The opinion
Filed 5/26/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALL OF US OR NONE – RIVERSIDE D076524
CHAPTER et al.,
Plaintiffs and Appellants,
(Super. Ct. No. 37-2017-
v. 00003005-CU-MC-NC)
W. SAMUEL HAMRICK, JR., as Clerk,
etc., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Earl H. Maas III, Judge. Affirmed in part; reversed in part; remanded for
further proceedings.
A New Way of Life Reentry Project, Joshua E. Kim, CT Turney-Lewis;
Social Justice Law Project, Peter E. Sheehan; DHF Law and Devin H. Fok for
Plaintiffs and Appellants.
Jones Day, Erica L. Reilley and Erna Mamikonyan for Defendants and
Respondents.
I.
INTRODUCTION
Plaintiffs, All of Us or None–Riverside Chapter (All of Us or None),1
Jane Roe, and Phyllis McNeal, filed this action seeking declaratory and
injunctive relief against defendants, Superior Court of California, County of
Riverside (Riverside Superior Court), and its Executive Officer and Clerk,
W. Samuel Hamrick, Jr. Plaintiffs alleged that defendants improperly
maintain the Riverside Superior Court’s records in criminal cases in various
ways, including: (1) failing to properly destroy certain court records of old
marijuana-related offenses, as required under Health and Safety Code
section 11361.5 (“section 11361.5”) (first cause of action); (2) allowing users of
the Riverside Superior Court’s public website to search the court’s electronic
index by inputting a defendant’s known date of birth and driver’s license
number, in violation of California Rules of Court, rule 2.507 (Rule 2.507)
(third cause of action); and (3) disclosing protected criminal record
information in violation of Penal Code section 133002 et seq. (fourth cause of
action). Plaintiffs also alleged that the foregoing practices invade their right
to privacy as embodied in the California Constitution (fifth cause of action).
Plaintiffs claimed that they were entitled to declaratory relief (sixth cause of
1 According to plaintiffs, All of Us or None “is an organization dedicated
to protecting and advancing civil and human rights of people who have been
formerly incarcerated and convicted . . . .”
2 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
2
action) and a writ of mandate (seventh cause of action) to remedy these
violations.3
The trial court sustained defendants’ demurrer to plaintiffs’ third
(violation of Rule 2.507) and fourth (violation of section 13300 et. seq.) causes
of action without leave to amend.4 Thereafter, the court denied plaintiffs’
motion for summary judgment and/or adjudication as to plaintiffs’ first
(violation of section 11361.5) and fifth (invasion of constitutional right to
privacy) causes of action5 and granted defendants’ motion for summary
judgment as to plaintiffs’ first (violation of section 11361.5), fifth (invasion of
constitutional right to privacy), sixth (declaratory relief) and seventh (writ of
mandate) causes of action. Having disposed of all of plaintiffs’ claims, the
court proceeded to enter a judgment in favor of defendants.
On appeal, plaintiffs challenge the trial court’s demurrer and summary
judgment rulings. With respect to the former, in their primary briefing on
3 The operative complaint for purposes of the third and fourth causes of
action is the first amended complaint, and the operative complaint for the
remaining causes of action is the second amended complaint. McNeal
entered the litigation as a plaintiff in the second amended complaint.
However, because the identity of each of the plaintiffs is not material for
purposes of the issues raised on appeal, for purposes of clarity, we refer to all
plaintiffs collectively as “plaintiffs.”
4 The trial court also sustained defendants’ demurrer to plaintiffs’ second
cause of action without leave to amend and dismissed this cause of action
with prejudice. Plaintiffs do not raise any challenge to this ruling on appeal.
5 Plaintiffs did not specifically address their sixth and seventh causes of
action in their motion for summary judgment/adjudication. However, the
sixth and seventh causes of action did not allege any substantive violation,
but rather, sought specified forms of relief based on alleged violations
contained in the other causes of action in the complaint.
3
appeal, plaintiffs contended that the trial court erred in sustaining
defendants’ demurrer to the third and fourth causes of action. As to the third
cause of action, plaintiffs note that Rule 2.507(c) requires that courts exclude
“date of birth” and “driver’s license number” from a court’s electronic court
index. Plaintiffs maintain that they adequately alleged that defendants
violate this rule of court by permitting the public to search the Riverside
Superior Court’s electronic criminal index by use of an individual’s known
date of birth or driver’s license number. After considering the text, history,
and purpose of Rule 2.507, we agree that the rule prohibits the Riverside
Superior Court from allowing searches of its electronic criminal index by use
of an individual’s date of birth or driver’s license number. We further
conclude that the trial court erred in sustaining defendants’ demurrer to this
cause of action.
As to the fourth cause of action, plaintiffs initially claimed on appeal
that they “stated facts sufficient to constitute a cause of action for violation
of . . . sections 13302 and 13303.”6 However, in response to our request for
supplemental briefing, plaintiffs concede that sections 13302 and 13303 are
penal provisions and that plaintiffs cannot maintain their fourth cause of
action as presently alleged because California law bars “maintaining an
action to enforce penal provisions.”7 We accept plaintiffs’ concession and
6 As explained in part III.A.1.b.iii, post, sections 13302 and 13303 make
it a misdemeanor to improperly disclose certain criminal record information.
7 In response to our request for supplemental briefing, plaintiffs also
“assume[d] without argument that defendant Riverside County Superior
Court may not be held criminally liable for violating a criminal law,” as
plaintiffs had alleged in the fourth cause of action.
4
conclude that the trial court properly sustained defendants’ demurrer to this
cause of action.8
Plaintiffs also raise several challenges to the trial court’s summary
judgment ruling. Plaintiffs contend that the court erred in denying their
motion for summary adjudication of their first cause of action for violation of
section 11361.5 pertaining to the obliteration of marijuana-related offense
records and in granting defendants’ motion for summary adjudication of that
same cause of action. We agree with plaintiffs that undisputed evidence
establishes that defendants’ current obliteration practices violate section
11361.5 and that plaintiffs are entitled to judgment as a matter of law on this
cause of action.
Plaintiffs further claim that the trial court erred in denying their
motion for summary adjudication of their fifth cause of action for invasion of
the right to privacy and in granting defendants’ motion for summary
adjudication of that same cause of action. We conclude that neither plaintiffs
nor defendants are entitled to judgment as a matter of law on plaintiffs’ fifth
cause of action.
Finally, because we are reversing the judgment with respect to several
of plaintiffs’ substantive causes of action (i.e., the first, third, and fifth causes
of action), we must also reverse the trial court’s grant of judgment as a
matter of law on plaintiffs’ remedial causes of action for declaratory relief
(sixth cause of action) and injunctive relief (seventh cause of action).
8 In their supplemental brief, plaintiffs contend for the first time that
they could amend their complaint to properly state a cause of action. As
explained in part III.A.4, post, we do not address the merits of plaintiffs’
proposed amendment. In view of the fact that we are remanding the matter
on other grounds, plaintiffs may ask the trial court for leave to amend their
complaint to state a cause of action as described in their supplemental brief.
5
Accordingly, we affirm in part, reverse in part, and remand for further
proceedings.
II.
PROCEDURAL BACKGROUND
In April 2017, All of Us or None and Jane Roe filed a first amended
complaint / petition against defendants. In their first amended complaint /
petition, plaintiffs brought seven causes of action including: violation of
section 11361.5 (first cause of action); violation of Rule 2.507 (third cause of
action); violation of section 13300 et seq. (fourth cause of action); invasion of
constitutional right to privacy (fifth cause of action); declaratory relief (sixth
cause of action); and petition for writ of mandate (seventh cause of action).
Defendants demurred to all of the causes of action. The trial court
sustained the demurrer without leave to amend as to the third and fourth
causes of action, and overruled the demurrer as to the first, fifth, sixth and
seventh causes of action.
In January 2018, plaintiffs filed a second amended complaint adding
McNeal as a plaintiff.9 In their second amended complaint / petition,
plaintiffs brought four of the same causes of action as were alleged in their
first amended complaint, including: violation of section 11361.5 (first cause
of action); invasion of constitutional right to privacy (fifth cause of action);
declaratory relief (sixth cause of action); and petition for writ of mandate
(seventh cause of action).10
9 In their second amended complaint, plaintiffs alleged that “Plaintiff
McNeal joins this lawsuit to prevent unlawful expenditure of public resources
by Defendant Riverside . . . Superior Court.”
10 Plaintiffs’ second amended complaint also included causes of action for
violation of Rule 2.507 (third cause of action) and violation of section 13300
6
Plaintiffs moved for summary judgment and/or adjudication on the first
cause of action for violation of section 11361.5 and the fifth cause of action for
invasion of the constitutional right to privacy.11 On the same day,
defendants moved for summary judgment and/or adjudication on the first,
fifth, sixth, and seventh causes of action.
The trial court denied plaintiffs’ motion and granted defendants’
motion. The court subsequently entered a final judgment in favor of
defendants.
Plaintiffs timely appealed.
et seq. (fourth cause of action). However, the second amended complaint
indicated that the trial court had previously sustained a demurrer to both
causes of action without leave to amend.
Plaintiffs presumably maintained the allegations contained in the third
and fourth causes of action because their invasion of privacy cause of action
(fifth cause of action) incorporated all of the allegations of the complaint. In
that regard, at the hearing on defendants’ demurrer, when discussing the
effect of the trial court having sustained the demurrer as to plaintiffs’ causes
of action for violation of Rule 2.507 and section 13300 et seq. on the invasion
of privacy cause of action, the trial court stated, “[I]t could still be a right of
violation of privacy for doing other things that don’t constitute a cause of
action on their own.”
11 As noted in footnote 5, ante, although plaintiffs’ motion did not address
their sixth cause of action (declaratory relief) and seventh cause of action
(writ of mandate), these causes of action did not contain substantive claims.
7
III.
DISCUSSION
A. The trial court erred in sustaining defendants’ demurrer to the third cause
of action (violation of Rule 2.507) without leave to amend but properly
sustained defendants’ demurrer to the fourth cause of action (violation of
section 13300 et seq.); on remand, plaintiffs may ask the trial court for
leave to amend their complaint to attempt to properly state a cause of
action for improper disclosure of criminal offender record information
Plaintiffs claim that the trial court erred in sustaining defendants’
demurrer with respect to both the third cause of action (violation of Rule
2.507) and the fourth cause of action (violation of section 13300 et seq.)
without leave to amend. We first provide an overview of the law and the
factual and procedural background relevant to plaintiffs’ claims. We then
consider plaintiffs’ arguments with respect to defendants’ demurrer as to
each cause of action.
1. Relevant law
a. The law governing demurrers and the applicable standard of
review
In Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th
1602, the court outlined the following well-established law governing the
review of an order sustaining a demurrer without leave to amend:
“A demurrer tests the legal sufficiency of the complaint.
We review the complaint de novo to determine whether it
alleges facts sufficient to state a cause of action. For
purposes of review, we accept as true all material facts
alleged in the complaint, but not contentions, deductions or
conclusions of fact or law. We also consider matters that
may be judicially noticed. [Citation.] When a demurrer is
sustained without leave to amend, ‘we decide whether there
is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of
8
discretion and we affirm.’ [Citation.] Plaintiff has the
burden to show a reasonable possibility the complaint can
be amended to state a cause of action.” (Id. at pp. 1608–
1609, fn. omitted.)
b. Substantive law
i. Rule 2.503
California Rules of Court, rule 2.503 (Rule 2.503) specifies the manner
by which electronic trial court records12 are to be made available to the
public. Rule 2.503(b) mandates that trial courts that maintain an electronic
index must provide remote electronic access to “indexes in all cases” (Rule
2.503(b)(1), italics added), to the extent that it is feasible to do so.13
12 California Rules of Court, rule 2.502 defines “court record” as:
“[A]ny document, paper, or exhibit filed in to an action or
proceeding; any order or judgment of the court; and any
item listed in Government Code section 68151(a)—
excluding any reporter’s transcript for which the reporter is
entitled to receive a fee for any copy—that is maintained by
the court in the ordinary course of the judicial process. The
term does not include the personal notes or preliminary
memoranda of judges or other judicial branch personnel,
statutorily mandated reporting between or within
government entities, judicial administrative records, court
case information, or compilations of data drawn from court
records where the compilations are not themselves
contained in a court record.”
Government Code section 68151, subdivision (a) in turn specifies that a
court record includes “[a]ll filed papers and documents in the case folder,”
along with “[a]dministrative records filed in an action or proceeding,” and
records listed in Government Code section 68152, subdivision (g).
Government Code section 68152, subdivision (g) lists 16 different types of
documents including court “index[es]” (Id., subd. (g)(15)).
