Opinion
E073090
06-15-2020
MARY ANNA WHITEHALL, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; COUNTY OF SAN BERNARDINO et al., Real Party in Interest.
Law Offices of Bonner & Bonner, Charles A. Bonner, and A. Cabral Bonner; Law Offices of Valerie M. Ross and Valerie Ross for Petitioner. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel; Kessel & Megrabyan, Elizabeth M. Kessel, and Armineh Megrabyan, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. CIVDS1513975, J250357, J250358, J250359, J250360) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate or prohibition. Christopher B. Marshall, Judge. Petition granted. Law Offices of Bonner & Bonner, Charles A. Bonner, and A. Cabral Bonner; Law Offices of Valerie M. Ross and Valerie Ross for Petitioner. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel; Kessel & Megrabyan, Elizabeth M. Kessel, and Armineh Megrabyan, for Real Party in Interest.
In this writ proceeding, petitioner Mary Anna Whitehall seeks to compel the juvenile court to grant her petition for disclosure of confidential juvenile court case information under Welfare and Institutions Code section 827 (section 827).
Whitehall worked for the County of San Bernardino (County) as a social worker with Children and Family Services (Department). In a separate action (whistleblower action), currently awaiting trial, she alleges that the County retaliated against her, in violation of Labor Code section 1102.5, because she filed a petition in a juvenile dependency case asserting that the County had perpetrated a fraud on the court.
One of the elements of Whitehall's Labor Code section 1102.5 claim is that she had reasonable cause to believe that her motion disclosed a violation of a statute, rule, or regulation. Hence, she seeks leave of court to introduce otherwise confidential information, derived from juvenile court records, in her whistleblower action, to show that she had reasonable cause to believe that the County had committed a fraud on the court.
At least for purposes of this proceeding, the County has not disputed that, if Whitehall can prove the alleged fraud on the court, it would constitute a violation of a statute, rule, or regulation within the meaning of Labor Code section 1102.5.
The juvenile court denied her section 827 petition. It explained that Whitehall had not shown, with sufficient detail, how the confidential information was relevant to her whistleblower case. It also explained that she was acting on her own behalf, rather than on behalf of any dependent child.
We will hold that this was an abuse of discretion. The fact that Whitehall was not acting on behalf of a dependent child was not an absolute bar to disclosure. At most, it meant that the dependent children had no interests favoring disclosure; however, they also had no reason to oppose disclosure (and they did not). Moreover, when Whitehall's allegations in the whistleblower action are compared to the particular items that she was seeking, it becomes clear that at least some of them were relevant and, indeed, necessary.
I
FACTUAL BACKGROUND
In 2015, Whitehall filed her whistleblower action against the County. In it, she alleges that the County and the Department had retaliated against her, in violation of Labor Code section 1102.5, for disclosing a "fraud on the court."
The following "facts" represent Whitehall's allegations in the whistleblower action. They are taken from her complaint, her declaration in opposition to summary judgment, and her deposition in that action. We emphasize that the County disputes many of them, and so far, there has been no finding that they are true or false.
In 2013, a nine-month old baby was found dead. The Department assigned two social workers — E.B. and M.P. — to investigate. They discovered conditions indicating, in their opinion, that the baby's four older siblings were not safe in the home. They therefore detained them.
Whitehall worked for the Department as a social worker. She was assigned to prepare the jurisdictional/dispositional report in the case. Her supervisor ordered her to remove a "dirty house" allegation from her draft report. Her supervisor also ordered her not to submit some of the police photos of the children's home to the juvenile court and altered other police photos before they were submitted.
Because Whitehall was concerned about this, she gave all of the original police photos to the deputy county counsel in charge of the children's case. Shortly afterward, she was removed from the case; she was ordered not to talk to the social worker who replaced her.
Meanwhile, social worker E.B. was fired, purportedly for lying in the detention report. In the dependency, the Department moved for a new trial and to have the case reassigned to a new judge; it told the juvenile court that E.B. had lied in his detention report and thus had "tainted" "the whole case." Whitehall knew, however, from her investigation that "every . . . detail in the detention report" was true.
On March 6, 2014, Whitehall, E.B., and M.P. filed a petition in the juvenile court, disclosing the Department's "fraud upon the court." On March 12, 2014, the County and the Department put Whitehall on administrative leave. She believed this constituted retaliation for her petition.
