1

Filed 3/17/16

IN THE SUPREME COURT OF CALIFORNIA

ESTUARDO ARDON, )

)

Plaintiff and Respondent, )

) S223876

v. )

) Ct.App. 2/6 B252476

CITY OF LOS ANGELES, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. BC363959

____________________________________)

In civil discovery proceedings during the course of litigation between 

plaintiff Estuardo Ardon and defendant City of Los Angeles (City), the trial court 

determined that certain documents City possessed were privileged under the

attorney-client privilege or the privilege for attorney work product, and City 

withheld them from plaintiff. Years later, plaintiff filed a request under the

California Public Records Act (Gov. Code, § 6250 et seq.; Public Records Act)

seeking to obtain documents relating to the subject matter of the litigation. In 

response, City‟s administrative office inadvertently provided plaintiff with some 

of the privileged documents. We granted review to decide whether the release of 

privileged documents under these circumstances waives the privilege, thus 

allowing plaintiff to retain and use the documents and to disseminate them to 

others. The question requires us to interpret Government Code section 6254.5 

(section 6254.5), part of the Public Records Act, which generally provides that 

“disclosure” of a public record waives any privilege.
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Interpreting section 6254.5 in light of the Public Records Act as a whole, 

we conclude that its waiver provision applies to an intentional, not an inadvertent, 

disclosure. A governmental entity‟s inadvertent release of privileged documents

under the Public Records Act does not waive the privilege. Accordingly, we 

reverse the judgment of the Court of Appeal, which reached a contrary conclusion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is the second time this case has come before this court. (See Ardon v. 

City of Los Angeles (2011) 52 Cal.4th 241.) As we explained in our earlier 

opinion, plaintiff filed a class action lawsuit against defendant City challenging the 

validity of a certain tax and seeking a refund of taxes already collected.

In March and September 2007, as part of the underlying litigation, plaintiff

served City with two requests for production of documents relating to the tax in 

dispute. It also served a subpoena for production of business records on the 

League of California Cities, of which City is a member. City produced some of 

the requested documents but, in February 2008, it also provided plaintiff with 

“Defendant City of Los Angeles‟ Privilege Log” (privilege log), listing 27 

documents it was withholding on the basis that they were privileged. In March 

2008, the superior court granted motions to quash filed by City and the League of 

California Cities, finding certain documents to be privileged under either the 

attorney-client privilege or the privilege for attorney work product.

On January 14, 2013, Rachele R. Rickert, one of plaintiff‟s attorneys, 

acting pursuant to the Public Records Act, requested the “City Administrative 

Officer” to provide copies of documents relating to the tax at issue. On January 

25, 2013, an assistant city administrative officer responded that “[w]e have 

approximately 53 documents that pertain to your request,” which they would 

provide at a cost of $6.95. Plaintiff paid the fee, and the city administrative office 

provided the documents.
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In April 2013, Attorney Rickert informed opposing counsel in this case by 

letter that, pursuant to the Public Records Act request, she had received two 

documents that appeared to match the description of two of the documents listed 

in the privilege log, specifically: (1) a memorandum dated June 1, 2006, from 

City‟s administrative officer to the city attorney (it appears plaintiff received an 

undated version of the document); and (2) a memorandum dated June 27, 2006, 

from the legal department of the League of California Cities. The letter also stated 

that Rickert had “obtained a copy of a document responsive to what appears to be

documents 3 and 21 [as listed in the privilege log], and which discloses their 

contents.” In fact, this third item appears related to a single document listed twice 

in the privilege log. Items 3 and 21 in the privilege log describe a letter “prepared 

by legal counsel” dated September 18, 2006, from David Michaelson, the chief 

assistant of the city attorney, to William Fujioka, city administrative officer. 

Attorney Rickert states that she did not receive the actual letter from Michaelson 

to Fujioka, but only a document that discloses its contents.

