Judge: Anne Richardson, Case: 22STCV32140, Date: 2023-05-02 Tentative Ruling

Case Number: 22STCV32140    Hearing Date: May 2, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Jason Armendariz—a Police Officer II with the Los Angeles Police Department (LAPD)—sues the City of Los Angeles and Does 1 through 100 pursuant to an operative First Amended Complaint (FAC) alleging claims of (1) FEHA Discrimination, (2) FEHA Harassment, (3) FEHA Retaliation, and (4) FEHA Failure to Prevent Discrimination, Harassment, and Retaliation.

The claims arise from allegations that: in 2019, Officer Armendariz had several surgeries resulting from on-duty injuries to his shoulders, elbows, wrists, and spine; upon his return to work in early 2020—and despite requests by Armendariz to be accommodated with a day watch shift in light of his inability to sleep nights as a result of pain from his surgeries—Armendariz was assigned to the night shift; when Armendariz took a night off, Sergeant Ronnie Fisher was heard complaining that Armendariz was “just lazy” and “d[id not] want to work”; Officer Armendariz reported the comment to a Sergeant Grant and Captain Steven Carmona, who did not take action against Sergeant Fisher and did not file a personnel complaint against him, instead simply moving Armendariz to the day shift; in June 2020, during the “LA riots,” because of confusion as to when he was supposed to be released from duty for the day, and as a result of Officer Armendariz attempting to leave work for the day, Armendariz was called “lazy” and “lame” by multiple superiors, with one comment made sufficiently loudly for fellow officers to hear the comment, but no reports were taken by LAPD as to this conduct despite requests from Officer Armendariz; in August 2020, Officer Armendariz was moved from the Kit Room to work placing trash bags over every other urinal in the 3-story building in which he worked; in October 2020, one sergeant was heard to remark to another how lazy Officer Armendariz was and that he should be in the field; in December 2020, Officer Armendariz was denied days off over the holidays, allegedly in retaliation for his complaints regarding discrimination, where Officer Armendariz had not been denied similar requests in the preceding 25 years; Officer Armendariz was ultimately allowed to take the holidays off based on a doctor’s note, in response to which a Sergeant Tafoya was heard stating that Officer Armendariz was off again due to a bull**** neck injury and that Armendariz was faking it, which Armendariz reported to a Sergeant Grant as a HIPPA violation; a discrimination complaint by Officer Armendariz was finally forwarded to Internal Affairs (IA) on or about January 3, 2021, leading to a meeting with IA on January 5, 2021; in February 2021, Lieutenant MacDonald—the Van Nuys watch commander—assigned Officer Armendariz to work that violated Armendariz’s work restrictions—i.e., opening a large solid metal security sliding gate ten feet tall and weighing at least 600 pounds—which led Officer Armendariz to tear his right bicep and labrum, forcing Armendariz to take time off by using personal sick time; in January 2022, Officer Armendariz learned that none of the persons against whom he had complained faced any discipline; and as a result of the discrimination faced by Officer Armendariz, his ability to be promoted to Sergeant was foreclosed. Based on these allegations, Officer Armendariz claims general and special damages, loss of earnings and other employment benefits, damage to professional reputation and opportunities, and non-economic injuries, like anxiety, anguish, and mental suffering.

On February 3, 2023, Officer Armendariz made a Pitchess motion, seeking law enforcement records related to LAPD investigations into the allegations made in this lawsuit, any and all written and audio records related to the 2021 Internal Affairs investigation, and any and all writings reflecting complaints against four sergeants and one lieutenant accused by Officer Armendariz of discrimination and/or retaliation.

On April 19, 2023, the City of Los Angeles opposed the Pitchess motion.

On April 20, 2023, Officer Armendariz replied to the opposition.

The Pitchess motion is now before the Court.

Pitchess Motion: GRANTED, in Part.

Legal Standard

“The Pitchess statutory scheme recognizes that evidence contained in a law enforcement officer’s personnel file may be relevant in a lawsuit, but that the officer ‘has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily.’ [Citation.] To balance these competing interests, the Legislature ‘require[d] the intervention of a neutral trial judge, who examines the personnel records in camera … and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Legislature has attempted to protect [a party’s] right to a fair trial and the officer’s interest in privacy to the fullest extent possible.” [Citations.] These statutes apply equally to civil and criminal discovery. [Citation.]” (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085.)

“Under the statutory scheme, a party seeking discovery of a peace officer’s personnel records must follow a two-step process. [Citation].” (Id. at p. 1086; Riske v. Superior Court (2016) 6 Cal.App.5th 647, 656 [“This two-step process for discovery of peace officer personnel records balances the officer’s strong privacy interests in his or her own personnel records with the needs of civil litigants and criminal defendants to obtain information material to their claim or defense”].)

