Judge: Curtis A. Kin, Case: 22STCV24047, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV24047    Hearing Date: April 20, 2023    Dept: 72

MOTION FOR PRODUCTION OF PITCHESS DOCUMENTS

MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

Date:               4/20/23 (8:30 AM)

Case:               Brent Foster Beardmore v. City of El Segundo et al. (22STCV24047)

TENTATIVE RULING:

Plaintiff Brent Foster Beardmore’s Motion for Production of Pitchess Documents is GRANTED.

Defendants City of El Segundo, Darrell George, and Jaime Bermudez’s Motion to Quash Deposition Subpoena for Production of Business Records is GRANTED.

I.                   PLAINTIFF BRENT FOSTER BEARDMORE’S MOTION FOR PRODUCTION OF PITCHESS DOCUMENTS

Plaintiff Brent Foster Beardmore moves for an order directing defendant City of El Segundo to make available the following categories of documents within 15 days of the hearing: (1) investigation conducted by JL Group LLC based on plaintiff’s complaints of age discrimination, failure to prevent discrimination, harassment due to age and retaliation; (2) investigations based on plaintiff’s lawsuit filed on July 26, 2022 (Case No. 22STCV24407) [sic]; (3) all other El Segundo Police Department investigations based on plaintiff’s complaints; and (4) all materials relating to the decision-making process to replace plaintiff with a candidate more than 10 years younger.

Here, plaintiff identifies the personnel records sought, as required by Evidence Code § 1043(b)(2). (Schelly Decl. ¶ 16.) The documents relate to investigations of plaintiff’s complaints of age discrimination, failure to prevent discrimination, harassment due to age, and retaliation – the causes of action asserted in the operative First Amended Complaint.

In compliance with Evidence Code § 1043(b)(3), plaintiff includes a declaration from counsel showing good cause for the requested discovery and materiality to the subject matter of the instant lawsuit. Counsel declares that JL Group, LLC investigated plaintiff’s complaints of age harassment and harassment, plaintiff was interviewed in connection with the investigation, and that a written report was prepared of the investigation. (Schelly Decl. ¶ 10.) Records regarding the investigation of internal complaints are required to be maintained. (Schelly Decl. ¶11.) The requested documents are directly relevant to plaintiff’s claims and defendants’ affirmative defenses. (Schelly Decl. ¶ 12.) The requested documents will help plaintiff “identify witnesses or other evidence not yet discovered; refresh the recollection of witnesses whose complaints may have been made years before; assist the finder of fact in evaluating the credibility of witnesses; and assist in cross-examination and impeachment of defense witnesses or those called pursuant to Evidence Code section 776.” (Schelly Decl. ¶ 18.)

Defendants do not oppose the production of the investigation conducted by JL Group LLC based on plaintiff’s complaints of age discrimination, failure to prevent discrimination, harassment due to age and retaliation and the investigations based on the instant lawsuit – the first and second categories of documents listed in the notice of motion.

With respect to the third and fourth categories of documents, defendants contend the request lacks the specificity required under Evidence Code § 1043(b)(2). Plaintiff adequately set forth the type of records or information sought, including listing the materials included in the requests, and limiting the requests to investigations based on plaintiff’s complaints and the decision-making process regarding plaintiff’s replacement. (Schelly Decl. ¶¶ 16(C), 16(D).) Section 1043(b)(2) “in calling for a description of the ‘type’ of records sought to be disclosed, does not require the affiant to prove the existence of particular records.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 90.) Plaintiff does not need to identify specific responsive documents in the motion.

Defendants argue that plaintiff waived the right to compel the production of the fourth category of documents because plaintiff did not timely compel Requests for Production Nos. 24-26. (Schelly Decl. ¶ 16(D); Tala Decl. ¶ 14.) However, failure to comply with the procedure for one kind of discovery does not prevent plaintiff from using the procedure for a different kind of discovery, i.e., a Pitchess motion (Carter v. Superior Court (1990) 218 Cal.App.3d 994, 996 [. “We conclude that the Legislature has provided two procedures for the same kind of discovery and that absent a finding of burden under section 2019, subdivision (b), or a similar section, failure of one procedure does not bar use of the other”].)

The motion is GRANTED. The court will conduct an in camera review to determine if any of the documents produced are relevant to this action.  If the court finds that relevant documents are to be produced to plaintiff’s counsel, then in accordance with Evidence Code § 1045, documents that are required to be withheld by statute will not be produced. The in camera review is set for _________________ at _______ in Department 72 (Stanley Mosk Courthouse). Defendants are ordered to bring documents that are responsive to the requests set forth in the notice of motion on the day and time of this review.

With respect to who may attend the in camera review, “the trial court ‘shall examine the information in chambers…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’ [citations].) (People v. Mooc (2001) 26 Cal.4th 1216, 1226, citing Evid. Code §§ 915(b), 1045(b).) Defendants request to have their counsel, in addition to the custodian of records, present at the in camera review.  Defendants’ counsel involved in this litigation may not be present for the in camera review, as the review shall be conducted “away from the eyes of either party.”  (Muoc, 26 Cal.4th at 1227.)  However, insofar as the City of El Segundo, as the holder of the records at issue, may wish to have counsel for its custodian of records present to advise and assist the custodian during the in camera review, such counsel for the City of El Segundo may be present, so long as such counsel files and serves a declaration prior to the in camera review indicating he or she represents the City of El Segundo for the purposes of the in camera review and has no role (and will not have any future role) in representing the City or providing counsel in connection with the instant litigation by plaintiff.

