Tuma v. State Bar of Cal. CA1/4

Filed 5/27/21 Tuma v. State Bar of Cal. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CHRISTINE TUMA,
Plaintiff and Appellant,
A161037
v.
STATE BAR OF CALIFORNIA, (San Francisco County
Super. Ct. No. CPF-20-517092)
Defendant and Respondent.
Plaintiff Christine Tuma appeals the dismissal of her complaint against
the State Bar of California (the State Bar), after the court sustained the State
Bar’s demurrer without leave to amend. The complaint alleges violations of
the Bagley-Keene Open Meeting Act, Government Code1 section 11120 et seq.
(Bagley-Keene Act) and the California Public Records Act, section 6250
et seq. (Public Records Act). We find no error with respect to the court’s
ruling on the cause of action for violation of the Bagley-Keene Act, but
conclude that the court erred in finding that plaintiff’s complaint fails to state
a cause of action under the Public Records Act and by denying plaintiff leave
to amend to cure the procedural defects in her pleading with respect to that
cause of action.
1 All statutory references are to the Government Code unless otherwise
noted.
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Background
On May 18, 2020, the State Bar published an agenda for its May 28
meeting which listed the following item to be discussed in a closed session:
“Action on Partial Invalidation of Applicant’s Test Product Due to Printing
Error.” The agenda included one attachment (Attachment C-200). On May 20,
plaintiff sent a letter to the State Bar requesting that it “hold all discussions
on printing errors which affected the February 2020 California Bar Exam
results in a session open to the public, limiting only confidential applicant
information and decision making specific to the partial invalidation of the
applicant’s test product to closed session.” The letter further requested that
all nonconfidential portions of the record identified as “Attachment C-200” in
the meeting agenda be released to her under the Public Records Act.
On May 24, the State Bar responded by letter, rejecting plaintiff’s
requests.
On May 26, plaintiff filed the present complaint for injunctive and
declaratory relief. At the same time, she filed an application seeking a
temporary restraining order and a preliminary injunction enjoining the State
Bar from discussing in closed session all nonconfidential facts pertaining to
any printing errors that affected the February 2020 California Bar
Examination and requiring the State Bar to record the May 28 meeting and
preserve the audio recordings for in camera review.
At the hearing on the application for a restraining order, plaintiff
submitted declarations from two applicants to the State Bar. The first
declaration stated he was told by an employee of the State Bar that the
printing error affected both handwritten and computer-submitted essay
answers, that the error affected a small number of people, and that it was
possible the applicant’s exam result could be reversed as a result of the
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May 28 meeting action. The other applicant stated he was told that the
printing error affected only a few of the handwritten answers to the
examination essays, and that as a result of the printing errors, some of the
answers were not printed completely due to either low printer ink levels or
because of an unidentified error. The State Bar submitted a declaration
stating that the purpose of the closed session was “to discuss and decide the
single issue of whether to partially invalidate an individual applicant’s test
product due to an isolated printing error.”
Following a hearing, the court denied the restraining order and the
request that the May 28 meeting be recorded for future in camera review.
The court explained that the agenda item as described in the notice and the
State Bar’s declaration was clearly a proper matter to discuss in a closed
session. The court added, “You may well be curious about whether this was a
broader issue or not. You can avail yourself of the California Public Records
Act and ask them if there are any documents that bear on that, but the fact
that you’re curious about it, or more specifically your client is curious about it
doesn’t entitle you to force the bar to open a meeting which is, by statute, a
matter that they are entitled to address in closed session.” The meeting took
place that day as scheduled.
On June 24, the State Bar filed a demurrer arguing that plaintiff’s
complaint fails to state a cause of action under either statute. After a hearing
on July 23, the court sustained the demurrer without leave to amend. With
respect to the cause of action under the Bagley-Keene Act, the court found
that the closed session on May 28, 2020, concerning the grading of an
individual’s California bar examination was exempt from the open meeting
requirements of section 11126, subdivision (c)(1), and that plaintiff’s
opposition to the demurrer “verge[d] on frivolous.” With respect to the cause
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of action for violation of the Public Records Act, the court found, among other
things, that the attachment prepared for the meeting is exempt from
disclosure under sections 6254, subdivisions (c) and (g), and Business and
Professions Code section 6060.25, subdivision (a).
Plaintiff timely filed a notice of appeal.