The petition was filed under Welfare and Institutions Code section 388 (section 388). Whitehall represents that she and her co-petitioners determined that a section 388 petition was procedurally inappropriate, so they withdrew it and filed a petition under Welfare and Institutions Code section 385 (section 385) instead.
The County's position is that Whitehall was placed on administrative leave because the petition demonstrated that she had disclosed confidential information to her attorney, who drafted and filed it.
After Whitehall had been on administrative leave for two months, a tipster told her she was about to be fired. On May 14, 2014, to avoid being fired, she resigned.
II
PROCEDURAL BACKGROUND
In 2018, Whitehall filed petitions for disclosure of information contained in the following 17 documents from each of the children's case files:
Whitehall actually listed 18 documents, but item r appears to have been duplicative of item m.
a. The detention report.
b. The original petition.
c. The original jurisdictional/dispositional report.
d. The first amended petition.
e. The second amended petition.
f. An "additional information to the court" (6.7) report.
g. The third amended petition.
h. The police report.
i. Police photos.
j. The coroner's field report.
k. The coroner's autopsy report.
l. A medical report.
m and r. Minute orders granting the County's motion for new trial.
n. Whitehall's 388 petition.
o. Whitehall's section 385 petition.
p. Minors' counsel's section 388 petition.
q. Minors' counsel's motion to withdraw.
Whitehall sought to introduce seven of the documents (items f, k, and m-q) (documentary requests) at the trial of her whistleblower action. With respect to the other ten documents (items a-e, g-j, and l) (testimonial requests), she stated that she "does not seek to publish this record to the jury or to introduce the record as evidence during the trial." She explained that she was only seeking leave to elicit testimony about the contents of these documents.
Whitehall alleged that she needed the information because it would be "evidence of the fraud [she] disclosed to the juvenile court." She added further allegations regarding her need for the information in each particular category.
Finally, she alleged that the Department had already provided the documents (with identifying information redacted) to her counsel, who was representing social worker E.B. in a federal case. Some of them had even been filed in federal court.
The County, represented by private outside counsel, filed objections to disclosure and a memorandum of points and authorities.
The same counsel were representing the County in the whistleblower action.
The Department, represented by county counsel, did not file any objections, but it did file a separate memorandum of points and authorities.
The County and the Department are not separate entities. The Department is merely an administrative unit of the County. (S.B. County Code, § 12.2400.)
The County is well aware of this. In her whistleblower action, Whitehall named both the County and the Department as defendants. The County, however, appeared as the sole defendant and asserted that it had been "erroneously sued as" the Department.
The County is entitled to be represented by two separate sets of attorneys, if it so chooses. However, it should not have been allowed to file two memoranda of points and authorities below, nor two returns in this writ proceeding.
In 2019, the juvenile court held a hearing at which it heard argument on the petitions. Counsel for the mother, the father, and the minors were present, but did not address the merits of the petitions.
On April 29, 2019, the juvenile court denied the petitions. It explained: "[T]he relevance of these records to the Petitioner's cause of action for whistleblower liability is dubious as the Petitioner is not seeking to investigate or prosecute claims on behalf of any of the children . . . ."
Regarding the testimonial requests, it found: "Petitioner has failed to describe 'in detail' the reasons why the documents are sought and their relevance or purpose."
Regarding the documentary requests, it found: "[T]he Petitioner has not satisfied her burden to establish their relevance to the Petitioner's civil case." It also made separate findings, as to each such request, that Whitehall had not satisfactorily shown relevance.
Whitehall then filed the present writ proceeding, seeking to compel the juvenile court to grant disclosure. We issued an order to show cause.
III
DISCUSSION
A. Legal Background.
"'It is the express intent of the Legislature "that juvenile court records, in general, should be confidential."' [Citation.]" (In re B.F. (2010) 190 Cal.App.4th 811, 818.)
Specified persons and entities, including child welfare social workers, are entitled to inspect juvenile court records. (Welf. & Inst. Code, § 827, subd. (a).) Persons other than those specified can obtain access to juvenile court records by filing a petition. (Welf. & Inst. Code, § 827, subds. (a)(1)(Q), (a)(3).) In such a petition:
"(1) The specific files sought must be identified based on knowledge, information, and belief that such files exist and are relevant to the purpose for which they are being sought.
"(2) Petitioner must describe in detail the reasons the files are being sought and their relevancy to the proceeding or purpose for which petitioner wishes to inspect or obtain the files." (Cal. Rules of Court, rule 5.552(b).)
