Skulason v. California Bureau of Real Estate

Filed 8/16/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BELINDA SKULASON,
Plaintiff and Respondent, A147047, A147814
v. (San Francisco County
CALIFORNIA BUREAU OF REAL Super. Ct. No. CGF-15-514284)
ESTATE,
Defendant and Appellant.
Belinda Skulason, a real estate salesperson, brought this action against the
California Bureau of Real Estate (Bureau) alleging that it wrongfully refused to remove
from its public website a document revealing that she had been convicted of three
misdemeanors. She asserted that the Bureau was required to remove the document
because the convictions, while valid when entered, were eventually dismissed under
Penal Code sections 1203.4 and 1203.4a.1 The trial court agreed and entered a judgment
granting a writ of mandate. We reverse and hold that the Board has no mandatory duty to
remove from its website publicly available information about a licensee’s convictions,
including convictions that are eventually dismissed under sections 1203.4 and 1203.4a.
Since we reverse the judgment, we also reverse the trial court’s order awarding Skulason
her attorney fees.
1
All subsequent statutory references are to the Penal Code unless otherwise
indicated.
1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Between 1996 and 1999, Skulason was convicted of three misdemeanors
involving the operation of a vehicle, and she was placed on probation for two of them. In
2000, she applied for a real estate salesperson’s license. Rather than granting the license,
the Bureau initiated an administrative proceeding by filing a statement of issues listing
Skulason’s three convictions and alleging that they “constitute[d] cause for denial of
[Skulason’s] application.” (See Gov. Code, § 11504.) The administrative proceeding
was settled in 2004 when Skulason “admitt[ed] that the allegations of the Statement of
Issues . . . [were] true and correct” and the Board agreed to issue her a restricted license.
The settlement did not require the parties to maintain its confidentiality.
In 2010, Skulason successfully applied to the Bureau for an unrestricted license.
Three years after receiving her unrestricted license, she obtained court dismissals of her
three misdemeanor convictions. The two convictions for which she was placed on
probation were dismissed under section 1203.4, and the third conviction was dismissed
under section 1203.4a.
The Bureau maintains a public website that contains information about real estate
licensees. On that website, a page about Skulason can be accessed that identifies her
license number, the unrestricted status of her license, the dates of license issuance and
expiration, and several actions the Bureau has taken involving her license. At the bottom
of the page, under the heading “Disciplinary or Formal Action Documents,” is a link to
“H-08823SF,” which is a reference to the case number of the administrative proceeding
that resulted in Skulason’s 2004 restricted license. The parties agree that by clicking on
this link website visitors were able to access an electronic copy of the statement of issues
2
from that proceeding and see the references to the three misdemeanor convictions.2
Apparently, nothing on the website indicated that the three convictions had been
dismissed.
Skulason sought to have the Bureau remove the statement of issues from the
website because of its reference to the dismissed convictions. She was unsuccessful, and
she then brought this action, which included a petition for a writ of mandate under Code
of Civil Procedure section 1085, subdivision (a), and a request for declaratory and
injunctive relief. Specifically, she sought an order requiring the Bureau “to remove any
document referencing her expunged convictions from its website.”
After the Bureau filed an answer admitting many of the petition’s factual
allegations, Skulason filed a motion for judgment on the writ petition. The trial court
held a hearing and ultimately granted the petition, ordering the Bureau to “remove any
and all documents containing information about [Skulason’s] expunged and/or dismissed
convictions from its public website and publicly searchable database.” The court stated,
“The point of the expungement law is to allow those who have completed their criminal
sentences to wipe their slates clean, apply for work, and build careers and lives without
the specter of old convictions haunting them.” It remarked, “It is profoundly unjust [for
the Bureau] to frustrate the purpose of the Penal and Labor Codes by posting expunged
conviction information with full knowledge of the potential harm it can cause.” A
judgment reflecting the order was subsequently entered.
