Judge: Stephen I. Goorvitch, Case: 23STCP04182, Date: 2024-05-31 Tentative Ruling
Case Number: 23STCP04182 Hearing Date: May 31, 2024 Dept: 82
California Policy Center, Inc. Case No. 23STCP04182
v.
Hearing
Date: May 31, 2024
Location:
Stanley Mosk Courthouse
Los
Angeles Unified School District Department:
82
Judge:
Stephen I. Goorvitch
[Tentative] Order On:
(1)
Motion to Compel Supplemental
Responses to Special Interrogatories, Set One;
(2)
Motion to Compel Supplemental
Responses to Request for Admissions, Set One;
(3) Motion to Compel Supplemental Responses to
Demand for Production of Documents, Set One;
(4)
Motion to Compel Supplemental
Responses to Form Interrogatories, Set One;
(5) Motion to Compel Respondent to Designate
and Produce a Person Most Qualified and to Produce Documents Number One;
(6) Motion to Compel Respondent to Designate
and Produce a Person Most Qualified and to Produce Documents Number Two
INTRODUCTION
Petitioner
California Policy Center, Inc. (“Petitioner”) filed this petition under the
California Public Records Act (the “Act” or the “CPRA”). Now, Petitioner moves to compel further
responses from Respondent and seeks to compel two depositions. Respondent opposes the motions.
BACKGROUND
In
the June 2023 Request, Petitioner requested that Respondent produce the
following records:
A. The total number of payers into each and every collective
bargaining unit or professional association for May 2023.
B. The total number of people covered by a union collective
bargaining agreement for May 2023.
(Id. ¶ 7 & Exh. A.) On August 4, 2023, Respondent’s counsel denied
the June 2023 Request, stating in pertinent part:
Please be advised that the District does not have a
responsive record that contains all of items requested. With respect to your
request that the District create a spreadsheet with this information, please be
advised that the District has no duty to create records that do not exist…. Haynie
v. Superior Court (2001) 26 Cal.4th 1061, 1073–1075 …. Moreover, none of
information requested will be made available to you because it is exempt from
disclosure under the CPRA and case law. (Gov. Code, §§ 7927.705 and 7928.405; Freedom
Foundation v. Superior Court (2022) 87 Cal.App.5th 47….)
(Id. Exh. J) In a letter dated September 5, 2023,
Petitioner explained that Petitioner “has been making this request to LAUSD for
approximately five years” and “[t]his is the first time LAUSD has advised that
this document was created by LAUSD in response to CPC’s records.” (Id. Exh. K.) Petitioner also “modified” the June 2023
Request to seek the following records:
1. A copy of each contract / MOU or other evidence of an
agreement with any and all collective bargaining unit / professional management
association that are currently in effect for the months of May, June, July and
August 2023; and
2. Any documents that set forth the number of employees of each
bargaining unit / association for which LAUSD is paying dues to each
unit/association for each pay period for the months of May, June, July and
August 2023; and / or
3. Any documents that set forth or evidence the total amount
paid by LAUSD to each unit / association for each pay period for the months of
May, June, July and August 2023.
(Id. ¶ 14 & Exh. K.)
On
or about September 15, 2023, Respondent produced certain responsive, non-exempt
records and denied the remainder of Petitioner’s September 2023 Request. In a letter, Respondent’s counsel explained:
This most recent request [the June 2023 Request] is similar
to prior requests received by Los Angeles Unified School District (“District”).
In the past, the District created documents to respond to these similar
requests because there was no single document that existed containing the
requested information. In the past, the District created this document to
provide your client with what was believed at the time to be public
information. Since the publication of Freedom Foundation v. Superior Court
(2022) 87 Cal.App.5th 47, this information has been deemed exempt from
disclosure. Furthermore, your assumption that the District altered an existing
document is both unfounded and untrue.
….[¶¶]
Please note that
the responsive, non-exempt, information that you seek can be found at the
following link:
https://www.lausd.org/Page/4080
Please be advised that the District does not have a
responsive record that contains all of items of the remaining requests. With
respect to your request that the District create a spreadsheet with this
information, please be advised that the District has no duty to create records
that do not exist…. Haynie v. Superior Court (2015) 26 Cal.4th 1061 ….
