Judge: Colin Leis, Case: 22STCV29401, Date: 2024-03-13 Tentative Ruling

Case Number: 22STCV29401    Hearing Date: March 13, 2024    Dept: 74

Daryn Glenn v. City of Redondo Beach

Plaintiff’s Pitchess Motion.

BACKGROUND

            This action arises from an employment dispute.

            On October 21, 2022, Plaintiff Daryn Glenn (Plaintiff) filed a first amended complaint (FAC) against Defendant City of Redondo Beach (Defendant). The FAC alleges discrimination, harassment, retaliation, and failure to prevent discrimination, harassment, and retaliation—all in violation of the Fair Employment and Housing Act (FEHA).

            On January 5, 2024, Plaintiff filed this motion for discovery of peace officer personnel records and other documents (Pitchess Motion).

LEGAL STANDARD

            Information contained in a peace officer’s personnel file is generally protected from discovery or disclosure. (Pen. Code, § 832.7.) There is a two-step procedure for securing disclosure of most peace officer personnel records. (Warrick v. Sup. Ct. (City of Los Angeles Police Dept.) (2005) 35 Cal.4th 1011, 1019.)

            First, the party seeking disclosure must file a motion that identifies the peace officer, the agency in possession of the records, a description of the records, and who is seeking the records, as well as the time and place of the hearing. (Evid. Code, § 1043, subd. (b)(1).) The motion must include a declaration showing good cause for disclosure of the records, setting forth the materiality of the records, and stating upon reasonable belief that the governmental agency has the requested documents. (Evid. Code, § 1043, subd. (b)(3).) To that end, the party seeking the records must demonstrate “a plausible factual foundation” for how the records are material to the subject matter of the pending litigation. (Warrick v. Sup. Ct. (City of Los Angeles Police Dept.), supra, 35 Cal.4th at p. 1025.) In this context, materiality means the records sought are admissible or may lead to discovery of admissible evidence. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048-1049.)

            Second, if the court finds good cause, an in-camera hearing must be held. (Slayton v. Sup.Ct. (Slayton) (2006) 146 Cal.App.4th 55, 61.) After personally examining the records in-camera, the trial court shall order disclosure of peace officer personnel records that are relevant to the subject matter involved in the pending litigation. (People v. Mooc, supra, 26 Cal.4^th at p. 1226.) If disclosure is ordered, the court must also order that the disclosed information may not be used for any purpose other than a court proceeding under applicable law. (Alford v. Sup.Ct. (People) (2003) Cal.4th 1033, 1039-1040.) The court may also issue a protective order. (Evid. Code, § 1045, subd. (d).)

DISCUSSION

            Plaintiff seeks disclosure of peace officer personnel records concerning two of Defendant’s employees (The Employees) who allegedly harassed and discriminated against Plaintiff based on her sex, gender, and disability. As a preliminary matter, the court finds that Plaintiff has satisfied the applicable procedural requirements for this motion. In addition, Plaintiff has stated upon reasonable belief that Defendant has the requested documents. (Oliver Decl., ¶ 23; Evid. Code, § 1043, subd. (b)(3).) Accrordingly, the court will address whether Plaintiff has demonstrated good cause for disclosure, such that an in-camera hearing is warranted.

            Request Nos. 1 & 2

            Plaintiff’s first request seeks documents related to Defendant’s internal investigation resulting from Plaintiff’s pursuit of this action. The second request seeks documents related to Defendant’s internal investigation resulting from Plaintiff’s claim filed with the Department of Fair Employment and Housing (now known as the California Civil Rights Department). In Plaintiff’s supporting declaration, Plaintiff alleges in part that two of Defendant’s employees harassed and discriminated against Plaintiff based on her sex, gender, and disability. (Oliver Decl., ¶¶ 7, 10, 11.) According to Plaintiff, documents related to Defendant’s internal investigations are material because they will help Plaintiff prove her claim that Defendant condoned and ratified the discrimination and harassment by failing to implement sufficient corrective measures. (Oliver Decl., ¶¶ 17, 18.) Defendant has agreed to disclose three relevant internal investigations. (Opposition, pp. 7:11-16, 11:22-26, 11:28-12:4.)

            However, Defendant objects that some of the documents sought are protected by the attorney-client privilege and attorney work-product doctrine. If so, these documents would not be admissible or lead to the discovery of admissible evidence, as required for a showing of materiality in this context. (Richardson v. Superior Court, supra, 43 Cal.4th at pp. 1048-1049.) Plaintiff in turn argues Defendant waived these privileges by placing the adequacy of internal investigations at issue in its fourteenth, fifteenth, twenty-second, and twenty third affirmative defenses. (See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) None of the affirmative defenses expressly state Defendant’s internal investigations were adequate, though. (Answer, pp. 4-5, 6.) Thus, Plaintiff has demonstrated good cause for an in-camera review of documents related to the internal investigations, but only those documents not protected by the attorney-client privilege and attorney work-product doctrine.[1]

            Request No. 3

            Plaintiff’s third request seeks documents related to internal investigations Defendant conducted due to citizen complaints that Defendant’s employees engaged in gender or sex-based harassment, discrimination, or retaliation from October 2016 until October 2021. Importantly, this request pertains to the same employees who allegedly wronged Plaintiff. In her supporting declaration, Plaintiff alleges in part that two of Defendant’s employees harassed and discriminated against Plaintiff based on her sex, gender, and disability. (Oliver Decl., ¶¶ 7, 10, 11.) According to Plaintiff, documents related to these internal investigations are material because they will help Plaintiff prove that Defendant condoned and ratified the discrimination and harassment by failing to implement sufficient corrective measures. (Oliver Decl., ¶¶ 17, 18.) This is more likely if Defendant had a pattern or practice of such conduct. That is, Defendant failed on multiple occasions to sufficiently investigate the employees at issue for similar FEHA violations against people other than Plaintiff. (Oliver Decl., ¶ 18.)

