Judge: Blaine K. Bowman, Case: 37-2023-00046997-CU-OE-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2023-00046997-CU-OE-CTL BARENO VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion for in camera review of police officer personnel and complaint records (Evidence Code § 1043, et seq./'Pitchess motion') is GRANTED IN PART.

Pursuant to Evidence Code § 1043: (a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency that has custody and control of the records, as follows: (1) In a civil action, the written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure.

. . . .

(b) The motion shall include all of the following: (1) Identification of 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 that has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, 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 summarizes the applicable procedure.

The statutory scheme for obtaining [police officers'] confidential personnel records in civil and criminal cases is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 Calendar No.: Event ID:  TENTATIVE RULINGS

3100520  13 CASE NUMBER: CASE TITLE:  BARENO VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00046997-CU-OE-CTL and 832.8. (People v. Mooc (2001) 26 Cal.4th 1216, 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21.) These code sections were enacted to codify the California Supreme Court decision in Pitchess v. Superior Court, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, which permitted discovery of police officer files on a proper showing of materiality, relevance and necessity, and to curtail record shredding and discovery abuses that allegedly occurred in the wake of the Pitchess decision. (See City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 889, 3 Cal.Rptr.3d 915.) 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.' (People v. Mooc, supra, 26 Cal.4th at p. 1227, 114 Cal.Rptr.2d 482, 36 P.3d 21.) 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.' (Ibid.; see City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53, 19 Cal.Rptr.2d 73, 850 P.2d 621.) These statutes apply equally to civil and criminal discovery. (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1423–1424, 44 Cal.Rptr.2d 532.) Under the statutory scheme, a party seeking discovery of a peace officer's personnel records must follow a two-step process. (People v. Mooc, supra, 26 Cal.4th at p. 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21.) 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.' (§ 1043, subd. (b)(3).) This initial burden is a 'relatively relaxed standard [ ].' (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84, 260 Cal.Rptr. 520, 776 P.2d 222.) Information is material if it ' 'will facilitate the ascertainment of the facts and a fair trial.' [Citation.]' (Ibid.; see Brant v. Superior Court (2003) 108 Cal.App.4th 100, 106, 132 Cal.Rptr.2d 783.) '[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the 'materiality' component of that section.' (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51, 4 Cal.Rptr.3d 767.) 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.]' (People v. Mooc, supra, 26 Cal.4th at p. 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21; § 1045, subd. (a).) Haggerty, 117 Cal.App.4th at 1085–1086.

The court finds Plaintiff's motion meets the requirements of Evidence Code § 1043(b)(1) and (2). On the issue of good cause/materiality/reasonable belief [Evidence Code § 1043(b)(3)] the court finds as follows.

The Sheriff does not raise any specific objections to Plaintiff's records request numbers 2-10. The court finds Plaintiff meets Plaintiff's burden of establishing the materiality and relevance of these records and a reasonable belief that Defendant County of San Diego has these records. The court finds Plaintiff establishes good cause for the disclosure of the records described in these requests.

The Sheriff raises specific objections to request numbers 1, 11 and 12.

Preliminarily, the court finds the Declaration of Jenna Rangel sufficient to satisfy Plaintiff's burden on this Calendar No.: Event ID:  TENTATIVE RULINGS

3100520  13 CASE NUMBER: CASE TITLE:  BARENO VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00046997-CU-OE-CTL motion as to the records the court orders disclosed. Haggerty recognizes that a declaration by counsel on information and belief is sufficient to satisfy the materiality component of Evidence Code § 1043(b)(3). The court finds the Rangel declaration is also sufficient to satisfy the reasonable belief component of Evidence Code § 1043(b)(3).

Request No. 1: All background investigation records pertaining to Defendant Cardenas' hiring, excluding any medical or psychological evaluations.

The court finds Plaintiff fails to meet Plaintiff's burden of establishing the materiality of all of the records requested in this request. The court finds this request is overbroad as it is not tailored to records relating to complaints similar to those raised in Plaintiff's complaint. See, People v. Jackson (1996) 13 Cal.4th 1164, 1220; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1024 ['only documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery'] citing People v. Gill (1997) 60 Cal.App.4th 743, 749 and People v. Hustead (1999) 74 Cal.App.4th 410, 417. See also, People v. Memro (1985) 38 Cal.3d 658, 685 overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172.

However, the court finds background investigation records regarding any complaints made against Defendant Roberto Cardenas involving sexual harassment, sexual assault, sex/gender discrimination, retaliation following a sexual harassment/assault or sex/gender discrimination complaint against Cardenas, and/or unbecoming conduct by Cardenas connected to an incident of alleged sexual harassment, sexual assault, sex/gender discrimination or retaliation following a sexual harassment/assault or sex/gender discrimination complaint against Cardenas are material and relevant.

The court also finds, as limited, Plaintiff establishes good cause for the disclosure of these records.

The court is not persuaded by the Sheriff's reliance on Evidence Code § 1045(b)(2), and argument that the pre-employment background investigation conducted prior to Cardenas' hire date in 2003 is too remote. Riske v. Superior Court (2018) 22 Cal.App.5th 295 specifically allows for production of these records. Riske, 22 Cal.App.5th at 309 ['all relevant material apart from citizen complaints more than five years old is discoverable, unless excluded under other provisions of section 1045 subdivision (b)'].

