Judge Mary H. Strobel, Case 21STCP00312 2023-03-16 Tentative Ruling

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

Petitioner Jane Doe, in pro per (“Petitioner”) moves for sanctions pursuant to CCP section 177.5 against Respondent County of Los Angeles (“Respondent” or “County”), Lieutenant Sherif Morsi, “County’s counsel,” and law firm Collins + Collins LLP, jointly and severally, for “failure to comply with this court’s orders entered on April 8, 2022 and October 11, 2022 without either good cause or substantial justification.”

On February 2, 2021, Petitioner filed her verified petition for writ of mandate and complaint for declaratory relief pursuant to the California Public Records Act (“CPRA”).

On March 22, 2022, the court partially granted the FAP. More specifically, the court granted the FAP as to Petitioner’s CPRA requests dated February 2, 2021, February 9, 2021, February 26, 2021[1], and March 23, 2021 (CPRA Requests Nos. 1-2, 4, and 9).

On April 8, 2022, the court entered its judgment on the FAP. The judgment states, in pertinent part:

The court grants the petition as to Petitioner’s CPRA requests dated February 2, 2021, February 9, 2021, February 26, 2021 (the CPRA request with respect to the Manual of Los Angeles Regional Crime Information System and User Guide of Los Angeles Regional Crime Information System only), and March 23, 2021. The court orders County to produce all records responsive to those requests and without any redactions.

On April 21, 2022, Respondent filed a notice of intention to move for a new trial. On May 12, 2022, Respondent filed a memorandum of points and authorities. The court received Petitioner’s opposition to the request for new trial and Respondent’s reply.

On June 16, 2022, after a hearing, the court denied Respondent’s motion for new trial.

The court has no indication that Respondent sought any appellate review of the court’s decisions to grant the writ petition or deny the motion for new trial.

On July 13, 2022, Petitioner filed her motion for enforcement of judgment and sanctions. The court received Respondent’s opposition and Petitioner’s reply.

On September 14, 2022, Respondent filed its motion for protective order. The court received Petitioner’s opposition and Respondent’s reply.

On October 11, 2022, after a hearing, the court denied Respondent’s motion for protective order, granted Petitioner’s motion for enforcement of judgment, and denied Petitioner’s motion for sanctions without prejudice. The court’s minute order dated October 11, 2022, discusses the court’s reasoning. That discussion is not repeated here but is incorporated by reference.

The court gave Respondent 10 days to comply with the judgment. The October 11 minute order states, in pertinent part: “Petitioner’s motion for an order enforcing the judgment is granted. Respondent must comply within 10 days.” (bold italics added.) The court ordered Respondent to give notice of this ruling, which Respondent did on October 11, 2022. The notice of ruling states, in part: “Counsel for County requested that the 10-day period for compliance and/or filing a writ petition/request for stay with the Court of Appeal be extended to 20 days, but the court declined. Petitioner sought clarification regarding whether the denial of the motion for sanctions was with prejudice, and the Court responded that Petitioner could file another motion for sanctions if she desired.” (Court File.)

On October 21, 2022, exactly 10 days after the court’s October 11, 2022, ruling, Respondent filed a petition for writ of mandate with the Court of Appeal. The Court of Appeal summarily denied the petition on October 24, 2022. (Moore Decl. ¶ 7.)

On November 1, 2022, the court continued Petitioner’s ex parte application for an OSC re: contempt to November 9, 2022.

On November 9, 2022, the court denied the ex parte application, noting that Petitioner had received the unredacted manual from Respondent.

On December 27, 2022, Petitioner filed and served the instant motion for sanctions. The court has received Respondent’s opposition and Petitioner’s reply.

A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.

Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.

“The apparent purpose of this enactment is to compensate public agencies for the cost of unnecessary hearings.” (In re Woodham (2001) 95 Cal.App.4th 438, 443.) “[T]he statute's scope was not intended to be limited to compensatory sanctions but instead was contemplated to authorize punitive sanctions as well.” (Ibid.) “Section 177.5 ‘was designed to supplement section 128.5, which authorizes a trial court to order a party or a party's attorney, or both, to pay to another party reasonable expenses incurred by that party as a result of bad faith actions or tactics which are frivolous or solely intended to cause unnecessary delay. However, unlike section 128.5, … section 177.5 requires only that the sanctioned party violate lawful court order 'without good cause or substantial justification.'…. In doing so, ‘section 177.5 does not even require a willful violation, but merely one committed ... without a valid excuse.’” (Id. at 446.)

