Judge Bruce G. Iwasaki, Case 21STCV43825 2023-02-24 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.

On February 2, 2022, Erin Kay Coulter (Plaintiff or Coulter) filed the operative First Amended Complaint (FAC) for (1) Fair Employment and Housing Act (FEHA) sex/gender, sexual orientation, and race discrimination, (2) hostile work environment harassment, (3) retaliation, (4) sexual harassment, (5) quid pro quo harassment, (6) failure to prevent discrimination and retaliation, and (7) whistleblower retaliation under Labor Code section 1102.5.

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 two “types” of records: “documents referring or relating to any investigation into plaintiff” and “documents related to ‘me too’ complaints of discrimination, retaliation, and harassment.” Specifically, she requests the following:

Request for Production No. 16: All documents that refer or relate to whether defendant City of Azusa or its employees ever engaged in any formal or informal investigation of plaintiff Erin Kay Coulter.

Request for Production No. 17: All documents that refer or relate to whether defendant City of Azusa or its employee ever engaged in any formal or informal investigation of plaintiff Erin Kay Coulter.

Request for Production No. 18: All documents showing all actions defendant City of Azusa took to investigate any aspect of plaintiff Erin Kay Coulter’s work performance.

Request for Production No. 19: All documents that refer or relate to whether defendant City of Azusa ever engaged in any formal or informal investigation of any complaint made, concern expressed or grievance brought by plaintiff Erin Kay Coulter to defendant City of Azusa or its employees.

Request for Production No. 20: All documents showing all actions defendant City of Azusa took to investigate any of plaintiff Erin Kay Coulter’s complaints, expressed concerns or grievances.

Request for Production No. 32: All documents showing that defendant City of Azusa has been made aware of any formal or informal claim made by anyone for harassment, retaliation, discrimination or wrongful termination of employment against defendant City of Azusa during the past ten years.

Request for Production No. 33: All documents showing the names, addresses, and telephone numbers of all individuals who have made formal or informal complaints of harassment, retaliation, discrimination or wrongful termination of employment to defendant City of Azusa during the past ten years at the same location at which plaintiff, Erin Kay Coulter, was employed.

Request for Production No. 34: All documents that show the names, addresses and telephone numbers of all individuals who have made formal or informal complaints to defendant City of Azusa concerning their sex/gender during the past ten years.

Request for Production No. 35: All documents that show the names, addresses and telephone numbers of all individuals who have made formal or informal complaints to defendant City of Azusa concerning their sexual orientation/preference during the past ten years.

Request for Production No. 36: All documents that show the names, addresses and telephone numbers of all individuals who have made formal or informal complaints to defendant City of Azusa concerning their race/ethnicity during the past ten years.

Request for Production No. 40: All documents showing the exact nature of each formal and informal claim of harassment and any notice of inappropriate work place behavior disclosed to defendant City of Azusa concerning any person who ever supervised plaintiff, Erin Kay Coulter.

Request for Production No. 41: All documents that indicate the name, address and telephone number of each individual who made a formal or informal claim of harassment or gave any notice of inappropriate work place behavior to defendant City of Azusa concerning any person who ever supervised plaintiff, Erin Kay Coulter.

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

Defendants’ request for judicial notice is granted as to the ruling on the submitted demurrer and motion to strike. (Evid. Code, § 452, subd. (d).)

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, supra, 26 Cal.4th at pp. 1226, 1229, 114 Cal.Rptr.2d 482, 36 P.3d 21.) 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 two types of records: (1) all records pertaining to any formal or informal investigation in her own personnel file, including any grievances that she made and any investigations on those grievances, and (2) “me too” evidence of other individual’s complaints as to harassment, retaliation, discrimination and wrongful termination based on sex/gender, sexual orientation, and race/ethnicity. Plaintiff also seeks any complaints of harassment or inappropriate behavior by any of her prior supervisors.

As to the requests relating to Plaintiff’s own file (request numbers 16, 17, 18, 19, 20, 40, 41), Plaintiff’s counsel’s declaration sets forth a plausible factual foundation sufficient for discovery. (Requests nos. 16 and 17 are nearly identical; no. 16 refers to “employees” of the City, while no. 17 refers to “employee.”) Counsel avers that the records likely exist because Defendants objected to the production of such records in response to Plaintiff’s Request for Production of Documents and specifically cited to Evidence Code sections 1040, 1043, and Penal Code sections 832.7 and 832.8 as the proper procedure to obtain such records. (Henderson Decl., Ex. 2.)

Plaintiff’s counsel further avers that the City of Azusa is in possession of Plaintiff’s “personnel file,” which includes investigations that may corroborate allegations made in the Complaint. (Henderson Decl., ¶ 6.) For example, Plaintiff alleges that she was singled out based on her filing of a tort claims letter; thus, any complaint or investigation that occurred after that may be evidence of disparate treatment. (Id. at ¶8.)

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 [supervisor’s] conduct was probative as to whether [plaintiff] engaged in protected activity, because it was relevant to whether [plaintiff] 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 discrimination, harassment, and hostility. The complaints may also be relevant to damages because it may show a persistent “course of harassing conduct” which caused Plaintiff to suffer emotional distress. (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”].)

As to the “me too” evidence (request numbers 32, 33, 34, 35, 36) such evidence may be admissible in certain circumstances. (Evid. Code, §1101; Pantoja v. Anton (2011) 198 Cal.App.4th 87, 110 [“we conclude the [me-too] evidence was admissible to show intent under Evidence Code section 1101, subdivision (b), to impeach [defendant’s] credibility as a witness, and to rebut factual claims made by defense witnesses”]; Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 767 [“here we can say as a matter of law that the ‘me too’ evidence presented by plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards”].) Thus, Plaintiff can use such evidence to establish intent, motive, or to cast doubt on an employer’s stated reasons for an adverse employment action . (Pantoja, supra, 198 Cal.App.4th at p. 112.)