II.                DEFENDANTS’ CITY OF EL SEGUNDO, DARRELL GEORGE, AND JAIME BERMUDEZ’S MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

Defendants seek to quash the deposition subpoena for production of business records issued to third party JL Group, LLC with respect to all 18 categories of documents, except for request number 6.

With respect to request numbers 1, 2, 3, 4, 5, 8, 10, 12, 15, 16, 17, and 18, defendants contend that the requested documents are protected from disclosure under the Pitchess statutes because other officers of the El Segundo Police Department are the subject of the requested documents. (Pen. Code § 832.7(a).) Plaintiff does not disagree. Rather, plaintiffs maintain that the motion is moot if the concurrently heard Pitchess motion is granted. However, the motion is not moot, because JL Group, LLC does not hold the Pitchess privilege; the City and affected officers do. (San Francisco Police Officers' Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 189 [“The analysis of Senate Bill No. 1436 prepared for the Assembly Committee on Criminal Justice notes that ‘[t]he thrust of this bill is to give the peace officer and ... employing agency the right to refuse to disclose any information concerning the officer or complaints or investigations ... in both criminal and civil proceedings’”].) The requested documents can only be disclosed to plaintiff after the Court reviews the documents brought by the City of El Segundo for relevance. (Evid. Code §§ 915(b), 1045(b).) Because it is undisputed that the requested documents cannot be produced outside the process set forth in the Pitchess statutes, the motion is GRANTED as to request numbers 1, 2, 3, 4, 5, 8, 10, 12, 15, 16, 17, and 18.

With respect to numbers 7, 9, 11, 13, and 14, these requests seek the following documents:

• 7. Any and all DOCUMENTS that REFLECT any communications between YOU and Defendants’ counsel of record concerning Plaintiff Brent Foster Beardmore.

• 9. Any and all correspondence or evidence of any communications between YOU and Defendant City of El Segundo concerning Plaintiff Brent Foster Beardmore.

• 11. Any and all records, DOCUMENTS and writings that RELATE TO Defendants and Defendants’ counsel of record’s contact with YOU and each subsequent contact by anyone involved in this case concerning YOUR review of records and/or discussions concerning Plaintiff Brent Foster Beardmore.

• 13. Any and all records that REFLECT payment received by from Defendants and counsel of record for YOUR services rendered in connection with Plaintiff Brent Foster Beardmore.

• 14. Any and all materials, DOCUMENTS, writings and things provided to YOU and/or YOUR agents or employees, by Defendants and Defendants’ counsel of record in connection with Plaintiff Brent Foster Beardmore.

(Tala Decl. ¶ 2 & Ex. 1.) “YOU” and “YOUR” is defined in the subpoena “refer to Jeffrey Johnson as a representative of JL Group LLC, including his agents and other representatives acting on his behalf.” (Ibid.)

Defense counsel declares: “JL Group LLC was retained to conduct an administrative investigation of Plaintiff’s allegations against other ESPD officers. The agreement whereby JL Group, LLC was retained to conduct the aforementioned investigation created an attorney-client relationship as it pertains to the investigation.” (Tala Decl. ¶ 11.) This averment is sufficient to implicate the attorney-client privilege. Even if JL Group, LLC were retained by the City of El Segundo and not defense counsel, “[L]egal opinions formed by counsel during representation of the client are protected ‘confidential communication[s],’ even if the opinions have not been transmitted to the client.” (Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263, 1273.) As phrased, requests 7, 9, 11, 13, and 14 may encompass documents from defense counsel in connection with counsel’s representation of defendants in the instant action. Request numbers 7, 11, and 14 seek defense counsel’s communications with JL Group, LLC. Request numbers 9 and 13 may include communications from defense counsel to JL Group, LLC.

Such documents may contain counsel’s legal opinions, which are protected by the attorney-client privilege. Such documents may also reflect counsel’s “impressions, conclusions, opinions, or legal research or theories,” which is protected work product under CCP § 2018.030(a). Because the requests are directed to a non-attorney, JL Group, LLC is not charged with determining which documents requested in request numbers 7, 9, 11, 13, and 14 are privileged and which are not.

The motion is GRANTED. The deposition subpoena issued to JL Group, LLC with respect to 1-5 and 7-18 is QUASHED.

Defendants’ request for monetary sanctions is DENIED. Defendants concede that request number 7, 9, 11, 13, and 14 may encompass documents that are not protected by privilege. (Mtn. at 13, fn. 4 [“To the extent Plaintiff serves a request for production seeking

communications between Defendants and JL Group, LLC that might implicate an attorney’s legal opinion, Defendants are prepared to meet and confer to clarify and narrow the request to exclude any communications protected by the attorney-client privilege”].) Accordingly, plaintiff opposed this motion in good faith in the attempt to obtain discoverable evidence.