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SUPREME COURT NO.

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA


VOICE OF ORANGE COUNTY.ORG and CALIFORNIANS AWARE, Petitioners, -vsSUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, Respondent. COUNTY OF ORANGE, PEOPLE OF THE STATE OF CALIFORNIA, and CARLOS BUSTAMANTE, Real Parties in Interest.

PETITION FOR REVIEW


From an Order Summarily Denying a Extraordinary Writ Petition Court of Appeal, Fourth Appellate District, Division Three Court of Appeal No.: G048889 Petition from the Issuance of a Protective Order Superior Court of California, County of Orange, Criminal Case No. 12CF1964 The Honorable Gregg L. Prickett, Judge, (657) 622-5205

*KELLY A. AVILES 257168 Law Offices of Kelly A. Aviles 1502 Foothill Blvd., Suite 103-140 La Verne, CA 91750 Phone: (909) 374-0665 Fax: (909) 392-0055

JOSEPH T. FRANCKE 88654 Californians Aware 2218 Homewood Way Carmichael, CA 95608 Phone: (916) 487-7000 Fax: (916) 487-7999

Attorneys for Petitioners Voice of Orange County.Org and Californians Aware

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................. v I. ISSUE PRESENTED FOR REVIEW ............................. 1 1. Whether this Courts ruling in Filarsky v. Superior

Court applies to criminal matters, and bars a public entity from seeking, and a trial court judge from issuing, a protective order prohibiting the public entity from records to members of the public and news media pursuant to the California Public Records Act? II. WHY REVIEW SHOULD BE GRANTED ..................... 1 A. B. C. III. IV. Introduction ...................................................................... 1 Important Question of Constitutional Significance ....... 4 Uniformity of Decision .................................................... 5

STATEMENT OF THE CASE ....................................... 5 DISCUSSION ........................................................... 13 A. The Appellate Court Abused its Discretion by Summarily Denying the Writ Petition, Which Was the Sole Method for Obtaining Appellate Review of the Protective Order ................................................... 13 The CPRA Provides the Exclusive Means for Obtaining a Decision on Whether a Public Agency Must Disclose Public Records ........................................14 The Criminal Court Has No Jurisdiction to Prohibit the Release of a Third-Partys Public Records ...............18 The Protective Order was Unnecessary and Overboard ...................................................................... 24

B.

C. D.

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V. VI.

CONCLUSION ..........................................................29 CERTIFICATE OF WORD COUNT ........................... 30

ATTACHMENTS ............................................................... 31 A. B. Summary Denial of Petition for Extraordinary Writ..... 31 Trial Courts Protective Order ....................................... 33

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TABLE OF AUTHORITIES California Cases Advanced Bionics Corp. v. Medtronic, Inc. (2002) 29 Cal.4th 697 ................................................................... 24 CBS, Inc. v. Block (1986) 42 Cal.3d 646 ......................................................................16 City of Santa Rosa v. Press Democrat (1986) 187 Cal.App.3d 1315 ........................................................... 17 Copley Press Inc. v. Suprior Court (1998) 63 Cal.App.4th 367 ............................................................ 26 Copley Press, Inc. v. Superior Court (1991) 228 Cal.App.3d 77 .............................................................. 27 County of Los Angeles v. Superior Court (Monroe) (1967) 253 Cal.App.2d 670 ........................................................... 20 Cramer v. Superior Court (1968) 265 Cal.App.2d 216 ........................................................... 20 Delaney v. Superior Court (1990) 50 Cal.3d 785 ..................................................................... 28 Filarsky v. Superior Court (2002) 28 Cal.4th 419 ........................................................... passim Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249 ........................................................... 15 Ford v. Superior Court (1986) 188 Cal.App.3d 737...................................................... 23, 25 Freedom Communications, Inc. v. Superior Court (Gonzalez) (2008) 167 Cal.App.4th 150 .......................................................... 22 In re Kowalski (1971) 21 Cal.App.3d 67................................................................. 23 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319 ....................................................................18

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California Cases, continued Lee v. Offenberg (1969) 275 Cal.App.2d 575 ............................................................ 23 Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250................................................... 17, 18 Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308 ........................................................... 27 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 ............................................................ 27, 28 People v. Grace (1926) 77 Cal.App. 752 .................................................................. 23 People v. Madrigal (1995) 37 Cal.App.4th 791 ............................................................. 23 Powers v. City of Richmond (1995) 10 Cal.4th 85 ....................................................................... 13 Press-Enterprise Co. v. Superior Court (1994) 22 Cal.App.4th 498............................................................ 28 San Bernardino County Department of Public Social Services v. Superior Court (San Bernardino Sun) 20(1991) 232 Cal.App.3d 188 ....................................................... 20 STI Outdoor v. Superior Court (218001) 91 Cal.App.4th 334 .........................................................18 Williams v. Superior Court (1939) 14 Cal. 2d 656..................................................................... 23

Federal Cases Associated Press v. United States Dist. Court (9th Cir. 1983) 705 F.2d 1143 ...................................................... 26 Bridges v. California (1941) 314 U.S. 252 .......................................................................19 CBS, Inc. v. Davis (1994) 510 U.S. 1315 ...................................................................... 22