After the judgment was entered, Skulason filed a motion for attorney fees. The
trial court awarded her fees in the amount of $42,430.19 under Code of Civil Procedure
section 1021.5. The Bureau separately appealed from the judgment issuing the writ of
mandate and the order awarding attorney fees, and we granted the Bureau’s motion to
consolidate the two appeals.
2
Visitors cannot currently access a copy of the statement of issues on the Bureau’s
website. After entering judgment, the trial court lifted the stay of execution of the writ
pending appeal and ordered the Bureau “to immediately . . . remove any and all
documents referencing Ms. Skulason’s expunged convictions from its website and
searchable database.” The Bureau filed a return stating it had complied.
3
II.
DISCUSSION
A. The Bureau Has No Mandatory Duty to Remove From Its Website Publicly
Available Information About Skulason’s Dismissed Convictions.
“To obtain a writ of mandate under Code of Civil Procedure section 1085, the
petitioner has the burden of proving a clear, present, and usually ministerial duty on the
part of the respondent, and a clear, present, and beneficial right in the petitioner for the
performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015)
240 Cal. App. 4th 87, 103 (Marquez).) We review a trial court’s ruling on a petition for a
writ of mandate de novo, meaning that when the facts are undisputed, as they are here,
we independently review the questions of law presented by the court’s ruling. (Seligsohn
v. Day (2004) 121 Cal. App. 4th 518, 522-523.) Skulason argues that the trial court
properly issued the writ of mandate because the Bureau’s refusal to remove the statement
of issues from its website violated a mandatory duty arising out of sections 1203.4 and
1203.4a, Labor Code section 432.7, and her constitutional right to privacy. We are not
persuaded.
We begin by discussing sections 1203.4 and 1203.4a, which allow people
convicted of crimes to obtain a dismissal of their convictions under certain
circumstances. (People v. Lewis (2006) 146 Cal. App. 4th 294, 297.) Section 1203.4
applies to those who have successfully completed probation, while section 1203.4a
applies to those convicted of either a misdemeanor or an infraction and not placed on
probation. Under both statutes, the consequence of a dismissal is that the convicted
person is, with certain exceptions, “released from all penalties and disabilities resulting
from the offense of which he or she has been convicted.” (§§ 1203.4, 1203.4a.)
According to Skulason, the posting of the statement of issues on the Bureau’s
website imposes on her such a penalty or disability. Although she recognizes that neither
the statement of issues nor the fact of her convictions is confidential, she contends that
the posting nonetheless imposes a penalty or disability because the Bureau “is going out
of its way to disseminate the information” by “publish[ing] the convictions to potential
4
employers with full knowledge that the convictions are now expunged.” Because
Skulason repeatedly describes her dismissed convictions as having been “expunged,” we
take a moment to discuss the legal effect of a dismissal under section 1203.4 or 1203.4a
and the terminology used to describe it.
As a Court of Appeal recently explained, “[a] dismissal under section 1203.4,
while sometimes inaccurately described as an ‘expungement,’ is in no way equivalent to
a finding of factual innocence. Section 1203.4 simply authorizes a court to grant relief to
individuals who successfully complete the terms of probation by mitigating some of the
consequences of conviction. [Citation.] ‘Section 1203.4 does not, properly speaking,
“expunge” the prior conviction. The statute does not purport to render the conviction a
legal nullity. Instead it provides that, except as elsewhere stated, the defendant is
“released from all penalties and disabilities resulting from the offense.” ’ ” (Baranchik v.
Fizulich (2017) 10 Cal.App.5th 1210, 1225 (Baranchik); see also Danser v. Public
Employees’ Retirement System (2015) 240 Cal. App. 4th 885, 894-895 [“section 1203.4
‘was never intended to obliterate the fact that [a] defendant has been “finally adjudged
guilty of a crime” ’ ” but “ ‘merely frees the convicted felon from certain “penalties and
disabilities” of a criminal or like nature,’ ” italics added].) The cases discussing this
principle mostly involve section 1203.4, but their analyses are equally relevant in
construing section 1203.4a given the statutes’ parallel language.
