Judge Holly J. Fujie, Case Number: 21STCV09480, Date: 2024-03-22 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On May 24, 2021, Plaintiff Michelle Vasquez (“Plaintiff”) filed this operative Second Amended Complaint (“SAC”) against Defendants County of Los Angeles Probation Department; Kenneth Mitchell; Clemmie Murdock; and DOES 1 through 30 (“Defendants”), inclusive for: (1) Discrimination on the Basis of Disability; (2) Discrimination on the Basis of Race; (3) Work Environment Harassment; (4) Retaliation [Gov. Code, § 12940]; (5) Failure to Prevent Discrimination, Harassment and Retaliation; (6) Retaliation [Labor Code, § 1102.5]; (7) Failure to Engage in Good Faith Interactive Process; and (8) Failure to Provide Reasonable Accommodation.

On February 27, 2024, Plaintiff filed this instant Motion for Personnel Information (Pitchess Motion). On March 11, 2024, Defendant County of Los Angeles (“CLA”) filed its opposition. The reply was due on March 15, 2024. As of March 18, 2024, no reply has been filed.

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; Pen. 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).

Plaintiff moves for an order compelling the production of peace officer files and records regarding Supervising Detention Services Officer Clemmie Murdock (“Murdock”), now retired Senior Detention Service Officer Kenneth Mitchell (“Mitchell”), Supervising Detention Service Officer Alton Caldwell (“Caldwell”), and Supervising Detention Officer Scott Hagerman (“Hagerman”).

1. Copies of all records, reports, or investigative reports filed, pending, completed or otherwise made, and all other writings pertaining to any of discriminatory, harassing or retaliatory conduct by Defendants Murdock and Mitchell, officer Alton Caldwell and officer Scott Hagerman, including but not limited to documentation of employee complaints of such conduct;

2. Names, addresses and telephone numbers of all persons who have complained about discriminatory, harassing or retaliatory conduct by Defendants Murdock and Mitchell, officer Alton Caldwell and officer Scott Hagerman;

3. Copies or transcripts of all tape recorded or written statements by any person, including Defendants Murdock and Mitchell, officer Alton Caldwell and officer Scott Hagerman, which were taken in connection with any investigation initiated, filed, pending, completed or otherwise made regarding any complaint of discriminatory, harassing or retaliatory conduct;

4. Names, addresses and telephone numbers of all persons giving such statements including but not limited to, persons involved in the case at hand;

5. Information regarding any discipline that was imposed on any officer listed above in any incident involving the above-mentioned conduct, including any conduct towards Plaintiff;

6. Any information contained in personnel or internal investigation files which indicates or identifies previous employment or experience by Defendants Murdock and Mitchell, officer Alton Caldwell and officer Scott Hagerman in law enforcement related work;

7. Any and all information related to any internal affairs or other similar investigation into the incident that is the basis of this lawsuit, including but not limited to:

Plaintiff argues good cause exists to obtain the personnel records of Defendants Murdock and Mitchell, and Officers Caldwell and Hagerman. Plaintiff contends such records will shed light on whether there has been any investigation, disciplinary action, witness statements or other documents and information related to grievances Plaintiff has filed against them. (Gabriel Decl, ¶¶ 7-8, Exs. C-D.) Plaintiff further contends the records will aid her in discerning a pattern and practice of discrimination, harassment and retaliation perpetrated by the officers against employees of Plaintiff’s protected classes, as well as their good faith complaints. In fact, Plaintiff asserts her own grievance against Caldwell states that he has had numerous valid complaints against him throughout the years by several officers but the Director has failed to protect employees from such tyranny. (Gabriel Decl., ¶ 8, Ex. D.) Moreover, Plaintiff argues the attached declaration supports a showing of materiality and good cause by attaching the relevant documents such as her own grievances against the officers in question. Plaintiff also contends the declaration attests with reasonable belief that Murdock, Mitchell, Caldwell, and Hagerman have prior acts of misconduct against other employees of Plaintiff’s protected classes, as well as grievances filed against them by Plaintiff herself which should have been investigated and acted upon by CLA. Additionally, Plaintiff asserts defense counsel has made it clear that information in the officers’ personnel records relating to grievances, investigations, disciplinary actions, or other complaints will not be produced without a court order. Lastly, Plaintiff argues once the in camera hearing occurs, she should be provided with all of the information contained in the officers’ personnel files that is admissible evidence or could lead to the discovery of admissible evidence.

In opposition, CLA argues Plaintiff’s supporting affidavit includes her grievances as evidence of materiality, which falls categorically short because a grievance is simply a series of allegations and hearsay. Furthermore, CLA contends while it can be argued that the decision on a grievance is relevant and admissible, Plaintiff received the granting of her grievance when she was transferred out of Barry J in November 1, 2020. (Compl., ¶ 46.) As such, CLA contends any events or individuals after this date are irrelevant and beyond the scope of this FEHA complaint and corresponding required administrative filings. CLA also argues Plaintiff has not demonstrated good cause to entitle her to inspect the statutorily protected and privileged personnel files of other peace officers because the declaration of Plaintiff’s counsel fails to demonstrate that the information requested is relevant and necessary to the litigation. Moreover, CLA asserts Plaintiff is on a fishing expedition because (1) she has not deposed Hagerman, (2) she significantly shortened Mitchell’s deposition because he had a court appearance and has never reset the deposition, and (3) she only recently served discovery on CLA for the first time on January 5, 2024 and only after CLA’s Motion for Summary Judgment was filed. CLA contends it is has not yet provided responses and the Complaint was filed on March 10, 2021. In addition, CLA also objects to Plaintiff’s request for documents pursuant to Evidence Code Section 1040 because these individuals have not waived their rights to confidentiality and privacy and these rights should protected. Finally, CLA contends there is a clear and compelling public interest in ensuring that a governmental entity, such as the Department, can maintain and ensure the confidentiality of the personnel records of its employees. Thus, in the event there are any documents remaining in controversy after the consideration of this motion and opposition, CLA requests that the Court conduct an in camera inspection of the any disputed documents in order to rule upon claims of privilege, privacy, confidentiality, and lack of relevance.

The Court finds that Plaintiff has sufficiently demonstrated the materiality of all the requested records. CLA along with Murdock and Mitchell are charged with several FEHA and Labor Code violations against Plaintiff and related grievances she has filed against them and Officers Hagerman and Caldwell. Plaintiff also submitted a supporting declaration from her counsel of record that asserts Murdock, Mitchell, and Caldwell all refused to answer questions at their depositions related to any complaints made against them by any coworkers or Plaintiff herself. As such, Plaintiff now seeks discovery of their personnel records relating to prior complaints to show Murdock, Mitchell, Hagerman, and Caldwell acted toward her in a discriminatory, retaliatory, and harassing manner due to her gender, race or disability. Plaintiff counsel’s averment establishes a specific factual scenario for the assertion that Murdock, Mitchell, Hagerman, and Caldwell discriminated against her based on her race, gender or disability. Plaintiff counsel’s averment also established a specific factual scenario for the assertion that CLA failed to prevent the discrimination, retaliation and harassment that Plaintiff faced. Last, Plaintiff’s counsel avers that solely and only CLA is in possession of the records sought by this instant motion.

Therefore, the motion for personnel information (pitchess motion) is GRANTED subject to the five-year statutory limitation.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court