The advocacy exception of section 177.5 does not apply if the evidence shows that the attorney was not engaged in advocacy of a particular legal position, but rather made “a calculated decision to violate the court's order.” (Scott C. Moody, Inc. v Staar Surgical Co. (2011) 195 Cal.App.4th 1043, 1049.)

As summarized above, the court issued a judgment on April 8, 2022, granting the writ petition in part and ordering County to produce all records responsive to certain CPRA requests “without any redactions.” (bold italics added.) Significantly for this motion, County did not seek appellate review of the court’s judgment or a stay. County filed a motion for new trial, which was denied June 16, 2022, and a motion for protective order, which was denied October 11, 2022. County did not comply with the court’s judgment while these post-trial motions were litigated and instead produced only a redacted version of the LARCIS user guide with its motion for protective order on September 14, 2022. (See generally Doe Decl. ¶¶ 2-6.) On October 31, 2022, 20 days after the court’s October 11 order, Respondent mailed to Petitioner an unredacted copy of the LARCIS User Guide. (Id. ¶ 9.) Petitioner did not receive the unredacted public record until November 4, 2022. (Doe Decl. ¶ 12.)[2]

Respondent contends that “the judgment and final order dated April 8, 2022 did not establish a particular deadline for disclosing an unredacted guide.” (Oppo. 11.) Respondent apparently contends that it had no duty to comply until Petitioner moved to enforce the judgment and obtained a court order specifying a deadline for compliance. (Ibid.) The argument is inconsistent with the CPRA, which demands “prompt” compliance (Gov. Code § 7922.530), and with Article 1, Section 3(b) of the California Constitution, which affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business.” Respondent cites no authority that an agency may indefinitely delay compliance with a judicial order enforcing the CPRA until a specific deadline for compliance is stated. A reasonable time for compliance was implied in the court’s judgment. Notably, the court’s judgment did not permit redactions, and Respondent could have produced the records immediately. Thus, absent some excuse, a substantial delay of more than six months in compliance with the judgment is reasonably viewed as a violation of the court order compelling disclosure of the unredacted LARCIS Guide.

Respondent contends that this court’s October 11 order “contemplated that the County would exercise its appellate remedies and seek writ review of the order,” and that the 10-day stay should be interpreted to include any additional period for Respondent to “exhaust” its appellate remedies before the California Supreme Court. (Oppo. 12.) In his declaration, attorney Moore states: “My understanding from the Court’s comments during the hearing as well as the Court’s written tentative ruling (see exhibit 3 to Petitioner’s Motion) was that the County would not need to produce an unredacted copy of the LARCIS user guide so long as it was continuing to seek appellate review of this Court’s order denying the County’s motion for protective order.” (Moore Decl. ¶ 13.) Respondent does not cite a transcript of the hearing and its argument finds no support in the court’s ruling and order. In its minute order, the court stated that “Respondent must comply within 10 days.” (bold italics added.) As acknowledged in Respondent’s notice of ruling, the court denied Respondent’s request for a longer period of compliance. Respondent was required to comply within 10 days if it did not obtain a stay from the Court of Appeal.

Based on the foregoing, the court finds that Respondent County of Los Angeles knew of the April 8, 2022, judgment. Respondent partially complied with the judgment when it produced the redacted LARCIS Guide with its motion for protective order in September 2022. Respondent knowingly did not fully comply with the judgment until October 31, 2022. Respondent also knew of the October 11, 2022, order and knowingly failed to comply with that order when it did not produce the unredacted LARCIS Guide until October 31, 2022, 10 days after the 10-day period for compliance had ended. The issue is whether Respondent acted with good cause and substantial justification when it knowingly violated these two court orders.