            For its part, Defendant has agreed to track down any relevant investigations to the extent they exist. (Opposition, p. 8:5-12.) But the court finds that Defendant’s objection on the grounds of attorney-client privilege and attorney work-product doctrine applies to this request as well. Moreover, Defendant has not waived these privileges. Defendant also objects that the documents related to these investigations are immaterial because they concern misconduct by Defendant’s employees, not Defendant itself. In addition, Defendant objects that Plaintiff has failed to demonstrate why investigations resulting from citizen complaints from October 2016 until October 2021 are material. The court disagrees, as the records sought could establish Defendant’s practice of condoning or ratifying the employees’ misconduct. Thus, Plaintiff has demonstrated good cause for an in-camera review of documents related to the internal investigations, but only those documents not protected by the attorney-client privilege and attorney work-product doctrine.

            Request No. 4

            This request seeks documents related to Defendant’s internal investigation resulting from Plaintiff’s complaint that the employees discriminated, harassed, or retaliated against her based on her sex or gender and disability. In Plaintiff’s supporting declaration, Plaintiff alleges in part that Defendant’s employees harassed and discriminated against Plaintiff based on her sex, gender, and disability. (Oliver Decl., ¶¶ 7, 10, 11.) According to Plaintiff, documents related to Defendant’s internal investigation are material because they will help Plaintiff prove her claim that Defendant condoned and ratified the discrimination and harassment by failing to implement sufficient corrective measures. (Oliver Decl., ¶¶ 17, 18.)       

            Defendant in turn objects that this request duplicates Request Nos. 1 and 2. The court disagrees, as Defendant could have conducted this investigation before Plaintiff filed her claim with the California Civil Rights Department and initiated this action. Defendant also objects that the documents related to these investigations are immaterial because they concern misconduct by Defendant’s employees, not Defendant itself. But Plaintiff aims to prove Defendant condoned and ratified the employees’ alleged misconduct. The court finds that Defendant’s objection on the grounds of attorney-client privilege and attorney work-product doctrine applies to this request, though. Moreover, Defendant has not waived these privileges. Thus, Plaintiff has demonstrated good cause for an in-camera review of documents related to this internal investigation, but only those documents not protected by the attorney-client privilege and attorney work-product doctrine.

            Request Nos. 5 & 6

            These requests seek documents related to citizen and non-citizen complaints that the employees engaged in discrimination, harassment, or retaliation from October 2016 until October 2021. In her supporting declaration, Plaintiff alleges in part that Defendant’s employees harassed and discriminated against Plaintiff based on her sex or gender and disability. (Oliver Decl., ¶¶ 7, 10, 11.) According to Plaintiff, documents related to these complaints are material because they will help Plaintiff prove her claims that Defendant condoned and ratified the discrimination and harassment by failing to implement sufficient corrective measures. (Oliver Decl., ¶¶ 17, 18.) This is more likely if Defendant had a pattern or practice of such conduct. That is, Defendant failed on multiple occasions to sufficiently investigate the employees at issue for similar FEHA violations against other people. (Oliver Decl., ¶ 18.) For example, the employees’ continued employment despite numerous citizen and non-citizen complaints could suggest a pattern or practice on Defendant’s part.

            In response, Defendant raises several improper boilerplate objections. (Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516.) But Defendant clarifies that these requests are irrelevant and overbroad because they are not limited to complaints against the employees about discrimination, harassment, and retaliation based on sex or gender and disability, as Plaintiff alleges in this action. Even so, the citizen and non-citizen complaints could help Plaintiff prove that Defendant engaged in a practice of condoning the employees’ FEHA violations against people other than Plaintiff. This in turn could bolster Plaintiff’s contention that Defendant condoned sufficiently similar FEHA violations against her.

            Additionally, Defendant objects that the citizen and non-citizen complaints are immaterial because they concern misconduct by Defendant’s employees, not Defendant itself. Defendant also objects that Plaintiff has failed to demonstrate why complaints from October 2016 until October 2021 are material. But the court has already found these objections unavailing. The court notes, though, that Defendant’s objection on the grounds of attorney-client privilege and attorney work-product doctrine may apply to this request. Moreover, Defendant has not waived these privileges. Thus, Plaintiff has demonstrated good cause for an in-camera review of documents related to the complaints by citizens and non-citizens, but only those documents not protected by the attorney-client privilege and attorney work-product doctrine.

            Request Nos. 7 & 8

            Plaintiff’s seventh request seeks documents related to citizen complaints and resulting investigations that pertain to the employees’ dishonesty, lack of credibility, or use of excessive force from October 2016 until October 2021. The eighth request seeks documents related to non-citizen complaints and resulting investigations that pertain to the employees’ dishonesty, lack of credibility, or use of excessive force from October 2016 until October 2021. However, Plaintiff has not persuaded the court that the information sought is material to Plaintiff’s claims for discrimination, harassment, and retaliation. In her supporting declaration, though, Plaintiff also claims this information could help her attack the credibility of the employees if they are witnesses at trial. (Oliver Decl., ¶ 19.) But “[m]aterials from an officer’s personnel file reflecting dishonesty or nonfelony acts of moral turpitude do not become discoverable simply because a [party] argues that the officer will testify and might testify falsely.” (Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, 1064.) Thus, Plaintiff has not demonstrated good cause for an in-camera review of these documents.

CONCLUSION

                The court grants Plaintiff’s motion in part. At the hearing, the court shall set a date for the court’s in camera review.

            Plaintiff shall give notice.