Current or Former Employees of PG&E v. Superior Court CA3 ( 2022 )

Filed 2/2/22 Current or Former Employees of PG&E v. Superior Court CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
CURRENT OR FORMER EMPLOYEES OF
PACIFIC GAS & ELECTRIC COMPANY, C092045
Petitioners, (Super. Ct. No. 20CF01422)
v.
THE SUPERIOR COURT OF BUTTE COUNTY,
Respondent;
THE PEOPLE et al.,
Real Parties in Interest.
Petitioners are 22 current or former employees of Pacific Gas & Electric Company
(PG&E) who seek to have their names redacted from grand jury transcripts of the Camp
Fire investigation when released to the public. The Camp Fire, caused by a failure of
PG&E’s transmission equipment, devastated Butte County, killing 84 people and
1
destroying the town of Paradise. The grand jury investigation led to the indictment of
PG&E but none of its employees. The superior court granted a motion to redact the
names of local PG&E employees mentioned in the transcripts, finding that “evidence in
the record of threats and potential and actual violence against [PG&E’s] employees,
combined with the devastating impact of the Camp Fire on the Butte County community,
establishes a substantial probability that local employees will be at risk if their names are
publicized in connection with the grand jury proceedings.” The court did not find “such a
substantial probability as to employees outside this area.” Petitioners are out-of-area
PG&E employees whose names are mentioned in the transcripts.
We will deny the petition and affirm the superior court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Early on the morning of November 8, 2018, the Camp Fire ignited in Butte
County. Within hours, 84 people had died in the fire and the town of Paradise was
destroyed.
On March 17, 2020, the grand jury in Butte County indicted PG&E alleging 84
counts of involuntary manslaughter and one count of unlawfully causing a fire.1 On the
same day, PG&E agreed to plead guilty to the indictment.
On May 28, 2020, PG&E submitted a memorandum to the superior court urging
redaction of the names of PG&E employees mentioned in the grand jury transcripts.
PG&E represented that the district attorney’s office agreed that there was a risk to the
safety of PG&E employees and redactions were appropriate. PG&E submitted a Power
Point presentation cataloging threats against PG&E employees in recent years, an Excel
workbook of such threats and violence from September 2010 through March 2020, and
an excerpt of the grand jury transcripts with proposed redactions.
1 On June 15, 2020, the superior court ordered sealed the last two pages of the
indictment listing the names of grand jury witnesses.
2
The Power Point presentation consisted of 22 communications via e-mail, Twitter,
text, Facebook and webpages from November 2018 to March 19, 2020, making threats
and expressing hostile and violent sentiments towards PG&E and its employees.
For example, the first e-mail on November 13, 2018, to former PG&E chief
executive officer Geisha Williams read: “I was relieved earlier this year when PG&E
was finally allowed to turn off electricity when dangerous weather conditions were going
to occur. This is a common sense idea. Many of us were warned by PG&E on Nov 7
2018 that this was imminent, yet it was never shut down. Conditions obviously
demanded this, yet your company took NO ACTION. In light of this, I would like to
know the name(s) of the person(s) responsible for NOT turning off electricity on the
morning of Nov 8, 2017, in Butte county. This person(s) is/are responsible for the
MURDER of over 200 people and the destruction of over 7000 (SEVEN
THOUSAND!!!!) homes. This BLATANT DISREGARD for public safety rises to the
level of criminal activity. I demand that the people that made this decision to [sic] be
held responsible. I’m sure PG&E will be [sic] pay financially for damages, but this will
do nothing for all of the wonderful people you murdered. Please reply with the names of
those responsible so they can be held personally responsible, and true reconciliation can
begin.”
The Excel workbook exhibit collected more than 100 incidents of threats,
harassment and assaults directed at PG&E employees throughout Northern California.
This compilation included incidents where the Camp Fire was specifically mentioned:
(1) a November 25, 2018 hostile letter to Williams in San Francisco about the Camp Fire;
(2) a January 18, 2019 e-mail from a customer to PG&E’s contact center in San Leandro
blaming PG&E for starting the fire in Paradise and “hoping that we all burn to the
ground”; and (3) a January 30, 2019 threat posted on Facebook in San Francisco stating
that every PG&E building should be burned down and “PG&E employees need to go to
prison for all of the people that died in the Paradise fire.”
