respondent's brief.pdf

8/9/2019 Respondent's Brief.pdf

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No.: F060737

IN

THE COURT

OF

APPEAL

OF

THE

STATE

OF

CALIFORNIA

FIFTH DISTRICT COURT OF APPEAL

)

CITY OF WOODLAKE,

ET

AL. )

Case No.: F060737

)

Plaintiff/Respondent, )

)

Tulare County Superior Court

Case No.: VCU 237194

v

)

)

TULARE COUNTY GRAND JURY, )

)

Defendant/Appellant. )

Appeal from the Superior Court

of Tulare

County

Before

the

Honorable Lloyd L. Hicks,

Judge

Presiding

. RESPONDENT'S

RIEF

Thomas T. Watson ( 144457)

FIKE WATSON -

40 1 Clovis A venue, Ste. 208

Clovis, California 93612

Telephone: (559) 229-2200

Attorneys for Plaintiff/Respondent,.

CITY OF WOODLAKE

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T BLE OF CONTENTS

I

INTRODUCTION . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1

II. STATEMENT OF APPEALABILITY 2

III. STATEMENT OF THE CASE AND FACTUAL BACKGROUND - 4

IV. STANDARD OF

REVIEW

5

V. ARGUMENT . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . ... 5

A CIVIL GRAND JURY SUBPEONAS MUST COMPLY

WITH CODE OF CIVIL PROCEDURE SECTON 1985 b) .. . . . . 5

B. THE SUPERIOR COURT CORRECTLY INTERPRETED

THE LANGUAGE FROM THE

TUL RE COUNTY

CASE . . . 9

VI.

CONCLUSION . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 10

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T BLE O UTHORITIES

Page

Ahems v. Evans

1942) 42Cal.App.2d. 738, 739 . . . . . . . . .. . . . .. . . . . .. . .. . .. . .. . .. . . . . . . .. . 2

Haynie v. Superior Court

t

2001) 26 Cal.4 1061, 1068 .

.. 7

In re: Tobaco II Cases

2009) 46 Cal.4

1

298, 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.

5

M.B. v.

Superior Court

2002) 103 Cal.App.4

1

1384, 1394 .. . . .. .. . . . . .. . . .. . .. . .. .. . . .. 9, 10

People v. Mazurette

2001) 24 Cal.4

1

h

789, 792 . . . . . . . .. . . . . . . . .. .. . . . .. . .. . . .. . .. . . . . . .. .. ... 3

People v. Totari

2002) 28 Cal.4

1

879,881 3

People v. Superior Court 1973 Grand Jury)

1975)

13

Cal.3d 430, 439 .. . .. . . .. .. . . . ... .. 5

People v. Superior Court Tulare County)

2003) 107 Cal.App.4th488 2,

6 7 9

11

Pitchess

v.

Superior Court

1974) 11 Cal.3d 531, 535 .. ...

10

State

v.

Pet Food Express

2008) 165 Cal.App.4th 841, 849 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

William

v.

Superior Court

1993) 5 Cal.4th 337, 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 7

ST TUTES

Code ofCivil Procedure Section 1985 b) 1 5, 6,

8

9 10

Code of Civil Procedure Section 1987.1 5

Government Code Section 6254 f) . .. .. . . . . . . . . . . . .. .. . . . . .. .. . .. .. . .. . .. . . . .. 7

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Penal Code Section

832 7

7

Penal Code Section 888

.

6

Penal Code Section 904 6 10

Penal Code Section 925a . .. . .. .. .. . .. .. 6 10

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH DISTRICT COURT OF APPEAL

Case No.: F060737

CITY OF WOODLAKE, ET AL. )

Plaintiff/Respondent, )


Case No.: VCU 237194

V )

TULARE COUNTY GRAND JURY, )

RESPONDENT S BRIEF

Defendant/Appellant. )

I

INTRODUCTION

The City

of

Woodlake ( WOODLAKE ) contends that the Tulare County

Superior Court was correct in quashing the subpoena duces tecum requested by the

Tulare County Grand Jury (TCGJ) for failure to comply with the clear

requirements ofCCP Section 1985(b). As the Honorable Lloyd Hicks noted in

the ruling that has been appealed from:

Code

of

Civil Procedure Section

1985

prescribes the

procedure for requiring production

of

documents by

subpoena. That procedure includes that requirement of

serving with the subpoena an affidavit showing good cause

for the production. The Legislature has made no exception to

this requirement for civil grand juries, and the Court declines

to substitute its judgment for that of the Legislature, and

create an exception where the Legislature did not. (Clerk's

Transcript (CT) 91, lines 22-27).

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In this case, the Tulare County Civil Grand Jury requests unfettered access

to records of a government agency, based upon its watchdog function. This

astonishing attempt to ignore the precedents

of

this court and the Legislature

should be clearly denied.

