Judge: Mary H. Strobel, Case: 20STCP03274, Date: 2022-08-30 Tentative Ruling
Hon. Mary H. Strobel
The clerk for Department 82 may be reached at (213) 893-0530.
Case Number: 20STCP03274 Hearing Date: August 30, 2022 Dept: 82
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Neil Chudgar, v. Department of Motor Vehicles, et al. |
Judge Mary
Strobel Hearing: August
30, 2022 |
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20STCP03274 |
Tentative
Decision on Motion to Seal Court File |
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Petitioner Neil Chudgar (“Petitioner”)
moves for an order sealing the court file pursuant to Penal Code section
851.91, and 851.92, as well as California Rules of Court 2.551 et seq. Respondent Department of Motor Vehicles
(“Respondent” or “DMV”) has stipulated to, and did not file an opposition to
the motion to seal the entire court file in this action.
Relevant Procedural History
On October 9, 2020, Petitioner filed
a verified petition for writ of mandate, which challenged Respondent’s
suspension of Petitioner’s driver’s license for one year. The suspension arose from Petitioner’s failure
to take a chemical test when arrested for suspicion of DUI. Also on October 9, 2020, the court granted
Petitioner’s ex parte application for a stay of the administrative order.
On October 12, 2021, after
considering the petition, the administrative record, body camera footage for
the arrest at issue, briefing from Respondent, and oral arguments, the court
granted the petition. The court issued a
written ruling, in which it found that Petitioner had not been given proper
admonishment under the Vehicle Code of the consequences of refusal to take a
chemical test.
On October 26, 2021, the court
entered judgment granting the writ of mandate.
The court issued a writ directing Respondent to set aside its September
28, 2020, order suspending the driving privileges of the Petitioner.
On January 12, 2022, in Los Angeles
Superior Court case number LAX21253, the Honorable Elizabeth Munisoglu granted
Petitioner’s petition to seal arrest and related records pursuant to Penal Code
sections 851.91 and 851.92.
On February 18, 2022, Petitioner and
Respondent filed a proposed stipulation to seal the entire court file in the
instant action, LASC case number 20STCP03274, “[i]n accordance with Judge
Munisoglu's Court Order issued on January 12, 2022, and Penal Code section
851.91.”
On February 23, 2022, the court
issued a minute order stating: “The court does not sign the stipulation. The parties can file an application to seal
with the showing required by California Rules of Court Rule 2.551 et seq. A
sealing order in the criminal case does not retroactively act to seal the
documents in the civil case which are already in the public record.”
On June 8, 2022, Petitioner filed this
motion to seal. Respondent has not filed
an opposition.
Notice
Petitioner’s
proof of service for the motion, filed June 8, 2022, states that Petitioner
served the motion on Respondent by mail and email on February 5, 2022. The proof of service was signed by
Petitioner’s counsel on May 23, 2022.
The motion was signed by Petitioner’s counsel on June 8, 2022. The court has not received an opposition to
the motion.
The
proof of service purports to show service on February 5, 2022, before the parties’
February 18 stipulation and the court’s February 23 minute order. Also, the proof of service was purportedly
signed before Petitioner’s counsel signed the motion. Petitioner’s counsel should explain the
discrepancies in dates in the proof of service and confirm whether the motion
was timely served. If Petitioner shows
proper and timely service, the following analysis applies.
Analysis
“[S]ubstantive
courtroom proceedings in ordinary civil cases are ‘presumptively open.’” (NBC
Subsidiary (KNBC-TV), Inc. v. Sup.Ct. (1999) 20 Cal.4th 1178, 1217.) To allow sealing of the record, including redactions
thereof, the court must make the necessary findings under California Rules of
Court, Rules 2.550 and 2.551.
California
Rules of Court, Rule 2.550(d) provides that a court may order a record to be
filed under seal 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. (CRC Rule 2.550(d).) Significantly, “[t]he Court must not permit a
record to be filed under seal based solely on the agreement or stipulation of
the parties.” (CRC Rule 2.551(a).) Also significant, the sealing rules in Rule
2.550 et seq. “do not apply to records that are
required to be kept confidential by law.”
(CRC Rule 2.550(a)(2).)