3
On May 22, 2020, the trial court ordered that the grand jury transcripts be
maintained under seal until June 16, 2020, to provided PG&E and the People sufficient
time to review the transcripts and propose redactions.
On May 29, 2020, PG&E applied for an order under California Rules of Court,
rule 2.551 to seal the Power Point presentation and Excel spreadsheet.2 The trial court
signed the order that day.
On June 1, 2020, the People, represented by the Butte County District Attorney,
opposed PG&E’s sealing submission, contending that PG&E could not meet the
requirements of rule 2.550 for sealing records and requesting that only the names of
PG&E employees who lived and worked in the Butte County area be redacted.
In reply, PG&E argued that the parties agreed that threats and violence against
PG&E employees were real and PG&E employees had been attacked throughout
Northern California. PG&E maintained there was no basis to conclude the risk was
limited to Butte County.
On June 1, 2020, former and current PG&E employees filed a motion under rules
2.550 and 2.551 to redact their names and personal identifying information from the
grand jury transcripts.3
Movants stated that the PG&E employees mentioned in the transcripts fell into
eight categories. The first category consisted of employees who worked at or had
responsibility for PG&E’s Table Mountain district close to the time of the Camp Fire or
for recent inspections. The equipment failure that caused the Camp Fire was located in
2 All undesignated references to rules are to the California Rules of Court.
3 The superior court permitted nonparty PG&E employees to submit a brief and
supporting papers by sending the papers electronically to PG&E’s counsel, who
forwarded them to the court and the district attorney, after which counsel for the
employees filed the papers with the court.
4
PG&E’s Table Mountain district. The employees in this category “had direct
responsibilities related to inspection, maintenance, or engineering of power lines in Butte
County, specifically transmission towers on the Caribou-Palermo line where the fire was
determined to have started.” The equipment that failed and caused the fire was a “C
hook,” a component of a transmission tower on the Caribou-Palermo line in the Table
Mountain district. Movants argued that employees who worked at Table Mountain had a
higher risk that a person reviewing the grand jury transcript would incorrectly assume
these employees were responsible for the Camp Fire, even though they were not charged
with criminal conduct.
The second category consisted of employees who had a hands-on role in the
policies, planning, asset management, or engineering for PG&E’s transmission structure.
Movants argued that “[t]he public may view these employees as ultimately responsible
for the policies and decisions (such as not replacing transmission towers in the Feather
River canyon) that potentially contributed to the Camp Fire, despite the fact that none of
them had any criminal liability.” Movants further argued that “[w]hile it is true that not
all members of this group are local to Butte County, this should not matter. Threats are
not local -- the persons making the threats do not announce their location, and anyone can
be threatened from anywhere. Violence is not local. It has been widespread, and with
the internet it is easy to track anyone down.”4
4 The other six categories were PG&E employees: (1) designated as most
knowledgeable about a policy or engineering issue; (2) knowledgeable about the 2010
San Bruno gas line explosion; (3) knowledgeable about Table Mountain inspections
between the 1980s and 2005; (4) who travel to different areas of the state and may have
done work on the Caribou-Palermo power line unrelated to the fire and its cause; (5) who
may have experienced equipment or hook failure on other power lines and made analyses
or safety recommendations prior to the fire; and (6) who assisted PG&E and CalFire in
the fire investigation.
5
The motion was supported by declarations from three attorneys representing
certain current and former PG&E employees who were witnesses or potential witnesses
in the Camp Fire investigation.
Attorney Britt Evangelist declared that she represented a number of current or
former PG&E employees in low- to mid-supervisory roles in the company, who were
witnesses or potential witnesses in the Camp Fire investigation. Evangelist grouped her
clients into two categories that corresponded to the first two of the eight categories
described in the motion. She described seven clients in the first category, all of whom
lived in or near the area affected by the Camp Fire. Evangelist described three clients in
the second category. The geographic location of these employees was not included in
their descriptions.
Evangelist declared that the majority of her clients in the first category “who live
and work in the Table Mountain and/or Camp Fire region have either experienced
harassment of some sort firsthand or have knowledge of close co-workers or family
members who have.” According to Evangelist, these PG&E employees had taken steps
to hide that they work for PG&E, only telling friends and family and not wearing their
PG&E uniforms in restaurants and public places. One client did not use his company
vehicle for a year after the fire to avoid harassment. Evangelist set forth specific
examples of harassment experienced by these local PG&E employees including: cars
slowing down for the occupants to yell insults and obscenities; a confrontation with the
driver of a pickup truck where the client feared for his safety; neighbors and others
making obscene gestures at her clients when they drove PG&E vehicles; a PG&E truck
being egged in front of an employee’s home; signs in stores or restaurants that PG&E
employees were not welcome; construction or other work requiring a police or security
escort on the property of certain customers; and the driver of a vehicle coming on to a
PG&E construction site, pointing a gun out the window, firing and driving off.