In a letter responding to Rickert‟s letter, City stated that the three 

documents she specified were privileged and had been produced inadvertently. It 

requested that Rickert return them and agree not to rely on them. Rickert refused 

to return the documents, contending that their production had waived any claim of 

privilege.

City then filed a motion in the superior court for an “order compelling the 

return of privileged material and to disqualify plaintiff‟s counsel of record.” The 

trial court denied the motion, concluding that the production of the documents 

under the Public Records Act had waived any privilege. City appealed. (Code 

Civ. Proc., § 904.1, subd. (a)(6); see Meehan v. Hopps (1955) 45 Cal.2d 213.) The 

Court of Appeal affirmed. It agreed with the trial court that the production of the 

documents waived any privilege. It held that “because the documents were 
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disclosed to Ms. Rickert, City is precluded from denying disclosure to anyone who 

asks.”

We granted City‟s petition for review.

After City filed its opening brief on the merits, plaintiff informed us, for the 

first time, that the underlying lawsuit was, and long had been, in the process of 

settlement. He moved to stay this appeal pending finalization of the settlement. 

We denied the motion. Settling the underlying lawsuit would not make this 

separate dispute moot. Plaintiff would still possess the privileged documents and 

could use them for any purpose. City would still be precluded from denying 

disclosure of them to anyone who asks. Moreover, the legal issue remains one of 

statewide importance. Accordingly, we will decide this dispute on the merits.

II. DISCUSSION

“The California Legislature in 1968, recognizing that „access to information 

concerning the conduct of the people‟s business is a fundamental and necessary 

right of every person in this state‟ (Gov. Code, § 6250), enacted the California 

Public Records Act, which grants access to public records held by state and local 

agencies (Gov. Code, § 6253, subd. (a)). The act broadly defines „ “[p]ublic 

records” ‟ as including „any writing containing information relating to the conduct 

of the public‟s business prepared, owned, used, or retained by any state or local 

agency . . . .‟ (Gov. Code, § 6252, subd. (e).) The act has certain exemptions 

(Gov. Code, §§ 6254-6254.30), but a public entity claiming an exemption must 

show that the requested information falls within the exemption (id., § 6255, subd. 

(a)).” (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 

59, 66-67.)

The exemptions are numerous and generally involve documents that for one 

reason or another should remain confidential. Relevant here is Government Code 

section 6254, subdivision (k), which exempts from disclosure “[r]ecords, the 
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disclosure of which is exempted or prohibited pursuant to federal or state law, 

including, but not limited to, provisions of the Evidence Code related to 

privilege.” City contends the documents at issue here come within either of two 

statutory privileges: (1) the attorney-client privilege (Evid. Code, § 954) and (2) 

the attorney work product privilege (Code Civ. Proc., § 2018.030).

Plaintiff counters that City has waived the privileges by disclosing the 

documents in response to the Public Records Act request. He relies on section 

6254.5, which provides that “[n]otwithstanding any other provisions of law, 

whenever a state or local agency discloses a public record which is otherwise 

exempt from this chapter [the Public Records Act], to any member of the public, 

this disclosure shall constitute a waiver of the exemptions specified in Sections 

6254, 6254.7, or other similar provisions of law.” This section provides a number 

of exceptions to this waiver rule, none of which apply here and none of which 

refer to an inadvertent disclosure. Plaintiff argues that any disclosure, including 

an inadvertent one, waives the privilege. As we explain, we find the statutory 

language as a whole ambiguous in this regard, and we resolve the ambiguity by 

concluding that inadvertent disclosure does not waive the exemptions.

We construe statutory language in the context of the statutory framework, 

seeking to discern the statute‟s underlying purpose and to harmonize its different 

components. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165.) 

