Judge: Walter P. Schwarm, Case: 30-2021-01179907, Date: 2022-09-27 Tentative Ruling

Defendant’s (Harbor Cove Community Association) Motion to Seal Inadvertently Filed Documents (Motion), filed on 7-28-22 under ROA 180, is DENIED. 

McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 31 explains, “ ‘The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. [Citation.] Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are “ ‘presumptively open.’ ” [Citation.]’ [Citation.]”

California Rules of Court, rule 2.551, states, “(a) A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. [¶] (b)(1) A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. . . .”

California Rules of Court, rule 2.550, subdivision (d) states, “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

California Rule of Court, rule 2.550, subdivision (e), provides in part, “(1) An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.”

The Motion states, “On April 22, 2020, the Senior Community Manager for Defendant sent an email to Defendant’s board of directors containing internal notes stemming from a complaint submitted by Plaintiff, which is now the subject of this lawsuit. (Declaration of Karrie Daugherty (‘Daugherty Dec.’), ¶ 4.) This communication was made in preparation of the April 29, 2020 executive session board meeting, and was considered privileged and confidential. (Daugherty Dec., ¶ 3, 4.) At no point has Defendant waived this privilege. (Daugherty Dec., ¶ 3.)” (Motion; 3:12-17.)

Defendant contends, “Here, the communications contained within the inadvertently filed documents were privileged under California Civil Code § 5215. Namely, section 5215 protects documents ‘relating to litigation in which the association is or may become involved.’ (Cal Civ. Code §5215(a)(3).) [¶] The communication at issue contained an investigation of the claims which Plaintiff now asserts in this lawsuit and was intended only for the board of directors for contemplation of the complaint and possibility of subsequent litigation. (Daugherty Dec., ¶ 2.) At no point did Defendant – the holder of the privilege – waive the privilege. (Daugherty Dec., ¶ 3.)” (Motion; 5:11-18.)

The declaration from Karrie Daugherty states, “As of April 22, 2020, I was the Senior Community Manager for Keystone Pacific, which managed property on behalf of Harbor Cove Community Association (the ‘HOA’). In this position, I was responsible for managing the day to day operations of the HOA, which included but was not limited to, attending all general and executive session board meetings and taking and maintaining the minutes of the meetings. I also received complaints from members of the HOA, investigated the complaints, and provided analysis to the HOA’s board of directors, so that such information may be discussed in the executive sessions of the board meetings. [¶] I considered the information which I had sent to the board of directors for discussion at executive sessions to be privileged and confidential communications. I have reviewed the minutes of the HOA and it has never waived the privilege of the confidential communications. [¶] On April 22, 2020, I sent an email to the board of directors of the HOA in preparation for the April 29, 2020 Executive Session. The email contained information and internal notes pertaining to a complaint which I received from Xuan An regarding exterior painting and property modifications, which are now the subject of the current lawsuit in which the HOA is involved.” (Daugherty Decl., ¶¶ 2, 3, and 4.)

Civil Code section 5200 et seq. creates a procedure for a member of a homeowners association (HOA) to request to inspect the HOA’s records. Civil Code section 5205, subdivision (a), provides, “The association shall make available association records for the time periods and within the timeframes provided in Section 5210 for inspection and copying by a member of the association, or the member's designated representative.”

Defendant relies on Civil Code section 5215, subdivision (a)(3), states, (a) Except as provided in subdivision (b), the association may withhold or redact information from the association records if any of the following are true: . . . [¶] (3) The information is privileged under law. Examples include documents subject to attorney-client privilege or relating to litigation in which the association is or may become involved, and confidential settlement agreements.”

The language of Civil Code section 5215, subdivision (a)(3), does not reflect a legislative intent to create a new statutory privilege. Rather, it incorporates privileges that exist “under law” into the procedures for an association to withhold or redact information from its records.  Defendant has not cited any legal authority holding that Civil Code section 5215 creates a new statutory privilege applicable in civil litigation proceedings.

Here, the issue is not whether Plaintiff (Xuan An) has the right to request records from the HOA under the procedures set forth in Civil Code section 5200 et seq. The issue is whether the subject documents are privileged or otherwise protected from disclosure in this civil lawsuit. This question is determined by generally applicable law regarding evidentiary privileges.

Defendant has not shown the document is protected by attorney-client privilege. Evidence Code section 954 states in part, “Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege . . . .”

Evidence Code section 952 provides, “As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

As to the attorney work product doctrine applies. Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 911 (Citizens), provides, “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified protection: [¶] ‘(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. [¶] ‘(b) The work product of an attorney, other than a writing described in subdivision (a), 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.’ (Code Civ. Proc., § 2018.030.) [¶] Work produced by an attorney's agents and consultants, as well as the attorney's own work product, is protected by the attorney work-product doctrine. [Citation.]”

Here, the declaration from Karrie Daugherty does not show that the subject document was a communication between Defendant and its attorney.  This declaration also does not show that the subject document reflected the work product of an attorney.

As to whether the preparation of a document for the executive session of an association board meeting is privileged, Civil Code section 4935, subdivision (a), states, “(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member's request, regarding the member's payment of assessments, as specified in Section 5665.”

Defendant has not cited any legal authority holding that a document is privileged merely because it was created in preparation for an association board executive session under Civil Code section 4935.

Based on the above, the court finds that Defendant has not shown that the subject documents are privileged.  Since the documents are not privileged, Defendant also has not demonstrated that there is an overriding interest that overcomes the right of public access to the record. (Cal. Rules of Court, rule 2.550(d)(1).  Without the showing of an overriding interest, the court does not have the authority to seal the requested record.  Therefore, the court DENIES Defendant’s (Harbor Cove Community Association) Motion to Seal Inadvertently Filed Documents filed on 7-28-22 under ROA 180.

Plaintiff is to give notice.