ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS VS COUNTY OF LA

Tentative Rulings

Case Number: ****4856    Hearing Date: May 6, 2021    Dept: 85

Petitioner Association for Los Angeles Deputy Sheriffs (“ALADS”) moves to compel Respondents County of Los Angeles, Alex Villanueva, and Arlene Barrera (collectively, “County”) to produce further responses to ALADS’ First Set of Requests for Production and First Set of Special Interrogatories.[1]

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. The Complaint

Petitioner ALADS commenced this proceeding on November 22, 2017. The operative pleading is the First Amended Complaint (“FAC”) filed on September 29, 2020, alleging causes of action for (1) breach of contract, (2) mandamus, (3) declaratory relief, and (4) breach of the covenant of good faith and fair dealing. The verified FAC alleges in pertinent part as follows.

ALADS and the County are parties to a Memorandum of Understanding effective February 1, 2015 to January 31, 2018 (“ALADS MOU”). The ALADS MOU was approved by the governing body of the County and is a binding and enforceable agreement.

The ALADS MOU contains a clause entitled “Cost of Living Adjustments (COLA) General Salary Movement (GSM), Across-The-Board Adjustments (ATB)” (the “ATB Clause”). The ATB Clause provides that, should any recognized County safety bargaining unit reach a signed agreement that results in a higher across-the-board percent increase for any given year than provided to members of Unit 611 by the MOU, the County agrees to adjust the salary of Unit 611 members by an equivalent percent increase, effective the same year of the contract and same time as the increase in the other safety bargaining unit.

The ALADS MOU also contains a clause entitled “Economic Enhancements” (“EE Clause”) (collectively with the ATB Clause, the “me-too clauses”), which provides that, should any recognized County safety bargaining unit reach a signed agreement that results in an economic enhancement greater than provided to members of Unit 611 by the MOU for any year of its contract, the County agrees to pay Unit 611 members the same economic enhancement for the same year. For the purposes of this provision, “economic enhancement” includes, but is not limited to, providing or increasing uniform allowance, post pay, standby pay, night shift differential, step increase, vacation time accrual or cash out, holiday pay or cash out, longevity pay, bonus, stipend, incentive pay or lump sum payment.

On May 2, 2017, the County’s Board of Supervisors approved $8,312,000 in “salary adjustments” for individuals represented by the Los Angeles County Professional Peace Officers Association (“PPOA”), the recognized employee organization for a County safety bargaining unit comprised of sworn management peace officers employed by the County Sheriff’s Department (“Sheriff’s Department”) and County District Attorney’s Office (“District Attorney’s Office”). The adjustments took the form of additional compensation for PPOA members holding supervisory certificates from the California Commission on Peace Officers Standards and Training (“POST”). Under the terms of the adjustments, PPOA members holding supervisory certificates received an additional 1.5% in salary effective July 1, 2017 and an additional 2.0% in salary effective July 1, 2018. These adjustments are contained in a signed agreement between PPOA and the County.

Because the vast majority (if not all) of the individuals represented by PPOA possess or can readily obtain POST supervisory certificates, the provision of additional supervisory POST pay is the equivalent of an across-the-board increase, triggering the ATB Clause. Alternatively, the provision of additional supervisory POST pay is an economic enhancement triggering the EE Clause. Post pay is set forth in the enumerated items constituting an economic enhancement in the EE Clause.

The County has refused to apply either the ATB Clause or the EE Clause to the PPOA Adjustments.

2. Course of Proceedings

On September 17, 2020, the court noted that the instant case and 19STCP01070 were related and consolidated on September 2, 2020 by Department 53, with the instant case designated as the lead case. The court stayed any non-mandamus claims pending resolution of the writ of mandate and ordered counsel to meet and confer to discuss production of documents. The court ordered a privilege log for attorney-client privilege and directed ALADS to file a FAC, which occurred on September 29, 2020.

On November 17, 2020, the County filed an Answer to the FAC.

B. Applicable Law

If the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under paragraph (2) of CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response. CCP ;2030.300.