6
Evangelist declared that her clients in the second category “have not experienced
harassment firsthand because of their employment with PG&E,” but “are aware of this
phenomenon via media reports and company bulletins” and have “expressed a genuine
concern that they and their family could be targeted for harassment in the future should
the transcripts containing their names be released.”
Attorney Miranda Kane declared that her firm represented 26 current or former
PG&E employees in connection with the Camp Fire grand jury investigation. The
majority of her clients had nonsupervisorial positions at PG&E’s Table Mountain
substation or supported it as part of their jobs and were responsible for inspection,
maintenance and repair of PG&E’s transmission lines, including one client who
conducted the most recent aerial inspection of the Caribou-Palermo line where the fire
started. Most of Kane’s clients lived in the communities they served. Since the Camp
Fire, many of her clients had experienced harassment and mistreatment or heard of those
who had, due to the fact that they work for PG&E. Because they wear PG&E uniforms
and drive company trucks, Kane’s clients had received obscene or threatening gestures
while doing their jobs or had been approached in public places and verbally abused.
Attorney Alexander Gourse declared that his firm represented 10 current or retired
PG&E employees designated as witnesses by the district attorney. Four of the firm’s
clients had testified to “hook and/or suspension plate failures” similar to the hardware
failure that led to the Camp Fire. Three clients were subject-matter experts who
conducted tests of such hardware failures, two of which also worked with PG&E and
CalFire to determine problems with PG&E’s tower and line infrastructure after the Camp
Fire. One was a longtime PG&E employee who was copied on group e-mails but did not
work or have knowledge of the issue described in the e-mails. Two clients worked on the
Caribou-Palermo line between 2012 and 2016 but did not work at the location or on the
hardware that failed and caused the Camp Fire. One client worked in PG&E’s finance
department forecasting expenditures and comparing budget allocations, but was not
7
involved in prioritizing expenditures related to maintenance or inspection of
infrastructure.
Gourse stated that one of his PG&E employee clients had been subject to
harassment and threats from members of the public due to affiliation with PG&E. This
client reported an incident in Napa, California associated with a public safety power
shutoff, where a customer held a PG&E employee at gunpoint. A customer had also
called Gourse’s client an “SOB” and asked how he would like it if his house burned
down in the middle of the night.
On June 1, 2020, the superior court conducted a hearing with counsel for the
People and PG&E regarding PG&E’s redaction request. At the outset, the court indicated
that its tentative ruling was to grant the request as to the names of employees who live
and work in the Butte County area and deny it as to other employees. After argument,
the court confirmed the tentative ruling, observing that “as to the non local [sic] PG&E
employees, a substantial probability of threats or violence, in the Court’s view, has not
been shown. The record shows that a significant majority of threats or acts of violence
directed at non local [sic] employees had nothing to do with the 2018 Camp Fire. Also,
many of those threats or violence were directed at individuals whose names are already
known to the public.”
On June 3, 2020, the superior court issued a written order granting in part and
denying in part PG&E’s motion to redact the names of employees mentioned in the grand
jury transcripts. The court made findings required by rule 2.550 to seal records. 5 The
5 Rule 2.550(d) provides:
“The court may order that a record be filed under seal only if it expressly finds
facts that establish:
“(1) There exists an overriding interest that overcomes the right of public access to
the record;
“(2) The overriding interest supports sealing the record;
8
court found: (1) “the safety of witnesses can be an ‘overriding interest’ that may justify
sealing or redacting otherwise public records, and . . . that there is an overriding interest
in preventing threats of violence that are so extreme as to threaten the safety of the
recipient”; (2) “the safety of witnesses supports certain redactions in this case”; (3)
“evidence in the record of threats and potential and actual violence against the
defendant’s employees, combined with the devastating impact of the Camp Fire on the
Butte County community, establishes a substantial probability that local employees will
be at risk if their names are publicized in connection with grand jury proceedings”; (4)
“such a substantial probability [was not established] as to employees outside this area”;
(5) “limiting the redactions to only the names of local employees at greatest risk of
threats and violence is narrowly tailored”; and (6) “redacting only the names of local
employees is the least restrictive means available to protect these employees from threats
and violence.”
