Opinion
D082883
02-08-2024
JANE DOE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; MATTHEW RYAN ARAIZA et al., Real Parties in Interest.
Gilleon Law Firm and James C. Mitchell, for Petitioner. Schwartz Semerdjian Cauley & Evans, Dick A. Semerdjian, Kristen M. Bush, and Mary R. Powell, for Real Party in Interest Matthew Ryan Araiza. Mara W. Elliott, City Attorney, Jean E. Jordan, Assistant City Attorney, and Jill S. Cristich, Deputy City Attorney for Real Party in Interest San Diego Police Department. No appearance for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING on a petition for writ of mandate. Relief denied.
San Diego County Super. Ct. No. 37-2022-00035158- CU-PO-CTL
Gilleon Law Firm and James C. Mitchell, for Petitioner.
Schwartz Semerdjian Cauley & Evans, Dick A. Semerdjian, Kristen M. Bush, and Mary R. Powell, for Real Party in Interest Matthew Ryan Araiza.
Mara W. Elliott, City Attorney, Jean E. Jordan, Assistant City Attorney, and Jill S. Cristich, Deputy City Attorney for Real Party in Interest San Diego Police Department.
No appearance for Respondent.
HUFFMAN, ACTING P. J.
Jane Doe brought a civil suit against three men claiming that they sexually assaulted her when she was 17-years-old. The police, who investigated the corresponding criminal matter, have in their possession certain videos depicting the alleged sexual assault. Over the strenuous objection of Doe and the police, the superior court granted a motion to compel and ordered the police to copy and produce these videos to the defendants under strict guidelines as part of civil discovery. After a subsequent discovery dispute, the superior court further ordered that defense counsel could question Doe about the videos during her deposition.
Doe brought the instant writ, arguing that the court's orders violate Penal Code section 311.1. That statute is aimed at criminalizing the publication and/or distribution of child pornography. Although the copying and production of the videos in this matter technically could fall under section 311.1, the trial court ordered the copying and the production of these videos as part of the civil discovery process, subject to a protective order as well as a stringent protocol to ensure they are used for a very limited purpose and destroyed at the conclusion of this matter. Further, it is undisputed that the videos are relevant evidence that may support or undermine Doe's claims against the defendants. Accordingly, we see nothing in section 311.1 indicating that the Legislature sought to criminalize or otherwise prohibit the use of the videos in this unique, limited, and controlled context.
Statutory references are to the Penal Code unless otherwise specified.
Section 311.1, subdivision (a) states: "Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or to exhibit to, or to exchange with, others, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined in Section 311.4, shall be punished either by imprisonment in the county jail for up to one year, by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not to exceed ten thousand dollars ($10,000), or by the fine and imprisonment."
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe accused several men, including Matthew Ryan Araiza, Zavier Leonard, and Nowlin Ewaliko, of sexually assaulting her on October 17, 2021, at a party held at a residence located on Rockford Drive, San Diego (Residence). At that time, Doe was 17 years old. As part of the criminal investigation, the San Diego Police Department (SDPD) obtained search warrants for multiple cellphones. Some of these cellphones included video of Doe engaging in sex acts in the early morning hours on October 17, 2021. Ultimately, no criminal charges were filed against anyone based on the alleged sexual assault of Doe on October 17.
The record indicates that some of the events in question may have occurred late on the night of October 16, 2021. However, the parties refer to the alleged assault having occurred on October 17, 2021. Moreover, it is clear that whether the subject events happened late on October 16 or early on October 17, everyone is referring to the same events (albeit offering a different perception of those events) at the same place. Thus, for convenience and clarity, we will adopt the position of the parties and refer to the alleged incident as occurring on October 17, 2021.
On August 25, 2022, Doe filed suit against Araiza, Leonard, Ewaliko, and SLJ, LLC. Doe alleged that she, along with three friends, attended a Halloween party held at the Residence where Araiza lived. Once at the party, Araiza approached her. According to Doe, it was obvious that she was "heavily intoxicated." Araiza nevertheless handed her a drink that Doe alleged, based on information and belief, contained "not only . . . alcohol, but other intoxicating substances."
According to the operative complaint, SLJ, LLC owned, maintained, and/or controlled the Residence at the time the alleged acts occurred.