If the party demanding inspection, on receipt of a response to an inspection demand, deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. CCP ;2031.310. The motion must also set forth specific facts showing good cause justifying the discovery sought by the demand. CCP ;2031.310(b)(1). “Good cause” may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial. Associated Brewers Dist. Co. v. Superior Court, (1967) 65 Cal.3d 583, 588. So, where there is no privilege issue or claim of attorney work product, that burden to show “good cause” is met simply by a fact-specific showing of relevance. Glenfed Development Corp. v. Superior Court, (1997) 53 Cal.App.4th 1113, 1117.

Either motion must be accompanied by a meet and confer declaration under CCP ;2016.040. CCP ;2030.300(b), 2031.310(b)(2). Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel further response to interrogatories or requests for production. CCP ;;2030.300(c), 3031.310(c).

In deciding a motion under CCP section 2030.300 or 2031.310, the trial court must, of necessity, consider not only the stated objections to the discovery requests, but also the requests themselves, as well as the pleadings, and the contentions of the interrogating party as to the purpose and validity of the interrogatories. Columbia Broadcast System, Inc. v. Superior Court, (1968) 263 Cal.App.2d 12, 18. If interrogatories are reasonably subject to objection as calling for the disclosure of matters so remote from the subject matter of the action as disclosed by the issues framed by the pleadings as to make their disclosure of little or no practical benefit to the party seeking the disclosure or if to answer them would place a burden and expense upon the parties to whom the interrogatories are propounded which should be equitably borne by the propounding party or if the interrogatories are so framed as to require the disclosure of relevant as well as irrelevant matter, the trial court in the exercise of its discretion may refuse to order such interrogatories answered. Columbia Broadcast System, supra, 263 Cal.App.2d at 19.

The court shall impose a monetary sanction under CCP section 2023.010 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories or a request for production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP ;2030.300(d), 2031.310(h).

C. Statement of Facts

1. Petitioner’s Evidence[2]

On February 11, 2019, the County’s counsel sent ALADS’ counsel a letter in response to a subpoena duces tecum issued in the arbitration held in this matter. Kalinski Decl., ¶3. In the letter, the County stated it did not locate any responsive documents but nevertheless produced a chart providing the percentages and numbers of members of PPOA who possessed a POST supervisory certificate. Id., Ex. A.

On June 15, 2020, ALADS served requests for production and special interrogatories on Respondent County. Ross Decl., ¶3, Exs. A, B. On August 6, 2020, after the parties had agreed to multiple extensions, the County provided responses to the written discovery. Ross Decl., ¶4, Exs. C-E, N.

On September 4, 2020, ALADS’ counsel, Brian Ross, Esq. (“Ross”) sent a meet and confer letter to Mira Hashmall, Esq. (“Hashmall”) and Emily Sanchirico, Esq. (“Sanchirico”), counsel for the County, regarding the responses. Ross Decl., ¶5, Ex. F.

On September 18, 2020, Ross received a response from Sanchirico. Ross Decl., ¶6, Ex. G. Subsequently, the parties had a telephonic conference to discuss the discovery responses. Ross Decl., ¶7. During that call, the County stated that it would serve supplemental responses to the special interrogatories and produce a privilege log. Id., Ex. H.

On October 9, 2020, the County provided its supplemental responses to the special interrogatories. Ross Decl., ¶8, Ex. I. Subsequently, on October 30, 2020 and December 17, 2020, the County produced additional documents in response to Petitioner’s First Set of Requests for Production. Ross Decl., ¶9, Exs. J, K.

On January 20, 2021, Ross received an email from Andrew Dubin, Esq. (“Dubin”) attaching the County’s privilege log. Ross Decl., ¶10, Ex. L. The parties agreed to multiple extensions to extend the deadline for ALADS to file motions to compel further responses to the special interrogatories and requests for production. Ross Decl., ¶11, Ex. M. On February 9, 2021, the parties agreed to a final extension to extend the deadline to file the motions to February 17, 2021. Id.

2. The County’s Evidence

The instant dispute began with administrative grievances in the Sheriff’s Department and District Attorney’s Office, followed by proceedings with the Los Angeles Employee Relations Commission (“ERCOM”) in or around October 23, 2017 (Case Nos. ARB 123-17 and ARB 131-17). Sanchirico Decl., ¶2, Exs. A-C.

On June 15, 2020, ALADS served the County with its first sets of special interrogatories and requests for production in lead case ****4856. Sanchirico Decl., ¶6. The County served responses, objections, and its initial document production on August 6, 2020. Sanchirico Decl., ¶7, Exs. D-F.

