Judge Stephen P. Pfahler, Case Number: 21STCV13351, Date: 2025-01-06 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21STCV13351, Date: 2025-01-06 Tentative Ruling

Case Number: 21STCV13351 Hearing Date: January 6, 2025 Dept: 68

Dept. 68

Date: 1-6-25

Case # 21STCV13351

Trial Date: 4-14-25

SUBPOENA

MOVING PARTY: Plaintiff, John Doe

RESPONDING PARTY: Defendant, San Marino Police Department/City of San Marino

RELIEF REQUESTED

Motion to Compel Compliance with Subpoena to San Marino Police Department

SUMMARY OF ACTION

Plaintiff John Doe was a student Huntington Middle School and San Marino High School with defendant San Marino Unified School District (SMUSD). Defendant Howard Cheung was a teacher in SMUSD. Cheung was also an employee for defendant River Way Ranch Camp, an overnight camping facility in Sanger, California.

Beginning in sixth grade in 2000-2001, a friendly relationship between Plaintiff and Cheung began, which placed the two alone together in various location. The continued contact provided Cheung opportunities to sexually molest Plaintiff, including at River Way Ranch Camp. Plaintiff alleges SUMSD faculty and staff saw the inappropriate time together and failed to investigate or report.

On April 7, 2022, Plaintiff filed a complaint for Sexual Abuse of a Minor, Intentional Infliction of Emotional Distress, Sexual Harassment, Negligent Hiring, Supervision, and Retention of Unfit Employee, Breach of Mandatory Duty: Failure to Report Suspected Child Abuse, Negligent Supervision of a Minor, Negligent Failure to Warn, Train or Educate, and Negligence. On June 18, 2021, the court overruled the demurrer of SMUSD. SMUSD answered and filed a cross-complaint.

On June 28, 2022, the action was transferred from Department 32 (Personal Injury hub) to Department 68. On June 28, 2022, Plaintiff dismissed River Way Ranch Camp with Prejudice. On October 26, 2022, Plaintiff dismissed Howard Cheung without Prejudice. On May 17, 2023, the court granted the motion of Western Camps, Inc. dba River Way Ranch Camp for determination of a good faith settlement with Plaintiff.

On March 27, 2024, the court granted the motion for summary adjudication on the fourth and sixth causes of action for Negligent Hiring, Supervision, and Retention of Unfit Employee Negligent Supervision of a Minor. The court denied the motion for summary judgment on the basis of its denial of the motion for summary adjudication on the fifth and seventh causes of action for Breach of Mandatory Duty, Failure to Report Suspected Child Abuse, and Negligent Failure to Warn, Train or Educate.

On April 16, 2024, the court entered the parties’ stipulation to continue the trial date. On May 30, 2024, the court granted the motion to stay the action pending certain appeals. On September 24, 2024, the court lifted the stay and reset the case for trial.

RULING: Denied.

Plaintiff John Doe moves to compel compliance with a subpoena for production of business records seeking production of the San Marino Police Department unredacted police report investigation into Defendant Howard Cheung. Plaintiff seeks the information in order support the claims in the operative complaint. A redacted copy of the report was previously produced, with certain individuals apparently blocked out, the identities of whom Plaintiff maintains should be disclosed. Defendant San Marino School District submits a notice of joinder to the motion. City of San Marino in opposition reiterates protections in place for child abuse victims unwilling to disclose their identities. City also cites to Evidence Code section 1040 regarding disclosure of files regarding ongoing investigations. Plaintiff in reply contends the statutes in fact allows for production of the report, and notes that City of San Marino otherwise offers no challenge on the “relevance” position. Plaintiff also maintains no preclusion under Evidence Code section 1040.

San Marino objected to production of an unredacted copy of the report on grounds of dissemination of information to outside the parties to the subject action under Penal Code section 11167.5. Subdivision (b) and lack of confidentiality waiver by other identified potential victims under Penal Code section 11167.5. Subdivision (d)(1). Plaintiff offers no address to the Penal Code sections and additionally cites to party deposition rules, which are not applicable to third party production.

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) ... may make an order … directing compliance with it upon those terms or conditions as the court shall declare...” (Code Civ. Proc., § 1987.1, subd. (a).)

Evidence Code section 1040 establishes the standard for discovery of criminal investigation files; Penal Code discovery standards are not applicable. (Pen. Code, § 1054, subd. (e); Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1042.) The section states in relevant part:

(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state.

