Judge: Stephen Morgan, Case: 21AVCV00289, Date: 2022-09-01 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 21AVCV00289    Hearing Date: September 1, 2022    Dept: A14

Background

 

This is a personal injury action. Plaintiff Jane Bos Doe (“Plaintiff”) alleges that on or about 2004-2005, Plaintiff was 14 years old and openly groomed for sexual abuse on the campus of Barstow Jr. High School by Defendant Bruce Bowe (“Bowe”). Plaintiff further alleges that the staff, administrators, and employees of Defendant Barstow Unified School District (“BUSD”) (1) failed to engage a proper background check and professional reference check on Bowe to ensure that he could be alone with school aged children and (2) allowed, acquiesced, and permitted Bowe to openly groom and subsequently remove Plaintiff from the school campus in order to engage in sexual contact with Plaintiff. 

 

On April 15, 2021, Plaintiff filed her Complaint alleging 11 causes of action for: (1) Negligence, (2) Negligent Supervision, (3) Negligent Hiring and/or Retention; (4) Negligent Failure to Warn Train or Educate, (5) Negligence Per Se, (6) Constructive Fraud (Cal. Civ. Code § 1573), (7) Intentional Infliction of Emotional Distress (“IIED”), (8) Sexual Harassment (Cal. Civ. Code § 51.9), (9) Sexual Harassment and Abuse in Educational Setting (Cal. Educ. Code § 220), (10) Breach of Fiduciary Duty, and (11) Public Entity Liability for Failure to Perform Mandatory Duty (Cal. Educ. Code §§ 200, 201; Cal. Civ. Code § 51.9; Title IX: 20 U.S.C. § 1681). 

 

On June 01, 2021, BUSD filed a Demurrer with Motion to Strike which the Court ruled upon on July 06, 2021. Subsequently, on November 22, 2021, BUSD filed its Answer, amended on December 15, 2021.

 

On June 14, 2021, Bowe filed his Answer.

 

On June 28, 2022, a hearing was held regarding Plaintiff’s Motion to Compel Further Discovery Responses Re: BUSD Response to Plaintiff's Request for Production of Documents (Set One). Plaintiff’s Motion to Compel Further Responses from BUSD o Plaintiff’s Request for Production of Documents was granted, subject to a Motion for Protective Order accompanied by a detailed privilege log.

 

On July 29, 2022, BUSD filed this Motion for Protective Order.

 

On August 19, 2022, Plaintiff filed her Opposition.

 

On August 25, 2022, BUSD filed its Reply.

 

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Analysis

 

Standard for Protective Order – “In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172; Pettie v. Superior Court (1960) 178 Cal.App.2d 680, 687.) As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California’s liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) “In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761.) 

 

In deposition, where good cause is shown, “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court¿(1995) 39 Cal.App.4th 584, 588.)¿ 

 

Code of Civil Procedure section 2031.060 provides that a party can move for a protective order “[w]hen an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded.” (Cal. Code Civ. Proc., § 2031.060(a).) The court may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense upon a showing of good cause. (Id., § 2031.060(b).)  The protective order may include, but is not limited to trade secrets or other confidential research development, or commercial information. (See Id., § 2031.060(b)(5).)  

 

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Meet and Confer Requirement – “When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., § 2031.060(a).) Code of Civil Procedure § 2016.040 states: “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The parties have been meeting and conferring without court intervention until June 28, 2022 when Plaintiff’s Motion to Compel Further was heard. (Decl. Barbara M. Moore ¶¶ 2-4.) The Court finds that the meet and confer requirement has been satisfied.

 

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Discussion

 

Issues with Reply – As an initial matter, the Court notes that the Reply includes an argument that the discovery at issue is Plaintiff’s counsel’s attempt to perform an end run around prior rulings by another judge in San Bernardino County Superior Court for documents in the possession of BUSD.

 

This is a new argument not presented in the moving papers. “The general rule of motion practice … is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) “This rule is based on the same solid logic applied in the appellate courts, specifically, that ‘[p]oints raised for  the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ ” (Id. at 1538 [citing American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 720, fn. 10].)

 

As such, the Court does not consider this argument nor will the Court take judicial notice of the related San Bernardino Superior Court’s Minute Orders.