On September 18, 2020, Sanchirico sent a letter to ALADS’s counsel, Ross, explaining the County’s objections and asking ALADS to identify which, if any, requests to which it believed the County had not adequately responded and offering to further meet and confer. Sanchirico Decl., ¶10, Ex. I.

ALADS’s counsel and Sanchirico held a telephonic meet and confer conference on September 29, 2020 to discuss the County’s discovery responses. Sanchirico Decl., ¶11. Sanchirico informed Ross that the County was in the process of reviewing records for responsiveness and privilege and would produce documents on a rolling basis, along with a privilege log (upon completion of its review). Id. Sanchirico also informed Ross that the County intended to serve supplemental responses to Interrogatory Nos. 26-33. Id.

The County served supplemental responses to Interrogatory Nos. 26-33 on October 9, 2020. Sanchirico Decl., ¶12, Ex. J. ALADS did not contact any member of Sanchirico’s office by email, letter, telephone, or other means to meet and confer regarding ALADS’s motions to compel further responses before ALADS filed those motions on February 17, 2021. Sanchirico Decl., ¶10.

3. Reply Evidence

On February 26, 2021, the court heard ALADS’s ex parte application to continue the trial date. Ross Reply Decl., ¶3. During that telephonic hearing, the court briefly addressed the discovery dispute at issue and indicated that it believed that the County would be required to produce documents relating to communications between the County and the PPOA, although internal County communications would not be required to be produced because such documents were irrelevant to determine the meaning of the me-too clauses in this litigation. Id. Thereafter, the court granted the application to continue the trial date. Id.

Prior to the ex parte hearing, the County filed an opposition to the application, arguing that a continuance was not necessary because “ALADS has its ‘essential’ documents”, contract interpretation is a matter of law and extrinsic evidence is unnecessary, and there are no material facts in dispute. Ross Reply Decl., ¶4, Ex. A.

After filing the instant motions, ALADS has continued to engage in meet and confer efforts, having multiple communications with the County’s counsel, Dubin, on March 29 and April 16, 2021 about the production of additional documents in light of the court’s comments at the ex parte hearing on February 26, 2021. Ross Reply Decl., ¶5, Ex. B. In addition, on April 6, 2021 Ross emailed Dubin and inquired if the County had made any determinations regarding supplementing its prior discovery responses. Id. On April 7, 2021, Dubin responded that the County was concerned about its confidentiality agreement with PPOA but did not otherwise indicate that supplemental documents would be produced. Id. To date, no other documents have been produced by the County. Id.

After receiving a meet and confer letter from the County regarding its own requests for production, Ross analyzed the County’s document production and categorized the documents produced. Ross Reply Decl., ¶6. Based on the review, 5,416 of the 6,281 pages produced were copies of various MOUs, including the ALADS MOU (11 copies), the PPOA MOU (13 copies), and MOUs between the County and the Association of Public Defender Investigators, the Los Angeles County Lifeguard Association, and the American Federation of State, County, and Municipal Employees Local 685 (4 copies each). Id. The latter three MOUs total 1,344 pages alone. The County produced only 865 non-MOU pages. Id.

D. Analysis

Petitioner ALADS moves for an order compelling Respondent County to serve further responses to ALADS First Set of Requests for Production and First Set of Special Interrogatories. Respondents oppose.

ALADS argues that the County’s responses to its 33 special interrogatories and documents requests lack specificity and fail to provide the information sought. Interrog. Mot. at 9. The County’s seven objections to each interrogatory also all lack merit and should be overruled. Id.

ALADS’ 36 requests for production seek basic documents concerning the negotiation of the me-too provisions, the provision of increases to PPOA members, and the compaction study conducted pursuant to the PPOA MOU. The County produced some documents but failed to produce any documents concerning the PPOA negotiations or the compaction study, producing only the final PPOA MOU and the final recommendation of approval submitted to the Board of Supervisors. Prod. Mot. at 9.

The County’s opposition characterizes ALADS’ motions as seeking documents and information only on twofold matters: (a) the County’s internal deliberations about giving the PPOA criteria-based bonus, and (b) the County’s labor negotiations with PPOA and the compaction study in PPOA’s MOU. Opp. at 6. ALADS’ reply does not disagree.