Government Code section 6254 exempts a long list of documents from its 

disclosure requirements. Many of these exemptions concern information provided 

to the government by third parties and reflect the reality that, in order to perform 

their many functions, governmental agencies must gather much information, some 

of which the parties providing the information wish to be kept confidential. This 

is true, for example, of “[g]eological and geophysical data . . . or market or crop 

reports, that are obtained in confidence from any person” (§ 6254, subd. (e)); 
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“[l]ibrary circulation records” (id., subd. (j)); “[s]tatements of personal worth or 

personal financial data required by a licensing agency and filed by an applicant 

with the licensing agency to establish his or her personal qualification for the 

license, certificate, or permit applied for” (id., subd. (n)); and “[r]ecords of Native 

American graves, cemeteries, and sacred places” (id., subd. (r)). Other 

exemptions are designed to safeguard governmental interests concerning national 

security. (See, e.g., Gov. Code, § 6254, subd. (aa) [documents assessing 

vulnerability of agency to terrorist attack]; id., subd. (u)(1) [information indicating 

when or where a concealed-firearm licensee is vulnerable to attack].) 

Thus, considering as a whole the many exemptions for confidential 

information specified in Government Code section 6254, it is doubtful the 

Legislature intended to enact a statutory scheme that would prevent government 

agencies from minimizing the damage caused by the inadvertent disclosure of 

private and confidential information. Nor is it likely the Legislature intended to 

adopt a rule that inadvertent disclosure requires confidential information to be 

made generally available to the public. Much more plausible is that the 

Legislature intended to permit state agencies to waive the exemptions by making a 

voluntary and knowing disclosure, while prohibiting them from selectively 

disclosing the records to one member of the public but not others.

Consideration of section 6254.5 itself as a whole confirms this 

interpretation. Section 6254.5 refers to the effect of a disclosure “to any member 

of the public,” and its subdivisions identify various circumstances in which a 

public agency may choose to disclose documents to some smaller audience than 

the public as a whole. For example, a public agency is permitted to selectively 

disclose information without waiving an exemption if the disclosure is “[m]ade 

through other legal proceedings” (§ 6254.5, subd. (b)), or “[m]ade to any 

governmental agency which agrees to treat the disclosed material as confidential”
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(id., subd. (e)), or if the disclosure is of “records relating to a financial institution 

or an affiliate thereof” and “made to the financial institution or affiliate by a state 

agency responsible for the regulation or supervision of the financial institution or 

affiliate” (id., subd. (f)). Several of section 6254.5‟s exceptions evince a particular 

concern with the third-party confidentiality interests at stake. Subdivision (a), for 

example, exempts disclosures “[m]ade pursuant to the Information Practices Act,” 

which sets out fairly strict requirements for disclosure of personal information 

maintained by public agencies. (See Civ. Code, § 1798.24 [“An agency shall not 

disclose any personal information in a manner that would link the information 

disclosed to the individual to whom it pertains unless the information is disclosed, 

as follows: . . . .”].) And subdivisions (g) and (i) refer to disclosures of certain 

records to the person “that is the subject of the records for the purpose of 

corrective action by that person.” Nothing in these provisions suggests that the 

Legislature contemplated the effect of an inadvertent disclosure. Rather, read 

together, the provisions appear to address the authority of public agencies with 

respect to releasing exempt documents. Given the Legislature‟s apparent concern 

with protecting confidentiality interests, it would be at least somewhat surprising 

to discover that the Legislature fashioned these provisions as exceptions from a 

general background rule that mandates the forfeiture of such confidentiality based 

on nothing more than an agency‟s mistaken disclosure of information to a member 

of the public — particularly to a person who has made no “agree[ment] to treat the 

disclosed material as confidential.” (Gov. Code, § 6254.5, subd. (e).) 

Plaintiff argues that none of the exceptions to the waiver rule in section 

6254.5 govern inadvertent disclosure and that, because the Legislature provided 

several express exceptions, we should not find an implied exception for 

inadvertent disclosure. But this begs the question of how the statutory language 

should be interpreted in the first place. The exceptions in section 6254.5, read as a 
8

whole, appear to contemplate intentional disclosure. The fact the Legislature 

provided exceptions to the waiver rule for certain intentional disclosures does not 

mean that disclosure under section 6254.5 includes the inadvertent release of 

privileged documents.