Respondent contends that it acted with good cause and substantial justification in delaying disclosure until October 31, 2022, because “the County was concerned that disclosure of an unredacted user guide might give rise to potential liability under privacy statutes and was contrary to the LASD’s internal policies.” (Oppo. 12.) Specifically, Respondent contends that “[t]he privacy interests protected by Civil Code section 1798 et seq. are so important that the Legislature has placed ‘strict limits’ on dissemination of personal information of the type contained in the LARCIS user guide.” (Ibid.)

In a variety of contexts, substantial justification has been interpreted to mean “justification [that] is clearly reasonable because it is well-grounded in both law and fact”. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.)

Respondent acted with good cause and substantial justification when it delayed disclosure during the time it litigated the motion for new trial. In the briefing for the writ petition, Respondent’s prior attorney failed to raise any argument that the LARCIS Guide or Manual contained private information that should be redacted under the CPRA. (See discussion at 10/11/12 Minute Order at 3.) Respondent contends that compliance with the judgment would cause it to violate other laws regarding disclosure of personal information. Respondent was authorized by statute to raise these issues in a new trial motion. Although the motion was unsuccessful, Respondent had good cause to bring the motion and delay compliance until the motion was decided.

Respondent did not act with good cause and substantial justification when it failed to comply with the court’s order after the new trial motion was denied on June 16, 2022. In opposition, Respondent has wholly failed to explain why it did not seek appellate relief from the Court of Appeal after the new trial motion was denied if it believed it should not comply with this court’s judgment. The potential grounds for CPRA exemption asserted by Respondent, including privacy rights under Civil Code section 1798 et seq., were simply immaterial after the new trial motion was denied and after Respondent did not seek appellate review. As stated in the court’s October 11, 2022, ruling:

Respondent does not cite a case or statute authorizing this court to grant a post-judgment protective order after denial of a motion for new trial. Respondent states that the court has authority to impose such a protective order pursuant to discovery statutes in CCP sections 2019.030 and 2031.060. (Mot. 8, citing City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272.) The court disagrees. While CPRA actions are subject to the Civil Discovery Act, the parties are not engaged in discovery. CCP section 2031.060(a), upon which Respondent relies, states that a party may move for a protective order “when an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded” under the Discovery Act. CCP section 2019.030(a) similarly authorizes the court to “restrict the … use of a discovery method.” Petitioner’s request for documents under the CPRA was not a discovery request or discovery method.

…. [T]he trial on the writ petition and the motion for new trial were Respondent’s opportunities to show that redactions to public records should be made. As the court stated in the ruling on the writ petition, “the agency bears the burden of showing that a specific exemption applies.” (Ruling dated 3/22/22 at 4.) Respondent failed to meet that burden, as set forth in the court’s ruling on the writ petition and motion for new trial. Respondent cites no authority for the court to re-open a CPRA case and conduct further proceedings under the CPRA after judgment has been entered and a motion for new trial denied.

The same reasoning applies here. In its current opposition, Respondent has still not cited any authority for the court to grant a post-judgment protective order in a CPRA action under the circumstances of this case. The motion for protective order was not well grounded in fact or law. Respondent did not have good cause or substantial justification to delay compliance with the court’s judgment based on the motion for protective order.

At the October 11, 2022, hearing, and to preserve the effectiveness of any appellate review, the court granted Respondent 10 days to seek appellate review or a stay in light of this court’s denial of a protective order. The court found at the October 11, 2022, hearing that 10 days was sufficient time for Respondent to pursue a stay from the Court of Appeal. Respondent did not obtain a stay of the court’s order prior to the expiration of that 10 day period. Respondent did not file a petition for writ of mandate with the Court of Appeal until October 21, 2022, 10 days after this court’s October 11, 2022, order. The Court of Appeal summarily denied Respondent’s petition on October 24, 2022. In these circumstances, Respondent does not show good cause or substantial justification for failure to comply with this court’s orders until October 31, 2022. At this juncture, Respondent had delayed compliance with the April 8 order for a substantial period of time. The court also set as specific deadline for compliance with the October 11 order, which Respondent violated.