1. Failure to Meet and Confer

The County argues that the motions should be denied because ALADS failed to make a reasonable and good faith attempt at an informal resolution of each issue presented by the motion as required by CCP sections 2016.040, 2030.300(b)(1), and 2031.310(b)(2). Opp. at 9. While ALADS notes that the parties met and conferred on September 29, 2020 (Mot.[3] at 8), the County asserts that these communications – consisting of two letters and a phone call in September 2020 – were insufficient because they occurred five months prior to the date ALADS filed its motions and ALADS never responded to the County’s repeated requests for clarity. Opp. at 9.

As ALADS argues, it is undisputed that the parties met and conferred in good faith (Ross Decl., Exs. F, G) and ALADS only decided to forgo further meetings when it was clear that no resolution could be reached. Reply at 6. This conclusion was underscored by the fact that the County refused to produce the same documents in arbitration. Id. Since filing the motions, ALADS has continued to engage in meet and confer efforts, having multiple communications with the County’s counsel about production of documents in light of the court’s comments at ALADS’s ex parte hearing on February 26, 2021. Ross Decl., ¶5.

In any event, an alleged failure to meet and confer does not necessitate a denial of motions to compel further responses. Obregon v. Sup. Ct., (1998) 67 Cal.App.4th 424, 434 (denial of discovery for failure to meet and confer reserved for cases of clear intent to burden or harass, cases of clear flaunting of statutory responsibilities, cases of established track records of lack of good faith, and the like). There is no evidence that such circumstances apply here. The court will not deny the motions on this ground.

2. Relevance of the MMBA

ALADS asserts that, while it brought its requests pursuant to the Code of Civil Procedure, it also possesses a broad discovery right pursuant to the Meyers-Milias-Brown Act (“MMBA”). Mot. at 9-10; Reply at 10. The County’s objections are based on exemptions under the California Public Records Act (“CPRA”), which are improper to a request for documents or information made by individuals (or a union) in an action seeking to enforce a collective bargaining agreement. Mot. at 9-10. Relying on cases from the Public Employment Relations Board (“PERB”), ALADS claims that the County is not permitted to unilaterally determine which documents it will keep entirely secret, including any description whatsoever as to what documents have been withheld. Mot. at 9-11.

As the County notes, the motions concern a mandamus claim in a lawsuit, not an unfair bargaining case under the MMBA. Opp. at 11. Each PERB case on which ALADS relies concerns discovery in the collective bargaining process and is inapposite. See Petaluma City Elementary Sch. Dist./Joint Union High Sch. Dist., (2016) PERB No. 2485, at 17; Serv. Emps. Int’l Union, Local 1021 v. Sacramento City Unified Sch. Dist., (2018) PERB No. 2597 at 2; Modesto City Schs. and High Sch. Dist., (1984) 8 PERB 15181 at 7.[4]

In reply, ALADS asserts that it filed suit to ensure that the County adheres to the MOU and PERB decisions are not limited to the collective bargaining process and necessarily encompass monitoring contract compliance. Reply at 10. This may be true, but the parties are beyond contract monitoring now. ALADS has sued to enforce the MOU’s me-too provisions and the Discovery Act controls. While the subject of the lawsuit is a labor issue, it is not governed by the MMBA. ALADS does not have a right to compel further responses pursuant to the MMBA.

3. Scope of Discovery

ALADS seeks documents and interrogatory answers that concern the negotiation and adoption of the PPOA MOU, arguing that this information is relevant because the PPOA MOU contains nearly identical me-too clauses as the ALADS MOU. Mot. at 5. ALADS argues that the compaction clause in the PPOA MOU and the resulting compaction study performed by the County are relevant to determine whether the ALADS MOU me-too clauses were triggered and whether the County intentionally negotiated with PPOA to undermine ALADS’ contractual rights. Mot. at 11. ALADS explains that the parties’ conduct after they entered into the ALADS MOU is relevant to contract interpretation and the County’s negotiations with PPOA are relevant to its breach of the implied covenant of good faith and fair dealing claim. Mot. at 14-15.