Thus, even if the word “disclosure” by itself is unambiguous, considering 

section 6254.5 in its larger context, we conclude that its language permits more 

than one interpretation with respect to inadvertent disclosure. In that event, we 

“may consider other aids, such as the statute‟s purpose, legislative history, and 

public policy.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles

(2004) 34 Cal.4th 733, 737.)

The legislative history confirms that section 6254.5 does not contemplate

inadvertent disclosures. As one Court of Appeal recently summarized: “The bill 

creating section 6254.5, Senate Bill No. 879 (1981-1982 Reg. Sess.), was enacted 

in 1981. (Stats. 1981, ch. 968, § 3, p. 3682.) Although section 6254.5 has been 

amended several times since, the language critical here was present in the statute 

from the first. Repeatedly in contempora[neous] legislative documents concerning 

Senate Bill No. 879, it was stated that the portion of the bill containing section 

6254.5 was intended to codify existing case law. An enrolled bill report prepared 

by the California‟s former Department of Corporations explains: „Proponents of 

this bill indicate that [proposed section 6254.5] is merely a codification of the 

views of the Court of Appeal in Black Panther Party v. Kehoe (1974) 42 

Cal.App.3d 645 regarding “selective disclosures” by state agencies of 

“confidential information.” ‟ (Dept. of Corporations, Enrolled Bill Rep. on Sen. 

Bill No. 879 (1981-1982 Reg. Sess.) Sept. 28, 1981, p. 1.)” (Newark Unified 

School Dist. v. Superior Court (July 31, 2015, A142963) __ Cal.App.4th __, __, 

[pp. 11-12]), review granted Oct. 14, 2015, S229112, ordered pub. Mar. 17, 2016 
9

(Newark).) The Newark court cited other legislative history materials to similar 

effect. (Id. at p. __ [pp. 12-13].)

In Black Panther Party v. Kehoe, supra, 42 Cal.App.3d 645 (Kehoe), the 

plaintiffs filed Public Records Act requests with the state agency in charge of 

licensing debt collection businesses, seeking copies of citizen complaints 

regarding those businesses. The agency contended the complaints came within an 

exemption for records of complaints and investigations under Government Code 

section 6254, subdivision (f). The Court of Appeal agreed. But the court 

nonetheless ordered the documents disclosed because the agency routinely 

disclosed the complaints to the businesses themselves. It explained that the 

exemption provisions make the records either “completely public or completely 

confidential. The Public Records Act denies public officials any power to pick 

and choose the recipients of disclosure. When defendants elect to supply copies of 

complaints to collection agencies, the complaints become public records available 

for public inspection.” (Kehoe, supra, at pp. 656-657, fn. omitted.)

Plaintiff agrees the legislative purpose behind section 6254.5 was to codify 

the holding of Kehoe, supra, 42 Cal.App.3d 645. But he argues, and the Court of 

Appeal in this case agreed, that this purpose supports the conclusion that the 

disclosure here did constitute a waiver. The Court of Appeal believed that finding 

no waiver would be “inconsistent with the legislative history of section 6254.5. 

City pointed out that statements by legislators and in a legislative staff report 

declare the purpose of the waiver was to avoid „selective disclosure.‟ The 

exception sought by City would accomplish exactly that; viz., selective disclosure 

of the allegedly privileged documents to Ms. Rickert but not to others.” However, 

City does not seek selective disclosure. Rather, it seeks no disclosure; it is trying 

to force plaintiff‟s attorney to return the privileged documents unread. As the 

Newark court explained in rejecting a similar argument, characterizing the 
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“inadvertent disclosure as „selective‟ merely because it is made to a particular 

group of recipients, rather than to the public as a whole . . . misunderstands the 

meaning of „selective‟ as used in Kehoe. When a release is inadvertent, no 

„selection‟ occurs because the agency has not exercised choice in making the 

release. It was an accident. Accordingly, an inadvertent release does not involve 

an attempt to assert the exemption as to some, but not all, members of the public, 

the problem section 6254.5 was intended to address.” (Newark, supra, __ 

Cal.App.4th at p. __ [pp. 13-14].)