After Doe informed Araiza that she attended Grossmont High School, Araiza led Doe over to the side of the house where she performed oral sex on him, and then they engaged in sexual intercourse. In addition, Doe alleged that she was subjected to the following conduct:
"Araiza then led Doe inside the house, past the living room, and into a bedroom. There were at least three other men already in the bedroom, including defendants Leonard and Ewaliko. Once inside, Araiza threw Doe onto the bed face first. Doe went in and out of consciousness while she was being raped, but she does remember some moments from the horrific gang rape. During this time, her phone was also taken. The men took turns having sex with her from behind while she lay face first on the mattress. She saw a light in her periphery, as if someone was taking a video using a cell phone. Eventually the rapists turned Doe so that one of them could force his penis into her mouth while another man performed oral sex on her. At one point while Doe was in the bedroom, her friend tried to get inside the house from the backyard. Roe 1 prevented her from coming inside. Doe was raped for about an hour and a half until the party was shut down. Doe stumbled out of the room bloody and crying. Her nose, belly button, and ear piercings had been pulled out, and she was also bleeding from her vagina."
Based on the conduct described ante, the complaint includes causes of action for rape, gender violence (Civ. Code, § 52.4), violation of the Ralph Act (Civ. Code, § 51.7), false imprisonment, and violation of Civil Code section 1714 against Araiza, Leonard, and Ewaliko, as well as a claim of premises liability against SLJ. Doe seeks special and general damages, punitive damages, civil penalties, attorney fees, and costs.
In conducting discovery in this matter, Araiza served the SDPD with a subpoena for the production of business records relating to its investigation of the alleged October 17, 2021 sexual assault of Doe. Upon receiving documents, Araiza's counsel noticed the SDPD only provided heavily redacted copies of its reports and investigations. It did not produce any videos, images, or data it obtained in response to the search warrants the SDPD executed. During a call with the SDPD's counsel, Araiza's counsel was told that the SDPD would not release the records acquired via the warrants without a court order because the records were sealed.
Araiza filed a motion to unseal the records on April 14, 2023. The motion was filed in the criminal division of the superior court and was heard by the Honorable Jeffrey F. Fraser. In his written order, Judge Fraser clarified that the documents the SDPD obtained pursuant to search warrants were not under seal, but he would not order production of any videos or other documents the SDPD possessed. Rather, the judge suggested that Araiza "make the appropriate motions in the civil court and follow civil discovery procedures."
Araiza served a new subpoena on the SDPD, asking for, among other things, any videos of the October 17, 2021 incident. The SDPD indicated that it would not copy and/or produce any of the videos because the videos contain "confidential information protected under Penal Code section 311.1. State law prohibits SDPD from releasing any evidence that depicts a person under the age of 18 years personally engaging in or simulating sexual conduct."
The San Diego District Attorney's Office made the videos available to Doe and her counsel on December 7, 2022, after the criminal investigation had been completed and on the same day a press release was issued announcing that no criminal charges would be brought based on the events that occurred on October 17, 2021.
Araiza then brought a motion to compel the SDPD to produce the videos wherein he argued that the superior court should order the SDPD to copy and produce the videos to the defendants because the "balance of interests favor[ed] the limited release" of the videos. To this end, Araiza explained that Doe elected to sue him, among others, asserting causes of action based on an alleged gang rape, and "[i]t seem[ed] difficult to believe that a victim who chooses to engage in civil litigation would be able to shield exonerating evidence from the defense." Araiza also pointed that "[t]he videos [were] critical to showing that Mr. Araiza was not present during the alleged rape and that . . . [Doe] consented to sexual contact with the other suspects."
The SDPD opposed the motion to compel, arguing that section 311.1 prohibited the SDPD from duplicating or distributing the videos. Moreover, the SDPD noted that section 311.1 expressly created exceptions for law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or for legitimate medical, scientific, or educational activities. However, the statute does not explicitly contain an exception for civil actions. In addition, the SDPD offered to provide Araiza the opportunity to view the videos at an SDPD station.
Doe also opposed the motion to compel, largely echoing the SDPD's arguments. As such, she asserted that Araiza was not entitled to the videos, which contain child pornography. She further emphasized that section 311.1 did not contain a civil discovery exception. Doe also maintained that the videos would not exonerate Araiza.
In making this argument, Doe asserted that the videos were not relevant to Araiza's defenses and theory of the case. In the instant petition, she abandons these relevancy arguments and does not dispute that the videos are relevant.