In his declaration, Respondent’s attorney states that, starting October 24, 2022, County officials discussed whether County should file a petition with the California Supreme Court. He also states that Petitioner inquired about compliance with the judgment on October 26, 2022, and also “sent a non-monetary settlement communication to me via email pertaining to all of her cases currently pending against the County, including the present matter.” (Moore Decl. ¶¶ 8-9; see also Doe Decl. Exh. 5 [Oct. 26, 2022 emails].) As discussed, absent a stay, the potential for further appellate review does not excuse Respondent’s non-compliance with this court’s orders.

With respect to the alleged settlement communication, Respondent does not develop a legal argument that this communication excused its non-compliance with this court’s orders. (See Oppo. 12-13.) Respondent contends that it “was justified in: (a) attempting to reach a compromise solution (i.e., production of a redacted guide that would still contain all information regarding the functionality and capability of LARCIS) following the issuance of the April 8 final order; and (b) pursuing appellate remedies following the issuance of the October 11 order.” (Oppo. 13.) Neither of these arguments relates to Petitioner’s alleged settlement communication on October 26. Finally, by this point in the litigation, Respondent had failed to obtain appellate relief and had been out of compliance with this court’s April 8 order for more than six months. Without a showing that Petitioner specifically agreed to an additional delay in disclosure (which has not been made), the alleged settlement discussions did not provide good cause or substantial justification for further delay in compliance with this court’s orders.

In her declaration in support of the motion, Petitioner contends that Respondent improperly redacted fictitious information from the LARCIS User Guide in its production of the redacted record in September 2022. While the court sustains some of Respondent’s evidentiary objections, some of Petitioner’s statements in her declaration about improper redactions are supported. Indeed, in opposition, Respondent concedes that some fictitious information was redacted out of an “abundance of caution,” even though, in hindsight, such redactions were not necessary to protect the confidentiality interests Respondent was concerned about. (See Morsi Decl. ¶¶ 9-19; Sokalski Decl. ¶¶ 2-5.) The court has considered this evidence but finds it lacking in probative value. The court’s orders did not permit any redactions. Since no redactions were permitted, this evidence does not weigh materially for or against imposing sanctions under section 177.5.

Based on the foregoing, Respondent County of Los Angeles knowingly violated this court’s April 8, 2022, and October 11, 2022, orders without good cause or substantial justification. Respondent’s non-compliance caused unnecessary hearings before this court, including the hearing on the motion for protective order and ex parte applications to enforce the court’s orders. The court orders Respondent to pay a sanction of $1,500, payable to Los Angeles Superior Court, within 10 days of this ruling.

Petitioner seeks sanctions against Lt. Sherif Morsi on the grounds that he was “responsible for receiving, processing, and responding to requests made to the Los Angeles Sheriff’s Department (LASD) pursuant to CPRA” and “for the violation of this court’s two lawful orders.” (Mot. 2.)

Section 177.5 authorizes sanctions against “a witness, a party, a party’s attorney, or both” for “any violation of a lawful court order by a person, done without good cause or substantial justification.” Morsi is not a party to this action or a party’s attorney. Thus, sanctions could only be authorized if Morsi violated this court’s orders in his capacity as a “witness.” Neither the April 8, 2022 and October 11, 2022, orders were directed at Morsi. Nor did such orders apply to Morsi’s conduct as a “witness.” Thus, Petitioner does not prove that Morsi falls within the scope of section 177.5.

Furthermore, in his declaration in opposition to this motion, Morsi declares: “From April 2020 until April 2022, I was the Unit Commander of the Discovery Unit, and as such, I had responsibility for overseeing LASD processing of, and responses to, CPRA requests received during that time period…. I am advised that this Court issued a judgment and final order on April 8, 2022. I have never seen that judgment and final order, and do not know its contents. I am also advised that the Court issued an order dated October 11, 2022. I have never seen that order and do not know its contents…. I was not involved in any decisions concerning the disclosure of either a redacted LARCIS user guide or an unredacted LARCIS user guide in connection with this litigation. Rather, I simply oversaw efforts to redact the user guide at the request of counsel, and I executed a declaration in September, 2022 concerning the LARCIS user guide and the redaction process. In my position in the LASD, I do not have the authority to require or order either the disclosure or non-disclosure of the LARCIS user guide.” (Morsi Decl. ¶¶ 1-7.)

