Judge: Mary H. Strobel, Case: 20STCP03274, Date: 2023-01-03 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 20STCP03274    Hearing Date: January 3, 2023    Dept: 82

            Petitioner Neil Chudgar (“Petitioner”) moves for an order sealing the entire 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”) opposes the motion to seal “all court documents” but “has no objections to the sealing of the arrest report, the body cam footage, and other related documents that expressly discuss the arrest.”  (Resp. Suppl. Br. 2:9-12.)

            On August 30, 2022, the motion came for hearing before the court.  After oral argument, the court adopted its tentative ruling to continue the hearing so that (1) Respondent could provide its position in writing as to the statutory construction of Penal Code sections 851.91 and 851.92; (2) the parties could further address the court’s tentative interpretation of these statutes, including by discussing any relevant legislative history; and (3) Petitioner could propose a narrowly tailored sealing order under Rule of Court 2.550.  (Minute Order dated 8/30/22 at 11-12.)  The court has received Petitioner’s opening supplemental brief, Respondent’s supplemental opposition, and Petitioner’s supplemental reply.  

The court incorporates by reference and does not repeat certain parts of the August 30, 2022, minute order, including the procedural history and summary of Penal Code sections 851.91 or 851.92.  As the court discussed in its August 30, 2022, minute order, Judge Munisoglu's sealing order did not require the sealing of any records in this separate civil case.  (Minute Order dated 8/30/22 at 6-7.)  The court does not repeat that analysis. 

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. 

            Petitioner argues that sealing of the entire court file is required by Penal Code sections 851.91 or 851.92.  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. 

Application of Penal Code Sections 851.91 and 851.92 to the Court Records in this 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.   (Ibid.)  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 could also produce anomalous results.

Pursuant to section 851.91, 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) [bold italics added].) However, under the administrative per se statutes, in order for the DMV to validly suspend a person's driver's license, there must have been a lawful arrest.  (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 168.)  Thus, Petitioner’s construction of section 851.91(e)(2)(B) could severely undermine the important policies in the implied consent law. 

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. 

In his supplemental brief, Petitioner argues as follows: “[N]othing in SB393, or the statutes it created, or amended, interferes in anyway with the administrative hearing process conducted by the California DMV regarding the suspension of driving privilege after a driving under the influence arrest. Due to the statutory requirements for sealing an arrest and its related records, an order to seal under section 851.91 would not take effect until long after the administrative DMV proceedings have ended.”  (Suppl. Br. 8.) 

Petitioner does not support this argument with persuasive legal analysis.  While in this case the DMV and writ proceedings were concluded before Judge Munisoglu issued the sealing order, it does not follow that all DMV and related civil proceedings would always be completed before a sealing order is issued under section 851.91.  For instance, if a DMV administrative decision was remanded by the trial court or court of appeal for further proceedings, and the criminal statute of limitations then runs on the underlying criminal offense, the arrest could be sealed and “deemed not to have occurred” under section 851.91(e), before completion of all DMV and related civil proceedings.  In that scenario, section 851.91 could substantially interfere with the administrative per se proceedings or a related writ action or civil appeal. 

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.  In one sense, the administrative mandate proceedings do not relate to the arrest, but to the driver’s license suspension.  However, because there is some ambiguity in the statutes, the court will consider the legislative history cited by Petitioner. 

The Legislative History Does Not Support Petitioner’s Construction of Sections 851.91 and 851.92 to Require Sealing of the Entire Civil Court File

            As a preliminary matter, Petitioner has not requested judicial notice of any legislative history of sections 851.91 and 851.92 or submitted the copies of the legislative history upon which he relies, as required by the Rules of Court.  (See Rule of Court 3.1306(c).)  Rather, Petitioner cites to the California Legislature's website, leginfo.legislature.ca.gov.  (Suppl. Br. 2.)  Respondent has not disputed the accuracy of the legislative history cited by Petitioner, and Petitioner’s quotations appear accurate from the court’s review of leginfo.legislature.ca.gov.

 In 2017, the California Legislature passed Senate Bill 393 (SB 393) which was signed into law by the Governor. This bill created Penal Code sections 851.91 and 851.92.

Petitioner contends that the intent of SB 393 was “to remove sealed arrests from public view on all databases and public records,” including from “civil court files.”  (Suppl. Br. 4.)  As support, Petitioner cites statements from bill analyses of the Senate Committee on Public Safety and the Senate Judiciary Committee.  For example, the Senate Committee on Public Safety quoted the following statement from the California Attorneys for Criminal Justice, an organization that supported the bill:

May [sic] individuals who are arrested are not charged; however their arrest record still follows them throughout life. This affects employment and housing opportunities when prospective employers or landlords run background checks online as part of an application process and see an arrest record. This “red flag” can serve as a serious barrier for housing and employment opportunities. Although California has a comprehensive statutory process to expunge convictions, it has inconsistent standards for sealing arrest records for individuals not convicted.