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Federal Cases, continued Murphy v. Florida (1975) 421 U.S. 794 ....................................................................... 27 Near v. State of Minnesota (1931) 283 U.S. 697 ....................................................................... 22 Nebraska Press Ass 'n v. Stuart (1976) 427 U.S. 539 ................................................................ 22, 27 New York Times Company v. United States (1971) 403 U.S. 713 ........................................................................ 22 Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308 ...................................................................... 20 Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1 ..................................................................... 27, 28 Sheppard v. Maxwell (1966) 384 U.S. 333 .......................................................................19 Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 ......................................................................... 20 United States v. Brooklier (9th Cir.1982) 685 F.2d 1162 ........................................................ 26 United States v. Myers (2d Cir. 1980) 635 F.2d 945 .......................................................... 27 Waller v. Georgia (1984) 467 U.S. 39......................................................................... 27 California Constitution Article I, Section 1............................................................................... 10 Article I, Section 2, Subdivision (b) ................................................... 28 Article I, Section 3, Subdivision (b) ............................................... 4, 26 Article VI, Section 4............................................................................ 23

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California Statutes Code of Civil Procedure Section 1060 ........................................................................................14 Government Code Section 6250 et seq............................................................................ 1, 4 Section 6253(c) ................................................................................... 25 Section 6254(c) ................................................................................... 10 Section 6254(f) ................................................................................... 10 Section 6254(k) .............................................................................. 9, 10 Section 6255 ....................................................................................... 25 Section 6255(a)................................................................................... 10 Section 6258 .................................................................................. 13, 25 Section 6259 ........................................................................................ 15

California Rules of Court Rule 8.25(b)(1) ..................................................................................... 4 Rule 8.500(b)(3) ................................................................................. 13

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TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: I. ISSUE PRESENTED FOR REVIEW 1. Whether this Courts ruling in Filarsky v. Superior

Court applies to criminal matters, and bars a public entity from seeking, and a trial court judge from issuing, a protective order prohibiting the public entity from releasing its records to members of the public and news media pursuant to the California Public Records Act? II. WHY REVIEW SHOULD BE GRANTED A. Introduction

Petitioner Voice of Orange County.org (Voice of OC") and Petitioner Californians Aware (CalAware) (collectively Petitioners) seek review of the summary denial of their petition for extraordinary writ of mandate and/or writ of prohibition. The petition sought to compel Respondent Superior Court of the State of California, County of Orange, to vacate its improper and overbroad protective order which purported to prohibit the County from releasing public records which were sought by Petitioners in a related case brought pursuant to the California Public Records Act, Government Code Section 6250 et seq. (CPRA.) Real Party in Interest Carlos Bustamante (Bustamante or Defendant) was a high-ranking employee with the County of Orange. It has been alleged that during his employ, Bustamante sexually assaulted numerous women. On July 2, 2012, the Orange

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County District Attorney (District Attorney), on behalf of Real Party in Interest People of the State of California (People), filed the underlying criminal case, charging Bustamante with multiple felony counts, stemming from the sexual assault allegations (the Criminal Case). Petitioners sought public records from the County relating to Carlos Bustamante and the resulting fallout from the scandal. When the County refused to provide many of the requested records, Petitioners filed a Petition for Writ of Mandate and Declaratory Relief (the CPRA Case). The case was filed in July 2012, and was assigned to the Honorable David McEachen, in one of the Orange County Superior Courts civil departments. Nearly a year later, and just weeks before Petitioners CPRA Case was set to be heard, the County filed an eleventh-hour motion for a protective order in the department where the Criminal Case was pending. The Countys motion sought a protective order governing its release of police reports and sexual abuse investigation reports, and all records created by the County, its employees, attorneys, and/or agents, relating to the Countys investigation of Carlos Bustamante, including but not limited to complaints, complaint investigations, witness interviews and statements, victim interviews and statements, investigatory report and memoranda, notes and impressions of County staff and attorneys investigating the complaints. The protective order was sought by the County in order to prevent disclosure of many of the records which were at issue in the CPRA Case. Despite noting the Countys questionable standing, and over the objections of Petitioners, the Honorable Gregg Prickett, presiding over the Criminal Case, issued the protective order as requested by

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the County. The County then returned to the civil department where the CPRA Case was pending, arguing that the Court was unable to rule on the matter because the criminal protective order governed the matter. Judge McEachen agreed and refused to reach the substantive merits since the protective order governed some or all of the records at issue in the CPRA Case. Petitioners filed a petition for extraordinary writ in Division Three of the Fourth District Court of Appeal, seeking a writ of mandate ordering that the criminal court vacate its overbroad and unnecessary protective order, as well as a writ of prohibition preventing the criminal court from taking any future action to enforce the protective order. The Petition was made on the grounds that (1) the procedure used by the County, which affirmatively seeks to prevent disclosure of records, has been barred by this Courts ruling in Filarsky v. Superior Court (2002) 28 Cal.4th 419 (Filarsky), which held that the exclusive procedure for litigating the issue of a public agency's obligation to disclose records to a member of the public [does] not authorize a public agency in possession of the records to seek a judicial determination regarding its duty of disclosure; (2) the criminal court had no jurisdiction to prevent a third party from complying from its legally mandated duty to produce public records; and (3) the resulting protective order was unnecessary and overbroad. Even though the extraordinary writ petition was the sole method of obtaining review of the criminal courts protective order, Division Three of the Fourth District Court of Appeal summarily denied the petition. Notably, one justice, the Honorable Raymond J. Ikola, appreciated the important issues underlying the petition,

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and noted his dissent, stating, I would issue an alternative writ ordering the trial court to vacate its order granting the County's motion for a protective order in case number 12CF1964, order the court to vacate its order denying the petition filed pursuant to Government Code section 6258 in case number 30-2012-00585774, order the court to reconsider the merits of the civil petition after giving notice to the parties in both the civil and criminal proceeding, and award costs to petitioners in this writ proceeding. Petitioners now file this Petition for Review, requesting that the Court grant review and retransfer the case back to Division Three of the Fourth District Court of Appeal, for consideration of this important matter of public policy which deals with the constitutional right to obtain public records, which was thwarted by the appellate courts improper summary denial. Pursuant to California Rules of Court, rule 8.500(b)(1), review by this Court may be ordered where it appears necessary to secure uniformity of decision or to settle important questions of law. This case presents both grounds for review. B. Important Question of Constitutional Significance

This case presents an important question of law to determine the breadth of a criminal trial court judges ability to interfere with the statutorily-mandated duties of a non-party. More specifically, Petitioners seek to restrain the criminal court from enforcing a protective order barring a news agency and a public interest group from lawfully obtaining public records, which is a right guaranteed to under both the California Constitution, Article I, Section 3(b)(1) and the California Public Records Act, Government Code 6250 et seq.