Petitioner has not submitted any evidence that contradicts these statements. The court finds credible Morsi’s testimony that he was not involved in the County decisions concerning the disclosure of either a redacted LARCIS user guide or an unredacted LARCIS user guide in connection with this litigation. Thus, even if section 177.5 could apply to Morsi, Petitioner does not prove that Morsi caused or was responsible for the non-compliance with this court’s orders.

Petitioner seeks sanctions against “County’s counsel, and COLLINS + COLLINS LLP jointly and severally.” (Mot. 1.)

Respondent contends that “it is unclear to whom the term ‘County’s counsel’ refers.” (Oppo. 10.) The court agrees. Collins + Collins is an outside law firm that represents County in this action. “County’s counsel” could refer to the Office of County Counsel, to individual attorneys within that office, or to attorney David Moore, of Collins + Collins, who is counsel of record for County. Given the vagueness in the request for sanctions against “County’s counsel,” adequate notice has not been given and the motion must be denied as to any attorneys that have not specifically responded to the motion. (See Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 976 [section 177.5 and due process require adequate notice of a motion for sanctions].)

The motion for sanctions against the unspecified “County’s counsel” is denied.

Respondent also objects based on inadequate notice to Collins + Collins and attorney Moore. (Oppo. 10:7-13.) This argument is not persuasive. Petitioner gave notice that she sought sanctions against law firm Collins + Collins, of which Moore is an attorney. In opposition, attorney Moore and the Collins + Collins firm have also responded at length on the merits to the request for sanctions against them. In such circumstances, Moore and Collins + Collins have received adequate notice and also have waived any defect in notice. (See generally Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all.”].)

Respondent also contends that sanctions are not justified against counsel because (1) the court orders were not directed at Collins + Collins and Moore; (2) “County’s attorneys are shielded from sanctions by the advocacy exemption contained in the statute”; (3) section 177.5 does not permit sanctions for enabling, aiding, or abetting County’s alleged disobedience of the orders; and (4) “[n]either of the two orders required counsel for County to ‘double-check’ any redactions.” (Oppo. 10-11.) These arguments are persuasive.

Neither the April 8, 2022 nor October 11, 2022, orders were directed at Collins + Collins or Moore. Petitioner submits insufficient evidence that Collins + Collins or Moore made the decision for County not to comply with this court’s orders. Petitioner also cites no authority that counsel may be liable for sanctions under 177.5 merely for advising or assisting County. The court’s sanction power under section 177.5 also does “not apply to advocacy of counsel before the court.” The advocacy exception of section 177.5 does not apply if the evidence shows that the attorney was not engaged in advocacy of a particular legal position, but rather made “a calculated decision to violate the court's order.” (Scott C. Moody, Inc. v Staar Surgical Co. (2011) 195 Cal.App.4th 1043, 1049.) “Advocacy is the act of pleading, arguing, supporting or recommending a particular position or idea.” (People v. Ward (2009) 173 Cal.App.4th 1518, 1529.) While the motion for protective order was not well grounded in fact or law, counsel’s advocacy related to that motion is not sanctionable under section 177.5.

For all these reasons, the motion for sanctions against Collins + Collins and attorney Moore is denied.

The motion for sanctions against Respondent County of Los Angeles is granted. The court orders Respondent to pay a sanction of $1,500, payable to Los Angeles Superior Court, within 10 days of this ruling.

The motion for sanctions against Lt. Morsi, “County’s counsel,” Collins + Collins, and attorney Moore is denied.

[1] Petitioner made two CPRA requests on February 26, 2021. The FAP was granted only with respect to the request for 1. Manual of Los Angeles Regional Crime Information System (LARCIS) and 2. User guide of Los Angeles Regional Crime Information System (LARCIS). The FAP was denied as to the other request made on February 26, 2021.

[2] Attorney Moore offered to messenger the record to Petitioner on October 31, 2022, or that she could come pick it up in Pasadena. As noted in Moore’s email, messengering would have required Petitioner to disclose a physical address different than her PO Box. Petitioner requested that Respondent email the record to her, noting that Respondent had filed an electronic version of the redacted record in September 2022. Respondent declined to do so, citing Government Code section 6253.9(e), and instead sent it by mail. (Moore Decl. ¶ 9 and Exh. 4.)