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Ari Marken v. Santa Monica-Malibu Unified School District

January 24, 2012


APPEAL from orders of the Superior Court of Los Angeles County, Ruth Ann Kwan, Judge. Affirmed in part and, dismissed in part. (Los Angeles County Super. Ct. No. BC454656)

The opinion of the court was delivered by: Perluss, P. J.


After an investigation of a student's complaint Ari Marken, a mathematics teacher at Santa Monica High School, received a written reprimand from the Santa Monica-Malibu Unified School District (District) for violating the District's policy prohibiting the sexual harassment of students. Marken had been placed on administrative leave during the month-long investigation, but returned to his classroom following the reprimand.

Two years later Michael Chwe, a District parent, requested disclosure under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.)*fn1 of records concerning the District's investigation of Marken and its findings he had violated the sexual harassment policy. Advised by the District it intended to release certain of the records (specifically, the investigation report and letter of reprimand), Marken filed a verified complaint for injunctive and declaratory relief/petition for writ of mandate, alleging disclosure of his personnel records was not authorized under the CPRA and would violate his constitutional and statutory rights of privacy. After initially issuing a temporary restraining order, the trial court denied Marken's request for a preliminary injunction. The court also denied Chwe's ex parte application to intervene in the action. We affirm the order denying the preliminary injunction and dismiss the appeal from the order denying leave to intervene.


1. The Student Complaint, the District Investigation and the Letter of Reprimand

In October 2008 the mother of a ninth grade student in one of Marken's classes at Santa Monica High School spoke with the student's house principal*fn2 expressing concern her daughter had been sexually harassed by Marken. The mother submitted a document outlining the alleged improper conduct (both comments and actions). The house principal spoke with the student and then with Marken, who admitted he had engaged in certain of the conduct alleged, explaining the context, and denied he had engaged in other conduct. The house principal then reported the complaint to the District, which retained an attorney to independently investigate the matter in accordance with the District's Board Policy 5145.7 on sexual harassment. Marken was placed on home assignment during the investigation, as required by the board policy.

The student's parents spoke with the investigator and provided information regarding the alleged misconduct but explained they had decided not to allow their daughter to be interviewed about the matter. In addition to the parents the investigator interviewed the house principal, the high school's dean of students, several staff members and Marken. The investigator prepared a report, dated November 25, 2008, which contained a summary of the evidence gathered and made "partial findings" regarding certain conduct that she concluded "more likely than not did occur." However, the report stated, because no interviews were conducted of any students, the investigation was not considered completed.

Based on the investigation report, on November 26, 2008 the District issued a "written reprimand following accusations of sexual harassment of a student," finding Marken had violated the District's board policy prohibiting the sexual harassment of students and his actions had negatively affected the student involved. The written reprimand included a number of specific directives relating to Marken's future conduct with students (including a prohibition of any further interaction with the student whose mother had initiated the complaint) and warned Marken a failure to comply with these directives or future incidents of sexual harassment or misconduct would result in further disciplinary action. Finally, the letter of reprimand stated a report of the matter had been made to law enforcement as required by District policy.*fn3

Marken returned to his classroom. No criminal charges were ever filed.

2. Chwe's CPRA Request and the District Response

On December 14, 2010 Chwe, a professor of political science at UCLA and the father of two children who attend Santa Monica High School, made a CPRA request to the District, seeking "copies of all public records . . . concerning the investigation of Santa Monica High School teacher Mr. Ari Marken and the resulting decision to place him on leave in December 2008 for sexually harassing a thirteen-year-old girl, in violation of SMMUSD policy 5145.7." The request attached a copy of a letter dated December 4, 2008 from a District assistant superintendent to the mother of the student who had initiated the complaint against Marken, which stated, in part, "[T]he District hired an Independent Investigator to examine this complaint. The District found that Mr. Marken did violate Board Policy 5145.7 [on sexual harassment] and has taken appropriate action." The request also sought other public records regarding any substantial complaints about Marken's improper behavior toward students.

The District through its legal counsel notified Chwe it required additional time to respond to his request--first, a 14-day extension and then a one-month extension to February 7, 2011. Counsel explained the District had advised Marken of Chwe's request and its intention to comply with it--that is, to produce all public records relating to its investigation of the October 2008 student complaint of sexual harassment and any other public records regarding substantial complaints about Marken's improper behavior toward students--and Marken's counsel had requested the one-month period prior to production of any documents to allow him to seek a judicial determination whether the documents the District intended to release were disclosable in light of Marken's federal and state constitutional privacy rights. Counsel assured Chwe it would produce those documents by February 7, 2011 "unless a court orders otherwise."

