Judge Kerry Bensinger, Case Number: 19STCV33158, Date: 2024-03-21 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

In this action, several sheriff deputies who were formerly assigned to the East L.A. station allege that they were pressured to quit their jobs or leave the station and that they were otherwise harassed by other deputies who are alleged members of a gang known as the Banditos. They allege discrimination, harassment, retaliation, and related claims against Defendant County of Los Angeles (“County”) and allege assault, battery, and other claims against Defendants Rafael “Rene” Munoz, Gregory Rodriguez, David Silverio, and Michael Hernandez (collectively “Individual Defendants”).

On February 25, 2022, Plaintiffs filed the Sixth Amended Complaint (“SAC”), which is the operative pleading. The SAC asserts causes of action for: (1) unlawful retaliation (whistleblower law); (2) harassment and hostile work environment in violation of FEHA; (3) retaliation in violation of FEHA; (4) racial discrimination in violation of FEHA; (5) failure to take all reasonable steps to prevent discrimination in violation of FEHA; (6) negligence, vicarious liability; (7) intentional infliction of emotional distress; (8) assault; (9) battery; (10) conspiracy to interfere with Civil Rights under 42 U.S.C. section 1985; deprivation of Civil Rights 42 U.S.C. section 1983; (11) Civil Rights violations under Civil Code sections 52.1 (The Bane Act); and (12) taxpayer suit to prevent the illegal expenditure of funds.

On August 23, 2023, the court granted in part, and denied in part, Plaintiffs’ Pitchess motion.

On February 28, 2024, the County filed this motion for an order that the County be permitted to use Plaintiffs’ personnel records at trial, or, in the alternative, or disclosure of peace officer personnel records (“Pitchess Motion”).

Defendant County’s motion is confusing. The Proposed Order seeks alternative relief. The County asks the court to issue an order (1) that authorizes the County’s use at trial of Plaintiffs’ peace officers’ personnel records related to their advancement, promotional, discipline, or investigative history or (2) that “resumes” a Pitchess hearing and, if granted, to conduct a further in camera review.

Addressing the request for a “resumed” Pitchess hearing, it is unclear what Pitchess hearing this court is being asked to resume. Did the prior judicial officer not complete the Pitchess hearing? That does not appear to be the target of the motion. Instead, the motion appears to request this court hear a new Pitchess motion related to the categories identified and then conduct a new in camera document review with the custodian to see if there are responsive documents. The time for such a motion, however, has past. When the prior judicial officer described a Pitchess motion as being different from a discovery motion, she was correct. To obtain Pitchess relief, a petitioner must meet a different set of criteria than generally required to obtain discovery in a civil, or even a criminal case. But that is not to say a Pitchess motion can be brought after the discovery cut-off date. It cannot. Moreover, maintaining the discovery cut-off in this case is particularly apt because this case is well down the Long Cause road. New discovery motions, Pitchess or otherwise, would/may topple the carefully assembled proverbial apple cart.

Alternatively, this court cannot retroactively authorize the use of Pitchess documents, which are unidentified, except by category. This judicial officer was not part of the prior Pitchess hearings. They were either done and completed properly or not. Counsel has not adequately explained how the documents in question were obtained and if there is some Pitchess deficiency, what that deficiency is. If the County is asking this court to conduct a Pitchess review to “cure” some unidentified prior Pitchess problem, that this court will not do. Either the documents were properly obtained and disclosed, or they were not. The disclosure, as the Court understands it, has already occurred; the documents were disclosed to both the Plaintiffs as well as the defense. And if the universe of documents at issue has already been produced to both the Plaintiff and the defense, the ball may well be in the Plaintiffs’ court to move to exclude the use of the documents. Plaintiffs point to Motion in Limine #8 as an example. In any event, those type of decisions – the admissibility or exclusion of exhibits – are decisions for the trial court. This court will not conduct a new or “resumed” Pitchess hearing to sanitize or cure the prior process.

Defendant County’s motion to authorize the County to use plaintiffs’ personnel records at trial, or, in the alternative, for disclosure of peace officer personnel records (“Pitchess motion”) is DENIED.

Kerry Bensinger

Judge of the Superior Court