The Superior Court Can't Play Lucy to the Regents' Charlie Brown

Regents of the University of California v. Superior Court, No. A138136 (D1d2, as modified Jan 14, 2013)

On the merits, the court of appeal holds that records of private venture capital funds in which the Regents invested some pension funds do not fall within the Public Records Act. But it also resolves a procedural issue. In the course of the  litigation, the Regents provisionally lodged some records under seal pursuant to Rule of Court 2.551(b)(4), pending a ruling on an application to seal them. The Regents' counsel made clear during argument that if the court declined to seal the records, the Regents wanted them returned under Rule of Court 2.551(b)(6). The superior court did not rule on the sealing application right away. When it ultimately ruled on the merits, however, it also ruled that the Regents were judicially estopped from requesting the return of their documents because they submitted them for the court to consider on the merits of the PRA request. 

In this the trial court erred. Judicial estoppel did not apply because the Regents never took an inconsistent position—they consistently claimed that the records were not public and that they wanted them returned without filing if the court would not seal them. The trial court had two options under the Rule: Order the records sealed or deny the application return the records under Rule 2.551(b)(6). If it took the latter tack it could not consider the returned records in addressing the merits. Of course, a trial court is free to delay its ruling on sealing, and there are often good reasons to do so. But there's a catch. The trial court might consider the provisionally lodged materials in ruling on the merits and also decide that the did not meet the standard for sealing. If that happens, and if the submitting party won't consent to the materials' public filing, the court will need to go back and reevaluate the merits without the provisionally sealed material. That, however, is the risk a trial court bears when it delays ruling on sealing.

Writ granted.