As the County points out, the I/C court has consolidated two cases and stayed all non-writ claims stayed pending resolution of the instant traditional mandamus claim. Opp. at 7-8. Thus, the scope of discovery at this time concerns only the traditional mandamus. If discovery relates only to the breach of contract or breach of the implied covenant claims, any motion to compel will have to be made after the stay is lifted. Evidence that the County breached its implied covenant with ALADS by intentionally fashioning the PPOA Supervisory Bonus so that it would not trigger ALADS’ me-too clauses could breach the implied covenant, but it does not support traditional mandamus. See Reply at 5.

ALADS argues that the scope of discovery for its traditional mandamus claim is not limited pursuant to Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4th 559, which concerned quasi-legislative traditional mandamus, because there has been no administrative or quasi-legislative decision, and also no administrative record. Reply at 8. The issue is whether the County breached its ministerial duty to comply with the MOU and discovery is not limited by Western States. Id.

The discovery available for the mandamus claim is governed by the Civil Discovery Act (CCP ;2016.010 et seq.), but its scope is essentially limited to the evidence that would be in the record if there had been an administrative decision. See Mobil Oil Corp. v. Superior Court, (1976) 59 Cal.App.3d 293, 307 (discovery in an as-applied challenge to the constitutionality of a statute is limited to the evidence that would be admissible in administrative mandamus under CCP section 1094.5). Thus, the Civil Discovery Act applies to a mandamus special proceeding, but not in as broad a fashion as in a civil action, meaning that the requested discovery must be relevant and not just reasonably calculated to lead to the discovery of admissible evidence.

4. Inadequate Interrogatory Responses

ALADS contends that the County’s responses to its interrogatories are inadequate because the responses only cite documents with insufficient specificity. Mot. at 11-12. ALADS acknowledges that CCP section 2030.230 permits a response to specify the writings from which an answer may be derived or ascertained if the answer would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the responding party. Mot. at 11-12. The specification is required to be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. Id.

ALADS argues that none of the County’s interrogatory responses meet these requirements. Mot. at 12. The interrogatories only ask for the identification of negotiators and their roles in the negotiation of various clauses and do not necessitate preparing a compilation or summary. Id. The interrogatories relating to the compaction study also plainly do not require a compilation. Id. Additionally, none of the responses contain the level of specificity required as they cite nearly 600 pages as the answer. Id.

The County does not directly address this argument, only arguing that the scope of discovery is not unlimited and that it has produced all responsive, non-privileged or confidential documents and information concerning the County’s internal decision-making processes with regards to labor negotiations and the Supervisor POST Bonus, as well as confidential labor negotiations with PPOA. Opp. at 10.

Aside from the fact that the County’s argument does not address the adequacy of its interrogatory responses, ALADS notes that the majority of the 6,281 pages the County has produced are only copies of the ALADS MOU and other MOUs. Reply at 7-8. The County produced only 865 non-MOU pages, not all of which are responsive to the requests for production served by ALADS. Reply at 8.

ALADS has demonstrated that the County’s responses to its interrogatories are inadequate and insufficiently specific.

5. Relevance

The requests seek basic information regarding the identification and roles of individuals involved in the negotiation of various provisions in the ALADS and PPOA MOUs, information relating to the compaction study required by the PPOA MOU, and general information about why the County approved the Supervisor POST Bonus and what its cost was. The County argues that ALADS has received all such information except documents and interrogatory responses relating to the PPOA negotiations and its compaction clause, the compaction study itself, and the subsequent raise negotiations between PPOA and the County. Opp. at 10.

ALADS asserts that the parties dispute the meaning of the me-too clauses and whether they were triggered when the County approved the increases for PPOA. Mot. at 14. There may be ambiguity in the me-too clauses, and it may be necessary to introduce evidence regarding the circumstances surrounding the negotiation, including the County’s contemporaneous interpretation of the clauses and its intent in agreeing to the clauses. Mot. at 14. The evidence relevant to interpretation of the me-too clauses includes evidence of conduct after the contract, including the County’s negotiations with PPOA regarding the addition $8,312,000 provided to PPOA members. Mot. at 14. The initial complaint alleges that the County had a duty to inform ALADS of “across-the-board salary increases or economic enhancements” given to other County bargaining groups. Accordingly, how the County communicated the $8,312,000 in salary enhancements to members of PPOA is relevant to this claim. Mot. at 14.