 

The Court notes that while this argument is absent in the moving papers, these cases are mentioned in the Opposition in order to show that certain allegations involving sexual misconduct by employees of BUSD were not turned over.

 

Judicial Notice – BUSD, in its moving papers, requests judicial notice of the Declaration of Jeffrey Malan which was originally submitted with BUSD’s Opposition to the Motion to Compel Further Responses from BUSD to Plaintiff’s Request for Production of Documents (Set One) (“Motion to Compel”).

 

While Cal. Evid. Code § 452 allows a court to take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States[,]” the Court finds the declaration irrelevant to the instant motion as the issues presented before the Court concern the privilege log. (See Cal. Evid. Code § 452(d).)

 

It appears BUSD is also requesting judicial notice under Cal. Evid. Code § 453, which reads:

 

The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

 

“Evidence Code section 453, which states that the court shall take judicial notice of matters properly presented, does not compel the court to admit irrelevant matters that would result in the undue consumption of time.” (Mitroff v. United Servs. Auto. Ass'n (1999) 72 Cal.App.4th 1230, 1243.)

 

Accordingly, the Court does not take judicial notice of the Declaration of Jeffrey Malan in Support of Opposition of Motion to Compel Further Responses from BUSD.

 

Evidentiary Objection – BUSD’s objection to the declaration of Jenny R. Louro’s, para. 12 is OVERRULED.

 

BUSD’s objection to Opposition, Exhibit 5 is OVERRULED.

 

While BUSD presents that this is hearsay under Cal. Evid. Code § 1292, hearsay evidence is defined in Cal. Evid. Code § 1200 as: “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Cal. Evid. Code § 1200(a).)

 

Here, that particular section of the declaration and Exhibit 5 are offered to show that other complaints of sexual misconduct between BUSD and its students were not provided to the Court and not for the truth of the matter asserted in this instant action (i.e., sexual misconduct between Bowe and Plaintiff).

 

Application – BUSD presents two major arguments: (1) the involved documents are within a zone of privacy; and (2) official investigation, attorney-client, and attorney work product privilege apply.

 

BUSD presents (1) that personnel records are protected by the California Constitution (see Cal. Const., art. I, § 1) and that there is no direct relevance of records relating to allegations or complaints of sexual harassment, sexual misconduct, or inappropriate conduct as any employee of the BUSD other than the alleged perpetrator, Bowe; (2) education records are absolutely protected from disclosure under the Family Educational Rights and Privacy Act (“FERPA”); and (3) the countervailing interests identified by Plaintiff fail to establish a compelling need for the subject records to warrant the invasion of interests fundamental to the employees and students’ privacy. Regarding privilege, BUSD presents that Cal. Evid. Code § 1040 protects information collected in confidence in connection with BUSD’s investigations, attorney-client privilege protects documents sought as the dominant purpose of the documents are discussions of BUSD’s investigations with their counsel regarding the nature of the incident, and work product privilege protects the documents as BUSD’s investigative materials should be included as they are of a derivative character (see Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135 [materials of a derivative character, such as diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed on the initiative of counsel in preparing for trial, are protected as work product].)

 

BUSD provides a privilege log in which a general document name, author, recipient, date, and the privilege asserted are given.

 

The Court notes that these arguments were previously raised in the Motion to Compel. The Court orally informed defense counsel that it believed if there’s one allegation month, i.e., that sexual harassment of students was endemic to the school district, then a jury would be within its right to assume that there might have been foresight or negligent supervision. Regarding FERPA, the Court stated:

 

 

 