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C.

Uniformity of Decision

This Courts decision in Filarsky should have prohibited the protective order in this case. While its holding seems to unambiguously prohibit any other procedural maneuver against the disclosure of public records, outside of a lawsuit brought under the CPRA, it has been clearly ignored by every lower court confronted the issue in this case, although repeatedly cited by Petitioners. While a summary denial of an extraordinary writ petition might, at first glance, be assumed to be unworthy of this courts limited resources for review, the denial represents a practice wholly inconsistent with recognized law. The County contends that the holding in Filarsky does not apply in the criminal context. The Orange County Superior Court and the Third Division of the Fourth District Court of Appeal agreed. Therefore, while this Petition for Review is challenging one summary denial, it really seeks to prevent the practice of artfully avoiding this Courts prior rulings, which is allowed to occur throughout Orange County. This Court should grant review to ensure that its directives are uniformly applied in both civil and criminal courts, throughout the various counties. III. STATEMENT OF THE CASE In August 2011, a series of anonymous letters were sent to news outlets and the Orange County Board of Supervisors, which made sexual harassment allegations against Carlos Bustamante, a high-ranking executive in the Public Works Department of the County of Orange. On July 2, 2012, the Orange County District Attorneys Office announced that Bustamante had been criminally

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charged with multiple felonies related to the sexual assault of seven victims during the time he was employed with the County of Orange. Many of the incidents allegedly occurred during the course of Bustamantes employment with the County, and started as early at 2003, just after he had been hired. In mid-2012, Petitioner Voice of OC, an online, investigative news agency, began to investigate the allegations. Many questions were raised as to how Bustamante, an alleged sexual predator, had been allowed to remain within the Countys employ for so long. The reporters at the Voice of OC were informed of a number of troubling allegations. First, it was reported that Bustamante had been the target of an internal complaint to the County Human Resources Department in March 2011, the complaint had been assigned to a subordinate of Bustamante within the Orange County Public Works Department, and Bustamante was cleared in that investigation. It had also been alleged that the Orange County Board of Supervisors hired a law firm to investigate the charges and Bustamantes involvement and that even after the report was finalized, Bustamante was allowed to resign, and in exchange for agreeing to not take any legal action against the County, received a 90-day severance payment. Finally, there had been allegations that the Countys internal audit department received another complaint regarding Bustamante. That probe was completed in March 2012. Only when Supervisors were presented with those results was the matter finally referred to the District Attorneys Office. The Voice of OC's investigation only raised more questions. The biggest question was whether the Countys top executives, and even the Board of Supervisors, knew of the complaints and ignored

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them, or even worse, assisted in a cover-up. The scandal seemed to touch a number of other county employees. For example, Jess Carbajal, the Director of the Orange County Public Works Department, had been on paid administrative leave since March 2012, when the internal audit report had been presented to the Board of Supervisors. On July 3, 2012, County Supervisor Shawn Nelson emailed County CEO Tom Mauk demanding that Carbajal be terminated. That same day, Carbajal was terminated with cause. Close to the time that Carbajal was terminated, Alisa Drakodaidis, Deputy County CEO, who was in charge of the Public Works Department, and was Carbajals supervisor, abruptly left work. Only a few days later, an attorney representing Drakodaidis sent all five county supervisors a letter (the Drakodaidis Letter.) The Drakodaidis Letter reads like a tort claim and a precursor to litigation against the County. It also makes a number of politically explosive allegations against the County officials, including improper political interference in contracting and questionable campaign finance practices. It also alleges that District Attorney Tony Rackauckas was using his office to exact revenge on Bustamante, as political retaliation against County CEO Thomas Mauk. In the course of its reporting, on, July 13, 2012, the Voice of OC made a public records request for a copy of the Drakodaidis Letter. In response to the oral request, Chairman of the County Board of Supervisors John Moorlach told Norberto Santana, Editorin-Chief of Voice of OC, that both the CEO and County Counsel have said the letter cannot be released because the district attorney doesnt want it released, stating that the District Attorney had

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instructed them that it would compromise his investigation. 1 On July 17, 2012, the County formally denied the public records request. On July 18, 2012, Terry Francke, General Counsel for Petitioner Californians Aware, also made a request for a copy of the Drakodaidis Letter, which was denied the same day. Petitioners filed suit on July 20, 2012, challenging the Countys unlawful withholding of records. On July 27, 2012, the County released a redacted version of the Drakodaidis Letter claiming that it had come to an agreement with her attorney as to the redactions. On November 6, 2012, Kelly Aviles, attorney for Petitioners, submitted an additional Public Records Request, on behalf of both Petitioners, seeking copies of specified public records. The records requested included: 2 1. All notices of administrative leave issued managers/executives from January 2011 to present; to

2. All correspondence, including, but not limited to, letters, faxes, memos sent to or received by Tom Mauk, Robert

This was confirmed by Declaration of Deputy Orangey County District Attorney Brock Zimmon, which states, the County turned over a copy of its investigative file, which consisted of complaints, complaint investigations, witness interviews and statements, victim interviews and statements, and the notes and conclusions of County staff and an outside law firm investigating the complaints, to the District Attorneys Office for prosecution and that the District Attorneys Office requested that the County not disclose to the public the information contained in the materials due to the ongoing criminal investigation and criminal case. Two additional categories of records were requested, but Petitioners did not contest the validity of the Countys response or production of documents related to those categories.