13 Rule 2.503 provides in relevant part:
9
In addition, trial courts are generally required to make “[a]ll court
records in civil cases,” remotely accessible, if feasible, pursuant to Rule
2.503(b)(2).14 (Italics added.)
However, Rule 2.503(c) provides a different rule for records in criminal
cases. Rule 2.503(c) provides in relevant part:
“(c) Courthouse electronic access only
“A court that maintains the following records in electronic
form must provide electronic access to them at the
courthouse, to the extent it is feasible to do so, but may not
provide public remote access to these records:
“[¶] . . . [¶]
“(5) Records in a criminal proceeding” (Italics added.)
ii. Rule 2.507
Rule 2.507 specifies the information to be included in, and excluded
from, electronic court indexes, as well as court calendars and registers of
action. The rule provides in relevant part:
“(b) Electronic access required to extent feasible
“A court that maintains the following records in electronic
form must provide electronic access to them, both remotely
and at the courthouse, to the extent it is feasible to do so:
“(1) Registers of actions (as defined in Gov. Code, § 69845),
calendars, and indexes in all cases . . . .” (Italics added.)
Government Code section 69845 provides, “The clerk of the superior
court may keep a register of actions in which shall be entered the title of each
cause, with the date of its commencement and a memorandum of every
subsequent proceeding in the action with its date.”
14 Rule 2.503(c)(1) through (11) specifies exceptions to that general rule.
(See Rule 2.503(b)(2).)
10
“(a) Intent
“This rule specifies information to be included in and
excluded from the court . . . indexes . . . to which public
access is available by electronic means under rule 2.503(b).
To the extent it is feasible to do so, the court must maintain
court . . . indexes . . . available to the public by electronic
means in accordance with this rule.
“(b) Minimum contents for electronically accessible
court . . . indexes . . . .
“[¶] . . . [¶]
“(2) The electronic index must include:
“(A) Case title (unless made confidential by law);
“(B) Party names (unless made confidential by law);
“(C) Party type;
“(D) Date on which the case was filed; and
“(E) Case number.
“[¶] . . . [¶]
“(c) Information that must be excluded from court . . .
indexes . . . .
“The following information must be excluded from a court’s
electronic . . . index . . . :
“[¶] . . . [¶]
“(1) Social security number;
“(2) Any financial information;
“(3) Arrest warrant information;
“(4) Search warrant information;
“(5) Victim information;
“(6) Witness information;
“(7) Ethnicity;
“(8) Age;
“(9) Gender;
11
“(10) Government-issued identification card numbers (i.e.,
military);
“(11) Driver’s license number; and
“(12) Date of birth.”
iii. Section 13100 et seq.
Section 13100 et seq. provides for the establishment of a system that
compiles “criminal offender record information,” (§ 13100, subd. (a)) with
respect to individual criminal defendants in California.15
Section 13102 defines “criminal offender record information” (CORI) as
“records and data compiled by criminal justice agencies for purposes of
identifying criminal offenders and of maintaining as to each such offender a
summary of arrests, pretrial proceedings, the nature and disposition of
criminal charges, sentencing, incarceration, rehabilitation, and release.”
Section 13300, subdivision (a)(1) provides in relevant part:
“ ‘Local summary criminal history information’ means the
master record of information compiled by any local criminal
justice agency . . . pertaining to the identification and
criminal history of any person, such as name, date of birth,
physical description, dates of arrests, arresting agencies
and booking numbers, charges, dispositions, and similar
data about the person.”
Section 13125 lists “standard data elements,” to be included in state or
local “criminal offender record information systems,” including “personal
identification data” such as “[d]ate of birth,” and “California operator’s license
number [i.e., driver’s license number].”
Sections 13302 and 13303 make it illegal for persons who are
authorized to receive a defendant’s criminal history information to make the
15 “Local summary criminal history information,” is commonly called a
“rap sheet.” (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar
2014) § 12.5.)
12
master record or information obtained from the master record available to
unauthorized persons.16
2. Factual and procedural background
a. Plaintiffs’ first amended complaint
In their first amended complaint, plaintiffs alleged that defendants
maintained a website called “Public Access” that allows members of the
public to search the Riverside Superior Court’s databases. According to
plaintiffs, users of the Public Access website can access court records and
data linked to a personally identified criminal defendant by inputting that
person’s date of birth or driver’s license number. Plaintiffs alleged in
relevant part:
“Public Access . . . provides a free service, which requires
the user to provide a combination of either (1) driver’s
license number and date of birth or (2) case number and
date of birth to access the underlying database(s)
containing [the Riverside Superior Court’s] records and
data.
“a. Accessing the database(s) by searching for driver’s
license number and date of birth produces a list of all cases
associated with the defendant identified by the requested
search criteria. . . . The resulting list displays name, case
number, filing date, and count 1 charge.
16 Section 13302 makes it unlawful for an “employee of the local criminal
justice agency,” to “knowingly furnish[ ] a record or information obtained
from a record to a person who is not authorized by law to receive the
record . . . .”
Section 13303 makes it unlawful for “[a]ny person authorized by law to
receive a record or information obtained from a record,” to “knowingly
furnish[ ] the record or information to a person who is not authorized by law
to receive the record or information . . . .”
Section 13301, subdivision (a) defines a “record,” as “the master local
summary criminal history information as defined in subdivision (a) of Section
13300, or a copy thereof.”
13
“b. Clicking on a case number in the list takes the user to
the ‘Criminal Case Report’ page showing detailed
information about the case associated with the case
number. . . .
“. . . ‘Criminal Case Report’ pages also contain a list of ‘All
of Defendant’s Other Cases.’ It is a list of all cases
associated with the defendant, including each case’s case
number, filing date, charges, next hearing date (if any), the
adjudicating court (or jurisdiction), and status. . . .
“Defendants do not require at any time that the user of
Public Access identify that he or she is authorized to access
a local summary criminal history information . . . under
[section] 13300.”
In their third cause of action (violation of Rule 2.507), plaintiffs alleged
in relevant part:
“[A]n ‘electronic index’ must exclude date of birth and
driver’s license number information under Rules of Court
2.507(c).
“[¶] . . . [¶]
“. . . Plaintiffs are informed and believe, and upon such
information and belief allege, that [d]efendants provide
public access to this or similar ‘electronic index’ containing
date of birth information (along with the additional driver’s
license information) through [the Riverside Superior
Court’s] Public Access website.
“. . . [The Riverside Superior Court] violates Rules of Court
2.507 by failing to exclude date of birth and driver’s license
number information from the ‘electronic index’ that it
makes available for public access on its website.”
In their fourth cause of action (violation of section 13300 et seq.),
plaintiffs alleged in relevant part:
14
“In the alternative to allegations in the Third Cause of
Action, [p]laintiffs are informed and believe, and upon such
information and belief allege, that [d]efendants do not
maintain an ‘electronic index’ for public access on its
website. Instead, [d]efendants provide the public with
direct access to its [l]ocal [s]ummary in violation of
[sections] 13302, 13303.
“. . . [Riverside Superior Court] is a local ‘criminal justice
agency’ as the term is defined in [section] 13101.[17]
“. . . Defendants compile certain records and data for the
purpose of (1) identifying an individual criminal offender,
such as [p]laintiff Roe, and (2) maintaining as to each
individual criminal offender, such as [p]laintiff Roe, a
summary of all proceedings at [the Riverside Superior
Court], including but not limited to a summary of arrests,
pretrial proceedings, the nature and disposition of criminal
charges, sentencing, incarceration, rehabilitation, and
release. Such records and data are each ‘criminal offender
record information’ (‘CORI’) as that term is defined in
[section] 13102.
“. . . Defendants maintain the CORI of all criminal
offenders, including [p]laintiff Roe, in a database or
databases that identify each individual criminal offense,
including [p]laintiff Roe, by name, date of birth, and/or
driver’s license number, and associate with him or her
dates of arrests, arresting agencies and booking numbers,
17 Section 13101 provides:
“As used in this chapter, ‘criminal justice agencies’ are
those agencies at all levels of government which perform as
their principal functions, activities which either:
“(a) Relate to the apprehension, prosecution, adjudication,
incarceration, or correction of criminal offenders; or
“(b) Relate to the collection, storage, dissemination or usage
of criminal offender record information.”
Defendants do not dispute that the Riverside Superior Court is a
criminal justice agency.
15
charges, dispositions, and similar data about the person.
Such a database or databases constitute the ‘master record’
of CORI and therefore constitute ‘local summary criminal
history information’ (‘Local Summary’) as that term is
defined in [section] 13300.
“. . . [The Riverside Superior Court’s] Public Access website
accesses, retrieves, and displays information from Local
Summary in response to a query by a member of the public
without ensuring that he or she is authorized to receive the
information under [section] 13300.
“[¶] . . . [¶]
“No provision of law requires or authorizes [d]efendants to
provide to the public, by remote electronic access, a list of
all cases associated with an individual identified by name,
name and date of birth, or driver’s license number and date
of birth. . . .
“. . . By providing the public with an ability to obtain
information from Local Summary via [Riverside Superior
Court’s] Public Access website, [d]efendants furnish
information obtained from a Local Summary to members of
the public who are not authorized to receive such record or
information in violation of [sections] 13302, 13303.”
b. Defendants’ demurrer
In their demurrer to plaintiffs’ first amended complaint, defendants
maintained that plaintiffs failed to state a claim with respect to both the
third cause of action (violation of Rule 2.507) and the fourth cause of action
(violation of section 13300 et seq.).
With respect to the third cause of action, defendants argued that
plaintiffs’ allegation that defendants permitted the public to input an
16
individual’s known date of birth18 to obtain search results in the Riverside
Superior Court’s databases failed to adequately allege a violation of Rule
2.507. Defendants argued in relevant part:
“Plaintiffs’ allegation is not that litigants or the public can
use the court’s [i]ndex to ascertain a particular individual’s
date of birth; rather, [p]laintiffs challenge the fact that one
who already knows an individual’s date of birth can use
that information to search the [i]ndex. This allegation is
not only flawed in the practical sense, but also not
supported by California law.
“Nothing in [p]laintiffs’ cited sections of the California
Rules of Court prohibit[s] the Riverside [Superior] Court’s
practice (or identical practices used by courts throughout
the state, including this one).
“First, nothing in the [c]ourt [r]ules—especially [R]ule
2.507, which is limited to addressing public access—
prohibit[s] the Riverside [Superior] Court from storing a
litigant’s date of birth in its database.
“Second, nothing in [Rule 2.507(c)] prevents courts from
allowing users who already know an individual’s date of
birth from including that data point as a method for
searching the database.”
Defendants also maintained that plaintiffs had not sufficiently stated a
claim for unlawful disclosure of local summary criminal history information
(§ 13300 et seq.). Defendants argued that permitting the public to obtain
search results on the Riverside Superior Court’s website by inputting an
individual’s known date of birth did not amount to providing confidential
18 Defendants’ brief in support of its demurrer did not specifically address
their alleged practice of allowing the public to input a known driver’s license
number to obtain search results in the Riverside Superior Court’s website.
17
local summary criminal history information. Defendants summarized their
argument by stating:
“Plaintiffs ‘alternatively’ allege that the Riverside
[Superior] Court provides direct and unfettered access to its
local criminal history summary in violation of the Penal
Code. . . . The Riverside [Superior] Court does not provide
unfettered access to the public and, like most other courts,
restricts substantial access to its local criminal history
summary only to authorized individuals, such as law
enforcement agencies. While some non-sensitive
information from the summary inevitably overlaps with the
information the public can access when searching the
electronic index, this does not amount to [a] violation of the
Penal Code.”
Defendants elaborated on this argument by noting that “other
provisions of law authorize the Riverside [Superior] Court to share criminal
index information regarding individual records with the public. (See Gov.
Code, § 69842 [‘The clerk of the superior court shall keep such indexes as will
insure ready reference to any action or proceeding filed in the court.’].)”
Defendants argued further that “the only information disclosed by the
database is the individual’s arrest or conviction[,] which is public record and
in [and] of itself [is] not a master record or summary of the individual’s
criminal history.”
c. Plaintiffs’ opposition
Plaintiffs filed an opposition to defendants’ demurrer in which they
contended that they had adequately stated a claim with respect to both their
third cause of action (violation of Rule 2.507) and fourth cause of action
(violation of section 13300 et seq.).