Contract interpretation is a matter of law. Civil Code ;; 1636, 1639. No extrinsic evidence may be received to vary the terms of a contract that is fully integrated. The existence of an integration clause in the contract is a key factor in determining whether the parties intended the contract as a final and complete expression of their agreement. Grey v. Am. Mgmt. Servs., (2012) 204 Cal.App.4^th 803, 807. When the parties dispute the meaning of contract language, the first issue is whether the language is reasonably susceptible to the interpretation urged by the party. Dore v. Arnold Worldwide, Inc., (2006) 39 Cal.4^th 384, 393. If so, the court must consider all credible evidence offered to prove the intention of the parties. Pacific Gas & Electric Co. v. G.W. Thomas Drayage, (19698) 69 Cal.2d 33, 39-40. The parties’ undisclosed intent or understanding is irrelevant to contract interpretation. Iqbal v. Ziadeh, (2017) 10 Cal.App.5^th 1, 8-9.

The County argues that ALADS does not proffer any alternative interpretation of the me-too clauses. ALADS does not say that it reads the ATB or the EE clauses differently than the County does, or even that the parties understood the plain language of those clauses differently when they were negotiated. Instead, ALADS alleges that the me-too clauses were triggered when the County provided the POST Bonus to qualifying PPOA members. Id. The County concludes that there is no good faith dispute over the meaning of the MOU language; the dispute is whether the me-too clauses were breached. As a result, the court need not, and should not, look beyond the unambiguous terms of the MOU. Opp. at 13-14.

ALADS is correct with respect to the ALADS MOU. ALADS persuasively argues that it is essential to know what the me-too clauses mean in order to decide whether the clauses were breached. This is a dispute about whether the Supervisory POST Bonuses provided to PPOA members constitute an across-the-board increase or an economic enhancement and the court must determine what constitutes such an increase as opposed to an economic enhancement. A dispute over whether a clause was breached necessarily requires a determination of its meaning. Reply at 8. While the ALADS MOU may appear to have a plain and unambiguous meaning, the court must receive a proffer or extrinsic evidence of the parties’ intent in order to decide whether there is a latent ambiguity. Dore, supra, 39 Cal.4^th at 391. It is premature at the discovery stage to conclude that the me-too clauses have a plain meaning. Documents and information concerning negotiation of the ALADS MOU are relevant. However, it appears that all documents and interrogatories pertinent to the ALADS MOU have been produced and this issue is moot.

On the other hand, ALADS is seeking documents and interrogatory answers concerning the parties’ intent in negotiating the PPOA MOU. Any ambiguity in the PPOA MOU’s me-too clauses is irrelevant to the interpretation of the ALADS MOU. The County’s unexpressed --- or even expressed – intent in entering into another contract (the PPOA MOU), including the circumstances surrounding the negotiation of its me-too clauses and the County’s contemporaneous interpretation of the clauses are not relevant to the County’s duty to provide a me-too payment pursuant to the ALADS MOU.

This leaves negotiation of the PPOA MOU compaction study provision, the compaction study itself, and the County’s post-PPOA MOU performance and communications to PPOA members regarding the addition $8,312,000 provided to them. A compaction study is used to ascertain whether there is sufficient separation between pay grades to encourage employees to seek promotion and advancement. ALADS argues that the PPOA MOU noted that compaction may be an issue and authorized a compaction study to examine the issue. After the study was completed, the County authorized a Supervisory POST Bonus at an estimated cost of $8,312,000. Reply at 5.

The County notes that fishing expeditions are improper if they place a greater burden on the adversary than the information warrants. Greyhound Corp. v. Superior Court, (1961) 56 Cal.2d 355, 384-85. It contends that ALADS has not shown good cause for the documents sought. The County contends that it has produced all non-privileged documents on these issues and ALADS has failed to explain their relevance. The County argues that the compaction study and PPOA negotiations have nothing to do with whether ALADS’ me-too clauses were triggered. Opp. at 15.

ALADS responds that documents related to calculation of the $8,312,000 are relevant to this dispute. If the study showed that an across-the-board raise would alleviate compaction, and that every member of PPOA would receive a bonus, that would trigger ALADS’ me-too clauses. Reply at 5, 11.

