Charles J Berry v. Pope Valley Elementary Unified School District et al

effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

A. PROCEDURAL MATTER

Defendant Pope Valley Union Elementary School District (“Defendant”) moves, pursuant to Code of Civil Procedure sections 1985.3, 1987.1, 2017.010, 2020.010, 2020.020, 2023.010, 2023.030, 2020.410 et seq., and 2025.480,1 for an order compelling non-party California Commission on Teacher Credentialing (“Commission”) to produce all records responsive to the subpoena served upon the Commission on June 3, 2025, as modified by court order dated November 17, 2025, and amended by court order dated April 22, 2026 (“Subpoena”).2

B. LEGAL STANDARD

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein ... the court, upon motion reasonably made by [a party] ... after giving counsel notice and an opportunity to be heard, may make an order ... directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (§ 1987.1, subds. (a)-(b).)

A party moving to compel a non-party’s compliance with a document subpoena must set forth specific facts showing good cause justifying the discovery sought by the subpoena. (Calcor Space Facility, Inc. v. Sup.Ct. (Thiem Indus., Inc.) (1997) 53 Cal.App.4th 216, 223-24 (Calcor).) “[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.” (Glenfed Development Corp. v.

Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Once good cause is shown, the burden shifts to the party opposing the motion to justify its objection(s). (See Kirkland, supra, 95 Cal.App.4th at 98.)

C. DISCUSSION

The Subpoena at issue requests: Any and all records concerning the receipt, investigation into, and resolution of, the allegations raised by Defendant’s then-Superintendent, Kenneth J. Burkhart, in his letter addressed to the Commission, dated May 9, 2018.

By way of the present Motion, Defendant now limits the Subpoena document request to: “only those documents disclosing any statements, arguments, and/or other evidence proffered by Berry in connection with the administrative hearing in question, as well as the procedural process employed.” (“Narrowed Subpoena”) (Mem., 8:23-26; see also Reply, 2:25-28.)

1 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified. 2 Several of the names and dates in the Notice of Motion and Memorandum are inaccurate. The Court herein references the accurate names and dates in this order.

1. Defendant Has Met its Burden to Set Forth Specific Facts Showing Good Cause to Justify the Narrowed Subpoena

Defendant presents the following facts in support of its showing of good cause: Plaintiff asserts a single cause of action for procedural due process against Defendant, by which Plaintiff alleges that Defendant did not provide him a name-clearing hearing to respond to the statements made about him by Defendant’s then-Superintendent, Kenneth J. Burkhart (“Superintendent Burkhart”). (Mem., 2:11-15, 3:11-27; Fourth Amended Complaint (“4AC”), filed 11/20/24, at 14:5-15:10, 16:27-17:1.) Superintendent Burkhart’s subject statements were sent to the Commission and co-Defendant Napa County Office of Education. (Mem., 2:3-10; 4AC, at 14:25- 15:10.)

Part of Defendant’s defense is that the Commission provided Plaintiff with a nameclearing and that such hearing satisfies any procedural due process concerns. (Mem., 2:15-17; Reply, 2:7-12.) Plaintiff testified at his deposition that he participated in a hearing before the Commission. (Mem., 2:17-18, 4:2-22; see also Declaration of Jimmie E. Johnson (“Johnson Decl.”), ¶ 2, Exh. A (131:5-17, 133:17-134:9).)

Defendant now seeks documents, maintained by the Commission, which disclose the statements, arguments, and/or other evidence proffered by Plaintiff in connection with the hearing before the Commission, as well as the procedural process employed by the Commission. Defendant explains that such documents are necessary to: (1) establish that the Commission provided Plaintiff with an adequate opportunity to respond to the statements made by Superintendent Burkhart in support of Defendant’s defense that it did not violate Plaintiff’s procedural due process by not providing a name-clearing hearing itself; and (2) weigh upon Plaintiff’s credibility as a witness to the extent any inconsistencies exist between the Commission’s records and Plaintiff’s deposition testimony and other discovery responses.

In Opposition, the Commission argues that Defendant has made no showing of an interest in disclosure. Not so, as outlined above.

The Commission further argues, without citations to any authority, that disclosure of the subpoenaed documents is not necessary because Defendant already has evidence that Plaintiff admitted to participating in a hearing before the Commission, which admission, alone, is enough to show that he was afforded a hearing. “Therefore, additional records are not necessary to prove Plaintiff was afforded a hearing.” (Opp., 10:11-15.) This argument misapplies the standard for discovery, which is that a civil litigant’s right to discovery is broad and encompasses “any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (§ 2017.010.)

