Judge: Joseph Lipner, Case: 23STCV09616, Date: 2024-12-17 Tentative Ruling

Case Number: 23STCV09616    Hearing Date: December 17, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants County of Los Angeles (“County”), Kresimir Kovac (“Kovac”), Brian Yanagi (“Yanagi”), John Burcher (“Burcher”), and Lewis Lim (“Lim”) (collectively, “Defendants”) file this Pitchess motion seeking leave to disclose certain law enforcement personnel records of the County, including records of Plaintiff Anitria Michelle Tomlin (“Plaintiff”), for the purposes of this litigation.

The Court tentatively GRANTS in camera review of the requested materials.  However, the Court raises the question for discussion whether notice to Guninder Singh, who is not a party to this lawsuit, is necessary before the review can take place.

The Court denies Plaintiff’s request to be present during the in camera review.  However, any documents ordered produced following in camera review will be ordered produced to all parties.  Production will be made under a protective order that the documents may be used only for the purposes of this litigation and must be returned to the County at the conclusion of this case.

Background

Plaintiff filed this employment case against Defendants. The following facts are taken from the allegations in the First Amended Complaint (“FAC”).

Plaintiff is currently a sworn Lieutenant for the Los Angeles County Sheriff’s Department, assigned to the Records and Identification Bureau (“RIB”).

The RIB is responsible for fingerprint identification for the Sheriff’s Department and a number of other law enforcement agencies. The fingerprint process is a 24/7 operation. Tomlin herself is not trained in the identification process but relies on the technicians and supervisors in the department to conduct identification.

When an individual is arrested, the arrestee’s fingerprints are taken and uploaded to a central database for verification of the fingerprints. If the fingerprints are not recognized by the system, the fingerprints are forwarded to RIB. In RIB, the fingerprints are reviewed by technicians specially trained by the County. Results that match are then transmitted to the California Department of Justice.

To protect the public from false identification of a person’s fingerprints, the identification process performed by Plaintiff’s unit requires two technicians to verify the match and a supervisor to handle any discrepancies between the two verifiers. Each of these positions require technical expertise and specialized skills.

Due to understaffing, the RIB was ordered to continue operating at times with fewer than two technicians or without a supervisor present. Plaintiff repeatedly reported her concerns about this process to her superiors, including Yanagi and Kovac, stating that she believed the short staffing violated arrestees’ due process rights and caused fingerprint technicians to offer false or misleading testimony. Plaintiff requested at different times that the operating hours be reduced to 16 hours a day, 5 days a week, that additional supervisors be funded, and that overtime be funded. Plaintiff’s requests were denied. This staffing shortage resulted in Plaintiff having to work overtime on weekends and evenings, although Plaintiff alleges that she was not paid overtime compensation.

Plaintiff alleges that she was addressed in a demeaning and condescending manner in briefings concerning these issues. On January 10, 2023, Burcher also informed Plaintiff that she would be responsible for any issues related to the fingerprint identification process.

From November 2022 to January 2023, Yanagi ordered Plaintiff’s supervisor to cancel a personnel loan agreement which would have loaned an employee to RIB to fill a vacant Assistant Director position. As a result, Plaintiff had to perform the duties of the Assistant Director in addition to her own.

On January 23, 2023, Plaintiff was served with a notice that she was the subject of an internal investigation regarding a disciplinary meeting she had with a subordinate manager in October 2022. Plaintiff contends that the subordinate manager falsely accused Plaintiff and a fellow supervisor of bullying and harassing them, leading to the investigation. Plaintiff alleges that Kovac and Yanagi conspired to improperly institute the investigation against her. Plaintiff contends that Kovac should have recused himself because Tomlin had previously interviewed Kovac when Kovac was under investigation for alleged criminal activity.

Plaintiff filed this action on May 1, 2023. On September 6, 2023, the Court sustained a demurrer to the Complaint with leave to amend. The operative complaint is now the FAC, which raises claims for (1) whistleblower retaliation in violation of Labor Code section 1102.5 (against County); (2) intentional infliction of emotional distress (“IIED”) (against all Defendants); and (3) conspiracy (against Kovac, Yanagi, and Burcher.

On December 19, 2023, the Court sustained a demurrer with leave to amend as to Plaintiff’s IIED claim. Plaintiff did not amend.