The court agrees that this is relevant information. So are the County’s post-PPOA MOU performance and communications to PPOA members regarding the addition $8,312,000 provided to them. The issue becomes whether any of this information is privileged.[5]

6. Privileges

ALADS argues that the County’s responses to its document requests and interrogatories rely on meritless objections. Mot. at 9.

a. Deliberative Process Privilege

ALADS argues that the County failed to meet its burden of establishing that the deliberative process privilege applied to bar production of the requested documents. Mot. at 15-16; Reply at 11-12.

The deliberative process privilege is a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated. Caldecott v. Superior Court, (2015) 243 Cal. App. 4th 212, 225 (citation omitted); see Govt. Code ;6254 (p), (q), (v), (w), (y), (ad); Evid. Code ;1040(b)(2).

The burden is on the party claiming the deliberative process privilege to establish the conditions for creation of the privilege. Citizens for Open Gov't v. City of Lodi, (“Lodi”) (2012) 205 Cal. App. 4th 296, 306. To shield documents from disclosure under the deliberative process privilege, the claimant must show that the documents are pre-decisional and deliberative. See ACLU of Northern California v. Superior Court, (2011) 202 Cal. App. 4th 55. See also Sierra Club Inc. v. US. Fish & Wildlife Serv., (9th Cir 2019) 925 F.3d 1000, 1015. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. Lodi, supra, 205 Cal.App.4th at 306. Not every disclosure which hampers the deliberative process implicates the deliberative process privilege. Id.

The County asserts that the deliberative process privilege applies because ALADS seeks information reflecting the County’s reasoning, decision-making, and intent when it agreed to: (1) the me-too clauses in the ALADS and PPOA MOUs; (2) the compaction study in the PPOA MOU; and (3) the POST Bonus to qualifying PPOA (and later ALADS) members. Opp. at 16.

ALADS contends that the County failed to meet its burden of establishing the preliminary facts essential to its claim for deliberative process privilege and the applicability of such claim to the requested documents. The County failed to explain why the deliberative process privilege attaches to each requested document or interrogatory to which the objection is made. It has not shown that disclosure of the requested information and documents would expose its decision-making process in in such a way as to discourage candid discussions within the County and thereby undermine the County’s ability to perform its functions. Mot. at 15-16; Reply at 11-12.

The County does not support its argument with any specific analysis, making it difficult to evaluate the deliberative process privilege. It is self-evident that the deliberative process applies to documents and interrogatories concerning the County’s decision-making in the PPOA MOU negotiation. However, ALADS argues that interrogatories seek the identities of individuals and the roles they played in the negotiations, and that the County’s communications with PPOA during the PPOA MOU negotiation would not disclose the County’s decision-making process. Mot. at 16; Reply at 12.

The court agrees. The deliberative process privilege applies to prevent disclosure of the requested documents and interrogatory answers concerning the County’s internal decision-making for the PPOA MOU negotiation, but not the identity of participants or the County’s communications with PPOA.

b. Third Party Confidentiality

ALADS asserts that the County fails to establish that it is prohibited from producing documents due to its third-party confidentiality agreement with PPOA. Mot. at 16; Reply at 12. ALADS describes the County’s confidentiality agreement with ALADS and PPOA as “ground rules” which state that “all discussions regarding the subjects under negotiation shall be deemed Confidential until formal impasse is declared or a Tentative Agreement has been reached on all issues under negotiation.” Ross Decl., Ex. N. If PPOA’s agreement contains the same language as ALADS’ agreement, the confidentiality ended when the parties reached a new MOU. Additionally, any confidentiality restriction must be released in order to respond to questions by union members or the Board of Supervisors. Mot. at 16.

The court agrees in part. See post. As ALADS correctly notes, the County does not provide any evidence supporting the existence of its purported confidentiality agreement with the PPOA. Reply at 13. To the extent the purported agreement with the PPOA is the same as the County’s agreement with ALADS, the ALADS agreement explicitly states that it terminates when a formal impasse is declared, or a Tentative Agreement has been reached. Ross Decl., Ex. N. Contrary to the County’s assertions otherwise (Opp. at 17), the confidentiality agreement terminated when the parties agreed to a new MOU.

c. Official Information Privilege

Although the County’s opposition does not expressly invoke the official information privilege, its separate statement does. Moreover, the County’s opposition essentially argues official information without so characterizing it. Opp. at 17.