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Franz, the County Human Resources Director, any of the County Supervisors, or any other person employed by the County in a management position, from January 2012 to present, regarding: a. Carlos Bustamante b. Paula Kitchen c. Alisa Drakodaidis d. Tom Daly 4. Any employment contract or agreement between Carlos Bustamante and the County, including all revisions and amendments thereto; 5. Any resignation letter or correspondence from Carlos Bustamante; 6. Any documents related to the investigation done by the Countys internal audit department pertaining to Carlos Bustamante or Tom Daly; 7. Any documents related to the investigation done by an outside law firm or attorney pertaining to Carlos Bustamante or Tom Daly; 9. Any complaints, whether formal or informal, made or filed regarding Carlos Bustamante, Thomas Mauk, or Tom Daly from January 2003 to present; On November 30, 2012, the County responded denying much of Petitioners request, stating on several of the items included in your letter, the County has determined that records responsive to your request do exist but will not be produced because they are exempt from disclosure. The response cited a plethora of various exemptions, which the County relied on in withholding certain categories of records, including: an exemption based on the attorney client privilege, and the official information privilege, pursuant to Government Code section 6254(k); an exemption related to

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investigations conducted by a local law enforcement agency pursuant to Government Code section 6254(f) and 6254(k); an exemption based on the unwarranted invasion of personal privacy pursuant to Government Code section 6254(c) and 6254(k), and the California Constitution, Article I, Section 1; and, the catch all exemption for records where the public interest in nondisclosure clearly outweighs the public interest served by disclosure pursuant to Government Code section 6255(a). The result of the response was that almost none of the requested records were provided. The County withheld all notices of administrative leave, all correspondence to or from the County Supervisors regarding Carlos Bustamante, Paula Kitchen, Alisa Drakodaidis, and Tom Daly; the letter of resignation of Carlos Bustamante, all documents related to the investigations of Tom Daly and Carlos Bustamante done by both the Countys internal audit department and the outside law firm, and all complaints made against Carlos Bustamante, Thomas Mauk, or Tom Daly. The County even refused to release Mr. Bustamantes employment contract. On March 18, 2013, pursuant to a stipulation and court order, Petitioners filed a First Amended and Supplemental Petition, seeking review of the Countys denial of additional records sought by Petitioner. On March 4, 2013, counsel for Petitioners and counsel for the County appeared before the court in the CPRA Case, at a trial setting conference, and jointly requested a hearing date be set on the Petition for Writ of Mandate be set for July 16, 2013. Then, on May 3, 2013, well after this case had been set for trial, and just weeks before the opening brief was set to be filed, the

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County petitioned the court in the Criminal Case for a protective order from the barring it from disclosing many of the same records at issue in the CPRA Case. While neither the County nor Petitioners were subject to the criminal courts jurisdiction, because Petitioners received notice of the Countys motion, Petitioners filed a formal opposition. Petitioners argued that the criminal court had no authority to enter the requested protective order, as it lacked jurisdiction over the parties and over the subject matter. Petitioners also noted that this Court had specifically barred the procedure invoked by the County in Filarsky. Nonetheless, on May 20, 2013, the criminal court heard the Countys motion and took the matter under submission. On June 24, 2013, it issued the protective order as requested, relying only on its inherent authority [to] ensure the orderly administration of justice and inherent authority and the affirmative duty to protect the criminal defendants right to a fair trial. The criminal court summarily decided that disclosure of the investigatory file is against the public interest because the need to preserve its confidentiality outweighs the need for disclosure in the interest of justice. On July 16, 2013, during what was scheduled to be the hearing on the First Amended Petition for Writ of Mandate in the CPRA Case, the Court issued a ruling in which it decline[d] to rule on the motion at this time because the criminal court in People v. Bustamante, Orange County Superior Court Case No. 12CF1964, has already taken under submission a motion for protective order involving some or all of the same documents at issue here. At Petitioners request, the court allowed supplemental briefing on what effect the criminal courts ruling had, if any, on the

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CPRA Case and allowed petition to re-notice the hearing for September 3, 2013. But once again, at the re-noticed hearing, the court in the CPRA Case deferred to the protective order issued in the Criminal Case: On 6/24/13, the criminal court in People v. Bustamante, Orange County Superior Court Case No. 12CF1964, issued a motion for protective order involving some or all of the same documents at issue here. The Countys motion in the criminal case sought to protect the confidentiality of the same documents that Petitioners wish the County to disclose in this motion. Accordingly, Petitioners are effectively asking this civil department to overrule or reconsider a motion already decided by a criminal department of the same court, is improper. this court finds that it has no power to overrule, modify, or reconsider the criminal courts ruling on the motion for protective order in the Bustamante case. And even assuming that this court did have the power to overrule the criminal courts ruling, it exercises its discretion not to do so. After the first ruling on July 16, 2013, and once the protective order started to adversely affect Petitioners constitutional rights to not only obtain public records, but to even be heard on the matter by the court in the CPRA Case, they filed their Petition for Extraordinary Writ in the Third Division of the Fourth District Court of Appeal on August 27, 2013. Even though Petitioners specifically explained that the Appellate Court had limited discretion to summarily deny the writ petition, because it represented the sole method of obtaining review