FERPA bars federal funding to educational agencies and institutions with a "policy or practice" of releasing either "educational records" or "personally identifiable information" without parental consent. (20 USC § 1232g.) The term "educational records" is broadly defined to include "records, filed, documents and other material which ... contains information directly related to a student" and "are maintained by an educational agency or institution or by a person acting for such agency or institution." (Id. at (a)(4)(B).) "Personally identifiable information" does not extend to "directory information," which includes the student's name, address and telephone number. (Id. at (a)(5)(A).) It undisputed that no parent has consented to the release of BUSD educational records or personally identifying information. However, FERPA only punishes educational institutions that release such records as a matter of policy or practice. (See Ragusa v. Malverne Union Free School Dist. (E.D.N.Y. 2008) 549 F. Supp. 2d 288, 291-292; see also Rim of the World Unified School Dist. v. Superior Court (104 Cal.App.4th 1393, 1396-1398 [FERPA preempted former California statutory provisions requiring all student expulsions to be made public].) It does not create a "privilege" preventing disclosure of students' records or bar disclosure pursuant to court order. (Id., pp. 291, 293.) Given the BUSD's resistance to Plaintiff’s requests, nothing before the Court supports a finding that [] BUSD releases such information as a matter of policy or practice. Additionally, Cal. Educ. Code § 49076, enacted by the Legislature in an effort to eliminate any potential conflict between state law and FERPA, allows access to pupil records with either parental consent or under judicial order. (See Cal. Educ. Code § 49076(a).) Hence, [] BUSD’s compliance with a court order to do so will not subject [] BUSD to a risk of losing federal funding.  

 

(Statement of Decision (“SOD”) pp. 7-8.)

 

Regarding Cal. Evid. Code § 1040, the Court stated:

 

Next, the Court addresses the concern of Cal. Evid. Code § 1040, official information privilege. Cal. Evid. Code § 1040, establishes two different discovery privileges: (1) Cal. Evid. Code § 1040(b)(1), establishes an absolute privilege if disclosure is forbidden by a federal or state statute and (2) Cal. Evid. Code § 1040(b)(2) establishes a conditional privilege in all other cases. The conditional privilege attaches when the court determines, under precise statutory standards, that disclosure is against the public interest. (County of San Diego v. Superior Court (1986), 176 Cal.App.3d 1009, 1018-19.) It is unclear to the Court whether the investigation records were prepared by public employee. BUSD’s only rebuttal is that the District (BUSD) undertakes an investigation and maintains education files. There is no commentary as to whether BUSD undertakes the investigation itself or contracts out to a private third party as Plaintiff claims. That aside, disclosure is not prevented by FERPA, as discussed, ante, and thus, In the event that the information was gathered by a public employee and subject to Cal. Evid. Code § 1040, subdiv. (b)(2) applies. In determining in discovery proceedings in a civil action whether official information acquired in confidence by a public employee should be deemed privileged under Cal. Evid. Code § 1040(b)(2), “the trial court [must] consider, with respect to each item of material found to be discoverable under the provisions of Code of Civil Procedure section 1985, whether there is 'a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.' If it decides that question in the affirmative, then '[disclosure] of the information is against the public interest' and the particular item should be deemed privileged. If it decides that question in the negative, production should be ordered. Such a weighing procedure will entail a separate assessment of the 'necessity for disclosure in the interest of justice' and the 'necessity for preserving the confidentiality [of the subject information].’ ‘Implicit in each assessment is a consideration of consequences -- i.e., the consequences to the litigant of nondisclosure, and the consequences to the public of disclosure. The consideration of consequences to the litigant will involve matters similar to those in issue in the determination of materiality and good cause in the context of Code of Civil Procedure section 1985, including 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. The consideration of the consequences of disclosure to the public will involve matters relative to the effect of disclosure upon the integrity of public processes and procedures (a matter to which we advert in more detail below). In this respect the court should be fully aware that -- in the  words of the Assembly Committee on Judiciary -- 'the public has an interest in seeing that justice is done in the particular cause as well as an interest in the secrecy of the information.' (Comment, supra, final paragraph.)” (Dominguez v. Superior Court of Los Angeles County (1980) 101 Cal. App. 3d 6, 11-12.) The Court believes that non-disclosure would (1) affect Plaintiff’s presentation of the case, and (2) as this instant action involves the alleged sexual abuse of a minor, frustrate the interest of justice.  

 

(Id. at p. 8.)

 

Regarding privilege, the Court stated:

 

  1. Attorney-Client Privilege 

     

    "The attorney-client privilege provides for the nondisclosure of confidential communications between a lawyer and his/her client. (Cal. Evid. Code, § 954.) The communication must be intended by the client to be treated in confidence. Confidential communications include not only information given from a client to the attorney, but also the legal opinions and advice tendered by the attorney. (Cal. Evid. Code, § 952.) 

