Judge Gail Killefer, Case 21STCV27248 2023-03-27 Tentative Ruling

Judge: Gail Killefer, Case: 21STCV27248, Date: 2023-03-27 Tentative Ruling

Case Number: 21STCV27248 Hearing Date: March 27, 2023 Dept: 37

HEARING DATE: March 27, 2023

CASE NUMBER: 21STCV27248

CASE NAME: Brian Pratt v. City of Los Angeles

MOVING PARTY: Plaintiff, Brian Pratt

OPPOSING PARTY: Defendant, City of Los Angeles

TRIAL DATE: November 14, 2023

PROOF OF SERVICE: OK

MOTION: Motion for Discovery of Peace Officer Personnel Records

OPPOSITION: March 10, 2023

REPLY: March 20, 2023

TENTATIVE: Plaintiff’s Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion) is granted.

The custodian of records of the City of Los Angeles and Los Angeles Police Department is directed to bring to court, within _______ days, all records identified in Plaintiff’s Notice of Motion.

Plaintiff is to give notice.

Background

This action arises in connection with the employment of Brian Pratt (“Plaintiff”) with the City of Los Angeles (“Defendant”) as a peace officer from 1988 to 2021. The Complaint alleges in February 2017, Defendant was awarded a contract with the Los Angeles County Metropolitan Transit Authority (“MTA”) for a five-year period. The Complaint further alleges that beginning in February or March 2019, Plaintiff complained to Deputy Chief Blake Chow (“Chow”) and Commander Michael Oreb (“Oreb”) about MTA’s alleged violations of the Defendant’s contract with the MTA. The Complaint further alleges that in retaliation for these complaints, internal affairs investigations were initiated against Plaintiff, and Plaintiff was prevented from further promotion. In December 2020, Defendant issued Plaintiff an Official Reprimand, which the Complaint alleges negatively impacted Plaintiff’s employment opportunities.

On August 23, 2021, Plaintiff filed his operative Complaint. The Complaint alleges whistleblower retaliation in violation of Labor Code § 1102.5.

Plaintiff now moves to compel Defendant to produce certain documents pertaining to Plaintiff. Defendant opposes 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 Evid. Code, § 1043, which makes law enforcement personnel records privileged and subject to disclosure only by noticed motion. (Evid. Code, § 1043; Pen. Code, § 832.7(a).) The statutory scheme governing Pitchess motions is set forth in Evid. 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).

II. Analysis

A. Summary of Requests

Plaintiff requests disclosure of the following complaints pertaining to Plaintiff:

1. The Internal Affairs Investigation File CF No. 20-002118 regarding the investigation into Plaintiff’s allegations of misappropriation by Chow and Oreb [mistakenly labelled as CF. No. 20-001123 in Plaintiff’s motion] including:

2. (1) complaint face sheet;

3. (2) complaint adjudication form;;

4. (3) letter of transmittal;

5. (4) complaint investigation report;

6. (5) addenda to the complaint investigation report;

7. (6) complete witness interviews in audio format, transcript format, or both; and

8. (7) chronological log for Complaint Form (“CF”).

(Motion, 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).)

Plaintiff contends that good cause exists for the disclosure of this information because Plaintiff “has articulated a plausible factual scenario that Plaintiff was subjected to retaliation for his complaints...” (Motion, 17-18.) Further, Plaintiff contends the Internal Affairs Investigation file is discoverable since:

“The fact of a sham investigation into Plaintiff’s allegations is relevant to the reason why Internal Affairs refused to assign this investigation to Sgt. Alvarenga to handle, and to LAPD management’s state of mind in punishing Alvarenga—a me too witness—for adhering to the truth in his investigation of Oreb’s complaint against Pratt. (Motion, 19-20.)

Plaintiff submits the declaration of his counsel, Diana Wang Wells (“Wells”), in support of the instant motion. Wells attests upon information and belief that a possible factual scenario exists which may show retaliation against Plaintiff through the Internal Affairs Investigation, and that good cause exists for this information since it is vital to Plaintiff’s claims. (Wells Decl. ¶¶ 9-42.)

“38. This requested investigation file concerns the very allegations that are the subject of this civil claim, and thus the facts gleaned from the IA investigation are directly relevant to the matters in this lawsuit. These facts are relevant to the elements of Plaintiff’s claims that he will have the burden of proving at trial, namely: that he disclosed what he reasonably believed to be violations of the law, that Deputy Chief Chow and Commander Oreb thereafter took adverse employment actions against Plaintiff, and that Plaintiff’s disclosures were a contributing factor in the adverse actions taken by Chow and Oreb against Plaintiff.