If the petition does not show good cause, the juvenile court must "deny it summarily." (Cal. Rules of Court, rule 5.552(d)(1).) If the petition does show good cause, "the court may set a hearing." (Cal. Rules of Court, rule 5.552(d)(2).)
"In determining whether to authorize inspection or release of juvenile case files, . . . the court must balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public." (Cal. Rules of Court, rule 5.552(d)(4).) In order to grant the petition, "the court must find that the need for discovery outweighs the policy considerations favoring confidentiality of juvenile case files." (Cal. Rules of Court, rule 5.552(d)(5).) It must also find "that the records requested are necessary and have substantial relevance to the legitimate need of the petitioner." (Cal. Rules of Court, rule 5.552(d)(6).)
We review the juvenile court's ruling under the abuse of discretion standard. (Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 835.) However, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
B. The Scope of Section 827 .
Preliminarily, we questioned whether section 827 even applies here. It speaks in terms of "inspect[ion]" of a juvenile "case file." (Welf. & Inst. Code, § 827, subds. (a)(1), (e).) While it also refers to "information" in certain specific contexts (Welf. & Inst. Code, § 827, subds. (a)(1)(J)(ii), (a)(2)(A), (a)(3)(A), (a)(4), (a)(5), (b)(2), (d)), it does not categorically declare juvenile case "information" confidential. Nor does it expressly require or provide for a petition for the disclosure of juvenile case "information."
Whitehall is not seeking to inspect any juvenile court records. She claims her counsel already has copies of them. Rather, she seeks to introduce a minority of the documents at trial. With respect to the majority of the documents, she seeks only to introduce testimony regarding their contents.
Despite its literal wording, however, section 827 has been broadly construed to give the juvenile court control over the dissemination of information in juvenile court records.
In In re Tiffany G. (1994) 29 Cal.App.4th 443, the mother and her husband mailed copies of juvenile court records "to numerous people in California and Iowa." (Id. at p. 447.) The juvenile court ordered them not to distribute confidential juvenile court documents to anyone. (Id. at p. 448.) On appeal, they argued that "while section 827, subdivision (a) limits the ability of authorized agencies to disseminate juvenile court records, there is no specific corresponding statutory limitation on the right of a parent to do so. Thus, they argue, as the statute does not specifically name them as parties who may not disseminate juvenile court documents, they are free to do so." (Id. at p. 449.) The appellate court "reject[ed] this argument": "We think this is too narrow a reading of the statute, and in particular it ignores the need to read together all of the statutes on this subject so as to determine the legislative intent. [Citation.]" (Ibid.)
In In re Gina S. (2005) 133 Cal.App.4th 1074, a mother filed a section 827 petition, seeking to obtain juvenile court records regarding her own mental or physical health for use in a potential action for invasion of privacy. (Id. at p. 1079.) The court noted that, as a party to the juvenile court proceedings, the mother already had the right to inspect the records. (Id. at p. 1082.) It held, however, that the juvenile court had the "inherent power to control the dissemination of the juvenile case files and keep the files confidential. [Citation.]" (Id. at p. 1085.) It further held that the trial court, in ruling on her section 827 petition, should have allowed her to disseminate at least some of the information in the juvenile court files. (Id. at pp. 1085-1088.)
The court stated: "To be clear, [the mother] was not seeking access to the juvenile case file; again, as discussed [above], appellant had the right to inspect the file. [Citation.] Indeed, [the social services agency's] counsel told the juvenile court that [it] previously had provided discovery from [its] file regarding the incident at issue, and appellant's counsel acknowledged '[i]t's true that we do have the information.' [Citation.] What appellant sought was permission to disseminate that information to an attorney to pursue a possible civil action, something she acknowledged she was not permitted to do absent a court order." (In re Gina S., supra, 133 Cal.App.4th at p. 1086.) Thus, in effect, the Gina S. court held that section 827 applies not only to inspection of juvenile court files, but also to dissemination of information in such files.
In sum, then, "[j]uvenile court records may not be disclosed or disseminated except by order of the juvenile court. The juvenile court has exclusive authority to determine the extent to which juvenile court records may be disclosed. [Citations.]" (Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799, 803-804; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2019) § 1.34[1], p. 1-55.)