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of the criminal courts protective order, the Fourth District summarily denied the petition on September 12, 2013. However, Justice Ikola dissented, stating, I would issue an alternative writ ordering the trial court to vacate its order granting the County's motion for a protective order in case number 12CF1964, order the court to vacate its order denying the petition filed pursuant to Government Code section 6258 in case number 30-2012-00585774, order the court to reconsider the merits of the civil petition after giving notice to the parties in both the civil and criminal proceeding, and award costs to petitioners in this writ proceeding. This Petition for Review was timely filed within 10 days of the date of the summary denial. Pursuant to California Rules of Court, Rule 8.25(b)(3), on September 20, 2013, it was deposited with a common carrier promising overnight delivery just 8 days after the summary denial. IV. DISCUSSION A. The Appellate Court Abused its Discretion by Summarily Denying the Writ Petition, Which Was the Sole Method for Obtaining Appellate Review of the Protective Order

As explained by this Court in Powers v City of Richmond (1995) 10 Cal.4th 85, 113-14, where a writ petition is the sole method of obtaining appellate review of a trial court order under the Public Records Act, a reviewing court does not have unfettered discretion to deny such a petition. A court "may not deny an apparently meritorious writ petition, timely presented in a formally and procedurally sufficient manner, merely because, for example, the petition presents no important issue of law or because the court

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considers the case less worthy of its attention than other matters." Id. The right of appeal in a criminal matter is limited to the Defendant and the People. Since third parties have no standing to appeal in a criminal matter, a petition for extraordinary writ is the only means to obtain review of the criminal courts issuance of a protective order to a third party in the criminal action. Therefore, the appellate court erred in denying to hear the extraordinary writ on the merits, especially where it also presents important matters of constitutional rights and a trial courts ability to infringe on the rights of third parties. B. The CPRA Provides the Exclusive Means for Obtaining a Decision on Whether a Public Agency Must Disclose Public Records

In Filarsky, this Court held that the CPRA was the exclusive procedure for litigating the issue of a public agency's obligation to disclose records to a member of the publicand [does] not authorize a public agency in possession of the records to seek a judicial determination regarding its duty of disclosure. Id. at p. 423; emphasis added. In that case, Steve Filarsky had filed a request for records pursuant to the CPRA, but the city refused to disclose the requested records. Id. at p. 422. When Filarsky informed the City of his intent to file a lawsuit to compel disclosure, the city filed its own declaratory relief action pursuant to Code of Civil Procedure section 1060, seeking a declaration that the requested records were exempt from disclosure. Ibid. This Court analyzed the purpose behind the

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CPRA and its structure for judicial review of the withholding of documents by public agencies: Permitting a public agency to circumvent the established special statutory procedure by filing an ordinary declaratory relief action against a person who has not yet initiated litigation would eliminate statutory protections and incentives for members of the public in seeking disclosure of public records, require them to defend civil actions they otherwise might not have commenced, and discourage them from requesting records pursuant to the Act, thus frustrating the Legislature's purpose of furthering the fundamental right of every person in this state to have prompt access to information in the possession of public agencies. Id. at 423. The Citys argument in Filarsky relied heavily on a previously decided case, Fontana Police Dept. v. VillegasBanuelos (1999) 74 Cal.App.4th 1249 (Fontana.) In Fontana, the public agency filed an action seeking a protective order to preclude the production of public records requested by the defendant. Filarsky, supra, 28 Cal.4th at 430. In analyzing the Fontana decision, this Court correctly determined that the only issue in Fontana was whether the requestor was entitled to attorneys fees after defeating the motion for a protective order. Id. The appellate court [in the Fontana case] determined that the [motion for a protective order] was the "functional equivalent" of a proceeding under the Act, and that therefore the prevailing defendant who succeeded in obtaining production of the records was entitled to attorney fees and costs pursuant to section 6259, subdivision (d). (Fontana Police Dept., supra, 74

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Cal.App.4th at p. 1253, 88 Cal.Rptr.2d 641.) The only issue on appeal in that matter, however, was the defendant's entitlement to attorney fees and costs, and the decision did not consider the propriety of the public agency's initiation of an action for a protective order to preclude disclosure of the public records pursuant to the defendant's request under the Act. Filarsky, supra, 28 Cal.4th at 430. This Court then went on to discuss the Citys improper motives in bringing such an action, which is also applicable to the in the instant case. The record in the present casesuggests the possibility that the city filed its declaratory relief action in order to gain a tactical advantage, however. The city does not contend that it or any third person would have suffered any prejudice had it not initiated the underlying declaratory relief action to ascertain its obligation to disclose the documents to petitioner. If petitioner chose not to file an action pursuant to section 6258, the city would not have been required to disclose the requested records. If petitioner had filed an action seeking to compel disclosure pursuant to the Act, the city could have raised all the contentions it successfully raised in its own declaratory relief action. Whatever a public agency's motivation for initiating a declaratory relief action in these circumstances, authorizing the agency to commence such an action would chill the rights of individuals to obtain disclosure of public records, require such individuals to incur fees and costs in defending civil actions they otherwise might not have initiated, and clearly thwart the Act's purpose of ensuring speedy public access to vital information regarding the government's conduct of its business. (See CBS, Inc. v. Block, supra, 42 Cal.3d 646, 656, 230