On September 16, 2024, Plaintiff filed a separate Pitchess motion seeking broad discovery into complaints of misconduct made against Defendant Kresimir Kovac, as well as the names and contact information of any attendant complainants and witnesses. The motion was fully briefed. On October 31, 2024, the Court denied the motion without prejudice. The Court found that in camera review of the requested material was not necessary because Plaintiff had not explained what she expected to find or how she expected it to support her claims. The Court granted Plaintiff leave to refile the motion setting forth more specific requests under the correct legal standard. Plaintiff has not re-filed at this time.

On November 18, 2024, Defendants filed this Pitchess motion, seeking leave to disclose three complaints against (1) Plaintiff and Guninder Singh (“Singh”); (2) Kovac; and (3) Yanagi and Burcher. Defendants also seek to disclose the non-privileged portions of the County’s files relating to a worker’s compensation claim made by Plaintiff. Plaintiff filed an opposition and Defendants filed a reply.

Legal Standard

“Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney's office, or the Attorney General's office.” (Pen. Code, § 832.7, subd. (a).)

“(a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency that has custody and control of the records, as follows:

….

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency that has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, 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.”

(Evid. Code, § 1043.)

Penal Code, section 1046 provides additional requirements for cases where excessive force is alleged.

A motion pursuant to section 1043 is known as a Pitchess motion. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1017.) “On a showing of good cause a criminal defendant is entitled to discovery of relevant documents or information in the personnel records of a police officer accused of misconduct against the defendant.” (Id. at p. 1016.) “To determine whether the defendant has established good cause for in-chambers review of an officer's personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: [1] Has the defense shown a logical connection between the charges and the proposed defense? [2] Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? [3] Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? [4] Under what theory would the requested information be admissible at trial?” (Id. at pp. 1026-1027.) “[T]o obtain in-chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred.” (Id. at p. 1016.)

When proceeding to in camera review, “the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.” (Evid. Code, § 915, subd. (b).)

Discussion

Discovery Sought

Defendants seek leave for the County to disclose the following records:

(1) The entire investigation file for the administrative investigation identified as #OMB-22-387 involving a complaint by Stacey Drake against Plaintiff and Guninder Singh.

(2) The entire investigation file for the administrative investigation identified as ICMS # 2022-116586 involving a complaint by Plaintiff against Kresimir Kovac.

(3) The entire investigation file for the administrative investigation identified as #OMB-23-015 involving a complaint by Singh against Brian Yanagi and John Burcher.

(4) Non-privileged portions of the County’s files regarding or related to Plaintiff’s workers comp claim identified as Claim No. 23-006966-A and/or Workers’ Compensation Appeals Board Case No. ADJ7247284.

Analysis

Plaintiff does not oppose in camera review of the materials in question.

Logical Connection

Defendants seek disclosure of the investigation against Plaintiff and Singh in order to establish whether the investigation was a legitimate business decision.

Defendants seek disclosure of the investigation into Kovac to establish whether Plaintiff’s complaint against Kovac was properly investigated and addressed.

Defendants seek disclosure of the investigation against Yanagi to establish whether the complaint against Yanagi was properly investigated and addressed.

Defendants seek disclosure of Plaintiff’s worker’s compensation claim information because the worker’s compensation claim relates to emotional distress suffered at work. Plaintiff claims damages for emotional distress incurred at work in this action.

The Court determines that each request has a logical connection to the claims at issue here.

Factual Specificity and Tailoring

The requests are specifically stated and appear tailored to the facts at issue in this case.

Relevance of Discovery to Defendants’ Legal Theories

As discussed above, the discovery at issue is relevant to Defendants’ litigation of the claims in this case.

Admissibility at Trial

There are no clear admissibility issues raised with the requested evidence.

In Camera Review

The Court finds that that in camera review of the requested materials is warranted.

In camera review must occur “out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present”. (Evid. Code, § 915, subd. (b).)

Plaintiff has not meaningfully made a showing that she has a privilege to assert in the context of these documents.  The categories of documents are described clearly by the County, and Plaintiff has not identified any privilege that needs additional protection at the in camera review. 

The Court will order that any documents ordered produced following in camera review must be produced to all parties.  The Court will order production under a protective order that they may be used only for the purposes of this litigation and must be returned to the County at the conclusion of this case.