     

    “ ‘Once a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential. A party opposing the privilege has the burden of proof to show the communication is one not made in confidence. (Cal. Evid. Code, § 917.) However, the party claiming privilege has the burden to show that the communication sought to be suppressed falls within the terms of the statute. [Citations.] It is also established that a communication which was not privileged to begin with may not be made so by subsequent delivery to the attorney. [Citation.]’ ” (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 824-825.) 

     

    Here, BUSD asserts that the communication is privileged because (1) the appropriate test is the dominant purpose test (“[T]o determine whether a communication is privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication. Under that approach, when the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege” (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 51)), and (2) the dominant purpose of the BUSD’s investigations is communication with the BUSD’s legal counsel regarding the nature of the incident. BUSD compares a sexual misconduct allegation with a minor to an incident report at a hospital after an alleged injury. The Court finds these two instances distinguished from each other. Applying BUSD’s dominant purpose argument, the Court believes that the dominant purpose of an investigation into sexual misconduct of a BUSD employee with a minor would be protection of the minor.   

     

    BUSD also asserts that the claim of attorney-client privilege does not allow for an in-camera review of the documents in question. However, “Evidence Code section 915, while prohibiting examination of assertedly privileged information, does not prohibit disclosure or examination of other information to permit the court to evaluate the basis for the claim, such as whether the privilege is held by the party asserting it. (Moeller, at p. 1135 [hearing on type of attorney-trustee communications to determine who holds the privilege].) Evidence Code section 915 also does not prevent a court from reviewing the facts asserted as the basis for the privilege to determine, for example, whether the attorney-client relationship existed at the time the communication was made, whether the client intended the communication to be confidential, or whether the communication emanated from the client. (Cornish, at p. 480.) Accordingly, while the prohibition of Evidence Code section 915 is not absolute in the sense that a litigant may still have to reveal some information to permit the court to evaluate the basis for the claim of privilege (Moeller, at p. 1135)” (Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725, 737.)  

     

    As discussed, ante, the Court believes that dominant purpose of an investigation into sexual misconduct of a BUSD employee with a minor would be protection of the minor and the current privilege log does not provide sufficient factual information to evaluate the merits of that claim (Cal. Code Civ. Proc. § 2031.240(c)(1); Exh. F). Thus, BUSD fails to show that the claimed privilege falls within the terms of the statute. However, the Court understands the sensitive nature of attorney-client privilege and allows BUSD to file a Motion for protective order.  

     

  1. Attorney Work Product 

     

    Cal. Code Civ. Proc. § 2018.030 provides for the level of protection for attorney work product, and in pertinent part states: “The work product of an attorney, other than a writing described in subdivision (a) [attorney’s impressions, conclusions, opinions, or legal research or theories] 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.” (Cal. Code Civ. Proc., § 2018.030(b).) “The person claiming protection under the attorney work product doctrine bears the burden of proving the preliminary facts to show the doctrine applies. [Citation.]”  (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993.) 

     

    BUSD asserts that attorney work product is invoked under the holdings of City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1036 and Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123 and that the investigation reports are for assisting BUSD’s attorneys in their work as they aid the attorney in litigating cases.  

     

    Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1036 holds that “[i]n Wellpoint, supra, 59 Cal.App.4th at page 125, the court considered whether an employer waived any attorney-client or work product protections associated with a prelitigation investigation by raising the investigation as a defense to harassment claims. The court agreed with the proposition that ‘the employer's injection into the lawsuit of an issue concerning the adequacy of the investigation where the investigation was undertaken by an attorney or law firm must result in waiver of the attorney-client privilege and work product doctrine.’ (Id. at p. 128.) ‘If a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy.’ (Ibid.)” (Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1036-37.) 

     

    Additionally, both BUSD’s privilege log and its opposing papers do not “provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log,” as required by Code of Civil Procedure section 2031.240(c)(1). 

     

    As discussed, ante, the Court understands the sensitive nature of attorney-client privilege and allows BUSD to file a Motion for protective order.  

     

    (Id. at pp. 9-11.)