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Cal.Rptr. 362, 725 P.2d 470.) "In light of the clear legislative objective to promote disclosure which underlies the CPRA, we find no reason to imply a countervailing intention to subject a requester of information to a potential civil action instituted by the government agency for the purpose of testing the legitimacy of the request. Rather than promoting the goals of open government and full disclosure, such a result would be at war with the very purpose of the CPRA and would effectively discourage requests for disclosure by a member of the public or representative surrogate." (City of Santa Rosa v. Press Democrat, supra, 187 Cal.App.3d 1315, 1323, 232 Cal.Rptr. 445.) Filarsky, supra, 28 Cal.4th at 434. The reasoning set forth in Filarsky was not specifically limited to civil actions, and the analysis applies equally in the criminal context. While the County also has claimed that the District Attorney did not have a sufficient way to protect the disclosure of records it alleges to have an interest in, this, too, is inaccurate. The Court of Appeal for the Second District has recently addressed, in a case of first impression, the procedural options for a third party to resist disclosure under the CPRA. In Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250, a teacher, citing his privacy rights, sought to block his public employer from releasing records of an investigation and reprimand concerning complaints against him of sexual harassment. The appellate court held that once a public agency has made a determination that records are public and is slated to release them, an interested person, with some contravening interest, can file an injunction seeking to block the release of these records. Id. at 1267.

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However, the District Attorney has not done so in this matter because its interest in keeping the records from being released is already adequately protected, as the County has declined to release them. As noted Marken, supra, 202 Cal.App.4th at 1267, fn. 13: The reverse-CPRA action is necessary only when the public agency agrees to provide the requested records without judicial intervention. If the agency initially refuses to disclose information sought by the CPRA request and the requesting party seeks a writ of mandate in the superior court to compel disclosure pursuant to section 6258, a person potentially affected by the disclosure is entitled to intervene in the proceeding as a real party in interest. (See International Federation, supra, 42 Cal.4th at p. 328; STI Outdoor v. Superior Court (2001) 91 Cal.App.4th 334, 336 [109 Cal.Rptr.2d 865].) If the superior court grants the petition and orders disclosure, the affected party may thereafter seek further review by petition for writ of mandate in the Court of Appeal even if the agency elects not to contest the disclosure orderin effect, a "reverseCPRA action" in the appellate court. (See, e.g., International Federation, at p. 328.) C. The Criminal Court Has No Jurisdiction To Prohibit The Release Of A Third-Partys Public Records

As discussed above, Filarsky stands for the proposition that a public entity cannot submit itself to the Courts jurisdiction seeking an order prohibiting the disclosure of requested public records. It is even more strained to argue that a public agency could do so in a criminal matter to which it is not even a party. And while the County has argued that the protective order was not specific to the CPRA, the Countys protective order seeks the same result to obtain an order from the court prohibiting disclosure of records sought by a requestor pursuant to the CPRA.

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The District Attorney, as a representative of the People of the State of California, may have had standing to bring a motion for a protective order in a criminal case to prevent the dissemination of its own investigatory records. The same is not true for the County. Even though courts have long noted their inherent ability to regulate the conduct of persons within their jurisdiction when necessary to protect the defendants constitutional right to a fair trial 3, they have also noted the limits of such power. [A] court can, and should protect its processes from prejudicial outside interferences by the promulgation of rules and regulations controlling the use of property and the conduct of persons under the court's jurisdiction. It should be noted, however, that the Supreme Court did not purport to prescribe rules or measures directly regulating the conduct or activity of the news media or other persons not under the jurisdiction of the court, except insofar as such conduct or activity is indirectly limited and restricted by the controls and limitations placed upon the property and persons under the court's jurisdiction. With respect to the news media, the Supreme Court recognized that a responsible press assists effective judicial administration because it "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism," and that, therefore, the court was unwilling to place and direct limitations on the freedoms traditionally exercised by the news media.This attitude was apparently a reiteration of the court's previous acknowledgment in Bridges v. California, 314 U.S. 252 that "free speech and fair trials

See Sheppard v. Maxwell (1966) 384 U.S. 333.

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are two of the most cherished policies of our civilization, and it would be a trying task to choose between them." Cramer v. Superior Court (1968) 265 Cal.App.2d 216, 224-25; citations omitted. Similarly, in County of Los Angeles v. Superior Court (Monroe) (1967) 253 Cal.App.2d 670, 686, the Court noted that we cannot read Sheppard as now holding that potentially prejudicial pretrial publicity which occurs outside the court room can be controlled by injunction. In this case, neither the County nor Petitioners were subject to the criminal courts jurisdiction. As such, the criminal court was without the power to issue any order relieving the County of its legal obligation to provide members of the public with copies of public records. In San Bernardino County Department of Public Social Services v. Superior Court (San Bernardino Sun) (1991) 232 Cal.App.3d 188, the newspaper requested to attend a juvenile dependency proceeding. Id. at 193. The court allowed the newspapers attendance, but conditioned that access by circumscribing what the newspaper could publish and the circumstances under and the matter in which it could interview various participants in the proceedings. Id. at 206. The appellate court, in review the restrictions, held: The juvenile court clearly was without the power to restrict the press's right to investigate and publish information which it has lawfully obtained. (Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308: the judiciary cannot prohibit the publication of a juvenile's name and picture when that information has been lawfully obtained by the media; see also, Smith v.