With respect to their claim that defendants violated Rule 2.507,
plaintiffs contended that they had adequately alleged that “[Riverside
Superior Court] includes date o[f] birth and driver’s license number in its
18
electronic index made available to the public via its website.” Specifically,
plaintiffs maintained that defendants violated Rule 2.507(c) by allowing the
public to use an individual’s date of birth or driver’s license information “as a
‘search query’ to ‘narrow’ the court’s records.” Plaintiffs argued that the
history of Rule 2.507 supported their contention that allowing such searches
was impermissible, noting that an advisory committee involved in the
formulation of Rule 2.507 specifically stated that date of birth should not be
permitted ‘‘ ‘as a data element [to be used] as a search query.’ ”19
Plaintiffs also argued that they had adequately stated a claim for
unauthorized disclosure of local summary criminal history information under
section 13300. By alleging that defendants permitted the public to search the
Riverside Superior Court’s databases with personally identifying information,
such as date of birth and driver’s license number, plaintiffs contended that
they had adequately alleged that defendants improperly allowed the public
access to local summary criminal history information. Plaintiffs argued
further that defendants were mistaken in suggesting that defendants’ actions
were authorized by Rule 2.507, arguing:
“[W]hat the public is authorized to access on [the Riverside
Superior Court’s] website is an electronic index without any
[personally identifying information], i.e. one that does not
give them the ability to identify an individual and so create
her rap sheet.”
19 Plaintiffs quoted from a March 3, 2003 report to the California Judicial
Council (Judicial Council) from its Court Executives Advisory Committee
(“Advisory Committee”) regarding adoption of former Rule of Court, rule
2077, current Rule 2.507 (“CEAC Report”). As noted in parts III.A.2.d–e,
post, plaintiffs requested that the trial court take judicial notice of the CEAC
Report and the trial court granted plaintiffs’ request.
19
Plaintiffs also noted that the CEAC Report specifically stated that the
public should not be permitted to use an individual’s date of birth as a search
query to electronic criminal indexes provided by the court, because allowing
such searches “would lead to ‘the creation of a local criminal history summary
proscribed as by . . . section 13300.’ ”
d. Plaintiffs’ request for judicial notice
Together with their opposition, plaintiffs requested that the trial court
take judicial notice of three documents related to the history of the adoption
of Rule 2.507 and related rules of court. The documents included the CEAC
Report; an October 3, 2011 report to the Judicial Council from its Civil and
Small Claims Advisory Committee (“CSCAC”) regarding an amendment to
Rule 2.503; and a February 20, 2004 report to the Judicial Council from its
Administrative Office of the Courts pertaining to proposed amendments to
former California Rules of Court, rule 2073.5 (current Rule 2.503)
(“Administrative Office Report”).20
e. The trial court’s ruling
After further briefing and a hearing,21 the trial court sustained
defendants’ demurrer as to the third cause of action (violation of Rule 2.507)
and the fourth cause of action (violation of section 13300 et seq.) without
20 In addition, plaintiffs offered their attorney’s declaration in which
counsel stated that the trial court had previously taken judicial notice of a
document from the Court Technology Advisory Committee of California
Judicial Council, Public Access to Trial Court Records in Electronic Form
recommending the adoption of former California Rules of Court, rules 2070–
2077 (current California Rules of Court, rules 2.500–2.507).
21 At the hearing, the trial court granted plaintiffs’ request for judicial
notice.
20
leave to amend. With respect to the third cause of action alleging a violation
of Rule 2.507, the trial court reasoned in relevant part:
“The demurrer to the third cause of action for violation of
[Rule] 2.507 (date of birth and driver’s license) is sustained
without leave to amend. No facts are pled to show that
[d]efendants are maintaining an electronic index that
includes date of birth and driver’s license information. . . .
[Citation.]
“Plaintiffs are now alleging that [d]efendants are, in effect,
providing access though its Public Access website to an
electronic index containing date of birth and driver’s license
information. [Citation.] Plaintiffs’ claim appears to be
based on the allegation that a search of the criminal record
database may be performed by inputting a date of birth
know[n] to the user. [Citations.] Such practice does not
constitute a violation of [Rule] 2.507.”
As to the fourth cause of action (violation of section 13300 et seq.), the
court stated:
“The demurrer to the fourth cause of action for violation of
[section] 13303 is sustained without leave to amend.
“No facts are pled to show that [d]efendants are providing
the public with direct access to a local summary criminal
history.”
3. The trial court erred in sustaining the demurrer to the third cause of
action (violation of Rule 2.507) without leave to amend
Plaintiffs contend that the trial court erred in concluding that they had
failed to state a cause of action for violation of Rule 2.507. Specifically,
plaintiffs maintain that defendants’ alleged practice of permitting the public
to access the Riverside Superior Court’s electronic index by inputting an
individual’s known date of birth and driver’s license number constitutes a
violation of Rule 2.507.
21
We agree. As we explain below, the text of the relevant rules of court,
the rules’ history, and the purpose of the rules, all support the conclusion
that allowing the public to search an electronic index by inputting an
individual’s known date of birth or driver’s license number constitutes a
violation of Rule 2.507. Further, because plaintiffs adequately alleged that
defendants permitted such searches of the Riverside Superior Court’s
electronic index, plaintiffs adequately alleged a violation of Rule 2.507.
a. Allowing the public to search an electronic index by inputting
an individual’s known date of birth or driver’s license number
constitutes a violation of Rule 2.507
i. The text of the relevant rules of court
“ ‘The rules applicable to interpretation of the rules of court are similar
to those governing statutory construction. [Citation.] Under those rules of
construction, our primary objective is to determine the drafters’ intent.
[Citation.]’ [Citation.] ‘If the rule’s language is clear and unambiguous, it
governs. [Citation.] Experience teaches, however, that unforeseen
ambiguities can and do come to light despite the drafters’ considered efforts
to avoid them. In such cases, courts may consult appropriate extrinsic
sources to clarify the drafters’ intent. [Citation.]’ ” (Rossa v. D.L. Falk
Construction, Inc. (2012) 53 Cal.4th 387, 391–392 (Rossa).)
Rule 2.503 establishes a general rule of “courthouse . . . access only”
(boldface omitted) for records in criminal cases. (Rule 2.503(c).) While one
exception to this rule is for “indexes” (Rule 2.503(b)), Rule 2.507 carefully
circumscribes the contents of such indexes by expressly providing that
certain information that might serve to personally identify a criminal
defendant must be “excluded from a court’s . . . index.” Such prohibited
information includes “[d]river’s license number” (Rule 2.507(c)(11)) and
“[d]ate of birth.” (Rule 2.507(c)(12).)
22
While defendants contend that “allowing users to limit search
parameters by providing a [date of birth] or [driver’s license number] they
already know does not, as a matter of law, amount to a disclosure of that
information by the [defendants] in court . . . indexes,” (italics altered) Rule
2.507(c) is not written so narrowly as to prohibit only the disclosure of certain
information.22
Rather, the text of the Rule 2.507(c) broadly specifies what must be
“excluded” from an index (italics added), including various items of personally
identifying information such as “[d]river’s license number” (Rule 2.507(c)(11))
and “[d]ate of birth.” (Rule 2.507(c)(12).) By allegedly permitting the public
to search the Riverside Superior Court’s electronic index by use of an
individual’s known date of birth and driver’s license number, members of the
public can confirm that a particular person (i.e., a person identified by her
date of birth and driver’s license number) has a record contained in the
electronic criminal index with the Riverside Court. In authorizing such
searches, defendants may reasonably be said to have failed to “exclude[ ]”
(Rule 2.507(c)), date of birth and driver’s license number in the Riverside
Superior Court’s index as is required, even assuming that defendants are not
disclosing this information.
Interpreting the word “excluded,” in Rule 2.507(c) to prohibit searches
of a court’s index premised on the information specified in Rule 2.507(c)(1)
through (12) is supported by a contextual interpretation of the provision.
22 In their brief on appeal, defendants note that their demurrer was based
on this interpretation of Rule 2.507, stating, “[Defendants’] demurrer
explained that [plaintiffs] had not alleged and could not allege a cause of
action for violation of Rule 2.507 because allowing users to limit search
parameters by providing a [date of birth] or [driver’s license number] they
already know does not, as a matter of law, amount to a disclosure of that
information by the [defendants] in court . . . indexes . . . .” (Italics altered.)
23
(See Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019)
7 Cal.5th 1171, 1184 [in performing statutory interpretation “we give the
words ‘their usual and ordinary meaning,’ viewed in the context of the statute
as a whole”]; cf. Rossa, supra, 53 Cal.4th at pp. 391–392 [stating that same
principles govern the interpretation of statutes and rules of court].) The
purpose of an index is to facilitate the location of the item indexed by the
information contained in the index. (Cf. Black’s Law Dictionary (11th ed.
2019) [defining index as “[a]n alphabetized listing of the topics or other items
included in a single book or document, or in a series of volumes, usu. found at
the end of the book, document, or series”].) Thus, Rule 2.507 may reasonably
be interpreted as providing for the creation of an index that facilitates the
location of court records by the types of information that the Rule mandates
to be included in an index (e.g., case title, case number) and prohibits the
indexing of court records by the information mandated to be excluded by
Rule 2.507(c) (e.g., date of birth and driver’s license number).
Finally, while not dispositive, our interpretation is bolstered by Rule
2.507(a)’s broad specification of the rule’s “[i]ntent,” (boldface omitted) which
states that, “[t]o the extent it is feasible to do so, the court must maintain
court . . . indexes . . . available to the public by electronic means in accordance
with this rule.” (Italics added.) This text supports the conclusion that, by
allegedly allowing the searching of the Riverside Superior Court’s index by
date of birth and driver’s license number, defendants are not “maintain[ing],”
the court’s index in “accordance with” Rule 2.507(c). (Rule 2.507(a).)
ii. The history of the relevant rules of court
To the extent that Rule 2.507 may be said to be ambiguous with respect
to whether courts may allow the public to use an individual’s known date of
birth or driver’s license number to search an electronic index, the history of
24
the relevant rules of court strongly supports the conclusion that permitting
such searches constitutes a violation of Rule 2.507. (Cf. Rossa, supra,
53 Cal.4th at pp. 391–392 [where language of a rule of court is not clear and
unambiguous “ ‘courts may consult appropriate extrinsic sources to clarify the
drafters’ intent’ ”].)
In the CEAC Report, the Advisory Committee recommended the
adoption of former California Rules of Court, rule 2077 (former Rule 2077),
current Rule 2.507. In discussing comments that it had received from various
interested parties, the Advisory Committee explained that one commentator
had recommended “that date of birth . . . should be a data element that is
included (and not excluded) from electronic court calendars, indexes, and
register of actions.”23 The Advisory Committee explained that it disagreed
with this recommendation for the following reasons:
“The [Advisory Committee] acknowledges that some courts
currently collect sensitive personal information that has no
bearing on a case, but that . . . assists the court in record
keeping or identifying parties with the same first and last
names. One of these practices includes collecting a party’s
[date of birth] as a data element and using it as a search
query in case management systems. Nevertheless, the
[Advisory Committee] recommends that the [date of birth]
should be excluded from electronic court calendars, indexes,
and registers of action for the following reasons:
23 Rule 2.503 provides in relevant part:
“(b) Electronic access required to extent feasible
“A court that maintains the following records in electronic
form must provide electronic access to them, both remotely
and at the courthouse, to the extent it is feasible to do so:
“(1) Registers of actions (as defined in Gov. Code, § 69845),
calendars, and indexes in all cases”
25
“1. It is not a traditional entry within a register of action;
and
“2. It prohibits access to a confidential field in criminal
cases as well as bans the creation of a local criminal history
summary as proscribed by . . . section 13300.”
In a footnote immediately following this statement, the Advisory
Committee stated:
“In an electronic database, the date of birth is a
confidential field in criminal cases. In Westbrook v. County
of Los Angeles (1994) 27 Cal App.4th 157 [(Westbrook)], the
court held that the municipal court’s electronic case
management system was confidential as access would allow
the compilation of a local criminal history summary in
violation of . . . section 13300. Under the same reasoning,
the court should not allow narrowing the register of actions
by [date of birth] as doing so would essentially be creating a
local criminal history.” (Italics added.)
The Advisory Committee elaborated on this issue by stating:
“While the date of birth is not confidential in court records,
it should not be accessible on court electronic records for
the following reasons[;] 1) it is not a traditional entry
within any of the case record types that proposed [former]
Rule 2077 addresses; 2) the Judicial Council, in adopting
[former] Rules 2070-2076 was mindful of the privacy of
citizens using the courts and approached electronic access
to court records cautiously. Many people are not involved
with the courts voluntarily and do not expect the
information in the court file to be broadcast to anyone with
a computer and Internet connection. Not including date of
birth in any of the case record types that proposed [former]
Rule 2077 addresses is consistent with this council policy,
and 3) in an electronic database, the date of birth is a
confidential field in criminal cases. In Westbrook[, supra,]
27 Cal App 4th 157, the court held that the municipal court
electronic case management system was confidential as it
would allow the compilation of a local criminal history
26
summary in violation of . . . section 13300. Under this same
reasoning, the court may not allow narrowing any of the
case record types that proposed [former] Rule 2077
addresses[24] by date of birth as doing so would essentially
be creating a local criminal history.” (Italics added.)