We further note that construing section 6254.5 so as not to include 

inadvertent disclosures of attorney-client or work product material is consistent 

with the way in which the attorney-client and work product privileges have been 

construed. Both privileges serve important purposes. The former safeguards “the 

confidential relationship between clients and their attorneys so as to promote full 

and open discussion of the facts and tactics surrounding individual legal matters.” 

(Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.) The latter enables “a 

lawyer [to] work with a certain degree of privacy, free from unnecessary intrusion 

by opposing parties and their counsel.” (Hickman v. Taylor (1947) 329 U.S. 495, 

510-511.) These privileges apply to governmental entities as well as to private 

parties. “A city council needs freedom to confer with its lawyers confidentially in 

order to obtain adequate advice, just as does a private citizen who seeks legal 

counsel, even though the scope of confidential meetings is limited by this state‟s 

public meeting requirements. [Citations.] The public interest is served by the 

privilege because it permits local government agencies to seek advice that may 

prevent the agency from becoming embroiled in litigation, and it may permit the 

agency to avoid unnecessary controversy with various members of the public.” 

(Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 380-381.)
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Important as these privileges are, however, they can be waived. Evidence 

Code section 912, subdivision (a), generally provides that the attorney-client 

privilege “is waived with respect to a communication protected by the privilege if 

any holder of the privilege, without coercion, has disclosed a significant part of the 

communication or has consented to disclosure made by anyone.” 

Case law has construed Evidence Code section 912 restrictively. In State 

Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 (State Fund), the 

plaintiff‟s attorney provided the defendant‟s attorney with three boxes of 

documents during discovery. Inadvertently, however, the plaintiff‟s attorney also 

provided numerous documents that were privileged under the attorney-client 

privilege. When the mistake was discovered, the defense attorney refused to 

return the documents, contending that their production had waived the privilege. 

“Based on the language of Evidence Code section 912,” the appellate court held 

“that „waiver‟ does not include accidental, inadvertent disclosure of privileged 

information by the attorney.” (State Fund, at p. 654.) It quoted with approval 

from another case that had found no waiver of the attorney-client privilege in 

similar circumstances. “ „[Plaintiff] invites us to adopt a “gotcha” theory of 

waiver, in which an underling‟s slip-up in a document production becomes the 

equivalent of actual consent. We decline. The substance of an inadvertent 

disclosure under such circumstances demonstrates that there was no voluntary 

release.‟ ” (Ibid., quoting O’Mary v. Mitsubishi Electronics America, Inc. (1997) 

59 Cal.App.4th 563, 577.)

The court summarized the ethical obligations of an attorney who receives

privileged documents due to inadvertence. “When a lawyer who receives 

materials that obviously appear to be subject to an attorney-client privilege or 

otherwise clearly appear to be confidential and privileged and where it is 

reasonably apparent that the materials were provided or made available through 
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inadvertence, the lawyer receiving such materials should refrain from examining 

the materials any more than is essential to ascertain if the materials are privileged, 

and shall immediately notify the sender that he or she possesses material that 

appears to be privileged. The parties may then proceed to resolve the situation by 

agreement or may resort to the court for guidance with the benefit of protective 

orders and other judicial intervention as may be justified.” (State Fund, supra, 70 

Cal.App.4th at pp. 656-657.)

State Fund explained that its conclusion “is fundamentally based on the 

importance which the attorney-client privilege holds in the jurisprudence of this 

state. Without it, full disclosure by clients to their counsel would not occur, with 

the result that the ends of justice would not be properly served. We believe a 

client should not enter the attorney-client relationship fearful that an inadvertent 

error by its counsel could result in the waiver of privileged information or the 

retention of the privileged information by an adversary who might abuse and 

disseminate the information with impunity.” (State Fund, supra, 70 Cal.App.4th 

at p. 657.)

