Doe v. Univ. of Cal.

321 Cal.Rptr.3d 751

John DOE et al., Plaintiffs and Appellants,

v.The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent,Los Angeles Times Communications LLC, Real Party in Interest and Respondent.

B324717

Court of Appeal, Second District, Division 8.

Filed June 7, 2024

APPEAL from an order of the Superior Court of Los Angeles County. Mitchell L. Beckloff, Judge. Affirmed. Los Angeles County Super. Ct. Nos. 22STCP03412, 22STCP03416 & 22STCP03417

Greenberg Glusker Fields Claman & Machtinger, Lisa Von Eschen, Los Angeles, Vishwanath Mohan; Appell Shapiro and Scott E. Shapiro for Plaintiffs and Appellants.

Reed Smith, Raymond Cardozo, San Francisco, Come Buck, Kathryn M. Bayes, Los Angeles; and John Gherini for Defendant and Respondent.

Law Offices of Kelly A. Aviles, Kelly A. Aviles, La Verne; and Jeff Glasser for Real Party in Interest and Respondent.

GRIMES, Acting P. J.

SUMMARY

Plaintiffs appeal from an order denying their request for a preliminary injunction preventing disclosure of certain personnel records in response to a California Public Records Act (CPRA; Gov. Code, § 7920.000 et seq.) request by Los Angeles Times Communications LLC (The Times). We affirm the order denying the preliminary injunction.

FACTS

Plaintiffs are two former faculty members at the University of California, Los Angeles (UCLA). In January 2018, UCLA received a whistleblower complaint alleging plaintiffs and a third professor (collectively, the professors) had engaged in serious misconduct. The Regents of the University of California (The Regents) retained an outside independent law firm, Hueston Hennigan, LLP (Hueston), to investigate the allegations. The Regents notified plaintiffs of the investigation in September 2019.

On May 4, 2020, Hueston issued a 60-page report (the Hueston report). The report stated Hueston " ‘interviewed 44 UCLA administrators, faculty, staff, and current and former students’ "; reviewed hundreds of thousands of e-mails and associated documents and " ‘numerous financial reports’ which were ‘analyzed by a profes- sional forensic accountant retained by’ Hueston, as well as ‘documents provided to’ Hueston by" the three professors; and conducted full-day interviews with each of the professors (and in one case, two full days).

The Hueston report "concluded [the three professors] ‘engaged in improper governmental activities under the University of California Policy on Reporting and Investigating Allegations of Suspected Improper Governmental Activities.’ " The report also concluded two of the professors " ‘violated University policy and California conflict of interest laws’ "; one of them retaliated against another faculty member, "constituting ‘improper governmental activity,’ and violating the ‘UC Faculty Code of Conduct’ "; and another was found to be "involved in harassing activities." Hueston also concluded the evidence did not substantiate other allegations it investigated.

In June 2020, UCLA submitted a formal charge against one of the professors and issued notices of intent to dismiss the other two from their employment effective July 10, 2020. The latter two are the plaintiffs in this appeal.

All three professors settled their pending disciplinary proceedings with The Regents with no findings of misconduct, no adjudication regarding the Hueston report, and no admissions of liability or unlawful conduct. The professors resigned their employment in connection with their settlements.

In March 2021, Martin Martz, a former UCLA employee, requested the Hueston report under the CPRA. The Regents notified the former professors, who objected to The Regents’ intended release of the report. Each of them sought a writ of mandate to compel The Regents to withhold disclosure of the Hueston report. Such lawsuits are known as "reverse-CPRA" actions. (See Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal. App.4th 1250, 1264-1265, 136 Cal.Rptr.3d 395 (Marken).) The three actions were consolidated.

On June 20, 2022, the trial court issued a comprehensive 12-page order denying the three petitions for writ of mandate, allowing The Regents to release the Hueston report (with certain redactions) to Mr. Martz. The court found it was undisputed that disclosure of the report "would compromise substantial privacy interests"; the report found the professors "committed serious misconduct and provides citations to supporting evidence to substantiate the finding"; and the issue was whether the potential harm to the professors’ privacy interests outweighed the public interest in disclosure.

