Judge: Ronald F. Frank, Case: 23TRCV00017, Date: 2023-05-09 Tentative Ruling

Case Number: 23TRCV00017    Hearing Date: May 9, 2023    Dept: 8

Tentative Ruling 

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HEARING DATE:                 May 9, 2023¿ 

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CASE NUMBER:                   23TRCV00017

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CASE NAME:                        John Doe v. Mason Swan Lewis, et al.  

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MOVING PARTY:                Defendant, Mason Swan Lewis  

RESPONDING PARTY:       Plaintiff, John Doe.  

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TRIAL DATE:                       None Set.

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MOTION:¿                              (1) Motion to Quash

Tentative Rulings:                  (1) ARGUE.  The Court will entertain oral argument as to why this singular element of discovery should not be stayed or limited pending the resolution of the criminal investigation or prosecution, with the police file contents being subject to a document preservation order.  In the Court’s view, the SDT is overly broad, particularly given the lack of a bona fide meet and confer process and given the representations of defense counsel concerning inadvertent or intentional dissemination of the police report’s contents previously.  Alternatively, an in camera review of the contents of the investigative files might facilitate a segregation of legitimately discoverable content from material that is not reasonably calculated to lead to admissible evidence in the civil action or which is clearly privileged such as tax returns.  The Court will entertain oral argument as to a method of facilitating legitimate discovery, protecting true privacy concerns such as tax returns, all while ensuring that discoverable records are subject to a stipulated Protective Order that will contain substantial financial penalties and contempt sanctions for violation of its non-dissemination provisions so as to ensure a potential criminal defendant’s right to a fair trial

I. BACKGROUND¿ 

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A.    Factual¿ 

On January 4, 2023, Plaintiff, John Doe, by and through his Guardian Ad Litem, John T.R. Doe filed a Complaint against Defendant, Mason Swan Lewis, and DOES 1 through 20. The Complaint alleges causes of action for: (1) Invasion of Privacy; (2) Constructive Invasion of Privacy; (3) Intrusion into Private Affairs; (4) Intentional Infliction of Emotional Distress; and (5) Negligence.

The Complaint is based on the following set of facts: On or about February 6, 2022, Plaintiff JOHN DOE and his father went to the Manhattan Country Club, of which they are members. After exercising at the club, Plaintiff went to the men's restroom and entered a stall to use the bathroom. While he was using the bathroom, Plaintiff noticed that another individual, Defendant, entered the bathroom and entered the stall directly next to Plaintiffs stall. Shortly thereafter, JOHN DOE noticed a cell phone slide between the stalls multiple times, seemingly taking pictures or videos of DOE using the bathroom. Upon realizing what was happening, Plaintiff exclaimed "Creep!" and heard LEWIS run out of the bathroom. When Plaintiff exited the bathroom, he spoke with a club attendant who had seen Defendant flee from the bathroom. Plaintiff and his father called the Manhattan Beach Police, who responded to the scene and performed an investigation. Law enforcement confirmed that the perpetrator was Defendant. Upon executing a search warrant of LEWIS' cell phone, the police found a number of videos that LEWIS had taken of young men at the club, including a video of Plaintiff using the bathroom. Plaintiff is informed and believes that Defendant has been criminally charged for his conduct.

B. Procedural

On March 23, 2023, Defendant filed this Motion to Quash Deposition Subpoena for Production of Business Records issued to Manhattan Beach Police Department. On April 26, 2023, Plaintiff filed an opposition. On May 2, 2023, Defendant filed a reply brief. 

¿II. ANALYSIS ¿ 

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A.    Legal Standards

Code of Civil Procedure § 1987.1 grants the trial court authority to quash a subpoena when necessary. Code of Civil Procedure § 1987.1 provides: “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

The official information privilege contained in Evidence Code §1040(b)(2) applies to “information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Id. § 1040(a).) The privilege is conditional and attaches only if “the court determines, in accordance with precise statutory standards, that disclosure is against the public interest....” (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123.)  “Evidence gathered by police as part of an ongoing criminal investigation is by its nature confidential. This notion finds expression in both case and statutory law.”  (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 764.)  In County of Orange, the Fourth District concluded that the public interest in solving the underlying crime, a homicide, outweighed the civil litigant’s interest in obtaining the discovery sought, at least for a finite period of time while the investigation was active and before charges were brought.  (Id. at p. 767.)  The County of Orange Court determined that the appropriate remedy in this case is for the trial court to stay discovery of investigative information in the civil action in order to allow the sheriff's department the necessary time to investigate.”  (Id. at p. 768.)  It entered and order to preserve the confidentiality of the investigative file “for some reasonable period of time, but not forever.”  (Id.) 

