Housley v. Los Angeles Times Communications CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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