The trial court cited authorities to the effect that even without a finding of misconduct, "if the information in the agency’s files is reliable and, based on that information, the court can determine the complaint is well founded and substantial, it must be disclosed." (Marken, supra, 202 Cal. App.4th at p. 1275, 136 Cal.Rptr.3d 395.) The court concluded the professors did not meet their burden of establishing the Hueston report was exempt from disclosure.

Among other points, the court observed the professors worked at a public university occupying positions of trust, responsibility and authority; the allegations of misconduct were "unquestionably serious and substantial"; the public "has a strong, legitimate and weighty interest in knowing whether and how the university enforces its rules," especially where professors "have sometimes used staff to assist in their misconduct"; and the report "will inform about important governmental activities—the manner in which this public university addressed whistleblower complaints and claims of student victimization by professors." Further, the court stated it "reviewed the Report in its entirety and determined … there is sufficient indicia of reliability to support a reasonable conclusion the complaint and Report are well founded and substantial in nature."

Accordingly, the court ordered that The Regents could release the Hueston report to Mr. Martz on or after July 22, 2022.

The former professors all filed notices of appeal of the denial of their petitions.

On July 18, 2022, The Times (which was not a party to the Martz CPRA proceedings) made its own CPRA request. The Times requested investigative materials "related to the whistleblower complaint … about international students in the orthodontics section of the dentistry school being asked to pay unauthorized fees or donations." The request included the Hueston report, the subsequent settlement agreements between each of the three professors and the university, and the notices of intent to dismiss plaintiffs.

On August 23, 2022, the former professors petitioned this court for a writ of supersedeas or other appropriate stay, contending their appeals of the denial of their mandate petitions would be rendered futile and moot if the Hueston report were disclosed in response to The Times’s request.

On September 19, 2022, this court ordered The Regents not to disclose the Hueston report or any portion of it "to any person or entity" pending resolution of the appeals. The appeals (case No. B321897) are pending, but as of this writing, briefing is far from complete, and those appeals may not be fully briefed and ready to be heard until late this year.

Meanwhile, a few days earlier, on September 15, 2022, the three former professors filed new petitions for writ of mandate in the trial court, seeking to prevent The Regents from disclosing the notices of intent to dismiss (in two instances) and the settlement agreements requested by The Times. The notices of intent to dismiss included "listing in a summary fashion the allegations in the [Hueston] investigation report," with one notice containing an allegation of misconduct not set forth in the other. The settlement agreements did not summarize, but referred to the investigation.

On September 21, 2022, The Regents advised the professors and The Times that, except for the Hueston report (disclosure of which had just been stayed by this court), The Regents intended to disclose the other records to The Times absent a court order precluding them from doing so.

On October 19, 2022, the former professors sought a temporary restraining order (issued two days later) and a preliminary injunction to prevent release of the notices and settlements.

On November 14, 2022, after a hearing, the trial court denied the request for a preliminary injunction. The trial court found plaintiffs had no likelihood of success on the merits, based on its previous determination that the Hueston report was subject to disclosure under the CPRA. "To the extent the documents … quote or summarize the investigation report, they are necessarily not exempt from disclosure under the CPRA."

The remaining material in the notices of intent to dismiss was "directly related to the well founded and substantial allegations of misconduct and [UCLA's] response thereto. The analysis (balance of competing interests) concerning disclosure and the privacy interests of [plaintiffs] is identical to that set forth in this court’s order of June 20, 2022," and for those reasons plaintiffs had "no likelihood of sue- cess on the merits of their reverse-CPRA claim as to the notices of intent to dismiss."

The same analysis applied to the settlement agreements. They did not quote or summarize the Hueston report, but "they reference the investigation. The settlement agreements document how [plaintiffs] resolved [UCLA’s] investigation and the potential for discipline imposed by [UCLA]. These documents are directly related to the well founded and substantial allegations of misconduct," and the court’s analysis of the settlement agreements would again be identical: "[T]he analysis would raise the same competing considerations—[the professors’] substantial privacy interests and the public’s right to know in the context of whistleblowing and student victimization—and the court would balance those considerations in favor of disclosure as it did with...