Thus, the history of Rule 2.507 strongly supports the conclusion that
the drafters of the rule of court did not intend for courts to permit the public
to be able to conduct searches of an electronic court index by inputting
personally identifying information such as date of birth, since doing so would
permit the person performing the search to create a de facto local summary
criminal history.
Defendants’ only argument with respect to this history is that these
“old committee reports from 2003 . . . were never adopted or integrated into
the Rules of Court that govern these issues,” and that such rule history
cannot “control over the plain language of . . . Rule 2.507.”
Defendants’ argument is unpersuasive. The CEAC Report on which
plaintiffs rely is dated March 3, 2003. The Judicial Council adopted former
Rule 2077 (current Rule 2.507) pursuant to the Advisory Committee’s
recommendation as part of its consent agenda during its April 15, 2003
meeting. (Judicial Council of Cal., Meeting Minutes, April 15, 2003 pp. 7–8,
available at <http://www.courts.ca.gov/documents/min0403.pdf>.)25 Thus,
24 Former Rule 2077, current Rule 2.507, addresses electronic court
calendars, registers of action, and court indexes.
25 After permitting the parties an opportunity to comment, we take
judicial notice of minutes of the Judicial Council’s April 15, 2003 meeting.
(See Evid. Code, § 452, subd. (c) [permitting the taking of judicial notice of
the “[o]fficial acts of the legislative, executive, and judicial departments of the
United States and of any state of the United States”]; id., §§ 455, subd. (a),
27
the CEAC Report constitutes a highly probative extrinsic source to clarify the
intent of the drafters of former Rule 2077, current Rule 2.507. Further, as
discussed in part III.A.3.a.i, ante, the “plain language of . . . Rule 2.507,” does
not support defendants’ contention that it may permit the public to search
the Riverside Superior Court’s electronic index by use of a known date of
birth or driver’s license number.
iii. The purpose of the rules
Finally, the purpose of the rules of court governing electronic access to
trial court records, as reflected in the rules’ history, supports plaintiffs’
interpretation of Rule 2.507. While defendants’ alleged practice undoubtedly
facilitates public access to information, the rules’ history unequivocally
establishes that the drafters of the rules of court governing electronic access
to trial court records did not intend simply to maximize the public’s access to
information. Rather, the drafters sought to balance the public’s access to
court records with the privacy concerns of those involved in criminal
proceedings.
The February 20, 2004 Administrative Office Report outlined this effort
to balance these two principles in discussing the background of the adoption
of the rules of court governing electronic access to trial court records:
“When the [Judicial Council] adopted [former] rule 2073
[current Rule 2.503], it sought to balance the public’s
interest in convenient access to court records with the
privacy concerns of victims, witnesses, and parties. The
rule prohibits courts from posting complete case records on
the Internet. Under the rule, only the indexes, registers of
actions, and court calendars in criminal cases may be
posted on the Internet. (See [former] rule 2073(b) and (c)
[current Rule 2.503(b) and (c)].) Thus, the court may
459 [specifying the manner by which a reviewing court may take judicial
notice of a “matter was not theretofore judicially noticed in the action”].)
28
provide some case-specific information over the Internet,
such as dates of hearing, assigned judges, and similar
information. But most of the documents in criminal case
files, such as motions, court orders, and clerk’s minutes,
cannot be made available over the Internet.
“[Former] [r]ule 2073 prohibits courts from providing those
criminal case records over the Internet even though they
are not confidential and are available to the public at the
courthouse. In adopting this rule, the council recognized
that the ‘practical obscurity’ of most court records provides
individuals with some protection against the broad
dissemination of private information that may be contained
in public court records. Although court records are publicly
available, most people do not go to the courthouse to search
through records for private information, and in most cases
that information is not widely disseminated. In contrast, if
records are available over the Internet, they can be easily
obtained by people all over the world.” (Administrative
Office Report at p. 2.)
By allegedly allowing members of the public to search the Riverside
Superior Court’s electronic index by an individual’s date of birth and driver’s
license information, defendants may be said to be eliminating the “practical
obscurity” of criminal court records, one of the guiding principles underlying
the adoption of the rules of court governing electronic court records. That is
because, without information linking personally identifying information to
court index information, members of the public generally would not be able to
use a court index to determine whether a particular individual has a criminal
record with the court (given the possibility of two defendants having the same
name).26
26 Defendants acknowledge that the Riverside Superior Court index
“contains entries for multiple defendants with similar, if not identical,
names.”
29
In this regard, in the CEAC Report, the Advisory Committee explained
that the “minimum standards [for electronic court indexes] were developed to
comply with Government Code section 69842 . . . .”
Government Code section 69842 provides:
“The clerk of the superior court shall keep such indexes as
will insure ready reference to any action or proceeding filed
in the court. There shall be separate indexes of plaintiffs
and defendants in civil actions and of defendants in
criminal actions. The name of each plaintiff and defendant
shall be indexed and there shall appear opposite each name
indexed the number of the action or proceeding and the
name or names of the adverse litigant or litigants.”
Thus, a member of the public searching a court index containing
information mandated pursuant to Government Code section 69842 would
not be able to use a defendant’s date of birth or driver’s license number to
search that index. In contrast, defendants’ alleged practice of permitting its
electronic court index to be searched by personally identifying information
provides members of public with the ability to link court records in criminal
cases to a unique individual in a manner that is inconsistent with the
drafter’s intent to “ensur[e] that [criminal] records remain practically
obscure.” (Administrative Office Report at p. 2.)
b. Plaintiffs alleged that defendants permit searches of the
Riverside Superior Court’s electronic index by date of birth
and driver’s license number, and thereby adequately alleged a
violation of Rule 2.507
We concluded in parts III.A.3.a.i–iii, ante, that permitting the public to
search an electronic court index by date of birth and driver’s license number
constitutes a violation of Rule 2.507. In their first amended complaint,
Plaintiffs expressly alleged that defendants engaged in such action and
thereby adequately alleged a violation of Rule 2.507. (See pt. III.A.2.a,
30
ante.) Accordingly, we conclude that the trial court erred in sustaining
defendants’ demurrer to plaintiffs’ third cause of action for a violation of
Rule 2.507.
c. Proceedings on remand
For the guidance of the trial court on remand, we note that defendants
state the following in their brief on appeal concerning the public’s access to
the Riverside Superior Court’s records in criminal cases:
“The Riverside [Superior] Court maintains an electronic
criminal index in accordance with Rule 2.503 that contains
and discloses the case number, party name, filing date,
charges, next hearing and jurisdiction for public criminal
records. [Citation.] That information is maintained within
ICMS.[27] [Citation.] To facilitate search of this very large
index of case records, which contains entries for multiple
defendants with similar, if not identical, names, the Public
Access portal[28] allows users to narrow their searches
using a defendant’s [date of birth] and [driver’s license
number] (or [date of birth] and name or case number) as a
27 Defendants describe ICMS as the Riverside Superior Court’s “case
management system,” and state that ICMS “houses all information related to
all court case files—e.g., all the ‘court case information’ or ‘data’ referred to in
[California Rules of Court, [r]ule 2.502(4).”
California Rules of Court, rule 2.502(4) provides: “ ‘Court case
information’ refers to data that is stored in a court’s case management
system or case histories. This data supports the court’s management or
tracking of the action and is not part of the official court record for the case or
cases.”
28 In defining the “Public Access portal,” defendants state: “Two user
interfaces rely upon ICMS: (a) Judicial Access, which is the interface used by
the Riverside [Superior] Court staff, judicial officers and justice partners, and
(b) Public Access, which is used by all members of the public, including
parties to civil cases and defendants in criminal cases.”
31
means of locating court records associated with a particular
defendant.” (Italics added)29
Although ambiguously phrased, it appears that defendants are
contending that they allow the public to search ICMS by date of birth and
driver’s license number rather than their electronic court index.30 For
example, defendants state in their brief:
“But the index [referenced in Rule 2.507] presumably is
distinguishable from the ‘data that is stored in a court’s
case management system or case histories,’ which the rules
define as ‘court case information’ (Cal. Rule of Court
2.502(4)), and which is not subject to the rules’ restrictions
on remote public access (Advisory Com. com, Cal. Rule of
Court 2.501.)”[31]
29 To support these statements, defendants cite to evidence in the record
from the summary judgment proceedings pertaining to other causes of
action.
30 In their first amended complaint, plaintiffs alleged, “In the alternative
to allegations in the Third Cause of Action, [p]laintiffs are informed and
believe, and upon such information and belief allege, that [d]efendants do not
maintain an ‘electronic index’ for public access on its website. Instead,
[d]efendants provide the public with direct access to its [l]ocal [s]ummary in
violation of [sections] 13302, 13303.” On remand, the parties may litigate the
issue of which database or databases the public is able to search via the
Public Access portal.
31 Rule 2.501 provides in relevant part:
“(a) Application and scope
“The rules in this chapter apply only to trial court records
as defined in rule 2.502(3). They do not apply to statutorily
mandated reporting between or within government
entities, or any other documents or materials that are not
court records.”
32
To the extent that defendants intend to suggest that the rules of court
authorize defendants to permit the public to search ICMS by date of birth
and driver’s license number, we disagree. Defendants point to no language
in the rules of court that would authorize such searches. In fact, the official
comment to California Rules of Court, rule 2.501 makes clear that the rules
of court governing remote access are not intended to authorize courts to
make “court case information” (Cal. Rules of Court, rule 2.502(4)) remotely
accessible. The comment states:
“The rules on remote access do not apply beyond court
records to other types of documents, information, or data.
Rule 2.502 defines a court record as ‘any document, paper,
or exhibit filed in an action or proceeding; any order or
judgment of the court; and any item listed in Government
Code section 68151(a)--excluding any reporter’s transcript
for which the reporter is entitled to receive a fee for any
copy--that is maintained by the court in the ordinary course
of the judicial process. The term does not include the
personal notes or preliminary memoranda of judges or
other judicial branch personnel, statutorily mandated
reporting between government entities, judicial
administrative records, court case information, or
compilations of data drawn from court records where the
compilations are not themselves contained in a court
record.’ (Cal. Rules of Court, rule 2.502(3).) Thus, courts
generate and maintain many types of information that are
not court records and to which access may be restricted by
law. Such information is not remotely accessible as court
records, even to parties and their attorneys. If parties and
their attorneys are entitled to access to any such additional
information, separate and independent grounds for that
access must exist.” (Advisory Com. com, Cal. Rules of
Court, rule 2.501, italics added.)
In addition, as discussed in part III.A.4, post, information pertaining to
a criminal defendant’s date of birth and driver’s license number is restricted
by law, i.e., by section 13300 et seq. Thus, while plaintiffs may not bring a
33
civil action to enforce a violation of penal law, our holding does not authorize
defendants to permit members of the public to remotely search the Riverside
Superior Court’s databases through the use of local summary information
such as date of birth and driver’s license number pursuant to the rules of
court.
4. Plaintiffs concede that they cannot maintain their fourth cause
of action (violation of section 13300 et seq.) as presently alleged
In their primary briefing on appeal, plaintiffs claimed that the trial
court erred in concluding that their fourth cause of action failed to state a
claim for violation of section 13300 et seq. Specifically, plaintiffs maintained
that defendants’ alleged practice of permitting the public to search the
Riverside Superior Court’s database or databases of local summary criminal
history information by inputting an individual’s known date of birth and
driver’s license number to obtain search results violates sections 13302 and
13303.
While this appeal was pending, we requested that the parties file
supplemental briefing addressing the following questions:
“May the trial court’s order sustaining the demurrer as to
the plaintiffs’ fourth cause of action without leave to amend
be affirmed on the ground that plaintiffs cannot ‘enjoin
conduct that would subject defendants to criminal
prosecution[?]’ (People for Ethical Operation of Prosecutors
and Law Enforcement v. Spitzer (2020) 53 Cal.App.5th 391,
401 [(People for Ethical Operation of Prosecutors and Law
Enforcement)]; see also Civ. Code, § 3369 [‘Neither specific
nor preventive relief can be granted . . . to enforce a penal
law’].)
“May the trial court’s order sustaining the demurrer
without leave to amend as to the plaintiff[s’] fourth cause of
action be affirmed as to defendant Riverside County
Superior Court on the ground that neither . . . section
34
13302 nor . . . section 13303 establishes criminal liability
for ‘criminal justice agenc[ies]’ under Penal Code section
13101? (See Watershed Enforcers v. Department of Water
Resources (2010) 185 Cal.App.4th 969, 984 [discussing ‘the
general inapplicability of the Penal Code to “bodies politic,”
i.e., state and local government agencies, as opposed to
natural persons and corporations’ [(Watershed Enforcers)].)”
