Jane Roe D.A., et al. v. Lucia Mar Unified School District

Jane Roe D.A., et al. v. Lucia Mar Unified School District, 25CV-0711

Hearing: Motion to Compel Records from the California Commission on Teacher Credentialing

Date: August 27, 2026

Jane Roe D.A. and Jane Roe D.S. (Plaintiffs) filed this action against Lucia Mar Unified School District (Defendant) seeking damages arising from alleged childhood sexual assault by their schoolteacher, Alexander Polosjuk (Polosjuk). Plaintiffs allege Polosjuk was arrested and convicted of childhood sexual abuse in 1998. (Complaint, ¶ 8.c.)

On January 15, 2026, Plaintiffs served a Deposition Subpoena for Production of Business Records (Subpoena) on nonparty, California Commission on Teacher Credentialing (CCTC). The Subpoena sought records related to any disciplinary history, misconduct and/or complaints against Polosjuk during the time he was employed as a credentialed teacher. (Declaration of Crystle Caigoy (Caigoy Dec.), ¶ 3; Exh. A).

CCTC objected to the Subpoena and produced documents without indicating which requests the documents are responsive to. (Caigoy Dec., ¶ 4; Exh. B.) CCTC refused to produce a privilege log or clarify the documents that were not produced pursuant to objections. (Caigoy Dec., ¶ 5; Exh. C). The parties met and conferred and CCTC asserted that it could not produce all the requested documents absent a court order. (Caigoy Dec., ¶¶ 6, 7; Exhs. D, E.) On May 1, 2026, CCTC produced a 73-page privilege log. (Caigoy Dec. ¶ 8; Exh. F).

Polosjuk was duly served with a copy of the Subpoena and did not object to it or file a Motion to Quash the Subpoena. (Caigoy Dec. ¶ 9). CCTC opposes the motion on the following grounds: (1) the Commission is prohibited from releasing the information sought by plaintiffs without a court order, (2) the subpoena seeks documents protected by various privileges, such as the attorney-work product doctrine, the attorney-client privilege, the deliberative process privilege, official information privilege, and investigatory privilege; and (3) the subpoena seeks documents that are not the Commission’s business records. (Opposition, p. 2, lns. 19-24.)

I.

Legal Standard

If a nonparty deponent fails to appear for deposition or fails to produce a requested document, the subpoenaing party may seek a court order compelling the nonparty to comply. (Code Civ. Proc., §§ 1987.1, 2020.030, 2025.480.)1

1 Further statutory references are to the Code of Civil Procedure unless otherwise stated.

Section 2017.010 states: “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” California’s discovery laws are to be construed liberally in favor of disclosure of evidence unless statute or public policy clearly contradict specific acts in furtherance of that goal. (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 118 [overruled in part on another ground in People v. Holloway (2004) 33 Cal.4th 96, 131] (Shepherd).)

II.

Discussion

Plaintiffs argue the requested “records are directly relevant to Plaintiffs’ claims that the District negligently hired, supervised, and/or retained Mr. Polosjuk as an employee of the District” because the documents go directly to what the District knew, when it knew it, and what the Commission did with that information. (Motion, p. 4, lns. 24-25; Reply, p. 2, lns. 4-7.) Given California’s liberal discovery policy the Court agrees the requests seek admissible evidence or evidence reasonably calculated to lead to the discovery of admissible evidence.

A. Attorney Work Product and Attorney-Client Privilege

It is the duty of a party asserting a privilege to present evidence which establishes the existence of a communication that falls within the privilege. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640–641.) The objection must include sufficient information to allow the Court and propounding party to evaluate the objection. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293-294.)

While CCTC asserted the attorney work product doctrine and attorney-client privilege in meet and confer communications, CCTC has not identified and the Court has found such objections in the privilege log. It is unclear which responsive documents, if any, contain attorney work product or confidential communications between an attorney and client. (See, Caigoy Dec. ¶ 8; Exh. F).

B. Deliberative Process, Official Information, Investigation

Education Code section 44245 prohibits CCTC from disclosing hearings and deliberations in consideration of an adverse action without an order from a court of competent jurisdiction. The Subpoena seeks documents that cannot be disclosed absent a court order.

Evidence Code section 1040 provides protection from disclosure of 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. Evidence Code section 1040, subdivision (b)(2), allows disclosure of official information if disclosure in the interest of justice outweighs the necessity for preserving the confidentiality of the information.

In ruling on these arguments, the Court must proceed as follows:

First, the trial court should undertake to determine, without respect to possible privilege, whether and to what extent the moving papers are in compliance with the requirements of specificity, materiality, and good cause set forth in section 1985 of the Code of Civil Procedure. Second, with respect to each of the items sought which meet with those requirements the trial court should determine whether it comprehends ‘information acquired in confidence’ which may be subject to the privilege for official information set forth in section 1040 of the Evidence Code; items which qualify for production under the standards of section 1985 but which do not consist of ‘information acquired in confidence’ should be ordered to be produced.

Third, with respect to items which qualify for production under the standards of section 1985 but which consist of ‘information acquired in confidence’ within the meaning of section 1040 of the Evidence Code, the trial court should proceed to determine whether they qualify for the conditional privilege of subdivision (b)(2) of that section in that their disclosure is against the public interest; all items which do not so qualify should be ordered to be produced.

(Shepherd, supra, 17 Cal.3d at 127–28.)