Petitioner argues that
sealing of the entire court file is required by Penal Code sections 851.91 or 851.92 and Judge Munisoglu's
January 12, 2022, order. Petitioner
contends that the sealing rules in Rule 2.550 et seq. do not apply because the
court records “are required to be kept confidential by law.” Alternatively, Petitioner argues that the
requirements of section 2.550(d) to seal the court file are met.
Penal Code Sections 851.91 or 851.92
Because they are important to the court’s ruling
on the motion, the court sets forth relevant provisions of Penal Code sections 851.91
or 851.92 at length.
Section 851.91 states, in pertinent part:
(a) A person who has suffered an
arrest that did not result in a conviction may petition the court to have his
or her arrest and related records sealed, as described in Section
851.92.
(1) For purposes of this section,
an arrest did not result in a conviction if any of the following are true:
(A) The statute of limitations has
run on every offense upon which the arrest was based and the prosecuting
attorney of the city or county that would have had jurisdiction over the
offense or offenses upon which the arrest was based has not filed an accusatory
pleading based on the arrest.
(B) The prosecuting attorney filed
an accusatory pleading based on the arrest, but, with respect to all charges,
one or more of the following has occurred:
(i) No conviction occurred, the
charge has been dismissed, and the charge may not be refiled.
(ii) No conviction occurred and the
arrestee has been acquitted of the charges.
(iii) A conviction occurred, but
has been vacated or reversed on appeal, all appellate remedies have been exhausted,
and the charge may not be refiled.
….[¶]
(c) A petition to seal an arrest
record pursuant to this section may be granted as a matter of right or in the
interests of justice.
(1) A petitioner who is eligible
for relief under subdivision (a) is entitled to have his or her arrest sealed
as a matter of right unless he or she is subject to paragraph (2) [paragraph
(2) is not applicable here] ….
[¶]
(e) If the court grants a petition
pursuant to this section, the court shall do all of the following:
(1) Furnish a disposition report to
the Department of Justice, pursuant to Section
13151, stating that relief was granted
under this section.
(2)(A) Issue a written ruling and
order to the petitioner, the prosecuting attorney, and to the law enforcement
agency that made the arrest that states all of the following:
(B) The record of arrest has been
sealed as to petitioner, the arrest is deemed not to have occurred, the
petitioner may answer any question relating to the sealed arrest accordingly,
and the petitioner is released from all penalties and disabilities resulting
from the arrest, except as provided in Section
851.92 and as follows:
(i) The sealed arrest may be pleaded
and proved in any subsequent prosecution of the petitioner for any other
offense, and shall have the same effect as if it had not been sealed.
(ii) The sealing of an arrest
pursuant to this section does not relieve the petitioner of the obligation to
disclose the arrest, if otherwise required by law, in response to any direct
question contained in a questionnaire or application for public office, for
employment as a peace officer, for licensure by any state or local agency, or
for contracting with the California State Lottery Commission.
(iii) The sealing of an arrest
pursuant to this section does not affect petitioner's authorization to own,
possess, or have in his or her custody or control any firearm, or his or her
susceptibility to conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part
6, if the arrest would otherwise affect this authorization or susceptibility.
(iv) The sealing of an arrest
pursuant to this section does not affect any prohibition from holding public
office that would otherwise apply under law as a result of the arrest.
Section 851.92 states, in pertinent part:
(a) This section applies when an arrest record
is sealed pursuant to Sections 851.87, 851.90, 851.91, 1000.4,
and 1001.9.
(b) When the court issues an order to seal an
arrest, the sealing shall be accomplished as follows:
(1) The court shall provide copies of the order
and a report on the disposition of the arrest, as follows:
(A) Upon issuing the order, the court shall
provide a copy to the person whose arrest was sealed and to the prosecuting
attorney.
(B) Within 30 days of issuing the order, the
court shall forward a copy of the order to the law enforcement agency that made
the arrest, to any other law enforcement agency that participated in the
arrest, and to the law enforcement agency that administers the master local
summary criminal history information that contains the arrest record for the
sealed arrest.
….[¶]
(2) The arrest record shall be updated, as
follows:
(A) The local summary criminal history
information shall include, directly next to or below the entry or entries
regarding the sealed arrest, a note stating “arrest sealed” and providing the
date that the court issued the order, and the section pursuant to which the
arrest was sealed. This note shall be included in all master copies of the
arrest record, digital or otherwise.