Discussion
1. Standard of Review
“In ruling on a demurrer or motion for judgment on the pleadings, the
trial court examines the pleading to determine whether it alleges facts
sufficient to state a cause of action under any legal theory, with the facts
being assumed true for purposes of this inquiry. [Citations.] Our review is de
novo. [Citations.] ‘[W]e treat the properly pleaded allegations of [the]
complaint as true, and also consider those matters subject to judicial notice.
[Citations.]’ [Citation.] ‘[T]he allegations of the complaint must be liberally
construed with a view to attaining substantial justice among the parties.
[Citation.] If there is any reasonable possibility that plaintiff can state a good
cause of action, it is error and an abuse of discretion to sustain the demurrer
without leave to amend. [Citations.] However, leave to amend is properly
denied if the facts and nature of plaintiffs’ claims are clear and under the
substantive law, no liability exists.’ ” (Campaign for Quality Education v.
State of California (2016) 246 Cal.App.4th 896, 904.)
2. The Bagley-Keene Act
Initially, the State Bar contends plaintiff’s cause of action under the
Bagley Keene-Act is moot. In general, it is a court's duty to decide “ ‘ “actual
controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case
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before it.” ’ ” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind
(1967) 67 Cal.2d 536, 541.) “ ‘[A]n appeal is moot if “ ‘the occurrence of events
renders it impossible for the appellate court to grant appellant any effective
relief.’ ” ’ [Citations.] ‘It is well settled that an appellate court will decide only
actual controversies. Consistent therewith, it has been said that an action
which originally was based upon a justiciable controversy cannot be
maintained on appeal if the questions raised therein have become moot by
subsequent acts or events.’ ” (La Mirada Avenue Neighborhood Assn. of
Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590.)
Section 11130, subdivision (a), as relevant here, authorizes an
“interested person” to “commence an action by mandamus, injunction, or
declaratory relief for the purpose of stopping or preventing violations or
threatened violations of this article or to determine the applicability of this
article to past actions or threatened future action by members of the state
body.”
Plaintiff’s complaint was filed two days before the May hearing. It
asked the court to find that the State Bar’s refusal to discuss in open session
those portions of the May agenda item “which include but are not limited to
the facts pertaining to the printing errors themselves” would violate the
Bagley-Keene Act. Plaintiff’s prayer for relief sought “injunctive or
declaratory relief for the purpose of stopping or preventing [the State Bar’s]
threatened violation” and requiring the State Bar to record any closed session
at that meeting.2
2 The complaint also sought a determination that “the actions taken by
[the State Bar] at the closed sessions of the May . . . meeting are null and
void.” In the trial court and on appeal, the State Bar has argued that the only
action taken at the hearing that could be declared void relates to the
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Plaintiff does not dispute that the relief requested is no longer
available. She argues, however, that this court should decide the merits of
her claim because the case poses an issue of broad public interest that is
likely to recur. (Bushell v. JPMorgan Chase Bank, N.A. (2013) 220
Cal.App.4th 915, 919, fn. 1.) Specifically, she argues that transparency of
attorney admissions in general and public access to specific information
about the printing errors that impacted the February 2020 examination
justify consideration of the arguments on the merits.
We disagree with plaintiff’s framing of the issues on appeal and do not
agree that this case poses an issue of broad public interest. Nonetheless, we
briefly address her argument on the merits.
Under section 11123, subdivision (a) of the Bagley-Keene Act, “All
meetings of a state body shall be open and public and all persons shall be
permitted to attend any meeting of a state body except as otherwise provided
in this article.” As relevant here, section 11126, subdivision (c), provides
“Nothing in this article shall be construed to . . . [p]revent state bodies that
administer the licensing of persons engaging in businesses or professions
from holding closed sessions to prepare, approve, grade, or administer
examinations.” Consistent with the above requirements, Business and
Professions Code section 6026.7, subdivision (a) acknowledges that all
individual applicant’s examination results and that the California Supreme
Court has inherent and exclusive subject matter jurisdiction with respect to
attorney admissions matters. (In re Rose (2000) 22 Cal.4th 430, 453; Cal.
Rules of Court, rules 9.3, 9.13; see also Rules of State Bar, rule 4.9 [“An
applicant refused certification to the Supreme Court of California for
admission to practice law in California may have the action of the Committee
reviewed by the Supreme Court of California in accordance with its
procedures.”].) Plaintiff does not dispute the State Bar’s contention and
repeats her express statement that she has no interest in the individual
applicant’s admission decision.