Rather than nullifying a conviction, a dismissal under these statutes confers more
limited relief. To begin with, the relief is limited because other statutes specifically
provide “ ‘that an order under section 1203.4 is ineffectual to avoid specified
consequences of a prior conviction.[3] [Citations.] Furthermore, by [section 1203.4’s]
3
For example, section 290.007 requires sex offenders to register, and thereby be
subject to having their identities reported on a website, even if they have had their
convictions dismissed under section 1203.4. (Doe v. Brown (2009) 177 Cal. App. 4th 408,
413, fn. 2.) Other statutes allow convictions dismissed under 1203.4 to be used to
impeach a witness who is being prosecuted in a “criminal trial . . . for a subsequent
offense” (Evid. Code, § 788, subd. (c)) and to be used for purposes related to the
suspension of a driver’s license. (Veh. Code, § 13555.)
5
own terms, an order under section 1203.4 “does not relieve” the ex-offender of “the
obligation to disclose the conviction in response to any direct question contained in any
questionnaire or application for public office [or] for licensure by any state or local
agency . . . .” [Citation.] [¶] Indeed, section 1203.4 contains a sweeping limitation on
the relief it offers, stating that “in any subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and proved and shall have the same
effect as if probation had not been granted or the accusation or information dismissed.”
This provision alone precludes any notion that the term “expungement” accurately
describes the relief allowed by the statute.’ ” (Baranchik, supra, 10 Cal.App.5th at
p. 1225.)
With the understanding that dismissals under sections 1203.4 and 1203.4a do not
expunge or nullify prior convictions, we return to the central question of whether the
Bureau has a mandatory duty to remove the statement of issues from its website for the
reason that the posting imposes an unlawful penalty or disability. We conclude that the
Bureau has no such duty.
As we have mentioned, Skulason does not dispute that the statement of issues is a
public document, that she admitted the truth of the convictions when she settled the
administrative proceeding, or that her convictions are a matter of public record. (See
People v. Field (1995) 31 Cal. App. 4th 1778, 1787 [records of a conviction dismissed
under section 1203.4 are accessible to the public]; People v. Sharman (1971)
17 Cal. App. 3d 550, 552 [section 1203.4 does not require conviction records to be
removed from public access].) In her words, she “has never argued that section 1203.4
requires deletion or sealing of the now expunged convictions, nor that section 1203.4
renders the expunged convictions legal nullities that cannot be used for any purpose
whatsoever including licensure.” She also accepts that convictions dismissed under
sections 1203.4 and 1203.4a “do not have to be removed from all public access.”4
4
We deny as unnecessary the Bureau’s request for judicial notice of Skulason’s
conviction records. We also deny Skulason’s request to strike those records from the
appellate record.
6
Instead, Skulason’s argument is that the posting of the statement of issues imposes
a prohibited penalty or disability because sections 1203.4 and 1203.4a work “in
conjunction with” Labor Code section 432.7. This latter statute extends certain
protections to job applicants who have obtained dismissals of their convictions under
sections 1203.4 or 1203.4a. It states, “No employer . . . shall ask an applicant for
employment to disclose, through any written form or verbally, information . . .
concerning a conviction that has been judicially dismissed . . . pursuant to . . . [sections
1203.4 or 1203.4a] . . . nor shall any employer seek from any source whatsoever, or
utilize, as a factor in determining any condition of employment including hiring . . . any
record . . . concerning a conviction that has been judicially dismissed . . . pursuant to . . .
[these sections].” (Lab. Code, § 432.7, subd. (a)(1).)
Skulason argues that this provision creates a duty applicable to the Bureau, but we
disagree. By its own terms, Labor Code section 432.7 prohibits conduct by “employers,”
and nothing in its language can be read as imposing a duty on non-employers such as the
Bureau. In her petition, Skulason alleged that at least one potential employer denied her
a job because it learned about her convictions from the statement of issues posted on the
Bureau’s website. But just because Labor Code section 432.7 may create a duty enabling
Skulason to assert a cause of action against a potential employer does not mean that it
creates a separate duty applicable to the Bureau.
