Opinion
A156510
01-13-2020
In re C.C., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. O.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD02964901)
In this juvenile dependency action, counsel for appellant Olivia C. (Mother) requested certain discovery from respondent Alameda County Social Services Agency (agency), which offered to make the documents available for counsel to review at its offices and to then provide copies of those documents for $0.10 per page. Mother's counsel filed a motion to compel, alleging that Mother was indigent and that the agency should therefore be required to provide the documents electronically, without the need for counsel to review them in person, and at no cost. The juvenile court denied the motion. We affirm.
BACKGROUND
On April 20, 2018, the agency filed a juvenile dependency petition regarding then nine-year-old C.C. (Minor) pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), alleging that Mother was transient and unable to provide Minor with adequate food, shelter, and supervision. On April 23, the juvenile court detained Minor, and on May 7—at a hearing at which Mother was not present—the juvenile court found the petition true, declared Minor a dependent, and ordered Minor placed out of home with family reunification services to be provided to Mother.
On November 7, the agency filed a request that reunification services be terminated, alleging that Mother's whereabouts were unknown, that she had not been in contact with the agency to discuss the case plan, reunification, and visitation, and that she had been in inconsistent contact with Minor. On December 4, Mother appeared, represented by counsel from the East Bay Family Defenders (EBFD), and the matter was set for a contested hearing on February 7, 2019.
On January 31, Mother's counsel filed a motion to compel discovery, seeking 17 categories of documents pursuant to California Rules of Court, rule 5.546. In a declaration attached to the motion, counsel indicated that on November 26, 2018, she sent a letter to counsel for the agency asking the agency to "produce the above-requested information at no cost to East Bay Family Defenders—East Team within ten calendar days. We ask that the above-requested information be faxed, be provided on a USB flash drive or in the form of printed documents. We will provide a USB flash drive if that is your preferred method of production."
All further references to rule 5.546 are to California Rules of Court, rule 5.546.
The agency opposed the motion. In a declaration counsel for the agency stated that he had spoken to Mother's counsel on January 25, and indicated that the requested discovery was available for Mother's counsel to review at the agency's office and that it would charge $0.10 per page for any copies requested.
The juvenile court held a hearing on the motion on February 5. Mother's counsel described the process for obtaining discovery from the agency, which begins with an email to the agency requesting the documents. The agency then reviews the documents and redacts privileged or sensitive information. Mother's counsel then sets up a time to visit the agency's office and review the documents, at which point she can take notes, make her own copies using an electronic device, or request that the agency make copies for $0.10 per page. Mother's counsel stated that she was requesting discovery be provided at no cost because Mother is indigent, that discovery be provided through a "thumb drive or scan disk," and that the discovery be provided directly to Mother's counsel without the need for her to visit the agency's offices to review the documents. In response to counsel's statement that Mother is indigent, the juvenile court replied that there was no evidence in the record regarding Mother's financial circumstances, and counsel offered to "have my client fill out a form indicating that she is indigent and supplement the record when I see her in court on Thursday." The court summarized the agency's position as "they are willing to and perhaps already have made available for review the documents and other information that you've requested. The only objection that they have, as I understand it, is that they are not willing to do [it] at their expense." At the conclusion of the hearing, the juvenile court denied the motion.
DISCUSSION
Mother argues that the agency's refusal to provide her counsel with discovery electronically and at no cost to her is a violation of rule 5.546, and of her right to due process. Amicus curiae California Juvenile Court Advocates (CJCA) likewise argues that rule 5.546 requires the agency to provide discovery to Mother at no cost, and that its failure to do so is a violation of equal protection.
CJCA "advocate on behalf of families in the child welfare system." We granted CJCA's motion to file an amicus curiae brief in support of Mother.
Rule 5.546 Does Not Require Discovery Be Provided at No Cost
Rule 5.546(d) provides: "Except as provided in (g) and (h), petitioner must, after timely request, disclose to the child and parent or guardian, or their counsel, the following material and information within the petitioner's possession or control," going on to list several categories of information.
