Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 2643016.
RIVERA, J.
David Holstein appeals from a judgment of dismissal following the trial court’s order granting the motions of respondents County of Napa (County), Michael A. Willihnganz, Sandra Seymour, and Teresa Gallegos to strike his claims for invasion of privacy and for nonsuit on his claims of intentional and negligent infliction of emotional distress. He contends that the trial court erred in determining that respondents’ disclosure of the fact of his expunged conviction to a private employer was not an invasion of privacy. He also argues that the trial court erred in granting respondents’ motions for nonsuit on his emotional distress claims. We affirm.
I. FACTUAL BACKGROUND
Holstein suffered a felony conviction in 2003 and was placed on probation for five years. The conviction occurred in Sacramento but his probation was subsequently supervised in the County because Holstein lived in Napa. In 2006, the conviction was expunged.
In February 2008, Holstein began a temporary employment assignment as an information technology (IT) administrator for the County. He obtained the assignment through Alkar Human Resources (Alkar), a permanent and temporary staffing firm. Although the County required that preplacement background checks be performed on prospective employees, Alkar did not conduct the background check on Holstein prior to the start of his employment.
Holstein was assigned to the County’s IT department to assist with helping employees in various departments with computer issues. In March 2008, he accompanied another IT employee to the probation department to work on a keyboard problem. Seymour, a deputy probation officer, saw him. Seymour had been Holstein’s supervising probation officer in 2003. She recognized Holstein and knew that he was convicted of a serious offense involving a vulnerable victim. She immediately became concerned that he might have access to information about the victim. Seymour accessed the county’s Criminal Justice Information Management System, and confirmed that Holstein was one of her former probationers. She reported the information to Theresa Folster, one of her supervisors. Folster, in turn, relayed the information to Mary Butler, her supervisor, who then informed the acting director of the IT department. Ultimately, Willihnganz, assistant director of the human resources department, was told that Alkar had placed someone with the County who was a former probationer.
Seymour was with respondent Gallegos when she accessed the information.
Willihnganz called Minette Nugent of Alkar to find out what Alkar’s process was for screening potential temporary employees for the County. He was concerned that there might be a flaw in the system in that temporary employees with the County were not undergoing background checks. Nugent informed Willihnganz that Alkar performed background checks on individuals it placed with the County. Willihnganz told Nugent that a temporary employee Alkar had placed with the County was recognized by someone in the probation department and he inquired whether a background check had been conducted on the employee. After checking her records, Nugent apologized that a background check was not completed. Nugent and Willihnganz agreed to put the assignment on hold pending completion of a background check.
Nugent then contacted Holstein to let him know that he would have to undergo a background check before he returned to the position with the County. Holstein thereafter underwent the Occuscreen background check process required by Alkar. Approximately, two weeks later, Nugent informed Holstein that the Occuscreen check showed that he had a felony on his record and was thus ineligible to work for the County. Holstein told Nugent that the felony had been expunged and that he would provide her with the correct information. In the meantime, Holstein underwent a Live Scan through the Department of Justice that showed his conviction from 2003 and its expungement in 2006. Following his temporary employment with the County, Holstein was unemployed for approximately six months.
II. DISCUSSION
Holstein contends that the trial court erred in determining that a conviction expunged pursuant to Penal Code section 1203.4 (section 1203.4) is a public record as a matter of law. The issue requires interpretation of statutory language, a question of law which we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; People v. Love (2005) 132 Cal.App.4th 276, 284.)
Section 1203.4 permits a convicted felon or misdemeanant to request expungement of his or her conviction if certain conditions are met. In relevant part, section 1203.4, subdivision (a) provides that “[i]n any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted....” (§ 1203.4, subd. (a); see People v. Butler (1980) 105 Cal.App.3d 585, 587.)
Here, it is undisputed that Holstein suffered a felony conviction in 2003, and that the conviction was expunged in 2006. The question before the court was whether an expungement under section 1203.4 resulted in the fact of the conviction ceasing to be public information. The trial court properly ruled that it did not. That Holstein was a felon was public information available to respondents through a routine background check. While section 1203.4 results in an expungement of a conviction, it does not release the offender from all consequences of a conviction. (People v. Sharman (1971) 17 Cal.App.3d 550, 552.) In particular, it does not seal the offender’s record of conviction. (Id. at pp. 552-553.) “The fact information in the records is accessible to the public, of itself, is not a penalty or disability.” (Id. at p. 552.)
Contrary to Holstein’s argument, the court did not err in addressing this issue in a motion in limine. The court exercised its discretion to consider the issue before trial as the issue was one that could dispose of Holstein’s claims as a matter of law. Under the circumstances, the court properly considered the issue in the interests of judicial economy.
