Judge: Curtis A. Kin, Case: 23STCP02588, Date: 2024-02-08 Tentative Ruling

Case Number: 23STCP02588    Hearing Date: February 8, 2024    Dept: 82

MOTION FOR JUDGMENT ON THE PLEADINGS

Date:               2/8/24 (1:30 PM)

Case:                           Jesus Cerda v. County of Los Angeles (23STCP02588)

TENTATIVE RULING:

Respondent County of Los Angeles’ Motion for Judgment on the Pleadings is GRANTED.

As a preliminary matter, petitioner Jesus Cerda served and filed an opposition on February 1, 2024. Based on the hearing date of February 8, 2024, the deadline to file an opposition was January 26, 2024. Despite the untimely filing of the opposition, the Court exercises its discretion and considers the opposition. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)   

Respondent County of Los Angeles’ request for judicial notice of Exhibit 1, the Felony Complaint filed by the State of California against petitioner Jesus Cerda on June 26, 2023, Los Angeles Superior Court Case No. VA160933, is GRANTED, but only the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

Respondent’s request for judicial notice of Exhibit 2, a June 26, 2023 minute order in Case No. VA160933, setting bail at $1,000,000, is GRANTED, pursuant to Evidence Code § 452(d).

Respondent’s request for judicial notice of Exhibit 3, the Case Information for Case No. DOWVA160933, The People of the State of California vs. Cerda, Jesus Silva, obtained on January 9, 2023, is GRANTED, pursuant to Evidence Code § 452(d).

Respondent moves for judgment on the pleadings with respect to the entire Petition. Respondent contends that, based on the criminal charges filed against petitioner, it is entitled to delay disclosure of the records sought by petitioner in his Public Records Act request pursuant to Penal Code § 832.7(b)(8)(B). (RJN Exs. 1-3.)

Penal Code section 832.7(b)(8)(B) provides that an agency may withhold records relating to an incident involving discharge of a firearm at a person by a peace officer “that is the subject of an active criminal or administrative investigation…[i]f criminal charges are filed related to the incident in which misconduct occurred or force was used.” The statute further provides that the agency “may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.”

With respect to the June 22, 2023 encounter between petitioner and the Los Angeles County Sheriff’s Department (“LASD”) deputy alleged in the Petition, petitioner has been charged with attempted murder of a peace officer and assault on a peace officer. (Compare Pet. ¶¶ 7, 8 with RJN Ex. 1 [incident between petitioner and peace officer occurred on 6/22/23].) Petitioner does not deny that criminal charges have been filed against him related to the June 22, 2023 incident alleged in the Petition.

Rather, petitioner argues that section 832.7(b)(8)(B) only applies when criminal charges are filed against a peace officer. The Court disagrees. Section 832.7(b)(8)(B) does not state against whom criminal charges must be filed. The statute only requires the criminal charges to be “related to the incident in which misconduct occurred or force was used.” By alleging that shots were discharged at petitioner during his encounter with the LASD deputy, petitioner alleges that force was used during the incident. (Pet. ¶ 8.) The Court may not read into the statute the subject against whom criminal charges are filed. (City and County of San Francisco v. International Union of Operating Engineers, Local 39 (2007) 151 Cal.App.4th 938, 945 [“We may not add language to a statute that is not otherwise present”].)

To the extent that section 832.7(b)(8)(B) is ambiguous, petitioner argues that section 832.7 references “administrative investigations,” to which only peace officers are subject. (See Pen. Code §§ 832.7(b)(8), 832.7(b)(8)(C).) (See Davis v. Fresno Unified School Dist. (2023) 14 Cal.5th 671, 687 [to interpret statute, courts consider “portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose”].) Petitioner also invokes the legislative intent of section 832.7(b)(8)(B) to promote transparency relating to harmful or unlawful conduct by peace officers. (First Amendment Coalition v. Superior Court (2023) 98 Cal.App.5th 593, 316 Cal.Rptr.3d 675, 677].)

Petitioner is correct that section 832.7 contemplates delays of disclosure during criminal enforcement proceedings against officers who engaged in misconduct or use of force. (Pen. Code § 832.7(b)(8)(A)(ii).) However, section 832.7 also contemplates delays of disclosure when “the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force.” (Pen. Code § 832.7(b)(8)(A)(iii).) Subsections (b)(8)(A)(ii) and (b)(8)(A)(iii), which immediately precede subsection (b)(8)(B) at issue here, clearly demonstrate the Legislature knew how to differentiate between criminal proceedings against an officer and someone other than the officer. That the Legislature did not do so in subsection (b)(8)(B) clearly demonstrates the Legislature meant for (b)(8)(B) to apply when criminal charges are filed against either an officer or someone other than the officer.  Put another way, the Legislature did not provide for delays of disclosure solely in instances where a peace officer is subject to an active criminal or administrative investigation or criminal charges.

With respect to the criminal case against petitioner, it appears that there has not been a verdict. (RJN Ex. 3.) It also appears that petitioner has not entered a plea of guilty or no contest. (Ibid.)  Accordingly, pursuant to Penal Code section 832.7(b)(8)(B), respondent is entitled to delay disclosure of the records which petitioner seeks through the Petition.

The motion is GRANTED. Unless petitioner can in good faith allege that there are no longer any filed criminal charges relating to the incident or that there has been a verdict at trial of guilty/no-contest plea to such criminal charges, it would appear the pleading defect cannot reasonably be cured such that leave to amend should be denied.  In the untimely opposition, petitioner asks for leave to amend but does not proffer or explain how a cure is reasonably possible.  (Opp. at 4.)  At the hearing, the Court will hear from petitioner whether the Petition can be amended to address the defects discussed above.