Moreover, none of information requested will be made available to you because
it is exempt from disclosure under the CPRA and case law. (Gov. Code, §§ 7927.705 and 7928.405; Freedom Foundation v. Superior Court (2022) 87 Cal.App.5th 47….)
(Id. Exh. L.) This action followed. Petitioner served written discovery and
deposition notices on Respondent, to which Respondent objected, following which
Petitioner filed the instant motions.
LEGAL
STANDARD
A.
California Public Records Act
Pursuant to the CPRA (Gov. Code § 7921.000, et
seq.), 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, § 7921.000; see also
County of Los Angeles v. Superior Court (2012)
211 Cal.App.4th 57, 63.) “To
establish an agency has a duty to disclose under [the CPRA], the petitioner
must show that: (1) the record ‘qualif[ies] as [a] ‘public record[ ]’ …; and
(2) the record is ‘in the possession of the agency.’” (Anderson-Barker v Sup.Ct. (2019) 31
Cal.App.5th 528, 538.) Exemptions under
the CPRA must be narrowly construed and the agency bears the burden of showing
that a specific exemption applies. (Sacramento County Employees’ Retirement
System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) “Because the agency has full knowledge of the contents of the
withheld records and the requester has only the agency's affidavits and
descriptions of the documents, its affidavits must be specific enough to give
the requester ‘a meaningful opportunity to contest’ the withholding of the
documents.” (ACLU of Northern Cal. v. Sup.Ct. (2011) 202
Cal.App.4th 55, 83.)
B.
Discovery in CPRA Writ Proceedings
Code of Civil Procedure section 2017.010
provides: “Unless otherwise limited by order of the court in accordance with
this title, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the pending
action or to the determination of any motion made in that action, if the matter
either is itself admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (Code Civ. Proc. § 2017.010 [bold
italics added].) An “action” includes “a
civil action and a special proceeding of a civil nature.” (Code Civ. Proc. § 2016.020(a).)
In
City of Los Angeles v. Superior Court
(Anderson-Barker) (2017) 9 Cal.App.5th 272, the Court of Appeal held as a
matter of first impression that the Civil Discovery Act applies to CPRA
proceedings, which fall within the definition of a “special proceeding of a
civil nature.” (Id. at 284-288.) The Court of Appeal stated that “the right to
discovery nonetheless ‘remains subject to the trial court's authority to manage
and limit discovery as required.’” (Id.
at 288.)
C.
Motion to Compel Further Responses
For
a motion to compel further, “the propounding party must demonstrate that the
responses were incomplete, inadequate or evasive, or that the responding party
asserted objections that are either without merit or too general.” (Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 403; see Code Civ. Proc. § 2031.310(a).) The moving
party must submit a meet and confer declaration that complies with section
2016.040. (Code Civ. Proc. §§ 2030.300(b),
2031.310(b).) Generally, the burden is
on the objecting party to justify objections to written discovery. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210,
220-221; Fairmont Ins. Co. v. Sup.Ct. (2000) 22 Cal.4th 245, 255.)
DISCUSSION
A. Scope of Discovery
Quoting
Anderson-Barker, Respondent objects to all of Petitioner’s discovery on
the grounds that “discovery in litigation brought under the CPRA ‘is only
warranted if the plaintiff makes a sufficient showing of bad faith, or is able
to provide tangible evidence that the records have been improperly withheld.’” (See Oppo. 5.) Although discovery is limited to the narrow
issue of whether the agency has a duty of disclosure, a petitioner need not
first establish bad faith or a violation of the duty of disclosure in order to
propound discovery requests.
In
Anderson-Barker, the Court of Appeal analyzed the limitations on CPRA
discovery as follows:
[T]he CPRA is
intended to “permit the expeditious determination” of a narrow issue: whether a
public agency has an obligation to disclose the records that the petitioner has
requested. [Citations.] Although many CPRA cases are likely to involve
questions of law based on undisputed facts (including, for example, whether a
particular type of record is subject to a disclosure exemption), other cases
will require the court to make factual findings based on conflicting evidence.
