Judge Mitchell L. Beckloff, Case 21STCP02295 2022-07-27 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02295, Date: 2022-07-27 Tentative Ruling

Petitioner, Tappan Zee,[1] seeks a writ of mandate under Code of Civil Procedure section 1085, subdivision (a), and the California Public Records Act (CPRA) (Government Code sections 6250 et seq.) requiring Respondent, City of San Gabriel, to produce documents under the CPRA. Specifically, Petitioner seeks (1) a declaration the City violated the CPRA; (2) an order directing the City to comply with his CPRA request; and (3) attorneys’ fees and costs.[2]

The court finds the City has justified withholding documents from production based on (1) attorney-client communications and work product; (2) records related to pending litigation against the City; and (3) active law enforcement investigation.

To the extent the City relied upon other exemptions to withhold documents from production, the City is ordered to produce them.

The court requests the City be prepared to represent at the time of argument whether any documents it withheld it did so under other than under (1) attorney-client communications and work product; (2) records related to pending litigation against the City; and (3) active law enforcement investigation.

Petitioner owns real property at 348 Bridge Street in the City. The City’s police department executed a search warrant at the property and allegedly discovered an illegal marijuana growing operation. The City’s Neighborhood Improvement Services (NIS)[3] thereafter issued certain administrative citations to Petitioner.

On June 4, 2021, Petitioner requested the City produce 37 categories of documents pursuant to the CPRA (the Request). (Lemiuex Decl., Ex. A.) The City immediately acknowledged receipt of the Request. (Lemiuex Decl., Ex. B.)

On June 14, 2021, the City, through its City Attorney, advised Petitioner it would produce responsive documents and would inform Petitioner “when the responsive, disclosable documents in its possession, custody, or control are ready to be made available . . . .” (Lemiuex Decl., Ex. C.) The City also advised Petitioner it considered 15 specified categories as “vague and broad as written.” (Lemiuex Decl., Ex. C.) The City recommended that Petitioner “provide a date range or other qualification to” the specified categories. (Lemiuex Decl., Ex. C.) The City explained “these requested items will be extremely burdensome, expensive, and time consuming to respond to, and may delay the City’s production of responsive, disclosable documents and increase the amount required for reimbursement of the City’s direct cost of duplication.” (Lemiuex Decl., Ex. C.)

On June 15, 2021, in response to the City’s recommendation, Petitioner narrowed 13 of the 15 categories in the Request the City specified were overbroad. (Lemiuex Decl., Ex. D.)

On June 28, 2021, Petitioner advised the City it had failed to respond to the Request and had not “asked for an extension.” (Lemieux Decl., Ex E.) Petitioner believed “a response” was then “due” to the Request. (Lemieux Decl., Ex E.)

According to the City, sometime prior to July 16, 2021, it informed Petitioner it “was still in the process of gathering responsive emails . . . .” (Lemieux Decl. ¶ 15.)[4]

On August 3, 2021, the City provided 376 pages to Petitioner in response to the Request. (Lemieux Decl. ¶ 16.) The City advised Petitioner it was continuing to search for responsive documents and that it had withheld certain documents as exempt pursuant to Government Code section 6255, attorney-client privilege and deliberative process privilege. (Lemieux Decl., Ex. G.)

Petitioner responded to the City’s production on August 12, 2021. (Lemieux Decl., Ex. H.) Petitioner advised the City had not acted “promptly” as required by the CPRA and continuing to produce documents on a rolling basis also did not comply with the CRPA. (Lemieux Decl., Ex. H.) Petitioner raised specific questions related to the apparent lack of production, identified perceived deficiencies in the production and requested additional responsive documents be provided. (Lemieux Decl., Ex. H.)

After additional communications between the parties, it does not appear the City produced any documents beyond the 373 pages it produced on August 3, 2021. Requests remaining at issue for resolution by this court, according to Petitioner, are the following 12 categories of documents:[5]

1. All documents comprising, referring, or relating to 348 Bridge Street, San Gabriel, CA 91775 from 1990 to present.

6. All documents comprising, referring, or relating to any and all facts concerning any alleged code violations, past or present, at 348 Bridge Street, San Gabriel, CA 91775 from 1990 to present.