The superior court ordered that the names of PG&E employees who testified or
were mentioned in the grand jury transcripts residing in Butte, Yuba, Glenn, Tehama,
Sutter, and Plumas counties be redacted and replaced with the words “Witness” or
“Employee” and an agreed-upon number.
On June 5, 2020, petitioners attempted to file an ex parte application for leave to
intervene, and for the court to vacate the sealing order and issue a modified order
redacting all employee’s names, or, in the alternative, to stay disclosure pending appellate
review. In a supporting declaration, counsel for petitioners stated his understanding that
the grand jury transcripts were scheduled to be publicly disclosed on June 16, 2020. The
“(3) A substantial probability exists that the overriding interest will be prejudiced
if the record is not sealed;
“(4) The proposed sealing is narrowly tailored; and
“(5) No less restrictive means exist to achieve the overriding interest.”
The rule is derived from NBC Subsidiary (KNBC-TV), Inc. v. Superior Court
(1999) 20 Cal.4th 1178, 1217-1218 (NBC Subsidiary).
9
court refused to accept the ex parte application because petitioners were not parties.
PG&E declined to file the application on petitioners’ behalf.
On June 9, 2020, petitioners filed in this court an application to file under seal a
list of their names and a certificate of interested parties, along with redacted versions of
their petition for writ of mandate and request for an emergency stay of the June 16, 2020
release of the grand jury transcripts.
On June 15, 2020, we issued an order granting petitioners’ application to file these
documents under seal and struck the redacted documents filed on June 9, 2020.
Petitioners thereafter filed unredacted versions of the documents under seal, as well as
redacted versions in the public file. We also issued a stay of public release of the grand
jury transcripts pending further order of this court. We requested preliminary opposition
from the district attorney on behalf of the People, gave leave to the Attorney General to
file a separate preliminary response, and extended time for PG&E to file a preliminary
response.
On July 29, 2020, after receiving preliminary briefing from the People, petitioners
and PG&E, as well as allowing amici curiae TEGNA Inc. and Dow Jones & Company,
Inc. to file a letter brief in support of the People, we issued an order to show cause why
the relief sought by petitioners should not be granted. The People and PG&E filed
written returns to the order and petitioners replied.
DISCUSSION
Standard of Review
Petitioners contend that the standard of review of the superior court’s sealing order
is de novo while the People advocate for an abuse of discretion standard. These dueling
positions reflect a split of authority.
In In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, the court held
the correct standard of review of an order under rule 2.550 (formerly rule 243.1) is that
“the factual determinations made by the trial court must be upheld if they have the
10
support of substantial evidence, and [the] ultimate decision to unseal must be sustained
unless we decide that the trial court abused the discretion granted it” by the rule.
(Providian, supra, at p. 299.) “ ‘The appropriate test for abuse of discretion is whether
the trial court exceeded the bounds of reason.’ [Citation.]” (Ibid.) “It is also clear that if
a trial court exercises its discretion and orders a record sealed, that decision is made after,
and in light of, the factors enumerated” in rule 2.550(d). (Providian, supra, at p. 300.)
In People v. Jackson (2005) 128 Cal.App.4th 1009 (Jackson), the court expressed
doubt that Providian’s abuse of discretion standard for an order to unseal documents
regarding trade secrets was appropriate for documents in the prosecution of the defendant
for child molestation. (Id. at p. 1020.) The court concluded that “cases implicating First
Amendment rights are subject to independent review,” in which the appellate court
exercises its independent judgment after “an independent examination of the whole
record” to determine whether the facts satisfy the rule of law. (Id. at p. 1021.) Further,
the Jackson court said that, while independent judgment is not the same as de novo
review, where the trial court did not take testimony and determine the credibility of
witnesses, the appellate court reviews the same record as the trial court, and “[i]n these
circumstances, independent review is the equivalent of de novo review . . . .” (Ibid.)
In Oiye v. Fox (2012) 211 Cal.App.4th 1036, the court rejected an attempt to
distinguish the independent review standard in Jackson as applicable only where First
Amendment rights are involved. (Id. at p. 1067.) The court said that the decision in
Jackson to conduct independent review was “based on the state of the record, where no
declarations were presented regarding the propriety of the sealing order, and not on the
First Amendment.” (Ibid.)
In Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471(Overstock), the court disagreed with Oiye’s analysis, holding that it was apparent the
court in Jackson employed independent review “because the sealed records rules are
grounded in the First Amendment right of access.” (Id. at pp. 491-492.) The court said,
11
however, it “need not . . . resolve whether Providian or Jackson most accurately sets
forth the standard of review for orders sealing court records,” because in an order denying
sealing “courts have consistently employed the approach articulated in Providian.” (Id.
at p. 492.)
Here, as in Overstock, the petition for writ of mandate seeks to reverse the portion
of the superior court’s order denying sealing. (Overstock, supra, 231 Cal.App.4th at
p. 492.) Therefore, “we review the ultimately discretionary decision to deny sealing by
inquiring whether substantial evidence supports the trial court’s express or implied
findings that the requirements for sealing are not met.” (Ibid.)
Standing
The People preliminarily argue that petitioners lack standing because they are not
“ ‘aggrieved’ ” by the superior court’s order denying the request to redact the names of
out-of-area PG&E employees mentioned in the transcripts.
This is the requirement for standing to appeal under Code of Civil Procedure
section 902. For purposes of an appeal of a sealing order under section 902, “a party is
aggrieved if an order ‘injuriously affects[s]’ its rights or interests. [Citation.] The injured
interest must be ‘recognized by law’ [citation], and the injury must be ‘immediate,
pecuniary, and substantial’; it cannot be nominal or be ‘ “ ‘a remote consequence of the
judgment.’ ” ’ [Citation.]” (Six4Three, LLC v. Facebook, Inc. (2020) 49 Cal.App.5th
109, 115; see also County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737; Serrano v.
Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1026-1027.) “Section
902 is a remedial statute, so courts construe it liberally, resolving doubts in favor of
standing. [Citation.]” (Six4Three, supra, at p. 115.)
We think that petitioners satisfy this standard given the evidence in the record that
individuals identified as PG&E employees involved in the Camp Fire have been subject
to threats and harassment that affects their safety and consequently ability to earn a
livelihood. (See In re Clergy Cases I (2010) 188 Cal.App.4th 1224, 1233 [in lawsuits
12
alleging sexual abuse claims against Franciscan order of monks, nonparty individual
friars had standing to appeal disclosure of their confidential psychological evaluations,
which would affect their “personal and pecuniary interests”].)
However, the People’s standing argument is inapposite because this case comes to
us under our original jurisdiction over a petition for writ of mandate. (Cal. Const.,
art. VI, § 10; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177.) The
standard for standing to appeal is not identical to that required for mandamus. (See In re
Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 926-927 [person without sufficient
interest for intervention has standing to petition for writ of mandate].) The People do not
assert that mandamus is not a proper method for petitioners to challenge the superior
court’s sealing order.
“ ‘Code of Civil Procedure section 1086 expresses the controlling statutory
requirements for standing for mandate: “The writ must be issued in all cases where there
is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be
issued upon the verified petition of the party beneficially interested.” ’ [Citation.]”
(League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 984-985;
Synergy Project Management, Inc. v. City and County of San Francisco (2019)
33 Cal.App.5th 21, 30.) Despite the reference to “the party” in the statute, “it is well
established that one who petitions for an extraordinary writ need not have been a party to
the action below if the one seeking relief demonstrates a beneficial interest in the
litigation or is affected by the outcome. [Citation.]” (League of California Cities, supra,
at p. 985.) “ ‘The requirement that a petitioner be “beneficially interested” has been
generally interpreted to mean that one may obtain the writ only if the person has some
special interest to be served or some particular right to be preserved or protected over and
above the interest held in common with the public at large.’ [Citation.] The petitioner’s
interest must be direct and substantial. [Citation.] Writ relief is not available if the
petitioner gains no direct benefit from the writ’s issuance, or suffers no direct detriment
13
from its denial. [Citation.]” (Ibid.)
Petitioners assert that disclosure of their names in the grand jury transcripts will
expose them to threats and violence like that experienced by PG&E employees living and
working in the area of the Camp Fire. This is sufficient for standing as petitioners assert
a direct and substantial interest in protecting their safety that they contend is jeopardized
by the superior court’s order disclosing their names.
