Judge: Gail Killefer, Case: 22STCV28507, Date: 2024-03-21 Tentative Ruling
Case Number: 22STCV28507 Hearing Date: March 21, 2024 Dept: 37
HEARING DATE: Thursday, March 20, 2024
CASE NUMBER: 22STCV28507
CASE NAME: Cesar Contreras v. City of Los Angeles
MOVING PARTY: Plaintiff Cesar Contreras
OPPOSING PARTY: Defendant City of Los Angeles
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Motion for Discovery of
Peace Officer Personnel Records (Pitchess Motion)
OPPOSITION: 8 March 2024
REPLY: 13
March 2024
TENTATIVE: Plaintiff’s Motion is granted in its entirety. The court
orders the custodian of records for the City of Los Angeles to appear and produce all potentially relevant writings and
specifically those requested herein for an in camera review on ___ . Plaintiff
to give notice.
Background
On August 31, 2022, Cesar
Contreras (“Plaintiff”) filed a Complaint against the City of Los Angeles
(“Defendant”) and Does 1 to 100 alleging a single cause of action for
retaliation in violation of Labor Code § 1102.5.
On February 16, 2024, the
Plaintiff filed a Pitchess Motion. Defendant opposes the Motion. The matter is
now before the court.
I. Legal Standard
A motion to discover
a law enforcement officer’s personnel file is called a Pitchess motion.
(Pitchess v. Super. Ct. (1974) 11 Cal.3d 531, 536-540.) The statutory
scheme governing Pitchess motions is outlined in Evidence Code §§ 1043
through 1047 and Penal Code §§ 832.5, 832.7, and 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 L.A. v.
Super. Ct. (1990) 219 Cal.App.3d 1605, 1609-1610.)¿
There is a special
two-step procedure for securing disclosure of peace officer personnel
records. (Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1019.) First,
Evidence Code § 1043 requires a written motion and notice to the governmental
agency which has custody of the records sought, and affidavits showing good
cause for the discovery or disclosure sought, setting forth the materiality
thereof to the subject matter involved in the pending litigation. (Evid. Code,
§ 1043(b).)
Second, once good cause is established, an in-camera hearing
must be held. (Evid. Code, § 1045; see also
Slayton v. Superior Court (2006)
146 Cal.App.4th 55, 61.) In chambers, the court must examine the information
in conformity with Evidence Code § 915 and shall exclude from disclosure “[f]acts
sought to be disclosed that are so remote as to make disclosure of little or no
practical benefit.” (Evid. Code, § 1045(b)(2).) The court must also “consider
whether the information sought may be obtained from other records maintained by
the employing agency in the regular course of agency business which would not necessitate the
disclosure of individual personnel records.” (Evid. Code, § 1045(c).) “[T]he the
court may make any order which justice requires to protect the officer or
agency from unnecessary annoyance, embarrassment or oppression.” (Evid. Code, §
1045(d).) If
disclosure is ordered, the court must also order that the disclosed information
may not be used “for any purpose other than a court proceeding pursuant to
applicable law.” (Evid. Code, § 1045(e).)
II. Request for Judicial Notice
The court may
take judicial notice of records of any court of record of the United States.
(Evid. Code, § 452(d)(2).) However, the court may only judicially notice the
existence of the record, not that its contents are the truth. (Sosinsky v.
Grant (1992) 6 Cal.App.4th 1548, 1565.)
Defendant
requests judicial notice of the following:
1)
Plaintiff’s Complaint filed
in this action on August 31, 2022, attached hereto as Exhibit A (exhibits and
form attachments omitted).
2)
Plaintiff’s Second Notice
of Errata re: Statement of Facts in Plaintiff’s Motion for Discovery of Peace
Officer Personnel and Other Document; Memorandum of Points and Authorities in
Support thereof; Declaration of Jason L. Oliver filed in this action on
February 16, 2024 (Exhibit B).
3)
Defendant’s Memorandum of
Points and Authorities in Support of Defendant City of Los Angeles’ Motion for
Summary Judgment, or in the Alternative, Summary Adjudication filed on February
15, 2024 (Exhibit C).
Defendant’s request
for judicial notice is granted.
II. Discussion
Plaintiff was a Senior Lead Officer
employed by the Los Angeles Police Department. (Compl. ¶ 11.) The Complaint
asserts that on or around November 2020, when Plaintiff was in the process of
serving a search warrant on a business engaged in the sale of marijuana, Plaintiff
was contacted by the business owner who stated that he was aware of the plan to
have his business searched and that District 7 City Councilwoman, Monica
Rodriguez, had told the business owner about it. (Compl. ¶ 13.)
Plaintiff reported this incident to
Captain III David Grimes who refused to do anything. (Compl. ¶ 14.) In December
2020, while attending a city meeting, Plaintiff alleges that Councilwoman
Rogriguez approached him and stated that he had slandered her name and reported
it to the LAPD. (Compl. ¶ 15.) Following another City meeting, Councilwoman
Rodriguez threatened Plaintiff that she “could
have a conversation with the Chief of Police and have Plaintiff gone.” (Compl.