Thus, the fact that Defendant has one source of evidence in support of its defense does not preclude, or make less relevant or unnecessary, the discoverability into additional sources/forms of evidence in support thereof. Moreover, as Defendant explains in Reply, “an opposing party’s own, self-filtered summary” of the subject hearing can hardly be argued as sufficient evidence to prevail on its defense. (Reply, 5:26-6:3.)

Finally, the Commission argues—again, without any citations to authority—that, whether the Commission held a hearing for Plaintiff and its processes for, and the outcome of, the hearing

have no bearing on any issue of fact in the case because Plaintiff’s due process claim is against the District, not the Commission. (Opp., 10:24-27.) This argument, however, fails to address Defendant’s points and authority that the name-clearing hearing required by state and federal procedural due process need not be provided by the same agency who allegedly committed the wrongdoing—“the only question is whether the employee was provided the opportunity to clear their name.” (Reply, 6:4-28, citing Mustafa v.

Clark County School Dist. (9th Cir. 1998) 157 F.3d 1169, 1179 [post-termination arbitration hearing provided sufficient opportunity]; Williams v. Dept. of Water & Power (1982) 130 Cal.App.3d 677, 684-85 [California courts rely on federal due process jurisprudence when considering the rights of a government employee to a nameclearing hearing]; Caraway v. Town of Columbus (D. Mont. Mar. 30, 2018) 2018 U.S. Dist. LEXIS 54770, *15 [appeal of termination to separate government agency provided sufficient opportunity]; see also Mem., 6:23-25.)

Based on the foregoing, Defendant has shown good cause for the Narrowed Subpoena and the Commission’s arguments to the contrary are rejected. The burden, therefore, shifts to the Commission to justify its objections.

2. The Commission Has Not Justified its Objections to Restrict, Outright, the Production of Documents Responsive to the Narrowed Subpoena

The Commission objects to the Subpoena3 on the following grounds: (1) the Commission cannot comply with the Subpoena due to confidentiality and disclosure prohibitions found in Education Code sections 44230, 44245, and 44248; (2) the requested records are not “business records” of the Commission and are equally available to, or in possession of, Defendant; and (3) the Subpoena seeks information protected by the investigatory privilege, the official information privilege (Evid. Code § 1040), the Information Practices Act (Civ. Code §§ 1798 et seq.), the Public Records Act (Gov. Code §§ 7923.600 et seq.), the attorney work product doctrine, the attorney-client privilege, and the deliberative process privilege.

As to the first point advanced in Opposition, the Commission contends that the Subpoena seeks information that is deemed confidential under Education Code sections 44230 and 44245, and that the Commission is prohibited, under Education Code section 44230, subdivision (a), from disclosing confidential information without a court order. The Commission acknowledges that a court may issue an order requiring disclosure after the moving party has made the proper showing. (Opp., 7:15-16.) The Commission argues that Defendant has not provided sufficient reason to overcome the statutory prohibition here. (Opp., 7:16-17.)

The Commission does not articulate the standard for what it contends to be a “proper showing.” The Court assumes the Commission is referring to the “good cause” showing under Calcor, as that is the only standard referenced and discussed by the Commission. (See Opp., 5:7- 8, 11:14-12:3.) In light of the Court’s above finding of a good cause showing by Defendant under Calcor, and the Court’s below finding that the Commission has not justified its objections to outright restrict production of responsive documents, a Court order requiring disclosure appears appropriate here.

3 Notably, the Commission does not appear to acknowledge the Narrowed Subpoena.

Furthermore, Defendant argues that a subpoena, on its own, constitutes an order by the court for purposes of Education Code section 44230, subdivision (a)(2). (Reply, 3:12-4:13, citing Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1338.) While Corenbaum states that “a subpoena is equivalent to a court order,” it did not involve a subpoena to the Commission and its statement was not expressly made for purposes of Education Code section 44230, subdivision (a)(2). Thus, it is not exactly on point. That said, it is unnecessary for the Court to resolve the question of whether the previously issued subpoena serves as a court order for purposes of Education Code section 44230, subdivision (a)(2), given that the Court is hereby ordering disclosure.