We are similarly unconvinced by Skulason’s argument that the posting imposes a
penalty or disability by violating her constitutional right to privacy. A person claiming
an actionable invasion of privacy must show (1) a specific, legally protected privacy
interest; (2) a reasonable expectation of privacy; and (3) conduct constituting a serious
invasion of privacy. (Loder v. City of Glendale (1997) 14 Cal. 4th 846, 890-891.)
Skulason cannot make such a showing because the statement of issues and the fact of her
convictions are matters of public record. (See Fredenburg v. City of Fremont (2004)
119 Cal. App. 4th 408, 422-423 [no privacy interest in public information]; U.D. Registry,
Inc. v. State of California (1995) 34 Cal. App. 4th 107, 113-114, 116 [publishing
information obtained from public court records violates no privacy interest].)
7
Skulason insists that, even though neither the statement of issues nor the record of
the convictions is confidential, the posting nevertheless imposes an unlawful penalty or
disability because it makes it easier for potential employers and clients to learn of the
prior convictions and use them as a reason not to employ her. She points out that “there
is a vast difference between providing public access to documents and actually publishing
the documents to the very people—potential employers—who are prohibited from
seeking or using them. Most court records are technically public, but in many instances
require a physical trip to the courthouse and occasionally money to view. It would be
extremely burdensome for a potential employer to travel around to local courthouses to
research and seek information on prospective employees in the court files.”
Skulason’s point is well taken. There is no doubt that the Internet substantially
increases the ease with which the public can access information that was previously
available only “after a diligent search of courthouse files” or other locally kept records.
(U.S. Dept. of Justice v. Reporters Committee (1989) 489 U.S. 749, 764.) The reality of
our electronic age, for better or worse, is that all kinds of public information that was
once hard to obtain has become increasingly accessible, including information contained
in or related to documents filed in court cases. (See, e.g., Honorable Lewis A. Kaplan,
Litigation, Privacy and the Electronic Age (2001) 4 Yale Symp. L. & Tech. 1, 5.) And
there is no doubt that increased access to information about prior convictions brings with
it additional, and potentially harmful, collateral consequences. (See, e.g., Brian M.
Murray, A New Era for Expungement Law Reform? Recent Developments at the State
and Federal Levels (2016) 10 Harv. L. & Policy Rev. 361, 377-378.) Recognizing this,
the trial court remarked that “[p]osting the information anywhere online is akin to
publishing it on the front page of the newspaper” and that “the harm this can cause an
individual seeking to establish themselves in the real estate (or any other) profession is
clear.” While we might not consider an Internet posting analogous to a front-page news
story, we agree that posting information on the Internet allows the public far more access
to that information than it might otherwise have. And this increased accessibility makes
it easier for employers, intentionally or inadvertently, to use information “concerning a
8
conviction that has been judicially dismissed” in making an employment decision. (Lab.
Code, § 432.7.) When a website includes information about a conviction but not about
the conviction’s subsequent dismissal, visitors are likely to be unaware of the dismissal or
the potential applicability of Labor Code section 432.7. Such a website gives visitors
incomplete information, leaves the person whose conviction was dismissed subjected to
unwanted attention about a misleading fact, and exposes potential employers to possible
liability if they rely on the website’s information to deny an employment application.
Although we acknowledge these adverse consequences, Skulason has not
provided, and we have not found, any legal authority establishing, or defining the scope
of, any duty that would restrict the Bureau’s ability to post publicly available information
about a licensee on its website. Skulason does not explain whether any such duty would
apply to other sensitive, publicly available information unrelated to convictions, or
whether the duty would be binding on all governmental agencies, including non-licensing
ones. At oral argument, Skulason’s counsel posited that the duty arises only when the
Bureau is informed that a conviction has been subsequently dismissed (i.e., that the
Bureau has no independent obligation to inquire into the status of a conviction) and that
the duty would not be satisfied if the Bureau left a conviction reference on its website but
separately informed website visitors that the conviction had been dismissed. No
authority, however, was offered to support these assertions.