Here, Whitehall had access to juvenile court documents (and the information in them) when she was a social worker. Moreover, her counsel already has copies of the documents that are the subject of her petition. Nevertheless, she is prohibited from disseminating the information in these documents unless and until she obtains leave of court under section 827.
C. The Juvenile Court's Ruling on Whitehall's Section 388 Petition and Its Effect on the Section 827 Proceeding.
The County claims that the juvenile court denied Whitehall's section 388 petition in the dependency and thereby "determined there was no fraud on the court."
The County offers no legal authority to support this contention. Thus, it has forfeited the point. (Cal. Rules of Court, rule 8.204(a)(1)(B); Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)
We can only guess that the County is thinking of collateral estoppel. That doctrine prohibits the relitigation of an issue, but only if, among other things, that identical issue has already been both actually litigated and necessarily decided. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
Our record fails to show that the section 388 motion was, in fact, denied. A fortiori, it fails to show that it was denied because the juvenile court found that there was no fraud on the court. The juvenile court could have denied it for procedural reasons, or because it found that there was a fraud on the court but the fraud did not warrant changing any of its previous orders. (See Welf. & Inst. Code, § 388.)
In her traverse, Whitehall says — although not under oath — that the juvenile court never ruled on the motion.
Moreover, for purposes of Labor Code section 1102.5, what matters is not whether the County actually committed a fraud on the court, but rather whether Whitehall had "reasonable cause to believe" the County committed a fraud on the court. (Lab. Code, § 1102.5, subd. (b), italics added.) It seems unlikely that the juvenile court decided this question in ruling on the section 388 petition. Certainly our record does not show that it did.
D. The Interests of the Children and the Parents.
The County contends that disclosure is permissible only if it affirmatively benefits the child. According to the County, disclosure has only been "allowed . . . for the benefit of the same juveniles or their families." "[T]here is no precedent for allowing any civil litigant to use these records for their own personal benefit, unless the civil litigant is the person whose juvenile files are being requested."
For such a precedent, the County need look no further than its own brief, which cites R.S. v. Superior Court (2009) 172 Cal.App.4th 1049. In R.S., the appellate court upheld the trial court's ruling that a child who had been sexually molested by another child was entitled to obtain the perpetrator's juvenile court records for use in an action against the perpetrator's parents. (Id. at pp. 1055-1056.) Moreover, as the court observed, "other courts have engaged in this same balancing of interests regardless of whether the minor whose records were being sought was a party to the pending litigation." (Id. at p. 1055; see also cases cited.) At a minimum, in R.S., the disclosure did not benefit the child.
Here the juvenile court denied the petition using reasoning similar to the County's — because "the children are not parties to [Whitehall]'s civil case." It added, "[Whitehall] is not seeking to investigate or prosecute claims on behalf of any of the children . . . . [She] does not seek any remedies or damages on behalf of any of the children . . . . [Whitehall] has no familial interest in any of the children whose records she seeks."
Whitehall contends that this reasoning was erroneous. We agree. There is no per se rule that a party seeking disclosure of juvenile court records must be acting on behalf of the child. At most, this is merely one factor that the juvenile court may consider in assessing the child's interest and weighing it against the other interests involved.
In re Anthony H. (2005) 129 Cal.App.4th 495 is closely on point. There, we held that the grandmother of a dependent child could, at least potentially, obtain juvenile court records for use in a federal civil rights action against the social services agency for allegedly mishandling the child's case. (Id. at pp. 505-506.)
In addition, In re Keisha T. (1995) 38 Cal.App.4th 220 held that a newspaper could, at least potentially, obtain juvenile court records over the objection of the children involved. (Id. at pp. 231-234.) And Navajo Express v. Superior Court (1986) 186 Cal.App.3d 981 held that the defendants in a personal injury action were entitled to obtain the plaintiff's juvenile court records, to the extent that they were relevant to show that his claimed injuries were preexisting. (Id. at pp. 985-987.)
California Rules of Court, rule 5.552(d)(4) requires the juvenile court to balance the interests involved, including the child's; it does not give any one interest a veto power.
The parties to the dependency always have some interest in confidentiality. The juvenile court, however, did not discuss this interest. A fortiori, it did not find that granting the section 827 petition would substantially impair that interest. Rather, it relied on "the general policy that records of the Juvenile Court are confidential."