39. Further, the witness statements in the investigation file are important for cross-examination and impeachment purposes. For instance, Plaintiff’s counsel is entitled to review the IA interview statements of Deputy Chief Chow and Commander Oreb to prepare for these witnesses’ depositions. Further, if any of these or other witnesses make statements at trial that contradict their statements in IA interviews, Plaintiff should be able to use their IA interview statements to impeach them...

40. Plaintiff submits that the investigating officer’s rationale, impressions, and conclusions should not be redacted from the IA investigation file, because to the extent that the investigator downplayed evidence of Chow’s and Oreb’s misappropriation of MTA resources, and/or evidence of retaliation against Plaintiff, or failed to interview certain witnesses in order to produce an investigation that would justify the Department’s ultimate conclusion that Plaintiff’s allegations were ‘Unfounded,’ the investigator’s intent would be relevant to prove that the Department conducted a sham investigation into Plaintiff’s allegations.” (Wells Decl. ¶¶38-40.)

In opposition, Defendant contends Plaintiff is not entitled to the portions of the Internal Affairs investigation file showing the investigating officer’s “rationale, impressions, and conclusions” since under Haggerty v. Superior (2004) 117 Cal.App.4th 1079 (“Haggerty”), the court found Plaintiff is not entitled to the investigating officer’s subjective impressions, conclusions, and analysis. (Opp., 2-3.)

It is true that in Haggerty, the Court of Appeal held that an investigating officer’s impressions of an investigation (found in the accused officer’s internal affairs report) were not admissible. (Haggerty, supra, 117 Cal.App.4th at p. 1088 [“There [was] nothing contained in the [investigating] officer’s subjective impressions of the facts found during the investigation that would be admissible at trial or lead to the discovery of admissible evidence”].)

However, the Haggerty Court held so (1) after finding that the plaintiff had shown good cause for requesting the report that contained the inadmissible impressions (Hagerty, supra, 117 Cal.App.4th at pp. 1086-1087) and (2) while conducting an independent review of the sealed documents to determine whether, during the trial court’s in camera review of the internal affairs report, the trial court had any basis to find that the investigating officer’s subjective impressions within the report were relevant (id., at p. 1088).

Indeed, as shown in Haggerty and under the relevant Evidence Code sections, good cause (shown by materiality and reasonable belief) comes before relevance. The court must first find “good cause” under Evid. Code § 1043(b), before conducting an in-camera review of the material to determine relevance. (Evid. Code, § 1045(b).)

The parties’ arguments regarding the relevance of the documents do not change the fact that the affidavit of Plaintiff’s counsel shows materiality for the discovery. (Evid. Code, § 1043(b)(3).) “A showing of good cause is measured by ‘“relatively relaxed standards”’ that serve to ‘“insure the production”’ for trial court review of ‘“all potentially relevant documents.”’ [Citation.]’ [Citation.]” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720, [emphasis added].)

The court finds that Plaintiff’s motion and the declaration of Plaintiff’s counsel demonstrate a “specific factual scenario” that establishes the materiality of the records sought. Counsel’s declaration lays out sufficient arguments that a review of the documents requested will lead to the discovery of relevant information.

The court finds that Plaintiff has established good cause for most of the records at issue by (1) setting forth the materiality of the disclosure sought to the subject matter involved in this action; and (2) stating upon reasonable belief that the governmental agency identified has the records or information from the records. (Evid. Code, § 1043(b)(3).)

“If the trial court concludes the defendant 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 defendant's motion.” (Mooc, supra, 26 Cal.4th at p. 1226.) “The trial court ‘shall examine the information in chambers’ [citation], ‘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.]” (Ibid.) “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.’ [Citation.]” (Ibid.) The California Supreme Court in Mooc went on to list several limitations on disclosure. (Id. at pp. 1226-1227.)

The court grants Plaintiff’s Pitchess motion and directs the custodian of records of the City and LAPD to produce all records relevant to Plaintiff’s motion.

Conclusion

Plaintiff’s Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion) is granted.

The custodian of records of the City of Los Angeles and Los Angeles Police Department is directed to bring to court, within _______ days, all records identified in Plaintiff’s Notice of Motion.

Plaintiff is to give notice.