Judge: Daniel S. Murphy, Case: 24STCV01047, Date: 2024-07-10 Tentative Ruling

Case Number: 24STCV01047    Hearing Date: July 10, 2024    Dept: 32

BACKGROUND

            On January 16, 2024, Plaintiff Emily Arrington filed this action against Defendants Contemporary Services Corporation and Daniel Larry Fernandez III. The complaint alleges that Plaintiff suffered sexual harassment and sexual assault by her supervisor (Defendant Fernandez) throughout her employment. The complaint specifically alleges that on February 6, 2022, Plaintiff was drugged and assaulted by Fernandez while working at the LA Coliseum.  

            On April 15, 2024, Plaintiff issued a subpoena to the Los Angeles Police Department (LAPD) for the production of records pertaining to the February 6, 2022 incident. LAPD has declined to disclose the information due to the pending criminal investigation.

            On June 4, 2024, Plaintiff filed the instant motion to compel LAPD’s compliance with the subpoena. LAPD filed its opposition on June 28, 2024. Plaintiff filed her reply on July 2, 2024.  

LEGAL STANDARD

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things …, the court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1(a), (b).) Good cause must be shown to compel a nonparty to produce documents. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)  

DISCUSSION

            “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 either of the following apply:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state.

(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; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

(Evid. Code, § 1040(b).) “As used in this section, ‘official 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.” (Id., § 1040(a).)

            In applying the privilege, “[t]he threshold determination is whether the information . . . was acquired in confidence. If the information was acquired in confidence, the trial court next must balance the interests to determine whether the necessity for preserving the confidentiality of the information outweighs the necessity for disclosure in the interest of justice.” (Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1128-1129.) This involves “consideration of the consequences to the litigant of nondisclosure and the consequences to the public of disclosure.” (Id. at p. 1129.) “Consideration of the consequences to the litigant of nondisclosure involves familiar issues concerning the importance of the information to the fair presentation of the litigant's case, the availability of the material to the litigant by other means, and the effectiveness and relative difficulty of such other means. Consideration of the consequences to the public involves matters relating to the effect of disclosure on public processes and procedures.” (Ibid., internal citations omitted.)

            “Evidence gathered by police as part of an ongoing criminal investigation is by its nature confidential.” (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 764.) Therefore, “the contents of police investigative files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure in any particular case.” (Id. at p. 765.)

            Plaintiff argues that the evidence sought in the subpoena is critical to her case because it pertains to a sexual assault that serves as a central basis of the lawsuit. The evidence is pertinent to proving that the assault occurred and thus proving liability for the claims alleged in the complaint. Plaintiff argues that she has no other means to obtain material that could only be in LAPD’s possession, such as reports, recordings, and physical evidence.

            On the other hand, LAPD invokes the public interest in the effective prosecution of crimes. Citing to County of Orange, LAPD argues that “[r]eleasing LAPD’s investigation, notes, reports, videos gathered thus far would greatly compromise the criminal prosecution of the case, as well as, jeopardizing justice for the victim, the plaintiff herein.” (Opp. 4:12-14.) In County of Orange, the parents of a deceased child sued due to the way they were treated during the sheriff’s department investigation. (County of Orange, supra, 79 Cal.App.4th at p. 762.) The sheriff’s department refused to comply with a production demand for its investigative file of the child’s death, asserting the official information privilege. (Ibid.)

The court agreed with the County’s “compelling picture of the dire consequences that could result from the disclosure of the contents of an investigative file to the suspects in a possible murder.” (County of Orange, supra, 79 Cal.App.4th at p. 766.) “There is an obvious danger that they may learn crucial information that would enable them to avoid apprehension. More specifically, permitting suspects to review materials in an investigative file ‘will enable them to invent stories, explain away evidence thus far gathered, and intimidate or otherwise influence potential witnesses.’” (Ibid.) The court concluded that these dangers outweighed the parents’ interest in seeking vindication for their mistreatment. (Id. at pp. 767-68.)

Plaintiff argues in reply that LAPD has presented no evidence of the dangers of disclosure in this case. Specifically, LAPD cites to the declaration of Detective Kristina Montoya for its proposition that disclosure would compromise the criminal investigation. (Opp. 4:12-14.) Yet, Det. Montoya’s declaration was neither served on Plaintiff nor filed with the Court. This appears to be a mere oversight. Assuming Det. Montoya’s declaration states what LAPD claims it states, the Court would agree with LAPD and County of Orange that the risks of disclosure during an ongoing investigation outweigh Plaintiff’s interest in prosecuting her case. Thus, the Court is inclined to deny the motion if LAPD files Det. Montoya’s declaration.

CONCLUSION

            Plaintiff’s motion to compel compliance with subpoena is DENIED on the condition that LAPD file Det. Montoya’s declaration.