The County notes that the parties have not consented to Whitehall's request. But they have not objected, either. Procedurally, the onus was on them to object; Whitehall was not required to obtain their consent. (Cal. Rules of Court, rule 5.552(c)(1), (d)(3).) Their counsel appeared at the hearing, but did not argue one way or the other.
Minors' counsel merely asked that the juvenile court not destroy the documents in the ordinary course of business before the matter could be finally resolved. This could be viewed as implicitly supporting Whitehall's request.
Here, the parties' interests can be fully protected by redacting their names, the name of the deceased child, and any irrelevant information. This is hardly a novel concept. This court files opinions in dependency cases almost every day — some published, and some unpublished but available on the internet. If these opinions are to be comprehensible, they must include at least some information from confidential juvenile court files. Two simple steps — redacting names and omitting irrelevant details — are normally considered sufficient to protect the parties' interest in confidentiality.
The County cites Pack v. Kings County Human Services Agency, supra, 89 Cal.App.4th 821, which stated that "redaction may not in every case be sufficient" (id. at p. 830); it held that the juvenile court could deny disclosure when the release of even redacted records would still be detrimental to the children. (Id. at pp. 830-831.) Here, however, there is no evidence that granting disclosure, with appropriate redactions, would harm the children or the parents.
Finally, the cat's ears and whiskers were already out of the bag. Whitehall was well aware of the information in the records, because she worked on the dependency case. Moreover, her counsel had obtained the documents, and some of them had been filed as public records in a federal court action.
For these reasons, the children and the parents' interest in confidentiality could be adequately protected by redaction.
E. Whitehall's Interest in Disclosure.
1. Relevance of the information in general.
Whitehall asserted an interest in disclosure because she needed to introduce information from juvenile court records in the trial of her whistleblower action. It seems indisputable that she needed to introduce at least some of this information.
Labor Code section 1102.5, subdivision (b), prohibits an employer from retaliating against an employee "for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation . . . ." A violation of Labor Code section 1102.5 gives rise to a private right of action for damages. (Lab. Code, § 1105; Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 241.)
To establish a prima facie case under Labor Code section 1102.5, "a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. [Citation.]" (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) Here, to prove that she had reasonable cause to believe that there had been a fraud on the court, Whitehall will have to show what the investigation by social workers E.B. and M.P revealed (including the police photos), and to compare that to what the Department filed with the juvenile court. She will also have to introduce evidence of the Department's motion for new trial. Finally, she will have to introduce evidence of her section 388 and 385 petitions to show that they did disclose the alleged fraud on the court.
The County argues that Whitehall has less invasive alternative means to prove her case, namely by the testimony of witnesses, such as herself, E.B., and M.P. With respect to most of the documents, however, that is exactly what she is seeking leave to introduce — witness testimony about the documents, not the documents themselves.
We see only two relevant differences between disclosure of the documents and disclosure of information in the documents. First, a document may contain both relevant and irrelevant information. Testimony, on the other hand, can be limited to only relevant information. This difference, however, can be eliminated by judicious redaction of the document.
Second, all else being equal, a document is stronger and more convincing evidence than a witness's testimony. It can be used along with a witness's testimony, so that each corroborates the other. Thus, with regard to Whitehall's documentary requests — provided the documents are suitably redacted — she has a substantial need for the documents themselves.
The County also draws a distinction between evidence of an actual fraud on the court and evidence of reasonable cause to believe in a fraud on the court. It seems to feel that documents are necessary to prove the former but not the latter. We disagree. If there was actual fraud, that would be powerful evidence of reasonable cause to believe there was fraud. The documents themselves are part of the basis for Whitehall's claimed reasonable beliefs. For example, she claims that the Department told the juvenile court the detention report was false, but she knew it was true. We see no way to present this claim to a jury without introducing the detention report or at least disclosing its contents.
The juvenile court disregarded Whitehall's interest for a different reason: because she "failed to describe 'in detail' the reasons why the documents are sought and their relevance or purpose. Instead, [she] utilizes general assertions which apply to most of what she requests." It found her requests "overbroad" and her need for disclosure overly "generalized."
Normally, the specificity of the petition is a consideration in deciding whether to hold a hearing; if the petition does not show good cause, the juvenile court "must . . . deny it summarily." (Cal. Rules of Court, rule 5.552(b)(2), (d)(1).) Arguably, by setting a hearing, the juvenile court implicitly found that the petition was sufficiently specific. Even if so, however, it was entitled to reconsider that finding sua sponte. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1101.)