7. All documents comprising, referring, or relating to Tappan Zee, owner of 348 Bridge Street, San Gabriel, CA 91775 from August 2007 to present.

8. All communications referring or relating to Tappan Zee, owner of 348 Bridge Street, San Gabriel, CA 91775 from August 2007 to present.

9. All communications with, referring, or relating to Southern California Edison regarding 348 Bridge Street, San Gabriel, CA 91775 from December 2020 to present.

10. All documents comprising, referring, or relating to Southern California Edison and 348 Bridge Street, San Gabriel, CA 91775 from December 2020 to present.

14. All communications received by Matthew Araiza referring or relating to 348 Bridge Street, San Gabriel, CA 91775.

15. All communications sent to Matthew Araiza referring or relating to 348 Bridge Street, San Gabriel, CA 91775.

19. All communications received by Joe Chen referring or relating to 348 Bridge Street, San Gabriel, CA 91775.

20. All communications sent to or from Joe Chen referring or relating to 348 Bridge Street, San Gabriel, CA 91775.

24. All communications received by Steve Gaona (San Gabriel Police Department Identification Number 122) referring or relating to 348 Bridge Street, San Gabriel, CA 91775.

25. All communications sent to Steve Gaona (San Gabriel Police Department Identification Number 122) referring or relating to 348 Bridge Street, San Gabriel, CA 91775.[6]

Code of Civil Procedure section 1085, subdivision (a) provides in relevant part:

A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy . . . .” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.)

“When there is review of an administrative decision pursuant to Code of Civil Procedure section 1085, courts apply the following standard of review: ‘[J]udicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.’ [Citations.]” (Id. at p. 584)

Pursuant to the CPRA, individual citizens have a right to access government records. In enacting the CPRA, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 6250; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.) Government Code section 6253, subdivision (b) states:

Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.

The CPRA provides that “[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court . . . to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” (Gov. Code, § 6258.)

“Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” (Gov. Code § 6253, subd. (b).)

Where the court finds a violation of the CPRA, the court shall order the government agency to disclose the public record. (Id., § 6259, subd. (a).)

The City argues generally it has complied with its obligations under the CPRA. The City contends the petition is premature and any responsive records it withheld are exempt from disclosure. Petitioner argues the City did not satisfy its burden of demonstrating the foundation for any exemption asserted.

Respondent contends under Government Code section 6523, subdivision (b), it is required to “make the records promptly available.” The City advised Petitioner it had responsive records and would produce them 10 days after Petitioner made the Request. At the same time, the City also asked that 15 categories in the Request be narrowed. (Lemieux Decl. ¶¶ 11-12, Ex. C-D.) The City contends it made a fulsome response on August 3, 2021—just 60 days after the Request.

The petition is not premature. A dispute between the parties still exists. This is not a situation where a requester filed a petition within 10 days of requesting documents, the initial period provided to an agency under the CPRA to determine whether requested records exist. (Gov. Code, § 6253, subd. (c).) The court notes the City’s initial response on June 14, 2021 did not provide “the estimated date and time when the records [would] be made available” as

required by the CPRA. (Ibid.) The City merely indicated it would advise Petitioner “when the responsive, disclosable documents in its possession, custody, or control [were] ready to be made available . . . .” (Lemiuex Decl., Ex. C.) Thus, the City provided Petitioner with no information when he could expect compliance, only a vague statement about the time for production.

Two weeks later, on June 28, 2021, Petitioner wrote to the City inquiring about the Request. (Lemieux Decl., Ex. E.) Petitioner specifically asked when he would receive the documents. (Lemieux Decl., Ex. E.) The City’s response to Petitioner’s inquiry is not documented in any writing (despite the parties’ course of dealing) and is, at best, vague. (Lemiuex Decl., ¶ 15. [“Even though Zee’s counsel was told that the City was still in the process of gathering responsive emails, Zee filed his Petition for Writ of Mandate . . . .”])