Here, however, some requests are overbroad and vague. Notably, Requests 32 through 36 are too general. They request all documents and witness information from any individuals who have made a claim for harassment, retaliation, discrimination, or wrongful termination in the past ten years. It is not restricted to any officer’s names and would place undue burden and expense to Defendants. It is true that Plaintiff alleges a hostile work environment claim, but the allegations are tailored towards her protected characteristic as a woman. (Complaint, ¶¶ 14(b), (c), (e), (f), (g), (h), (o).) As presently worded, the requests could conceivably include conduct by officers towards civilians, and acts based on other protected characteristics, such as religion, disability, or age, none of which are relevant to this case. To narrow the scope, the Court will construe this request to be limited only to complaints based on the protected characteristics of sex/gender, sexual orientation, and race/ethnicity.[1] In addition, at the hearing, Plaintiff should be prepared to further limit these requests either by naming specific officers, or by type of conduct (e.g., sex discrimination towards other female officers at a specific station).

Defendants also take issue with numbers 40 and 41, which request the “exact nature of each formal and informal claim of harassment and any notice of inappropriate workplace behavior” as to Plaintiff’s prior supervisors. The language could be more specific. From the Complaint, Robert Chivas was the named supervisor. However, Plaintiff mentions other supervisors as well, including Justin Beaver, Jorge Sandoval, and Robert Landeros. It is unclear whether these individuals were Plaintiff’s supervisor and so she should be prepared at the hearing to provide a specific list of individual’s names.

Otherwise, Defendants’ argument in reliance of City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 78-79 (Santa Cruz) that Plaintiff has failed to meet her showing of good cause and materiality is misplaced. That case also recognized the “low threshold for a showing of good cause,” which would be tempered by “specific exclusions, in camera review procedures, and exacting standards for disclosure.” (Id. at p. 94.) Thus, our Supreme Court sanctioned the use of affidavits to demonstrate good cause, which is what Plaintiff submits here in support of the Pitchess motion. Contrary to Defendants’ argument, 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.) They cite no legal authority for the requirement that the request must identify a specific document. (See Santa Cruz, supra, 49 Cal.3d at p. 91 [“proof of the existence of the sought material is not a prerequisite to the granting of a discovery motion].) It follows then that whether Plaintiff believes such records exist is irrelevant to the request.

As for contact information of witnesses, the name and contact information of percipient witnesses is subject to discovery, notwithstanding their privacy rights. (See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-1250, 1256.)

The Court also rejects Defendant’s request that the discovery be limited to records that are, at most, five years old, citing a prior version of the statute. The Legislature has since removed this restriction. (Evid. Code, § 1045, as amended by Stats. 2021, ch. 402, § 1.)

Defendants’ further arguments that Plaintiff is not entitled to witness statements, interviews, or internal investigation reports presumes that the Court has already conducted the in camera review and seeks to preemptively exclude those records. They argue that where Plaintiff “has failed to show that complainants are unavailable for the requesting party to interview, it is improper for trial courts to order more than the production of the names and addresses of the complainants.” (Opposition, p. 18:12-14.) Defendants rely on cases in the criminal context which are inapposite. (Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439, 442 ; City of Azusa v. Superior Court (1987) 191 Cal.App.3d 693, 697; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1088-1089 [prior version of section 1045, subdivision (b)(2) requires exclusion of the conclusions of any officer investigating a complaint in any criminal proceeding].) Moreover, the arguments are speculative at this time. Presently, the threshold issue of whether an in camera review is proper is the only issue before this Court. (See Santa Cruz, supra, 49 Cal.3d at p. 94.)

Defendants next contend that two privileges apply to bar the disclosure of records.

In analyzing whether the deliberative process privilege applies, “[t]he key question in every case is ‘whether the disclosure of materials would expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342.) “Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.” (Cal. First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 172.)

Defendants argue that because Plaintiff’s request is overbroad, this would “likely contain the decision making of officials” and would “hinder the City’s future administrative decisions involving their employees.” (Opposition, p. 19:23-28.) This argument is broad and speculative. This privilege “protects creative debate and candid consideration of alternatives within an agency, and, thereby improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that ‘officials should be judged by what they decided[,] not for matters they considered before making up their minds.’ ” (Cal. First Amendment Coalition, supra, 67 Cal.App.4th at p. 170.) Defendants do not argue how disclosure of the requested documents would reduce the quality of creative debate, confuse the public, or diminish the integrity of the decision-making process.

Under Evidence Code section 1040, subdivision (b)(2), “[a] public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and . . . (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” “‘[O]fficial information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code, § 1040, subd. (a).)

Defendants’ argument is conclusory here, merely arguing that the request is broad and “protected by the official information privilege and these individual’s own privacy rights under the California and United States Constitution.” (Opposition, p. 20:21-24.) The argument is without merit because Defendants do not articulate how disclosure of the requested documents would harm the public interest nor do they weigh this interest against Plaintiff’s interest in being able to litigate her suit. Plaintiff alleges that she was constructively terminated over a year ago. The disclosure of decisions and documents pertaining to her claims do not immediately appear to carry a substantial risk of harming the public interest.

Finally, the Court does not consider Defendants’ “constitutionally protected privacy interests” argument. While Penal Code section 832.7 recognizes the privacy of peace officers, that same statute clarifies that 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.)

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. Defendant shall arrange for a court reporter.

[1] Defendants argue that because the demurrer was sustained as to race-based discrimination on demurrer, any documents seeking racial harassment is improper. But the Complaint also alleges race-based hostile work environment as its second cause of action, on which the demurrer was overruled. Thus, complaints based on race may still be relevant.

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