Sealing Order
Petitioners contend that “[t]he superior court’s decision is based entirely on the
incorrect and unsupported premise that because the 22 petitioners live and work beyond
the immediate surroundings of Butte County, they do not face the same danger as the
locals.” We disagree. Substantial evidence supports the superior court’s finding that the
record of threats and violence against local employees established a substantial
probability that disclosure of their names in connection with the Camp Fire would put
their safety at risk, but did not establish a substantial probability of this risk to out-of-area
employees.
“[Penal Code] section 938.1, subdivision (b), provides that when an indictment is
returned, transcripts of testimony taken before the grand jury are to be delivered to the
defendant and thereafter filed for public access,” subject to a motion to seal.6
(McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1178 (McClatchy);
see also Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1123 (Daily
6 Penal Code section 938.1, subdivision (b), provides: “The [grand jury] transcript
shall not be open to the public until 10 days after its delivery to the defendant or the
defendant’s attorney. Thereafter the transcript shall be open to the public unless the court
orders otherwise on its own motion or on motion of a party pending a determination as to
whether all or part of the transcript should be sealed. If the court determines that there is
a reasonable likelihood that making all or any part of the transcript public may prejudice
a defendant’s right to a fair and impartial trial, that part of the transcript shall be sealed
until the defendant’s trial has been completed.”
14
Journal).) “The grand jury proceedings themselves are not open to the public and no
public right of access attaches, but once an indictment has been returned [Penal Code]
section 938.1, as distinguished from federal procedure, implicitly recognizes the public’s
qualified right of access to the record of those proceedings.” (Press-Enterprise v.
Superior Court (1994) 22 Cal.App.4th 498, 505, fn. 5.) “Despite the qualified right of
access under [Penal Code] section 938.1, ‘[t]ranscripts of grand jury testimony, unlike
testimony before a court in pretrial proceedings, are not public records.’ ” (Alvarez v.
Superior Court (2007) 154 Cal.App.4th 642, 654 (Alvarez), quoting Daily Journal,
supra, at p. 1132.)
The Legislature’s enactment of Penal Code section 938.1 was not intended “to
abrogate traditional concerns regarding disclosure of grand jury testimony.” (Daily
Journal, supra, 20 Cal.4th at p. 1132.) Where, as here, there is to be no trial, “the
innocently accused and even witnesses are more vulnerable to a risk of adverse
consequences ranging from reputational injury to retaliation.” (Ibid.; see also McClatchy,
supra, 44 Cal.3d at p. 1174 [“ ‘[I]f preindictment proceedings were made public . . .
witnesses who appeared before the grand jury would be less likely to testify fully and
frankly, as they would be open to retribution as well as to inducements’ ”], quoting
Douglas Oil Co. v. Petrol Stops Northwest (1979) 441 U.S. 211, 219; In re Biaggi
(2d Cir. 1973) 478 F.2d 489, 491 [the grand jury secrecy tradition “rests on a number of
interests” including “protection of witnesses against reprisal”]; State of Illinois v. F.E.
Moran, Inc. (7th Cir. 1984) 740 F.2d 533, 540 [purposes served by grand secrecy include
“protecting witnesses both from retaliation and from undeserved public obloquy when
they are haled before the grand jury and questioned vigorously, maybe even browbeaten,
without counsel present” and “the reputations of other persons—persons whom the
witness might have mentioned in his grand jury testimony—may be at stake if his grand
jury testimony is disclosed”], superseded by rule on another point as recognized by In re
United States (7th Cir. 2005) 398 F.3d 615, 619.)
15
Notwithstanding such statement of principle, there is a limited universe of
California cases where grand jury transcripts or other court records in a criminal
proceeding have been sealed to protect witnesses or the innocent.
In Jackson the indictment, search warrant affidavits and other court records were
ordered sealed. (Jackson, supra, 128 Cal.App.4th at p. 1014.) The Court of Appeal
affirmed the orders with the exception of the indictment where it ordered only that the
names of unindicted coconspirators be redacted. (Ibid.) The court found that sealing the
search warrant affidavit was justified to protect minors from the trauma and
embarrassment of disclosure of the details of the defendant’s alleged crimes. (Jackson,
supra, at p. 1023; NBC Subsidiary, supra, 20 Cal.4th at pp. 1206-1207.) The trial court
sealed the grand jury transcripts for the same reason. (Jackson, supra, at p. 1027.) In
addition, the appellate court noted “the transcript contains a substantial amount of
testimony involving criminal allegations against numerous unindicted coconspirators,
whose privacy interests also would be violated.” (Ibid.) The court cited U.S. v. Smith
(3d Cir. 1985) 776 F.2d 1104, 1114, which it said “affirm[ed] [the] district court’s sealing
of a bill of particulars that contained the names of unnamed coconspirators, where
revealing the names of the coconspirators would have been career threatening.”
