Judge Thomas D. Long, Case 20STCV22750 2022-07-26 Tentative Ruling

On April 7, 2021, Plaintiff Andrew Manning (“Plaintiff”) filed a second amended complaint (“SAC”) against Defendants City of Alhambra, Scott Burnside, Michael Brown, and JCC Venture LLC.

On April 25, 2022, Plaintiff served a Deposition Subpoena For Production of Business Records on Los Angeles County District Attorney’s Office (“LACDAO”), seeking “Any and all documents related to the Los Angeles County’s District Attorney’s file regarding criminal case number GA106008-02 . . . .” (Conlogue Decl., Ex. 1.) On May 13, 2022, LACDAO produced documents and a privilege log. (Conlogue Decl., Ex. 2.) Plaintiff disagreed with LACDAO’s withholding of some documents, and counsel exchanged letters. (Conlogue Decl., Exs. 3-4.) On June 9, 2022, Plaintiff filed this motion to compel compliance with deposition subpoena for production of business records, seeking the documents LACDAO withheld. The parties participated in an informal discovery conference on June 22, 2022. The Court continued the July 15, 2022 noticed hearing date because no judge was available that date. Trial is currently scheduled for August 1, 2022.

Plaintiff contends LACDAO failed to provide the accompanying affidavit required by Evidence Code section 1561. (Motion at p. 4.) In response, counsel for LACDAO states she is “providing Mr. Conlogue with an Evidence Code section 1561 business records declaration for the information that was disclosed.” (Alvarez Decl. at p. 2.) This issue now appears moot.

Item No. 1 is described as “Attorney notes, statement of facts, information pleading instructions, filing worksheet, witness lists, legal research, and other internal memorandum and worksheets.” Item No. 2 is described as “Disposition reports for defendants Guo and Manning.” Item No. 10 is described as “Internal emails.” LACDAO claimed these items were protected as attorney work product.

“A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Code Civ. Proc., § 2018.030, subd. (a).) Plaintiff argues these documents are nevertheless discoverable pursuant to Shepherd v. Superior Court (1976) 17 Cal.3d 107 (Shepherd). (Motion at p. 5.) LACDAO attempts to distinguish this case from Shepherd by noting that in Shepherd, “the subpoenaing party sought to discover a myriad of records including scientific reports, tests, bills, vehicle photographs, scene diagrams, weapons and projectiles,” and “[t]he court held that the District Attorney had no work product privilege in the documents and records requested.” (Opposition at p. 12; see Shepherd, supra, 17 Cal.3d at pp. 115-116.) That is an incomplete characterization of the case.

Importantly, the California Supreme Court in Shepherd observed that it had “not been directed to, nor have we found, any authority holding that a public prosecutor—having completed his investigation and having announced, after failing to obtain an indictment, that no further action would be taken by him—is entitled to rely upon the work product doctrine when the fruits of his investigation become relevant to civil litigation to which he is not a party. The district attorney is not an ‘attorney’ who represents a ‘client’ as such. He is a public officer, under the direct supervision of the Attorney General (Cal. Const., art. V, § 13), who ‘represents the sovereign power of the people of the state, by whose authority and in whose name all prosecutions must be conducted.’ . . . [T]he extent to which the fruits of his investigations are entitled to confidentiality is governed entirely by provisions governing official information.” (Shepherd, supra, 17 Cal.3d at pp. 121-122.) “[B]ecause the district attorney does not have ‘a “client” as such,’ confidentiality regarding the fruits of investigations of a public prosecutor are governed exclusively by Evidence Code section 1040, which controls the assertion of claims for governmental privilege for official information.” (People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387, 399.) A public entity has a privilege to refuse to disclose official information if disclosure is forbidden by law or if 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. (Evid. Code, § 1040, subd. (b).)

LACDAO cannot rely on the work product doctrine, but it did claim that a privilege protected these documents—although not under Evidence Code section 1040. The parties therefore did not brief the required balancing of the necessity for preserving confidentiality against the necessity for disclosure. Under these circumstances, the Court cannot determine whether disclosure is against the public interest.

Item No. 3 is described as “Probation reports for defendants Guo and Manning.” LACDAO withheld these documents under Penal Code section 1203.05, which limits who may inspect or copy probation officers’ reports filed with the court.

The subject of the report may inspect or copy the probation officer’s report “at any time.” (Pen. Code, § 1203.05, subd. (f).) The motion is therefore granted as to the probation report for Manning.

With respect to the probation report for Jian Jay Guo, who also had arson charges brought against him and dismissed (SAC ¶ 19), Plaintiff is not authorized to obtain these documents.

Any person may inspect or copy a probation officer’s report until 60 days after the date judgment is pronounced or probation is granted, whichever is earlier. (Pen. Code, § 1203.05, subd. (a).) After that period, a person must petition for a court order. (Pen. Code, § 1203.05, subd. (b).) “Because a court’s decision concerning whether to permit access to personal information may affect a defendant’s right under the statute to conditional confidentiality, the decision implicates the defendant’s right to procedural due process and therefore requires that he or she receive notice of the petition and an opportunity to be heard concerning whether there is personal information in the report and whether it should be redacted.” (People v. Connor (2004) 115 Cal.App.4th 669, 697 (Connor).) “[W]hen a nonspecified person files a petition seeking a probation report, the subject of the report is entitled to notice and an opportunity to be heard at an in camera hearing concerning any personal information he or she does not want released. If the subject does not seek a hearing, then the court should release the entire probation report.” (Id. at p. 676.)

