Housley v. Los Angeles Times Communications CA2/6 ( 2023 )


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  • Filed 6/8/23 Housley v. Los Angeles Times Communications CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    ARIK HOUSLEY et al.,                                            2d Civ. No. B322230
    (Super. Ct. No. 56-2019-
    Appellants,                                              00523492-CU-WM-VTA)
    (Ventura County)
    v.
    LOS ANGELES TIMES
    COMMUNICATIONS, LLC,
    et al.,
    Respondents.
    COUNTY OF VENTURA,
    Real Party in Interest.
    Appellants are relatives of the eleven civilian victims of the
    2018 shooting at Borderline Bar & Grill in Thousand Oaks.1
    Appellants include: Arik and Hannah Housley, parents of
    1
    Alaina Maria Housley; Lorrie and Dan Dingman, parents of
    Blake Dingman; Cheryl Gifford-Tate, mother of Cody Coffman;
    Elsa and Mario Manrique, parents of Dan Manrique; Laura Lynn
    They challenge a trial court order denying their motion for a
    preliminary injunction forbidding Real Party in interest County
    of Ventura (County) from releasing their relatives’ autopsy
    reports pursuant to the California Public Records Act (CPRA).
    (Gov. Code, § 7921.000 et seq.)2 Respondents are media
    organizations requesting disclosure.3
    The trial court found appellants were not likely to establish
    at trial that they held a constitutional right to privacy in the
    autopsy reports. We agree and affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    A recitation of the underlying facts is set forth in our prior
    opinion in this case. (See Los Angeles Times Communications,
    LLC v. Housley (April 6, 2022, B310585) [nonpub. opn.] (Housley
    I).) We summarize them briefly here.
    Ian Long shot and killed eleven patrons of Borderline Bar
    and Grill on the night of November 7, 2018. Sergeant Ron Helus
    and Roger Meek, parents of Justin Meek; Martha and Michael
    Morisette, parents of Kristina Morisette; Theri Ramirez, Mark
    Meza, Sr., and Kelly Marsh, parents of Mark Meza, Jr.; Fran
    Adler, wife of Sean Adler; and Susan Schmidt-Orfanos and Marc
    Orfanos, parents of Telemachus Orfanos.
    2  The Legislature renumbered and reorganized the CPRA
    effective January 1, 2023. (Assembly Bill No. 473 (2021-2022
    Reg. Sess.).) The amendments were “entirely nonsubstantive in
    effect.” (Gov. Code, § 7920.100.) All further unlabeled statutory
    references are to the Government Code.
    3Respondents include: Los Angeles Times
    Communications, LLC, owner of the Los Angeles Times
    newspaper; The Associated Press; and Scripps NP Operating,
    LLC, publisher of the Ventura County Star newspaper.
    2
    of the Ventura County Sheriff’s Office died from gunshot wounds
    he suffered after entering Borderline and confronting Long. Long
    committed suicide shortly after exchanging fire with Helus,
    bringing the death toll to thirteen.
    Respondents requested autopsy reports for Long, Helus,
    and the eleven civilian victims under CPRA. The County initially
    declined the request based on CPRA’s exemption for records of
    ongoing law enforcement investigations. (Former § 6254, subd.
    (f).) Respondents and other news organizations sued to compel
    disclosure (CPRA action).4 The County released the reports for
    Long and Helus but kept the civilian victims’ reports confidential
    while the District Attorney’s Office and Sheriff’s Office completed
    their investigations. As the investigations neared completion,
    appellants sued to enjoin the County from disclosing the
    remaining reports (reverse CPRA action).5 The trial court later
    consolidated the CPRA and reverse CPRA actions with a third
    case involving disclosure of Borderline-related records possessed
    by the Sheriff’s Office.6
    4Los Angeles Times Communications, LLC et al. v. County
    of Ventura (Super. Ct. Ventura County, 2019, No. 56-2019-
    00527063-CU-WM-VTA).
    Housley et al. v. County of Ventura (Super. Ct. Ventura
    5
    County, 2020, No. 56-2020-00542567-CU-MC-VTA).
    6 The order designated Ventura County Deputy Sheriff’s
    Association v. County of Ventura (Case No. 56-2019-00523492) as
    lead case in the consolidated action. That case was the subject of
    an earlier, unrelated writ proceeding in Howeth v. Superior Court
