7. S-CV-0040153 Frieborn, Rosemary vs. County of Placer
Respondent County of Placer’s request for judicial notice is granted.
Respondent County of Placer’s (“County’s) Demurrer to Verified Petition for Alternate
and Peremptory Writ of Mandate and Complaint for Declaratory and Injunctive Relief is
A party may demur to a complaint where the pleading does not state facts sufficient to
constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency
of the pleadings, not the truth of the plaintiff’s allegations or the accuracy of the described
conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings
are deemed to be true no matter how improbable the allegations may seem. Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The court assumes the truth of all
facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred
from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. In addition, the court may only consider defects on the face of the pleading, or facts that are judicially noticeable.
Blank v Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence may be considered. Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Accordingly, the court has not considered the declarations of counsel or petitioner filed in support of the opposition in ruling on this demurrer.
The instant action arises from a California Public Records Act (“CPRA”) request made by
petitioner, seeking the following documents: (1) Any and all correspondence, records, email messages, notes, memos and/or files, relating to Rosemary Frieborn either held in or produced by individuals in the Placer County District Attorney’s office; and (2) Copies of any and all memos, notes, correspondence, documents and files constituting alleged Brady violations against Rosemary Frieborn by individuals in the Placer County District Attorney’s office. County asserts that the records requested by petitioner are facially exempt from disclosure under Government Code section 6254(f) or (k), on the grounds that they are investigatory records, or privileged under the attorney work product doctrine, the attorney-client privilege, or the official information privilege.
Government Code section 6254(f) authorizes a public agency to withhold investigatory files complied by any state or local police agency, or any other state or local agency for correctional, law enforcement, or licensing purposes. The investigatory exemption applies to investigatory files maintained by the District Attorney. Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 178. However, County cites to no authority holding that all files maintained by the District Attorney constitute investigatory files within the meaning of section 6254(f). Indeed, the term “investigatory files” is limited in its application to situations where
there is a concrete and definite prospect of future enforcement proceedings. Uribe v. Howie (1971) 19 Cal.App.3d 194, 213; Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1277.
State and local agencies may also be obligated to release certain information contained in exempted records. Fredericks v. Superior Court (2015) 233 Cal.App.4th 209, 217.
At this stage in the proceedings, the court cannot determine that petitioner’s CPRA request falls entirely within the investigatory exemption. Notably, County does not cite to a single case involving an asserted CPRA exemption where the court disposed of the petition at the pleading stage. Further, the public agency may not shield documents from disclosure with bare assertion
that they relate to an investigation. Williams v. Superior Court (1993) 5 Cal.4th 337, 356.
Whether any and all correspondence, records, emails, notes, memos or files, relating to
Rosemary Frieborn are contained in investigatory files of the District Attorney relating to a concrete and definite prospect of future enforcement proceedings involves factual issues which cannot be resolved by demurrer.
County alternatively argues that the records requested by petitioner include documents that “would naturally contain privileged/attorney work product information”, and thus are exempt under Government Code section 6254(k), which exempts documents privileged under provisions of the Evidence Code. While it may be true that certain documents requested by petitioner are privileged, petitioner’s request does not, on its face, seek documents that wholly constitute
attorney-client communications or attorney work product information. The court cannot dispose of the petition at this stage of the proceedings simply because some of the documents encompassed by petitioner’s request may be privileged and thus exempt. Similarly, while the official information privilege may apply to some or even all of the records requested by
petitioner, the court cannot determine at this stage that the totality of the records requested constitute “information acquired in confidence by a public employee in the course of his or her
duty, and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” Evid. Code § 1040(a).
Based on the foregoing, the demurrer is overruled. County shall file and serve its response to the petition and complaint on or before March 2, 2018.
Note–Frieborn/ other parties have already been sued in Placer County case which is in Eastern District federal court now.… frieborn has a LONG history of issues in Placer county. YES that lawsuit involves animal seizure!!