Judge Bruce G. Iwasaki, Case 21STCV24612 2022-10-14 Tentative Ruling

Matter: Motion for Discovery of Peace Officer Personnel and Other Records (Pitchess Motion)

Tentative Ruling: The motion for discovery of peace officer personnel and other records is granted. The Court will set a date for the in camera hearing and the Custodian of Records is ordered to produce records in compliance with People v. Mooc (2001) 26 Cal.4th 1216 for the Court’s review.

Jennifer Carrera (Plaintiff), former police sergeant, sued the City of Montebello (Defendant or City) for retaliation under Government Code section 12940, et seq. and Labor Code section 1102.5. She alleges that the Montebello Police Department (Department) retaliated against her when she complained of harassment and hostility from her former superiors.

Plaintiff now brings a motion for discovery of peace officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to obtain:

Any and all documents in the custody, possession, or control of the City of Montebello (“City”) and/or the Montebello Police Department (“Department”) constituting any records of (i) complaints, (ii) investigations of complaints (including but not limited to complete witness interviews in audio recording form and transcript form), (iii) discipline imposed as a result of those investigations, or (iv) administrative inquiry, pertaining to Plaintiff’s allegations of sexual assault, sexual harassment, hostile work environment based on sex, or inappropriate conduct against Ismael Navarro, Julio Calleros, and Omar Rodriguez.

Defendant filed an opposition and Plaintiff replied. After consideration of the arguments, the Court grants the motion.

As relevant, Penal Code section 832.7, subdivision (a) provides that “the personnel records of peace officers and custodial officers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”

A motion to discover a law enforcement officer’s personnel file or other police agency record that contains relevant information is called a Pitchess motion. (Pitchess, supra, 11 Cal.3d at pp. 536-540.) Such a motion is required when “discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code [concerning records of investigations of public complaints against peace officers] or information from those records.” (Evid. Code § 1043(a).)

The Pitchess motion must include “(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[; and] (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.” (Evid. Code, § 1043, subd. (b).)

The showing of good cause is “a relatively low threshold for discovery.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83 (Santa Cruz).) “The information sought must, however, be ‘requested with adequate specificity to preclude the possibility that defendant is engaging in a ‘fishing expedition.’” (Id. at p. 85 (quoting Pitchess, supra, 11 Cal.3d at p. 538.) “[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) But the moving party needs to show only a “‘plausible’ factual foundation”, which is a scenario of “officer misconduct [that] is one that might or could have occurred.” (Id. at p. 1026.)

Upon a showing of good cause, the second step requires an in camera review of the records. “[T]he court, in the presence of the custodian of records, a court reporter, and sometimes the attorney for the agency and the officer, personally examines the potentially relevant records in chambers. (Evid. Code, § 915, subd. (b); People v. Mooc (2001) 26 Cal.4^th 1216, 1226, 1229.) As explained in Mooc, ‘The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian's statement, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.] ¶ The trial court should then make a record of what documents it examined before ruling on the Pitchess motion.... Of course, to protect the officer's privacy, the examination of documents and question of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.’ (People v. Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)” (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1541.)

If the Court determines there are records “‘relevant to the subject matter involved in the pending litigation,’ [then] it orders the records produced and the custodian of records must then prepare them for production. (Evid. Code, § 1045, subd. (a); People v. Mooc, supra, 26 Cal.4th at p. 1226.)” (Ibid.)

Plaintiff is seeking records pertaining to only her allegations of “sexual assault, sexual harassment, hostile work environment based on sex, or inappropriate conduct” against Ismael Navarro (Navarro), Julio Calleros (Calleros), and Omar Rodriguez (Rodriguez).

Counsel’s declaration sets forth a plausible factual foundation sufficient for discovery.

In March 2018, Plaintiff informed her superiors that Navarro forcibly grabbed her and pressed his erect penis against her buttocks. (Al Faiz Decl., ¶ 6.) She also reported her fear that Navarro may retaliate against her for the report and that he was already doing so by ostracizing and undermining her authority. (Ibid.) Subsequently, Navarro allegedly made disparaging remarks about Plaintiff and failed to communicate necessary information with Plaintiff to effectuate her duties. (Id. at ¶¶ 7, 10.)

As to Calleros, Plaintiff complained about his “demeaning and humiliating comments about women, deliberately sabotaging her work performance, and actively interfering with her ability to carry out her supervisory duties and to lead her unit.” (Al Faiz Decl., ¶ 12.) She alleges that Calleros frequently made derogatory comments about women, usurped her supervisory authority and duties, yelled at her, and made false comments about her performance. (Ibid.) Plaintiff alleges that despite her complaints, the Department dismissed her concerns and failed to conduct a proper investigation. (Id. at ¶ 14.)

For Rodriguez, Plaintiff states that she reported his conduct of “subject[ing] the only female detective in the Detective Bureau, Maria Chavez, to hostility and disparate treatment based on sex, including . . . continuously shunning her, withholding information necessary for her to participate as a full-fledged member of the team, assigning her duties to other detectives, and generally sidelining her from the Detective Bureau” to the Human Resources Director. (Al Faiz Decl., ¶ 26.) A month later, Plaintiff again reported Rodriguez’s conduct of disparaging another female employee. (Id. at ¶ 28.) Plaintiff and Chavez later met with Human Resources and voiced their concerns that Rodriguez was targeting female employees for scrutiny and mistreatment. (Id. at ¶ 30.) Plaintiff averred that Rodriguez’s behavior created a hostile work environment. (Id. at ¶ 28.) Despite all her complaints, Plaintiff alleges that the Department failed to properly investigate and ultimately terminated her. (Id. at ¶¶ 27, 29, 30, 31, 34.)