In some such cases, discovery may be necessary to test the agency's assertion
that it does not have an obligation to disclose the records at issue.
[Citation.] When a party does seek to compel discovery (or seeks a protective
order from a discovery request), the trial court must determine whether the
discovery sought is necessary to resolve whether the agency has a duty to
disclose, and to additionally consider whether the request is justified
given the need for an expeditious resolution.
(Id. at 289.)
The
Court of Appeal also stated that “[i]n assessing the permissible scope of
discovery in a CPRA proceeding, trial courts may also look to federal case law
addressing the use of discovery in cases arising under the FOIA.” (Id. at 289-90.) The Court of Appeal acknowledged that “[f]ederal
courts have not adopted a uniform test to assess the propriety of discovery in
FOIA matters.” (Ibid.) The Court
noted that the federal courts “have generally found … that when
the government has provided a detailed factual basis in support of its decision
to withhold documents (generally through affidavits), discovery is warranted
only if the plaintiff ‘make[s] a [sufficient] showing of bad faith,’ or is able
to provide ‘tangible evidence’ that the records have been improperly
withheld.” (Ibid. [bold italics
added].)
The
District Court of Appeal recently affirmed that pretrial discovery in a CPRA
action is limited to the “narrow issue of whether the agency has a duty of
disclosure” and that the trial court has discretion to determine whether
discovery furthers that purpose. (County
of San Benito v. Superior Court (2023) 96 Cal.App.5th 243, 255, citing Anderson-Barker,
supra, 9 Cal.App.5th at 289.) The
District Court of Appeal also limited the right to discovery in two
respects. First, a petitioner may not
serve requests for production “of the very documents sought by the underlying
public records request.” (Ibid.) Second, a petitioner may not serve
interrogatories “calling for the [respondent] to generate new substantive
content that is beyond the scope of discovery relevant to the merits of a
Public Records Act enforcement proceeding as a means to collect information
that is not subject to disclosure under the Act.” (Ibid.) Although the right to discovery in a CPRA
action is “narrow,” the Court of Appeal did not hold that, under
California law, a showing of bad faith or that records were improperly withheld
is required for a CPRA petitioner to pursue discovery. Rather, the Court held that “the trial court
has discretion to consider whether the petitioner has made an adequate showing
that the discovery is likely to aid in the resolution of the particular issues
presented in the proceeding.” (Id.
at 290.) The court applies this standard
to Petitioner’s discovery requests.
B. Special Interrogatories (“SROGs”)
1. SROG One – GRANTED. (See County of San Benito, supra, 96
Cal.App.5th at 258.)
2. SROG Two – GRANTED. (See
County of San Benito, supra, 96 Cal.App.5th at 258.)
3. SROG Three – GRANTED. (See
County of San Benito, supra, 96 Cal.App.5th at 258.)
4. SROG Four – GRANTED.
This request
merely asks for the number of documents that are responsive to the request and
does not seek disclosure of their contents.
This request is relevant to the issue of whether Respondent has a duty
of disclosure.
5. SROG Five – GRANTED.
This request
merely asks whether there are responsive documents that are being withheld and
does not seek disclosure of their contents.
This request is relevant to the issue of whether Respondent has a duty
of disclosure.
6. SROG Six – GRANTED.
This request
merely asks how many documents are being withheld and does not seek disclosure
of their contents. This request is
relevant to the issue of whether Respondent has a duty of disclosure.
7. SROGs Seven and Eight – GRANTED.
These
interrogatories effectively seek a privilege log identifying
each responsive document that Respondent withheld for the June 2023 Request and
the exemptions that Respondent contends justified withholding or redacting such
documents. Respondent relies on Haynie v. Superior
Court
(2001) 26 Cal.4th 1061, which held that a respondent has no obligation to
prepare a list of potentially responsive records as part of its initial
response to the CPRA Requests. Nevertheless,
a trial court may order the agency to prepare a
list of responsive records after a CPRA petition is filed if such list would
enable the court to determine whether Respondent has a duty of disclosure. (Id. at 1072-1075.) The court makes such a finding in this
case. Respondent has made clear that any
responsive documents that are within its possession have been withheld pursuant
to Freedom Foundation v. Superior Court (2022) 87 Cal.App.5th 47 and
Government Code section 7928.410. (See
Pet. Exh. J, L and Oppo. to SI Motion 8-9.)
