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Gateway Unified School District v. Kendall Lynn et al

November 28, 2012


(Super. Ct. No. 170167)

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

Gateway Unif. School Dist. v. Lynn



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In yet another appeal featuring the e-mails defendant Kendall Lynn (Lynn) purloined from the Gateway Unified School District (District), we are asked to reverse the trial court's refusal to modify its preliminary injunction to exclude 115 of the e-mails he would like to use in his federal lawsuit for wrongful termination. Lynn failed to appeal the order granting the injunction and presented no new facts in his motion to modify. This appeal, therefore, must be dismissed.


Few facts are relevant to the dismissal. After his position as director of technology was eliminated and while he was on medical leave, Lynn, without authorization or permission, accessed the District's computer server and copied 39,312 e-mails onto a flash drive. His lawyer, Robert Thurbon, copied the e-mails onto his office computer to allow Jody Thulin, another former District employee, to review the e-mails in preparation for her wrongful termination case. The District did not learn of the wrongful appropriation until a few days before the discovery cutoff in the Thulin case. (Lynn v. Gateway Unified School Dist. (E.D.Cal., Dec. 15, 2011, No. 2:10-CV-00981-JAM-CMK) 2011 WL 6260362 *1-2, *4.)

The District filed a new lawsuit against Lynn, Thurbon, and Thulin seeking return of the e-mails. (Gateway Unified School Dist. v. Lynn (Super. Ct. Shasta County, filed Sept. 1, 2010, No. 170167.) In their opposition to the request for injunctive relief, defendants asserted: "The documents from Gateway are public documents. There is no evidence (Gateway has not attached one e-mail for review) that any of the documents are privileged or confidential. . . . Until a determination has been made that specific documents are privileged or confidential, these documents are discoverable as public records and therefore the District can suffer no harm as a result of their production." They further argued: "There is no legal authority that prohibits a person from discussing public documents or their contents. Regardless of whether or not the documents were legally obtained, the nature of these documents does not change. They are public documents and as such these Defendants are each entitled to speak about them under their Constitutional rights."

The trial court rejected defendants' self-serving assumption that the e-mails constituted exempt, non-privileged public documents and that the manner of acquisition was irrelevant to the request for injunctive relief. The court issued an injunctive order that all e-mails, whether in electronic or paper format, taken by Lynn had to be returned to the District. Defendants were "prohibited from the use, dissemination, and disclosure of the contents of the emails." In granting this motion, the court once again found Lynn had not obtained the emails through a lawful process. Defendants did not appeal.

Almost five months later, Lynn filed a motion to lift and/or modify the preliminary injunction. In the notice of motion, Lynn stated that the motion "will be made on the grounds that Defendant's right to possess, use and disseminate public records is statutorily guaranteed by the California Public Records Act, Government Code §6250 et. sec. [sic] and constitutionally protected by California Constitution Art. I, Section 3. To the extent Gateway's preliminary order required Defendant's [sic] to return copies of public records and prohibits Defendant's [sic] from possessing, using or disseminating public records such order is contrary to law and prohibited by the Public Records Act and the California Constitution."

In its tentative ruling denying the motion, the court explained: "There has been no change in the facts that led to the injunction, no change in the law, and the ends of justice would not be served by lifting or modifying the injunction. Granting the motion would interfere with the orderly administration of justice. Defendants are attempting to secure from this Court a ruling on a public records request not yet made as of the time of the filing of the motion. Defendants state, without citing any authority, that no specific procedure is required to obtain copies of public records. Defendants ignore the simple, common sense fact that a request for public records must start with just that -- a request. If a request is denied, an orderly court process is in place to secure a determination of whether the records are subject to disclosure. The court process accommodates the need to address what constitutes a 'public record' and whether a public record is exempt from the public records act. Defendants state in conclusionary fashion that the documents are not exempt and not privileged, apparently overlooking the fact that this is for the Court to determine. Following proper procedures, starting with a request to review records, relieves the Court of the necessity to review voluminous documents about which there might well be agreement regarding disclosure. The Court has the inherent power to control proceedings before it, insist upon an orderly process, and use the utmost care in assuring that issues that can be resolved informally are not brought before the Court needlessly." This time, Lynn appeals the order.


The District urges us to dismiss the appeal of what it perceives to be a non-appealable order. We agree with the District that Lynn's appeal is a thinly veiled attempt to evade the statutory limitations on appealability in what is nothing ...

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