Plaintiffs have complied with section 1985 and shown good cause for seeking Polosjuk’s entire CCTC file. CCTC asserts that “maintaining the confidentiality of the Commission’s investigation and internal processes and procedures allows the Commission to exercise its duty to fully and fairly investigate complaints and evaluate them for potential disciplinary action.” It provides no evidence that the processes and procedures used in 1998, when the alleged assaults took place (Complaint, ¶ 8.c.), are still used twenty-eight years later in 2026. There is no discussion of how disclosure of a type of procedure used in investigating Polosjuk at any time will compromise CCTC’s ability to conduct current and future investigations.

“The key question in every case is ‘whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.’” (San Joaquin County Local Agency Formation Commission v. Superior Court (2008) 162 Cal.App.4th 159, 170–71 [citations omitted].) The cases cited by CCTC were based on distinguishable facts that do not apply here. (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 765 [specific exemption from disclosure for law enforcement investigative files]; San Joaquin County Local Agency Formation Commission v.

Superior Court, supra, [disappointed applicant’s request for discovery of commission’s reasoning process for rejecting application] Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 [request for almost five years of Governor’s appointment calendars and schedules, covering thousands of meetings, conferences and engagements of every conceivable nature denied].)

The Subpoena is specific to Polosjuk’s file. If there are responsive documents evidencing investigation of any allegations against Polosjuk or deliberation on how to deal with the allegations

it is CCTC’s burden to identify those documents and explain how disclosing them will undermine the agency’s ability to perform its functions. Simply stating the conclusion is not sufficient.

Nor does the privilege log describe all documents with sufficient clarity to determine if they are a type of document that may be subject to objection. CCTC describes multiple documents as “Certificate of Individual Microfilm or Other Photographic Reproduction” which renders it impossible to determine whether the asserted objections have merit. A privilege log should provide a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130.)

C. Privacy Rights

Polosjuk’s privacy rights are not a valid basis for withholding documents. Polosjuk was properly served with the Subpoena and did not object to disclosure, let alone file a requisite motion to quash the Subpoena. (Caigoy Dec. ¶¶ 3, 9; Exh. A.) Further, Polosjuk’s privacy interests are outweighed by Plaintiff’s credible allegations of sexual assault. (See, e.g., Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250.)

With respect to the privacy rights of third parties, the “records of other credential holders who are not the subject of the subpoena” (See, e.g., Privilege Log, document CTC 0126), may be redacted.

D. Business Records

CCTC argues that the Subpoena reaches only documents “prepared by” CCTC rather than documents prepared by others and provided to CCTC. (Opposition, p. 9, lns. 12-17.) Plaintiff points out that Evidence Code section 1560 defines “record” as a “record maintained by a business.” (Motion, p. 11, ln. 17-18 [emphasis added].)

Evidence Code section 1561 provides that an affidavit shall accompany the document production which states the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. The appellate court in Cooley v. Superior Court (2006) 140 Cal.App.4th 1039 (Cooley), held that a district attorney’s office could not be compelled to produce accident reports prepared by law enforcement agencies because the district attorney could not attest to the preparation of the documents.

Nonetheless, the opinion in Cooley did not consider the distinction between discovery and admissibility and its interpretation of Evidence Code section 1561 is at odds with Code of Civil Procedure sections 1987.1, 2020.030, and 2025.480 which expressly apply to deposition subpoenas. Further, as Plaintiff argues, the California Public Records Act (Public Records Act) “encompasses writings prepared by an agency but also writings it owns, uses, or retains, regardless of authorship. Obviously, an agency engaged in the conduct of public business will use and retain a variety of writings related to that business, including those prepared by people outside the agency. These final two factors of the “public records” definition, use and retention, thus reflect

the variety of ways an agency can possess writings used to conduct public business.” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 622.)

Further, Evidence Code section 1561 does not require that the affiant be an employee of “the business” that prepared the records. It requires only that the affidavit state the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. (Evidence Code § 1561, subd. (a)(3).) There is no discussion in Cooley as to why the district attorney refused to make such statement.

The appellate court in Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447–48, found that a declaration by a custodian of records attesting, “to the best of her knowledge,” that the records were prepared or compiled by the responding entity’s personnel in the ordinary course of business at or near the time of the acts, conditions, or events recorded was sufficient to establish the documents as admissible business records. The court cited Evidence Code section 1561 as the statute governing admissibility. (See, also, Jones v. Solgen Construction, LLC (2024) 99 Cal.App.5th 1178, 1189 [affidavit establishing business record as exception to hearsay].)

CCTC withheld production of Polosjuk’s college transcripts and CBEST certification, and correspondence transmitting those documents, on the ground they are not business records because CCTC employees did not prepare them. (Caigoy Dec. ¶ 8; Exh. F). Such documents were presumably obtained, maintained, and relied upon by CCTC in processing Polosjuk’s credential applications. They come from apparently reliable sources. CCTC offers no evidence to the contrary, and the documents are clearly discoverable under the Public Records Act, section 2017.010, and California’s liberal discovery policy.

III. Ruling

Plaintiffs’ motion to compel is granted. Within twenty (20) days after service of notice of entry of order, CCTC must produce all responsive documents other than those subject to the attorney work product doctrine or attorney-client privilege pursuant to a privilege log which describes such documents with sufficient detail to determine whether those privileges apply. Names of thirdparty credential holders may be redacted. Plaintiffs are ordered to serve notice of entry of order.

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