Judge Stephen I. Goorvitch, Case Number: 23STCV25398, Date: 2024-06-20 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCV25398, Date: 2024-06-20 Tentative Ruling

Plaintiff Ismael Navarro (“Plaintiff”) is a police officer for the City of Montebello (“Defendant” or the “City”) and was injured on duty. Plaintiff filed an Application for Adjudication with the Worker’s Compensation Appeals Board (the “WCAB”). On Jule 29, 2021, the WCAB issued an order finding that Plaintiff was entitled to benefits under Labor Code section 4850. Then, on March 22, 2023, Plaintiff discovered that the City was taxing the benefits, which gives rise to this action for declaratory and injunctive relief. Plaintiff contends that the CPRA requires the City to produce “any and all policies and procedures that allow for taxation of Lab. Code § 4850 benefits” and “a list of any and all employees that have been taxed on Lab. Code § 4850 benefits.” The court issues a judgment in favor of Defendant and against Plaintiff.

Pursuant to the California Public Records Act, Government Code sections 7921.000, et seq., individual citizens have a right to access government records.[1] 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.) “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 ‘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.) CPRA exemptions 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.)

Plaintiff seeks two sets of records: (1) The City’s policies and procedures allowing for taxation of Labor Code section 4850 benefits, and (2) A list of employees who have been taxed on Labor Code section 4850 benefits. Even assuming these records fall within the scope of the CPRA, the City does not have responsive records. The City informed Plaintiff’s counsel on November 9, 2023, that “[a]fter a diligent search, the city has no documents responsive to your request.” (Hitzke Decl. ¶ 10, Exh. F.) In her sworn declaration in support of the opposition, Skibar, Defendant’s Risk Manager, similarly declares: “The City has conducted a diligent search and has found no responsive documents to Mr. Hitzke’s August 24, 2023 PRA request.” (Skibar Decl. ¶ 11.)

Plaintiff could have pursued discovery regarding the adequacy of Defendant’s search for records and to obtain further information concerning Defendant’s determination that it has no responsive records. (See City of Los Angeles v. Sup. Ct. (Anderson-Barker) (2017) 9 Cal.App.5th 272, 284-290; County of San Benito v. Sup.Ct. (2023) 96 Cal.App.5th 243, 255-258.) Plaintiff apparently did not pursue discovery on this issue. Instead, Plaintiff relies on the trial testimony of the City’s human resources representative, Eliazbeth Ortega, before the WCAB. (See Hitzke Decl., Exh. B.) Ortega testified as follows:

Q: And under what belief -- or under what authority do you believe that any of the salary [Plaintiff] was earning while out on IOD incentives or otherwise would be taxable?

A: That’s our practice. The system is set up for IOD to be nontaxed. All the other incentives, just like any other employee that is covered under the MOU to receive those incentives, are considered taxable.

Q: When you say your practice, is there a memorandum or some type of document you could point me to, an administrative code from the City of Montebello on the payroll for that?

A: Um, if you look back and see, we have -- do have policies, City policies, and we do have what we call civil service rules that shows -- outlines how a leave payout is paid. I’m not sure if it reflects whether it’s taxable or not taxable.

This testimony does not support Plaintiff’s argument that the City has responsive documents. Plaintiff requested “any and all policies and procedures that allow for taxation of Lab. Code § 4850 benefits.” Ortega merely testified that there are civil service rules outlining “how a leave payout is paid,” but she did not know whether those documents address the dispositive issue: Whether the benefits are “taxable or not taxable.” Therefore, this testimony does not establish that the City has concealed policies and procedures allowing for taxation of section 4850 benefits. It is unclear why Plaintiff did not submit a CPRA request for policies and procedures concerning “how a leave payout is paid,” which might resolve this issue.

Nor does Ortega’s testimony suggest that the City has a “list of employees who have been taxed on Labor Code section 4850 benefits.” Plaintiff does not argue or demonstrate that Defendant has any obligation under the CPRA to create such a list from other data that may be within Defendant’s possession. “It is well established under California law and guiding federal precedent under the Freedom of Information Act (FOIA) that, while the CPRA requires public agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.” (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 665-666, citations omitted.) Accordingly, Plaintiff’s evidence does not prove that Defendant has records that are responsive to the second part of the CPRA request.

Defendant contends that even if it had a list of employees who were taxed on their section 4850 benefits, this record would constitute “private and confidential medical and tax information about disabled City first responders and public safety officers” and would be exempt from disclosure. (Oppo. 6-7.) The court agrees that an unredacted list of employees that have been taxed on section 4850 benefits, if it existed, would be exempt from disclosure under multiple state and federal laws because the list would identify officers who have been disabled in the course of their duties. (See e.g. Penal Code §§ 832.7, 832.8(a); Cal. Const., Art. I, § 1; Gov. Code §§ 7927.700 and 7927.705; Lab. Code § 138.7; 26 U.S.C. § 6103.) The CPRA “does not require disclosure of personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” (Doe v. Regents of the University of California (2024) --- Cal.Rptr.3d ---, 2024 WL 2873475, at *4, citing Gov. Code § 7927.700.) Plaintiff develops no argument to the contrary in his reply. (See Reply 2.) Therefore, even if such records exist, as Plaintiff maintains, they are exempt from disclosure.[2] Plaintiff argues that “the records must be disclosed because Defendant did not assert an exemption applies.” (Opening Brief, 5:26-27.) Plaintiff cites no authority for the proposition that the City’s failure to provide an “in the alternative” response waives the privacy rights of third-party employees that are protected by law.

The parties dispute whether Plaintiff agreed to toll the CPRA request pending settlement discussions in the workers’ compensation case and whether Defendant’s extension of the time to respond until November 6, 2023, complied with the CPRA. (See Oppo. 4-5; Reply 3-5.) The court finds that the response was timely for the reasons stated by Defendant. (See Oppo. 4-5.) Regardless, the remedy for an untimely response is to file a lawsuit to compel compliance, which he has done. Plaintiff cites no authority in support of any suggestion that an untimely CPRA response requires the court to grant the petition. (See Reply 4-5; see also Gov. Code § 6253.)

The first amended complaint for declaratory and injunctive relief is DENIED IN FULL.

[1] The CPRA statutes were re-numbered effective January 1, 2023. Unless otherwise stated, statutory references are to the Government Code.

[2] Effectively, Plaintiff seeks a list of those employees who were injured on duty and receive disability benefits subject to Labor Code section 4850. Accordingly, there is no way to redact this information to protect the privacy interests of third parties. (See Sander v. State Bar of California (2013) 58 Cal.4th 300, 327.)