The TCGJ was previously admonished y this court for overstepping its

proper function of reviewing administrative, judicial and municipal agencies in the

case ofPeople

v

Superior Court (Tulare County) (2003) 107 Cal.App.4th 488

(hereinafter Tulare County ). In that case, this court held that the TCGJ is

required to comply with statutes in conducting investigations of governmental

agencies. (Tulare County, supra at 496). This court should again require the

TCGJ to comply with the Code ofCivil Procedure while performing its

watchdog function.

II STATEMENT OF APPEALABILITY

TCGJ contends that the order of the Tulare County Superior Court

quashing a subpoena duces tecum is a final order that is appealable, because it is a

final determination of the rights

of

the parties in an action or proceeding.

(Appellant's Brief, page 3). However, Aherns

v

Evans (cited in Appellant's brief)

is clear that an order quashing a subpoena duces tecum is not an appealable order.

(Aherns v Evans (1942) 42 Cal.App.2d 738, 739).

The Appellants reliance on State v et Express is misplaced. In that case,

the court is making determinations regarding the grant of a motion to compel

compliance with an administrative subpoena. To restrict the appealability of such

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an order is to remove any appellate review regarding the court's coercion

o

compliance. In this case, the TCGJ had the option

to

comply or file a writ

i

it

believed that the court acted outside the scope o its authority.

t is settled that the right o appeal

is

statutory and that a

judgment or order

is

not appealable unless expressly made so

by statute. '

(People

v

Mazurette

(2001) 24 Cal.4th 789, 792

[

102

Cal.Rptr.2d 555,

14

P.3d 227].) (People v Totari

(2002)

28 Ca1 4th

876,

881

[123 Cal.Rptr.2d 76, 50 P.3d

781].)

State v Pet Food Express

(2008)

165

Cal.App.4th 841,

849 (hereinafter

State ).

In

State

and the cases cited therein, the courts determined that a grant

o

a

motion compelling compliance with an administrative subpoena was an appealable

order. However, Appellant provides no statutory or case authority to support the

grant o a motion

to

quash the subpoena

is

likewise appealable. This

is

not a final

order

as

there has been no final adjudication between the parties. The remedy to

this order was not an appeal, but rather

to

issue the subpoena in compliance with

the Tulare County Superior Court order, which provided that WOODLAKE would

have a 1987

1

remedy i it still contests the cited good cause as to any o the

requested records. (CT 93, lines 9-10). The alternative

to

providing a subpoena

duces tecum with good faith affidavit, i TCGJ believed that the Tulare County

Superior Court acted outside the scope

o

its authority, was to seek a writ from this

court, not an appeal.

n

short, there is

no

basis to make the leap

o

faith that the superior

court's order

is

a fmal determination o the rights o the parties and, therefore,

is

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appealable .. . (Appellant's brief, page 3). This court should dismiss this appeal

on the above basis.

III STATEMENT

OF

THE

CASE AND FACTUAL BACKGROUND

This case arose regarding individual subpoenas and a subpoena duces

tecum to WOODLAKE that was issued by the 2009-2010 Tulare County Grand

Jury.

As

a result

of

a citizen's complaint, an investigation into an accidental

shooting was undertaken by the TCGJ. (CT 1-2). On April 8 2010, the TCGJ

issued a subpoena duces tecum without an affidavit of good cause. (CT 29 and 73,

lines 14-15). The subpoena duces tecum commanded that the City of Woodlake

Police Department bring documents, including: certification

of

the range master

and internal investigation

of

the January 16, 2009 incident. (CT 29). In response,

WOODLAKE filed a Petition for Writ of Prohibition in the Tulare County

Superior Court. (CT 1-5). Rather than responding to the Petition for Writ, TCGJ

preemptively filed an ex parte (rather than noticed) motion for an order to show

cause for sanctions. (CT 111-128).

t

is interesting to note that the sanction

request was grounded in the provisions of the Code

of

Civil Procedure. (CT 126,

lines 8-27). The two cases were consolidated as Tulare County Superior Court

case number 10-237194. The court determined that the pleadings should be

determined as a motion to quash the subpoenas. (Reporter's Transcript, page 6).

Following briefing and oral argument on the matter, the Tulare County

·Superior Court issued a ruling on the submitted matter. In his ruling, the

Honorable Lloyd Hicks found against WOODLAKE on the individual subpoenas

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conditions as the court may deem appropriate. As a result, there are inherent

limitations on the power and authority o a civil grand jury.