With respect to at least some of the documents, however, Whitehall's allegations in her whistleblower action provide all the detail that is necessary to show good cause. For example, in her whistleblower action, she alleges that her supervisor made her take out one of the allegations in her original jurisdictional/dispositional report. She seeks leave to disclose the contents of that report in order to prove this. We see no way she could possibly prove it without disclosing the contents of the report. Moreover, we see no point to requiring a more detailed explanation.
Similarly, in her whistleblower action, she alleges that the County placed her on administrative leave because she filed her section 388 petition and she thereby disclosed a fraud on the court. The County claims she was placed on administrative leave because she disclosed confidential information to her attorney for the purpose of filing the section 388 petition. Whitehall seeks leave to disclose the contents of her section 388 petition "to establish she engaged in protected activity." We see no way she could litigate this issue without disclosing the contents of the petition.
We therefore conclude that the juvenile court erred by denying Whitehall any disclosure whatsoever. However, that does not necessarily mean she was entitled to all of the disclosure that she was seeking. We turn to her particular requests.
2. Relevance of specific items.
a. The documentary requests.
The juvenile court made separate findings, with respect to each of the documentary requests, that Whitehall had not shown relevance. We discuss these seriatim.
i. The 6.7 report (item f).
Whitehall sought the 6.7 report — which included the photos that the Department submitted to the juvenile court — and the police photos because comparing the two would show that the Department altered and omitted some of the photos.
The juvenile court acknowledged that this was her purpose, but it concluded that this request had "no factual basis." We are at a loss to understand its reasoning. Both items are not merely relevant but central to Whitehall's contention that the County committed a fraud on the court.
ii. Coroner's autopsy report (item k).
Whitehall sought the coroner's autopsy report to use for impeachment. She explained that, according to the Department, the coroner determined that the baby died due to sudden infant death syndrome (SIDS). The Department claimed that, in light of this cause of death, there was no need to include the "dirty house" allegation in the jurisdictional/dispositional report. The coroner's autopsy report, however, actually concluded that the death was due to sudden unexplained infant death (SUID). Thus, it would show that the County "used an inaccurate cause of death to bolster its position that the parents were not all that bad."
SUID is a broader term than SIDS; it includes not only SIDS, but also other unknown (and hence potentially homicidal) causes. (See generally National Center for Fatality Review and Prevention, Fact Sheet, available at <https://www.ncfrp.org/reporting/sidssuid>, as of June 15, 2020.) --------
The juvenile court ruled: "This [r]equest also fails to show the relevance to her civil case as [Whitehall] states she will not use the [coroner's autopsy report] for evidence but to impeach . . . ." It may seem like a truism, but a document that is relevant to impeach is relevant. Moreover, Whitehall's explanation actually went beyond impeachment; it showed that the coroner's autopsy report had substantial relevance to her prima facie case.
iii. Medical report (item l).
Whitehall represented that the medical report supported the findings and recommendations that her supervisor made her remove from the jurisdictional/dispositional report.
The juvenile court did not find that this was untrue; it did not review any of the documents in camera. It merely found that "[Whitehall] again fails to show the relevance of this [r]equest to her civil case." Based on Whitehall's unchallenged representation, however, the medical report would support her belief that there was a fraud on the court.
iv. Minute orders (items m and r).
The minute orders showed that the juvenile court granted the Department's motion in the dependency for a new trial. Whitehall alleges (and presumably will show with other evidence) that the Department obtained a new trial by telling the juvenile court, falsely, that E.B. had lied in the detention report. Thus, the fact that the new trial motion was granted was relevant.
The juvenile court found that Whitehall's request was too "generalized" to show relevance with "the detail[] required." However, when her request is compared to her allegations in the whistleblower action, the relevance is clear.
v. Whitehall's petitions in the dependency (items n and o).
Whitehall sought her section 388 and section 385 petitions because they were "at the heart of [her whistleblower] case." They were the documents in which she revealed the alleged fraud on the court; thus, they constituted the very protected activity for which the County allegedly retaliated against her. Nevertheless, the juvenile court ruled that "[Whitehall] fails to show the relevance and the reasons for their being sought . . . ." This was error.
Whitehall had mentioned in her request that these documents did "not directly relate to the juvenile." The juvenile court seized on this as meaning that they were not relevant. That is an unreasonable interpretation. In context, it clearly means that disclosing the documents would not disclose any sensitive information about the children. Thus, it was actually more reason to allow disclosure.
vi. Minors' counsel's section 388 petition.
