Judge Gail Killefer, Case 20STCV15371 2022-08-15 Tentative Ruling

Judge: Gail Killefer, Case: 20STCV15371, Date: 2022-08-15 Tentative Ruling

Case Number: 20STCV15371 Hearing Date: August 15, 2022 Dept: 37

HEARING DATE: August 15, 2022

CASE NUMBER: 20STCV15371

CASE NAME: Edil Vazquez, et al. v. Michael Olivieri, et al.

MOVING PARTY: Defendant, City of Pomona

OPPOSING PARTIES: Plaintiffs, Edil Vazquez and Steve Congalton

TRIAL DATE: March 29, 2022

PROOF OF SERVICE: OK

MOTION: Motion for Discovery of Peace Officer Personnel Records

OPPOSITION: August 2, 2022

REPLY: August 8, 2022

TENTATIVE: The court finds that City has demonstrated good cause for the production for the court’s review of documents identified in City’s motion. The court will schedule a hearing for the in-camera examination of City’s specifically identified records on August 30, 2022, at 9:30 a.m. City is to give notice.

Background

This action arises out of the employment of Plaintiffs, Edil Vazquez (“Vazquez”) and Steve Congalton’s (“Congalton”) as police officers with Defendant, the City of Pomona. (“City”) Plaintiffs’ Complaint also names as Defendants police chief Michael Olivieri (“Olivieri”) and police captain Dennis Cooper. (“Cooper”). Plaintiffs allege that they both participated in City’s promotional process but were not selected for the promotions they sought due to Olivieri and the City’s alleged favoritism for certain employees over others. Further, Plaintiffs allege that Olivieri engaged in other forms of favoritism and nepotism during his employment as police chief, allegedly socializing with certain employees but not others and assigning unfavorable shifts to officers he did not like. Additionally, Plaintiffs’ Complaint alleges that Cooper was one of Olivieri’s favored employees, and that Cooper allegedly made false accusations against Plaintiffs such that they were prevented from receiving promotions and were subject to negative treatment from Olivieri and other management at City.

On November 25, 2020, Plaintiffs filed their operative First Amended Complaint. (“FAC”) The FAC alleges the following causes of action: (1) retaliation in violation of Labor Code § 1102.5 (against City), (2) violation of rights protected under Government Code § 3300 (against City), (3) intentional infliction of emotional distress (against Olivieri and Cooper), (4) discrimination on the basis of race/national origin in violation of the Fair Housing Employment Act (“FEHA”) by Vazquez against City only), (5) failure to prevent discrimination in violation of FEHA (by Vazquez against city only), (6) declaratory relief (against City only).

City now moves for an order permitting City to use and disclose various records from internal affairs investigations involving Plaintiffs, personnel files, and documents concerning disciplinary notices following that investigation.

Plaintiffs oppose the motion.

Discussion

I. Legal Standard

A motion to discover a law enforcement officer’s personnel file or other police agency record that contains relevant information is called a Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-540.) The Pitchess motion has been partly codified in Evidence Code § 1043, which makes law enforcement personnel records privileged and subject to disclosure only by noticed motion. (Evid. Code, § 1043; Penal Code, § 832.7(a).) The statutory scheme governing Pitchess motions is set forth in Evidence Code §§ 1043-1047 and Penal Code §§ 832.5, 832.7, 832.8. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) These statutes provide the exclusive means of discovery of such records in both criminal and civil proceedings. (County of Los Angeles v. Sup. Ct. (1990) 219 Cal.App.3d 1605, 1609-1610.)

“Under the statutory scheme, a party seeking discovery of a peace officer’s personnel records must follow a two-step process. First, the party must file a written motion describing the type of records sought, supported by affidavits showing good cause for the discovery…, 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. This initial burden is a ‘relatively relaxed standard.’ Information is material if it will facilitate the ascertainment of the facts and a fair trial. A declaration by counsel on information and belief is sufficient to state facts to satisfy the ‘materiality’ component of that section.” (Haggerty v. Sup. Ct. (2004) 117 Cal.App.4th 1079, 1085-1086 (Haggerty), internal citations and quotations omitted.) The motion must provide a “specific factual scenario” that establishes the materiality of the discovery sought. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86 (Santa Cruz).) The documents must be requested “with adequate specificity” to preclude the possibility that the moving party is engaged in a “fishing expedition.” (People v. Memro (1985) 38 Cal.3d 658, 678 (Memro), overruled on unrelated grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, n. 2.) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery is sought must be excluded from disclosure. (Evid. Code, § 1045(b).)

“Second, if the trial court concludes [a party] has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the [requesting party’s] motion…. 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…. Subject to statutory exceptions and limitations ... the trial court should then disclose to the defendant such information that is relevant to the subject matter involved in the pending litigation.” (Haggerty, supra, 117 Cal.App.4th at p. 1086, internal quotation marks and citations omitted).