Rule 5.546(f) provides that "[i]f a party refuses to disclose information or permit inspection of materials, the requesting party or counsel may move the court for an order requiring timely disclosure of the information or materials." And rule 5.546(i) provides: "An order of the court granting discovery under this rule may specify the time, place, and manner of making the discovery and inspection and may prescribe terms and conditions."
To the extent that Mother's argument is based on the text of rule 5.546, our review is de novo. (See Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81 ["[A]ppellate courts conduct a de novo review of interpretations of relevant California Rules of Court"]; Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123 ["where the propriety of a discovery order turns on statutory interpretation, an appellate court may determine the issue de novo as a question of law"].)
Resolution of this case turns on what it means for the agency to "disclose" the discovery or information at issue. In her opening brief, Mother does not analyze the text of rule 5.546, simply asserting that it "cannot be reasonably interpreted to require trial counsel to physically inspect the documents at the Agency's offices and pay to have the documents copied and mailed before the discoverable documents are disclosed."
Just before oral argument in this case, Division One of this court issued its opinion in In re William M.W. et. al. (Dec. 17, 2019, A156489) ___ Cal.App.5th ___ (William M.W.), addressing the same issue before us here. In William M.W., as here, parents represented by EBFD in dependency proceedings filed a motion to compel discovery, asking that copies of discovery be provided by the agency at no cost, by fax, USB drive, or printed copies. (Id. at pp. 2-3.) There, as here, the parents argued that the agency's discovery procedure did not comply with rule 5.546, and that it violated the parents' right to due process and equal protection. In a thoughtful, well-reasoned opinion, William M.W. rejected these arguments, concluding that the agency can fulfill its obligation under rule 5.546 to "disclose" discovery by making it available for inspection (id. at p. 7), may charge to provide copies of that discovery (id. at pp. 7-10), and that the agency's open file discovery procedure complies with due process and equal protection (id. at pp. 10-17). However, because the juvenile court in that case erroneously concluded it lacked the discretion to order the agency to provide the discovery free of charge, William M.W. remanded the case for the juvenile court to exercise that discretion. (Id. at pp. 3, 17-22; see rule 5.546(i) [court may issue a discovery order specifying "the time, place, and manner of making the discovery and inspection and may prescribe terms and conditions"].)
In addition to the case before us and William M.W., cases presenting the same issue are pending before the other divisions of this court— Alameda County Social Services v. J.S. (A156434, app. pending); Alameda County Social Services v. D.W. (A156513, app. pending); and Alameda County Social Services v. L.G. (A156749, app. pending). We previously denied the agency's motion to consolidate these appeals pursuant to Code of Civil Procedure section 1048.
We agree with William M.W.'s analysis of these issues, as we explain.
To begin, we do not read "disclose" as requiring the agency to send electronic copies to Mother or her counsel free of charge. Black's Law Dictionary defines "disclose" as "To make (something) known or public; to show (something) after a period of inaccessibility or of being unknown; to reveal." (Black's Law Dict. (11th ed. 2019) p. 583, col. 1.) Merriam Webster's Dictionary defines "disclose" as "to make known or public" and "to expose to view." (Webster's 10th Collegiate Dict. (1993) p. 330.) By offering Mother's counsel the opportunity to review the documents, to take notes from them, and to make her own copies, the agency made the information in the documents "known," "expose[d them] to view," and "reveal[ed]" them. (See William M.W., supra, at p. 7.)
Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235 (Schaffer) supports this conclusion. Like the rule at issue here, Penal Code section 1054.1 requires that the prosecution "disclose to the defendant or his or her attorney" certain materials. In Schaffer the district attorney had a policy whereby defense counsel could view certain discovery at their office, and could use photocopy or scanning equipment to make copies of those documents. (Schaffer, supra, at p. 1238.) The district attorney would also provide photocopies for a fee—$0.15 per page for privately retained counsel, and $0.03 per page for public defenders. (Ibid.) The defendant filed a motion to abate these costs, and when it was denied, sought writ relief. (Id. at p. 1240.)