The official information privilege set forth in Evid. Code section 1040 defines “official information” as information acquired in confidence by a public employee and not open or officially disclosed to the public when the privilege is invoked. Evid. Code ;1040(a). A public entity has a privilege to refuse to disclose official information if disclosure is against the public interest because the need to preserve confidentiality outweighs the necessity for disclosure. Evid. Cod ;1040(b)(2).

For the official information privilege to apply, the information must have been acquired in confidence. Shepherd v. Superior Court, (1976) 17 Cal.3d 107, 124, overruled on other grnds, People v. Holloway, (2004) 33 Cal.4^th 96. If this threshold is met, the court will balance whether preserving confidentiality outweighs the necessity for disclosure. Marylander v. Superior Court, (2000) 81 Cal.App.4^th 1119, 1128.

ALADS argues (Reply at 12) that the County fails to cite to any controlling authority that a collective bargaining privilege applies to civil discovery, relying only on (a) an opinion letter from the General Counsel of the National Labor Relations Board (“NLRB”). Conley v. Pacific Gas and Elec. Co., (2005) 131 Cal.App.4th 260, 270 (advice letters are properly considered by the courts, may be entitled to some weight, but are not controlling); (b) an NLRB decision, Armstrong Air Conditioning, Inc., (N.L.R.B.G.C. Jan. 21, 2005) No. 8-CA-34846 (4-CA-32824), 2005 WL 363940, which has never been cited by a California court and has been distinguished by district courts. See, e.g., California ex rel. Lockyer v. Safeway, Inc., (C.D. Cal. 2005) 355 F.Supp.2d 1111, 1123; and (c) an Illinois Supreme Court case, Illinois Educ. Labor Relations Bd. v. Homer Cmty. Consol. Sch. Dist., (“Illinois Educ.”) (Ill. 1989) 132 Ill.2d 29, 35-36, which is not controlling and is persuasive authority only.

These authorities are worth consideration and carry some weight, a point which ALADS concedes. Additionally, the County cites Detroit Edison Co. v. N.L.R.B., 440 (1979) U.S. 301, 318, in which the United States Supreme Court held that a union’s interest in arguably relevant information may not predominate when an employer asserts a legitimate and substantial interest in maintaining confidentiality. Opp. at 17.

That is exactly the case here. The County entered into a confidentiality agreement for labor negotiations with PPOA. While the confidentiality agreement between PPOA and the County ended, the confidentiality of the information submitted did not, at least for purposes of the official information privilege. The information and communications acquired by the County from PPOA during the negotiations were obtained in confidence and there is no reason why they should not remain as such unless there is a dispute between PPOA and the County. A public entity has a privilege to refuse to disclose official information if disclosure is against the public interest because the need to preserve confidentiality outweighs the necessity for disclosure. Evid. Cod ;1040(b)(2). As the County argues, disclosure of union confidences would taint negotiations between the County and its 54 unions with a “fear of disclosure” that would “alter the atmosphere of free discussion....” Illinois Educ., supra, 132 Ill.2d at 35-36. Opp. at 18-19. The County’s communications to PPOA during the negotiations would be inextricably intertwined.

The County states that it has produced documents concerning the Supervisory POST Bonus to PPOA members, as well as the PPOA MOU, the Board of Supervisors’ letter approving the POST Bonus, correspondence with ALADS concerning the POST Bonus, and other pages of non-privileged internal communications and non-confidential third-party communications concerning the POST Bonus. Opp. at 19.

It is unclear if all non-privileged documents and interrogatories have been answered, but the County need not disclose any document or answer any interrogatory that asks what happened during the PPOA negotiations or that constitutes information the County’s negotiators and PPOA communicated to each other during the negotiations.

E. Conclusion

ALADS’ motions to compel are granted in part. The County must answer without objection those interrogatories that ask for the identification of negotiators and their roles in the negotiation of various clauses. The County need not produce documents or answer interrogatories concerning its negotiations with PPOA, including post-PPOA MOU negotiations with PPOA for the Supervisor POST Bonus, as they are either irrelevant or privileged, or both. The County must produce the compaction study created pursuant to the PPOA MOU, which is not privileged. It must also produce and answer, to the extent not already provided, any documents and interrogatories concerning the County’s post-PPOA MOU performance and communications to PPOA members regarding the addition $8,312,000 provided as Supervisor POST Bonus.