Judge: Deirdre Hill, Case: YC072952, Date: 2023-02-23 Tentative Ruling

Case Number: YC072952    Hearing Date: February 23, 2023    Dept: M

Hearing Date:                         February 22, 2023

Moving Parties:                      Plaintiffs Kevin May, et al.

Responding Party:                  Defendant City of Los Angeles

Motion for Peace Officer Personnel Records (Pitchess)

            The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED IN PART and DENIED IN PART as stated below.

BACKGROUND

            On June 15, 2018, plaintiffs Kevin J. May, Albert Carlos, Miguel Lozano, and Anthony Digiorgio filed a complaint against City of Los Angeles, Los Angeles World Airports Police Department, and Chief David Maggard, Jr. for (1) disability discrimination – disparate treatment, (2) disability discrimination – disparate impact, (3) failure to prove reasonable accommodations, (4) failure to provide reasonable accommodations, (4) failure to engage in an interactive process, (5) harassment, and (6) retaliation.

            On October 3, 2018, plaintiffs filed a FAC.

            On October 21, 2019, plaintiffs filed a TAC.

            On February 4, 2021, the court denied plaintiffs’ Pitchess motion without prejudice.

LEGAL AUTHORITY

            “To initiate discovery [of the personnel files of police officers], the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue.  This two-part showing of good cause is a ‘relatively low threshold for discovery.’”  Warrick v. Superior Court (2005) 35 Cal. 4th 1011, 1019 (citations omitted).  “If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of evidence.”  Id.  “Information in a personnel record is ‘relevant to the subject matter involved in the action’ when it is relevant to a defense and when it is used to discover evidence to impeach a officer’s credibility.”  Fletcher v. Superior Court (2002) 100 Cal. App. 4^th 386, 399-400 (citation omitted).

Evidence Code §1043 states:  “ (a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. . . . (b) The motion shall include all of the following:  

(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 which 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.

(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. . . .”

            “The affidavits may be on information and belief and need not be based on personal knowledge, but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information.”  People v. Mooc (2001) 26 Cal. 4th 1216, 1226 (citation omitted).

            “[I]f a defendant has established good cause for the discovery, ‘the trial court proceeds to an in chambers examination of the records to determine whether they have any relevance to the issues presented in the current proceedings.’”  Slayton v. Superior Court (2006) 146 Cal. App. 4^th 55, 60. 

DISCUSSION

            Plaintiffs request an order directing defendant City of Los Angeles to produce and make available for in camera inspection the following categories of documents:

(1)   Records relating to promotion to Sergeant:  unredacted versions of the full disciplinary records of all individuals selected to promote to Sergeant at the Los Angeles World Airport in 2017 (Ryan Clark, Alejandro Baez, Michael Gentry, Gerard Kilayko, and Mechelle Brown); 2018 (Alicia Hernandez, Roxanna Mendez, James Lalicker, Sergio Baro, Johnny Pan, Long Nguyen, Jesse Farber, and Shawna Harris); and 2019 (Jin Shin, Rob A. Pedregon, Devin Feldman, and Christopher M. Faytol).

(2)   Records relating to promotion to Homeland Security Investigator:  unredacted versions of the full disciplinary record of Edna Morena, the individual selected to promote to Homeland Security Investigator at the Los Angeles World Airport in 2019.

(3)   Records relating to promotion to Canine Handling Officer:  unredacted versions of applications, resumes, scorecards, scoring notes, and selection memoranda of each individual selected to for Canine Handler at the Los Angeles World Airport in 2021 (Erik Perez, Craig Cdebaca, and Kimberly Ojeda) and plaintiffs Albert Carlos and Anthony DiGiorgio.

(4)   Records relating to promotion to Canine Handling Officer:  unredacted versions of the disciplinary records of all individuals selected for Canine Handler at the Los Angeles World Airport in 2018 (Nichola Fasheh) and 2021 (Erik Perez, Craig Cdebaca, and Kimberly Ojeda).

(5)   Records relating to promotion to Public Information Officer:  unredacted versions of the full disciplinary record of Jay Kim, the individual selected for Public Information Officer at the Los Angeles World Airport in 2019.

(6)   Disciplinary records relating to Lieutenant Norm Ino:  unredacted versions of all documents related to Los Angeles World Airport’s investigation(s) into claims of creating a hostile work environment, retaliation, and/or harassment in the disciplinary file of Lieutenant Ino.

(7)   Disciplinary records relating to Lieutenant Norm Ino:  complaints against Lieutenant Ino related to a hostile work environment, retaliation, and/or harassment.

(8)   Records relating to promotion to Detective:  unredacted versions of applications, resumes, scorecards, scoring notes, and selection memoranda of the individual selected for Detective at the Los Angeles Worlds Airport in 2023, Pedro Torres, and Miguel Lozano.

(9)   Records relating to promotion to Detective:  unredacted versions of the full disciplinary records of Pedro Torres, the individual selected for Detective at the Los Angeles World Airport in 2023, and Miguel Lozano.

(10)         Tarek Azmy’s Disciplinary records:  unredacted versions of Lt. Azmy’s full disciplinary records.

(11)         Tarek Azym’s Disciplinary records:  unredacted versions of all documents in Lt. Azmy’s personnel file that reference (a) his promotion from Officer to Sergeant; (b) his demotion from Sergeant to Officer; and (c) his promotion from Officer to Lieutenant.

The court rules as follows:

The court finds that the Pitchess motion is properly brought, and plaintiffs have  sufficiently complied with Evidence Code §1043 as to some but not all of the categories.  Plaintiffs have met their burden of showing good cause for certain categories.

The court GRANTS the motion as to categories 1-5 and 8-9.  The motion is GRANTED as to categories 6 and 7 as to plaintiff Carlos’s purported complaint only against Lt. Ino.  Otherwise, the categories are overly broad.  The motion is DENIED as to categories 10 and 11 as overly broad and/or immaterial.

            Plaintiff is ordered to give notice of the ruling.