Denari v. Superior Court

• Decision Date: 22 November 1989
• Docket Number: No. F011779,F011779
• Citation: 264 Cal.Rptr. 261,215 Cal.App.3d 1488
• Court: California Court of Appeals Court of Appeals
• Parties: Linda DENARI, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent; COUNTY OF KERN et al., Real Parties in Interest.

Page 261

264 Cal.Rptr. 261

215 Cal.App.3d 1488

Linda DENARI, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent COUNTY OF KERN et al., Real Parties in Interest.

No. F011779.

Court of Appeal, Fifth District, California.

Nov. 22, 1989.

[215 Cal.App.3d 1491] Ernest C. Chen, Santa Ana, for petitioner.

No appearance for respondent.

B.C. Barmann, County Counsel, and Holly N. Brown Gallagher, Deputy County Counsel, Bakersfield, for defendants and real parties in interest.

OPINION

ARDAIZ, Associate Justice.

In her complaint plaintiff and petitioner Linda Denari contends that while being booked into the Kern County jail on July 21, 1985, the authorities, using excessive force, broke her arm. She asserts claims for negligence, intentional tort and violation of 42 United States Code section 1983, the federal civil rights cause of action. Named defendants include the County of Kern, Rita Prunty and Does 1-100.

In a deposition taken of Commander La Fave by petitioner on September 27, 1988, it developed that at least one of the holding cells at the jail was within sight or sound of the booking area where petitioner claims she was injured. Further inquiries revealed that all arrest and booking information was fed into and stored in a computer. Commander La Fave thought retrieval of such information might be possible.

Petitioner then formally requested:

"Any and all writings, records, and other data compilations from which the following categories of information can be obtained: The names, last known addresses, and telephone numbers of any and all persons arrested and booked in the Kern County Jail during the period beginning on July 21, 1985, at 9:00 A.M., and ending on July 22, 1985, at 12:00 noon." ¹

Real parties responded, claiming an absolute privilege not to divulge the information under a series of Penal Codes sections: 11140, 13300, 13302 and 13304, and also claiming revelation of the information would violate the privacy rights of the arrestees.

Because one of her claims against real parties is based upon the federal statute--42 United States Code section 1983--petitioner contended the court could not preclude discovery based upon the state privileges. Petitioner urged the court to decide the matter under what she represents as the federal weighted balancing test, which she contended favors the right of a party who shows need to receive the material when it is balanced against the asserted right to privacy. Petitioner basically presumed inconsistent results would come from state law or state judicial construction and federal law. If such were allowed to occur, petitioner argued, the state court could, by its own individual rules and procedures, frustrate the enforcement of section 1983 in state courts. Thus, petitioner concluded, any consequence inconsistent with a federal result and, presumably, less advantageous than the federal result, is subject to preemption by the federal rule.

The transcript of the hearing indicates the court made a tentative ruling against petitioner. Arguments were heard on the tentative ruling and, subsequent to argument, the court ultimately ruled against petitioner. The court stated in part:

"They very well may be [subject to a weighing process], and I'm not locking it in concrete here. Now, I haven't been convinced by any authorities that you have cited to that effect, but let me put it to you this way. Nor have I been convinced in reading materials that has [sic ] been prepared that it is that eye witness giving information in a weighing process to say, well, I think it's important enough there is a reasonable--there is enough of a showing that this is very likely to produce percipient witnesses that I'm going to violate the privacy rights of these people that may be in that jail.

"... I will suggest this, and that is, if at the time of trial or in the course of discovery it is determined that the County has used that information to interview witnesses that were in that cell and have come up with or just used that information, regardless of whether or not they come up with witnesses, then what's good for the goose is good for the gander. And that information is going to be made available to you....

"... it certainly will prevent there being a one-sided use of information that the County has but cannot disclose under statutory prohibition. And that means as far as the Court is concerned, they can't use it either for the purposes of defending a lawsuit unless that information is made available also to the plaintiff.