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

Evid. Code, § 1040

As reflected in the plain language of the statues and case law, the standard for disclosure of a police investigation file in a civil action requires a balancing of considerations between the public interest in thoroughly investigating and prosecuting crimes versus the necessities of civil discovery in the prosecution or defense of an action. “The consideration of consequences to the litigant will involve maters 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 … 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.’” (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 127–128 overruled by People v. Holloway (2004) 33 Cal.4th 96 on grounds not related to civil discovery standards.)

The court weights the standard under the provision involving child abuse investigations. Penal Code section 11167.5 provides in relevant part:

(b) Reports of suspected child abuse or neglect and information contained therein may be disclosed only to the following:

(1) Persons or agencies to whom disclosure of the identity of the reporting party is permitted under Section11167.

(2) Persons or agencies to whom disclosure of information is permitted under subdivision (b) of Section11170 or subdivision (a) of Section 11170.5.

(3) Persons or agencies with whom investigations of child abuse or neglect are coordinated under the regulations promulgated under Section 11174.

...

(d) Nothing in this section requires the Department of Justice to disclose information contained in records maintained under Section 11170 or under the regulations promulgated pursuant to Section 11174, except as otherwise provided in this article.

(e) This section shall not be interpreted to allow disclosure of any reports or records relevant to the reports of child abuse or neglect if the disclosure would be prohibited by any other provisions of state or federal law applicable to the reports or records relevant to the reports of child abuse or neglect.

Pen. Code, § 11167.5

The declaration of moving counsel presents a copy of the redacted report, which appears to identify the already named parties or known percipient witnesses, and otherwise redacts all other names. [Declaration Neil Gehlwat, Ex. 3.] The objections to the unredacted production are also provided. [Id., Ex. 4.] The motion itself lacks any address to the objections regarding identification of third party victims under the statutory authority. Plaintiff instead offers a general statement regarding the plenary authority of the court to compel discovery, then in reply offers summary rejection of the statutory criteria and categorical protections cited in opposition. The court finds the motion and reply insufficient regardless of the reliance on “relevance.”

Even if the court found a basis to compel discovery over the carefully articulated statutory privacy protections, the court also finds the lack of sufficient address of the ongoing investigation standard as well. The opposition contains a declaration from San Marino Police Department Commander Aaron Blonde. Officer Blonde specifically maintains the investigation remains ongoing in that an arrest warrant remains outstanding for a certain unidentified individual. Again, the motion and reply lacks any address as to the state of the investigation. The court finds no basis to challenge the veracity of the declaration from Officer Blonde, and therefore finds no basis for compelling under this standard.

Although not raised in the motion or reply, the court also finds no basis to order an in camera review of the file to determine a potential release of materials. “Obviously, the file may contain sensitive information that should not be disclosed preindictment. Or there may be material relevant to the [parties’] civil action that could possibly be safely confided to their attorney only subject to a stringent protective order. In that event the trial court may choose to look for guidance from trade secret cases in fashioning a remedy that preserves confidentiality as much as possible. There will likely be relevant information that can be released without jeopardizing the investigation at all.” (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 769 (footnote 4).)

“The Shepherd court's directives are a clear command for a particularized assessment of the applicability of the privilege as to each item a public entity seeks to keep confidential in the face of a litigant's request for disclosure. Subsequent decisions by courts of appeal have further delineated the procedures required for a proper determination of the applicability of the section 1040(b)(2) conditional privilege. (Citations.) These include an in camera review pursuant to Evidence Code section 915, subdivision (b), attended by the party claiming the privilege, and an ensuing full-scale adversary hearing at which the strength of the parties' competing interests are explored, along with ‘the possibility of reasonable alternatives’ to outright disclosure of the information sought.” (Michael P. v. Superior Court, supra, 92 Cal.App.4th at p. 1043.)

“The foregoing inquiry at the in camera hearing into the nature and strength of the parties' respective interests is but a preliminary step in the trial court's analysis. “The in camera hearing is a preliminary inquiry into whether the claim of privilege should be upheld. If the [public entities] succeed in camera, the adversary process should be utilized, ‘probing the information's relevance to the [petitioner], exploring with counsel the availability of other alternatives, and, if necessary, hearing testimony voir dire …” (Id. at p. 1047.)

Again, the court finds no support for this step, even if Plaintiff overcomes the disclosure protections. The court therefore finds no basis for authorizing the disclosure of unredacted reports, and denies the motion without prejudice.

Plaintiff to give notice.