Can a custodian of records oppose a contested motion for in camera review?

The dissent asserts the Pitchess statutes ensur[ed] that whenever discovery was opposed, in camera review would follow as a matter of course. ( [Evid.Code,] 1045, subd. (b).) (Conc. & dis. opn., post, 181 Cal.Rptr.3d at p. 27, 339 P.3d at p. 317, italics added.) But Evidence Code section 1045, subdivision (b) says nothing about contested motions. It requires a determination of relevance and the conduct of an in camera review to exclude certain categories of information regardless of relevance. Nothing in the language of the statutory scheme suggests the duty to determine relevance may be waived by the custodian of records. The only reference to waiver appears in Evidence Code section 1043, subdivision (c), which provides that [n]o hearing upon a motion for discovery or disclosure shall be held without compliance with notice obligations, including notice to the affected officer, or upon a waiver of the hearing by the governmental agency identified as having the records. Thus, while the custodian may waive a hearing on whether good cause has been shown, no similar waiver provision appears regarding the duty to find relevance under Evidence Code section 1045. (See California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1016, 101 Cal.Rptr.2d 379 [the trial court conducted an in camera review even though the custodian did not oppose the Pitchess motion].)

[339 P.3d 309]