    (Case No. B298858) and an appeal in Ventura County Deputy
    Sheriff’s Association v. County of Ventura (Case No. B300006).
    The Ventura County Deputy Sheriff’s Association is not a party
    to this appeal.
    3
    While the CPRA action was pending, a state legislator
    introduced a bill expanding the right to request sealing of a
    deceased family member’s autopsy report.7 The court granted
    appellants’ motion for a preliminary injunction and directed the
    County to withhold disclosure while the legislature considered
    the bill. We held in Housley I that the court erred.8 Appellants
    renewed their motion for a preliminary injunction on remand.
    This time the trial court denied the motion, finding appellants
    were not likely to establish a constitutional right of privacy in the
    reports at trial. They appealed. (Code Civ. Proc., § 904.1, subd.
    (a)(3).) On September 14, 2022, we granted appellants’ petition
    for writ of supersedeas staying the County’s release of records
    pending resolution of this appeal.9
    DISCUSSION
    Standard of Review
    A trial court considers two factors when deciding a motion
    for preliminary injunction: “‘(1) the likelihood that the plaintiff
    will prevail on the merits of its case at trial, and (2) the interim
    harm that the plaintiff is likely to sustain if the injunction is
    denied as compared to the harm that the defendant is likely to
    suffer if the court grants a preliminary injunction. [Citation.]’”
    (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach
    (2014) 
    232 Cal.App.4th 1171
    , 1177; see Code Civ. Proc., § 526,
    subd. (a).) A reviewing court does not disturb the decision absent
    abuse of discretion as to both factors. (Cohen v. Board of
    7   Assembly Bill No. 268 (2021-2022 Reg. Sess.).
    8 We granted appellants’ unopposed request for judicial
    notice of the appendix filed in Housley I. (Evid. Code, § 452,
    subd. (d).)
    9   The County takes no position on the merits of this appeal.
    4
    Supervisors (1985) 
    40 Cal.3d 277
    , 286-287.) Only the first is at
    issue in this appeal.
    The parties do not dispute the facts on which the trial court
    ruled. Whether appellants possess a constitutional right to
    privacy prohibiting the autopsy reports’ disclosure is therefore a
    question of law reviewed de novo. (See Marken v. Santa Monica-
    Malibu Unified School Dist. (2012) 
    202 Cal.App.4th 1250
    , 1261
    (Marken), citing Huong Que, Inc. v. Luu (2007) 
    150 Cal.App.4th 400
    , 408-409 [“if the ‘likelihood of prevailing on the merits’ factor
    depends upon the construction of a statute or another question of
    law, rather than evidence to be introduced at trial, our review of
    that issue is independent or de novo”].)
    Reverse CPRA Actions
    CPRA furthers the constitutional aims of open governance
    and transparency. (Cal. Const., art. I, § 3(b)(1) [“The people have
    the right of access to information concerning the conduct of the
    people’s business, and, therefore, the . . . writings of public
    officials and agencies shall be open to public scrutiny”].) The
    public may inspect any public record so long as disclosure is not
    “prohibited by law” or subject to an exemption listed in CPRA.
    (§§ 7921.500, 7922.000.)10
    Aims of open governance must on occasion yield to privacy
    rights. CPRA’s preamble states as much: “In enacting this
    division, the Legislature, mindful of the right of individuals to
    privacy, finds and declares that access to information concerning
    the conduct of the people’s business is a fundamental and
    10The CPRA defines a “public record” as “any writing
    containing information relating to the conduct of the public’s
    business prepared, owned, used, or retained by any state or local
    agency regardless of physical form or characteristics.”
    (§ 7920.530, subd. (a).)
    5
    necessary right of every person in this state.” (§ 7921.000, italics
    added.) Yet, CPRA “provides no mechanism for notifying such
    individuals of the requested disclosure and does not specifically
    authorize actions to prevent disclosure.” (City of Los Angeles v.
    Metropolitan Water Dist. of Southern California (2019) 
    42 Cal.App.5th 290
    , 297.) Courts permit “reverse” CPRA actions to
    fill this gap by providing a forum “in which a party adversely