¶ 16.) In the summer of 2021, Plaintiff “advised Captain III Johnny Smith about
Councilwoman Rodriguez’s threat, her obstruction of justice concerning the
warrants and the fact that he had previously reported this to Captain III
Grimes.” (Compl. ¶ 17.) On or about late
2021, Captain II Brian Wendling told Plaintiff that his “head was on the
chopping block.” (Compl. ¶ 19.) Plaintiff was also contacted by Deputy Chief
Jorge Rodriguez who told Plaintiff he “better fly straight” or he “would be
gone.” (Compl. ¶ 19.)
In January 2022, Captain Smith informed
Plaintiff that Councilwoman Rodriguez had demanded Plaintiff be removed from
District 7. (Compl. ¶ 20.) Plaintiff had worked in District 7 for the
last 6 years. Captain Smith told
Plaintiff that he would no longer be working in District 7, effective
immediately. Plaintiff was reassigned in the middle of a deployment period. (Compl. ¶ 20.) Plaintiff’s Complaint asserts
that the retaliation was ongoing and continuous to date, causing his health to
suffer. (Compl. ¶ 22.) Accordingly, Plaintiff brought this action alleging a
single cause of action for retaliation under Labor Code § 1102.
Plaintiff’s Motion requests discovery as
to the following as summarized below:
Request No. 1: All
materials related to LAPD Internal Affairs Investigation identified as CF No.
22-002788 generated pursuant to Plaintiff’s claim for damages and civil
complaint filed on August 31, 2022 (Case No. 22STCV28507).
Request
No. 2: Any complaints and
investigations of complaints/allegations related to or initiated as a result of
Plaintiff’s lawsuit, filed on August 31, 2022 (Case No. 22STCV28507).
Request
No. 3: Any complaints and/or
investigations of complaints/allegations related to and/or initiated as a
result of Plaintiff’s Government Tort Claim filed with the City Clerk’s Office
on May 11, 2022 (#C22-19863).
Request No. 4: Any complaints and/or investigations of
complaints/allegations related to and/or initiated against District 7 City
Councilwoman Monica Rodriguez (“Councilwoman Rodriguez”), Captain III David
Grimes (“Grimes”), Captain III Johnny Smith (“Smith”), Deputy Chief Jorge
Rodriguez (“Deputy Chief Rodriguez”), and/or Deputy Chief Hamilton (“Hamilton”)
as a result of citizen-only complaints of retaliation from November 2015
forward (5 years before the earliest wrongdoing alleged in Plaintiff’s Complaint).
Request
No. 5: Any complaints and/or
investigations of complaints/allegations related to and/or initiated against
District 7 City Councilwoman Monica Rodriguez (“Councilwoman Rodriguez”),
Captain III David Grimes (“Grimes”), Captain III Johnny Smith (“Smith”), Deputy
Chief Jorge Rodriguez (“Deputy Chief Rodriguez”), and/or Deputy Chief Hamilton
(“Hamilton”) as a result of Plaintiff’s complaints of retaliation.
Request No. 6:
All documents containing prior citizen-only complaints of retaliation against
Councilwoman Rodriguez, Grimes, Smith, Deputy Chief Rodriguez, and/or Hamilton
from November 2015 forward (5 years before the earliest wrongdoing alleged in
Plaintiff’s Complaint).
Request No. 7:
All documents containing prior non-citizen only (i.e., officer/City
employee-reported) complaints of retaliation against Councilwoman Rodriguez,
Grimes, Smith, Deputy Chief Rodriguez, and/or Hamilton.
Request No. 8:
All documents containing/pertaining to complaints/allegations, reports,
complaints, and/or investigations related in any way to Councilwoman Rodriguez,
Grimes, Smith, Deputy Chief Rodriguez, and/or Hamilton allegedly engaging in
any of the following conduct: a) preparing/submitting reports that are false,
misleading, and/or less than fully forthcoming; b) making statements that are
false, misleading, and/or less than fully forthcoming; c)
engaging/participating in alleged acts of planting evidence; d) engaging and/or
participating in alleged acts of failing to report or covering up alleged
violation(s) of department policy/law; e) using excessive force; and/or g)
responding to complaints or making statements in connection with investigation(s)
into complaint(s), in a manner that is false, misleading and/or less than fully
forthcoming, from November 2015 forward (5 years before the earliest wrongdoing
alleged in Plaintiff’s Complaint).
Request No. 9:
All documents containing/pertaining to non-citizen only (i.e., officer/City
employee-reported) allegations, reports, complaints, and/or investigations
related in any way to Councilwoman Rodriguez, Grimes, Smith, Deputy Chief
Rodriguez, and/or Hamilton: a) preparing/submitting reports that are false,
misleading, and/or less than fully forthcoming; b) making statements that are
false, misleading, and/or less than fully forthcoming; c)
engaging/participating in alleged acts of planting evidence; d) engaging and/or
participating in alleged acts of failing to report or covering up alleged
violation(s) of department policy/law; e) using excessive force; and/or g)
responding to complaints or making statements in connection with
investigation(s) into complaint(s), in a manner that is false, misleading
and/or less than fully forthcoming.