(Fn. omitted.)
Plaintiffs filed a supplemental brief in which they conceded that their
fourth cause of action did not properly state a cause of action as presently
alleged:
“[Plainitffs] agree that . . . sections 13302 and 13303 are
penal provisions under the existing case law. They ‘define
crimes’ and ‘prescribe criminal punishments.’ (See People
for Ethical Operation of Prosecutors [and Law Enforcement,
supra, 53 Cal.App.5th at p. 401].) Section 3369 of the Civil
Code bars [plaintiffs] from maintaining an action to enforce
penal provisions.”
We accept plaintiffs’ concession, and conclude that the trial court
properly sustained defendants’ demurrer to the fourth cause of action for
violation of section 13300 for the reasons stated in plaintiffs’ concession.32
We emphasize that our holding is premised on the bar posed by Civil
Code section 3369, and in light our conclusion, we do not address whether
allowing the public to use an individual’s known date of birth or driver’s
license number to search a database of local summary criminal history
information constitutes the impermissible “furnish[ing] [of] . . . information
32 Plaintiffs also “assume[d] without argument,” that “defendant
Riverside . . . Superior Court may not be held criminally liable for violating a
criminal law.” We conclude that the fourth cause of action as presently
alleged cannot be stated against the Riverside Superior Court because the
court may not be subjected to criminal prosecution. (See Watershed
Enforcers, supra, 185 Cal.App.4th at p. 984.)
35
obtained from a record [of local summary criminal history information] to a
person who is not authorized by law to receive the . . . information.” (§ 13302;
see § 13125 [listing “standard data elements,” to be included in “criminal
offender record information systems,” including “personal identification data”
such as “[d]ate of birth,” and “California operator’s license number [i.e.,
driver’s license number]”; see generally International Federation of
Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court
(2007) 42 Cal.4th 319, 339 [“section 13300 . . . generally prohibits a local
criminal justice agency, including a court, from distributing information that
relates a person’s criminal history”].)
In their supplemental brief, plaintiffs contend that they may “maintain
an action to enforce procedural provisions” of a law contained in the Penal
Code and argue, for the first time, that they could properly state a cause of
action by “removing allegations that [defendants] are in violation of . . .
section 13302 and 13303 and by adding allegations that [defendants] are in
violation of procedural provisions in . . . sections 11076[33] and 13300.”
Defendants have not had any opportunity to address the legal validity of this
new theory. (See San Mateo County Coastal Landowners’ Assn. v. County of
San Mateo (1995) 38 Cal.App.4th 523, 559, fn. 28 [stating that a party may
not raise a claim for the first time in a supplemental brief].) Thus, we decline
to consider the merits of plaintiffs’ proposed new theory of amendment in this
appeal.
Because we are reversing the judgment and remanding the matter for
further proceedings, plaintiffs will have the opportunity to ask the trial court
33 Section 11076 provides, “Criminal offender record information shall be
disseminated, whether directly or through any intermediary, only to such
agencies as are, or may subsequently be, authorized access to such records by
statute.”
36
for leave to amend to attempt to state a cause of action under this new
theory. However, “we do not decide . . . , nor do we express any opinion
concerning, whether [plaintiffs] will be successful on any amended complaint
[that attempts to] state[ ] such a cause of action.” (Aubry v. Tri-City Hospital
Dist. (1992) 2 Cal.4th 962, 971.)
Accordingly, we conclude that the trial court properly sustained
defendants’ demurrer to the fourth cause of action. On remand, the trial
court shall determine the legal sufficiency of any amended complaint alleging
a violation of sections 11076 and/or 13300 in a manner consistent with this
opinion.
B. Plaintiffs are entitled to judgment as a matter of law on their first cause of
action (violation of section 11361.5)
Plaintiffs contend that the trial court erred in granting defendants’
motion for summary adjudication of their first cause of action (violation of
§ 11361.5) and in denying plaintiffs’ motion for summary adjudication of that
same cause of action.
1. Relevant law
a. The law governing summary adjudication
A party is entitled to summary adjudication of a cause of action if there
is no triable issue of material fact and the party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subds. (c) & (f)(1).) “A motion for
summary adjudication shall be granted only if it completely disposes of a
cause of action . . . .” (Id., subd. (f)(1).) A plaintiff is entitled to summary
adjudication if she “has proved each element of the cause of action entitling
the party to judgment,” and the defendant is unable to show that a “triable
issue of one or more material facts exists as to the cause of action or a defense
thereto.” (Id., subd. (p)(1).) A defendant is entitled to summary adjudication
37
of a cause of action if she demonstrates that the plaintiff cannot establish one
or more elements of the cause of action. (Id., subd. (p)(2).)
A court considering a motion for summary adjudication must view the
evidence and reasonable inferences from the evidence in the light most
favorable to the opposing party, as it would on a motion for summary
judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
b. Substantive law
Health and Safety Code section 11361.5, subdivision (a) mandates the
destruction of certain records pertaining to marijuana-related arrests and
convictions. The statute provides in relevant part:
“(a) Records of any court of this state . . . pertaining to the
arrest or conviction of any person for a violation of [Health
and Safety Code] Section 11357 or subdivision (b) of
[Health and Safety Code] Section 11360, or pertaining to
the arrest or conviction of any person under the age of 18
for a violation of any provision of this article except [Health
and Safety Code] Section 11357.5,[34] shall not be kept
beyond two years from the date of the conviction, or from
the date of the arrest if there was no conviction, . . . . A
court or agency having custody of the records, including the
statewide criminal databases, shall provide for the timely
destruction of the records in accordance with subdivision
(c), and those records shall also be purged from the
statewide criminal databases. As used in this subdivision,
‘records pertaining to the arrest or conviction’ shall include
records of arrests resulting in the criminal proceeding and
records relating to other offenses charged in the accusatory
pleading, whether the defendant was acquitted or charges
were dismissed. . . .”
Section 11361.5, subdivision (c) specifies how the destruction is to be
accomplished:
34 Health and Safety Code sections 11357, 11357.5, and 11360,
subdivision (b) are all marijuana-related offenses.
38
“(c) Destruction of records of arrest or conviction pursuant
to subdivision (a) or (b) shall be accomplished by
permanent obliteration of all entries or notations upon the
records pertaining to the arrest or conviction, and the
record shall be prepared again so that it appears that the
arrest or conviction never occurred. However, where (1) the
only entries upon the record pertain to the arrest or
conviction and (2) the record can be destroyed without
necessarily effecting the destruction of other records, then
the document constituting the record shall be physically
destroyed.”
2. Factual and procedural background
a. Plaintiffs’ second amended complaint
In the operative second amended complaint, plaintiffs alleged that
defendants violated section 11361.5 by failing to destroy or obliterate
“thousands” of records of arrests or convictions that are “subject to the
requirements of [that statute].”
b. The parties’ motions for summary adjudication
i. Plaintiffs’ motion
Plaintiffs filed a motion for summary adjudication of their first cause of
action in which they contended that defendants had failed to timely and
adequately destroy or obliterate court records subject to section 11361.5’s
mandate. With respect to timeliness, plaintiffs noted that defendants had a
backlog of “thousands of minor marijuana files,” subject to the destruction /
obliteration mandate of section 11361.5, and maintained that defendants’
practice of placing such documents “under seal,” pending destruction or
obliteration is not sufficient under the statute.
39
Plaintiffs also argued that the manner by which defendants redacted 35
arrest and conviction records for marijuana-related offenses subject to section
11361.5 did not comply with that statute’s requirements. Plaintiffs argued
that “[i]t is [d]efendants’ policy and practice to redact only the marijuana
charge, the description of the charge, and references to the charge,” which is
“insufficient as a matter of law.” Plaintiffs further maintained that, rather
than using a black marker to redact documents, defendants “should . . . [use]
a method that leaves no trace of, or reference to, the existence of the
underlying marijuana offense.” Plaintiffs lodged with their motion examples
of numerous marijuana-related records that defendants had redacted—
insufficiently, in plaintiffs’ view.36
ii. Defendants’ opposition
In their opposition to plaintiffs’ motion, defendants noted that plaintiffs
made no argument as to defendants’ destruction practices under section
11361.5 with respect to “eligible single-count marijuana cases,” which
defendants stated amounted to “more than 90 [percent] of eligible cases.”
With respect to their procedures for “hybrid cases,”37 defendants argued that
35 On occasion, the parties use the word “redact,” and forms thereof, to
refer to the process of “permanent obliteration,” specified in section 11361.5,
subdivision (c). Throughout this opinion, we also use the word “redact” and
forms thereof in a manner consistent with the parties’ usage.
36 Plaintiffs removed personally identifying information and case
information from the exhibits contained in the clerks’ transcript in this case.
Plaintiffs also filed under seal the documents as redacted solely by
defendants. We have reviewed the sealed exhibits.
37 Defendants used the term “hybrid case” to refer to a case that contains
a marijuana-related charge that is eligible for obliteration pursuant to section
11361.5 and at least one nonmarijuana-related charge.
40
their practices comport with section 11361.5, “[n]otwithstanding [p]laintiffs’
[c]ontrary [d]emands.” Defendants maintained that plaintiffs’ argument that
“permanent sealing is not sufficient,” is a “[r]ed [h]erring,” because
defendants use sealing as only a “temporary measure to prohibit any access to
eligible records pending their redaction.” (Italics altered.) With respect to
plaintiffs’ contentions as to the scope of the required obliteration, defendants
argued that plaintiffs’ “overly broad approach to redaction is not supported by
the language or purpose of [s]ection 11361.5.” Defendants argued that their
redaction procedures are sufficient and that “[a]sking clerk’s office staff with
no contemporaneous connection to the case to make . . . determination[s] [as
to whether additional redactions are required] could result in erroneous
redactions of court records.”
iii. Defendants’ motion
Defendants filed a motion for summary adjudication of their first cause
of action in which they contended that the Riverside Superior Court’s
“current marijuana record destruction practices” (capitalization omitted)
comport with section 11361.5’s mandates. Defendants argued that for cases
involving only marijuana-related offenses, the Riverside Superior Court had
been running a “monthly destruction protocol,” on its electronic case
management system that results in “destroy[ing] those case files.” With
respect to hybrid cases, defendants argued that the Riverside Superior
Court’s “three-pronged” approach ensured that all such case files are
inaccessible pending redaction. Defendants described this three-pronged
approach as follows:
41
“(1) all eligible hybrid case files are inaccessible via Public
Access or Judicial Access[38] and anyone searching for such
a case will receive a message that the case is restricted
[citation]; (2) all specific requests for access to an eligible
hybrid case generally are handled, and the file is redacted,
within 48 hours (excluding weekends and holidays) of the
request [citation]; and (3) redaction of newly eligible hybrid
cases are given priority (to ensure that the backlog of case
files does not increase), and redaction of the backlogged
eligible hybrid case files is pursued secondarily on a daily
basis [citation].”
With respect to the scope of the obliteration required, defendants
argued that the “statute requires redaction (or obliteration) of all references
to the eligible marijuana charges in case records that were prepared by the
defendant, the prosecuting agency or some defendant . . . .”
Among the exhibits that defendants lodged in support of their motion
was a document titled, “The Riverside [Superior] Court’s ‘Redacting Hybrid
Marijuana Cases: Processing Procedure’ (“Hybrid Marijuana Case Processing
Procedure”). The Hybrid Marijuana Case Processing Procedure instructs
staff to perform the permanent obliteration process specified in section
11361.5, subdivision (c) on documents in hybrid marijuana cases as follows:
“Review each document to ensure there are no references to
the purged marijuana charge(s). If the purged charge is
referenced, redact all references.
38 As noted in footnote 28, ante, defendants describe Public Access and
Judicial Access as follows:
“Two user interfaces rely upon ICMS [the Riverside
Superior Court’s case management system]: (a) Judicial
Access, which is the interface used by the Riverside
[Superior] Court staff, judicial officers and justice partners,
and (b) Public Access, which is used by all members of the
public, including parties to civil cases and defendants in
criminal cases.”