(B) The state summary criminal history
information shall include, directly next to or below the entry or entries
regarding the sealed arrest, a note stating “arrest relief granted,” providing
the date that the court issued the order and the section of the Penal Code
pursuant to which the relief was granted. This note shall be included in all
master copies of the arrest record, digital or otherwise.
(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
note next to the stamp the date the arrest was sealed and the section pursuant
to which the arrest was sealed. The responsible local 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 are sealed under this section shall not be
disclosed to any person or entity except the person whose arrest was sealed or
a criminal justice agency. Nothing shall prohibit disclosure of information
between criminal history providers.
(6) Notwithstanding the sealing of an arrest, a
criminal justice agency may continue, in the regular course of its duties, to
access, furnish to other criminal justice agencies, and use, including, but not
limited to, by discussing in open court and in unsealed court filings, sealed
arrests, sealed arrest records, sealed police investigative reports, sealed
court records, and information relating to sealed arrests, to the same extent
that would have been permitted for a criminal justice agency if the arrest had
not been sealed.
(c) Unless specifically authorized by this
section, a person or entity, other than a criminal justice agency or the person
whose arrest was sealed, who disseminates information relating to a sealed
arrest is subject to a civil penalty of not less than five hundred dollars
($500) and not more than two thousand five hundred dollars ($2,500) per
violation. The civil penalty may be enforced by a city attorney, district
attorney, or the Attorney General. This subdivision does not limit any existing
private right of action. A civil penalty imposed under this section shall be
cumulative to civil remedies or penalties imposed under any other law.
(d) As used in this section and Sections 851.87, 851.90, 851.91, 1000.4,
and 1001.9, all of
the following terms have the following meanings:
(1) “Arrest record” and
“record pertaining to an arrest” mean information about the arrest or detention
that is contained in either of the following:
(A) The master, or a copy of
the master, local summary criminal history information, as defined in subdivision
(a) of Section 13300.
(B) The master, or a copy of
the master, state summary criminal history information as defined in
subparagraph (A) of paragraph (2) of subdivision (a) of Section 11105.
(2) “Court records” means records, files, and materials created,
compiled, or maintained by or for the court in relation to court proceedings,
and includes, but is not limited to, indexes, registers of actions, court
minutes, court orders, court filings, court exhibits, court progress and status
reports, court history summaries, copies of state summary criminal history
information and local summary criminal history information, and any other
criminal history information contained in any of those materials.
Application of the
Sealing Order to Court Records in this Writ Action
Petitioner contends
that sealing of the court file in this writ action
is required by the terms of Judge
Munisoglu's January 12, 2022, order. (Mot.
6-7.) Judge Munisoglu's sealing order states that “the
record of arrest in the following matter shall be sealed under the provisions
of section 851.91 and the arrest deemed not to have occurred: Law enforcement
agency report number: DR# 20 08 07329.”
This law enforcement agency report refers to an arrest report submitted
with Petitioner’s ex parte application for a stay in this action and also with
the administrative record. (Ex Parte
filed 10/9/10 at Exh. C.)
The
order contains a line “Court case number:” in which Judge Munisoglu or the
requesting party could have entered the case number of the civil case. The line in the order was left blank. The order provides various statements about
the effect of the sealing, but none of those statements referred to this writ
action or court records in other proceedings.
Judge Munisoglu's sealing order did not
expressly require the sealing of any records in this separate civil case. However, as discussed below, Petitioner
argues the
sealing order had the effect, by operation of sections 851.91 and 851.92, of
requiring a sealing of the court file related to Petitioner’s writ of
administrative mandamus.
Application
of Penal Code Sections 851.91 and 851.92 to the Court Records in the Writ
Action
Petitioner contends that sections
851.91 or 851.92 are worded broadly and a sealing order granted under these
statutes applies to “all court proceedings involving the arrest,” including
civil proceedings in which the arrest records are already part of the public
court file or the sealed arrest is discussed in a court’s statement of
decision. (Mot. 7-10.) Petitioner raises a question of statutory
interpretation.
“The
rules governing statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory interpretation is to
ascertain and effectuate legislative intent. [Citations.] To determine
legislative intent, we turn first to the words of the statute, giving them
their usual and ordinary meaning. [Citations.] When the language of a statute
is clear, we need go no further. However, when the language is susceptible of
more than one reasonable interpretation, we look to a variety of extrinsic
aids, including the ostensible objects to be achieved, the evils to be
remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a
part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)
When interpreting a statute, the court must
construe the statute, if possible to achieve harmony among its parts. (People
v. Hull (1991) 1 Cal. 4th 266, 272.)