Indeed, the “Live Scan” that respondents obtained from the Department of Justice showed Holstein’s conviction and the expungement pursuant to section 1203.4 As a consequence, the County would not have hired him to work in the IT department where he would have had access to the computer system.
The court in People v. Field (1995) 31 Cal.App.4th 1778, 1787 further explained the limits of expungement under section 1203.4. “Expungement under section 1203.4... does not obliterate a conviction for all purposes. For example, such an expunged conviction must be disclosed in applying for public office or license and may be considered by licensing authorities. (Citations.) Also, records of a conviction expunged under section 1203.4 are accessible to the public. (Citations.)” (People v. Field, supra, 31 Cal.App.4th at p. 1787.) Consequently, any action by respondents which resulted in Alkar learning that Holstein had suffered a conviction did not violate Holstein’s right to privacy. His conviction was public information; any disclosure of that fact by respondents, was simply not actionable as it was not the dissemination of confidential information. (See Civ. Code, § 1798.53 [protecting against disclosure of information not otherwise public by a person other than an employee of a government agency acting solely in his or her official capacity]; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 [right to privacy encompasses interest in precluding dissemination of confidential information].)
Holstein’s reliance on Buzayan v. City of Davis (E.D.Cal., Feb. 26, 2009, No. 2:06-cv-1576-MCE-DAD) 2009 U.S. Dist. LEXIS 15217 (Buzayan) is misplaced. In Buzayan, the court considered whether the plaintiffs stated a claim for liability under Civil Code section 1798.53 based on the district attorney’s dissemination of the contents of tape recordings, taken at the plaintiffs’ home by the police department, and provided to an entity that ultimately published an article about them. (Id. at p. 18.) The court determined that plaintiffs could demonstrate a claim if they showed the defendants disclosed records maintained by the district attorney’s office while the office was acting as a state agency and the defendants’ conduct was not within the scope of their official capacity. (Ibid.)
Here, Holstein has not shown that respondents disseminated any records about him; rather the evidence showed simply that Willihnganz relayed to Alkar that a temporary employee had been recognized by the probation department and inquired whether Alkar had performed a background check. Thus, Willihnganz did not reveal any information about Holstein’s criminal background, and in any event was acting solely in his official capacity as an employee of the County. (See Civ. Code, § 1798.53.)
Holstein contends there is case law to support his theory that public information about a criminal record can become protected from dissemination by the passage of a time period during which the individual has lived a life of rectitude, citing, inter alia, Melvin v. Reid (1931) 112 Cal.App. 285, Kapellas v. Kofman (1969) 1 Cal.3d 20, and Briscoe v. Reader’s Digest Assn., Inc. (Briscoe) (1971) 4 Cal.3d 529. But this notion was rejected in Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 692-693 in which our high court overruled Briscoe. Holstein also cites Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145 and Loder v. Municipal Court (1976) 17 Cal.3d 859 for the proposition that arrest records are protected from dissemination by privacy laws. These cases have no relevance to the disclosure of conviction records.
B. Nonsuit Motions
Following the court’s dismissal of Holstein’s invasion of privacy causes of action, the case proceeded to trial on the remaining causes of action for intentional and negligent infliction of emotional distress. Following the parties’ presentation of evidence at trial, respondents moved for nonsuit. The County contended that Holstein’s causes of action for negligent and intentional infliction of emotional distress were common law claims that were precluded under the Government Claims Act, Government Code, section 810 et seq.
Pursuant to Government Code section 815, a public entity is not liable for tort injuries arising out of an act or omission of the public entity, except as provided by statute. (Gov. Code, § 815; Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) Holstein argues that Government Code section 815 is inapplicable because respondents are liable under Government Code section 815.6 which imposes liability on a public entity when it is under a mandatory duty under a specific statute to protect against the risk of a particular type of injury. (Gov. Code, § 815.6; Becerra v. County of Santa Cruz, supra, 68 Cal.App.4th at p. 1458.) He points to Evidence Code section 669 as imposing liability under a negligence per se standard. But that statute, too, requires that he establish that respondents violated a statute or regulation that caused his injury. Holstein failed to meet that burden because respondents did not disseminate any information proscribed by statute. As the trial court found, the County did not disseminate information from a criminal record so the statutes relied upon by Holstein – Penal Code section 13300 (limiting dissemination of local summary criminal history information) and Penal Code section 11076 (criminal offender record information to be disseminated only to agencies authorized by statute) were inapplicable. In sum, the trial court properly granted respondents’ motions for nonsuit since Holstein failed to show that they breached a statutory duty.
Under the negligence per se doctrine which is codified at Evidence Code section 669, negligence is presumed if four elements are met including that the defendant violated a statute or regulation. (Evid. Code, § 669, subd. (a)(1).)
I. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.