Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. 020315 Charles C. Crandal, Judge
James B. Lindholm, County Counsel, County of San Luis Obispo and Ann Duggan, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
Tharpe & Howell, Stacy A Miller, for Paul Flores, Real Party in Interest.
James R. Murphy, Jr., Tana L. Coates and Heather L. Hunt; James R. Murphy, Jr., a Law Corporation, for Stan and Denis Smart, Real Parties in Interest.
YEGAN, J.
Respondent superior court ordered that a stay of wrongful death litigation, first imposed over four years ago, be lifted and that the Sheriff of San Luis Obispo County provide a "comprehensive privilege log" of each document in its investigative files concerning the presumed homicide that the sheriff contends is privileged from disclosure pursuant to Evidence Code section 1040. The sheriff seeks a writ of mandate directing respondent to vacate its order and enter a new order maintaining the stay. We issued an alternative writ and order to show cause. Respondent did not comply and we now direct the entry of a peremptory writ of mandate as requested by the sheriff.
All statutory references are to the Evidence Code unless otherwise stated.
Facts
Kristin Smart was a student at California Polytechnic State University, San Luis Obispo (Cal Poly) when she disappeared on or about May 25, 1996. She has not been seen since; her body has not been recovered. Witnesses reported that they last saw Kristin in the company of Paul Flores, who was also a Cal Poly student at that time. No one has been charged with a crime in connection with her disappearance.
About six months after she disappeared, Kristin's parents filed a wrongful death action against Flores, Cal Poly and a campus fraternity. In connection with that litigation, the sheriff's department was ordered to disclose to the Smarts certain non-privileged materials from its investigative files. Both Cal Poly and the fraternity prevailed on pretrial motions. The Smarts dismissed their complaint against Flores without prejudice.
In 2002, respondent declared that Kristin Smart was presumed deceased. The Smarts filed a new complaint for wrongful death against Flores and served another subpoena duces tecum. The subpoena demands production of, "The entire investigative report of the San Luis Obispo Sheriff's Department concerning the disappearance and possible death of Kristin Smart, including but not limited to all investigative reports, evidentiary items, forensic reports concerning items seized as evidence; interviews of all witnesses conducted in connection with this matter, all tape recordings and transcripts of interviews with Defendant Paul Flores, all items of physical evidence, including but not limited to; all jewelry taken by the Sheriff's Department from the tenants of Susan Flores, all internal memorandum concerning the investigation into the disappearance and possible death of Kristin Smart including memorandum from other law enforcement agencies provided to the San Luis Obispo County Sheriff's Department."
The sheriff's department filed another motion to quash the subpoena. In October 2003, respondent stayed discovery in the matter and ordered that the case be monitored at semi-annual case management conferences. At each subsequent case management conference, respondent reviewed evidence and testimony in camera, concluded the investigation had not grown cold and maintained the stay of discovery. In August 2005, it stayed the entire litigation to avoid dismissal pursuant to Code of Civil Procedure, section 583.310. Case management conferences have been held at six-month intervals since the entry of that order.
At the February 2007 case management conference, the superior court maintained the stay. It also informed the parties that, "absent an unusual development in the criminal investigation, the stay is likely to be terminated" at the next case management conference, in September.
At the September 2007 conference, respondent reviewed the declarations and testimony provided by the sheriff's department in camera and concluded that the investigation, "must be characterized as 'tepid' if not cold." It concluded that, "the stay in this case should be dissolved on February 18, 2008. [Fn. omitted.] The criminal investigation could go on indefinitely, but the Court does not see any light at the end of the tunnel. Counterbalancing the long-standing criminal investigation is the strong interest of defendant Flores in securing finality and proceeding with a potentially dispositive summary judgment motion. Also implicated are the interests of Kristin Smart's family in receiving potentially relevant information upon which to bolster their civil suit. Under the law, the confidentiality of the entire Kristin Smart investigative file has been preserved for a reasonable period of time, but it cannot be preserved forever." Recognizing that individual documents in the file might be privileged under Evidence Code section 1040, or for some other reason, the superior court directed the sheriff's department to "provide a comprehensive privilege log with respect to each item of documentary evidence that has been called for in the discovery requests but that Real Party claims is nevertheless protected by the provisions of Evidence Code § 1040."
Discussion
Writ review of a discovery order, such as the one under review here, is appropriate when the petitioner credibly claims that the order will result in the disclosure of privileged information. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 928; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1184.) Interlocutory review is required " 'since once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.' " (Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516.)
"We review discovery orders for abuse of discretion." (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1070.) There can, however, "be no discovery of matter which is privileged." (Rudnick v. Superior Court, supra, 11 Cal.3d at 929.) An order compelling discovery that violates a privilege "constitutes an abuse of discretion." (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) "Under this standard, a trial court's ruling on a discovery motion 'will be overturned upon a prerogative writ if there is no substantial basis for the manner in which trial court discretion was exercised or if the trial court applied a patently improper standard of decision.' (Coriell v. Superior Court (1974) 39 Cal.App.3d 487, 491, fn. 1, 114 Cal.Rptr. 310.) Moreover, where the propriety of a discovery sanction turns on statutory interpretation, we review the issue de novo, as a question of law." (People ex rel. Lockyer, supra, 122 Cal.App.4th at p. 1070.)
Documents contained in the investigative files of the sheriff's department are shielded from discovery pursuant to the "official information" privilege established in section 1040. (See, e.g., Shepherd v. Superior Court (1976) 17 Cal.3d 107, 124-125, overruled on other grounds People v. Halloway (2004) 33 Cal.4th 96, 131.) The statute grants to a public entity a privilege to refuse to disclose, "information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made." (§ 1040, subd. (a).) The privilege applies if is claimed by an authorized person and either disclosure is prohibited by federal or state law, or "Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered." (§ 1040, subd. (b)(2).)