“When interpreting statutory language, we may
neither insert language which has been omitted nor ignore language which has
been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002)
98 Cal.App.4th 277, 282.) “[I]nterpretations which render any part of a
statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th
1078, 1083.) The court “must select the construction that
comports most closely with the apparent intent of the Legislature, with a view
to promoting rather than defeating the general purpose of the statute, and
avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th
234, 246.)
Penal Code section
851.91(a) states that “[a] person who has suffered an arrest that did not
result in a conviction may petition the court to have his or her arrest and
related records sealed.” Section
851.91(a)(1)(B) states that circumstances in which an arrest does not “result
in a conviction” include when the prosecuting attorney filed an accusatory
pleading based on the arrest but “no conviction occurred” or a conviction
occurred “but has been vacated or reversed on appeal.” As Petitioner points out, section
851.91(a)(1)(B) shows that a sealing order could apply “retroactively” to court
files already in the public record.
(Mot. 9.) However, the
“accusatory pleading” and any subsequent appeal would only be filed in a court
with “criminal jurisdiction.” (See also
§ 851.91(b)(1)(B).) Thus, section
851.91(a)(1)(B), standing alone, does not show legislative intent for the
sealing order to apply to arrest records or statements about a sealed arrest that
are already part of the public record in civil proceedings.
Petitioner also cites to
sealing rules in section 851.92 as evidence that the legislature intended the
sealing order to apply to arrest-related records already part of the public
record in pending civil proceedings.
(Mot. 7-10.)
Section 851.92(b)
specifies how the sealing “shall be accomplished” when a court issues an order
to seal an arrest under section 851.91. Section
851.92(b) states, inter alia, that the sealing shall be accomplished by
the following actions related to “court records”:
(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 are sealed under this section shall not be disclosed to
any person or entity except the person whose arrest was sealed or a criminal
justice agency. Nothing shall prohibit disclosure of information between
criminal history providers.
Section 851.92(d)(2) defines “court
records” to include: “records, files, and materials created, compiled, or
maintained by or for the court in relation to court proceedings, and includes,
but is not limited to, indexes, registers of actions, court minutes, court
orders, court filings, court exhibits, court progress and status reports, court
history summaries, copies of state summary criminal history information and
local summary criminal history information, and any other criminal history
information contained in any of those materials.”
Petitioner argues
section 851.92(b) requires sealing of any court records “related to the sealed
arrest,” and that “court records” is
defined broadly and includes no express limitation to the records in criminal
proceedings or the case in which the sealing order is made. However, the section immediately preceding
the definition of “court records” defines “arrest record” and “record
pertaining to an arrest” to mean information about an arrest or detention that
is contained in the local summary criminal history information, or state
summary criminal history information. Id. There
is some implication that court records would similarly be those related to
criminal proceedings. Section 851.92(b)(5)
states that “court records that are sealed under
this section shall not be disclosed to any person or entity except the person
whose arrest was sealed or a criminal justice agency.” The statute defines “criminal justice agency”
to mean any agency of government that performs, as its principal function,
activities related to the “apprehension, prosecution defense, adjudication,
incarceration or correction of criminal suspects and criminal offenders.” It includes a court of this state. 851.92(d)(4).
Again these sections imply that sealing is intended to apply to criminal
proceedings.
Petitioner argues an
interpretation of the statutory scheme to apply only to criminal court
proceedings would weaken the effectiveness of sections 851.91 and 851.92. A person or entity that wished to locate
sealed arrest records could do so by reviewing the public record in pending
civil cases in which the sealed arrest report and related documents are
included. On the other hand, an
interpretation of these provisions to require sealing, and prohibit
dissemination of information regarding an arrest in separate administrative
proceedings would also produce anomalous results.