42
“Redact means to obscure or remove (text) from a
document prior to publication or release. To redact a
document, proceed as follows:
“Using a Sharpie permanent black marker or equivalent,
black out (draw several lines through) all references to a
purged marijuana charge(s).”
iv. Plaintiffs’ opposition
In their opposition to defendants’ motion, plaintiffs argued that
defendants were not devoting sufficient staff and resources to complete the
redaction of “about 9,000 case files left to redact.” With respect to the scope
of the obliteration required in hybrid cases, plaintiffs argued that the trial
court should order defendants “to redact documents sufficiently to make it
appear that the ‘arrest or conviction never occurred.’ ” Plaintiffs argued that
defendants’ practice of “using a black Sharpie to obscure only the charge
information,” is insufficient because it “continue[s] to show the existence of
an arrest or conviction,” and is contrary to the statutory mandate that the
record be “prepared again so that it appears that the arrest or conviction
never occurred.” (§ 11361.5, subd. (c).)
c. The trial court’s ruling
After further briefing and a hearing, the trial court denied plaintiffs’
motion and granted defendants’ motion. With respect to plaintiffs’ motion,
the trial court stated in relevant part:
“Plaintiffs have failed to meet their initial burden of proof
that [d]efendants’ practices of sealing and redacting records
fails to meet the requirements of [section] 11361.5.”
As to defendants’ motion, the trial court stated in relevant part:
“There is no current violation of [section] 11361.5 that
would support issuance of declaratory or injunctive relief.
43
Defendants’ practice of sealing records pending destruction
or redaction complies with [section] 11361.5. Defendants’
practice of redacting records complies with [section]
11361.5.”
3. Application
Plaintiffs make a series of arguments in support of their claim that the
trial court erred in “interpret[ing] the destruction mandate under subdivision
(c) of . . . section 11361.5.” (Capitalization omitted.) We consider each
argument below.
a. Plaintiffs have not demonstrated any error as to the timeliness
of defendants’ redaction of records subject to section 11361.5
Plaintiffs appear to contend that the trial court erred in failing to
conclude that defendants are not acting to perform a “timely destruction” of
records in their custody subject to section 11361.5. 39
Section 11361.5, subdivision (a) provides in relevant part, “A court or
agency having custody of the records, including the statewide criminal
39 Arguably, section 11361.5, subdivision (a) mandates that records of
qualifying marijuana offenses be destroyed within two years of a qualifying
conviction. (See ibid. [“Records of any court of this state . . . pertaining to the
arrest or conviction of any [qualifying offense] shall not be kept beyond two
years from the date of the conviction”]). However, plaintiffs do not present
any argument based on the two-year deadline in their briefing on appeal.
Rather, plaintiffs argue that defendants have not acted reasonably to ensure
the timely destruction of qualifying records in their possession. (See ibid. [“A
court or agency having custody of the records, including the statewide
criminal databases, shall provide for the timely destruction of the records in
accordance with subdivision (c)” (italics added)].) For example, plaintiffs
contend that “[w]ithout the injunctive relief to mandate prompt compliance,
the [defendants] have no reason to look for ways to speed up their efforts—or
to make their process more efficient.”
Plaintiffs raise this argument in a portion of their brief with the
subheading, “Reasonable compliance is easy.” (Boldface omitted.)
44
databases, shall provide for the timely destruction of the records in
accordance with subdivision (c).” (Italics added.)
While plaintiffs contend that they seek “ ‘prompt’ compliance,” with
section 11361.5’s requirements, they fail to demonstrate that defendants are
not acting in accord with the broad statutory mandate to perform a “timely
destruction,” of records. (§ 11361.5, subd. (a).) Specifically, while plaintiffs
suggest that defendants failed to apply for “alternative source[s] of funding,”
to carry out their duties under the statute, and question defendants’ “policy of
taking 48 hours” to redact records subject to section 11361.5 that are
requested by the public,” plaintiffs fail to demonstrate that either of these
actions violates section 11361.5.
More generally, defendants presented evidence of a three-pronged
procedure in hybrid cases that constitutes a reasonable approach that is
consistent with the purpose of section 11361.5, and ensures that eligible
hybrid cases are not accessible pending redaction. (See pt. III.B.2.b.iii, ante.)
Plaintiffs fail to demonstrate how such an approach constitutes a violation of
section 11361.5. In particular, while plaintiffs state in their brief that,
“[t]here is no mention of ‘sealing’ in section 11361.5,”40 it is undisputed that
defendants use sealing merely as a temporary method to make records in
hybrid cases inaccessible subject to section 11361.5 pending obliteration.
40 Plaintiffs suggested the propriety of sealing as a practice consistent
with section 11361.5 in the operative second amended complaint:
“Failure to Seal and Destroy Certain Marijuana-Offense
Records: Defendants maintain thousands of records related
to violations of Health & Safety Code [sections] 11357(b)–
(e), 11360(b) and make them freely available to the public
requesting said records online or in person. Such records
are subject to sealing and destruction requirements under
[section] 11361.5.” (Italics added.)
45
Plaintiffs fail to demonstrate how making hybrid cases inaccessible pending
obliteration is inconsistent with the purpose behind section 11361.5.
b. Plaintiffs’ contention that Proposition 64 mandates the
destruction of documents pertaining to nonmarijuana-related
offenses charged together with marijuana-related offenses is
unpersuasive
Plaintiffs contend that defendants are violating section 11361.5 by
misinterpreting and misapplying section 11361.5, subdivision (a) as amended
by Proposition 64. (Initiative Measure (Prop. 64), § 8.6, approved Nov. 8,
2016, eff. Nov. 9, 2016.) Specifically, plaintiffs contend that section 11361.5,
subdivision (a), as amended by Proposition 64, mandates the destruction of
documents pertaining to nonmarijuana-related offenses when such offenses
are charged together with a qualifying marijuana-related offense, and
maintain that defendants have failed to destroy documents in accordance
with this interpretation of the statute.41
“ ‘In interpreting a voter initiative . . . , we apply the same principles
that govern statutory construction.’ [Citation.] Where a law is adopted by
the voters, ‘their intent governs.’ [Citation.] In determining that intent, ‘we
41 Plaintiffs acknowledge in their reply brief that they did not raise this
argument in the trial court, stating that “the parties did not reference” the
definition of “records pertaining to the arrest or conviction” (italics omitted)
in section 11361.5, subdivision (a), as amended by Proposition 64, in their
summary judgment motions. However, because plaintiffs’ argument on
appeal raises a pure question of law and is related to their argument that the
trial court erred in interpreting section 11361.5, we exercise our discretion to
consider plaintiffs’ argument notwithstanding any possible forfeiture. (See
Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335 [stating a reviewing
court “generally will not consider an argument ‘raised in an appeal from a
grant of summary judgment . . . if it was not raised below,’ ” but that
reviewing court may “consider a newly[-]raised issue ‘when [it] involves
purely a legal question’].)
46
turn first to the language of the statute, giving the words their ordinary
meaning.’ [Citation.] But the statutory language must also be construed in
the context of the statute as a whole and the overall statutory scheme.
[Citation.] We apply a presumption, as we similarly do with regard to the
Legislature, that the voters, in adopting an initiative, did so being ‘aware of
existing laws at the time the initiative was enacted.’ [Citation.]” (People v.
Buycks (2018) 5 Cal.5th 857, 879–880 (Buycks).)
As noted in part III.B.1.b, ante, the first sentence of section 11361.5,
subdivision (a) provides that “records of any court . . . pertaining to the arrest
or conviction of any person for a violation” of specified marijuana-related
offenses “shall not be kept beyond two years” and “[a] court . . . having
custody of the records . . . shall provide for the timely destruction of the
records in accordance with subdivision (c).” (§ 11361.5, subd. (a), italics
added.) As amended by Proposition 64, section 11361.5, subdivision (a) now
also provides, “[a]s used in this subdivision, ‘records pertaining to the arrest
or conviction’ shall include records of arrests resulting in the criminal
proceeding and records relating to other offenses charged in the accusatory
pleading, whether the defendant was acquitted or charges were dismissed.”42
42 Section 11365, subdivision (a) provides in relevant part:
“(a) Records of any court of this state . . . pertaining to the
arrest or conviction of any person for a violation of [certain
marijuana-related offenses], shall not be kept beyond two
years from the date of the conviction, or from the date of
the arrest if there was no conviction, . . . . A court or
agency having custody of the records, including the
statewide criminal databases, shall provide for the timely
destruction of the records in accordance with subdivision
(c), and those records shall also be purged from the
statewide criminal databases. As used in this subdivision,
‘records pertaining to the arrest or conviction’ shall include
47
(Initiative Measure (Prop. 64), § 8.6, approved Nov. 8, 2016, eff. Nov. 9, 2016,
italics added.)
Plaintiffs argue that Proposition 64’s amendment of section 11361.5,
subdivision (a) should be interpreted to provide that records pertaining to all
offenses charged in a case that contains a qualifying marijuana-related
charge must be destroyed pursuant to the statute, even if the offense is not
one of the marijuana-related offenses specified in the statute.43
While the meaning of the text of the amendment is not entirely clear,
the amendment is most reasonably interpreted as providing that records of
marijuana-related offenses “charged in the accusatory pleading” (§ 11361.5,
subd. (a)) are subject to the statute’s destruction / obliteration mandate even
if the defendant was not arrested or convicted of the marijuana-related
offense. This would not have been clear prior to the enactment of Proposition
64, since the first sentence of section 11361.5, subdivision (a) states,
“[r]ecords of any court of this state . . . pertaining to the arrest or conviction of
any person for a violation of [certain marijuana-related offenses],” (italics
added) thereby arguably providing that a defendant must have been either
arrested or convicted of a marijuana-related offense in order for section
11361.5 to apply. The amendment makes it clear that a defendant who was
“charged in the accusatory pleading” (§ 11361.5, subd. (a)) with a qualifying
records of arrests resulting in the criminal proceeding and
records relating to other offenses charged in the accusatory
pleading, whether the defendant was acquitted or charges
were dismissed. . . .”
43 Plaintiffs state that this is so unless the nonmarijuana offense is a
serious offense specifically exempted by the statute. (See § 11361.5,
subdivision (a) [stating that “[t]he requirements of this subdivision do not
apply to . . . records of any arrest for an offense specified in subdivision (c) of
Section 1192.7, or subdivision (c) of Section 667.5, of the Penal Code”].)
48
marijuana-related offense is entitled to the document destruction or
obliteration procedures of section 11361.5 even if the defendant was
“acquitted or charges were dismissed.” (§ 11361.5, subd. (a).)
In addition to being consistent with the text of the statute, our
interpretation is also supported by the legislative history of the proposition.
(See Ballot Pamp., Gen. Elec. (Nov. 8, 2016) official title and summary of
Prop. 64, p. 90 [“Authorizes resentencing and destruction of records for prior
marijuana convictions” (italics added)]; id. analysis by the legislative analyst
of Prop. 64, p. 95 [“The measure also requires the destruction— within two
years—of criminal records for individuals arrested or convicted for certain
marijuana-related offenses” (italics added)].)
In contrast, plaintiffs’ broad interpretation of the amendment would
mean that records pertaining to offenses entirely unrelated to marijuana
would be subject to destruction under section 11361.5 merely because of the
happenstance that such offenses were charged in a case in which a qualifying
marijuana-related offense was also charged. As defendants note, such an
interpretation “would reflect a dramatic shift in the handling of . . . hybrid
cases, and in the record retention requirements for charges that are not
subject to [s]ection 11361.5.” Yet, plaintiffs point to nothing in either the
legislative history or the purpose of Proposition 64 that would suggest that
the voters had such a broad intent in adopting the proposition. (See Buycks,
supra, 5 Cal.5th at pp. 879–880 [statutory language of a voter initiative must
be “construed in the context of the statute as a whole and the overall
statutory scheme”].)
Accordingly, we reject plaintiffs’ contention that section 11361.5,
subdivision (a), as amended by Proposition 64, mandates the destruction of
49
documents pertaining to nonmarijuana-related offenses when charged
together with a qualifying marijuana-related offense.
c. Undisputed evidence establishes that defendants are violating
section 11361.5
In addition to their Proposition 64 argument, plaintiffs contend that
defendants violate section 11361.5 in two additional ways. First, with respect
to the scope of references to be obliterated, plaintiffs argue that, in hybrid
cases, defendants’ practice of merely redacting references to eligible charges
does not constitute the “permanent obliteration of all entries or notations
upon the records pertaining to the arrest or conviction.” (§ 11361.5, subd. (c),
italics added.) Second, with respect to the manner by which defendants
perform such obliteration, plaintiffs argue that defendants’ practice of using a
black marker to cross out references does not satisfy section 11361.5,
subdivision (c)’s requirement that the record “be prepared again so that it
appears that the arrest or conviction never occurred.” (Ibid., italics added.)
