Judge Stephen I. Goorvitch, Case Number: 23STCP04292, Date: 2024-09-20 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04292, Date: 2024-09-20 Tentative Ruling

Lin Ouyang (“Petitioner”), a self-represented litigant, petitions for a writ of mandate directing City of Los Angeles Department of Building and Safety (the “City” or “LADBS”) to provide Petitioner with all records responsive to her request under the California Public Records Act (“CPRA”). The parties stipulated to an in camera review of the redacted communications at issue to make a preliminary determination whether LADBS meets the initial burden to establish the redacted communications are covered by attorney-client privilege (i.e., the dominant purpose test). The court reviewed the documents and found that LADBS satisfied its initial burden of establishing that these redacted communications are covered by the attorney-client privilege. Petitioner requested to proceed with trial and submitted legal briefing in which she contends that: (1) the communications fall within the crime-fraud exception to the attorney-client privilege;

(2) the privilege was waived by disclosure to a LADBS supervisor; and (3) LADBS did not properly invoke the work product doctrine or show that it applies to any redacted information. The court denies the petition for writ of mandate.

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.)

Article 1, Section 3(b) of the Constitution affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business.” The Constitution mandates that the CPRA be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.” (See Nat’l Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 507.) The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” (Gov. Code § 7921.300.) “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” (Gov. Code § 7922.525(b).)

To establish an agency has a duty to disclose under the CPRA, the petitioner must show that: (1) the record qualifies as a public record; and (2) the record is in the possession of the agency. (See Anderson-Barker v Sup.Ct. (2019) 31 Cal.App.5th 528, 538.) Once that initial burden is met, the agency has the burden to proven that public records have been properly redacted or withheld from disclosure. (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.)

The court (Chalfant, J.) issued a judgment in Lin Ouyang v. Osama Younan, et al., Case No. 23STCP00605, denying Petitioner’s petition for writ of mandate. In the Younan case, Petitioner challenged LADBS’s issuance of Building Permit No. 21016-2000-48357 for renovation work to an apartment building in which Petitioner resides. (Ouyang Decl. ¶ 12, Exh. 11; Munoz Decl. ¶ 2, Exh. A.) The city argues: “[A] decision finding that the crime-fraud exception applies on the grounds plead by Petitioner, would directly conflict on an issue decided by the Younan court—namely that LADBS’ Building Permit was issued after LAHD approved the [Tenant Habitability Plan].” To that end, both parties request that the court take judicial notice of pleadings and orders from the Younan case. Judge Chalfant’s decision in the Younan case may not be dispositive because the case is on appeal, and in the absence of a decision from the District Court of Appeal, this court is free to reach a different decision. Therefore, the court shall evaluate Petitioner’s arguments on the merits and denies both requests for judicial notice, since the pleadings are not relevant to the court’s decision on the petition.

Per the parties’ stipulation, the court conducted an in camera review of the redacted communications to make a preliminary determination whether the City satisfies the initial burden to establish that the redacted communications are covered by the attorney-client privilege. (See Court’s Minute Order, dated May 21, 2024.) The court found that the City “ha[d] satisfied its initial burden of establishing that these redacted communications are covered by the attorney-client privilege.” (Ibid.)[1]

Petitioner contends that “reasonable inferences can be drawn from the nonprivileged portions of the email communications, LADBS’ privilege log and court filings to establish that the services of the lawyer were sought or obtained to enable or to aid LADBS to commit fraud in another action LASC 23STCP00605 filed by Petitioner against LADBS.” (Opening Brief (“OB”) 7.) Deputy City Attorney Kaiulani Lie represented LADBS in the Younan case. (See Munoz Decl. ¶ 2, Exh. A.) In this CPRA action, Petitioner contends that attorney Lie’s privileged communications with LADBS were made for the commission of fraud in the Younan case in two ways: (1) to make a misrepresentation to the court, in LADBS’s opposition brief, that LAHD approved the THP prior to LADBS’s issuance of the Building Permit; and (2) to conspire to withhold public records responsive to Petitioner’s CPRA request “to discourage Petitioner from prosecuting the action.” (OB 8.)

The attorney-client privilege does not apply to a confidential communication between attorney and client “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” (Evid. Code § 956.) “To invoke the Evidence Code section 956 exception to the attorney-client privilege, the proponent must make a prima facie showing that the services of the lawyer ‘were sought or obtained’ to enable or to aid anyone to commit or plan to commit a crime or fraud.” (BP Alaska Exploration, Inc. v. Sup. Ct. (1988) 199 Cal.App.3d 1240, 1262.) “[T]he party opposing the privilege must establish a prima facie case of fraud. The party must also establish a reasonable relationship between the fraud and the attorney-client communication.” (People v. Sup. Ct. (Bauman & Rose) (1995) 37 Cal.App.4th 1757, 1759; see also State Farm Fire & Cas. Co. v. Sup. Ct. (1997) 54 Cal.App. 4th 625, 643-645.)