Although not citing Evidence Code section 912, this court embraced the 

State Fund holding in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807

(Rico). In Rico, an attorney received through inadvertence documents subject to 

the attorney work product privilege. We held that the “State Fund rule is a fair 

and reasonable approach.” (Id. at p. 817.) We rejected the argument that the State 

Fund rule applies only to documents protected by the attorney-client privilege and 

does not extend to documents protected by the attorney work product privilege. 

We agreed with the Court of Appeal in the case that the “ „State Fund standard

applies to documents that are plainly privileged and confidential, regardless of 

whether they are privileged under the attorney-client privilege, the work product 
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privilege, or any other similar doctrine that would preclude discovery based on the 

confidential nature of the document.‟ ” (Rico, at pp. 817-818, fn. 9.)

One reason we embraced the State Fund rule was the practical 

consequences of adopting a contrary position. “The State Fund rule also addresses 

the practical problem of inadvertent disclosure in the context of today‟s reality that 

document production may involve massive numbers of documents. A contrary 

holding could severely disrupt the discovery process. As amicus curiae the 

Product Liability Advisory Council, Inc., argues, „Even apart from the inadvertent 

disclosure problem, the party responding to a request for mass production must 

engage in a laborious, time consuming process. If the document producer is 

confronted with the additional prospect that any privileged documents 

inadvertently produced will become fair game for the opposition, the minute 

screening and re-screening that inevitably would follow not only would add 

enormously to that burden but would slow the pace of discovery to a degree 

sharply at odds with the general goal of expediting litigation.‟ ” (Rico, supra, 42 

Cal.4th at p. 818.)

To be sure, the holding in State Fund was limited to the situation in which 

the attorney, rather than the client as the holder of the privilege, inadvertently 

discloses privileged material. But in repudiating the “ „ “gotcha” theory of waiver, 

in which an underling‟s slip-up in a document production becomes the equivalent 

of actual consent‟ ” (State Fund, supra, 70 Cal.App.4th at p. 654), the court 

recognized that the disclosure contemplated in Evidence Code section 912 

involves some measure of choice and deliberation on the part of the privilege 

holder. A construction of Government Code section 6254.5 that does not require 

waiver of an exemption due to inadvertent disclosure would place that statute in 

alignment with the law governing the waiver of evidentiary privileges.
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Indeed, in light of the fact that human error is as likely to occur in the 

process of responding to a Public Records Act request as to a discovery request, 

there appears to be no reason why inadvertent disclosures should be treated 

differently in the former situation than in the latter. As part of our discussion in 

Rico concerning the practical consequences of a holding that inadvertent release of 

documents would waive any privilege, we quoted an amicus curiae brief regarding 

the practicalities of responding to Public Records Act requests. (Rico, supra, 42 

Cal.4th at p. 818.) In urging review here, the San Francisco city attorney‟s office, 

representing amici curiae the League of California Cities and the California State 

Association of Counties, made a similar argument: “With nearly 500 cities and 58 

counties in California — not to mention other types of public entities — the 

impact of the Court of Appeal‟s decision, if allowed to stand, will be great. 

Though precise quantitative figures are unavailable, [amici curiae] can in good 

faith represent that each year public entities in this state collectively receive 

thousands upon thousands of public records requests. And the number of requests 

seems to be increasing each year . . . . Further, the volume of records covered by 

even one public records request can be staggering [citing one request involving 

65,000 pages of documents]. . . . [¶] Public entities recognize that they must 

function under these pressures, and they can always strive to do better — albeit 

with finite resources — in avoiding erroneous disclosures of privileged records. 

But the logistical problems public entities can face in reviewing, in some cases, 

even thousands of pages of records responsive to a public records request . . . is 

daunting. It would be foolish to believe that human errors in the processing of 

public records requests will cease . . . .”

