Skulason v. Cal. Bureau of Real Estate

of issues from its website violated a mandatory duty arising out of sections 1203.4 and 1203.4a, Labor Code section 432.7, and her constitutional right to privacy. We are not persuaded.

We begin by discussing sections 1203.4 and 1203.4a, which allow people convicted of crimes to obtain a dismissal of their convictions under certain circumstances. ( People v. Lewis (2006) 146 Cal.App.4th 294 , 297, 53 Cal.Rptr.3d 40 .) Section 1203.4 applies to those who have successfully completed probation, while section 1203.4a applies to those convicted of

the statement of issues posted on the Bureau's website. But just because Labor Code section 432.7 may create a duty enabling Skulason to assert a cause of action against a potential employer does not mean that it creates a separate duty applicable to the Bureau.

We are similarly unconvinced by Skulason's argument that the posting imposes a penalty or disability by violating her constitutional right to privacy. A person claiming an actionable invasion of privacy must show (1) a specific, legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct constituting a serious invasion of privacy. ( Loder v. City of Glendale (1997) 14 Cal.4th 846 , 890-891, 59 Cal.Rptr.2d 696 , 927 P.2d 1200 .) Skulason cannot make such a showing because the statement of issues and the fact of her convictions are matters of public record. (See Fredenburg v. City of Fremont (2004) 119 Cal.App.4th 408 , 422-423, 14 Cal.Rptr.3d 437 [no privacy interest in public information]; U.D. Registry, Inc. v. State of California (1995) 34 Cal.App.4th 107 , 113-114, 116, 40 Cal.Rptr.2d 228 [publishing information obtained from public court records violates no privacy interest].)

Skulason insists that, even though neither the statement of issues nor the record of the convictions is confidential, the posting nevertheless imposes an unlawful penalty or disability because it makes it easier for potential employers and clients to learn of the prior convictions and use them as a reason not to employ her. She points out that "there is a vast difference between providing public access to documents and actually publishing the documents to the very people-potential employers-who are prohibited from seeking or using them. Most court records are technically public, but in many instances require a physical trip to the courthouse and occasionally money to view. It would be extremely burdensome for a potential employer to travel around to local courthouses to research and seek information on prospective employees in the court files."

Skulason's point is well taken. There is no doubt that the Internet substantially increases the ease with which the public can access information

that has been judicially dismissed" in making an employment decision. ( Lab. Code, § 432.7.) When a website includes information about a conviction but not about the conviction's subsequent dismissal, visitors are likely to be unaware of the dismissal or the potential applicability of Labor Code section 432.7. Such a website gives visitors incomplete information, leaves the person whose conviction was dismissed subjected to unwanted attention about a misleading fact, and exposes potential employers to possible liability if they rely on the website's information to deny an employment application.

Although we acknowledge these adverse consequences, Skulason has not provided, and we have not found, any legal authority establishing, or defining the scope of, any duty that would restrict the Bureau's ability to post publicly available information about a licensee on its website. Skulason does not explain whether any such duty would apply to other sensitive, publicly available information unrelated to convictions, or whether the duty would be binding on all governmental agencies, including non-licensing ones. At oral argument, Skulason's counsel posited that the duty arises only when the Bureau is informed that a conviction has been subsequently dismissed (i.e., that the Bureau has no independent obligation to inquire into the status of a conviction) and that the duty would not be satisfied if the Bureau left a conviction reference on its website but separately informed website visitors that the conviction had been dismissed. No authority, however, was offered to support these assertions.

can consider different approaches that might preserve its legitimate interests and still reduce the negative collateral consequences of its current practice. Our role, however, is limited to deciding whether existing law requires the Bureau, as ordered by the trial court, to "remove any and all documents containing information about [Skulason's] expunged and/or dismissed convictions from its public website and publicly searchable database." We conclude that it does not, and the court therefore erred by granting the petition for a writ of mandate.

B. Skulason Is Not Entitled to Attorney Fees.

In light of our reversal of the trial court's grant of the petition for a writ of mandate, we also reverse its award of attorney fees to Skulason. Only a successful party may obtain an award of attorney fees under Code of Civil Procedure section 1021.5. (

by filing a statement of issues listing Skulason's three convictions and alleging that they "constitute[d] cause for denial of [Skulason's] application." (See Gov. Code, § 11504.) The administrative proceeding was settled in 2004 when Skulason "admitt[ed] that the allegations of the Statement of Issues ... [were] true and correct" and the Board agreed to issue her a restricted license. The settlement did not require the parties to maintain its confidentiality.