3. Marken's Lawsuit; Chwe's CPRA Suit

On February 8, 2011 Marken filed a lawsuit against the District, captioned verified complaint for: temporary restraining order, preliminary and permanent injunction, declaratory relief; petition for writ of mandate. Marken alleged the District's decision to disclose the November 25, 2008 investigation report and the November 26, 2008 letter of reprimand in response to Chwe's request was not authorized under the CPRA because the sexual harassment complaint was neither substantial in nature nor well founded. Marken further alleged the District's intended disclosure of his confidential personnel records, unless enjoined, would violate his rights of privacy protected by the California Constitution and the Education and Government Codes and cause him irreparable harm. Concurrently with the filing of his complaint/petition for writ of mandate, Marken filed an ex parte application for a temporary restraining order and an application for an order to show cause re preliminary injunction, which were supported by a memorandum of points and authorities and related declarations.

Marken's lawsuit was initially assigned to Hon. Ann I. Jones in Department 86 (writs and receivers) of the Los Angeles Superior Court. Marken filed a Code of Civil Procedure section 170.6 affidavit of prejudice, and the case was reassigned to Hon. Ruth Ann Kwan. When the court called the matter, counsel for Marken and the District stated their appearances. Chwe was also present and identified himself as the person who had filed the CPRA request. The father of the student involved in the complaint also identified himself to the court. Counsel for Marken and the District each noted that Chwe was not a party, and Marken's counsel requested the hearing be held in chambers. According to Chwe, he attempted to provide a written statement to the court; the clerk refused to accept it.

The court held an in camera hearing, on the record, so it could review the personnel records the District intended to disclose. Following argument, the court granted a temporary restraining order to preserve the status quo and set a hearing on the request for a preliminary injunction for March 10, 2011.

On February 23, 2011 Chwe filed a petition for writ of mandate to compel the District to comply with the CPRA, which was assigned to Judge Jones in Department 86 of the Los Angeles Superior Court. Chwe also filed a notice of related case and requested his lawsuit and Marken's "reverse-Public Records Act lawsuit" be related and assigned to one of the writs-and-receivers judges in Departments 85 and 86 "who normally handle[s] Public Records Act writ petitions."

On March 2, 2011 the court (Judge Jones) denied the request to relate the two cases. Chwe did not seek review of that order in Department One, as permitted by rule 3.3(f)(3) of the Local Rules of the Los Angeles Superior Court. Instead, on March 3, 2010 his counsel gave telephone notice to counsel for Marken and the District of his intention to apply ex parte for leave to intervene in Marken's lawsuit against the District. Chwe's counsel provided notice to the court of his intention to file an ex parte application on March 4, 2011.

On March 7, 2011 Chwe, identifying himself as real party in interest, filed an ex parte application for leave to intervene in the Marken action in order to oppose the request for injunctive relief. The application explained ex parte relief was necessary because the hearing on the request for a preliminary injunction was scheduled for March 10, 2011 and Chwe's right to present arguments concerning his CPRA request would be violated if his request was not granted. The application was supported by a memorandum of points and authorities, which argued not only that Chwe qualifies as an intervenor under Code of Civil Procedure section 387, subdivision (b), but also that he is an indispensable party to the action pursuant to Code of Civil Procedure section 389, subdivision (a), California's compulsory joinder statute.

4. The Trial Court's Rulings

a. The application for leave to intervene

On March 7, 2011 the court heard argument and denied Chwe's application for leave to intervene. The court explained it was denying the application because it had been presented on an ex parte basis, shortly before the scheduled hearing on the request for a preliminary injunction, notwithstanding the fact Chwe had been aware of the pendency of the action since February 8, 2011 when he was present at portions of the hearing on Marken's application for a temporary restraining order: "Counsel, you are asking to intervene on an ex parte basis. The court is going to deny it on--the intervention on an ex parte because it's--your client did not exercise due diligence in trying to do this earlier so that it could be properly heard on the count's calendar so that they could file a proper opposition for the court's consideration."*fn4 Chwe sought immediate appellate review of that ruling by petition for writ of mandate and request for stay of proceedings, filed March 9, 2011. His petition was summarily denied by this court. On April 28, 2011 Chwe filed a notice of appeal from the order denying leave to intervene.

b. The application for a preliminary injunction

On March 10, 2011, after receiving a supplemental memorandum from Marken in support of his request for a preliminary injunction, opposition papers from the District and a reply from Marken, and following argument of counsel, the court denied the request for a preliminary injunction, finding the documents at issue are subject to disclosure under the CPRA. However, the court ordered the District to redact the names and personal information of the ...

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