    affected by the disclosure can challenge the lawfulness” of an
    agency’s response. (Marken, supra, 202 Cal.App.4th at p. 1267.)
    A plaintiff seeking to prevent disclosure “must establish that . . .
    disclosure ‘is otherwise prohibited by law.’” (Id. at p. 1270,
    quoting former § 6254, now § 7921.500.) It is not enough to show
    one or more CPRA exemptions might apply. The discretion to
    invoke an exemption lies with the agency presented with the
    request. (See Marken, at p. 1262 [CPRA’s exemptions “are
    permissive, not mandatory: They allow nondisclosure but do not
    prohibit disclosure”].)
    Right to Privacy in Autopsy Reports
    Appellants contend the County is prohibited by law from
    disclosing autopsy reports because appellants have a
    constitutional right to privacy in those reports. They invoke the
    traditional interest of surviving family members “in honoring and
    mourning their dead and objecting to unwarranted public
    exploitation that, by intruding upon their own grief, tends to
    degrade the rites and respect they seek to accord to the deceased
    person who was once their own.” (Nat’l Archives and Records
    Admin. v. Favish (2004) 
    541 U.S. 157
    , 168 [
    158 L.Ed.2d 319
    ].)
    Appellants cite authorities affirming the decisions of agencies to
    withhold not just graphic excerpts or images from disclosure, but
    entire autopsy reports when doing so would impinge on the
    privacy rights of surviving family members. (Bowen v. U.S. Food
    & Drug Admin (9th Cir. 1991) 
    925 F.2d 1225
    ; Badhwar v. United
    6
    States Dept. of Air Force (D.C. Cir. 1987) 
    829 F.2d 182
    ; Wolk Law
    Firm v. United States NTSB (E.D. Pa. 2019) 
    392 F.Supp.3d 514
    .)
    Appellants justifiably fear the details of their loved ones’
    violent deaths being “strewn about the Internet and spit back at
    [them], accompanied by hateful messages” from the conspiracy
    theorists and trolls attracted to mass tragedies like moths to a
    flame. (Catsouras v. Department of California Highway Patrol
    (2010) 
    181 Cal.App.4th 856
    , 863.) We do not question the
    sincerity of their objections to disclosure or the depth of their
    grief. Any individual right to privacy in the reports, however,
    must coexist with the public’s fundamental “right of access to
    information concerning the conduct of the people’s business.”
    (Cal. Const., art. I, § 3, subd. (b)(1).)
    Appellants’ authorities hold that an agency may withhold
    autopsy records when doing so violates the privacy rights of
    surviving family members. Whether the County “may” withhold
    the reports here is not disputed. The CPRA grants agencies great
    discretion to balance access and privacy rights when responding
    to information requests. (See §§ 7927.700 [agencies may
    withhold “personnel, medical, or similar files” if disclosure “would
    constitute an unwarranted invasion of personal privacy”];
    7927.705 [CPRA does not require disclosure of records exempted
    or prohibited from disclosure under “federal or state law”].)11
    11 The First District recently addressed this balancing
    function Edais v. Superior Court (2023) 
    87 Cal.App.5th 530
    .
    Appellant parents sought to compel disclosure of their son’s
    autopsy records to a private forensic expert hired by them to
    investigate their son’s death. The coroner withheld disclosure
    because the son’s widow did not consent. Edais concluded wife’s
    privacy interest in the records did not outweigh the public’s
    interest in access and ordered disclosure. (Id. at p. 546.)
    7
    This appeal concerns a reverse CPRA action. The County’s
    balancing of rights is not the subject of review. We consider only
    whether appellants demonstrate the County is “prohibited by
    law” from disclosing the reports. They do not.
    California has long considered autopsy reports public
    records. (People v. Williams (1959) 
    174 Cal.App.2d 364
    , 390;
    Walker v. Superior Court (1957) 
    155 Cal.App.2d 134
    , 138-139.)
    Statutory exceptions exist, such as those applying to postmortem
    and autopsy photos “taken by or for the coroner,” which officials
    may disseminate only in specific circumstances. (§ 7930.180,
    citing Code Civ. Proc., § 129; see Edais v. Superior Court, supra,
    