I. Analysis

A. Summary of Requests

City requests permission to use and disclose all of the following records in this action subject to a protective order:

“The investigation file for the recently completed administrative investigation identified as the City of Pomona Police Department (“PPD”) AIC #2021-074 involving Plaintiffs Edil Vazquez and Steve Congalton, as well as disciplinary

notices flowing from such investigation.”

(City Notice of Pitchess Motion, p.2.).

B. Good Cause

Section 1043 requires a showing of “good cause” for discovery in two general categories: “(1) the ‘materiality’ of the information or records sought to the ‘subject matter involved in the pending litigation,’ and (2) a ‘reasonable belief’ that the governmental agency has the ‘type’ of information or records sought to be disclosed.” (Santa Cruz, supra, 49 Cal.3d at p. 84, citing Evid. code, § 1043(b).)

City contends that good cause exists for use of the above-described records because they are relevant to the City’s defenses as “the City disputes the assertions being made by Plaintiffs and their witnesses….” (Motion, 8-10.) City further contends “City is informed and believes that the documents it seeks to use bear directly on the credibility of Plaintiffs,” which are relevant “[s]ince their credibility is at issue, and since they are material witnesses in this case....” (Id.)

City submits a declaration from its counsel, Geoffrey S. Sheldon (“Sheldon”), in support of its motion. Sheldon attests that City believes “Plaintiffs have made a number of allegations in this lawsuit that the City contends are fabricated or untrue, and as such, the City contends that their veracity and credibility is at issue in this case.” (Declaration of Sheldon (“Sheldon Decl.”), ¶ 5.)

Additionally, Sheldon attests that “in September 2021 after both lawsuits were filed, an incident occurred that led the [sic] PPD Internal Affairs Investigation AIC #2021-074. I am informed and believe that the investigation was recently completed and it resulted in disciplinary action being initiated that may significantly impact Vazquez and/or Congalton’s credibility at trial.” (Sheldon Decl. ¶6.)

In opposition, Plaintiffs oppose the motion by contending: (1) Plaintiffs have filed a motion to disqualify counsel specifically based on counsel “improperly receiving an advantage specifically related to this motion” and “the Court should only hear this Pitchess Motion after the Court” has heard Plaintiffs’ Motion to Disqualify; and (2) that this “motion is narrowly tailored to provide only documents that are relevant to Defendant’s litigation strategy and is not inclusive of all documents.” (Opposition, 1-2.) As such, Plaintiffs request

“for the sake of judicial economy and to avoid Plaintiffs from having to file their own Pitchess Motion, the Court may interpret the request “the investigation file for the recently completed administrative investigation identified as PPD AIC # 2021-074” to include the complete file including communications between the investigator and any member of the City, including its attorneys and any communications between the City Manager, the Police Chief, the Internal Affairs Department, relating to or referring to the events pertaining to the investigation.” (Id.)

Plaintiffs do not oppose City’s contentions that good cause exists for the use of these documents, but rather merely contend that the motion should not be heard or should be expanded based on City’s definition. However, Plaintiffs do not explain how these records and this motion cannot be heard before the motion to disqualify, especially since Sheldon has attested the “materials requested... are maintained by the City and/or PPD pursuant to their obligations... and that the City and/or PPD regularly keep the records in the normal course of business.” (Sheldon Decl. ¶4.)

In reply, City thus contends “Plaintiffs do not have any factual or legal basis upon which to oppose the City’s Pitchess Motion.” (Reply, 2.) City also provides there is no basis for any mandatory continuance under CCP § 595.2, and Plaintiffs have not shown sufficient good cause for a discretionary continuance as well. (Reply, 2-3.) Lastly, City contends “Plaintiffs’ request for production of documents (thinly disguised as a basis for opposing the City’s Pitchess motion) is not only grossly overbroad, but also outside the purview of California’s Pitchess procedures,” where Plaintiffs’ requested documents are not “peace or custodial officer personnel records.” (Reply, 3-4.) The court agrees.

The court finds that City has demonstrated good cause for the production of documents described in subsection (a), above. If Plaintiffs wish to conduct further factfinding regarding the communications they described, they are welcome to use the discovery process or to file their own Pitchess motion. They are not following correct procedure by making such a request in their opposition to the current motion.

As City has demonstrated good cause for the disclosure of certain records identified above, the court will schedule a hearing for an in-camera examination, under a protective order as City has requested. (Motion, 9.) Because City requested the discovery of these documents pursuant to a Pitchess motion, the court orders City to bring all potentially relevant records so that it may order the disclosure of “such information [that] is relevant to the subject matter involved in the pending investigation.” (Evid. Code, § 1045(a); Haggerty, supra, 117 Cal.App.4th at p. 1086.)

Conclusion

The court finds that City has demonstrated good cause for the production for the court’s review of documents identified in City’s motion. The court will schedule a hearing for the in-camera examination of City’s specifically identified records on August 30, 2022, at 9:30 a.m. City is to give notice.