After taking the matter under submission, the court granted Araiza's motion. In its August 11, 2023 minute order, the court noted that there was "no legitimate dispute that" the videos were "relevant to Defendant Araiza and the other defendants' defense. The evidence depicts, and to some degree is the best evidence of, the acts [Doe] contends constitute rape, gender violence, and false imprisonment." The court further found that the production of the videos did not violate section 311.1 and that its order was supported by this court's opinion in Westerfield v. Superior Court (2002) 99 Cal.App.4th 994 (Westerfield). Then the court explained why it found Westerfield persuasive while acknowledging the key difference between Westerfield and the instant matter:
"Here, although the claims against the defendants are civil, they were preceded by a criminal investigation that resulted in collection of the evidence withheld by SDPD. Indeed, it appears likely that this evidence played a central role in the decision not to proceed with a criminal prosecution of Defendant Araiza. Defendant Araiza's interest in defending himself in this civil action is also comparable to the interest he would have had in defending himself in a criminal proceeding, given the abhorrent nature of [Doe's] allegations. [Citation.] On balance, it would be grossly unfair to allow such highly probative evidence to be shielded from use in a judicial action by a statute intended to prevent and criminalize distribution of child pornography."
The court therefore ordered the SDPD to produce the videos under "carefully restricted (stringently enforced)" parameters.
The videos had to be produced on a single flash drive. Each party was only permitted one copy of a flash drive containing the videos. No party was permitted to copy the evidence in any way. At the conclusion of the case, all flash drives produced to the parties will be collected and destroyed, except for a single copy that the superior court will keep under seal for purposes of appeal.
The SDPD then produced the videos on flash drives as ordered by the court. After the videos were produced, Doe filed a petition for writ of mandate in this court, requesting a stay of the production of the videos on the basis that making copies of the videos and distributing them to the parties would be illegal. We summarily denied the petition. Because the videos had already been viewed, copied, and produced, we could not provide any effective relief. Also, we noted that Doe challenged the use of the videos, but, at that time, the superior court had not made any rulings regarding the use of the videos or their admissibility at trial.
Subsequently, on September 13, 2023, Araiza's counsel deposed Doe. During the deposition, counsel attempted to show Doe the videos, but Doe's counsel objected on the grounds that showing the videos to Doe would be "harassing and abusive." Doe's counsel also pointed out that the videos consisted of "child pornography." Defense counsel therefore did not question Doe about the videos at this deposition.
On September 20, 2023, the court held an informal discovery conference and issued a minute order that, among other things, stated that defense counsel could ask questions regarding the videos. The deposition was set to continue on October 11.
On October 9, 2023, Doe filed a petition for a writ of mandate challenging the August 11 and September 20 minute orders, arguing that the copying and production of the videos violated section 311.1 and the subsequent use of the videos at deposition or trial would be "inhumane . . . and run[ ] counter to the clear intent of Penal Code [section] 311.1." Doe also asked us to stay the minute order.
The following day, this court issued an order staying all further use of the videos, including at Doe's deposition, and requesting real parties in interest file an informal response. We also ordered the videos to be lodged with this court in the form of a single flash drive and sealed pursuant to California Rules of Court, rule 8.45.
On October 20, 2023, Araiza filed an informal response to the petition, as did the SDPD. Although Araiza argued we should deny the petition, the SDPD took no position and agreed to comply with all court orders.
Ten days later, we issued an order show cause, allowing the real parties in interest to file a return before November 29, 2023. No return was filed. As such, we deem Araiza's informal response to be the return in this matter.
On December 14, 2023, Doe filed a case status report wherein she informed the court that her complaint against Araiza was settled and was in the process of being dismissed with prejudice. Nonetheless, Doe's litigation against Leonard and Ewaliko continues. Doe therefore urges this court to consider the petition on the merits. Because Leonard and Ewaliko received copies of the videos per the August 11 minute order and are permitted to ask questions about the videos at Doe's deposition, we agree with Doe that we should still address the petition on the merits.
DISCUSSION
The parties do not dispute that the videos are relevant to Doe's claims against Leonard and Ewaliko. Indeed, the superior court observed: "The evidence depicts, and to some degree is the best evidence of, the acts [Doe] contends constitute rape, gender violence, and false imprisonment." And although evidence sought in civil discovery need not be relevant in order to be discoverable (see Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761), Doe maintains that section 311.1 prohibits discovery of the videos despite their extreme relevancy to all of Doe's causes of action alleged in the operative complaint.
Generally, discovery in a civil matter is governed by the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.). California courts typically apply a policy of liberal construction of the discovery statutes in favor of discovery. (See, e.g., Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1497; Norton v. Superior Court, supra, 24 Cal.App.4th at p. 1761; Rolf Homes v. Superior Court (1960) 186 Cal.App.2d 876, 882.) "For the guidance of the trial courts the proper rule is declared to be not only one of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it. Even in those instances wherein the statute requires a showing of good cause, that showing must be liberally construed." (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378; see Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107-1108 [conclusions in Greyhound apply equally to Civil Discovery Act]; Code Civ. Proc., § 2017.010 ["Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence"].) Thus, against this backdrop, it is clear that the videos are discoverable unless prohibited by statute or public policy. Here, Doe contends section 311.1 prohibits the discovery of these videos in a civil matter.