Finally, it is of no moment that the law does not require the Bureau to post
information about dismissed convictions. The Bureau has statutory authority to make
public “the fact of an investigation or proceeding regarding a licensee or unlicensed
person believed to be engaging in activities for which a real estate license is required.”
(Bus. & Prof. Code, § 10088.) And the Real Estate Commissioner is directed to “provide
on the Internet information regarding the status of every license.” (Id., § 10083.2.) The
trial court found that neither these statutes nor any other “provision of state law . . .
requires posting expunged conviction information.” While we agree that no law requires
the Bureau to post documents that refer to convictions that have been subsequently
dismissed, we disagree that this point matters. Under the law governing writs of
9
mandate, it does not matter that the Bureau has no mandatory duty requiring it to post the
information.5 What matters is whether the Bureau has a mandatory duty prohibiting it
from posting the information. Skulason has cited no law creating such a duty, and the
Bureau’s posting of the information is therefore quintessentially discretionary and cannot
be disturbed by a writ of mandate. (Marquez, supra, 240 Cal.App.4th at p. 103.)
We are sympathetic to Skulason’s concerns, but her remedies lie with the
Legislature or the Bureau, not with the courts through a writ of mandate. The Legislature
can consider enacting a law to restrict the Bureau’s ability to post documents that refer to
convictions that have been dismissed under sections 1203.4 or 1203.4a. And the Bureau,
rather than posting such documents unredacted and unexplained, can consider different
approaches that might preserve its legitimate interests and still reduce the negative
collateral consequences of its current practice. Our role, however, is limited to deciding
whether existing law requires the Bureau, as ordered by the trial court, to “remove any
and all documents containing information about [Skulason’s] expunged and/or dismissed
convictions from its public website and publicly searchable database.” We conclude that
it does not, and the court therefore erred by granting the petition for a writ of mandate.
5
For this reason, it is inconsequential that, as amicus curiae the California
Association of Realtors points out, a 2016 amendment to Business and Professions Code
section 10083.2 authorizes the Bureau to remove old disciplinary violations from its
online database. (Stats. 2016, ch. 558.) If anything, this amendment reinforces the
discretionary nature of the Bureau’s Internet-posting decisions.
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B. Skulason Is Not Entitled to Attorney Fees.
In light of our reversal of the trial court’s grant of the petition for a writ of
mandate, we also reverse its award of attorney fees to Skulason. Only a successful party
may obtain an award of attorney fees under Code of Civil Procedure section 1021.5.
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 560-561.) Because Skulason
is not entitled to fees as a successful party, we need not resolve the parties’ dispute
whether the petition benefited “the general public or a large class of persons” as required.
(Code Civ. Proc., § 1021.5.)
III.
DISPOSITION
The judgment granting the petition for a writ of mandate and the order awarding
Skulason attorney fees are reversed. The Bureau is awarded its costs on appeal.
11
_________________________
Humes, P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
12
Skulason v. California Bureau of Real Estate (A147047 and A147814)
13
Trial Court:
San Francisco County Superior Court
Trial Judge:
Hon. Ernest H. Goldsmith and Hon. Harold E. Kahn
Counsel for Defendant and Appellant:
Kelly A. Woodruff, Farella Braun + Martel LLP
Aviva J. Gilbert, Farella Braun + Martel LLP
Counsel for Plaintiff and Respondent:
Kamala D. Harris, Attorney General
Xavier Becerra, Attorney General
Kathleen A. Kenealy, Acting Attorney General
Diane S. Shaw, Senior Assistant Attorney General
Lisa W. Chao, Supervising Deputy Attorney General
Stephen Lew, Supervising Deputy Attorney General
Nhan T. Vu, Deputy Attorney General
California Association of Realtors as Amicus Curiae in Support of Respondent:
June Babiracki Barlow, Senior Vice President and General Counsel
Neil Kalin, Assistant General Counsel
Jenny Y. Li, Senior Counsel
14