Judge: Lynette Gridiron Winston, Case: 22PSCP00471, Date: 2024-01-17 Tentative Ruling
Case Number: 22PSCP00471 Hearing Date: January 17, 2024 Dept: 6
CASE NAME: Insider, Inc., et al. v. El Monte High School Union District
Motion for Reconsideration and Modification of Order on Petition for Writ of Mandate
TENTATIVE RULING
The Court DENIES Respondent El Monte Union High School District’s motion for reconsideration and modification of order on petition for writ of mandate.
BACKGROUND
This is a California Public Records Act dispute. On September 26, 2022, Petitioners Insider, Inc. (Insider) and Matt Drange (Drange) (collectively, Petitioners) filed a verified petition for writ of mandate against Respondent El Monte Union High School District (Respondent) to compel compliance with the California Public Records Act (CPRA) in connection with two CPRA requests. On November 28, 2022, Respondent answered the petition.
On November 7, 2023, a hearing on the petition was held. On November 17, 2023, after taking the matter under submission, the Court issued a statement of decision on the petition for writ of mandate.
On December 5, 2023, Respondent filed the instant motion for reconsideration and modification of order on petition for writ of mandate. On January 3, 2024, Petitioners opposed the motion. On January 9, 2024, Respondent replied.
LEGAL STANDARD
When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.
(Code Civ. Proc., § 1008, subd. (a).)
DISCUSSION
Respondent asks the Court to reconsider its order issued on November 17, 2023 (the Order) with respect to the disclosure of records regarding Justin Rosien. (See Minute Order (11/17/2023).) Respondent contends that new facts have arisen by way of Justin Rosien objecting to the Court ordering Respondent to produce the 19 pages of documents identified in the Order and by way of a 15-page confidential report regarding Justin Rosien (the Report). Respondent indicates that on December 4, 2023, its board of trustees approved a limited waiver of attorney-client privilege regarding the Report for an in-camera review. Respondent contends the Report shows the underlying complaint against Rosien was unsubstantiated, and that the waiver of the attorney-client privilege constitutes a new fact or different circumstance for purposes of reconsideration under Code of Civil Procedure section 1008. Respondent therefore asks the Court to review the Report to fully assess the reliability of the complaint made against Rosien and reconsider the portion of the Order directing Respondent to disclose the 19 pages of documents regarding Rosien.
In opposition, Petitioners contend that the only means for Respondent to seek review of the Order is through a writ per Government Code section 7923.500, and not through a motion for reconsideration under Code of Civil Procedure section 1008. Petitioners cite various cases to support this contention. Petitioners then argue that the motion for reconsideration should be denied because it presents no new facts per Code of Civil Procedure section 1008. More specifically, Petitioners contend Respondent cannot rely on its own decision to previously withhold the Report under the aegis of attorney-client privilege when this Court conducted its in-camera review and then subsequently decide on its own to waive attorney-client privilege after the Court ruled in favor of Petitions on this issue. The Court disagrees with Petitioners with respect to the applicability of Government Code section 7923.500, but agrees with Petitioners that Respondent does not present new facts or circumstances for purposes of a motion for reconsideration under Code of Civil procedure section 1008.
Government Code section 7923.500 applies only to appellate review of a trial court’s rulings, and not to a trial court’s ability to review its prior rulings. (See Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426-427, italics added [“The purpose of the provision [i.e., Gov. Code § 7293.500, subd. (a), formerly Gov. Code § 6259, subd. (c)] limiting appellate review of the trial court's order to a petition for extraordinary writ is to prohibit public agencies from delaying the disclosure of public records by appealing a trial court decision and using continuances in order to frustrate the intent of the Act. [Citation.]”]; see also MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 264, italics added [Gov. Code § 7923.500, subd. (a) “unambiguously forecloses an appeal and instead expressly authorizes a writ as the sole and exclusive means to challenge the trial court's ruling. [Citation.]”; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1109, italics in original [“nothing prohibits the court from reconsidering its previous ruling on its own motion…”].)
