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 Respondent,

v.

CITY OF LOS ANGELES,

 Defendant and Appellant.

2d Civil No. B252476

(Super. Ct. No. BC363959)

(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 Act (PRA) request and to disqualify his counsel.

Ardon contends that by producing the documents, the City waived statutory privileges 

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 motions includes the following

summary of the nature of this class action: "Ardon [claims] that [the] City of Los 

Angeles improperly collected 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 applied to [charges for] long distance service [that were based upon both the] 
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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 [the ties] in the TUT to the 

FET. Ardon contends that the 2007 amendment was illegal because it [expanded] an 

excise tax that required 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 documents pertaining to the subject matter of the complaint. 

The Office of the City Administrator responded to the request, stating that the City had 

identified "approximately 53 documents that pertained to the request" and said the City 

would provide those documents at a cost of $6.95. Ardon's counsel paid the fee and 

received the documents from the City in 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 [PRA] 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 the 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 disqualify Ardon's counsel. Following supplemental briefing and a 

hearing, the trial court denied the City's motion concluding that the City's production of 

the documents in response to Ardon's counsel's PRA request waived any privilege that 

previously attached to the records whether or not the document production was the 

product of mistake, inadvertence or excusable neglect.
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DISCUSSION

Government Code section 6254.51provides that "whenever a state or local 

agency discloses a public record which is otherwise 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." Section 6254, 

subdivision (k) is such an exemption. It provides that records need not be disclosed if 

they are the subject of a privilege created by the 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 privilege and makes the document a public record accessible to

anyone.

The City contends that exceptions 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 "inadvertently disclosed;" and 2) that it must appear the clerk who produces 

the document was specifically authorized by the holder of the privilege to waive it. We 

disagree.

Standard of Review

The proper interpretation of section 6254.5 is a question of law, which we 

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 

employed 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 reasonably be 

given more than one interpretation, "'"courts may consider various extrinsic aids, 

 

1 All statutory references are to the Government Code unless stated otherwise.
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including the purpose of the statute, the evils to be remedied, the legislative history, 

public policy, and the statutory scheme encompassing the statute."'"' [Citation.]" (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 similarly 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 claw 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, 

"disclosure of documents under the [PRA] is not the 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 supplement 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 declares 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 waiver by statute (see Evid. Code, § 912; Code 

Civ. Proc., § 2031.285), any privileged document disclosed pursuant to the [PRA] is 

waived as to the world '[n]otwithstanding any other 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, Judge 
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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 the 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 inadvertently 

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 it 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 problem if, after making a PRA disclosure of the documents to counsel 

Rickert, 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 address this hypothetical," Judge Edmon disagreed. She stated, "Quite 

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 District (1996) 42 Cal.App.4th 436 as authority for its ruling. 

There, Masonite sought to enjoin the district 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 permits 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]oluntary 
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disclosure of information as a public record, even if mistaken, constitutes a valid waiver 

of trade secret protection." (Masonite, supra, at p. 455.)

Judge Edmon acknowledged that in Masonite, the party seeking to protect 

the documents was not the party that disclosed 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 regulator 

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 could 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 language 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, the relief sought by the City is inconsistent with the legislative 

history of section 6254.5. The 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 the City would accomplish exactly that; viz., 

selective disclosure of the allegedly privileged documents to Ms. Rickert 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 to 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, Courts 'must assume that the Legislature knew how to create an exception if 

it wished to do so[.]' (City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894, 

902.) Indeed, the Legislature clearly knew how to create an exception to the otherwise 
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absolute waiver 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 waiver by statute [citation], any 

privileged document disclosed pursuant to the [PRA] is waived as to the world

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

We conclude that section 6254.5 unambiguously expresses 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 itself. 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 Administrators Office

The City also contends another implied exception should be attached to 

section 6254; namely, a waiver of statutory privileges only applies if it is shown the "low 

level employee" producing the document was explicitly authorized by the city council or 

the city attorney to waive it. We disagree. First, it is not our function to rewrite 

legislation. Second, such an exception would 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 concluded that "Ms. Rickert used the [PRA] for exactly 

the purpose the Legislature intended. Nothing in [her] request targeted privileged 

information. It merely requested generic categories of public records relating to the 

adoption of a citywide tax ordinance that Ms. Rickert believed to be unlawful. It is 

difficult to conceive of a request more squarely within the Legislature's intent in enacting 

the [PRA]." We agree.
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Judge Edmon added, "As the City concedes, Rule 2-lOO(c) expressly 

permits an attorney to contact a represented public official about the subject matter of the 

official's representation in order to preserve the attorney's right to petition the 

government. Interpreting a nearly identically worded exception to the predecessor rule to 

Rule 2-100, the State Bar agreed[.] (State 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 public importance was entirely within the 

scope of permitted professional conduct, and there is no basis to disqualify her or any 

members of her law firm under Rule of Professional Conduct 2-100."

DISPOSITION

We affirm the 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 Superior 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, Holly 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 Metlitzky, 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. Livesay; Chimicles & Tikellis, Timothy N. Mathews; Cuneo Gilbert 

& Laduca, Sandra W. Cuneo; Tostrud Law Group, Jon A. Tostrud for Plaintiff and 

Respondent.