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Daily Mail Publishing Co. (1979) 443 U.S. 97.) Here the court, through its conditions, attempted to prohibit the publication of information without regard to how the press obtained the information. If the information was or is lawfully obtained, it is beyond the juvenile court's power to so restrain the press. Contrary to its statement that it did not have the power to make a "gag" order directed to the Sun, the court by imposing such conditions for access in effect restricted the Sun's right to have access to sources of information and to publish information lawfully obtained by it. The court's condition regarding when and under what circumstances the Sun may interview participants in the proceeding such as the foster caretakers and mental health experts is an even more egregious interference with the freedom of the press and one for which we can find no support. By attempting to restrict the press's newsgathering ability, the condition strikes at the very heart of the press's constitutional rights. The last condition purportedly prohibiting the press from doing anything in the future which might interfere with the reunification process is so vague and overboard that it too results in an unconstitutional infringement on the freedom of the press. While we appreciate the court's attempt to allow press access without "sacrificing the children," it went too far in its efforts. The conditions cannot stand. Id. at 206-07 (emphasis added; string citations omited.) The criminal courts protective order in the instant action has the same effect on the press newsgathering abilities. Not only does the protective order, in effect, prevent the

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publication of information, it bars the press from lawfully gaining the information in the first place. Similar restrictions on the press have been heavily scrutinized. For example, in Freedom Communications, Inc. v. Superior Court (Gonzalez) (2008) 167 Cal.App.4th 150, 153, this Court recognized the important public policies which must be considered when restricting the press. Like all gag orders, the trial court's order restricting The Register's ability to report on the upcoming trial is presumptively invalid. (Nebraska Press Ass'n v. Stuart (1976) 427 U.S. 539, 558, 96 S.Ct. 2791, 49 L.Ed.2d 683.) A prior restraint is the most serious and the least tolerable infringement on First Amendment rights. (Id., at p. 559, 96 S.Ct. 2791.) Such an order is a most extraordinary remedy that may be used only in exceptional cases'where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures. (CBS, Inc. v. Davis (1994) 510 U.S. 1315, 1317, 114 S.Ct. 912, 127 L.Ed.2d 358 (Blackmun, J., in chambers).) The United States Supreme Court has offered two examples of the sort of exceptional situations in which a prior restraint might be justified: to prevent the dissemination of information about troop movements during wartime (Near v. State of Minnesota (1931) 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357) or to suppress[] information that would set in motion a nuclear holocaust. (New York Times Company v. United States (1971) 403 U.S. 713, 726, 91 S.Ct. 2140, 29 L.Ed.2d 822 (Brennan, J., concurring).) This case law makes clear that the danger the trial court sought to avert by its prior restraint here-the risk that witnesses in a civil trial might be influenced by reading news reports of the testimony of other witnesses-cannot possibly justify the censorship imposed.

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Further, the criminal courts interference with the already pending CPRA Case was impermissible, as a matter of procedure, because once a matter was is properly in front of one department, all other departments lack jurisdiction to interfere in that matter. 'A superior court is but one tribunal, even if it be composed of numerous departments .... An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. ...'" (People v. Grace, 77 Cal.App. 752, cited in Lee v. Offenberg, 275 Cal. App. 2d 575, 583.)This is because the state Constitution, article VI, section 4 vests jurisdiction in the court, "... and not in any particular judge or department; andwhether sitting separately or together, the judges hold but one and the same court. [Citation.] It follows,where a proceeding has beenassigned for hearing and determination to one department of the superior court by the presiding judge and the proceeding has not been finally disposed of it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned. If such were not the law, conflicting adjudications of the same subjectmatter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion. [Citation.] In re Kowalski (1971) 21 Cal.App.3d 67, 70, citing Williams v. Superior Court (1939) 14 Cal.2d 656, 662; emphasis added; string citations omitted; See also People v. Madrigal (1995) 37 Cal.App.4th 791, 795, and Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742 (one department of the superior court cannot enjoin,

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restrain, or otherwise interfere with the judicial act of another department. Emphasis added.) Therefore, once the issue of the disclosablity of the requested public records was rightfully before the Court in the CPRA Case, as it had been for many months before the County filed its motion for a protective order, the criminal department lacked jurisdiction to interfere with the judicial acts of this department regarding that question. This is the basis of the first filed doctrine, which provides that when two courts of the same sovereignty have concurrent jurisdiction, the first to assume jurisdiction over a particular subject matter of a particular controversy takes it exclusively, and the second court should not thereafter assert control over that subject matter. Advanced Bionics Corp. v. Medtronic, Inc. (2002) 29 Cal.4th 697, 707. C. The Protective Order Was Unnecessary And Overbroad Even if the court in the Criminal Case had jurisdiction over the parties and the subject matter, the protective order was unnecessary because the Countys interest in unlawful dissemination of its records was already adequately protected by the procedures set forth in the CPRA and disclosure of the public records would not jeopardize the Defendants right to a fair trial. Further, the actual protective order issued was also impermissibly overbroad and made without the necessary factual findings, which must render it invalid. First, under the CPRA, the only way that a requestor of public records can force a public agency to release records is to seek and obtain a judgment from the superior court. When a person makes a request for public records, the public agency is allowed to

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unilaterally determine whether to disclose those records. Gov. Code 6253(c). If the agency declines to release the records, the requestor has the option of challenging that denial in a CPRA lawsuit. Gov. Code 6258. Once the requestor files a lawsuit, the public agency must then justify its decision to withhold the records to the Court. Gov. Code 6255. In this case, as in all CPRA cases, only after the court in the CPRA case deems the records to be disclosable public records, would the County be at risk of disclosing them. Therefore, the only possible effect the protective order in this matter could have had was to restrain the civil court hearing the CPRA Case from ordering them disclosed. However, it is well settled that one department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court. Ford v. Superior Court (1986) 188 Cal. App. 3d 737, 742. If the court in the CPRA Case did order the County to disclose the public records, the County has the ability to seek an extraordinary writ to the Court of Appeal to review the trial courts decision. In the case of an adverse decision by the Court of Appeal, the County could then file a petition for review to this Court. Therefore, the County was never at risk of any wrongful disclosure. The County argues that its requested protective order only sought to provide it with the same protections that the District Attorney obtained when it sought and was granted a protective order in the Criminal Case, which prevented the parties from disclosing information in the District Attorneys investigatory file. The County claimed, it was simply requesting the court to extend its protective order to the County. Otherwise, the records that this court has already deemed confidential will be disseminated to the public,

