Judge James C. Chalfant, Case Number: 23STCP03564, Date: 2024-06-20 Tentative Ruling

Occhipinti v. County of Los Angeles, et al.;

23STCP03564

Tentative decision on pitchess motion: granted

Petitioner Joe Occhipinti (“Occhipinti”) moves for an order directing Respondents County of Los Angeles (“County”) and/or Los Angeles County Sheriff’s Department (“Department”) to produce certain personnel records.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Occhipinti filed the verified Petition against Respondents County and Department on September 28, 2023, alleging a (1) traditional writ of mandate and (2) declaratory relief. The Petition alleges in pertinent part as follows.

Occhipinti is employed by the County and Department as a deputy sheriff. Pet., ¶4. On June 19, 2022, Occhipinti was involved in an on-duty, solo traffic collision while working patrol at Lancaster Sheriff’s station. Pet., ¶5. Occhipinti immediately called his supervisor, Sergeant Andrew Stowers (“Stowers”) to report the traffic collision. Pet., ¶5. Sergeant Stowers began an investigation into the cause of the collision and called Deputy Vincent Clark (“Clark”) to the scene, who completed a California Highway Patrol (“CHP”) 55 Traffic Crash report. Pet., ¶6.

On March 3, 2023, Occhipinti was informed of various potential Department policy violations stemming from the traffic collision via a Subject of Investigation Notification sent from Captain Jason M. Schreiner (“Schreiner”) to Captain Ron Kupperud (“Kupperud”). Pet., ¶8. The notification set the date that a sergeant became aware of an act, omission, or other misconduct -- i.e., Department Knowledge Date -- as August 22, 2022. Pet., ¶8.

On May 4, 2023, Occhipinti was interviewed by Sergeant Langdon from the Internal Affairs Bureau (“IAB”). Pet., ¶9.

On July 12, 2023, Occhipinti was called in for a second interview. During that interview, his attorney objected on the record that the interview violated Government Code section 3304(d)(1) because it took place more than one year after a person authorized to initiate an investigation became aware of the potential misconduct. Pet., ¶9.

On August 15, 2023, Chief Dennis Kneer authored a Disposition Sheet, determining that Occhipinti should be suspended for 30 days for violating various Department policies. Pet., ¶11. On August 20, 2023, the Department issued Occhipinti a Letter of Intent to suspend him for 30 days and informed him that he could grieve the discipline. Pet., ¶12.

Occhipinti seeks (1) a traditional writ of mandate requiring the County and Department to set aside the discipline as having been imposed in violation of the Police Officers Bill of Rights Act (“POBRA”), and to pay him all back salary together with interest at the legal rate and to restore Occhipinti all other emoluments of employment related to such improper actions, (2) a declaration that the knowledge of sergeants of the Department of misconduct commences the one-year statutory period set forth in Government Code section 3304(d)(1), (3) civil penalties against the County and Department in the amount of $25,000 for each violation of Government Code section 3300 et seq., (4) an injunction prohibiting the County and Department from pursuing all disciplinary action against Occhipinti, (5) costs of suit, and (6) attorney’s fees in accordance with the law, including Government Code section 800. Pet., p. 8.

On November 27, 2023, Petitioner Occhipinti served Respondents County and Department with the Petition and Summons via personal service on Deputy Clerk Bruce Crouchet (person in charge), effective October 13, 2023.

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, 536-40. Pitchess motions permit a party, on a showing of good cause, to seek information contained in the personnel files of officers that is material to the proceedings, including evidence that may be used to impeach witness officers. Becerrada v. Superior Court, (“Becerrada”) (2005) 131 Cal.App.4th 409, 413. Such information includes records of an internal investigation conducted by a law enforcement agency. Haggerty v. Superior Court, (2004) 117 Cal.App.4th 1079, 1085.

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 sections 1043-1047 and Penal Code sections 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.¿Superior Court,¿(1990) 219 Cal.App.3d 1605, 1609-10.¿¿

Under the statutory scheme, a party seeking discovery of a peace officer’s personnel records must file a written motion describing the type of records sought, supported by affidavit showing good cause for the discovery.¿ Haggerty v.¿Superior Court,¿supra, 117 Cal.App.4th at 1085-86. The standard of “good cause” required for Pitchess disclosure is “relatively relaxed.” Association for Los Angeles Deputy Sheriffs v. Superior Court, (2017) 13 Cal.App.5th 413, 433. Good cause for discovery exists when the party shows both materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought. Becerrada, supra, 131 Cal.App.4th at 413. The materiality consideration involves several inquiries: (1) whether the requesting party has shown a logical connection between the charges and the proposed defense, (2) whether the request for Pitchess discovery is factually specific and tailored to support its claim of officer misconduct, (3) whether the requested Pitchess discovery supports the proposed defense or is likely to lead to information that would support the proposed defense, and (4) whether the requested information would be admissible at trial. Warrick v. Superior Court, (“Warrick”) (2005) 35 Cal.4th 1011, 1027.

