Judge Kristin S. Escalante , Case 22STCV31938 2023-03-21 Tentative Ruling

Judge: Kristin S. Escalante , Case: 22STCV31938, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV31938 Hearing Date: March 21, 2023 Dept: 24

CASE NAME: Robert Marc Evans v. City of Los Angeles

CASE NUMBER: 22STCV31938 DEPT: Dept 24

COMPLAINT FILED: 09/29/2022 HEARING DATE: Tues., 03/21/2023

PTICHESS MOTION

DOCUMENTS: Complaint; Motion; Opposition; Reply

MOVING PARTY: Robert Marc Evans (Plaintiff)

RESP. PARTY: City of Los Angeles (Defendant)

NATURE OF PROCEEDINGS: Hearing on Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion)

TENTATIVE RULING:

The above-captioned matters are called for hearing.

The Court has read the moving papers in the above-captioned motions and announces its tentative ruling in open Court.

The Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion) reservation no.: 769488862894 filed by Plaintiff Robert Marc Evans on 01/27/2023 is GRANTED, with some categories narrowed. The custodian of records is ordered to appear with the records described below on ----- at 1:30 p.m. in Department 24 of Stanley Mosk Courthouse, so that the court can conduct an in-camera review.

Plaintiff Robert Marc Evans (“Plaintiff”) moves for an order directing Defendant City of Los Angeles (“Defendant”) to make available records maintained pursuant to Penal Code Section 832.5.

By way of background, Plaintiff was Lieutenant II with the Los Angeles Police Department (“LAPD”). He alleged that was highly skilled and received excellent scores on his promotional exams during his employment. Indeed, LAPD Chief Bob Green advised Plaintiff he was going to make Captain quickly based on his exemplary work. However, in 2017, Plaintiff sustained an on-duty injury to his neck and, thereafter, experienced various forms of discrimination and differential treatment based on his disability.

Plaintiff now seeks production of records, some of which are subject to Penal Code section 832.7 and Evidence Code section 1043 and 1046. Specifically, Plaintiff seeks the following records (1) the complete testing results, and grading results for all LAPD candidates who were eventually promoted to Captain I from 2017-2021, (2) all writings reflecting complaints against Deputy Chief John Sherman (ret.) relating to complaints of disability discrimination and/or, retaliation, (3) all writings reflecting complaints against Deputy Chief Jorge Rodriguez relating tocomplaints of disability discrimination and/or, retaliation, and (4) any writings relating to the LAPD’s investigation(s) into the allegations of the instant lawsuit. (Notice of Mtn., at p. 2.)

DISCUSSION

1. Legal Standard

To obtain disclosure of peace officer personnel records, a party must comply with the Pitchess process set forth in Evidence Code section 1043. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The party must file a noticed motion that, among other things, identifies the peace officer whose records are sought and describes the information sought. (Evid. Code, § 1043, subd. (b)(1).) The motion must be accompanied by a declaration showing “good cause” for disclosure sought, setting forth the materiality of the records to the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. (Evid. Code, § 1043, subd. (b)(3).) This is a so-called “Pitchess” motion, derived from Pitchess v. Superior Court (1974) 11 Cal.3d 531.

If the court finds that good cause has been shown, then the court must conduct an in-camera review of the records to determine if they are relevant to the subject matter of the litigation and if they fall within certain categories that are excepted from disclosure. (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61; Evid. Code, § 1045, subd. (a.)

The Evidence Code section 1043(b) “good cause” declaration must be sufficiently specific “to preclude the possibility of [the movant] simply casting about for any helpful information.” (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) However, a declaration based upon information and belief and containing hearsay may be used to evidence good cause in support of a Pitchess motion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) The moving party need show only a “plausible factual foundation” for discovery—i.e., a scenario of officer misconduct that might occur or could have occurred. (Warrick, supra, 35 Cal.4th at p. 1025.) All that is required is the presentation of a scenario that might have or could have occurred; i.e., a “relatively low threshold.” (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048; see also Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245, 1248 (the good cause requirement of section 1043(b) “embodies a ‘relatively low threshold' for discovery' [citation], under which a defendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense’”); Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413 (“A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’”).)

2. Showing of Good Cause

Here, the court finds Plaintiff has met the good cause standard for the following records, which are narrowed from what Plaintiff requested.

Plaintiff relies on Riske v. Superior Court (2016) 6 Cal.App.5th 647 for how to evaluate a Pitchess motion in a civil employment case. In Riske, retired police offer plaintiff filed a Pitches motion for the personal records of officer selected for promotional position in lieu of plaintiff. (Id. at p. 651) Plaintiff alleged that the department retaliated against him and promoted less qualified applicants. (Ibid.) He needed the records to establish that the City’s defense—that it promoted more qualified applicants—was pretextual. (Ibid.) The court found the records discoverable. (Id. at p. 664.) It reasoned that the trial court had construed the requirements too narrowly when it said record of officer who did not cause or witness the injury were not discoverable. (Id. at p. 657.) Further, nothing in the statutory scheme for pitchess motions limited the discovery of records to only police officer witnesses. (Id. at p. 658.)

As reinforced by Plaintiff’s counsel’s good cause declaration, the categories of records sought tie directly to the allegations and will provide relevant information to Plaintiff’s lawsuit. (See Riske, supra, 6 Cal.App.5th at p. 664.) The first category addresses to whether Plaintiff was passed over for Captain despite his test scores and whether less qualified Lieutenants were promoted over him. The second and third categories are relevant to locating potentially admissible “me-too” evidence. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 99, 109-114 [stating the trial court “erroneously disregarded the possibility that this me-too evidence could be relevant to prove [Plaintiff’s] intent when” engaging in sexual harassment].) Finally, the fourth category is probative and can be relevant to Plaintiff proving the elements of his claim. (Haggerty, supra, 117 Cal.App.4th at p. 1090.)

The custodian is ordered to appear at the date and time stated above with the documents responsive to the following requests, as narrowed:

1. The complete testing results, and grading results for all LAPD candidates who were eventually promoted to Captain I from 2017-2021.

2. All writings reflecting complaints against Deputy Chief John Sherman (ret.) relating to complaints of disability discrimination and/or, retaliation from March 2012 (five (5) years prior to the unlawful conduct alleged in this lawsuit) to the present.

3. All writings reflecting complaints against Deputy Chief Jorge Rodriguez relating to complaints of disability discrimination and/or retaliation from March 2012 (five (5) years prior to the unlawful conduct alleged in this lawsuit) to the present.

4. Any writings relating to any and all Los Angeles Police Department (“LAPD”) investigation(s) into any and/or all of the allegations of the instant lawsuit.

Such writings for categories 2-3 may include, but are not limited to: any and all materials used and/or considered during the investigation, including but not limited to, addenda items, recorded audio witness interviews and/or statements (including audio, video, and/or digital recordings and transcripts thereof), photos, correspondence, witness lists, rough notes, the investigator’s log; and any and all materials related to the disposition of investigation, including but not limited to, any disciplinary actions recommended or taken; any response by the accused, and any other follow-up or action).

To the extent witness interviews were recorded, the recordings must be produced.

Moving party is directed to give notice.