As to the second point advanced in Opposition, the Commission argues that, to the extent the Subpoena seeks materials prepared by any school district, other agency or entity, or Plaintiff, the Commission is not the custodian of such records and the records are equally available to, or in the possession of, Defendant. Defendant does not address in Reply whether or not it attempted to collect the same or similar category of documents from Plaintiff, himself. While Defendant is encouraged to do so, the Commission provides no authority prohibiting a party from seeking documents from a direct source (albeit a non-party) to, at least, verify the accuracy of documents produced by an opposing party.

The Commission relies on Cooley v. Sup. Ct. (2006) 140 Cal.App.4th 1037, 1045 for the contention that “business records” are limited to records “prepared by” the subpoenaed entity and do not necessarily include records merely “maintained by” the entity. (Opp., 12:12-16, citing Evid. Code, § 1561, subds. (a)(3), (a)(5).) While the Commission makes an accurate statement of law, the Commission fails to sufficiently apply that law to the responsive records here—i.e., why each document identified on its privilege log, including the recording of the hearing itself, was not “prepared by” the Commission.

Moreover, as argued in Reply, Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447-48, interpreted Evidence Code section 1561 and Cooley as allowing custodian affidavits to authenticate nonparty business records by attesting they were prepared or compiled by the entity. Finally, Evidence Code section 1560 defines “record” as including “every kind of record maintained by a business.” (Evid. Code, § 1560, subd. (a)(2), emphasis added.)

Based on the foregoing, the Court does not find that the Commission has justified its objection on the grounds that the Narrowed Subpoena seeks documents equally available to Defendant or outside the scope of permissible “business records.”

As to the third point advanced in Opposition, the Commission recites several statutory and non-statutory provisions protecting the privacy and privilege of certain information, without meaningful discussion of how they either apply to specific responsive documents or outweigh Defendant’s need for the information/documents. (Opp., 7:19-11:11.) “Courts must ... place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies ....” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 557.) The Court addresses only those provisions which the Commission provided at least minimal discussion thereof.

The Commission contends that there is a strong interest in protecting the confidentiality of third-party witnesses and victims, as well as Commission employees, and the mental processes by which the Commission reached decisions. The Commission further argues that some of the documents sought are also protected by attorney-client privilege and/or the attorney work-product doctrine.

The Commission’s argument appears to ignore the narrowed scope of the Subpoena—to be limited solely to documents disclosing (1) statements, arguments, and/or other evidence proffered by Plaintiff and (2) the procedural process employed. This narrowing by Defendant presumably invites the Commission to redact the names and other identifiers of third-party witnesses and victims and Commission employees, or information concerning the deliberations of the Commission panel members and/or communications with Commission legal counsel. This is confirmed by Defendant in Reply. (Reply, 4:26-5:2.)

Specifically with respect to the privacy of third parties, although the Opposition is accompanied by a privilege log listing 17 responsive documents withheld from the Commission’s production, the Opposition does not refer to the privilege log to show the existence of any documents containing third-party witnesses or victims. The Court’s review of the privilege log indicates that, for three documents, it notes: “Redactions made for Third Party Information and Private Personal Information.” (Declaration of Joseph A. Halabrin (“Halabrin Decl.”), ¶ 10, Exh. E.) The Commission offers no reason why third-party privacy cannot be sufficiently maintained by such redactions. Nor does the Commission offer any reason why this confidentiality cannot be sufficiently maintained by a protective order between counsel and the parties in this matter.

With respect to the attorney work product doctrine, the attorney-client privilege, and the deliberative process privilege, the narrowed scope does not compel the Commission to produce documents reflecting this information. As confirmed by Defendant in Reply, Defendant does not object, and expects, the Commission to redact such information. While the Narrowed Subpoena seeks documents showing the procedural process employed for the hearing, Defendant expressly does not seek any internal deliberations or mental processes. (See, e.g., Mem., 7:26.) Rather, it appears to the Court that Defendant seeks documents containing non-privileged/non-private information, which demonstrate, in general, the procedural process employed, in support of Defendant’s defense that Plaintiff was provided an adequate opportunity to clear his name.

Based on the foregoing, the Court does not find that the Commission has justified its objection on the grounds that privacy and privilege protections categorically restrict, outright, the production of responsive documents.

Elizabeth Saldivar v. George Loudis et al 25CV000506

MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING: The matter is CONTINUED to July 30, 2026, to permit Applicant to provide proof of service of the notice and moving papers on Elizabeth Saldivar.

8