We consider each argument in turn.
i. Defendants fail to obliterate all references “pertaining to”
marijuana related arrests or convictions (§ 11361.5,
subd. (c))
Plaintiffs contend that defendants violate section 11361.5, subdivision
(c) by interpreting the statute narrowly to require merely the redaction of
“statutory references” to marijuana-related offenses. For example, plaintiffs
contend that redacting “ ‘11357(b) HS’ [from a record] . . . cannot possibly be
the only entry ‘pertaining to the arrest or conviction’ under any reasonable
interpretation of the phrase.” (Italics added.)
On appeal, defendants do not dispute plaintiffs’ characterization of
defendants’ interpretation and implementation of section 11361.5,
subdivision (c) in hybrid cases. In addition, defendants argued in their
50
opposition to plaintiffs’ motion for summary adjudication in the trial court
that, “the destruction statutes are satisfied by redacting all references to the
eligible charge (e.g., ‘H&S 11357’).” (Italics added.) The record on appeal
contains numerous records that defendants have redacted, as well as
defendants’ Hybrid Marijuana Case Processing Procedure, all of which
establish, as an undisputed fact, the nature of defendants’ redaction
practices.
Thus, the question presented by this appeal is whether, given
undisputed evidence as to the nature of defendants’ practices, defendants are
violating section 11361.5, subdivision (c) by failing to obliterate “all entries or
notations upon the records pertaining to the arrest or conviction.” In
resolving this question, we first interpret the meaning of the key phrase
“pertaining to the arrest or conviction.” (Ibid.) We then apply this
interpretation in determining the types of “entries or notations” (ibid.) that
must be obliterated from defendants’ records.
Section 11361.5, subdivision (c) requires the destruction of records of
the arrest or conviction of certain statutorily specified marijuana-related
offenses, “by permanent obliteration of all entries or notations upon the
records pertaining to the arrest or conviction.” (Italics added.)
“[T]he phrase ‘pertaining to’ has ‘wide reach.’ ” (People v. Whalum
(2020) 50 Cal.App.5th 1, 11 (Whalum), review granted Aug. 12, 2020,
S262935 [surveying dictionary definitions and concluding, “[t]he phrase is
plainly meant to refer to a relation between two things rather than an exact
correspondence”]; see also People v. Perry (2019) 32 Cal.App.5th 885, 891
(Perry) [“Definitions of the term ‘pertain’ demonstrate its wide reach: It
means ‘to belong as an attribute, feature, or function’ [citation], ‘to have
reference or relation; relate’ [citation], ‘[b]e appropriate, related, or applicable
51
to’ [citation]”.) In Whalum, supra, this court considered the meaning of a
statutory provision, Health and Safety Code section 11362.45, subdivision (d),
that carved out “ ‘[l]aws pertaining to smoking or ingesting cannabis’ in
correctional institutions from Proposition 64’s legalization of adult cannabis.”
(Whalum, supra, at p. 11, quoting Health & Saf. Code, § 11362.45, subd. (d).)
Relying on the broad meaning of the phrase “pertaining to,” the
Whalum court concluded that a law criminalizing the possession of cannabis
was one that “pertain[ed] to smoking or ingesting” cannabis (Health & Saf.
Code, § 11362.45, subd. (d), italics altered). The Whalum court reasoned:
“[Health and Safety Code] [s]ection 11362.45, subdivision
(d) uses the term ‘pertaining to,’ signaling an intent to
broadly encompass laws that have only a relation to
smoking or ingesting cannabis in a correctional institution,
rather than strictly limiting the carve[-]out to laws that
‘prohibit’ or ‘make unlawful’ the act of smoking or ingesting
cannabis.” (Whalum, supra, 50 Cal.App.5th at pp. 12–13;
accord Perry, supra, 32 Cal.App.4th at p. 891 [“While
[Health and Safety Code] section 11362.45, subdivision (d),
does not expressly refer to ‘possession,’ its application to
possession is implied by its broad wording—‘[l]aws
pertaining to smoking or ingesting cannabis’ ”].)
Similarly, in this case, as plaintiffs persuasively argue, by use of the
phrase “pertaining to” (§ 11361.5, subd. (c)), the Legislature manifested an
intent to require the obliteration of more than merely the reference to the
eligible statutory charge itself. Rather, the Legislature signaled its intent to
broadly require the obliteration of all entries and notations having “a relation
to” eligible charges. (Whalum, supra, 50 Cal.App.5th at p. 12.) Thus,
defendants’ practice of redacting solely references to the qualifying
marijuana-related charge, i.e., “Health and Safety Code” followed by the
section number of the qualifying offense, does not comport with the statutory
mandate.
52
With respect to specific entries and notations found in defendants’
records that the parties refer to on appeal, we reject plaintiffs’ contention
that references to nonmarijuana-related charges contained in a case that
happens to also contain a marijuana-related charge are references
“pertaining to” (§ 11361.5, subd. (c)) a marijuana-related arrest or
conviction.44 Nor are references that relate solely to nonmarijuana-related
charges or that are related to both marijuana-related charges and
nonmarijuana charges reasonably interpreted as falling within the scope of
section 11361.5, subdivision (c). However, we agree with plaintiffs that
references in records that pertain solely to marijuana-related charges,
including references to plea colloquies, fines, and sentences, must be
obliterated.45
Accordingly, to summarize, we hold: (1) defendants need not obliterate
references to nonmarijuana-related charges, even if charged in a case that
also contains a qualifying marijuana-related charge; (2) defendants need not
obliterate entries and notations that are either related solely to
nonmarijuana-related charges or are related to both nonmarijuana-related
charges and a marijuana-related charge; (3) defendants must obliterate
entries and notations that are related solely to a marijuana-related charge,
44 In part III.B.3.b, ante, we rejected plaintiffs’ contention that
Proposition 64’s amendment of section 11361.5 subdivision (a) mandates the
destruction of documents pertaining to nonmarijuana-related offenses that
are charged together with marijuana offenses.
45 To paraphrase the Perry court, we would be hard pressed to conclude
that references in records to plea colloquies, fines, sentences, and narratives
that relate solely to a marijuana-related offense do not “pertain[ ] to”
(§ 11361.5, subd. (c)) such offense. (See Perry, supra, 32 Cal.App.5th at
p. 891 [“We would be hard pressed to conclude that possession of cannabis is
unrelated to smoking or ingesting the substance”].)
53
including references to plea colloquies, fines, sentences and narratives
“pertaining to” a marijuana-related charge. (§ 11361.5, subd. (c).)
ii. Defendants’ method of redaction does not make it
“appear[ ] that the arrest or conviction never occurred”
(§ 11361.5, subd. (c))
Plaintiffs’ also presented evidence that defendants’ practice of using a
black marker to cross out eligible references violates section 11361.5,
subdivision (c)’s requirement that the record “be prepared again so that it
appears that the arrest or conviction never occurred.” (§ 11361.5, subd. (c),
italics added.) Plaintiffs contend that “documents re-prepared by
[defendants] clearly show that the arrest or conviction did occur.” To
demonstrate this point, plaintiffs contrasted a series of records that
defendants had redacted, with the same records redacted by plaintiffs using
“white-out and plain index cards [or] a graphics program to achieve the
mandated result.”
To demonstrate the differences, we include below a portion of a
document redacted using defendants’ procedures:
As can be seen, defendants’ procedure reveals the precise location of the
redaction. Further, given its placement, a reader of the redacted document
54
can ascertain that the redaction likely pertained to an additional charged
offense. This is the same document, as redacted by plaintiffs:
Unlike the document redacted by defendants, a reader of plaintiffs’
redacted document would likely be unaware that the document had
previously contained a reference to the redacted charge.46
If the Legislature had mandated merely the “permanent obliteration of
all entries or notations,” defendants’ practice of merely obfuscating eligible
references by marker might suffice. However, we agree with plaintiffs that
the Legislature’s specific directive of a process requiring permanent
obliteration and the repreparation of the record “so that it appears that the
arrest or conviction never occurred,” (§ 11361.5, subd. (c)) manifests a clear
intent to require more than mere obfuscation. Thus, while defendants argue
that “[r]equiring courts to actually re-prepare every record filed by any party
that referenced an eligible charge would impose an absurd and unreasonable
burden on already-resource-strapped courts,” the text of the statute
46 Plaintiffs also lodged numerous other records that defendants had
redacted containing references to colloquies, fines, sentences and narratives
solely related to qualifying marijuana-related charges. Plaintiffs contrasted
these records with the same records redacted by plaintiffs to remove such
references.
55
specifically requires that “the record shall be prepared again so that it
appears that the arrest or conviction never occurred.” (Ibid., italics added.)
We are not persuaded by defendants’ contention that plaintiffs’
interpretation of the statute “contradicts the Government Code.” According
to defendants, plaintiffs’ interpretation of section 11361.5 is flawed because
the Government Code “expressly states that records subject to destruction
under Section 11361.5 may be ‘destroyed, or redacted.’ ” (Quoting Gov. Code,
§ 68152, subds. (c)(8), (10), italics added by defendants.)47 According to
defendants, “the Legislature did not say that the records had to be ‘destroyed
or prepared again.’ ” (Italics added.)
In presenting this argument, defendants omit a key portion of the
statutory text. Government Code section 68152, subdivisions (c)(8) and
(c)(10) each provide that “records shall be destroyed, or redacted in
accordance with subdivision (c) of Section 11361.5 of the Health and Safety
Code.” (Italics added.) Thus, Government Code section 68152, subdivisions
(c)(8) and (c)(10) specifically incorporate section 11361.5, subdivision (c)’s
requirements, including the mandate that the “the record shall be prepared
again so that it appears that the arrest or conviction never occurred.”
(§ 11361.5, subd. (c), italics added.)
In any event, we see nothing absurd or unreasonable about requiring
that defendants use obliteration techniques that comply with the statutory
directive. (§ 11361.5, subd. (c).) This is particularly true given that the
mandate is part of “ ‘comprehensive reform legislation [that] represented a
conscious and substantial modification of California’s past public policy which
frequently equated marijuana offenses with much more serious drug
47 Government Code section 68152 specifies periods of time that trial
court clerks are directed to retain various types of court records.
56
offenses.’ ” (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 1004 (Hooper);
see id. at p. 1003 [a “ ‘remedial statute of this type should be liberally
construed to promote the underlying public policy. If the meaning is
doubtful, the statute must be construed as to extend the remedy’ ”].) While
defendants are correct that the statute does not specify the means by which a
court is to make “it appear[ ] that the arrest or conviction never occurred”
(§ 11361.5, subd. (c)), plaintiffs demonstrated that the use of white out and
index cards or an electronic software program can achieve the statutorily
mandated result in a manner that plaintiffs maintain is not unreasonably
time consuming. Defendants’ current redaction procedures do not. While
defendants need not literally recreate (retype) the documents, the statute
mandates that they make it appear that the arrests or convictions never
occurred—as plaintiffs have done in exhibits contained in the record on
appeal.
We are equally unpersuaded by defendants’ suggestion that Health and
Safety Code section 11361.7 justifies their insufficient obliteration practices.
According to defendants, this is so because Health and Safety Code section
11361.7 “statutorily protects [former criminal] defendants from any
consequential adverse impact” arising from a record that is eligible for
destruction / obliteration but which is not in fact destroyed or obliterated.
Defendants note that Health and Safety Code section 11361.7 provides in
relevant part:
“(a) Any record subject to destruction or permanent
obliteration pursuant to Section 11361.5, or more than two
years of age, or a record of a conviction for an offense
specified in subdivision (a) or (b) of Section 11361.5 which
became final more than two years previously, shall not be
considered to be accurate, relevant, timely, or complete for
any purposes by any agency or person. . . . .
57
“(d) The provisions of this section shall be applicable
without regard to whether destruction or obliteration of
records has actually been implemented pursuant to Section
11361.5.
“(Health & Saf. Code, § 11361.7, subds. (a), (d), italics
added.)”
Health and Safety Code section 11361.7 reflects the Legislature’s
understanding that the destruction/obliteration process is subject to potential
error. However, we decline to interpret a statute that is plainly intended to
ameliorate the potential adverse consequences that could result from
incomplete destruction or obliteration to justify practices that cause such
incomplete destruction or obliteration.
Accordingly, we conclude that undisputed evidence establishes that
defendants violated section 11361.5 both in failing to adequately obliterate
all references “pertaining” to marijuana arrests or convictions (§ 11361.5,
subd. (c)) and in failing to ensure that obliterated documents are “prepared
again,” in a manner that makes “it appear[ ] that the arrest[s] or conviction[s]
never occurred.” (§ 11361.5, subd. (c).)48
d. Conclusion
For the reasons stated in part III.B.3.c, ante, we conclude that the trial
court erred in granting defendants’ motion for summary adjudication of their
first cause of action (violation of § 11361.5) and in denying plaintiffs’ motion
48 While plaintiffs also object to defendants’ purportedly “completely
unnecessary redaction stamp,” plaintiffs fail to demonstrate that a generic
reference indicating that a given document has been redacted violates the
statutory directive in section 11361.5, subdivision (c) that the record be
prepared again that it appears that the marijuana-related arrest or
conviction never occurred.