In 2010, Skulason successfully applied to the Bureau for an unrestricted license. Three years after receiving her unrestricted license, she obtained court dismissals of her three misdemeanor convictions. The two convictions for which she was placed on probation were dismissed under section 1203.4, and the third conviction was dismissed under section 1203.4a.

The Bureau maintains a public website that contains information about real estate licensees. On that website, a page about Skulason can be accessed that identifies her license number, the unrestricted status of her license, the dates of license issuance and expiration, and several actions the Bureau has taken involving her license. At the bottom of the page, under the heading "Disciplinary or Formal Action Documents," is a link to " H-08823SF ," which is a reference to the case number of the administrative proceeding that resulted in Skulason's 2004 restricted license. The

[Skulason's] expunged and/or dismissed convictions from its public website and publicly searchable database." The court stated, "The point of the expungement law is to allow those who have completed their criminal sentences to wipe their slates clean, apply for work, and build careers and lives without the specter of old convictions haunting them." It remarked, "It is profoundly unjust [for the Bureau] to frustrate the purpose of the Penal and Labor Codes by posting expunged conviction information with full knowledge of the potential harm it can cause." A judgment reflecting the order was subsequently entered.

After the judgment was entered, Skulason filed a motion for attorney fees. The trial court awarded her fees in the amount of $42,430.19 under Code of Civil Procedure section 1021.5. The Bureau separately appealed from the judgment issuing the writ of mandate and the order awarding attorney fees, and we granted the Bureau's motion to consolidate the two appeals.

DISCUSSION

A. The Bureau Has No Mandatory Duty to Remove From Its Website Publicly Available Information About Skulason's Dismissed Convictions.

"To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty." ( Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87 , 103, 192 Cal.Rptr.3d 391 ( Marquez ).) We review a trial court's ruling on a petition for a writ of mandate de novo, meaning that when the facts are undisputed, as they are here, we independently review the questions of law presented by the court's ruling. ( Seligsohn v. Day (2004) 121 Cal.App.4th 518 , 522-523, 16 Cal.Rptr.3d 909 .) Skulason argues that the trial court properly issued the writ of mandate because the Bureau's refusal to remove the statement

Furthermore, by [ section 1203.4's]

1203.4a ] ... nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring ... any record ... concerning a conviction that has been judicially dismissed ... pursuant to ... [these sections]." ( Lab. Code, § 432.7, subd. (a)(1).)

Skulason argues that this provision creates a duty applicable to the Bureau, but we disagree. By its own terms, Labor Code section 432.7 prohibits conduct by "employers," and nothing in its language can be read as imposing a duty on non-employers such as the Bureau. In her petition, Skulason alleged that at least one potential employer denied her a job because it learned about her convictions from

that was previously available only "after a diligent search of courthouse files" or other locally kept records. ( U.S. Dept. of Justice v. Reporters Committee (1989) 489 U.S. 749 , 764, 109 S.Ct. 1468 , 103 L.Ed.2d 774 .) The reality of our electronic age, for better or worse, is that all kinds of public information that was once hard to obtain has become increasingly accessible, including information contained in or related to documents filed in court cases. (See, e.g., Honorable Lewis A. Kaplan, Litigation, Privacy and the Electronic Age (2001) 4 Yale Symp. L. & Tech. 1, 5.) And there is no doubt that increased access to information about prior convictions brings with it additional, and potentially harmful, collateral consequences. (See, e.g., Brian M. Murray, A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels (2016) 10 Harv. L. & Policy Rev. 361, 377-378.) Recognizing this, the trial court remarked that "[p]osting the information anywhere online is akin to publishing it on the front page of the newspaper" and that "the harm this can cause an individual seeking to establish themselves in the real estate (or any other) profession is clear." While we might not consider an Internet posting analogous to a front-page news story, we agree that posting information on the Internet allows the public far more access to that information than it might otherwise have. And this increased accessibility makes it easier for employers, intentionally or inadvertently, to use information "concerning a conviction

Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 , 560-561, 21 Cal.Rptr.3d 331 , 101 P.3d 140 .) Because Skulason is not entitled to fees as a successful party, we need not resolve the parties' dispute whether the petition benefited "the general public or a large class of persons" as required. ( Code Civ. Proc., § 1021.5.)

DISPOSITION

The judgment granting the petition for a writ of mandate and the order awarding Skulason attorney fees are reversed. The Bureau is awarded its costs on appeal.

We concur:

Dondero, J.

Banke, J.