Request No. 10:
All materials related to LAPD Internal Affairs Investigation identified as CF
No. 18-002437, in which Plaintiff was interviewed but was not an accused
employee.
Plaintiff asserts that Request No. 1 relates to an internal
affairs (IA) investigation that arose because of Plaintiff’s Civil Complaint. Defendant has refused to produce the
information because the information must be sought through a Pitchess motion.
Plaintiff asserts that the information is relevant to show the continued
retaliation against Plaintiff and the fact that Plaintiff engaged in a
protected activity.
Requests Nos. 2, 3, 4, 5, 6, 7, 8, and 9 relate
to Plaintiff’s claims and affirmative defenses. LAPD maintains a written “zero
tolerance” policy and any reports of discrimination, harassment, and relation
are required to be investigated. If no investigation into Plaintiff’s
allegations took place, then such evidence or its absence would support
Plaintiff’s claim that Defendant not only condoned and ratified the retaliation
against Plaintiff but perpetuated such actions against him. The requested
information is also relevant to show past misconduct (no earlier than 5 years)
by Councilwoman Rodriguez, Grimes, Smith, Deputy Chief Rodriguez, and/or
Hamilton, of citizen-only retaliation, which will support Plaintiff’s
claims and show that these individuals had a history of retaliation and LAPD
did nothing about it.
Request No. 8 goes
to any complaints, no earlier than 5 years, regarding Councilwoman Rodriguez,
Grimes, Smith, Deputy Chief Rodriguez, and/or Hamilton truth and veracity and
ultimately credibility. Plaintiff seeks to determine to what extent the
Department did not perform an investigation into any complaints of retaliation,
acts of dishonestly, falsifying records, fraud, or other bad acts, or to the
extent said investigations were otherwise insufficiently performed.
Request No. 9 pertains
to non-citizen only complaints regarding Councilwoman Rodriguez, Grimes,
Smith, Deputy Chief Rodriguez, and/or Hamilton’s truth and veracity and
ultimately credibility.
Request No. 10 relates
to Plaintiff’s right to evaluate any internal affairs investigations in which
he is identified as a witness because these documents may be relevant to
Defendant’s affirmative defenses. Plaintiff further asserts that the
information is relevant to determine if Plaintiff’s participation in the IA
investigation resulted in the Department retaliating against him.
Defendant opposes the Motion on
the basis that Plaintiff’s claims are without merit and the Motion seeks
private peace officer personnel records for the purpose of finding “bad
character” evidence against witnesses and that the information sought is wholly
irrelevant and not likely to lead to discovery of admissible evidence.
First, the moving party need only show a
“plausible factual foundation” for discovery—i.e., a scenario of officer
misconduct that “might occur or could have occurred.” (Warrick, supra.
35 Cal.4th at p. 1026.) The
threshold question during the first step analysis of a Pitchess motion
is not whether the evidence sought is admissible but whether the Plaintiff has
shown good cause for the information sought. The court finds that Plaintiff has
articulated the materiality of the information sought and a reasonable belief
as to why Defendant is in possession of the information and records sought to
be disclosed. (See Oliver Decl. ¶¶ 5-18.)
Whether the information is relevant
is a determination made by the court in chambers. (See Warrick, supra,
25 Cal.4th at p. 1019.) “The trial court is entrusted with
discretion to conduct the in camera review in the first instance, and to order
the disclosure of relevant information that is discoverable under the Pitchess statutory provisions.” (Slayton, supra, 146
Cal.App.4th at p. 61, fn. 3.) Therefore, it is the court, not Defendant, that
determines if the information sought is relevant. The fact that such evidence
may not be admissible at trial does not mean that the evidence sought by
Plaintiff is not discoverable.
Lastly, Defendants argue that
to the extent the records sought are privileged or require the disclosure of
private information protected by third-party privacy rights, such information
should be protected from disclosure.
First, the burden of
establishing that a particular matter is privileged is on the party asserting
the privilege. (Behunin v. Superior Court
(2017) 9 Cal.App.5th 833, 844.) Second, to the extent that Defendant asserts
the information sought is privileged, Defendant can produce a privilege log.
While the information in a document is privileged, the existence of a document
containing the privileged information is not. (See Smith
v. Superior Court (1961) 189 Cal.App.2d 6, 12; Hernandez
v. Superior Court (2003) 112 Cal.App.4th 285, 293.)
At the in camera review, the court will consider if certain personal
information such as dates of birth, Social Security Number,
home address should be redacted and whether the parties’ protective order
sufficiently address such concerns.
The motion is granted.
Conclusion
Plaintiff’s Motion is
granted in its entirety. The court orders the custodian of records for the City
of Los Angeles to
appear and produce all potentially relevant writings and specifically those
requested herein for an in camera review on ___ . Plaintiff to give notice.