(Jackson, supra, at p. 1027.) The court, however, concluded that the indictment could be
unsealed with the names of unindicted coconspirators redacted. (Id. at p. 1029.) In sum,
the court determined that sealing “protects the privacy interests of minors and unindicted
purported coconspirators . . . .” (Id. at p. 1028.)
Petitioners admit they are not unindicted coconspirators, but argue they deserve
similar protection since they were never charged with a crime but might be viewed as
wrongdoers unless their names are redacted. However, we do not read Jackson to hold
that the names of unindicted coconspirators are automatically redacted from grand jury
transcripts released under Penal Code section 938.1 to protect their privacy. Unlike the
bill of particulars in U.S. v. Smith referenced in Jackson, grand jury transcripts contain
16
sufficient contextual detail for the public to understand the role of a particular witness or
person mentioned by a witness. (See U.S. v. Kott (C.D.Cal. 2004) 380 F.Supp.2d 1122,
1125 [distinguishing U.S. v. Smith in unsealing indictment, search warrant and
application because “a search warrant affidavit will, of necessity, contain detailed
explanations of the suspected involvement of all persons named in the affidavit” and
“[t]he danger of unfounded character assassination in this context” is not a compelling
interest in maintaining secrecy of documents].) In any event, the issue raised by the
petition, as well the focus of the evidence presented to the superior court, is whether
petitioners’ safety was at risk from disclosure of their names in the transcripts.
Seemingly more pertinent to this question are two cases involving the same
murders: People v. Maciel (2013) 57 Cal.4th 482 (Maciel) and People v. Valdez (2012)
55 Cal.4th 82 (Valdez). In both cases, the defendants contended that the trial court erred
in entering orders protecting certain witnesses’ identifying information. (Maciel, supra,
at p. 506; Valdez, supra, at p. 101.) The trial court initially ordered redaction of the
names of 13 witnesses, as well as the identifying information of a 14th witness, from
grand jury transcripts, finding “ ‘overwhelming good cause’ ” for these orders “based on
the prosecution’s showing that the life of anyone who testified would be ‘extremely and
seriously in danger.’ ” (Valdez, supra, at p. 101.) A subsequent judge ordered that “the
previous court-ordered redactions of the grand jury proceeding would remain in effect,”
based on “ ‘good cause having been shown as to threats and/or possible danger to the
safety of witnesses.’ ” (Id. at p. 102; Maciel, supra, at p. 507.) The California Supreme
Court rejected defendants’ various claims of error regarding nondisclosure of witnesses’
identities. (Valdez, supra, at pp. 101-128; Maciel, supra, at pp. 506-510.)
Maciel and Valdez involved the shooting deaths of three adults and two children
(ages five years and six months) ordered and carried out by members of the Mexican
Mafia. (Maciel, supra, 57 Cal.4th at pp. 488-489; Valdez, supra, 55 Cal.4th at p. 94.)
The prosecution presented evidence that members of the Mexican Mafia take a “ ‘blood
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oath’ ” that “ ‘death is the only way out’ ” and those who leave the gang are eventually
killed, even 10 or 15 years later. (Valdez, supra, at p. 94.) A former member was the
principal target and the other victims included his sister and two of her children. (Valdez,
supra, at p. 94; Maciel, supra, at pp. 488-489.) The member who ordered the murder was
well aware that the former member was living with his sister and her children and
instructed gang members to leave no witnesses. (Valdez, supra, at p. 94; Maciel, supra,
at p. 489.)
Petitioners cite Maciel and Valdez as support for their contention that protecting
witness safety is an overriding interest that supports a sealing order under rule
2.550(d)(1), (2). The People do not dispute “that avoidance of threats and violence can
constitute an overriding interest” and have “agreed that there was an increased likelihood
of a substantial probability of threats and violence . . . as to current and former PG&E
employees working and living in the Butte County area.” However, petitioners do not
assert that there is any evidence of the extreme and serious danger to a PG&E employee
witness anywhere comparable to that which existed for a witness who testified against the
Mexican Mafia, a criminal gang whose members were willing to murder an innocent
mother and her children. (Maciel, supra, 57 Cal.4th at p. 489.) Thus, Maciel and Valdez
furnish no guidance in this instance as to whether the superior court’s findings were
supported by substantial evidence.7 We turn to that question now.