In Westerfield, supra, 99 Cal.App.4th 994, we had occasion to interpret and apply section 311.1 in a criminal discovery context. There, the defendant was charged with murder and possession of child pornography. The prosecution refused to duplicate and distribute copies of the pornographic images seized from the defendant's computer to defense counsel. Rather, the prosecution allowed counsel and a defense expert to review the materials at an FBI office in the presence of law enforcement. In response to a defense motion to compel production, the prosecution offered to allow the defense attorneys and experts unfettered access to the images at the FBI office, without the presence of law enforcement officers, but still refused to provide copies. (Id. at p. 996.) The superior court denied the defendant's motion. It reasoned that it did not have jurisdiction to order the prosecution to duplicate and/or turn over the images to the defense and copying and dissemination of the material would violate section 311.1. (Westerfield, at p. 996.)
The defendant challenged the superior court's order by a petition for a writ of mandate. Relying on section 311.1, subdivision (b), the defendant argued that neither the statute nor public policy prohibits the copying of alleged child pornography for use by the defense in preparing its case. (Westerfield, supra, 99 Cal.App.4th at p. 996.) In addition, the defendant maintained that the superior court's order denied him access to evidence necessary for his counsel to effectively represent him. (Id. at p. 997.)
Section 311.1, subsection (b) provides: "This section does not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses."
The People countered that subdivision (b) of section 311.1 only permitted the duplication and distribution of the images by" 'law enforcement and prosecuting agencies.'" (Westerfield, supra, 99 Cal.App.4th at p. 997.) As such, they insisted that requiring the prosecutor to duplicate the material and provide it to defense counsel "would require the prosecutor to break the law." (Ibid.)
We disagreed with the People's position, reasoning:
"Nothing in the plain language of section 311.1 prohibits the copying of the images for use by the defense in preparing for trial. The People's interpretation of the statute-that the deputy district attorney would violate the law if he copied the images for the defense-not only defeats the purpose of the law and exalts absurdity over common sense, but it is also logically flawed. If the exemption in section 311.1, subdivision (b) allows the prosecutor to duplicate and distribute the images for prosecution purposes as the People readily concede, then the prosecutor can duplicate and distribute the images with impunity to any of the players in the criminal action-to the court pretrial as the prosecutor did on the motion here, to the jury at trial and/or to the defense as part of the prosecutor's discovery duties." (Westerfield, supra, 99 Cal.App.4th at p. 998.)
In addition, we determined that requiring the defense to view and commit to memory thousands of images at the computer crimes office would negatively impacts the defendant's right to effective assistance of counsel and his right to a speedy trial. (Westerfield, supra, 99 Cal.App.4th at p. 998.) Accordingly, we let a writ issue directing the superior court to vacate its previous order and enter an order requiring the prosecution to provide copies of the computer and video images to the defense. (Ibid.)
Although we interpreted section 311.1 in Westerfield, as Doe points out, there, the defendant was charged with violating section 311.1 and the subject videos, pictures, and files containing child pornography were going to be used by the prosecution to prove its case against the defendant. In other words, we only considered section 311.1 in terms of a criminal prosecution under that statute. As such, Doe maintains that Westerfield is not instructive here.
We agree that, in Westerfield, we did not consider the issue before us here: Whether videos violating section 311.1 could be subject to discovery in a civil action where the acts depicted on the videos concern the causes of action in question. We must answer that question here.
"The cardinal rule of statutory construction is to ascertain the intent of the Legislature and thus effectuate the purpose of the law. We start by looking to the plain meaning of the statutory language and, if further analysis is necessary, apply a reasonable and common sense interpretation and avoid absurdity." (Westerfield, supra, 99 Cal.App.4th at p. 997.)
"The obvious intent of the Legislature in enacting section 311.1, subdivision (a) was to criminalize the publication and/or distribution of material depicting minors engaged in sexual activities." (Westerfield, supra, 99 Cal.App.4th at p. 997.) In Westerfield, we noted that it would be ridiculous to read the statute to extend to the criminal action itself as "there would be no conceivable way for the state to try these cases or for the alleged child pornographers to defend against the charges." (Ibid.) We further applied this reasoning to allow the defendant to use the material to defend himself from the charges levied against him. (Id. at p. 998.)
