Judge Audra Mori, Case BC705250 2022-10-24 Tentative Ruling

Plaintiff Tracy Adams (“Plaintiff”) filed this action against defendants Thyssenkrupp Elevator Corp. for damages arising out of injuries sustained in an elevator on May 9, 2016. 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 personnel records pertaining to Plaintiff. LASD opposes the motion, and ABM filed a reply.

ABM provides that it determined that Plaintiff was working on duty 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 argues that ABM fails to demonstrate good cause for the time period requested as to each category. LASD contends that having the Court review 10 years of payroll records and 26 years of records relating to injuries, disabilities, and modification of duties is unwarranted. LASD further asserts that the request for payroll records is vague and overbroad and that the request should be limited to Plaintiff’s wages for a reasonable period prior to and following the incident. LASD requests that if the records are reviewed in camera and an order for disclosure made, that a protective order to protect the confidential nature of the requested records be issued.

In reply, ABM contends that it demonstrates good cause for the requested records and that the five categories of records requested are material to the litigation. ABM argues that because Plaintiff testified at her deposition that she has been placed on light, modified, or restricted multiple times since 1996 for work-related injuries, evidence of the lengths of time placed on such duty is material to Plaintiff’s loss of income claimed with the incident.

In general, the personnel records of peace officers are protected from discovery pursuant to Penal Code § 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.)

“[A] party seeking discovery of a peace officer’s personnel records must follow a two-step process. [Citation.] First, the party must file a written motion describing the type of records sought, supported by ‘[a]ffidavits showing good cause for the discovery . . . , setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.’ ” (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085-1086 (Haggerty).)

“Second, if ‘the trial court concludes [a party] 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 [requesting party’s] motion . . . . The trial court “shall examine the information 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.” . . . 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.]’ ” (Id. at 1086.) Under the two-step process, “[o]nce a court conducts an in camera hearing, section 1045 governs the documents that may be disclosed.” (Id. at 1087.)

Here, ABM seeks compel LASD to produce the following categories of documents pertaining to Plaintiff:

(1) Payroll documents for the last ten (10) years preceding the filing of this Motion; (2) Documents identifying previous injuries [Plaintiff] suffered in the workplace since 1996; (3) Documents identifying each time [Plaintiff] was placed on modified, light, or restricted duty; (4) Documents identifying [Plaintiff’s] disability status since 1996; and (5) Documents identifying vacation and sick time used by [Plaintiff] for the last ten (10) years preceding the filing of this Motion.

ABM asserts that in this action, Plaintiff is claiming injuries to her neck, right knee, left shoulder, back, and left hip injuries as a result of the incident. (Mot. Crawley Decl. ¶ 11.) During her deposition Plaintiff testified she suffered numerous work-related injuries prior to the subject incident dating back to 1996, including to her wrist, neck, back, knees, and spine, among other injuries. (Id. at ¶ 10.) Plaintiff further testified that after the incident she suffered injuries to her left knee and shoulder in other incidents and that she has been placed on modified duty numerous times. (Id. at ¶¶ 12-13.)

Additionally, Plaintiff is alleging past and future loss of income in connection with the incident and claims she was earning $8,500 per month prior to the injury. (Id. ¶ 14.) Plaintiff alleges she used paid vacation and sick time on various occasions from May 10, 2016 to January 2018, and Plaintiff claims she was deemed temporarily disabled from January 2018 to July 2019. (Id.) Plaintiff alleges she was placed on disability in January 2018 and has not worked as a result of the incident. (Id.)

Categories 2-4 identified above seek documents identifying previous injuries Plaintiff suffered in the workplace since 1996, documents identifying each time Plaintiff was placed on modified, light, or restricted duty without limitation as to time; and documents identifying Plaintiff’s disability status since 1996. ABM asserts that a point of contention in this case is whether the alleged malfunction of the elevator is what caused Plaintiff’s inability to work and that the documents are essential to determining the level of Plaintiff’s ability to work before the incident. The requests are overbroad and seek documents identifying “previous injuries” and “disability status” for more than 26 years without regard to the particular injuries at issue in this case. ABM attests that Plaintiff has been employed by LASD since March 1989. (Mot. Cawley Decl. ¶ 6.) Consequently, this would include records dating back more than 33 years. “[F]acts … that are so remote as to make disclosure of little or no practical benefit” are irrelevant and not discoverable. (Eivd. Code § 1045(b)(3).) Moreover, the request as to records identifying Plaintiff’s disability status does not identify the documents sought with sufficient specificity and appears to be an attempt to search generally through Plaintiff’s confidential records. (People v. Mooc, 26 Cal.4th at 1226.) Finally, it is unduly burdensome and impracticable for the Court to review records going back 26 to 33 years in an attempt to surmise which may be relevant to Plaintiff’s claimed injuries in this case without ABM specifically articulating why and demonstrating that all such records are relevant to this action.

ABM does not show good cause for the far ranging categories of documents it seeks. The motion is denied as to categories 2-4.

As to categories 1 and 5, ABM seeks payroll documents for the last ten years and documents that identify vacation and sick time used by Plaintiff in the last ten years. ABM contends that these records are material to investigating Plaintiff’s loss of income claim alleged in connection with the incident. The request is reasonably limited in time and scope, particularly given that the alleged incident occurred in 2016, and ABM attests that the documents are in the exclusive possession of LASD. (Mot. Crawley Decl. ¶ 20.) Therefore, ABM establishes good cause for the production of records identified in categories 1 and 5. LASD filed a proposed protective order with its opposition governing disclosure of the personnel records. ABM, in reply, did not object to the proposed protective order. The protective order is reasonable and will be adopted to govern production of the records produced in this matter.

ABM has shown good cause and materiality for the discovery it seeks in categories 1 and 5. The Court will conduct an in-camera hearing of the personnel records and Plaintiff is thereafter entitled to only “information [that] is relevant to the subject matter involved in the pending litigation.” (Evid. Code § 1045(a).)

The motion is granted in part. The motion is denied as to categories 2-4 identified above. The motion is granted as to items 1 and 5. The in-Camera Hearing of Personnel Records from City of Los Angeles is scheduled for _________ at 10:00 am in this Department.

Hon. Audra Mori

Judge of the Superior Court