After consideration of Petitioner’s cited evidence, the court concludes that Petitioner has not made a prima facie showing of fraud or other criminal activity related to any of the redacted communications. The disputed emails reflect attorney-client communications between attorney Lie and LADBS in response to a request from an opposing party (Petitioner) about matters at issue in pending litigation (the Younan case). Petitioner’s claims that there was a fraudulent purpose and intent in these communications are speculative and not supported by the evidence. “The mere charge of illegality will not defeat the privilege.” (Nowell v. Sup. Ct. (1963) 223 Cal.App.2d 652, 657.)

In arguing that LADBS was engaged in fraud, Petitioner highlights an unredacted email of LADBS employee Steven Kim, dated October 30, 2023, to LADBS employee Rares Bodea, stating: “Do we need to create HD clearance if we didn’t create one? Permit was to convert (E)dormitory to apartment so tenant habitability message did not pop up in PCIS.” (OB 8:11-15, citing Ouyang Decl. Exh. 5, DBS-000022.) Petitioner contends that this email, along with other evidence, shows that “LADBS employees Rares Bodea and Steven Kim knew that LADBS did not check LAHD clearance when it issued the permit and knew that LADBS should make a correction, but they concerned about the ongoing litigation against LADBS, thus sought assistance from attorney Kaiulani Lie, and after the attorney responded to the request, Steven Kim notified Petitioner that the permit was properly issued.” (OB 11:21-26.) However, as LADBS argues, Kim’s October 30, 2023, the email is reasonably interpreted as asking his colleague an informational question and is not nefarious on its face. (See Oppo. 15:25-26; see also Evid. Code § 664.) Further, the redacted communications, as well as Kim’s email, were sent in October and November 2023, more than a year after LAHD approved the THP on September 14, 2022, as Petitioner admits in her reply brief. (See Reply 1:23-24; Ouyang Decl. Exh. 6.) Moreover, the redacted communications were exchanged about six months before LADBS filed its opposition brief in the Younan case, in or about April 2024. (Ouyang Decl.

¶ 12, Exh. 11.) Based on the court’s review of the entire record, the court finds insufficient evidence that any of the redacted communications were sought or obtained to enable LADBS to engage in any fraud. Petitioner’s claim that attorney Lie’s confidential communications were part of a fraudulent conspiracy to withhold or improperly redact public records is similarly speculative and not supported by evidence. (See OB 8:4-5 and 11:26-28.)[2]

Petitioner contends that LADBS waived the privilege because “LADBS employee Rares Bodea forwarded attorney Kaiulani Lie’s 10:38:37 AM email to his supervisor Steven Kim, and Steven Kim later forwarded Kaiulani Lie’s 10:38:37 AM email to Steven Kim’s supervisor Jason Healey.” (OB 12.) Here, it is reasonable to infer that LADBS supervisors should be privy to communications between subordinate employees and litigation counsel pertaining to pending litigation. Petitioner does not show that LADBS waived the attorney-client privilege when the communications were forwarded to the supervisors, who were LADBS employees. (See Evid. Code § 952; see also Insurance Co. of North America v. Sup. Ct. (1980) 108 Cal.App.3d 758, 770 [section 952 preserves the confidentiality of attorney-client communications transmitted “to those persons to whom such information is reasonably necessary to accomplish the purpose of the legal consultation”].)[3]

Petitioner contends, citing the Civil Discovery Act, that LADBS waived the work product doctrine by failing to assert that it applied in its initial response to the CPRA request. (OB 13.) The CPRA, and not the Civil Discovery Act, sets forth the duties of public agencies in their responses to requests for public records. Petitioner does not cite any statute from the CPRA, or related case law, that supports her position that a public agency waives a claim of exemption not asserted in an initial response to a CPRA request. Accordingly, Petitioner’s argument is not persuasive.

Petitioner further argues contends that LADBS did not present sufficient evidence to prove that the work product doctrine applies to any of the redacted communications. (OB 14.) In its privilege log, LADBS claimed the work product doctrine for several communications for which it also claimed the attorney-client privilege. (Ouyang Decl. Exh. 6.) Because the court concludes that the communications were properly redacted pursuant to the attorney-client privilege, the court need not decide whether the work product doctrine also applies.[4]

2. Respondent’s counsel shall lodge a proposed judgment forthwith. If Respondent’s counsel fails to do so within five (5) days, Petitioner may lodge a proposed judgment.

[1] At that hearing, the court proposed to resolve the petition for writ of mandate by reviewing the privileged communications and making the final determination whether Petitioner is entitled to any of the documents at the hearing. Petitioner agreed to that approach. The court’s review of the unredacted documents makes clear that every redaction is supported by attorney-client privilege, and the redacted communications do not reflect that they were made in furtherance of any crime or fraud. Inexplicably, however, the City objected to that approach, so the court decides this petition.

[2] There was nothing in the redacted portions that support Petitioner’s argument.

[3] Petitioner also contends that the work product doctrine was waived when the redacted communications were disclosed to supervisor Healey. (OB 13-14.) The court rejects this argument for the same reason.

[4] As discussed, having reviewed the records in camera, the court concludes that LADBS properly redacted the information based on the attorney-client privilege and the work product doctrine.