We thus see no reason to construe Government Code section 6254.5 

differently than Evidence Code section 912 in this regard, and good reason not to 

do so. We conclude that, in enacting section 6254.5, the Legislature intended to 
15

permit state and local agencies to waive an exemption by making a voluntary and 

knowing disclosure, while prohibiting them from selectively disclosing the records 

to one member of the public but not others. But, considering the language of 

section 6254.5 in its proper context, we conclude that it does not apply to 

inadvertent disclosures.

Plaintiff argues, and the Court of Appeal stressed, that his attorney acted 

properly in requesting documents under the Public Records Act. This may be so, 

but it is irrelevant. The question is not whether counsel should have used the 

Public Records Act in this way; the question is what she should have done after 

receiving what appeared to be privileged documents.

The Court of Appeal also noted that when privileged documents are 

inadvertently released as part of discovery during litigation, the court assigned the 

case is available to supervise any dispute; but, under the Public Records Act, a 

judicial forum might not be as readily available. This is correct. Indeed, if the 

inadvertent disclosure under the Public Records Act is made to a nonlawyer, the 

public agency might never become aware of the mistake. But the fact that a 

proper remedy might be difficult to obtain for an inadvertent disclosure under the 

Public Records Act provides no reason to deny a remedy when a judicial forum 

does exist. Here, City moved in the trial court assigned the underlying case for 

relief. Doing so was proper.

Both plaintiff and the Court of Appeal cite Masonite Corp. v. County of 

Mendocino Air Quality Management Dist. (1996) 42 Cal.App.4th 436, a case 

involving trade secrets. But Masonite is irrelevant here. In that case, a 

corporation filed with a public agency documents that disclosed trade secrets. It 

later tried to prevent disclosure of the documents under the Public Records Act. 

As the Newark court explained, “Interpreting provisions of the Health and Safety 

Code applicable to the specific documents at issue, the [Masonite] court held that 
16

they became public records when filed, thereby waiving any trade secret claim. 

(Masonite, at pp. 453-454.) In addition, the Masonite court noted, its decision was 

„reinforced‟ by the provisions of section 6254.5, which hold that a disclosure of 

otherwise protected documents by a public employee acting within the proper 

scope of his or her duties creates a waiver. (Masonite, at pp. 454-455.) Because 

this comment assumed an intentional rather than inadvertent release of documents 

by the public agency, its ruling has no bearing on, and plainly did not purport to

address, the consequences of an inadvertent release.” (Newark, supra, __

Cal.App.4th at p. __ [p. 22]; see Wallis v. PHL Associates, Inc. (2008) 168 

Cal.App.4th 882, 889 [“Inadvertent disclosure of a trade secret is unlike 

inadvertent disclosure of information subject to the attorney-client privilege, 

which requires counsel who receives the inadvertent disclosure to protect the 

privileged information.”].)

Plaintiff argues that section 6254.5 must be broadly construed to protect the 

people‟s right of access to information. He cites the California Constitution, 

article I, section 3, subdivision (b)(2), which provides that a statute “shall be 

broadly construed if it furthers the people‟s right of access, and narrowly 

construed if it limits the right of access.” To the extent legislative intent is 

ambiguous, this provision requires us either to broadly or to narrowly construe the 

Public Records Act, whichever way will further the people‟s right of access. 

(Sierra Club v. Superior Court, supra, 57 Cal.4th at p. 166.) But this rule of 

construction does not require the courts to resolve every conceivable textual 

ambiguity in favor of greater access, no matter how implausible that result in light 

of all the relevant indicia of statutory meaning. In this case, consideration of the 

statutory text, context, purpose, and history leave us with no genuine doubt but 

that the Legislature did not intend for the Public Records Act‟s protections to be 

forfeited through simple inadvertence. Consideration of article I, section 3‟s rule 
17

of narrow construction does not alter our conclusion about the meaning of section 

6254.5.