As a threshold matter, an
administrative challenge to a driver’s license suspension based on failure to
take a required chemical test under the implied consent law is separate and
apart from any criminal proceeding related to a DUI arrest. Under the implied consent law in the Vehicle Code,
consent to taking a chemical test when arrested for DUI is a condition of
holding a driver’s license. A suspension
for failure to take the required test is lawful whether or not the license
holder is charged with a DUI, and whether or not the holder is convicted of
driving under the influence. See, e.g., Burnstine v. Dep't of Motor
Vehicles, (1996)
51 Cal. App. 4th 1428, 1431-1432 (“But,
under the implied consent law, it has long been held that a refusal to take a chemical test does not
require an intentional (or even purposeful) refusal; it occurs, quite simply, when the driver does not take one of the chemical tests. (citations omitted) Under those
circumstances, the Legislature made the policy decision that a person acquitted
of the criminal charge of willful refusal to take a chemical test may still have
his or her license suspended administratively”.
Pursuant
to statute, the effect of a sealing order is that “[t]he record of arrest has
been sealed as to petitioner, the arrest is deemed not to have occurred, the
petitioner may answer any question relating to the sealed arrest accordingly,
and the petitioner is released from all penalties and disabilities resulting
from the arrest.” (§ 851.91(e)(2)(B).) However, section 851.91 also provides “the
sealing of an arrest pursuant to this section does not relieve the petitioner
of the obligation to disclose the arrest, if otherwise required by law, in
response to any direct question contained in a questionnaire or application for
public office, for employment as a peace officer, for licensure by any state or
local agency, or for contracting with the California State Lottery
Commission. 851.92(e)(2)(B)(ii). The statute itself seems to recognize that
different rules may apply when considering arrests in the context of state
licensing procedures.
The court finds ambiguity
in the statutory scheme as applied to a civil administrative challenge to a
driver’s license suspension based on failure to take a chemical test. Section 851.92(b)(4) and (5) state that court
records related to the arrest must be sealed, but the statutes are unclear how
that mandate is to be communicated to or executed by a civil court in which a
separate administrative decision is challenged when the arrest report is part of the public
file, having been put in issue by the Petitioner. The court notes that the administrative
record containing the police report is lodged with the court, but not
filed. Here, however, Petitioner made
the police report part of the public file when it attached the report to his
request for a stay.
The sealing standard
also provides limited guidance on how the civil court would determine whether
court records in a pending civil administrative writ are sufficiently “related”
to the sealed arrest such that they must be sealed. For example, it would be noteworthy if section
851.91 were interpreted to require sealing of portion of the court’s statement
of decision in a civil writ proceeding if it references the arrest report.
Counsel should further address these
issues at the hearing, including any relevant legislative history.
Sealing
Parts of the Court File Related to His Arrest Pursuant to CRC Rule 2.550(d)
As
discussed above, the arrest report sealed by Judge Munisoglu's sealing order
was submitted by Petitioner with his ex parte application for a stay and was
part of the administrative record lodged with, but not maintained by the court. (See Ex
Parte filed 10/9/10 at Exh. C.) The contents
of the arrest report were discussed in the petition, Petitioner’s ex parte
application for a stay, Respondent’s answer, Respondent’s writ brief, and the
court’s ruling on the writ petition. The
arrest was documented visually and audibly in the body camera footage of the
responding officers, as discussed and quoted in the court’s ruling on the writ
petition.
At
least with respect to the police report itself, attached to Petitioner’s ex
parte application for a stay, the court finds that (1) There
exists an overriding interest that overcomes the right of public access to the
record; (2) The overriding interest supports sealing of such records; (3) A
substantial probability exists that the overriding interest will be prejudiced
if the record is not sealed; (4) The proposed sealing of the arrest report is
narrowly tailored; and (5) No less restrictive means exist to achieve the
overriding interest. (CRC Rule
2.550(d).)
However, Petitioner has
not provided a complete discussion in his motion of what other court records in
this writ action are “related to the sealed arrest. Some court records substantively discuss the
arrest or quote from the arrest report, the body cam footage, or other similar
documents. Other court records, including
certain minute orders on procedural matters, the judgment, and the writ of
mandate, do not expressly discuss the arrest.
Petitioner has not proposed a “narrowly sealed” order which would seal
only those portions of the court file for which findings under Rule of court
2.550 could be made.
Conclusion
Subject to oral argument on the issues outlined
above, the motion is continued so that the attorney general’s office provides
its position in writing, the parties further address statutory interpretation,
including any relevant legislative history, and Petitioner proposes a narrowly
sealed order under Rule of Court 2.550 as discussed above.