Filed 12/10/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ESTUARDO ARDON ,
Plaintiff and Res p ondent
,

v.

C ITY OF LOS ANGELES ,
Defendant and Appellant

. 2d Civil No. B 2 52476 (Super. Ct. No. BC 363959 ) ( Los Angeles County)

The City of Los Angeles (City) appeals the trial court ' s order denying its
motion to compel Estuardo Ardon to return privileged documents it turned over to his counsel pursuant to a Public Records Ac t (PRA) request and to disqualify his counsel

. Ardon contends that by producing the document s, the City waived statutory privilege s that would have permitted it to refuse the request. He also contends that refusing to accede to the City ' s demands is not a basis for disqualification. We affirm.

BACKGROUND AND PROCEDURAL HISTORY Judge Edmon ' s ruling denying the City ' s motion s includes the following

summar y of the nature of this class action: " Ardon [claims] that [the] City of Los Angeles improperly colle cted a Telephone Users Tax ( ' TUT ' ). According to [Ardon,] the City's TUT excluded from taxation all services not subject to taxation under a similar Federal Excise Tax ( ' FET ' ). In 2006, after several federal courts had held that the FET only appl ied to [ charges for] long distance service [that were based upon both the]2

duration

. . . and the distance of the call, the IRS ceased collecting the excise tax on long distance calls [that were] billed only [on] the duration of the call. [Ardon] contend [ s ] that the TUT was tied to the scope of the federal tax and that the City did not have legal authority to collect taxes on long distance telephone service charged solely by the
minute [.] In 2007, the City [amended] the TUT eliminating [t he t ies] in the TUT to th e FET. Ardon contends that the 2007 amendment was illegal because it [expand ed ] an excise tax that require d approval by a majority of voters. "

The dispute that produced this appeal arises from a PRA request by Ardon ' s counsel in January 2013 for document s pertaining to the subject matter of the complaint.
T he Office of the City Administrator responded to the request, statin g that the City had
identified " approximately 53 document s that pertained to the request " and said the City would provide those docum ents at a cost of $6.95. Ardon ' s counsel paid the fee and
received the documents from the City i n February 2013.

Judge Edmon ' s ruling notes that " In a letter dated April 3, 2013, [Ardon ' s counsel] informed the City that [she] had obtained through her [PR A] request copies of two documents that appeared to be listed in [a] 2008 privilege log. [Ardon ' s counsel] further informed the City that she had obtained a third document that appeared to have been prepared in response to two other documents listed in th e privilege log and which
disclosed the contents of those two other documents. The City responded by asserting that the documents had been inadvertently produced in response to the [PRA] request and
demanded that [Ardon 's ] counsel return the documents to the City and agree not to rely upon those documents in any way. [Ardon's] counsel declined to do so, contending that the City had waived any claim of privilege. "

The City moved to compel the return of the three documents claimed to be privileged and to d isqualify Ardon's counsel. F ollowing supplemental briefing and a hearing, the trial court denied the City ' s motion conclud ing that the City ' s production of the documents in response to Ardon ' s counsel's PRA request waived any privilege that previously att ached to the records whether or not the document production was the product of mistake, inadvertence or excusable neglect

.3 DISCUSSION
Government Code section 6254.5 1 provides that " whenever a state or local agency discloses a public record which is otherw ise exempt from this chapter, to any
member of the public, this disclosure shall constitute a waiver of the exemptions specified in [s] ections 6254, 6254.7, or other similar provisions of law." S ection 6254, subdivision (k) is such an exemption. It provi des that r ecords need not be disclosed if they are the subject of a pr ivilege created by t he Evidence Code . Thus, unless some other provision of law saves it, the act of publically disclosing a document subject to a statutory privilege waives the privileg e and makes the document a public record accessible to

any one

. The City contends that exception s not found in the PRA must be judicially
attached to section 6254.5 ; viz., 1) that statutory privileges are not waived if a protected
document is " inadvertentl y disclosed ; " and 2) that it must appear the clerk who produces
the document was specifically authorized by the holder of the priv ilege to waive it. W e disagree. Standard of Review

The proper interpretation of section 6254.5 is a question of law, which w e conduct de novo. ( Stone v. Davis (2007) 148 Cal.App.4th 595, 600 ; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) .) "'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature 's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employ ed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.] If, however, 'the statutory language may reasonab ly be given more than one interpretation, "'"courts may consider various extrinsic aids,