    87 Cal.App.5th 530
     [section 129 did not prevent disclosure of
    autopsy photos to private forensic examiner retained by
    deceased’s parents].) In addition, the legislature criminalized
    disseminating postmortem images collected by paramedics,
    coroners, and other first responders when it enacted The Kobe
    Bryant Act of 2020. (Penal Code, §§ 647.9, 1524.)12 “[W]e know
    of no comparable statute protecting [the non-photographic]
    documents” at issue here. (Edais, at p. 545.) “This is not to say
    that surviving family members retain no privacy interest in a
    document such as the [autopsy reports], but any such interest is
    somewhat diminished, as compared to graphic and unsettling
    images of the deceased.” (Ibid.) The trial court correctly declined
    to expand these statutory prohibitions by judicial fiat to non-
    photographic elements of autopsy reports when the legislature
    12 The Kobe Bryant Act followed the scandal over photos
    leaked by first responders of the helicopter crash that killed
    retired basketball star Kobe Bryant, his daughter Gianna, and
    seven others in January of 2020. (Assembly Bill No. 2655 (2019-
    2020 Reg. Sess.)
    8
    has declined to do so as well.13 The common law privacy rights
    invoked by appellants may properly factor into the County’s
    decision to withhold the reports in whole or in part, but do not, as
    appellants insist, nullify the access rights enshrined in our state’s
    constitution and CPRA.14
    DISPOSITION
    The order denying appellants’ motion for preliminary
    injunction is affirmed. Our order of September 14, 2022, staying
    the County’s release of records will dissolve upon issuance of the
    remittitur. The parties shall bear their own costs on appeal.
    NOT TO BE PUBLISHED.
    CODY, J.
    We concur:
    GILBERT, P.J.                   YEGAN, J.
    13 See also Penal Code section 832.7 subdivision (b)
    expressly stating “records maintained by a state or local agency,”
    including “autopsy reports” are not confidential and “shall be
    made available for public inspection pursuant to the [CPRA]” if
    they relate to the “report, investigation or findings” of an
    “incident involving the discharge of a firearm at a person by a
    peace officer.”
    14Appellants argue the trial court should have directed the
    County to make certain determinations, such as the need for
    redactions, before releasing the autopsy reports. This issue is
    beyond the scope of this appeal. We address only the denial of
    the motion for a preliminary injunction.
    9
    Mark S. Borrell, Judge
    Superior Court County of Ventura
    ______________________________
    Flesher Schaff & Schroeder, Jacob D. Flesher; Steptoe &
    Johnson, Alice E. Loughran, for Appellants.
    Law Offices of Kelly A. Aviles, Kelly A. Aviles and Shaila
    Nathu; Los Angeles Times Communications, and Jeffrey D.
    Glasser, for Respondents, Los Angeles Times Communications
    LLC, The Associates Press, and Scripps NP Operating, LLC,
    publisher of the Ventura County Star.
    Claudia Y. Bautista, Ventura County Public Defender, and
    Michael C. McMahon, Senior Deputy Public Defender, for
    Intervener and Respondent Ventura County Public Defender’s
    Office.
    Tiffany N. North, County Counsel, and Emily T. Gardner,
    Principal Assistant County Counsel, for Real Parties in Interest
    County of Ventura.
    10
    

Document Info

Docket Number: B322230

Filed Date: 6/8/2023

Precedential Status: Non-Precedential

Modified Date: 6/8/2023