Plaintiff avers that the requested documents are directly relevant to the issues of whether she engaged in a protected act, Defendant’s retaliatory intent, and any harm that she suffered. (Al Faiz Decl., ¶ 37.)

The Court finds there is good cause for the discovery. “Evidence of the facts regarding the alleged underlying discrimination and harassing conduct about which [plaintiff] had complained was relevant to establish, for the retaliation cause of action, the reasonableness of [plaintiff’s] belief that conduct was unlawful.” (Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 186; see also Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1535 [“Evidence of Hickman's conduct was probative as to whether Lewis engaged in protected activity, because it was relevant to whether Lewis reasonably believed the conduct he opposed was discriminatory”]; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251 [“‘“[E]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts”’”].)

Here, the investigations are relevant to show whether Plaintiff reasonably believed that she engaged in protected activity by reporting that the named officers engaged in harassment and hostility. (Al Faiz Decl., ¶ 38.) The complaints would also be relevant to show whether Plaintiff’s disclosures were “grave and troubling allegations” such that Defendant would be more likely to retaliate against her. (Id. at ¶ 40; Lewis v. City of Benicia, supra, 224 Cal.App.4th at p. 1535.) Additionally, the records may also be relevant to damages because it may show a persistent “course of harassing conduct” which caused Plaintiff to suffer emotional distress. (Al Faiz Decl., ¶ 41; Lewis v. City of Benicia, supra, 224 Cal.App.4th at p. 1536.) Finally, the records may be relevant to show whether the Department conducted a proper investigation. (See Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344 [“The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when [plaintiff] made his complaint”].)

Accordingly, Plaintiff has shown good cause for discovery by outlining “a scenario of officer misconduct . . . that might or could have occurred.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.)

Defendant’s arguments are not well-taken. Defendant’s argument that the instant motion is inappropriate in a civil case is contrary to statutory language. Evidence Code section 1043 subdivision (a)(1) contemplates such a motion in a civil action, as does Penal Code section 832.7, subdivision (a). A Pitchess motion may be made by a party alleging wrongful termination of employment even in an administrative proceeding. (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4^th 624.)

Contrary to Defendant’s argument, the individual officers do not need to be named as defendants. “If the plaintiff can show the confidential personnel records of officers who were not involved in the injury are nonetheless material to the litigation, he or she has demonstrated the good cause necessary to obtain in camera review.” (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 661, italics added.) Given Plaintiff’s allegations that her reports of sexual harassment were the underlying reason for retaliation, she has shown that the records are material for purposes of discovery.

The Court is also unpersuaded by Defendant’s argument that the records sought are irrelevant to this action. To the contrary, they appear central to this action. Whether Plaintiff’s internal complaint against Navarro was dismissed does not exempt records about the complaint from discovery. The issue is what Defendant did with the complaint, including the people interviewed, notes and other evidence gathered, and the reason for the department’s decision. As to the other two officers, Defendant argues Plaintiff fails to allege that they engaged in a “habit of making derogatory comments” or that Plaintiff herself was not targeted. These arguments do not preclude discovery. Defendant overlooks that Plaintiff is alleging retaliation under a theory of harassment, including a hostile work environment claim, which does not necessarily require her to be a direct victim. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610, n.8.) And Plaintiff is not seeking third-party complaints, but only complaints that she personally alleged against the named officers. Moreover, this information is pertinent to the work environment Defendant countenanced and the thoroughness of the investigations it performed. Finally, the absence of documentation produced by the Defendant may also be evidence that the fact finder may consider.

The Court also rejects Defendant’s requested limitation that the discovery be limited to records that are, at most, five years old. Defendant relies upon a superseded version of the statute. The Legislature removed the five-year restriction. (Evid. Code, § 1045, as amended by Stats. 2021, ch. 402, § 1.)

Defendant’s contention that “other and less intrusive sources of information” available is not supported by any authority. Evidence Code section 1043 is the “exclusive means for obtaining discovery of peace officer personnel records.” (County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1608.) Similarly, Defendant’s request to limit the discovery to only names, addresses, and telephone numbers of the witnesses is legally unsupported. This rule stems from the criminal law context in which a defendant “seeks discovery of prior third party complaints to prove the arresting officer had a history of engaging in violent acts to support the criminal defendant’s excessive force/self-defense claims.” (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1090, italics added.) Plaintiff does not seek such records here.

Lastly, defendant’s counsel’s contention that she should be allowed at the in camera hearing is rejected. (People v. Mooc (2001) 26 Cal.4th 1216, 1227 [“a neutral trial judge . . . examines the personnel records in camera, away from the eyes of either party”].)

The Court finds that Plaintiff meets the low threshold for demonstrating good cause for the subject discovery. Thus, the Court will hold an in camera review. “[T]he custodian of records should bring to court all documents ‘potentially relevant’ to the . . . motion.’” (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) “[I]f the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.” (Id. at p. 1229.)

Pursuant to Evidence Code section 1045, in determining relevance, the Court shall examine the information in conformity with section 915 and shall exclude from disclosure any facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit, and whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.

On a date and time established by the Court, the custodian shall bring the original records plus one copy, each page BATES stamped so that the Court can refer to the records by page number.

The Court will require production of relevant and permissible documents subject to an appropriate protective order.

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