Whitehall sought a section 388 petition that minors' counsel had filed on their behalf. She explained that she "intends to elicit testimony from the Minors' counsel regarding her decision to file the 388 petition and the investigation she conducted after learning about [Whitehall's] 388 petition." The juvenile court ruled that this was insufficient to carry Whitehall's "burden as to relevance."
In this instance, it would not necessarily be an abuse of discretion to find that Whitehall failed to show relevance. Her explanation was indeed very general. One could infer that minors' counsel investigated Whitehall's allegations, confirmed them (or found even more evidence of a fraud on the court), and therefore filed a section 388 petition. On the other hand, if that was the case, one would expect Whitehall to say so clearly.
Nevertheless, we are reluctant to uphold the juvenile court's ruling on this ground. It is apparent, from its rulings on other requests, that it failed to evaluate Whitehall's requests against the background of her allegations in her whistleblower action. Moreover, it set up an unduly high hurdle of relevance. Hence, we will remand with directions to reconsider disclosure of this document.
vii. Minors' counsel's motion to withdraw.
Apparently minors' counsel took the minors' section 388 motion off calendar, then filed a motion for leave to withdraw. Whitehall sought "to elicit testimony from the [m]inors' counsel regarding why she sought to withdraw as counsel of record and the long-term impact of the underlying case on how her firm treats information provided to it by the County . . . ."
As with minors' counsel's section 388 petition, it would not necessarily be an abuse of discretion to find that Whitehall failed to show relevance. It would help to have an offer of proof as to exactly why minors' counsel sought to withdraw and exactly how the dependency affected her firm's treatment of information from the County — although arguably, it could be inferred that the evidence could support Whitehall's claim.
Thus, once again, we will remand with directions to reconsider disclosure of this document.
b. The testimonial requests.
With respect to the testimonial requests, the juvenile court made a single, generic, "lump" finding that Whitehall had not shown relevance.
In part III.E.1, ante, we discussed one of these items (the original jurisdictional/dispositional report); we concluded that it was sufficiently relevant to require disclosure. In part III.E.2.a.i, we discussed another one of these items (the police photos), in conjunction with the 6.7 report, and we concluded that both were sufficiently relevant to require disclosure. It follows that the juvenile court's generic finding was erroneous.
Again, however, it would not necessarily be an abuse of discretion to find that some of the other testimonial requests were not relevant. For example, Whitehall did not explain how the first, second, and third amended petitions differed from each other or why she needed disclosure of all three of them.
Because the juvenile court has not yet considered disclosure of each of the remaining items on a separate and individual basis, we will direct it to do so on remand.
We call the attention of the parties and the trial court to a passage in a leading treatise. It says that when disclosure is sought for use in another pending action, it may make sense for the presiding judge of the juvenile court to appoint the judge in that other action as a judge of the juvenile court, temporarily, for the purpose of ruling on the section 827 petition. "[T]hat judge may well be in the best position to determine whether any information in the juvenile court records has sufficient relevance to the pending litigation to merit disclosure." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 1.34[2][b], p. 1-63.) However, this is only a suggestion on our part, not a requirement.
IV
DISPOSITION
Let a peremptory writ of mandate issue, directing the juvenile court to:
1. Vacate its order denying the section 827 petition.
2. Grant the section 827 petition with respect to the following items, but only after it determines whether the disclosure should be limited or redacted, and if so, how:
Item a: The detention report.
Item c: The original jurisdictional/dispositional report.
Item f: The 6.7 report.
Item i: Police photos.
Item k: The coroner's autopsy report.
Item l: The medical report.
Items m and r: Minute orders granting the County's motion for new trial.
Item n: Whitehall's 388 petition.
Item o: Whitehall's section 385 petition.
3. Reconsider the section 827 petition — including, if it grants disclosure, whether the disclosure should be limited or redacted — with respect to the following items:
Item b: The original petition.
Item d: The first amended petition.
Item e: The second amended petition.
Item g: The third amended petition.
Item h: The police report.
Item j: The coroner's field report.
Item p: Minors' counsel's section 388 petition.
Item q: Minors' counsel's motion to withdraw.
Whitehall is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties. Whitehall is awarded her costs incurred in this writ proceeding against the County.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: FIELDS
J. RAPHAEL
J.