1 All statutory references are to the Government Code unless stated otherwise.4

including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. "'" ' [Citati on.]" ( People
v. Cornett (2012) 53 Cal.4th 1261, 1265.)
Inadvertent Disclosure The City contends PRA requests are akin to discovery requests in litigated disputes. It argues that an " inadvertent production " of privileged material should be
treated simil arly in both forums. The City claims that if documents or things can be recalled by the party producing them in a litigated dispute, then a governmental agency

must be permitted to erase the statutory waiver of the privilege found in section 6254 .5
and cl aw back documents passed along " inadvertently. "

The City ' s position finds no support in the statute or the legislative history
that surrounds the enactment of the PRA. As Judge Edmon accurately observed,

" d isclosure of documents under the [PRA] i s not th e same as disclosure in the course of litigation discovery. While litigants are free to obtain evidence through the mechanisms set up by the [PRA] , ( County of Los Angeles v. Superior Court (2000) 82 Cal .App.4th 819, 826), the [PRA] was not enacted to supp lement the Civil Discovery Act and its broad provisions are not limited to litigants or attorneys. Rather, the Act itself sets forth its purpose: ' In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declar es 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.) "

Judge Edmon explained, " Unlike litigation discovery, where inadvertent
disclosure is expressly protected from w aiver by statute (see Evid. Code
, § 912; Code
Civ. Proc.
, § 2031.285), any p rivileged document disclosed pursuant to the [PRA] is
waived as to the world ' [n]otwithstanding any ot her provisions of the law [

. ] ' (Gov. Code
, § 6254.5. ) " Nothing in the PRA gives the entity producing it either the right to recover it
or a mechanism to seek its return. And as noted, because the documents were disclosed to Ms. Rickert, the City is precluded from denying disclosure to anyone who asks.

In distinguishing civil litigation discovery from PRA disclosures, Judge5

Edmond stated, " [C] ivil discovery is subject to the supervision of the Court. A party who inadvertently produces a privileged document in discovery may have a statutory right to
have t he privileged document returned and may invoke the process of the Court to invoke that right. (See, e.g., Code Civ. Proc.
, § 2031.285.) And even when there is no [] direct statutory provision for the return of a privileged document, a party who inadverten tly produced a privileged document in the course of litigation has a clear mechanism for
redress

– litigation always involves a judge with the power to order the document's

return. " That is obviously not the case with PRA requests and responses and i t is notable
that section 6254.5 , subdivision (b), explicitly states that a privilege is not waived if disclosure is compelled by legal process or proceedings.

Judge Edmon noted that the City agreed that the statutory waiver in section
6254.5 might be a proble m if, after making a PRA disclos ure of the documents to counsel
Rick ert, it asserted its right to withhold privileged documents to another person not
involved in Ardon ' s case who makes the same request. Although the City said the trial

court " need not add r ess this hypothetical
, " Judge Edmon disagreed . She stated, " Qu ite the contrary. The City's hypothetical is crucially important because it illustrates exactly why an ' inadvertent disclosure ' exemption cannot be read into the statute. As discussed
above (and even suggested by the City's cited legislative history), now that the City has disclosed the documents to one member of the public, it is prohibited as a matter of law
from ' selectively withholding ' that document from any other member of the public. [H] ow can a public record, available to anyone who requests it as a matter of law, possibly be privileged? "

Judge Edmon relied upon Masonite Corporation v. County of Mendocino Air Quality Management Dist rict (1996) 42 Cal.App.4th 436 as authority for its ruling. There, Masonite sought to enjoin the d istrict from disclosing certain documents to a third party under the PRA because documents it was required to disclose to the district were trade secrets. Although Health and Safety Code section 44346 permit s Masonite to protect its trade secrets, it claimed it had inadvertently failed to do so and deserved relief
from the waiver

. The Masonite court agreed with the trial court that " [v]oluntary6

disclosure of information as a public record, even if mistaken, c onstitutes a valid waiver
of trade secret p rotection. " ( Masonite , supra , at p. 455. )

Judge Edmon acknowledged that in Masonite , the party seeking to protect
the documents was not the party that disclose d them. She stated, " That distinction is of
little import, however, because in this case the party seeking to invoke the privilege is
also the public agency subject to the [PRA]

. If anything, the case for waiver is only stronger [.] Masonite's error was to inadvertently disclose the document to a regulato r without the proper designation. To the extent that the City's disclosure can be construed

as ' inadvertent, ' its inadvertent error was to disclose the documents to a member of the public with no legal restrictions on the manner in which the documents cou ld be used. That disclosure, even if inadvertent, permanently destroyed any semblance of confidentiality by converting those documents into public records subject to disclosure to any member of the public at any time for any reason. Based on the plain la nguage of the statute, any attorney

- client or work product privilege that may have once existed was waived at the time of disclosure under the [PRA]

. " We agree.