     

    BUSD maintains its argument in its Motion for Protective Order that any investigation is done primarily in anticipation of litigation rather than for the protection of the minor as the Court believed.

     

    Plaintiff argues that BUSD’s privilege log remains deficient. Specifically, Plaintiff presents that BUSD fails to identify the capacity of all the individuals who authored and/or sent the document; identify the capacity of all the individuals who received the document; identify the document’s date – whether by creation date or transmittal date; provide a brief description of the document’s contents or subject matter; and the precise privilege or protection asserted.

     

    BUSD’s Reply, excluding the new argument, argues that BUSD performed the investigations at the direction of an attorney for an attorney and, thus, the dominant purpose was to aid the attorney in counseling the client. (See Decl. James Davis, generally.) BUSD reiterates that attorney-client privilege, official information privilege, attorney work product, and Cal. Gov. Code § 6254 protect the requested documents. BUSD argues its privilege log is technically adequate as current law does not require the capacity of the individuals or contents of the communications, though BUSD concedes that Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 states that “typically [a privilege log] should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document.” BUSD believes there are less intrusive means to obtain the information requested such as deposing James Davis to ask about his investigation or deposing other employees of BUSD to determine whether they complied with requirements. The Court cannot take into consideration section VIII of BUSD’s reply as it pertains to the new argument raised by BUSD in its Reply papers. Finally, BUSD presents that it has no knowledge of any allegations involving the ROP teacher allegedly having an inappropriate relationship with a student and, as to the two other employees, BUSD has no records relating to sexual misconduct between either of them with any students.

     

    With that in mind, the Court looks to the privilege log. The documents include handwritten investigation notes, statements, employee data sheets, DOJ notifications, emails, student data sheets, telephonic messages, correspondences, reports, letters, forms, memorandums, settlements, and more. Plaintiff further argues that attorney-client privilege is not implicated as the dominant purpose of creating BUSD’s investigative files is to protect minor children under BUSD’s care, that there is nothing to indicate that the documents are protected by attorney-client privilege, and the mere fact that counsel was at some point retained does not convert every document or communication into a confidential attorney-client communication. As to work product privilege, Plaintiff argues that there is nothing in BUSD’s moving papers or amended privilege log to indicate that any of the investigative materials were prepared for the purpose of litigation, in anticipation of trial, securing legal advice, or at the direction of the attorney. Plaintiff presents that the documents go to the heart of her claim (i.e., establishing a pattern and practice) and, should the documents be withheld, Plaintiff will be severely and unfairly prejudiced in preparing her claims. Finally, Plaintiff presents that (1) BUSD is attempting to mislead this Court as some documents in the privilege log state that they were made to counsel when they are actually made to unknown recipients and (2) BUSD there are known complaints/instances of sexual misconduct of unlisted BUSD employees that are not implicated in the amended privilege log.

     

    The Court has researched extensively and found BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742 (“BRV”) informative. BRV discusses both student and personnel files in conjunction with the Public Records Act:

     

    Certainly the language of the statute [Cal. Educ. Code § 49061], though broadly written, does not encompass every document that relates to a student in any way and is kept by the school in any fashion. A pupil record is one that “directly relates” to a student and is “maintained” by the school. We agree with the Supreme Court that the statute was directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline reports, and the like.

     

    The Davis report [the report at issue in BRV], however, does not fall within that group. True, it identifies students by name and details actions taken by them and against them, some of which violated school policy and subjected them to discipline. However, the report was not directly related to the private educational interests of the students. Its purpose was to investigate complaints of malfeasance allegedly committed by the highest administrator in the District.

     

    The report was not something regularly done in the normal course of business, as illustrated by the fact it required a Board resolution to initiate. It also was not the type of report regularly [***20]  maintained in a central location along with education records such as those described above in separate files for each student.

     

    For all of the above reasons, we conclude the Davis report and its accompanying summaries were not pupil records within the meaning of Education Code sections 49061 and 49076. This conclusion, however, does not end the matter. We still must determine whether the Davis report was subject to disclosure under the Public Records Act.

     

    [. . .]