It is not a close question. Petitioners’ own evidence establishes that the trial
court’s order was supported by substantial evidence. The declaration petitioners
7 We note that in Alvarez the court concluded that the lesser standard of
“ ‘reasonable likelihood’ ” of prejudice was the correct standard to apply to unsealing
grand jury transcripts under Penal Code section 938.1, not “ ‘substantial probability.’ ”
(Alvarez, supra, 154 Cal.App.4th at p. 645.) However, the “ ‘reasonable likelihood’ ”
standard is applied to protect the defendant’s right to fair trial, which was not an issue in
this case given PG&E’s guilty plea. (Id. at p. 656; Pen. Code, § 938.1, subd. (b).)
Petitioners have not suggested that the reasonable likelihood standard applies in this case.
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submitted from Evangelist detailed incidents of harassment and threats received by her
PG&E employee clients who lived in the community affected by the Camp Fire.
Evangelist admitted that her nonlocal PG&E employee clients had not experienced such
harassment and threats. Rather, they were concerned because of incidents reported in the
media and company bulletins. Kane stated in her declaration that most of her PG&E
employee clients were local and many had been subjected to harassment and
mistreatment from members of the community due to the fact her clients wore PG&E
uniforms and operated PG&E vehicles. Gourse did not identify any of his clients as
local. He described two incidents of harassment reported by one client that had occurred
since the Camp Fire: one incident involved a PG&E employee being held at gun point
that occurred in Napa because of a planned power outage and another incident involved a
hostile conversation that may have included an indirect reference to the Camp Fire.
PG&E’s exhibit compiling incidents from 2010 through 2020 included only three
reports of hostile communications and threats made outside the local community
mentioning the Camp Fire. To be sure, of the many incidents since the Camp Fire
included in the exhibit, only 13 took place in the counties included in the superior court’s
order, but at least four of those involved gunshots at or in the vicinity of PG&E vehicles,
and one an encounter with a person who threw PG&E gear in the garbage and caused a
PG&E crew to evacuate the area and call the police when the person returned with a gun.
Incidents of post-Camp Fire harassment and violence, not just threats, against PG&E
employees outside the affected area were not connected to the fire.
With respect to PG&E’s Power Point of electronically communicated threats,
petitioners have not provided any evidence that these messages, some of which involved
threats to murder named PG&E employees, led to any other conduct that posed a risk to a
PG&E employee. One message was from an individual who claimed to have collected
and intended to publish the personal cell phone numbers of PG&E executives. This
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customer’s ire was provoked by a public safety power outage that personally affected the
customer, not the Camp Fire.
In sum, the evidence showed that local PG&E employees had direct experience of
harassment and violence from members of the community affected by the fire. PG&E
employees who lived outside the area did not have similar experiences. While there were
threats regarding the Camp Fire directed at out-of-area employees, they were few in
number, and incidents of harassment and violence against PG&E employees outside the
area were not connected to the Camp Fire. The evidence in the record supports the
conclusion that it is the proximity of local PG&E employees to members of the
community affected by the Camp Fire that creates the safety risk.
We conclude there was substantial evidence supporting the superior court’s
finding of a substantial probability of risk to the safety of local PG&E employees if their
names were disclosed in the Camp Fire grand jury transcripts but not for out-of-area
employees. Therefore, the trial court did not abuse its discretion in framing the sealing
order in this manner.8 (Overstock, supra, 231 Cal.App.4th at p. 492.)
8 Since we have determined that the evidence in the record submitted by PG&E and
petitioners, and considered by the superior court, supported the sealing order, we reject
PG&E’s contention that “procedural errors,” e.g., the exclusion of petitioners’ counsel
from the hearing on the sealing order and the court’s refusal to accept petitioners’
posthearing papers, is another basis on which to reverse the court’s order.
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DISPOSITION
The petition for writ of mandate is denied and the order to show cause is
discharged. The stay issued by this court on June 15, 2020, is vacated upon issuance of
the remittitur. The parties shall bear their own costs in this proceeding. (Cal. Rules of
Court, rule 8.493(a)(1)(B).)
/s/
RAYE, P.J.
We concur:
/s/
RENNER, J.
/s/
KRAUSE, J.
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