Moreover, t he relief sought by the City is inconsistent with the legislative history of secti on 6254.5 . The City pointed out that statements by legislator s and in a legislative staff report declare the purpose of the waiver was to avoid " selective
disclosure

. " The exception sought by the City would accomplish exactly that; viz.,
selective disclo sure of the allegedly privileged documents to Ms. Rick ert but not to
others. As Judge Edmon said, " ' In the construction of a statute

. . . the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not t o insert what has been omitted or omit what has been inserted [.] ' ( Manufacturers Life Ins. Company v. Superior Court (1995) 10 Cal.4th 257, 274.) In cases such as this where a party claims an exclusion from a statute not found in the

statute itself, Cour ts ' must assume that the Legislature knew how to create an except ion if
it wished to do so [.] ' ( City of Ontario v. Superior Court ( 1993) 12 Ca l .App.4th 894, 902.) Indeed, the L egislature clearly knew how to create an exception to the otherwise7

absolute w aiver provision in section 6254.5 : it created nine of them. (See Gov. Code
, § 6254.5 , subds. (a)

- (i).) None of those nine exceptions to the absolute waiver provided in section 6254.5 exempts an ' inadvertent disclosure. ' [ ¶ ] Unlike litigation discovery, where inadvertent disclosure is expressly protected from w aiver by statute [citation] , any
p rivileged document disclosed pursuant to the [PRA] is waived as to the world

' [n]otwithstanding any ot her provisions of the law [.] ' (§ 6254.5. ) "

We conclude that section 6254.5 unambiguously expre s s es the Legislature ' s intention that everything produced in a response to a PRA request must be accessible to everyone except in the limited circumstances stated in the statute i tself. We hold that disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of section 6254. 5 that waive any privilege that would otherwise attach to the production.

Disclosures by Clerical Employees of the City Adm inistrators Office The City also contends another implied exception should be attached to
section 6254 ; namely, a waiver of statutory privileges only applie s if it is shown the "low level employee" producing the document was explicitly authorized by the c ity council or the city attorney to waive it . We disagree. First, it is not our function to rewrite legislation. Second, such an exception woul d put it within the power of the public entity to make selective disclosures through "low level employees" and thereby extinguish the provision in the PRA intended to make such disclosures available to everyone.

Ardon ' s Counsel Did Not Violate the Rules of Professional Ethics by Making a PRA Request Judge Edmon conclu ded that " M s. Rickert used the [ PRA ] for exac tly
the purpose the Legislature intended . N othing in [ her ] request t argeted privileged
information. I t merely requested generic categories of public records relating to the adoption of a citywide tax ordinance that Ms. Rickert believed to be unlawful. I t is
difficult to conceive of a request more squarely within the Legislature's intent in enacting
the [PRA]

. " We agree.8 Judge Edmon added, " As the City concedes, Rule 2

- lOO(c ) expressly permits an attorney to contact a represented public official about th e subject matter of the official's representation in order to preserve the a ttorney's right to petition the government. Interpreting a nearly identically worded exception to the predecessor rule to
Rule 2

- 100, the State Bar agreed [.] (St ate Bar Formal Op . No. 1977

- 43.)

... [ ¶ ] Attorney or not, Ms. Rickert had a ' fundamental and necessary ' right to petition her government
under the [PRA

. ] Ms. Rickert's exercise of her statutory and constitutional rights to petition her government regarding a matter of p ublic importance was entirely within the scope of permitted professional conduct, and there is n o basis to disqualify her or any members of her law firm under Rule of Professional Conduct 2

- 100. "
DISPOSITION
We affirm t he trial court's judgment. Costs on appeal are awarded to
Ardon.
CERTIFIED FOR PUBLICATION.

BURKE, J. *

We concur:

GILBERT, P. J.

YEGAN, J.

* (Judge of the Superio r Court of San Luis Obispo County, assigned by the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)Lee Smalley Edmon, Judge
Superior Court County of Los Angeles

______________________________

Colantuono, Highsmith & Whatley, Holl y O. Whatley, Amy C. Sparrow, Tiana J. Murillo; Office of the City Attorney, Noreen S. Vincent, Beverly A. Cook for Defendant and Appellant.

Dennis J. Herrera, San Francisco City Attorney, Christine Van Aken, Chief of Appellate Litigation and Warren Metli tzky, Deputy City Attorney for Amicus Curiae The League of California Cities and the California State Association of Counties on behalf of Defendant and Appellant.

Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert, Marisa C. L ivesay; Chimicles & Tikellis, Timothy N. Mathews; Cuneo Gilbert & Laduca, Sandra W. Cuneo; Tostrud Law Group, Jon A. Tostrud for Plaintiff and Respondent.