     

    A. Substantial privacy interest

 

Public employees have a legally protected interest in their personnel files. (Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th at pp. 1512–1514.) We quote at length:

 

“The [Public Records Act (CPRA)] itself recognizes the right of privacy in one's personnel files by virtue of the exemption in section 6254, subdivision (c). The CPRA, with its privacy protection, is modeled upon the federal Freedom of Information Act (FOIA) and the federal judicial construction of that statute is useful in construing the CPRA. (City of San Jose [v. [sic] Superior Court (1999) 74 Cal.App.4th 1008,] 1016 [88 Cal. Rptr. 2d 552].)

 

“Federal cases construing the similar federal provision have found a reasonable expectation of privacy in one's personnel files. ‘A person's interest in preserving the confidentiality of sensitive information contained in his personnel files has been given forceful recognition in both federal and state legislation governing the recordkeeping activities of public employers and agencies. [Citations.]’ (Detroit Edison Co. v. NLRB (1979) 440 U.S. 301, 319, fn. 16 [59 L. Ed. 2d 333, 99 S. Ct. 1123] [noting that federal Privacy Act bans unconsented disclosure of employee records].)

 

“In United States Department of State v. Washington Post Co. (1982) 456 U.S. 595 [72 L. Ed. 2d 358, 102 S. Ct. 1957], the Supreme Court made it apparent that items to be protected within personnel files are not just the intimate private details of personal decisions. The court stated that the intent of Congress in enacting the exemption was that it: ‘… “cover detailed Government records on an individual which can be identified as applying to that individual.” [Citation.] When the disclosure of information which applies to a particular individual is sought from Government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person's privacy.’ (Id. at p. 602.)

 

“In discussing the general attributes of a personnel file, the United States Supreme Court has stated that an individual's personnel file generally contains ‘ “vast amounts of personal data,” ’ including ‘where he was born, the names of his parents, where he has lived from time to time, his high school or other school records, results of examinations, evaluations of his work performance.’ The court noted that access to personnel files is ‘drastically limited … only to supervisory personnel directly involved with the individual. …’ (Department of the Air Force v. Rose (1976) 425 U.S. 352, 369, 377 [48 L. Ed. 2d 11, 96 S. Ct. 1592] [concerning records of Air Force cadets whose military education was publicly financed].) The federal [and state] courts recognize that information from a personnel file that applies to a specified individual raises significant privacy concerns.” (Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th at pp. 1514–1515, fn. omitted.)

 

Certainly, Morris has a significant privacy interest in his personnel file, including the Davis report. We turn to the next prong of the test.

 

B. Whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure

 

Without doubt, the public has a significant interest in the professional competence and conduct of a school district superintendent and high school principal. It also has a significant interest in knowing how the District's Board conducts its business, and in particular, how the Board responds to allegations of misconduct committed by the District's chief administrator. We thus must determine whether the potential harm disclosure of the report could cause to Morris's privacy interest outweighs the public's interest in disclosure.

 

 “[T]he constitutional right to privacy must be balanced against the public's interest in its business in much the same way that the courts have sought accommodation of the reputational interests of the individual and the United States Constitution's First Amendment's protection of press freedoms. (See, e.g., New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L. Ed. 2d 686, 84 S. Ct. 710].) Although one does not lose his right to privacy upon accepting public employment, the very fact that he is engaged in the public's business strips him of some anonymity.” (Braun v. City of Taft, supra, 154 Cal. App. 3d at p. 347.)

 

In Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548 [7 Cal. Rptr. 109, 354 P.2d 637] (Chronicle Publishing), our Supreme Court concluded that complaints confidentially made to the State Bar regarding an attorney's professional conduct, and the investigations of those complaints, that do not result in public or private discipline, are confidential and not subject to disclosure. The rule serves two public interests. First, it protects the proper functioning of the bar's disciplinary system by ensuring people may file complaints without risk of creating a publicly accessible record and being subject to a libel action. (Id. at pp. 566, 568.)

 

(BRV, supra, 143 Cal.App.4th at 751-59.)

 

The Court next turns to Cal. Gov. Code § 6254. As with the Motion to Compel, BUSD states that “Government Code section 6254 exempts disclosure of public employee records under the California Public Records Act.” (Motion 4:5-6 and 5:16.) No subsection is provided in either the moving papers or privilege log. The Reply states that BUSD is relying on subsection (b) and (f).

