. Such records necessarily include all documents prepared by CTC employees that derive from documents prepared by third parties. These documents, specifically, are not shielded from disclosure by section 1561 of the Evidence Code.

Further, the CTC contends that it cannot corroborate that the withheld documents were created in the ordinary course of business at or near the time of the event. However, the Court agrees with Plaintiff’s explanation as to why CTC’s argument is unpersuasive:

The Education Code mandates that school districts report to the CTC, and that the CTC use the information provided by school districts to ascertain "the moral character… of the holder of a credential or an applicant for a credential or the renewal of a credential…” (Ed. Code, §§ 44210-44239, 44341, subd. (a)(1), 44030.5, subd. (a) [requiring superintendents to report to the CTC all changes in employment status of credential holders due to misconduct].) The CTC keeps record of its credentialing decisions in the normal course of business. All credentialing decisions made in the normal course of CTC business, by statute, must rely on communications and documents provided by third-parties, including school districts. The CTC has a substantial interest in the accuracy of those third-party records because the CTC’s corresponding reports, documents, and decisions are only as reliable as the third-party records upon which they are based. The nature of the withheld documents, given that the CTC created records that directly relate to those documents, creates a practical reality which warrants treating the withheld documents as business records of the CTC. Therefore, if the CTC can authenticate its own records prepared in reliance on the withheld third-party records, then it can do the same for those third-party records.

(Motion, 12: 5-18.)

Second, CTC contends that Plaintiff has not established good cause for the requested documents. As part of this, CTC contends that Plaintiff has not shown that the discovery could not be obtained from the LAUSD, or some other party to the action. However, Plaintiff argues that “Due to the passage of time, the CTC is the only entity that holds these essential records. Defendant LAUSD does not have the CTC’s records, and the records are not publicly available. Plaintiff thus has no other way to review these records and investigate her claims.” (Motion, 7: 13-15.)  Accordingly, the Court finds good cause exists to seek production by CTC of these documents.

The Court also declines to find that the Official Informational Privilege applies here.

The official information privilege only applies to “official information,” which is defined as “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code, § 1040, subd. (a).) Said information can only be withheld if:

(1)  Disclosure is forbidden by an act of the Congress of the United States or a statute of this state.

(2)  Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(Evid. Code, § 1040, subds. (b)(1)-(2).)

            Here, even accepting that the withheld documents contain “official information,” CTC has not shown that the CTC’s interest in confidentiality “clearly outweigh[s]” the interests of an individual litigant seeking information that is essential to her case.

However, the Court finds that certain records may be protected by the Deliberative Process privilege, as contended by CTC.

More specifically, Plaintiff is seeking all documents related to CTC’s “decisions . . . to approve, reject, suspend, and/or revoke [Chapel’s] credential.” (Yee Decl., Exh. A.)

Suspension and revocation decisions are made in closed session, and the deliberations are not subject to public disclosure. (See, Education Code, §§44230, 44245,44248, Gov. Code, § 6254, subdivision (f); see also Civil Code section 1798.24.) However, withholding “purely factual, investigative” documents is only proper upon an additional showing that the requests are “actually… related to the process by which policies are formulated” or “inextricably intertwined with policy-making processes.” (See Times Mirror Co v. Superior Court (1992) 53 Cal.3d at 1342 [emphasis added]). 

As such, CTC is only entitled to protect requests which are “actually… related to the process by which policies are formulated” or “inextricably intertwined with policy-making processes.” (Id.) However, it is not entitled to withhold purely factual, investigative matters.

            Taken together, the Court finds that CTC must comply with the majority of Plaintiff’s Subpoena requests. However, the Court finds that CTC need not produce documents which it cannot authenticate, and those documents which are “actually… related to the process by which policies are formulated” or “inextricably intertwined with policy-making processes.” (Times Mirror Co., supra, 53 Cal.3d at p. 1342.)

            Based on the foregoing, Plaintiff’s motion to compel CTC’s compliance with her subpoena for business records is granted in part, denied in part, consistent with the ruling set forth above.

It is so ordered.

Dated:  September    , 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.