Respondent has not submitted a declaration of a custodian of records
stating whether or not Respondent possesses records that are responsive to the
CPRA Requests, in whole or in part. Further,
whether Respondent possesses responsive records is a disputed fact issue to be
decided in this case. If Respondent does
not possess responsive records, then responding to these SROGs would not be
burdensome. However, if Respondent does
possess responsive records and withheld them based on exemption, then
responding to these SROGS would aid in resolving Petitioner’s contention that
Respondent has a duty of disclosure. It
matters not whether the records are exempt; Respondent still must disclose
their existence so the issue can be litigated.
8. SROGs
Nine through Eleven – DENIED.
These requests seek to identify those who
are not Respondent’s employees that Respondent contacted in response to the
June 2023 Request (and related information).
Petitioner has not shown that these SROGs are “likely to aid in the
resolution of the particular issues presented in the proceeding.” (Anderson-Barker, supra, 9 Cal.App.5th
at 290.)
9. SROGs
Twelve through Seventeen – DENIED.
These requests seek information concerning
Respondent’s union contracts and payroll administration with respect to
payments of union dues. Specifically,
Petitioner asks Respondent to state: (1) each step it took to pay union dues to
each union it was in a contract with in the 2023 calendar year (No. 12); (2)
the name of each person in its employ who processed the payments of union dues
in 2023 (No. 13); (3) whether Respondent has a department entitled “Payroll
Administration” and whether such department was in existence in 2023 (Nos.
14-15); (5) each union Respondent was in contract with from January 1, 2023, to
the present (No. 16); and (6) whether Respondent paid unions it is in contract
with via ACH payments during 2023 (No. 17).
The term ACH is defined as an electronic fund transfer across the
Automated Clearing House network.
Petitioner
argues that these SIs “seek to clarify whether the facts in this case bear any
similarity to the facts in Freedom Foundation.” Petitioner contends that, unlike CalHR in Freedom
Foundation, Respondent likely has possession of source documents responsive
to the CPRA Requests “[g]iven Respondent’s historical production since 2018 of
information about union dues.” (Pet.
Sep. St. 31-32.)
Petitioner
already has information concerning the unions with which Respondent has
contracts with, including copies of Respondent’s union contracts. (See Pet. Exh. L [weblink to Respondent’s
union contracts: www.lausd.org/Page/3087] and Pet. ¶ 44
[admitting that Respondent produced “LAUSD’s executed contracts / MOUs with its
unions”].) Petitioner also already has
evidence of Respondent’s “historical production” of information about union
dues. (See Alexander Decl. Exh. A-E [responses
to prior CPRA requests] and Pet. Exh. B-E.) Petitioner also seeks and the court grants
more narrowly tailored discovery, including SROGs One through Eight, which should
enable Petitioner to respond to Freedom Foundation in its merits
briefing. On this record, Petitioner
does not show that the information sought in SROGs Twelve through Seventeen will
materially help the court determine Respondent’s duty of disclosure for the
CPRA Requests at issue or that these requests are “justified given the need for
an expeditious resolution” of CPRA actions.
(Anderson-Barker, supra, 9 Cal.App.5th at 289.) The court also finds that these SROGs are
overbroad, because Petitioner’s requests seek union-related data for May
through August of 2023, but the SROGs seek payroll administration information
for the entire 2023 calendar year.
10. SROGs
Eighteen through Twenty-One – DENIED
These
SROGs ask Respondent to identify the accounting records
that it used to create its responses to Petitioner’s prior CPRA requests, for
which Respondent did produce responsive records. The responses to Petitioner’s prior CPRA
requests are attached to the SROGs as Exhibits B through E and appear to show
the number of union due payers for multiple different unions and various time
periods between 2017 and February 2023. (See Alexander
Decl. in support of Motion to Compel Further Responses to Special Interrogatories,
Exh. 1.)
Petitioner contends that “Respondent has never
acknowledged or explained why it abruptly stopped responding to Petitioner’s
periodic inquiries about union membership and dues paid by its employees” and
that these SROGs “inquire about that history.”