The Court also notes that Respondent’s reply papers address Petitioners’ citations to various cases in their opposition, including Filarsky and MinCal. As discussed herein, the Court finds Filarsky and MinCal show that Government Code section 7293.500 applies only to appellate review of trial court decisions with respect to CPRA requests, and says nothing about a trial court’s ability to reconsider its prior rulings. Petitioners’ citations to City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272 and Kennedy v. Superior Court (2019) 36 Cal.App.5th 306 are also unavailing. While City of Los Angeles provides that a CPRA proceeding is a “special proceeding of a civil nature,” it says nothing about a trial court’s ability to review its prior decisions and instead addresses the right to conduct discovery in the context of CPRA proceeding. (City of Los Angeles, supra, 9 Cal.App.5th at p. 285.) As for Kennedy, the issue was whether the automatic stay provisions of Code of Civil Procedure section 917.2 applied to special proceedings vis-à-vis a petition under Government Code section 11187 to enforce an administrative subpoena, and the Court of Appeal said nothing about whether the trial court can reconsider its prior rulings. (Kennedy, supra, 36 Cal.App.5th 306, 308-309.) The Court also notes that Code of Civil Procedure section 917.2 applies only to appeals, not a trial court’s reconsideration of its prior rulings. (See Code Civ. Proc., § 917.2.)
Therefore, the Court does not find that Respondent’s motion for reconsideration is prohibited under Government Code section 7923.500.
Nevertheless, the Court does find that Respondent has not presented new facts or circumstances for purposes of Code of Civil Procedure section 1008. In essence, Respondent contends that Rosien’s objection to the Court’s order and Respondent’s decision to waive the attorney-client privilege constitutes a new circumstance allowing for new facts and evidence to be considered. The Court does not find this to be a new circumstance or new facts under section 1008. “Under Code of Civil Procedure section 1008, a party seeking reconsideration of a prior ruling upon an alleged different set of facts must ‘provide both newly discovered evidence and an explanation for the failure to have produced such evidence earlier. [Citation.]’ [Citation.]” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168.) “The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
The Court does not find Rosien’s objection to the production of the 19 documents identified in the Order to constitute a new fact or circumstance justifying reconsideration of that part of the Order. It is unclear what the legal effect of Rosien’s objection are on the Court’s Order, if any, and Respondent provides no explanation or citation to legal authorities as to how that constitutes a new fact justifying reconsideration. If Rosien wishes to stop the production of those documents, Rosien may seek to do so in the manner the law provides. (See Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1265.)
Moreover, the Court does not find the subsequent decision of Respondent’s board of trustees to waive the attorney-client privilege with respect to the Report to constitute a new fact or circumstance justifying reconsideration. Respondent provides no legal authority containing any examples of such waivers constituting new facts or circumstances, nor does Respondent adequately explain its failure to produce the Report earlier when the Court reviewed the 19 Rosien documents in camera. In fact, Respondent specifically excluded the Report from the Court’s in camera review.
Respondent was clearly aware of the Report when the Court reviewed the 19 Rosien documents. (See Tkaczow Decl., ¶¶ 6-7.) Respondent chose to maintain attorney-client privilege over the Report before the Court issued the Order on November 17, 2023, which it was within its right to do. However, Respondent’s subsequent decision to waive that privilege does not entitle Respondent to have the Court reconsider the Order, especially since Respondent was previously aware of the Report and is only now offering it after the Court decided in Petitioners’ favor on this issue. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) [“Here the facts which Bradbury recited in his declaration in support of reconsideration were obviously known to him before the sanctions order was made and so they were not newly discovered. The only thing newly discovered was the inaccuracy of Bradbury's guess about what the court would rule. “]) If Respondent found this information in the Report relevant and was willing to waive the corresponding attorney-client privilege, then Respondent surely could have and should have done so earlier when the Court reviewed the 19 Rosien documents in camera.
CONCLUSION
The Court DENIES Respondent El Monte Union High School District’s motion for reconsideration and modification of order on petition for writ of mandate.
Petitioners are ordered to give notice of the Court’s ruling within five calendar days of this order.