Plaintiff argues he is entitled to the documents under Penal Code section 1203.05, subdivision (d), which permits inspection and copying “[b]y any person authorized or required by law to inspect or receive copies of the report.” (Motion at p. 5.) Plaintiff argues a civil deposition subpoena for production of business records provides his authorization. (See ibid.) This extension of who is authorized by law to receive the report would render all other restrictions essentially meaningless, particularly in light of the due process concerns and protections explained in Connor.

Item No. 4 is described as “Rap sheets for defendants Guo and Manning and other witnesses.” Item No. 11 is described as “Protective Order Regarding Discovery.”

Plaintiff argues “[w]ithout any privilege claimed, there is no basis for withholding responsive documents in these categories, and they should be produced.” (Motion at p. 6.)

LACDAO withheld Item No. 4 under Penal Code sections 11140 et seq. and 13300 et seq. LACDAO may refuse to disclose official information when disclosure is forbidden by law. (Evid. Code, § 1040, subd. (b).) Information including a case number, date of offense, charges filed, pending court dates, and disposition “is protected from dissemination except as authorized by Penal Code sections 13200 through 13300.” (Westbrook v. County of Los Angeles (1994) 27 Cal.App.4th 157, 160.) Local summary criminal history information may be disclosed only to authorized individuals when needed in the court of their duties. (Pen. Code, § 13300, subd. (b).) The subject of the local summary criminal history information is one of the authorized individuals. (Pen. Code, § 13300, subd. (b)(12).) Accordingly, the motion is granted as to Item No. 4 for Manning and is otherwise denied as to Item No. 4 for all other individuals.

LACDAO withheld Item No. 11 pursuant to court order. This Court cannot and will not require LACDAO to violate a court order. The motion is denied as to Item No. 11.

LACDAO withheld this document because the law requires Plaintiff to obtain the transcript from the court reporter, citing Government Code sections 69953 and 69954. Government Code section 69953 states that the fees for transcripts and copies ordered by a party should be paid by the ordering party. Government Code section 69954, subdivision (d) states that a court, person, or party who purchased a transcript may “reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person.” Accordingly, LACDAO is prohibited from providing this document.

Plaintiff did not specifically brief Item No. 5. To the extent he relies on the same argument provided for Item Nos. 6-9 (see Motion at pp. 4-5), that argument fails for the reasons discussed below.

Item No. 6 is described as “Police reports from Alhambra Police Department (DR 18-07837) including photographs, and surveillance videos. Documentary discovery Bates stamped ‘Guo and Manning- 000001 to 000490.” Item No. 7 is described as “Reports from LASD Scientific Services Bureau. Documentary discovery Bates stamped ‘Guo and Manning- 000001 to 000490.” Item No. 8 is described as “Reports from the Alhambra Fire Department including search warrants, photographs, logs, correspondence, laboratory reports. Documentary discovery Bates stamped ‘Guo and Manning- 000001 to 000490.” Item No. 9 is described as “Audio files of witness interviews by law enforcement.”

LACDAO stated it “cannot attest to documents which were not created by [its] employees,” and it “has no legal obligation to provide documents . . . that [it] did not prepare or generate.” The production of business records in response to a business records subpoena must be accompanied by the affidavit of the custodian or other qualified witness stating that affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records, that the copy is a true copy of all the records, that the records were prepared by the personnel of the business in the ordinary course of business, the identity of the records, and a description of the mode of preparation of the records. (Evid. Code, § 1561, subd. (a).) A district attorney’s office cannot make the required attestation for items such as investigative reports, statements, photographs, field interview notes, and results of any tests or examinations that may be in the custody of that office but were prepared or generated by someone else. (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1042, 1045 (Cooley).)

Plaintiff argues these documents are necessary in this malicious prosecution action to rebut the presumption that a prosecutor exercises independent judgment regarding the existence of probable cause in filing a complaint. (Motion at p. 4.) “The presumption can be overcome, for example, by evidence that the officers knowingly submitted false information or pressured the prosecutor to act contrary to her independent judgment. (Smiddy v. Varney (9th Cir. 1986) 803 F.2d 1469, 1471 (Smiddy).) Plaintiff argues Cooley does not apply because that case did not have an analysis of a district attorney’s file to overcome the Smiddy presumption. (Reply at p. 2.) But Smiddy did not deal with production of documents in response to a business records subpoena. Rather, Smiddy considered whether the trial court applied the correct substantive law when granting summary judgment. (Smiddy, supra, 803 F.2d at p. 1471.) The Ninth Circuit explained the presumption and who had the burden to produce evidence to rebut the presumption at summary judgment. (Ibid.) Accordingly, Smiddy proves the potential relevance of the information that Plaintiff seeks, but it does not require LACDAO to produce the documents pursuant to a business records subpoena.

Plaintiff also argues that he seeks only production, not certification, of the documents. (Reply at p. 3.) The production of record pursuant to a business records subpoena “shall” be accompanied by the affidavit certifying the records, which LACDAO cannot provide for records it did not prepare or create. (See Evid. Code, § 1561, subd. (a).) Plaintiff provides no authority to the contrary.

Plaintiff argues sanctions are warranted because LACDAO should have moved to quash the subpoena if it thought the subpoena was improper. (Motion at p. 6.)

“The discovery rules do not discriminate against nonparty deponents. They need not scramble to retain a lawyer to file a motion to quash in order to challenge ‘records only’ discovery requests that seek privileged information. It is sufficient to simply object.” (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1284.) That is what LACDAO did here: it produced responsive documents, objected to some production, and provided a privilege log. Additionally, the opposition was not in bad faith or without substantial justification. (See Code Civ. Proc., § 1987.2, subd. (a).)

The motion to compel compliance with deposition subpoena for production of business records is GRANTED IN PART and DENIED IN PART as set forth above. LACDAO is to provide further production no later than July 29, 2022.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court