All further unspecified statutory references are to the Penal Code.
The Schaffer court rejected the argument that the obligation to "disclose" required any particular method of delivery: "Section 1054.1 provides that the prosecuting attorney 'shall disclose' to the defendant certain materials and information listed in subdivisions (a) through (f) of that section. Section 1054.3 provides reciprocal discovery obligations for the defense. These statutes do not specify the means by which the parties must 'disclose' discoverable information to each other, or specify that the party making disclosure must produce a copy of the discoverable item for the benefit of the opposing party. No court has interpreted the prosecutor's duty to disclose under section 1054.1 to include the responsibility of furnishing photocopies or other materials to a defendant at taxpayer expense. The ordinary meaning of the word 'disclose' is to 'divulge,' 'open up,' 'expose to view,' or to 'make known.' (Webster's 3d New Internat. Dict. (1993) p. 645, capitalization omitted.)" (Id. at p. 1242.) The court went on to note that "[n]umerous cases discussing the prosecution's duty to disclose under [previous versions of statutes governing discovery] referred only to the duty to allow defendants to view, inspect, and copy the materials." (Id. at p. 1243; see William M.W., supra, at p. 7.)
For its part, CJCA acknowledges that the "general definition of 'disclose' is to make known or public," but argues that it has a specific legal meaning in the discovery context, i.e., "the identification and surrendering to the other side of photocopies" of documents.
CJCA quotes this definition from "Duhaime's Law Dictionary," available at http://www.duhaime.org/LegalDictionary/D/Disclosure.aspx. We are unable to find any California cases citing this dictionary, but in any event, the definition it provides does not persuade us that the only way to "disclose" discovery is to provide copies of the documents, at no cost.
CJCA relies on Arnett v. Dal Cielo (1996) 14 Cal.4th 4 (Arnett) in support of its argument that "disclose" has a specific meaning in the discovery context. In Arnett, our Supreme Court considered whether the term "discovery" as used in Evidence Code section 1157, subdivision (a)—which provides that the records of a hospital peer review committee are not "subject to discovery"—included administrative subpoenas: "The Hospital contends that as used in [Evidence Code] section 1157 the word 'discovery' includes subpoenas issued by administrative agencies for investigative purposes. The Board contends, rather, that in [Evidence Code] section 1157 'discovery' means only the formal exchange of evidentiary information between parties to a pending adversary proceeding. The Court of Appeal correctly recognized that 'as commonly used in its legal sense, the term is limited as the Board suggests.' " (Arnett, supra, 14 Cal.4th at pp. 18-19.) But Arnett did not consider or address the definition of the term "disclose," nor did it consider the question of how a party can satisfy its duty to "disclose" discoverable information. It certainly did not hold or even suggest that a party making a discovery disclosure is required to do so at its own expense when it characterized "discovery" as the "formal exchange of evidentiary information." (Id. at p. 19; see William M.W., supra, at pp. 7-8.)
CJCA also argues that because rule 5.546(b) provides that the agency must "promptly deliver to or make accessible for inspection and copying" police reports, while rule 5.546(c) and (d) simply require "disclosure," making the discovery described in rule 5.546(c) and (d) available for inspection and copying is not sufficient. But as the agency notes, the title of rule 5.546(b) is "Duty to disclose police reports"—suggesting that "disclose" is synonymous with "promptly deliver to or make accessible for inspection and copying." (See William M.W., supra, at p. 8.) In sum, we are not persuaded that "disclose" as used in rule 5.546 requires the agency to provide copies of the discovery requested at no cost.