The court finds the petition was not prematurely filed. At the time Petitioner filed his petition, the City had made no production in response to the Request.

The City argues any disclosable documents it did not produce are exempt from production. Petitioner contends Petitioner has failed to meet its burden of demonstrating the applicability of any exemptions. The extent of documents the City withheld as exempt is unclear.

A public entity opposing disclosure bears the burden to show the requested information falls within the parameters of a specific exemption. (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 67; International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329; Gov. Code, § 6255, subd. (a) [“The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter”].) “Unless one of the exceptions stated in the [CPRA] applies, the public is entitled to access . . . .” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th at 329.)

“The exemptions are to be construed narrowly.” (Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1254.) “The burden of proof as to the application of an exemption is on the proponent of nondisclosure, who must demonstrate ‘that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Id. at 1255 [quoting Gov. Code, § 5255].)

The City asserts the withheld records are exempt from disclosure. Respondent contends documents the City withheld fall under the following exemptions: personnel files, Penal Code section 832.7, attorney-client privilege, attorney work product privilege, Government Code section 6254, subdivisions (a) and (b) and deliberative process privilege.

The City argues documents responsive to Request categories 11, 12, 13, 16, 17, 18, 21, 22 and 23 are exempt as personnel records pursuant to Government Code section 6254, subdivision (c). Those request categories, however, are not in issue in this proceeding. (Opening Brief 3:15-4:1.)

Government Code section 6254, subdivision (a) exempts from disclosure: “Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding these records clearly outweighs the public interest in disclosure. As the City has the burden of demonstrating the applicability of the exemption, the City must introduce facts showing (1) the documents are not retained by the City in the ordinary course of its business; and (2) the public’s interest in withholding the documents clearly outweighs the public’s interest in disclosure.

The City’s reliance on this exemption is completely unsupported by evidence, only brief argument. The City produces no evidence to support the claim of exemption—the court cannot determine that particular records are preliminary drafts and are not kept by the City in the ordinary course of business. (See Lemieux Decl., ¶ 20.) The City Attorney’s conclusion is not evidence. Moreover, the City has not explained how the balance of interests weighs clearly in favor of the City. Accordingly, the City has not justified its use of the exemption contained in Government Code section 6254, subdivision (a). Therefore, the City may not rely upon it as an exemption from disclosure for Request categories 8, 9, 14, 15, 19, 20, 24 and 25.[8]

Section 6255, subdivision (a) exempts from disclosure documents which are protected by the deliberative process privilege. (Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 1142.) “Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.” (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 305 [internal quotation omitted]; Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 225.)

To the determine the applicability of the privilege, “[t]he key question in every case is ‘whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.’ [Citation.] Even if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is ‘actually . . . related to the process by which policies are formulated’ [citation] or ‘inextricably intertwined with ‘policy-making processes.’ [Citations.]” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342.)

Importantly, “[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the [one claiming the privilege] to establish the conditions for creation of the privilege.” (California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at 172–173; Citizens for Open Government v. City of Lodi, supra, 205 Cal.App.4th at 306.) Thus, where the deliberative process privilege is claimed, there will always be some impingement on the deliberative process where such documents are disclosed. The focus for the proper application of the privilege is whether the public interest in nondisclosure outweighs the public interest in disclosure. The extent of impact on the deliberative process necessarily figures into the balancing process.

To demonstrate the applicability of the deliberative process exemption, Government Code section 6255, subdivision (a) requires the City to show “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Gov. Code, § 6255, subd. (a).)