Shortly after County of Orange, the Fourth District was again called upon to consider civil discovery of a criminal investigation file in Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1046.  In that case, the Court fashioned a different approach to facilitating the civil litigants’ legitimate discovery interests when weighed against the criminal defendant’s privacy interest as well as the ambit of the official information privilege.  The Michael P Court held that the trial court had abused its discretion in failing to review the contents of the investigative file in camera, much like in a Pitchess motion.  There, the Fourth District entered a writ directing the trial court to conduct an in camera review of the requested items, evaluating the civil litigants’ asserted “necessity for disclosure in the interest of justice,” “the importance of the material sought to the fair presentation of the litigant's case, the availability of the material to the litigant by other means, and the effectiveness and relative difficulty of such other means.”  (Michael P., supra, 92 Cal.App.4th at p. 1046.) 

B.    Discussion

            Here, Plaintiff issued a Deposition subpoena for production of business records to the MBPD requesting:

"The full investigative report related to crimes perpetrated by Mason Swan Lewis ... including, but not limited to the complete incident report (Report No. 22-0000362), any and all supplemental reports, narratives, statements, transcripts, interview notes, color photographs, audio or video recordings, electronic data or media files, etc." (Andrews Decl. 12 and Exhibit "A" )

Defendant argues that that the subpoena improperly seeks law enforcement records during the pendency of an investigation. Defendant notes that he is the subject of an investigation, which remains pending and which defense counsel understands is hotly litigated in the criminal matter with discovery and exclusionary motions pending or in the process of being filed. Moreover, Defendant further asserts that the incident being investigated is of an embarrassing nature and Defendant is concerned that disclosure of incomplete investigatory records would be damaging to his reputation in the community should the circumstances become well known to the public. Defendant further asserted in his Declaration, that a person related to the plaintiff been spreading rumors to other members of the Manhattan Beach community about what allegedly happened in the subject incident, and Defendant is concerned that he will disseminate any records he receives through his counsel’s subpoena. Lastly, Defendant argues this will violate his right to privacy, citing to County of Orange, supra.

In opposition, Plaintiff argues that Defendant has failed to establish that production of the police report in this case would constitute a serious invasion of privacy. Plaintiff notes that the information in the police report that is unknown to Plaintiff is that which Defendant does not have a privacy interest in, such as the identity of relevant third-party witnesses. Furthermore, Plaintiff argues that to the extent Defendant does have some privacy interest in the police report, he is still subject to the rules of civil discovery and will necessarily have to respond to questions and produce documents that are private in one way or another. There is no stay in this action and the parties must proceed with discovery to ensure that the case is ready to proceed to trial in a timely manner. Plaintiff further argues that Defendant’s right to privacy is relatively low as there have already been criminal and civil complaints publicly filed against him detailing his criminal conduct. Plaintiff further notes that Defendant’s assertion that the criminal case will be dismissed, and the records sealed is merely hopeful speculation that does not bear on this issue here.

            Plaintiff further argues that even if Defendant has a right to privacy, that right is outweighed by Plaintiff’s right to discover relevant evidence. Plaintiff maintains that the police report at issue here is highly relevant to this case, and is specifically based on Plaintiff’s allegations that are the subject of this civil case – that Defendant surreptitiously and illegally recorded Plaintiff, a young child, using the bathroom. Plaintiff argues that police reports are routinely discovered in civil litigation, even if they are not admitted at trial.

            In his reply brief, Defendant asserts that there is a “disconnect” between the records sought and what Plaintiff is opposing to in their opposition. Defendant maintains that he has no objection to the production of the police report, but instead, opposes discovery of the broader requests in the subpoena, including interview notes, color photographs, audio or video recordings, electronic data or media files and whatever else is requested by use of "etc." Defendant notes that the Manhattan Beach Police department seized his cell phone as part of their investigation, seized his two computers, several SSD drives, CDs, DVDs, two video game consoles, an iPad, and numerous other electronics. argues that on those devices are numerous recordings of his music (he is a pianist and composer), many of which are to non-disclosure agreements and many of which had never been published and/or were works in progress. Defendant also notes that among the records contained on Defendant's computers are tax records and other records protected by Defendant's right to financial privacy as well as privacy in general.