Our holding that the inadvertent release of exempt documents does not 

waive the exemption under the Public Records Act must not be construed as an 

invitation for agencies to recast, at their option, any past disclosures as inadvertent 

so that a privilege can be reasserted subsequently. This holding applies to truly 

inadvertent disclosures and must not be abused to permit the type of selective 

disclosure section 6254.5 prohibits. The agency‟s own characterization of its 

intent is not dispositive, just as it is not dispositive under the law of privilege. 

(See State Fund, supra, 70 Cal.App.4th at pp. 652-653 [“A trial court called upon 

to determine whether inadvertent disclosure of privileged information constitutes 

waiver of the privilege must examine both the subjective intent of the holder of the 

privilege and the relevant surrounding circumstances for any manifestation of the 

holder‟s consent to disclose the information.”])

Along these lines, plaintiff argues that, even if inadvertent disclosure does 

not waive the privileges, the disclosure here was not inadvertent. He also argues 

that one of the documents in question either is not privileged or the privilege has 

been waived for different reasons. On this record — given that City successfully 

fought to withhold the documents during discovery and promptly moved for their 

return after learning of their release — it is hard to imagine that City would not be 

able to demonstrate that the disclosure was inadvertent. (Cf. State Fund, supra, 70 

Cal.App.4th at p. 653 [considering evidence of the subjective intent of the holder 

of the privilege, precautions taken to ensure that the privilege was maintained, and 

the promptness with which the privilege holder sought return of the documents].) 

But the superior court made no findings beyond holding that inadvertent 

disclosure waives the privileges. If plaintiff wishes to pursue these points on 

remand, he may do so.
18

In addition to seeking the return of the privileged documents, City moved 

in the superior court to disqualify plaintiff‟s attorney. (See generally Rico, supra, 

42 Cal.4th at pp. 819-820.) It is not clear whether City still seeks that remedy. In 

any event, given the absence of any relevant trial court findings, we have no basis 

on this record to decide the question. If City wishes to pursue the point on 

remand, it may do so.

III. CONCLUSION

We reverse the judgment of the Court of Appeal and remand the matter to 

that court for further proceedings consistent with this opinion.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Ardon v. City of Los Angeles

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 232 Cal.App.4th 175

Rehearing Granted

__________________________________________________________________________________

Opinion No. S223876

Date Filed: March 17, 2016

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Lee Smalley Edmon

__________________________________________________________________________________

Counsel:

Noreen S. Vincent and Beverly A. Cook, Assistant City Attorneys; Colantuono, Highsmith & Whatley, 

Michael G. Colantuono, Holly O. Whatley, Amy C. Sparrow and Tiana J. Murillo for Defendant and 

Appellant.

Edward J. McIntyre and Leah S. Strickland for San Diego County Bar Association as Amici Curiae on 

behalf of Defendant and Appellant.

Dennis J. Herrera, City Attorney (San Francisco), Christine Van Aken, Chief of Appellate Litigation, Paul 

Zarefsky and Warren Metlitzky, Deputy City Attorneys, for League of California Cities and California 

State Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

Lewis Brisbois Bisgaard & Smith, Kira L. Klatchko; Best Best & Krieger and Irene S. Zurko for 

International Municipal Lawyers Association as Amici Curiae on behalf of Defendant and Appellant.

Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert, Marisa C. Livesay; 

Chimicles & Tikellis, Timothy N. Mathews; Cuneo Gilbert & Laduca, Sandra W. Cuneo; Tostrud Law 

Group and Jon A. Tostrud for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Holly O. Whatley

Colantuono, Highsmith & Whatley

300 S. Grand Avenue, Suite 2700

Los Angeles, CA 90071-3137

(213) 542-5700

Francis M. Gregorek

Wolf Haldenstein Adler Freeman & Herz

Symphony Towers

750 B Street, Suite 2770

San Diego, CA 92101

(619) 239-4599