Again, the City has made no evidentiary showing justifying its use of the deliberative process privilege for any documents withheld. Aside from quoting the law on deliberative process privilege, the City states (as with all of its claimed exemptions): “Here, some emails and memoranda that could be potentially responsive to the Request were predecisional deliberative communications, and therefore exempt from the PRA.” (Opposition 17:17-18.) The City’s argument is not evidence. The evidence submitted by the City in opposition to the petition sets forth no facts related to this exemption/privilege. Therefore, the City may not rely upon it as an exemption from disclosure for Request categories 8, 9, 14, 15, 19, 20, 24 and 25.[9]

Government Code section 6254, subdivision (f) exempts from disclosure “[r]ecords of . . . investigations conducted by any state or local police agency . . . [and] investigatory . . . files compiled by any . . . local agency for correctional, law enforcement, or licensing purposes . . . .” The exemption is a “broad exemption from disclosure for law enforcement investigatory records . . . .” (Williams v. Superior Court (1993) 5 Cal.4th 337, 349.) Moreover, our Supreme Court has ruled “that the exemption for law enforcement investigatory files does not end with the investigation ends.” (Id. at 357.)[10]

While the City has not provided any evidence of documents it may have withheld under this exemption, it appears law enforcement investigatory records could have been withheld for Request categories 8, 9, 14, 15, 19, 20, 24 and 25.[11]

Government Code section 6254, subdivision (b) exempts from disclosure under the CPRA “[r]ecords pertaining to pending litigation to which the public agency is a party, or to claims made . . . until the pending litigation or claim has been finally adjudicated or otherwise settled.” This exemption applies to documents prepared for use in litigation. (County of Los Angeles v. Superior Court (Axelrad) (2000) 82 Cal.App.4th 819, 830-831.)

Petitioner filed its federal action against the City related to the execution of the search warrant on July 30, 2021. (Petitioner’s RJN, Ex. A, p. 10 ¶ 69.) The federal litigation is still pending. The City provides some evidence it prepared “interoffice communications” (emails and memoranda) related to Petitioner’s litigation against the City. (Lemieux Decl. ¶ 21.)

Based on the City’s showing, to the extent the City withheld documents from production based on pending litigation and Government Code section 6254, subdivision (b), the City’s actions were proper. Accordingly, the City may have properly withheld documents from Request categories 8, 9, 14, 15, 19, 20, 24 and 25 based on this exemption.[12]

Government Code section 6254, subdivision (k) exempts from disclosure under the CPRA, “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

“The burden of establishing that a particular matter is privileged is on the party asserting that privilege [citation].” (San Diego Professional Ass’n v. Superior Court of San Diego County (1962) 58 Cal.2d 194, 199.)

As recognized by both parties, attorney-client communications are privileged and cannot be disclosed. (Evid. Code, §§ 950-954.) “The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) Protected communications are those “for the accomplishment of the purpose for which the lawyer is consulted . . . .” (Evid. Code, § 952.)

The attorney work-product doctrine is codified in section 2018.030 of the Code of Civil Procedure, which states:

(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

To the extent that these privileges are applicable, then the records implicated by these privileges are exempt from disclosure. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370.) This includes work product prepared for use in pending litigation or claims. (Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1420–1422.)

Petitioner characterizes the City’s reliance on these exemptions as overbroad. Petitioner appears to believe the City withheld all interoffice communications as attorney-client privileged or attorney work product. (Opening Brief 7:26-27; 10:3-5; 10:27-11:1.) Petitioner asserts:

“Here, Petitioner seeks interoffice communications by [the City’s] employees pertaining to Petitioner or Petitioner’s property. In broad strokes, [the City] claims these are subject to the attorney-client privilege without any limitation.” (Opening Brief 10:3-5.)

The City expressly disputes Petitioner’s characterization of its use of the attorney-client exemption. The City asserts Petitioner misunderstands its position. According to the City, it “does not apply the attorney-client privilege beyond those communications between the lawyer and the client made for the purposes of seeking or delivering the lawyer’s legal advice or representation.” (Opposition 15:3-5.) The City also explains its counsel has been involved in matters involving Petitioner “at an early stage . . .” supporting its claim there were many interoffice communications involving legal strategy and advice. (Lemieux Decl., ¶ 21.)[13]

Based on the City’s showing, to the extent the City withheld documents from production based on attorney-client privilege, attorney work product and Government Code section 6254, subdivision (k), the City’s actions were proper. Accordingly, the City may have properly withheld documents from Request categories 8, 9, 14, 15, 19, 20, 24 and 25 based on this exemption.[14]

Based on the foregoing, the court finds the City has met its burden of justifying application of three exemptions to the Request: (1) attorney-client communications and work product;

(2) records related to pending litigation against the City; and (3) active law enforcement investigation. Thus, to the extent it has withheld responsive documents to Petitioner’s request based on those exemptions, the City properly did so.