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thereby preventing a fair trial. However, a comparison of the two protective orders reveals that the protective order issued on the Countys motion was broader than the protective order requested by the District Attorney. The District Attorneys protective order only governed police reports and sexual abuse investigation reports. The protective order issued at the request of the County included not only police reports and sexual abuse investigation reports, but also all records created by the County, its employees, attorneys, and/or agents, relating to the Countys investigation of Carlos Bustamante, including but not limited to complaints, complaint investigations, witness interviews and statements, victim interviews and statements, investigatory report and memoranda, notes and impressions of County staff and attorneys investigating the complaints. Second, while Petitioners recognize that the Defendant has a constitutional right to a fair trial, those rights cannot be viewed in a vacuum. Petitioners have a constitutional right of access to all information concerning the conduct of the peoples business. California Constitution, Article 1, Section 3, Subdivision b. Additionally, a free press is the cornerstone of our democratic society. These rights must be balanced against, and not simply disregarded in favor of, the Defendants rights. While these rights are not absolute, both California and federal authorities place a heavy burden on the party seeking to justify denial of these rights. Secrecy must be strictly and inescapably necessary to protect a compelling government interest. (Associated Press v. United States Dist. Court (9th Cir. 1983) 705 F.2d 1143, 1146; emphasis added]; United States v. Brooklier (9th Cir.1982) 685 F.2d 1162, 1167. See also Copley Press Inc. v. Suprior Court (1998)

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63 Cal.App.4th 367, 374 [compelling reasons must establish why and to what extent records should be made private]; Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 317 [burden rests on party seeking to deny public access to establish compelling reasons why and to what extent those records should be made private].) In issues of access to court proceedings and records, public access cannot be denied "unless specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest." (PressEnterprise Co. v. Superior Court (1986) 478 U.S. 1, 13-14; Copley Press, Inc. v. Superior Court (1991) 228 Cal.App.3d 77, 84-85.) "The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." (Waller v. Georgia (1984) 467 U.S. 39, 48. See also NBC Subsidiary (KNBCTV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218.) Further, it cannot be presumed that pretrial publicity deprives a defendant of a fair trial. Pretrial publicity, even if pervasive and concentrated, does not inevitably lead to an unfair trial in criminal cases. (Nebraska Press Ass 'n v. Stuart (1976) 427 U.S. 539, 554. See also Murphy v. Florida (1975) 421 U.S. 794, 799 [The decided cases "cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime with which [a defendant] is charged alone presumptively deprives the defendant of due process."]; United States v. Myers (2d Cir. 1980) 635 F.2d 945, 953 [intensive publicity surrounding the events of Watergate, "very likely the most widely reported crime of the past decade," did not prevent the

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selection of impartial jurors]). Conclusory or speculative assertions that pretrial publicity will have a detrimental effect on a defendant's right to a fair trial are insufficient to justify sealing. "The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]." (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 15; NBC Subsidiary, supra, 20 Cal.4th at 1217-18; PressEnterprise Co. v. Superior Court (1994) 22 Cal.App.4th 498, 504.) Other cases have balanced the Defendants right to a fair trial against competing rights. This Court has recognized that the States Shield Law, California Constitution, Article I, Section 2(b), which absolutely immunizes journalists from contempt sanctions for refusing to provide prosecutors with information acquired in the course of news gathering but not published can only be overcome where a criminal defendant can make a specific showing that nondisclosure would deprive him of his federal constitutional right to a fair trial. Delaney v. Superior Court (1990) 50 Cal.3d 785, 805. In Delaney, this Court established substantive and procedural safeguards that a criminal defendant must satisfy to overcome a reporter's immunity from contempt under the Shield Law. Once the reporter establishes that he or she is entitled to withhold unpublished information under the shield law, a criminal defendant must meet a threshold showing that there is a "reasonable possibility the information will materially assist his defense." Id. at 808. This Court emphasized that the burden of proof is on the criminal defendant to make the required showing. Although the defendant's showing need not be detailed or specific, it must "rest on more than mere speculation." (Id. at p. 809.)

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ATTACHMENT A
ORDER OF THE FOURTH DISTRICT, DIVISION 3 COURT OF APPEAL OF THE STATE OF CALIFORNIA SUMMARILY DENYING PETITION FOR EXTRAORDINARY WRIT

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ATTACHMENT B
PROTECTIVE ORDER ISSUED BY THE HONORABLE GREGG L. PRICKETT SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, CRIMINAL CASE NO. 12CF1964

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Service List Brock Zimmon, Deputy D.A. Orange County District Attorneys Office 401 Civil Center Drive West Santa Ana, CA 92701 Counsel for Real Party in Interest People of the State of California James D. Riddet, Esq. Stokke & Riddet 4100 Newport Place, Suite 559 Newport Beach, CA 92660 Counsel for Real Party in Interest Carlos Bustamante Rebecca S. Leeds Nicholas S. Chrisos Office of the Orange County Counsel P.O. Box 1379 Santa Ana, CA 92702 Counsel for Real Party in Interest County of Orange Hon. Gregg L. Prickett Department C-5 Orange County Superior Court Central Justice Center 700 Civic Center Drive West Santa Ana, CA 92701 Respondent Superior Court of the State of California, County of Orange Clerk of the Court California Court of Appeal Fourth Appellate District, Division Three 601 W. Santa Ana Blvd. Santa Ana, CA 92701 Appellate Court

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