“First, the party must file a written motion describing the type of records sought, supported by ‘[a]ffidavits showing good cause for the discovery …, [i.e., the affidavits must] set[] forth the materiality [of the discovery] to the subject matter involved in the pending litigation and stat[e] upon reasonable belief that the governmental agency identified has the records or information from the records.’ ([Evid. Code] § 1043, subd. (b)(3).)” (Haggerty, supra, 117 Cal.App.4th at pp. 1085-86.; Riske, supra, 6 Cal.App.5th at p. 655 [“Good cause for discovery of peace officer personnel records under the statutory scheme exists when the party … shows materiality … and states upon ‘reasonable’ belief that the agency has the type of information sought”].)

“This initial burden is a ‘relatively relaxed standard.’ [Citation.]” (Haggerty, supra, 117 Cal.App.4th at p. 1086.)

“Information is material if it ‘“will facilitate the ascertainment of the facts and a fair trial.” [Citation.]’ [Citations.]” (Ibid.; Riske, supra, 6 Cal.App.5th at p. 658 [“The critical limitation for purposes of the initial threshold determination is materiality, which, in this context, means the evidence sought is admissible or may lead to discovery of admissible evidence”].) “‘[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the “materiality” component ….’ [Citation.]” (Haggerty, supra, 117 Cal.App.4th at p. 1086; Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51 [“[B]ecause Evidence Code section 1043 contains no requirement of ‘personal knowledge’ on the part of the declarant or affiant, a declaration by counsel on information and belief is sufficient to state facts to satisfy the ‘materiality’ component of that section” (citing City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86-89)].)

“The information sought must, however, be ‘requested with adequate specificity to preclude the possibility that defendant is engaging in a “fishing expedition.”’” (City of Santa Cruz, supra, 49 Cal.3d. at p. 85 [citing to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 538, superseded by statute as stated in Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 67-68].)

“Second, if ‘the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents “potentially relevant” to the defendant’s motion …. The trial court “shall examine the information in chambers” (Evid. Code, § 1045, subd. (b)), “out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present.” … Subject to statutory exceptions and limitations …, the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.” [Citations.]’ [Citation.]” (Haggerty, supra, 117 Cal.App.4th at p. 1086.)

Analysis

In his Pitchess motion, Officer Armendariz seeks law enforcement records for any and all writings of LAPD investigations into the allegations made in this lawsuit (category 1), any and all written and audio records related to the 2021 Internal Affairs investigation (category 2), and any and all writings reflecting complaints against four sergeants and one lieutenant accused by Officer Armendariz of discrimination and/or retaliation, i.e., Sergeants Ronnie Fisher, Mark Wilbur, Joe Tafoya, and Darin Jarutiasarn, and Lieutenant Robert MacDonald (categories 3 to 7). (Mot., p. 2; Mot., Nair Decl., ¶¶ 4(a)-(g).) The Court notes that categories 3 to 7 seek records that go beyond Officer Armendariz and that show complaints of harassment and/or retaliation made against the four sergeants and one lieutenant. (See Mot., p. 2; Mot., Nair Decl., ¶¶ 4(a)-(g).)

Officer Armendariz argues that good cause exists for disclosure of these records for various reasons.

First, Armendariz argues that “all documents reflecting the investigations into Plaintiff’s complaints”—i.e., category 1 to 2 records related to LAPD investigations of Officer Armendariz’s discrimination/retaliation complaints and the Internal Affairs investigation that followed—“are highly material” insofar as “Plaintiff seeks internal investigation documents into the instant lawsuit, along with those directly involving CF NO 20-003799 [the IA investigation], which directly deal with [the] … complaint [Officer Armendariz] initiated [with LAPD] due to the discriminatory statements made by multiple officers” against Armendariz. (Mot., p. 5; see Mot., Nair Decl., ¶ 6.) Moreover, Officer Armendariz argues that “[t]he Department’s investigations into the violations alleged in this matter will show either that the investigations were biased and/or inadequate or be an admission of wrongdoing,” “assist Plaintiff in demonstrating the LAPD’s failure to properly investigate these claims and the Department’s ratification of the continuing and on-going failure to comply with FEHA[] was … retaliation against Plaintiff,” and produce witness statements that will help Officer Armendariz conduct discovery and trial work, examine the accuracy of Internal Affairs investigator summaries, and determine whether Internal Affairs truly investigated Officer Armendariz’s complaints. (Mot., pp. 5-6; see Mot., Nair Decl., ¶ 6.) Last as to these categories—1 and 2—Officer Armendariz argues that the information requested is admissible either as “evidence of the Department’s FEHA violations,” “as evidence of the Department’s failure to take appropriate corrective action[] despite being on notice,” or “evidence of the Department’s and/or officers’ pattern and practice of engaging in, encouraging, and/or failing to prevent or correct the FEHA violations, as demonstrated by the inadequacy of the investigations.” (Mot., p. 6; see Mot., Nair Decl., ¶ 6.)