Request No. 11: Documents relating to any complaints of sexual harassment, sexual assault, gender discrimination, retaliation, bias, bullying, and/or unbecoming conduct made by (1) any current or former employees of Defendant County against Defendant Cardenas; and (2) any members of the public, whether or not sustained, including, but not limited to, all records, communications, notes, witness interviews, witness statements, and investigation reports.

Request No. 12: All investigative files relating to any complaints of sexual harassment, sexual assault, gender discrimination, retaliation, bias, bullying, and/or unbecoming conduct made by (1) any current or former employees of Defendant County against Defendant Cardenas; and (2) any members of the public, whether or not sustained, including, but not limited to: Memorandum Notifying of Investigation; Cardenas' Corporate Directory Page; IA Complaint Checklist; Table of Contents; Complaint Form and Attachments; Synopsis, Analysis, Conclusions, and Findings; Witness List and Investigation; Media and Audio Recordings including of Witness Interviews; Formal Complaint Documentation; Written Statements; Exhibits; Emails; Photos; Surveillance Footage; Timelines; Reports; Mitigation Evidence; and Written Orders.

The court finds Plaintiff fails to meet Plaintiff's burden of establishing the materiality of all of the records Calendar No.: Event ID:  TENTATIVE RULINGS

3100520  13 CASE NUMBER: CASE TITLE:  BARENO VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00046997-CU-OE-CTL requested in these requests. Preliminarily, the court finds these requests overbroad as they are not sufficiently tailored to records relating to complaints similar to those raised in Plaintiff's complaint.

Specifically, Plaintiff fails to cite to any allegations of bias and/or bullying in the complaint. However, the court finds records of complaints and investigative files regarding any complaints made against Defendant Roberto Cardenas involving sexual harassment, sexual assault, sex/gender discrimination, retaliation following a sexual harassment/assault or sex/gender discrimination complaint against Cardenas, and/or unbecoming conduct by Cardenas connected to an incident of alleged sexual harassment, sexual assault, sex/gender discrimination or retaliation following a sexual harassment/assault or sex/gender discrimination complaint against Cardenas are material and relevant.

The court also finds Plaintiff establishes good cause only for the disclosure of the identity and contact information of any witnesses identified in the records described in these requests. The court finds Plaintiff fails to meet Plaintiff's burden as to disclosure of the actual documents described in these requests. As City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 recognizes, . . . courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead (as the municipal court directed here) that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question. (See Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829 [133 Cal.Rptr. 325]; Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439, 441 [168 Cal.Rptr. 33].) City of Santa Cruz, 49 Cal.3d at 84.

The court is not persuaded by Plaintiff's attempts to distinguish this civil matter from case law involving criminal matters. Neither of the authorities Plaintiff relies on supports Plaintiff's arguments. Haggerty is distinguishable because it did not involve a third party complaint but instead involved an Internal Affairs report of the incident at issue in the plaintiff's complaint. Haggerty explains, [a]s compared with the third party complaint situation, the information contained in the Internal Affairs report is highly probative. Guindazola has the burden of proving the elements of his claims, and the investigation at issue concerns the very incident that is the subject of the civil claim. Additionally, Haggerty's reasonable privacy concerns are diminished because he is the defendant in the litigation and the requested internal investigation records concern his actions that are alleged to be wrongful and will be fully litigated at trial.

Haggerty, 117 Cal.App.4th at 1090.

Such circumstances do not exist in this case as to these requests. Plaintiff is not seeking records 'related to the incident in question' (i.e., Cardenas' alleged sexual harassment/sexual assault of Plaintiff or alleged sex/gender discrimination against Plaintiff). Rather, these requests involve a 'third party complaint situation' which, under the analysis of Haggerty allows only for the disclosure of witness contact information. The other case Plaintiff relies on, Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, is also distinguishable because it is a criminal case where the disclosure of documents was allowed based on the evidence that the witness who made the statement at issue was refusing to cooperate with the requestor and the only way for the requestor to discover the contents of the witness statement was to obtain the statement. Alvarez, 117 Cal.App.4th at 1113. No similar showing has been made by Plaintiff at this time. Based on the evidence Plaintiff presents on this motion, the court finds Plaintiff fails to establish good cause for the disclosure of the actual documents sought in these requests.

This ruling is without prejudice to Plaintiff's ability to seek additional discovery if the information obtained proves to be inadequate. See, Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829.

Based on the foregoing, the court orders the County of San Diego to bring all potentially relevant documents in the possession of the County of San Diego and responsive to the document categories Calendar No.: Event ID:  TENTATIVE RULINGS

3100520  13 CASE NUMBER: CASE TITLE:  BARENO VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00046997-CU-OE-CTL detailed in Plaintiff's motion, as limited herein, to court for an in camera review and disclosure of relevant documents.

The court will hear from the parties as to proposed dates for the in camera review hearing. The parties should also be prepared to discuss arrangements for a court reporter for the in camera review hearing.

Any records disclosed following the court's in camera review will be subject to the mandatory protective order required under Evidence Code § 1045(e).

The court signs the order submitted with the parties' Stipulated Confidentiality Agreement.

Calendar No.: Event ID:  TENTATIVE RULINGS

3100520  13