The declarations in support of good cause must present a “specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” Warrick, supra, 35 Cal.4th at 1025; see also Riske v. Superior Court, (2016) 6 Cal.App.5th 647, 655 (requesting party must demonstrate a “plausible factual foundation” for how the records are material to the subject matter of the litigation). A plausible scenario of officer misconduct is one that might or could have occurred. Id. at 1026. 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, overruled on unrelated grounds,¿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).¿¿The declarations establishing good cause may be made on information and belief, personal knowledge is not required. See City of Santa Cruz v. Municipal Court, (1989) 49 Cal.3d 74, 89.

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 relevance. Warrick, supra, 35 Cal.4th at 1027.

On June 19, 2022, Occhipinti was involved in a solo, on-duty traffic collision that caused minor damage to his patrol vehicle. Mell Decl., ¶8a. Occhipinti immediately reported the collision to his supervisor, Sergeant Stowers, who thereafter arrived on scene. Mellk Decl., ¶8a. The same day, Sergeant Stowers began an investigation into the cause of the collision. Mellk Decl., ¶8b. A CHP-55 Traffic Crash Report was filled out and Occhipinti provided a written statement regarding how the collision occurred. Mellk decl., ¶8b.

On March 3, 2023, Occhipinti was informed by the Department that he was the subject of an administrative investigation because it had been determined that he was at fault in the traffic collision. Mellk Decl., ¶8c. The Subject of Administrative Investigation Notification form noted that the Department Knowledge date was August 22, 2022. Mellk Decl., ¶8c.

On May 4, 2023, Occhipinti was interviewed by Sergeant Langdon from the Internal Affairs Bureau (“IAB”). Mellk Decl., ¶8d.

On July 12, 2023, Occhipinti was called in for a second interview with IAB. Mellk Decl., ¶8e. During the second interview, Occhipinti’s attorney objected on the record that the Department was in violation of Government Code section 3304(d)(1) -- i.e., the one-year statute of limitations for completing an investigation of alleged misconduct following the agency’s discovery of such misconduct by an individual authorized to commence an investigation. Mellk Decl., ¶8e.

On August 20, 2023, Occhipinti was served with a Letter of Intent for a 30-day suspension. Mellk Decl., ¶8f.

Occhipinti seeks disclosure of his own personnel records. Mellk Decl., ¶4. The Department has sole custody and control of the records sought to be disclosed. Mellk Decl., ¶5. Occhipinti served Requests for Admissions, Demand for Production of Documents, and Form Interrogatories on Respondents. Mellk Decl., ¶6. Respondents objected to the Demand for Production of Documents Nos. 6, 8, and 9 on the basis of peace officer confidentiality and did not provide responses. Mellk Decl., ¶7. Good cause exists for production of the records responsive to these discovery requests. Mellk Decl., ¶8.

The documents sought by Occhipinti are crucial for him to be able to demonstrate that the Department violated the one-year statute of limitations in Government Code section 3304(d)(1). Mellk Decl., ¶¶8-9. Occhipinti has no alternate means to obtain the requested discovery. Mellk Decl., ¶10. Without the responses to the discovery propounded on Respondents, Occhipinti has no means by which to substantiate the allegations raised in his Petition. Mellk Decl., ¶¶10-11.

Petitioner Occhipinti moves for an order that the County and/or Department produce certain personnel records.

Although the County purports to oppose on the ground that Occhipinti’s supporting declaration fails to establish good cause and materiality for the documents and that the categories requested are overbroad (Opp. at 2), it fails to support this argument with any reasoning. Occhippinti explains that the documents, all of which are in his personnel file and all of which would be included any administrative record from a disciplinary hearing, are necessary to establish when a person authorized to investigate Occhipinti’s conduct became aware of it within the meaning of POBRA’s one-year limitations period. In other words, Occhipinti seeks documents that will show what the Department knew and when it knew that information.

The motion is granted. The court will examine the requested records in camera for a required production. The County seeks a protective order in connection with the disclosure to which Occhipinti objects, in part because it purports to burden Occhipinti with a sealing obligation for his own records. The court will discuss with counsel whether a protective order is needed beyond that statutorily required by Evid. Code section 1045(e).