(Pet. Sep. St. 34:19-22.) Petitioner
has not shown that discovery regarding the “history” of Respondent’s
disclosures to prior CPRA requests is necessary to resolve Respondent’s duty of
disclosure in this writ proceeding, which concerns different CPRA requests.
11. SROGs Twenty-Two through Twenty-Five –
DENIED.
SROG
Number 22 asks Respondent whether it contends that any of the documents
containing requested information in the June 2023 Request were relied upon by
Respondent in labor negotiations. If so,
the remaining SROGs ask Respondent to state all facts upon which it bases said
contention, identify each document containing the requested information that
was relied upon by LAUSD in labor negotiations, and identify each person who
used or relied upon such documents in labor negotiations. These SROGs are not relevant to the issue whether
Respondent has a duty to disclose records under the CPRA.
C. Requests for Admission (“RFAs”)
1. RFAs
One through Nine – DENIED.
These
RFAs ask Respondent to admit the genuineness of Petitioner’s CPRA requests, Respondent’s
communications, and a three-page documents containing union payer data. Petitioner
contends that these RFAs “seek[] to establish the genuineness of correspondence
between for Respondent and Petitioner, which is at the foundation of this
dispute.” (Pet. Sep. St. 16:1-3.) However, these RFAs are not necessary to resolve Respondent’s duty of disclosure and are not
“justified
given the need for an expeditious resolution” of CPRA actions. (Anderson-Barker, supra, 9 Cal.App.5th
at 289.)
2. RFAs
Ten through Sixteen – GRANTED
These RFAs ask Respondent to
make admissions about its accounting practices, including that it maintains its
own accounting records for the payment of union dues (No. 10) and that it paid
union dues to various different unions as of May 1, 2023 (Nos. 11-16). Petitioner
contends that responses to these RFAs are reasonably calculated to lead to
discovery of admissible evidence because admissions to these RFAs could help
prove that, unlike CalHR in Freedom Foundation, “Respondent possess[es]
and processes all of its own payroll and union dues payments, accounting
records, clerical entries” and that such source documents are not exempt from
disclosure under section 7928.410.
(Pet. Sep. St. 28.) Respondent counters that these RFAs are not proper
CPRA discovery because Petitioner admitted in the petition that Respondent does
not possess any responsive records for the September 2023 Request. (Resp. Sep. St. 30, citing Pet. at ¶ 16, Ex.
L.) Respondent also objects that these RFAs seek
information that would violate “the deliberative process privilege and
privileges under statute, including but not limited to Government Code section
7928.410, as recognized in Freedom Foundation v. Superior Court (2022)
87 Cal.App.5th 47.” (Pet. Sep. St. 25-26;
see Resp. Sep. St. 29.) The court agrees
with Petitioner, and rejects Respondent’s counter arguments, for the reasons
stated at length above as to SROGs One through Eight.
3. RFAs
Seventeen through Twenty-Four – DENIED
These
RFAs ask Respondent to admit that it has legal duties under the CPRA to
disclose responsive documents “promptly” and to assist Petitioner in
formulating a focused and effective request, and that it failed to perform such
duties in its response to the June 2023 and September 2023 Requests. (See Alexander
Decl. in support of RFA Motion, Exh. 1.)
As
discussed, this writ petition centers on the applicability of Government Code section 7928.410 and Freedom Foundation to the
June 2023 and September 2023 Requests.
(See Pet. Exh. J, L.) Although
the petition alleges generally that Respondent failed to disclose records
“promptly” or assist Petitioner with its CPRA requests (Pet. ¶ 52.d and e),
those legal conclusions are dependent on the validity of Respondent’s claim of
exemption. In that context, Petitioner
does not show that these
RFAs are likely to aid in resolution of Respondent’s duty of disclosure or “justified
given the need for an expeditious resolution” of CPRA actions. (Anderson-Barker, supra, 9 Cal.App.5th
at 289-290.)