58
for summary adjudication of that same cause of action.49 On remand the
trial court is directed to grant judgment for plaintiffs on this cause of action
and to fashion declaratory and injunctive relief in accordance with this
conclusion.
C. Neither plaintiffs nor defendants are entitled to judgment as a matter of
law on plaintiffs’ fifth cause of action (invasion of the state constitutional
right to privacy)
Plaintiffs contend that the trial court erred in denying their motion for
summary adjudication of their claim for invasion of the state constitutional
right to privacy and in granting defendants’ motion for summary adjudication
of that same cause of action. Plaintiffs raise two bases for reversal. Plaintiffs
contend that the trial court erred in denying their motion and in granting
defendants’ motion, given defendants’ serious invasion of plaintiffs’ privacy
interests in: (1) having their minor marijuana-related offense records
destroyed and; (2) not having their criminal histories disclosed on a public
website.
We apply the law governing summary adjudication motions described
in part III.B.1, ante.
1. Substantive law
In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill),
the California Supreme Court outlined the law governing the adjudication of
a cause of action for invasion of the state constitutional right to privacy. In
order to prevail on such a cause of action, the Hill court explained that a
plaintiff must establish the following elements:
“(1) a legally protected privacy interest; (2) a reasonable
expectation of privacy in the circumstances; and (3) conduct
49 We rejected plaintiffs’ remaining arguments for reversal with respect to
this cause of action in part III.B.3.a, ante, and part III.B.3.b, ante.
59
by defendant constituting a serious invasion of privacy.”
(Id. at p. 39–40.)
Courts are to determine whether a plaintiff has established such
elements as follows:
“Whether a legally recognized privacy interest is present in
a given case is a question of law to be decided by the court.
[Citations.] Whether plaintiff has a reasonable expectation
of privacy in the circumstances and whether defendant’s
conduct constitutes a serious invasion of privacy are mixed
questions of law and fact. If the undisputed material facts
show no reasonable expectation of privacy or an
insubstantial impact on privacy interests, the question of
invasion may be adjudicated as a matter of law.” (Hill,
supra, 7 Cal.4th at p. 40.)
The Hill court also described the ways in which a defendant may
prevail on such a cause of action:
“A defendant may prevail in a state constitutional privacy
case by negating any of the three elements just discussed or
by pleading and proving, as an affirmative defense, that the
invasion of privacy is justified because it substantively
furthers one or more countervailing interests.” (Hill,
supra, 7 Cal.4th at p. 40.)50
2. Factual and procedural background
In the operative second amended complaint, plaintiffs alleged that
defendants violated plaintiffs’ state constitutional right to privacy in several
ways, including: (1) maintaining and disclosing to the public records
pertaining to arrests and convictions for marijuana-related offenses subject to
50 In addition, although not relevant to this appeal, the Hill court stated
that a “[p]laintiff, in turn, may rebut a defendant’s assertion of
countervailing interests by showing there are feasible and effective
alternatives to defendant’s conduct which have a lesser impact on privacy
interests.” (Hill, supra, 7 Cal.4th at p. 40.)
60
destruction/obliteration under section 11361.5; (2) making information
obtained from “local summary” available to unauthorized individuals; and
(3) making an “electronic index” searchable by date of birth and driver’s
license information.
Plaintiffs moved for summary adjudication on their privacy cause of
action. As relevant to this appeal, plaintiffs argued that defendants’
disclosure of public records pertaining to arrests and convictions for
marijuana-related offenses subject to destruction under section 11361.5
violated their constitutional right to privacy.51
Defendants opposed plaintiffs’ motion, arguing, in relevant part, “The
Riverside [Superior] Court’s destruction practices for . . . cases [subject to
section 11361.5] comport with law and do not violate any right of privacy.”
Defendants also moved for summary adjudication of plaintiffs’ privacy
cause of action. In their supporting brief, defendants argued that there was
not a triable issue of fact with respect to any of the alleged grounds
supporting plaintiffs’ invasion of privacy cause of action. As relevant to this
appeal, defendants contended both that the Riverside Superior Court’s
practice of permitting the public to search its electronic index by date of birth
and driver’s license information did not violate Rule 2.507 and did not violate
any privacy right, and that defendants did not violate plaintiffs’ right to
privacy or section 13300 by improperly disclosing local summary
51 Plaintiffs also moved for summary adjudication based on defendants’
alleged improper “release of documents containing sensitive private
information.” (Boldface & capitalization omitted.) However, plaintiffs do not
address this aspect of their privacy claim in their legal argument of their
opening brief on appeal.
61
information.52 Defendants also argued that plaintiffs’ invasion of privacy
claim failed as a matter of law to the extent that it was based on defendants’
practices pertaining to records of arrests and convictions for marijuana-
related offenses, for the reasons given by defendants in opposing plaintiffs’
motion for summary adjudication of their first cause of action (violation of
section 11361.5).
After further briefing and a hearing, the trial court denied plaintiffs’
motion, ruling:
“Plaintiffs have failed to meet their initial burden of
establishing conduct by [d]efendants constituting a serious
invasion of privacy.”
The court granted defendants’ motion, ruling:
“As to the privacy claim[ ], [p]laintiffs have failed to
establish a triable issue of material fact as to whether
[d]efendants engaged in conduct constituting a serious
invasion of privacy.”
3. Application
a. The trial court properly denied plaintiffs’ motion for summary
adjudication
Although we have concluded that defendants violated section
11361.5,53 we reject plaintiffs’ contention that plaintiffs established as a
52 In making these arguments, defendants relied heavily on the trial
court’s prior rulings sustaining defendants’ demurrer to plaintiffs’ causes of
action for violation of Rule 2.507 and section 13300.
53 As defendants properly noted in their opposition to plaintiffs’ motion
for summary judgment / adjudication, plaintiffs did not seek summary
adjudication of their privacy cause of action based on “allegations in their
[c]omplaint regarding the use of date of birth as a search criteria . . . or of
62
matter of law that such violations amount to a “serious invasion of privacy,”
such that plaintiffs are entitled to summary adjudication of their invasion of
privacy cause of action based on defendants’ violations of section 11361.5.
In Mathews v. Becerra (2019) 8 Cal.5th 756 (Matthews), the Supreme
Court reaffirmed that, in order to constitute an actionable invasion of
privacy, the invasion “ ‘must be sufficiently serious in . . . nature, scope, and
actual or potential impact to constitute an egregious breach of the social
norms underlying the privacy right.’ ” (Id. at p. 779.) Thus, “ ‘the extent and
gravity of the invasion is [sic] an indispensable consideration in assessing an
alleged invasion of privacy.’ ” (Ibid.)
In this case, for the reasons stated in part III.B.3.c, ante, plaintiffs
established that defendants are violating section 11361.5 with respect to
arrest and conviction records of marijuana-related offenses in their
possession. However, plaintiffs did not demonstrate that defendants’ failure
to obliterate all references “pertaining to” (§ 11361.5, subd. (c)) marijuana
arrests and convictions and defendants’ failure to “prepare[ ] again” certain
documents “so that it appears that the arrest or conviction never occurred,”
(ibid.) are so “ ‘serious in their nature, scope, and actual or potential
impact,’ ” (Matthews, supra, 8 Cal.5th at p. 779) that they constitute a serious
invasion of privacy as a matter of law. (Compare with Hooper, supra, 122
Cal.App.3d at p. 1015 [“If defendant . . . disseminates an individual’s arrest
record containing an entry that the individual has been arrested or convicted
of an offense covered by the legislation, that individual’s right to privacy has
search results from the criminal index amounting to a local summary
criminal history or ‘rap sheet.’ ”
63
been similarly violated”].) Whether defendants’ violations of section 11361.5
are of sufficient “extent and gravity” (Matthews, supra, at p. 779) to warrant
liability for invasion of privacy remains a factual question to be resolved on
remand. Accordingly, we conclude that the trial court properly denied
plaintiffs’ motion for summary adjudication.
b. The trial court erred in granting defendants’ motion for
summary adjudication
In both the trial court and on appeal, defendants’ arguments in support
of their motion for summary adjudication with respect to plaintiffs’ invasion
of privacy cause of action, insofar as it is based on defendants alleged
violations of section 11361.5 and Rule 2.507, rests on the premise that
defendants are not acting in violation of the statute and rule of court.
However, we concluded in part III.B.3.c, that undisputed evidence establishes
that defendants are violating section 11361.5, and in part III.A.3, ante, we
directed the trial court to conduct further proceedings on plaintiffs’
allegations that defendants are violating Rule 2.507.
We further conclude that the trial court erred in determining that
plaintiffs cannot not establish, as a triable issue of fact, whether defendants
committed a “ ‘serious invasion of privacy,’ ” by way of such violations and
alleged violations. (See Matthews, supra, 8 Cal.5th at p. 779.)54 Accordingly,
54 Defendants did not argue in the trial court or on appeal that plaintiffs
could not establish the first two elements of their privacy cause of action,
namely, a legally protected privacy interest and a reasonable expectation of
privacy in the circumstances. We think it clear that section 11361.5 creates a
legally protected privacy interest and a reasonable expectation of privacy for
plaintiffs with respect to court records pertaining to their minor marijuana-
related convictions that are statutorily mandated to be destroyed. Similarly,
Rule 2.507 creates a legally protected privacy interest and a reasonable
expectation of privacy for plaintiffs with respect to personally identifying
64
we conclude that the trial court erred in granting defendants’ motion for
summary adjudication.
c. Conclusion
In sum, neither plaintiffs nor defendants are entitled to judgment as a
matter of law on plaintiffs’ cause of action for invasion of the state
constitutional right to privacy. On remand, the trial court shall conduct
further proceedings with respect to this cause of action.
D. The trial court’s summary adjudication of plaintiffs’ causes of action for
declaratory and injunctive relief must be reversed
In its order granting defendants’ motion for summary judgment, the
trial court granted judgment as a matter of law for defendants on plaintiffs’
sixth cause of action (declaratory relief) and seventh cause of action (writ of
mandate). In light of our reversal of the trial court’s rulings on several of the
underlying substantive causes of actions supporting plaintiffs’ request for
declaratory and injunctive relief (i.e., plaintiffs’ first, third, and fifth causes of
action), we also reverse the trial court’s order granting judgment as a matter
of law on plaintiffs’ causes of action seeking declaratory relief and a writ of
mandate.
IV.
DISPOSITION
The judgment is reversed.
The trial court’s order granting judgment as a matter of law for
defendants on plaintiffs’ first cause of action (violation of section 11361.5) is
reversed. On remand, the trial court is directed to grant judgment as a
matter of law for plaintiffs on plaintiffs’ first cause of action and to conduct
information that is required to be excluded from defendants’ electronic index
by the rule of court.
65
further proceedings with respect to the appropriate declaratory and
injunctive relief to be granted in plaintiffs’ favor with respect to their first
cause of action.
The trial court’s order sustaining defendants’ demurrer to plaintiffs’
third cause of action (violation of Rule 2.507) is reversed. The trial court is
directed to conduct further proceedings on this cause of action in a manner
consistent with this opinion.
The trial court’s order sustaining defendants’ demurrer to plaintiffs’
fourth cause of action (violation of section 13300) is affirmed. On remand,
plaintiffs may ask the trial court for leave to amend their complaint to state a
cause of action for disclosure of criminal offender record information. The
trial court shall determine the legal sufficiency of any such amended
complaint in a manner consistent with this opinion.
The trial court’s order granting judgment as a matter of law for
defendants on plaintiffs’ fifth cause of action (invasion of state constitutional
right to privacy) is reversed. The trial court’s order denying judgment as a
matter of law for plaintiffs on plaintiffs’ fifth cause of action is affirmed. On
remand, the trial court is directed to conduct further proceedings on
plaintiffs’ fifth cause of action in accordance with this opinion.
The trial court’s order granting judgment as a matter of law for
defendants on plaintiffs’ sixth cause of action (declaratory relief) and seventh
cause of action (writ of mandate) is reversed. On remand, after conducting
further proceedings, the trial court is instructed to enter appropriate
declaratory and injunctive relief in plaintiffs’ favor with respect to their first
cause of action. In addition, at the conclusion of the proceedings on remand
with respect to plaintiffs’ remaining causes of action, the trial court is
66
directed to consider whether to grant additional declaratory and injunctive
relief in a manner consistent with this opinion.
Plaintiffs are entitled to recover costs on appeal.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
67