Westerfield and the instant matter are different. This is a civil matter while Westerfield was criminal. The defendant in Westerfield was charged with violating section 311.1. Here, no one was charged with violating section 311.1. And Doe is not suing anyone for filming her, while she was 17 years old, engaging in sexual conduct. Yet, these differences do not persuade us that Westerfield is not useful here.
In the instant matter, Doe has alleged five causes of action against Leonard and Ewaliko. The alleged conduct underlying each of these causes of action is sexual assault, more specifically, gang rape. Doe has the right to prove those claims through the civil trial process. In turn, Leonard and Ewaliko have the right to defend themselves. Clearly, the parties disagree regarding what occurred on October 17, 2021. However, videos exist consisting of multiple short clips depicting some of what occurred on the date in question. If Doe believed the videos supported her theory of the case and wanted to use them to show that she was raped, would section 311.1 prohibit her from doing so? In other words, would Doe's use of the videos in civil litigation that she originated be the type of possession and/or publication the Legislature sought to criminalize by enacting section 311.1? We think such an application of section 311.1 would be absurd. Doe's use of the videos in our hypothetical simply is not the type of conduct about which the Legislature was concerned when it enacted section 311.1.
Similarly, we conclude it would be incongruous to find that section 311.1 would prohibit Leonard and Ewaliko from defending themselves here by using the videos. Through the compulsory process of being named civil defendants, Leonard and Ewaliko are involved in the instant matter. They are accused of acts of the most odious nature. The videos are highly relevant evidence that provide insight into what occurred on October 17, 2021 beyond the testimony of the parties. Again, we determine that Leonard's and Ewaliko's use of the videos to defend themselves in this civil action is not the type of possession and/or publication the Legislature sought to criminalize in section 311.1.
In addition, our analysis does not change when we consider the public policy underscoring section 311.1. We agree with Doe that "child pornography is a scourge on any civilized society and should be prevented." Yet, we see nothing in the August 11, 2023 minute order or this opinion that undermines section 311.1 or otherwise promotes the production or distribution of child pornography. Here, the production and use of the videos is subject to the exacting constraints set by the court. And the videos are only to be used for purposes of this litigation. If additional restrictions are needed, the parties may turn to the superior court for assistance.
Our conclusion here is both buttressed by and contingent on the unique circumstances of the record before us. Araiza sought discovery of the videos from the SDPD through the Civil Discovery Act. The SDPD objected to the production of the videos based on a belief that copying and production of the videos would violate section 311.1. Araiza brought a motion to compel, which SDPD and Doe opposed. The trial court carefully considered the arguments and evidence before ordering the SDPD to copy and produce the videos subject to a protective order and extremely strict limitations. The SDPD complied with that order and did not seek extraordinary relief from this court. Moreover, the SDPD has taken no position in response to the instant petition and has agreed to comply with all court orders. And the videos will be destroyed at the end of the litigation except for a single flash drive that the trial court will maintain for purposes of appeal.
In this sense, the superior court was merely managing discovery as is its role under the Civil Discovery Act. (See Code Civ. Proc., § 2017.020.) It is not uncommon for a court to grant a motion to compel or limit discovery though a protective order. The difficulty before us is the impact of section 311.1.
Although we ultimately conclude that the trial court did not err in ordering the SDPD to copy and produce the videos, we emphasize that we are not reading a general civil discovery exception into section 311.1. Rather, the impact of section 311.1 on civil discovery in future cases must be made on a case by case basis considering the claims at issue, the relevancy of the materials sought, the proposed use of the materials, fundamental fairness to the parties, and any other factors the trial court deems necessary. Further, any such materials that could violate section 311.1 may only be copied and produced pursuant to an appropriate protective order and under strict guidelines similar to what the trial court did here.
Finally, we observe that the focus of Doe's petition is aimed at the superior court's order for the SDPD to copy and produce the videos. Doe does not raise any specific arguments against the use of the videos during her deposition. Instead, her argument appears to be that because the court's order allowing the videos to be copied and produced was improper, the videos cannot be used during her deposition. As we have determined the superior court did not err in ordering the copying and production of the videos, we summarily deny any extension of that argument that the use of the videos at deposition would violate section 311.1. That said, the general discovery rules govern the use of the videos during deposition. They cannot be used in bad faith or to simply embarrass, harass, annoy, or oppress Doe. (Cf. Code Civ. Proc., § 2025.420, subd. (b).)
DISPOSITION
The petition for a writ of mandate is denied.
WE CONCUR: DO, J. KELETY, J.