"Now, this is without prejudice. If you don't in the course of discovery get more information or, as I say, information that the County has used for its preparation for trial, then I would suggest that you make a further motion or renew this motion and I certainly will consider it.

"At this time, I'm not satisfied that I can issue a blanket order saying we must provide the plaintiff with the names and addresses and phone numbers of everyone that was arrested, of everyone that may have been in that cell at that particular time, and violate their right of privacy and protection of their privacy without further showing." (Emphasis added.)

The trial court thus utilized a balancing process in denying the discovery request, determining petitioner failed to make a sufficient showing justifying the intrusion upon the purported rights of the individuals here. Petitioner then filed a petition for writ of mandate before this court on March 2, 1989. We issued an order to show cause on June 9, 1989.

Petitioner contends the discovery privileges under the Penal Code and California Constitution article I, section 1, right to privacy, are "state privileges" and such privileges cannot be invoked in a state court against a plaintiff asserting a federal cause of action for deprivation of civil rights. Petitioner argues that under a federal interpretation of the discovery request herein, she would necessarily prevail and therefore the federal rule preempts any contrary state interpretation.

We conclude the effect upon discovery of the right to privacy accorded our citizens by the California Constitution is not preempted in a state prosecution of a federal section 1983 action. The simple fact that under certain circumstances the results of such a discovery request may differ in the different forums does not compel a finding of preemption. Further, we find the other statutory privileges claimed by real parties are not supported by the record; we reject their application in the instant case.

DISCUSSION

Applicability of Penal Code Sections 11140, 13300, 13302 and 13304

Real parties claimed below the protection of certain Penal Code sections as providing an absolute privilege against discovery. They suggest here that these sections can be used herein to support the result reached by the trial court.

Penal Code section 13300 defines the material protected under its auspices as:

"(1) 'Local summary criminal history information' means the master record of information compiled by any local criminal justice agency pursuant to Chapter 2 (commencing with Section 13100) of Title 3 of Part 4 of the Penal Code pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, dates of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about such person.

"(2) 'Local summary criminal history information' does not refer to records and data compiled by criminal justice agencies other than that local agency, nor does it refer to records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the local agency."

In order for this court to conclude the material requested falls within the parameters of section 13300 and find it privileged, it is necessary for us to have access to a copy of the material to determine if it appropriately falls within the specifications of the material described in the statute.

Neither the trial court nor this court has a copy of the document or tangible thing requested by petitioner. Indeed, while real parties objected to production based upon claims of privilege, they also represented that "[d]efendant is presently doing a computer search to determine whether the information sought by plaintiff is in fact still available." If the requested material cannot be produced in fact, both the request for the information and this writ petition are moot.

However, it is the burden of the objecting party to support the applicability of a particular privilege. (Code Civ.Proc., § 2031, subd. (f)(3); see State of California ex rel. Department of Transportation v. Superior Court (1980) 102 Cal.App.3d 25, 31, 162 Cal.Rptr. 78, disapproved on another point in Davies v. Superior Court (1984) 36 Cal.3d 291, 301, 204 Cal.Rptr. 154, 682 P.2d 349.) Neither the trial court nor this court can determine whether the requested material conforms to that which is privileged under Penal Code section 13300 et seq. Nothing in petitioner's description of her request to compel production necessarily requires that the document be one described in Penal Code section 13300 or that the document is in fact one within section 13300. We conclude real parties have failed to demonstrate the applicability of section 13300 et seq. to the requested information. We, therefore, do not feel called upon to consider the effects of Penal Code section 13300 on the petition before us. ²

Federal Preemption in Section 1983 Actions

Petitioner maintains that because one of her claims against defendants is under the federal civil rights statute, 42 United States Code section 1983, real parties' assertion of privilege under state law is inapplicable. Petitioner depends upon two Ninth Circuit federal cases wherein the federal courts hearing section 1983 claims and sitting in California were found properly to have refused to limit discovery based upon...