A civil grand jury

is

an entity created by the Penal Code, beginning with

Section 888. The civil grand jury is limited

to

performing the following functions:

The grand jury may at any time examine the books and

records o any incorporated city or joint powers agency

located in the county. In addition

to

any other investigatory

powers granted by this chapter, the grand jury may

investigate and report upon the operations, accounts, and

records o the officers, departments, functions, and the

method or system

o

performing the duties o any such city or

joint powers agency and make such recommendations

as

it

may deem proper and fit. (Penal Code Section 925a).

The Legislature mandated that a civil grand jury, in its watchdog

function, may make recommendations in a report. This limited authority

undercuts the basis for any alleged confidentiality that would be impaired by

compliance with CCP Section 1985(b . The authority vested under in a civil grand

jury by the Penal Code

is

to observe and report. Should further action be

necessary or appropriate, the civil grand jury may refer issues to the District

Attorney o the subject county for investigation and/or prosecution.

The Legislature has set forth

no

civil grand jury exception

to

the good

faith affidavit requirement o CCP Section 1985(b . Although TCGJ contends that

the Legislature provided intent that the grand jury be given unfettered access to

examine public records, the holding in the case

o

Tulare ounty

is

clear that this

court has rejected such an argument.

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The

Tulare ounty

case dealt with a conflict between the confidentiality

of

juvenile court records and TCGJ s mistaken belief that all documents are open to

them without compliance with statutory requirements. In this case, TCGJ has

sought records

of

WOODLAKE that are confidential. A review of the subpoena

duces tecum at issue (CT 29) shows a similar conflict in this case. A request for

certification of a peace officer is a request for peace officer personnel records,

which is made confidential

by

Penal Code Section 832.7.

A request for the internal investigation

of

the shooting incident

is

a

request for investigation records

of

a police agency, which is exempt from

disclosure pursuant to Government Code Section 6254(f).

Haynie v Superior

ourt

(2001) 26

Ca1 4th

1061, 1068. The exemption from disclosure extends

indefinitely, even after closure

of

the investigation.

William v Superior ourt

(1993) 5

Cal 4th

337, 355. While those cases dealt with the Public Records Act, it

is the very basis

of

why a good faith affidavit must be required

of

a civil grand

jury investigation.

Appellant apparently relied on the Code

of

Civil Procedure to attempt to

enforce the subpoena duces tecum

n

its ex parte application for an order to show

cause re: sanctions. (CT 124-128). WOODLAKE contends that TCGJ cannot

enforce a subpoena

by

invoking the provisions

of

the Code

of

Civil Procedure,

without complying with the same requirements for the issuance thereof. To allow

the TCGJ to pick and choose which provisions

of

the Code

of

Civil Procedure it

deems expedient to comply with is to allow the watchdog

off

the leash. Having

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chosen to enforce its subpoena duces tecum with a civil penalty, it has chosen the

rules under which it should be governed, including the requirement of a good faith

affidavit.

From a public policy standpoint, a good faith affidavit would alert a

government agency as to whether exempt

or

non-exempt items were being sought

and, if necessary, allow for a challenge to the subpoena on the basis of confidential

records could be undertaken. Additionally, as in this case, the court could fashion

a remedy

y

requiring a protective order to protect the confidentiality

of

any

subpoenaed documents. (CT 93, lines 8-9). Following the procedure specified

y

the Legislature to obtain documents under a subpoena duces tecum would not

inhibit or prevent a civil grand

jury

from performing its watchdog function.

Rather, it serves to promote the public policy that maintains inviolate confidential

information and documents that the Legislature has deemed exempt from

disclosure. Such a policy also allows the government agencies to comply with the

myriad

of

laws, statutes and regulations relating

t

documents, including notice

provisions to third parties, the Legislature has imposed upon them.

Appellant contends that the confidential nature of a civil grand jury

investigation relieves them

of

the obligations to provide a good faith affidavit,

necessary under CCP Section 1985(b). However, the Tulare County Superior

Court made factual determinations that are critical in the review of this very issue.

Judge Hicks determined the following facts:

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Here, per the declarations, the jury is function in its capacity

of investigating a civil complaint. That citizen, having filed

for public record a declaration detailing the complaint, which

was promptly repeated in the press, has abrogated any chance

of confidentiality relating to the charges. (CT 90, lines 12-

15).

These factual findings undercut the basis for the alleged necessity for

confidentiality that would preclude compliance with CCP Section 1985(b). In

light

of

the above arguments, in the factual and legal context of this case,

WOODLAKE respectfully requests this court affirm the Tulare County Superior

Court.

B

THE SUPERIOR OURT ORRE TLY INTERPRETED THE

LANGUAGE FROM THE TULARE COUNTY CASE.

Appellant contends that Judge Hicks relied on dicta from the case

of Tulare

County However, there is no specific showing that the superior court relied on

the

Tulare County

case as the basis

of

the ruling. Rather, the court went to

considerable lengths to identify the differences between a civil and criminal grand

jury in the context of the case.