 

Cal. Gov. Code § 6254(b) reads:

 

Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.

 

Cal. Gov. Code § 6254(f) reads:

 

Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.

Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2)

(A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

(B) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.

(3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This paragraph shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.

(4) Notwithstanding any other provision of this subdivision, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subparagraph (C), may be withheld only as follows:

(A)

(i) During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure pursuant to this paragraph, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.

(ii) After 45 days from the date the agency knew or reasonably should have known about the incident, and up to one year from that date, the agency may continue to delay disclosure of a recording if the agency demonstrates that disclosure would substantially interfere with the investigation. After one year from the date the agency knew or reasonably should have known about the incident, the agency may continue to delay disclosure of a recording only if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation. If an agency delays disclosure pursuant to this clause, the agency shall promptly provide in writing to the requester the specific basis for the agency’s determination that the interest in preventing interference with an active investigation outweighs the public interest in disclosure and provide the estimated date for the disclosure. The agency shall reassess withholding and notify the requester every 30 days. A recording withheld by the agency shall be disclosed promptly when the specific basis for withholding is resolved.

(B)

(i) If the agency demonstrates, on the facts of the particular case, that the public interest in withholding a video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording and may use redaction technology, including blurring or distorting images or audio, to obscure those specific portions of the recording that protect that interest. However, the redaction shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording and the recording shall not otherwise be edited or altered.

(ii) Except as provided in clause (iii), if the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction as described in clause (i) and that interest outweighs the public interest in disclosure, the agency may withhold the recording from the public, except that the recording, either redacted as provided in clause (i) or unredacted, shall be disclosed promptly, upon request, to any of the following:

(I) The subject of the recording whose privacy is to be protected, or their authorized representative.

(II) If the subject is a minor, the parent or legal guardian of the subject whose privacy is to be protected.

(III) If the subject whose privacy is to be protected is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative of the deceased subject whose privacy is to be protected.

(iii) If disclosure pursuant to clause (ii) would substantially interfere with an active criminal or administrative investigation, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation, and provide the estimated date for the disclosure of the video or audio recording. Thereafter, the recording may be withheld by the agency for 45 calendar days, subject to extensions as set forth in clause (ii) of subparagraph (A).

(C) For purposes of this paragraph, a video or audio recording relates to a critical incident if it depicts any of the following incidents:

(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.

(D) An agency may provide greater public access to video or audio recordings than the minimum standards set forth in this paragraph.

(E) This paragraph does not alter, limit, or negate any other rights, remedies, or obligations with respect to public records regarding an incident other than a critical incident as described in subparagraph (C).

(F) For purposes of this paragraph, a peace officer does not include any peace officer employed by the Department of Corrections and Rehabilitation.

 

The Court believes that, as a first step, BUSD must disclose the documents listed in its privilege log that pertain to mandatory reporting (i.e., notification to DOJ, notification to CTC.) First, the fact that the actions of BUSD’s employees led to mandatory reporting tips the scales in favor of the public interest. Second, as the notifications were given to a third-party, attorney client privilege is waived (Cal. Evid. Code § 912(a); see also Cal. Evid. Code § 952). So, too, is work product privileged waived upon voluntary disclosure to a person other than the client who has no interest in maintaining the confidentiality of the contents of the writing. (See Regents of the University of California, et al. v. The Superior Court of San Diego, et al. (2008) 165 Cal.App.4th 672, 678-79 and McKesson HBOC, Inc. v. The Superior Court of San Francisco, et al. (2004) 115 Cal.App.4th 1229, 1236037 [document shared with the government].)

 

Accordingly, the Motion for Protective Order is granted in part and denied in part.

 

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Conclusion

 

Defendant Barstow Unified School District’s Motion for Protective Order is GRANTED in part and DENIED in part.

 

Defendant Barstow Unified School District is ordered to turn over the Notification to the CTC and Notification to the DOJ with the student personal information redacted. The Court does not require personnel information redacted assuming the name already appears in the privilege log.

 

The Court requires that the documents be subjected to the same confidentiality requirements as a highly confidential stipulated protective.