Rule 5.546(b) through (d) provide:
"(b) Duty to disclose police reports [¶] After filing the petition, petitioner must promptly deliver to or make accessible for inspection and copying by the child and the parent or guardian, or their counsel, copies of the police, arrest, and crime reports relating to the pending matter. Privileged information may be omitted if notice of the omission is given simultaneously.
"(c) Affirmative duty to disclose [¶] Petitioner must disclose any evidence or information within petitioner's possession or control favorable to the child, parent, or guardian.
"(d) Material and information to be disclosed on request [¶] Except as provided in (g) and (h), petitioner must, after timely request, disclose to the child and parent or guardian, or their counsel, the following material and information within the petitioner's possession or control . . . ."
Mother's Due Process and Equal Protection Clause Arguments Are Not Supported by the Record
Mother also argues that requiring her to pay for photocopies of discovery violates her constitutional right to due process. CJCA similarly argues that the agency's discovery policy violates equal protection because it denies access to a guaranteed judicial process on the sole basis of Mother's inability to pay an associated cost. William M.W. rejected these arguments, concluding that the agency's "open file" discovery process comports with due process (William M.W., supra, at pp. 10-14), and equal protection (id. at pp. 14-17). Again, we agree with that analysis, and reject Mother's arguments for the reasons given in William M.W.—indeed, for additional factual reasons based on the record here.
First, Mother did not establish before the juvenile court that she is indigent—the fact on which her due process and equal protection arguments entirely depend. There was no evidence before the juvenile court of Mother's financial circumstances, and the court expressly noted that "as of this moment right now there is no record that would lead the Court to conclude this client is indigent." On appeal, Mother has asked that we take judicial notice of a "JV-132 Financial Declaration" purporting to show that she is indigent. However, this form was apparently never filed with the trial court and is not properly the subject of judicial notice on appeal. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 fn. 3 ["Reviewing courts generally do not take judicial notice of evidence not presented to the trial court"].) Accordingly, the request is denied.
Mother has also requested that we take judicial notice of the notices of appeal and entire record in the four other appeals presenting the same issue before the other divisions of this court (William M.W. (A156489), A156434, A156489, and A156513). We took the request under submission, to be decided with the merits of this appeal. Because these documents are not relevant to our disposition of this appeal, the request is denied.
Second, Mother nowhere alleges—and there is nothing in the record to suggest—that she personally, as opposed to her counsel, would bear the discovery costs at issue. And in its brief, the agency asserts that in a recent writ proceeding concerning a similar issue (L.G. v. Superior Court for the County of Alameda (Jul. 25, 2019, A157122) [nonpub. opn.]), counsel for EBFD conceded that it would be responsible for any costs of copying discovery under the applicable contract between EBFD and the Judicial Council. (See William M.W., supra, at p. 13 [noting parents "do not, in fact, claim that they have had to bear these discovery expenses themselves"]; People v. Washington (2019) 34 Cal.App.5th 311, 321 [indigent defendant with retained counsel whose discovery costs covered by contract not similarly situated for equal protection purposes to indigent defendants with appointed counsel whose costs were not covered].)
Finally, Mother has failed to demonstrate any prejudicial error in the discovery ruling under either the test for state law error (see People v. Watson (1956) 46 Cal.2d 818, 836), or under the "beyond a reasonable doubt" test (see Chapman v. California (1967) 386 U.S. 18, 24) "applicable to denial of discovery that implicates the federal constitutional guarantee of due process [citation]." (People v. Cook (2006) 39 Cal.4th 566, 616.) In fact, at a hearing on February 7—two days after her motion to compel was denied—Mother's counsel told the court: "I did file a motion to compel discovery and was provided with the discovery today and I have started to review it." (See People v. Washington, supra, 34 Cal.App.5th at p. 321 [no prejudice in denying motion for discovery costs where it was "undisputed that defendant's counsel had access to all discovery, including the supplemental discovery, well before trial"].) Under these circumstances, the record before us does not support Mother's argument that the agency's discovery policy has violated her right to due process or to equal protection.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.