Department 30, Spring Street Courthouse

August 16, 2022

21STCV41151

Plaintiff’s Motion for Discovery of Defendant Deputy Jessica Barlow’s Personnel Records Pursuant to Evidence Code 1043, et seq.

The Court finds that good cause has been established with respect to some requested items as outline below. 

On the date of the hearing, the parties are to confer with the Judicial Assistant regarding a continued date for this hearing at which the in camera examination will occur. The Court orders LASD to bring all potentially relevant records.

Additionally, LASD’s request to have its counsel present with the custodian of records at the in camera hearing is granted.

LASD’s request for a protective order is granted.

Moving party is ordered to give notice and to file proof of service of such notice within five court days after the date of this order.  

 

On November 8, 2021, Plaintiff Marlene Virgen filed this action concerning a motor vehicle collision in which Reymundo Diaz was killed. It is a wrongful death and survival action. Plaintiff alleges that Defendant Jessica Barlow, a Deputy with the Los Angeles County Sheriff’s Department (“LASD”), caused Diaz’s death by hitting Diaz (who was on a motorcycle) with the patrol car that Defendant Barlow was driving at the time. Plaintiff alleges that Defendant Barlow was driving an excessive rate of speed and failed to activate the lights and sirens of her vehicle. Plaintiff further alleges that the LASD did not properly train Defendant Barlow in the safe operation of her work vehicle. 

Plaintiff filed the pending Motion for Discovery of Defendant Barlow’s Personnel Records Pursuant to Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 89 Cal. App.3d 531, 537. The motion is opposed.

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, section 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 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. 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, subd. (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).

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, subd. (b).) This establishes a “relatively low threshold for discovery.”  (Santa Cruz, ibid.)  The parties do not dispute that the records are within LCPD’s possession and control. The only question before the Court, therefore, is that of materiality.

Plaintiff has provided the Declaration of Miguel Flores, Plaintiff’s Counsel, in support of the motion. Plaintiff has demonstrated good cause to obtain some of the requested materials, but not all of them.

Plaintiff seeks the following categories of records.

a. All administrative reviews involving Deputy Barlow regarding the incident, which is the subject of Plaintiff’s complaint. 

b. All investigative reports or documents, pertaining to any County of Los Angeles Sheriff’s Department investigations regarding the incident which is the subject to Plaintiff’s complaint. 

c. All results of any Los Angeles County’s investigation regarding the incident which is the subject of Plaintiff’s complaint. 

d. All Los Angeles County Sheriff’s Department Internal Affairs investigations in which Deputy Barlow was the subject of, during her employment with the Los Angeles County Sheriff’s Department. 

e. All citizens’ complaints, whether sustained or not, made against Deputy Barlow while employed by the Los Angeles County Sheriff’s Department, alleging fabricated probable cause, dishonesty, perjury, false arrest and detention, false probable cause 

f. All writings, supervisor notes, memorandums, letters, commendations, and “Performance Evaluations” of Deputy Barlow during all of her employment with the Los Angeles County Sheriff’s Department. 

g. All records of the Los Angeles County Sheriff’s Department regarding discipline imposed against Deputy Barlow, particularly for false statements, perjury, false or inaccurate police reports, during her employment with the Los Angeles County Sheriff’s Department

h. All records of the Los Angeles County Sheriff’s Department regarding any discipline related to the operation of Los Angeles County Sheriff’s Department vehicles or other motor-vehicle equipment. 

i. All training records for Deputy Barlow related to the operation of Los Angeles County Sheriff’s Department patrol vehicles or other motor-vehicle equipment. 

j. The complete personnel file of Deputy Jessica Barlow while at the County of Los Angeles Sheriff’s Department

Good cause has been established as set forth below. Some of the requests have been modified to reflect areas for which good cause has been established.

a. All administrative reviews involving Deputy Barlow regarding the incident, which is the subject of Plaintiff’s complaint. 

b. All investigative reports or documents, pertaining to any County of Los Angeles Sheriff’s Department investigations regarding the incident which is the subject to Plaintiff’s complaint. 

c. All results of any Los Angeles County’s investigation regarding the incident which is the subject of Plaintiff’s complaint. 

e. All citizens’ complaints, whether sustained or not, made against Deputy Barlow while employed by the Los Angeles County Sheriff’s Department, alleging fabricated probable cause, dishonesty, perjury, false arrest and detention, false probable cause 

This request is modified to cover only the creation of false police reports, since that is the conduct alleged here.

g. All records of the Los Angeles County Sheriff’s Department regarding discipline imposed against Deputy Barlow, particularly for false statements, perjury, false or inaccurate police reports, during her employment with the Los Angeles County Sheriff’s Department

This request is modified to cover any discipline imposed on Deputy Barlow as a result of any incident involving the creation of false police reports since that is the conduct alleged here. 

h. All records of the Los Angeles County Sheriff’s Department regarding any discipline related to the operation of Los Angeles County Sheriff’s Department vehicles or other motor-vehicle equipment. 

This request is modified to cover only Deputy Barlow.

i. All training records for Deputy Barlow related to the operation of Los Angeles County Sheriff’s Department patrol vehicles or other motor-vehicle equipment. 

The Court further notes that all requests are limited to the past five years per statute.