Judge: Audra Mori, Case: BC705250, Date: 2022-09-07 Tentative Ruling

Case Number: BC705250    Hearing Date: September 7, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Tracy Adams (“Plaintiff”) filed this action against defendants Thyssenkrupp Elevator Corp. for damages arising out of injuries sustained in an elevator.  Plaintiff has filed an Amendment to Complaint naming ABM Industry Groups, LLC (“ABM”) as Doe 1.

At this time, ABM moves to compel non-party the Los Angeles County Sheriff’s Department (“LASD”) to produce all employment records of Plaintiff from 1996 to present.  LASD opposes the motion.  As of September 2, 2022, no reply has been received. 

ABM provides that it learned Plaintiff was working as a Sheriff’s Deputy at the time of the incident, and that Plaintiff claims she has been employed by LASD since 1989.  ABM asserts that Plaintiff is claiming loss of past and future income in connection with this incident, and that Plaintiff filed a worker’s compensation claim on May 25, 2016, relating to the injuries she claims she suffered in connection with this incident.  ABM states it issued a deposition subpoena requesting Plaintiff’s employment files, but LASD objected on the grounds that Plaintiff is a peace officer.  ABM contends the requested discovery is material to this litigation given the claims and Plaintiff’s history of injuries. 

In opposition, LASD asserts that the motion is untimely pursuant to CCP § 1005(b).  LASD further argues that ABM fails to demonstrate good cause for all the requested records as required, and that the requested records are overbroad and irrelevant.  LASD requests that if the Court finds good cause has been shown, the Court review the records in camera and issue a protective order to protect the confidential nature of the requested records. 

2. Pitchess Motion

            a. Notice of Motion

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  (CCP § 1005(b).)  LASD asserts ABM did not provide proper notice of the motion because ABM served the motion on LASD on August 26, 2022, which was only eight court days prior to the hearing date.

The Court cannot locate proof of service of the moving papers on LASD, and ABM did not file a reply to otherwise dispute failing to properly give notice of the motion to LASD.[1]  This procedural defect is sufficient grounds to deny the motion.  However, the motion is also denied due to ABM failing to show good cause for Plaintiff’s employment file from 1996 to present for the reasons explained below. 

                        b. Pitchess Standard

In general, the personnel records of peace officers are protected from discovery pursuant to Penal Code section 832.7. The exclusive means for obtaining these materials is through a Pitchess motion.  (County of Los Angeles v. Superior Court (1990) 219 Cal. App. 3d 1605, 1611.)  A Pitchess motion shall (1) identify the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the record, and the time and place at which the motion for discovery or disclosure shall be heard, (2) describe the type of records or information sought, and (3) present affidavits showing good cause for the discovery or disclosure sought.  (Evid. Code § 1043(b).)

The standard of “good cause” required for Pitchess disclosure is “relatively relaxed” to “insure the production” for trial court review of “all potentially relevant documents.”  (People v. Gaines (2009) 46 Cal.4th 172, 179.)  Good cause for discovery exists when the party shows (1) materiality to the subject matter of the pending litigation and (2) a reasonable belief that the agency has the type of information sought.  (Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413.)  A sufficient threshold showing is established if the party seeking records demonstrates through affidavits a “plausible factual foundation” for how the records are material to the subject matter of the pending litigation.  (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655 (citing Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027.)  The affidavit setting forth good cause “may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information [citation].” (People v. Mooc (2001) 26 Cal.4th 1216, 1226.)  A plausible scenario is one that might or could have occurred. (Warrick, supra, 35 Cal.4th at 1026.)  In assessing the showing, “[t]he affiant’s credibility is not at issue; the trial court determines whether a plausible factual foundation has been established; it does not determine whether the moving party’s version of events is credible or persuasive.”  (Riske, supra, 6 Cal.App.5th at 655.) 

If the trial court finds good cause for the discovery, the pertinent documents may be reviewed in chambers and only that information falling within the statutorily defined standards of relevance is disclosed.  (Evid. Code § 1045).  (Warrick, supra, 35 Cal.4th at 1027.)  This process balances the conflicting interests of the moving party's right to a fair trial and the officer's interest in privacy.  (People v. Mooc, 26 Cal.4th at 1227.)  An officer thus has a conditional privilege in his or her personnel records.  (Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 614.)

Here, ABM’s counsel’s declaration attests that LASD’s has records regarding the incident in its possession, that Plaintiff’s previous injuries going back to 1996 are essential to determining Plaintiff’s ability to work, and that disciplinary records are relevant in showing that Plaintiff did not miss work for any disciplinary reasons.  (Mot. Crawley ¶¶ 15-20.)  However, ABM is seeking all of Plaintiff’s employment records from LASD from 1996 to present.  The request would thus necessarily include numerous documents with sensitive information, such as applications, reviews, evaluations, and job assignments, but ABM’s counsel’s declaration is silent as to why there is good cause to compel production of each and every record in Plaintiffs employment file for approximately 26 years.  ABM, at most, shows a need for payroll information regarding Plaintiff’s loss of earnings claim and documents identifying specific types of previous injuries Plaintiff suffered in the workplace.  As LASD argues, ABM does not identify the records requested with sufficient specificity, and thus, the request for Plaintiff’s entire employment file for 26 years appears to be an improper fishing expedition to search through Plaintiff’s confidential records.  (People v. Mooc, 26 Cal.4th at 1226.)  ABM did not file a reply to address this contention, and the Court will not consider an untimely reply.  Moreover, it is unnecessary and impracticable for Defendant to propose that the Court should review records for 26 years in an attempt to guess which records may be relevant to Plaintiff’s claimed injuries or damages in this case. 

            ABM failed to meet its moving burden to show good cause for the documents it seeks to discovery.  Therefore, the motion is denied.

Moving Defendant ABM is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 7^th day of September 2022