Second, Armendariz argues that there is good cause for production of categories 3 to 7 because “Plaintiff was slandered and suddenly labeled as ‘sick, lame, and lazy’ … due to his injuries, a common discriminatory claim made against injured officers at the LAPD, destroying Plaintiff’s reputation within the Department and hopes of promoting to Sergeant.” (Mot., p. 6; see Mot., Nair Decl., ¶ 7.) Armendariz elaborates by arguing that the “[o]fficers who were heard making these types of discriminatory statements include Sergeant Ronnie Fisher, Sergeant Mark Wilbur, Sergeant Joe Tafoya, and Sgt. Darin Jarutirasarn (AKA ‘JT’),” and separately, that “Lt. MacDonald ordered Plaintiff to move a metal gate[,] which was an assignment clearly outside of Plaintiff’s medical restrictions.” (Mot., p. 6; see Mot., Nair Decl., ¶ 7.) Last, Officer Armendariz argues that “[a]ll writings reflecting prior complaints against these officers referenced in categories 3-7 involving a history of discriminating and/or retaliating against other persons are highly relevant me-too evidence in an employment case,” where “Plaintiff has no other means of obtaining this information other than through the Pitchess process.” (Mot., p. 7; see Mot., Nair Decl., ¶¶ 7-8.)

A declaration by counsel summarizing and supporting these positions is attached to the motion. (See Mot., Nair Decl., ¶¶ 1-9.)

In opposition, the City of Los Angeles concedes that some of the documents sought in relation to category 1—i.e., any and all writings of LAPD investigations into the allegations made in this lawsuit—may be discoverable, but that discovery as to the remainder of categories 1 and 2 and all of categories 3 to 7 must be denied for lack of good cause, e.g., failure to articulate materiality, speculative nature of disclosures sought relating to the Internal Affairs investigation where summaries from IA should suffice, and irrelevant non-party information as to categories 3 to 7 where only complaints related to complaints regarding medical condition should be produced. (Opp’n, pp. 2-4.) The City of Los Angeles also argues that any discovery should be limited to the year 2015 onwards. (Opp’n, p. 5.)

In reply, Officer Armendariz reiterates his arguments for materiality and good cause for his requests. (Reply, pp. 1-5.)

First, the Court finds that all seven requests are discoverable. “Th[e] initial burden [on Plaintiff for good cause] is a ‘relatively relaxed standard,’” where “[i]nformation is material if it ‘“will facilitate the ascertainment of the facts and a fair trial.” [Citation.]’ [Citations.]” (Haggerty, supra, 117 Cal.App.4th at p. 1086; Riske, supra, 6 Cal.App.5th at p. 658 [“The critical limitation for purposes of the initial threshold determination is materiality, which, in this context, means the evidence sought is admissible or may lead to discovery of admissible evidence”].) Here, all seven requests relate to or include LAPD records showing the complaints made by Officer Armendariz against other officers as to discrimination and/or retaliation based on medical condition or showing LAPD’s response to such complaints. (See Mot., p. 2, Nair Decl., ¶¶ 4(a)-(g).) Such requests would undoubtedly lead to discoverable information related to Officer Armendariz’s FEHA Discrimination, Harassment, Retaliation, or Failure to Prevent claims.

There is good cause, as well, for the disclosure of records related to other complaints of discrimination and/or harassment of other individuals in the LAPD by Sergeants Ronnie Fisher, Mark Wilbur, Joe Tafoya, and Darin Jarutiasarn, and Lieutenant Robert MacDonald (categories 3 to 7). As noted by cases such as Pantoja v. Anton (2011) 198 Cal.App.4th 87, 92, 109-114, and Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, evidence regarding conduct by the alleged wrongdoers as to third parties not involved in the lawsuit (sometimes referred to as “me too” evidence), may be relevant to show discriminatory intent in a FEHA case such as this. However, the Court will limit the records to reflect complaints of discrimination similar to what is alleged here; namely, discrimination on the basis of disability, medical condition, perceived disability or perceived medical condition.