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meetings of the State Bar are subject to the Bagley-Keene Act. Section
6026.7, subdivision (c)(3) adds that “[i]n addition to the grounds authorized in
the Bagley-Keene Open Meeting Act, a closed session may be held for those
meetings, or portions thereof, relating to . . . [¶] . . . [¶] [t]he preparation of
examination materials, the approval, the grading, or the security of test
administration of the California Bar Examination.”3
Under section 11126.3, subdivisions (a) and (b), the state body may
consider in closed session only those matters disclosed in its noticed agenda.
Here, plaintiff acknowledges that the meeting agenda noticed “only one item
to be discussed in closed session: ‘Action on Partial Invalidation of Applicant’s
Test Product Due to Printing Error.’ ” Her cause of action is based on the
assertion that when discussing the individual applicant’s test results,
background information concerning the printing errors that was of interest to
the general public would also be discussed. The complaint alleges that the
exclusion of the public from attending any portion of the meeting prevents
the public from being informed about (1) “the facts surrounding the printing
errors that occurred in the administration of the February 2020 California
Bar Examination,” (2) “the extent to which attorney applicants’ scores on the
February 2020 California Bar Examination were affected by printing errors,”
(3) whether the State Bar “has performed any due diligence investigating the
3 At the time of the ruling on the State Bar’s demurrer, Business and
Professions Code section 6026.7, subdivision (c)(3) permitted closed sessions
be held for meetings relating to the “preparation, approval, grading, or
administration of the California Bar Examination.” (Stats. 2017, ch. 422,
§ 19.) Plaintiff argues that insofar as her complaint seeks prospective
injunctive relief, her appeal should be decided “in accordance with the
postjudgment change” to section 6026.7. We fail to see how the statutory
modification in this instance affects our analysis. We will, however, apply the
current statutory language in resolving this appeal.
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extent to which attorney applicants’ scores on the February 2020 California
Bar Examination were affected by printing errors,” and (4) “the likelihood
that printing errors will affect attorney applicant’s scores on the September
2020 California Bar Examination.”
Whether the printing error was an “isolated incident” as the State Bar
suggests or a more widespread issue as plaintiff suspects is immaterial. A
nonconfidential discussion of the alleged printing error was not on the agenda
for discussion at the May meeting. We must presume that the State Bar
intended to conduct its closed session in accordance with the statutory
requirements. Although some non-confidential facts regarding the alleged
printing error may have been mentioned in the course of that discussion,
there is no reason to assume that the discussion would extend beyond what
was necessary to resolve the matter involving the specific applicant.
At the hearing on plaintiff’s application for a temporary restraining
order, the court questioned whether plaintiff had “any authority for the
proposition that in a closed session addressing an exempt topic, if somebody
happens to say something that is not confidential but that bears on that
topic, that . . . a court can then issue injunctive relief and say, well, you can
hold the closed session, but then the moment you say anything that is non-
confidential, you have ta also hold an open or public session to address that
one piece of information.” Plaintiff conceded that she did not have such
authority but argued that due to the public’s strong interest in this matter,
some public statement by the bar on the printing errors should be required.
Plaintiff’s counsel argued, “I think this entire action would be moot if the
State Bar had at least, for example, [issued] a memorandum explaining what
happened.” While we agree that the facts surrounding any printing errors
affecting the examination may be of legitimate concern to the public, the
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Bagley-Keene Act does not compel the State Bar to provide a public hearing
simply because a fact of public interest may be mentioned in the context of an
otherwise confidential discussion. Therefore, the court properly sustained the
demurrer to the first cause of action.
3. The Public Records Act
The State Bar is made subject to the requirements of the Public
Records Act under section 6252, subdivision (f)(2). Accordingly, its public
records, except those exempt from disclosure by express provisions of law,
must be made available for inspection as provided for under the provisions of
the Act, including “[a]ny reasonably segregable portion of a record . . . after
deletion of the portions that are exempted by law.” (§ 6253, subds. (a).)
Because the Legislature enacted the Public Records Act “ ‘ “for the purpose of
increasing freedom of information by giving members of the public access to
information in the possession of public agencies” ’ ” the exemptions are
“narrowly construed” and the agency “opposing disclosure bears the burden of
proving that an exemption applies.” (Am. C.L. Union of N. California v.
Superior Court (2011) 202 Cal.App.4th 55, 66, 68.)