Our Supreme Court held in Shepherd v. Superior Court, supra, 17 Cal.3d 107, that section 1040 shields documents from discovery on a court finding that disclosure would be contrary to the public interest. (Id. at p. 125.) To make this finding, the court must review the documents at issue and consider whether the need to preserve their confidentiality " 'outweighs the necessity of disclosure in the interest of justice.' " (Id., quoting Code Civ. Proc., § 1985.)
In County of Orange v. Superior Court (Wu) (2000) 79 Cal.App.4th 759, the parents of a murdered two-year old boy, who were suspects in the crime, sought discovery of law enforcement investigative files in their suit against the Orange County Sheriff's Department for defamation and other torts. The Court of Appeal reversed a trial court order directing the Sheriff to comply with the subpoena. Relying on Shepherd v. Superior Court, supra, the County of Orange court concluded that, "the contents of police investigative files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure in any particular case." (Id. at p. 766.) There was, the court reasoned, a "powerful public interest in solving homicides and bringing killers to justice[,]" that would be placed "at risk if confidential information about the homicide investigation is released to suspects." (Id.) That interest outweighed the parents' interest in clearing their names and exposing misconduct by law enforcement. (Id.)
The court cautioned, however, that the investigative files would not remain sealed forever. (Id. at p. 768.) Instead, the court held that the appropriate remedy would be to stay discovery or the litigation itself, to allow law enforcement the time needed to investigate. It explained that its order was "intended to preserve the confidentiality of the investigative file for some reasonable period of time, but not forever. [¶] In the future the trial court may determine that there has not been enough progress in the investigation to justify protecting most of the investigative file any longer. For example, the court may find that the trail has grown cold and there is no reasonable probability the case will be solved . . . . At that point the court may conclude the risk to the investigation from releasing confidential information from the investigative file is no longer a compelling concern . . . . In other words, with the passage of time, changing circumstances will inevitably reverse the balance of competing interests under section 1040, subdivision (b)(2)." (Id. at p. 768-769.)
In the present case, respondent followed the procedure outlined by the court in County of Orange, supra. It stayed the litigation pending termination of the criminal investigation, held periodic in camera reviews of the stay order, and balanced the interests of law enforcement and the public against those of the Smarts and Flores. Respondent eventually concluded that the investigation had grown " 'tepid' if not cold." As a result, it concluded, the interests of the Smarts and Flores in pursuing their civil litigation outweighed law enforcement's interest in maintaining the confidentiality of the investigative materials.
We have no quarrel with the procedure followed by respondent. Our concern is with its conclusion that discovery of the investigative file is warranted because the investigation is no longer active. This conclusion is erroneous because the record before respondent demonstrates that the investigation is progressing.
All of the competing interests at stake here are weighty. The Smarts have an interest in learning whatever they can about the circumstances surrounding their daughter's disappearance and in identifying anyone responsible for her death. Flores has an interest in resolving the question of whether he is culpable for Kristin's death. But law enforcement and the public share these interests. They also have a separate and compelling interest in the criminal prosecution of Kristin Smart's killer(s), an interest that will be jeopardized by the premature disclosure of investigative files. The public interest in solving the homicide and bringing its perpetrator(s) to justice outweighs the individuals' interests in pursuing civil litigation. (County of Orange v. Superior Court,, supra, 79 Cal.App.4th at p. 767-768; see also Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1044-1045.)
We have reviewed the declarations filed under seal at the three most recent semi-annual case management conferences and the sealed transcript of the most recent such conference. Without divulging the content of these confidential documents, we note that they outline the continuing investigative efforts of the sheriff's department. Many portions of the declarations repeat without significant change statements that had been made in prior declarations. Other portions, however, demonstrate that during the preceding 18 months the investigation developed new facts and identified new avenues of inquiry that law enforcement is pursuing as its resources allow. Of particular significance to us is information indicating that activities were in process at the time of the last hearing that had not yet yielded definitive results, either positive or negative. Law enforcement has identified individuals it has not yet been able to interview, and it has described physical evidence the recovery or analysis of which has not yet been completed.
It is true that no breakthrough has occurred in the investigation. No one has been charged with a crime and no remains have been recovered. But the investigation continues and law enforcement has identified specific activities that are ongoing. As long as that remains true, we believe the public interest in completing the criminal investigation and prosecuting Kristin's killer(s) outweighs the real parties' interest in pursuing civil litigation. When law enforcement has exhausted or abandoned all reasonable avenues of inquiry and has either suspended its search for physical evidence or completed its analysis of that evidence, then the balance of the interests may shift in favor of real parties and their interest in pursuing the civil remedies available to them. Until that time, however, a trial court should not jeopardize the criminal investigation by ordering the disclosure of documents that may allow the perpetrator(s) to avoid apprehension. (Michael P. v. Superior Court, supra, 92 Cal.App.4th at p. 1047.) In the context of a speedy trial claim, our Supreme Court recently said: "A court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges" (People v. Nelson (June 1, 2008, S147051) ___ Cal.4th ___, ___.) So here, a court should not second-guess the speed of the sheriff's investigation.
Conclusion
Let a peremptory writ of mandate issue directing the respondent superior court to vacate its December 17, 2007 Order Lifting Stay of Action and to make a new and different order maintaining the stay of action imposed on August 3, 2005, and stay of discovery imposed on October 20, 2003.
We concur: GILBERT, P.J., PERREN, J.