4. RFAs Twenty-Five and Twenty-Six –
GRANTED
These RFAs ask Respondent to
admit its labor relations are not governed by the Dills Act, and that its labor
relations are governed by the Educational Employment Rights Act. These RFAs are narrowly-tailored to address
the dispositive issue, viz., whether the requested records are exempt
from disclosure under section 7928.410 and Freedom Foundation. The Civil
Discovery Act expressly authorizes RFAs that seek admissions related to an
“application of law to fact” or a “matter that is in controversy between the
parties.” (CCP § 2033.010.) RFAs of this nature “are conceived for the
purpose of setting to rest triable issues in the interest of expediting trial.” (Wimberly v. Derby Cycle Corp. (1997)
56 Cal.App.4th 618, 634.) Because these could
expedite trial on important legal issues in this writ action and are likely to aid
in resolution of Respondent’s duty of disclose, they are proper CPRA
discovery.
5. RFA
Twenty-Seven – DENIED
This
RFA asks Respondent to admit that Freedom Foundation does not provide a
proper reason for denying the request.
Because the court is granting the motion with respect to RFAs
twenty-five and twenty-six, this RFA is not necessary.
6. RFA
Twenty-Eight – GRANTED
This
RFA asks Respondent to admit that the request does not include a “custom
report.” . This RFA is narrowly-tailored to address the
dispositive issue, viz., whether the requested records are exempt from
disclosure under section 7928.410 and Freedom Foundation.
7. RFA
Twenty-Nine – DENIED
This
RFA asks Respondent to admit that section 7928.405 does not provide a proper
reason for denying the request. Because
the court is granting the motion with respect to RFAs twenty-five and
twenty-six, this RFA is not necessary.
C. Requests
for Production of Documents (“RPDs”)
1. RPDs One through Four – DENIED
These requests seek all written
documents relating to communications
between LAUSD employees regarding the June 2023 and September 2023 Requests
from June 1, 2023, to the date of the Demand (Nos. 1 and 3), and all written
documents relating to communications between LAUSD employees and third-party
non-LAUSD employees regarding the June 2023 and September 2023 Requests from
June 1, 2023, to the date of the demand (Nos. 2 and 4).
Petitioner has not presented any evidence,
or alleged any facts in the petition, to suggest that Respondent’s
communications regarding the June 2023
and September 2023 Requests, between its own employees or with third parties,
are material to Respondent’s duty of disclosure under the CPRA. In other words, Petitioner has not shown that
these RPDs are
“likely to aid in the resolution of the particular issues presented in the
proceeding” or are “justified given the need for an expeditious resolution” of
CPRA actions. (Anderson-Barker,
supra, 9 Cal.App.5th at 289-290.) Simply, these RPDs constitute a “fishing expedition.”
2. RPDs
Five through Seven – GRANTED. (See County of San Benito, supra, 96 Cal.App.5th at
258.)
D. Form
Interrogatories (“FROGs”)
1. FROG 1.1 – GRANTED
2. FROG 17.1 – GRANTED
3. Remaining FROGs – DENIED. As
worded, these FROGs are not well suited to a CPRA dispute and are not “likely to aid in
the resolution of the particular issues presented in the proceeding.” (Anderson-Barker, supra, 9 Cal.App.5th
at 290.) The court finds that the SROGs provide
sufficient discovery on the relevant issues.
E. Motions to Compel Depositions
The
court has ruled on the outstanding discovery motions, which should provide
sufficient discovery. Accordingly, at
this stage, Petitioner
has not shown that the deposition notices are “necessary to resolve whether the
agency has a duty to disclose, and … [are] justified given the need for an
expeditious resolution” of this CPRA action.
(Anderson-Barker, supra, 9 Cal.App.5th at 289-290.) Therefore, the motions are denied without
prejudice.
CONCLUSION AND ORDER
Based upon the foregoing, the court orders
as follows:
1. Petitioner’s
motions to compel further responses are granted in part and denied in
part. Respondent shall provide verified
responses, without objections, consistent with this order within thirty (30)
days.
2. Petitioner’s
motions to compel depositions are denied without prejudice.
3. Petitioner’s
counsel shall provide notice and file proof of service with the court.
IT IS SO
ORDERED.
Dated: May 31, 2024 ___________________________
Stephen
I. Goorvitch
Superior
Court Judge