The City did not, however, meet its burden of justifying the application of any other claimed exemption—(1) preliminary drafts and memoranda not retained in ordinary course of business; and (2) documents protected by the deliberative process privilege. To the extent the City withheld any document using the preliminary drafts or deliberative process exemptions only, it shall produce the documents to Petitioner within 21 days.

The City need not produce any document it withheld on grounds of (1) attorney-client communications and work product; (2) records related to pending litigation against the City; and (3) active law enforcement investigation.

[1] The court reminds Petitioner of his obligation under California Rule of Court, Rule 3.113, subdivision (f): “A memorandum that exceeds 10 pages must include a table of contents and a table of authorities.”

[2] Petitioner’s Opening Brief purports to seek relief not identified in the petition—an order the City comply “with respect to future requests it receives” and “a further response identifying which requests under reference number 2021-196” [sic]. Such requests are beyond the scope of the petition and not ordered herein. Moreover, the requests are unclear.

[3] NIS is the City’s building and safety department.

[4] The evidence is vague concerning the communication. The court cannot determine when the communication occurred, who made it or the contents of it.

[5] Petitioner’s Opening Brief sets forth the Request as it was first made, not as it was modified in response to the City’s recommendation.

[6] Petitioner has sued the City in federal court. Petitioner requested discovery in that lawsuit. While some of the categories of documents in the Request may overlap with documents sought in the federal lawsuit, the federal lawsuit and the parties’ discovery dispute is beyond the scope of the petition and this court’s orders. This court addresses only the Request and the City’s obligations under the CPRA.

[7] Government Code section 6254, subdivision (c) exempts from disclosure under the CPRA all “personnel . . . or similar files, the disclosure of which would constitute an unwarranted invasion of privacy.”

[8] The Opposition does not identify the Request categories withheld based on this exemption. The court has discerned the Request categories from the correspondence between the parties. (See Lemieux Decl., Ex. I at pp. 4-5 [identifying individual requests 8-9, 14-15, 19-20, 24-25 and other requests no longer in issue].)

[9] The Opposition does not identify the Request categories withheld based on this exemption. The court has discerned the Request categories from the correspondence between the parties. (See Lemieux Decl., Ex. I at pp. 5-6 [identifying individual requests 8-9, 14-15, 19-20, 24-25 and other requests no longer in issue].)

[10] The City’s reference to Penal Code section 832.7, subdivision (b)(7)(A)(iii) is unclear. The section referenced relates to a use of force incident and peace officer personnel records. Even if the City’s reference were somehow applicable to the circumstances here, the City has made no evidentiary showing any disclosure of the record “could reasonably be expected to interfere with a criminal enforcement proceeding . . . .” (See Opposition 14:2-6.)

[11] The Opposition does not identify the Request categories withheld based on this exemption. The court has discerned the Request categories from the correspondence between the parties. (See Lemieux Decl., Ex. I at p. 3 [identifying individual requests 8-9, 14-15, 19-20 and 24-25].)

[12] The Opposition does not identify the Request categories withheld based on this exemption. The court has discerned the Request categories from the correspondence between the parties. (See Lemieux Decl., Ex. I at pp. 5-6 [identifying individual requests 8-9, 14-15, 19-20, 24-25 and other requests no longer in issue].)

[13] Petitioner provides an email from the City to him from the City’s code enforcement officer using the City’s Attorney as a conduit. (Zee Decl., Ex. A.) There is no evidence the City withheld the email from its production as attorney-client privileged material.

[14] The Opposition does not identify the Request categories withheld based on this exemption. The court has discerned the Request categories from the correspondence between the parties. (See Lemieux Decl., Ex. I at p. 3 [identifying individual requests 8-9, 14-15, 19-20, 24-25 and other requests no longer in issue].)