….

SB 393 will create a clear pathway to sealing an arrest record from public view when the arrest did not lead to a conviction. This will ensure individuals are not discriminated upon or that there are unnecessary barriers due to outdated records.

(SB 393, Bill Analysis of Senate Committee on Public Safety, dated 3/27/17, available at leginfo.legislature.ca.gov.) 

            As Petitioner notes, the Senate Judiciary Committee also indicated that a purpose of SB 393 was to remove information about arrests that did not lead to convictions from databases of consumer reporting agencies.  Thus, the Judiciary Committee’s April 24, 2017, bill analysis stated the following:

This bill would provide a mechanism for a person to petition a court to seal records of arrests that did not result in a conviction, as defined, with certain exceptions. This bill would also provide for a universal process for accomplishing the sealing of records after such records are ordered sealed pursuant to a host of existing statutes. This bill would also restrict consumer reporting agencies from sharing information regarding certain arrests, require them to more thoroughly vet arrest information for accuracy and completeness, and provide for civil penalties against such agencies for violations of these provisions.

…..[¶]

Consumer reporting agencies collect information and provide reports about individuals for clients. The Consumer Financial Protection Bureau recently released an index of the multitude of companies that have flooded this market. The clients often seek this background information in order to make decisions about whether to hire certain individuals, to extend them credit, to rent them a home, or to grant them a license or certificate. Much of the data used in these reports are gathered from public records or large databases based on such records. With rapid technological advancements, such information has become increasingly accessible over the last few decades, and often decision makers gather this data directly from the public records. In combination with how inexpensive they have become, these records have become incredibly attractive screening tools for these decision makers.

These reports and public records often contain information about a person’s criminal background, including records of arrests. The issue is that often previous arrests that never resulted in a conviction will be included in these reports and records. Although not evidence of having committed any crime, this information can result in an applicant being denied by an employer or landlord, leading to devastating consequences for individuals who can be effectively shut out of employment or housing.

(SB 393, Bill Analysis of Senate Judiciary Committee, dated 4/24/17, available at leginfo.legislature.ca.gov.) 

This legislative history shows intent for SB 393 to apply broadly to consumer reporting agencies and other persons or entities that may maintain databases of arrest records.  While none of the legislative history cited by Petitioner mentions civil court proceedings or DMV administrative per se proceedings, it appears a purpose of the legislation was to prevent public access to arrest-related documents when the arrest did not result in a conviction.

Petitioner seeks a very broad sealing order that would apply to all court documents that mention his arrest or DUI.  (Suppl. Br.  9.)  As Petitioner states, “That includes all pleadings or moving papers by either party, including this one, all evidence, and all exhibits, as well as all orders of the Court, including all its tentative rulings.”  (Ibid.)  However, Petitioner’s interpretation of section 851.91 to require such a broad sealing order leads to absurd results whereby an arrest in an DMV administrative per se proceeding or a related administrative writ action would be deemed “not to have occurred.”  In addition, sealing the entire file is somewhat at odds with the constitutional principles set forth in NBC Subsidiary, supra, and the sealing rules set forth in the California Rules of Court. 

The court does not interpret Penal Code sections 851.91 and 851.92 to require the sealing of the entire file in an administrative mandamus proceeding challenging a driver’s license suspension based on refusal to take a chemical test when there is no criminal conviction.  However, the strong policy to keep arrest-related information confidential expressed in those statutes inform the court’s analysis of what information should be sealed pursuant to CRC Rule 2.550.

Sealing Parts of the Court File Related to His Arrest Pursuant to CRC Rule 2.550(d)

            California Rules of Court, Rule 2.550 authorizes sealing when the court finds (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).) 

The above findings are made with respect to portions of the court file which contain the arrest report, or discuss the arrest as part of a different analysis.  The court orders sealed the following documents:

10/09/20 Petition for writ of mandate

10/09/20 Ex parte application for a stay

2/05/21 Answer

9/07/21 Opposition to Petition for Writ of Mandate

10/12/21 Minute order

2/18/21 Stipulation to seal court file (2 entries with this title this date)

2/23/21 Minute order

6/08/22 Motion to seal court file

6/08/22 proposed order to seal

9/21/22 Supplemental brief in support of motion to seal

10/20/22 Brief addressing Petitioner’s Motion to seal court documents

10/25/22 DMV’s supplemental brief addressing petitioner’s motion to seal court documents

11/4/22 Petitioner’s reply brief

The court notes that the administrative record in this case was lodged, but not filed.  The administrative record has been returned to the Petitioner.  This tentative ruling will not be posted, but will be emailed to counsel.  The court’s minute order ruling on the motion to seal will also be ordered sealed.

Conclusion

The motion to seal the entire file based on Judge Munisoglu's sealing order and Penal Code sections 851.91, and 851.92 is denied.

The motion to seal under Rule 2.550 et seq. is granted as to documents listed above.