Second, the request is supported by a declaration from Plaintiff’s counsel grounded in information and belief, which is sufficient to satisfy the good cause materiality requirement. (See Mot., Nair Decl., ¶¶ 1-9 [summarizing and supporting the arguments discussed above]; see Haggerty, supra, 117 Cal.App.4th at p. 1086; Abatti, supra, 112 Cal.App.4th at p. 51 [“[B]ecause Evidence Code section 1043 contains no requirement of ‘personal knowledge’ on the part of the declarant or affiant, a declaration by counsel on information and belief is sufficient to state facts to satisfy the ‘materiality’ component of that section” (citing City of Santa Cruz, supra, 49 Cal.3d at pp. 86-89)].)

Last, the Court finds that the requests have been made “‘with adequate specificity … preclud[ing] the possibility that defendant is engaging in a “fishing expedition”’” because, as limited by the Court—discussed above; see below—though the requests seek ‘any and all’ writings and recordings related to complaints of discrimination and/or retaliation against Officer Armendariz (Mot., p. 2; see Mot., Nair Decl., ¶¶ 4(a)-(g)), such requests—including the IA recordings and interview documents—are specifically limited to writings and recordings with a logical connection to the four FEHA claims stated in the FAC. (City of Santa Cruz, supra, 49 Cal.3d. at p. 85 [citing to Pitchess, supra, 11 Cal.3d at p. 538, superseded by statute as stated in Long Beach Police Officers Assn., supra, 59 Cal.4th at pp. 67-68].)

The Pitchess motion is therefore GRANTED, in Part, as follows, with additions shown by upper case lettering:

1. Any writings relating to any and all Los Angeles Police Department (“LAPD”) investigation(s) into any and/or all of the allegations of the instant lawsuit;

2. Any and all writings relating to Internal Affairs complaint investigation CF NO 20-003799, along with all audio OR VISUAL recordings of witnesses interviewed;

3. All writings reflecting complaints against Sergeant Ronnie Fisher relating to complaints of discrimination ON THE BASIS OF DISABILITY, MEDICAL CONDITION, PERCEIVED DISABILITY, OR PERCEIVED MEDICAL CONDITION and/or retaliation;

4. All writings reflecting complaints against Sergeant Mark Wilbur relating to complaints of discrimination ON THE BASIS OF DISABILITY, MEDICAL CONDITION, PERCEIVED DISABILITY, OR PERCEIVED MEDICAL CONDITION and/or retaliation;

5. All writings reflecting complaints against Sergeant Joe Tafoya relating to complaints of discrimination ON THE BASIS OF DISABILITY, MEDICAL CONDITION, PERCEIVED DISABILITY, OR PERCEIVED MEDICAL CONDITION and/or retaliation;

6. All writings reflecting complaints against Sgt. Darin Jarutirasarn (AKA “JT”) relating to complaints of discrimination ON THE BASIS OF DISABILITY, MEDICAL CONDITION, PERCEIVED DISABILITY, OR PERCEIVED MEDICAL CONDITION and/or retaliation; and

7. All writings reflecting complaints against Sergeant Lieutenant Robert MacDonald relating to complaints of discrimination ON THE BASIS OF DISABILITY, MEDICAL CONDITION, PERCEIVED DISABILITY, OR PERCEIVED MEDICAL CONDITION and/or retaliation

However, as requested by the City of Los Angeles (Opp’n, p. 5), the Court limits production of records to 2015 onwards. Home addresses and birth dates (except as to plaintiff), as well as social security numbers, if any, may be redacted from all of the above records.

The Court briefly notes that the City of Los Angeles’s concern as to the scope of disclosures—e.g., IA investigation recordings and full interview contents—is taken into consideration. Nevertheless, such information is wholly material to this case and is discoverable and must thus be produced, though the Court assures the parties that its in-camera review will ensure a proper limiting of discoverable evidence to information that is material to this case.

Conclusion

Plaintiff Jason Armendariz’s Motion for Discovery of Peace Officer Personnel Records “Pitchess Motion” is GRANTED, in Part.

The Court thus ORDERS the City of Los Angeles’s custodian of records to WITHIN 14 DAYS bring to court all documents potentially relevant to Officer Armendariz’s seven categories of production as stated above—including all Internal Affairs interview documents and recordings—which the Court “shall examine … in chambers” [Citation], “out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present,” after which, “‘[s]ubject to statutory exceptions and limitations …, the … [C]ourt [will] … disclose to [Officer Armendariz] “such information [that] is relevant to the subject matter involved in the pending litigation.”’” (Haggerty, supra, 117 Cal.App.4th at p. 1086.)

As requested by Officer Armendariz (Mot., Nair Decl., ¶ 8), the Court notes that after in-camera review, it will hold an open court hearing summarizing the records received from the Custodian of Records and to be produced to Armendariz, with confidentiality requirements in mind.