The disclosure requirements are enforceable under section 6259,
subdivision (a), which reads, “Whenever it is made to appear by verified
petition to the superior court of the county where the records or some part
thereof are situated that certain public records are being improperly withheld
from a member of the public, the court shall order the officer or person
charged with withholding the records to disclose the public record or show
cause why the officer or person should not do so. . . .” An order “either
directing disclosure by a public official or supporting the decision of the public
official refusing disclosure, is not a final judgment or order within the
meaning of Section 904.1 of the Code of Civil Procedure from which an appeal
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may be taken, but shall be immediately reviewable by petition to the
appellate court for the issuance of an extraordinary writ.” (§ 6259, subd. (c).)
Initially, we note that the court properly sustained the demurrer on the
ground that plaintiff had not filed a “verified petition” as required by
section 6259, subdivision (a). On appeal, the State Bar argues that this
failure is dispositive. Plaintiff argues that her signed declarations attesting
to the material facts are sufficient and suggests that this court “should not
affirm on the technical noncompliance of [her] lack of a verification, when the
State Bar has failed to demonstrate any difference or prejudice as a result.”
We disagree that the failure to file a verified petition is a technicality that
can be overlooked. We conclude, however, that the court abused its discretion
in by failing to grant plaintiff leave to amend to cure the pleading defect.
(United Farm Workers of America v. Agricultural Labor Relations Bd. (1985)
37 Cal.3d 912, 915 [failure to verify a pleading, where the verification is
required by statute, “is a mere defect curable by amendment”]; Doe v. Albany
Unified Sch. Dist. (2010) 190 Cal.App.4th 668, 673 [trial court abused its
discretion in refusing to grant plaintiffs leave to amend their complaint to
state a claim for a writ of mandate to compel compliance with statute].)
The trial court also found that Attachment C-200 is exempt from
disclosure under section 6254, subdivisions (c) and (g) and Business and
Professions Code section 6060.25. Subdivision (c) of section 6254 exempts
from disclosure, “Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.”
Subdivision (g) of section 6254 exempts from disclosure, “Test questions,
scoring keys, and other examination data used to administer a licensing
examination, examination for employment, or academic examination.”
Business and Professions Code section 6060.25, subdivision (a) provides,
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“Notwithstanding any other law, any identifying information submitted by an
applicant to the State Bar for admission and a license to practice law and all
State Bar admission records, including, but not limited to, bar examination
scores . . . and any information contained within the State Bar Admissions
database or any file or other data created by the State Bar with information
submitted by the applicant that may identify an individual applicant . . .
shall be confidential and shall not be disclosed pursuant to any state law,
including, but not limited to, the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the Government
Code).”
Plaintiff does not dispute that portions of Attachment C-200 are
exempt from disclosure. She argues, however, that her complaint sufficiently
alleges that the State Bar violated the Public Records Act by failing to
disclose those portions of the attachment “which did not contain confidential
information.” We agree.
The State Bar was entitled to redact all exempt material, but any
“reasonably segregable portion” of the document was subject to disclosure.
While the State Bar may ultimately prevail by proving that the document
contains no information subject to disclosure, or that the nonconfidential
portion is not “reasonably segregable” from the confidential portion, plaintiff’s
allegations are sufficient for purposes of demurrer.4
4 At oral argument, counsel for the State Bar argued that the
information regarding the printing error, even if otherwise segregable from
the applicant’s confidential information, would remain exempt from
disclosure under section 6255, subdivision (a) which permits the State Bar to
“justify withholding any record by demonstrating . . . that on the facts of the
particular case the public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the record.” It seems
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Disposition
The dismissal is reversed. The order sustaining the demurrer is
affirmed as to the cause of action for violation of the Bagley-Keene Act but
reversed insofar as it denies plaintiff leave to amend the cause of action for
violation of the Public Records Act.5 Plaintiff is to recover her costs on appeal.
POLLAK, P. J.
WE CONCUR:
BROWN, J.
BANKE, J.*
doubtful that an explanation of the nature of a “printing error” would affect
the security of the administration of the examination or otherwise affect the
public interest, but in all events no such justification appears on the face of
the complaint.
5 Plaintiff’s additional contention that she was erroneously denied
attorney fees is without merit insofar as based on her cause of action under
the Bagley-Keene Act, as to which she did not prevail. Insofar as based on her
cause of action under the Public Records Act, under which she has yet to
prevail, her right to an award of attorney fees is not ripe for determination at
this time.
*Associate Justice of the Court of Appeal, First Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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