After reviewing the holdings

of

both the Tulare County and

MB v

Superior Court cases, Judge Hicks stated that:

The Legislature has made no exception to this requirement for

civil grand juries, and the Court declines to substitute its

judgment for that of the Legislature, and create an exception

where the Legislature did not. (CT 91, lines 25-27).

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The court was specific that it rejected the policy arguments

of

the TCGJ,

not relied

on

either case, for its determination that the Legislature had not provided

a civil grand jury exception to the requirements

ofCCP

Section 1985(b).

M.B.

v

Superior Court

does not change the outcome in this case. In

M.B.

the court held that

criminal

grand

jury

subpoenas duces tecum do not need to

comply with the requirements

ofCCP

Section 1985(b).

MB. v Superior Court

(2002)

1 3

Cal.App.4th 1384, 1394). For the policy reasons set forth at

considerable length in

MB.,

the appellate court determined that civil procedure

requirements are not applicable in criminal cases. (See also Pitchess

v

Superior

Court (1974) II Cal.3d 531, 535).

Thus,

M.B.

does not immunize

civil

grand juries from compliance with the

Code

of

Civil Procedure. The TCGJ has failed to provide any policy basis or case

authority to justify the astonishing proposition that a civil grand

jury

is exempt

from the requirements of the Code of Civil Procedure. After all, the end result of a

civil grand jury investigation is to render a report with recommendations to

improve governmental functions, not a criminal indictment (Penal Code Sections

904.6 and 925). For the reasons set forth above, WOODLAKE contends that such

an investigation resulting in a report is not hampered at all by providing an

affidavit

of

good faith, detailing the reasons for a request for documents.

VI.

ON LUSION

Once again, the TCGJ requests this court

to

allow it to be afforded

unrestricted access to the identified records with no questions asked because

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it

is

a grand jury and there is a public interest in the unfettered investigative power

o

the grand jury...

Tulare County, supra,

at 493). This court soundly rejected

that argument o the Tulare County Grand Jury in 2003 and should do the same in

2011.

The issues raised in this case are not properly before this court as the Tulare

County Grand Jury has appealed from a non-appealable order. Notwithstanding

that defect, in the factual context

o

this case, and in light

o

the legal framework,

the City o Woodlake respectfully requests that this court affirm the decision o

the Tulare County Superior Court.

Dated: January

6

2011

R e s p e c t f u J l y . _ . S ~ t e d

-·

-; - ·7

·

,/

_

/ . . .- ~

By: . /

THOMAS

T.

WATSON

FIKE WATSON

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CERTIFICATE OF RULE 8.204 c) l)COMPLIANCE

Case: City

of

Woodlake v Tulare County Grand Jury

Fifth Appellate District Case No.: F060737

Tulare County Case No.: VCU 237194

I certify pursuant to California Rule of Court 8.2 04( c)( 1 , that I used Microsoft Word s

word counting feature and Respondent s rief contains 2,600 words.

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PROOF OF SERVICE

(Code Civil Procedure,§§, 1013, subd.

a,

and 2015.5)

I declare that I am a citizen

of

the United States

of

America and a resident

of

the

County of Fresno, California. I am over the age of 18 years and not a party to this

action; my business address is 401 Clovis Ave., Ste. 208, Clovis, California 93612.

On January

7

,

2011, I caused to be served the attached RESPONDENT S

BRIEF, on each oftfi interested parties in said cause as indicated below:

X)

(BY REGULARMAIL

I caused a copy of said pleadings to be placed in a

United States mail depository with postage fully prepaid aodresses as set forth

below. I am readily familiar with

my

office s practice

of

collection and processing

correspondence for mailing. It is deposited with the U.S. Postal Serv1ce on the

same day in the ordinary course of business. I

am

aware that on motion

of

party

served, service is presumed invalid

if

postal cancellation date or postage meter

date is more than one day after the date of deposit for mailing.


1

COPY)

Hon. Lloyd Hicks

County Civic Center

221 S.

Mooney Blvd.

Visalia, California 93291

Phillip

J.

Cline 1 COPY)

Tulare County District Attorney

John F. Sliney, Deputy District Attorney

221

S.

Mooney Blvd., Room 224

Visalia, California 93921

Supreme Court ofCalifornia (4 COPIES)

350 McAllister Street

San Francisco, California 94102

I declare that I am employed in the office

of

a member of the bar

of

this court at

whose direction the service was made.

I declare under penalty

ofperjury

under the laws of the State

of

California that the

foregoing is true and correct and that this declaration was executed on January 1_ 2011,

at Clovis, California.

~

-/

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respondent's brief.pdf

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