Judge: Loren G. Freestone, Case: 37-2022-00004671-CU-OE-CTL, Date: 2024-06-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2022-00004671-CU-OE-CTL CUMMINS VS THE CITY OF NATIONAL CITY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants The City of National City and The National City Police Department's Pitchess motion is GRANTED IN PART and DENIED IN PART.

The Fourth District Court of Appeal, Division One, has explained the two-step process applicable to Pitchess motions in a civil case as follows: '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 government 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.' 'Second, if the trial court concludes the defendant 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 defendant'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 v. Superior Court (2004) 117 Cal.App.4th 1079, 1085–1086.) Here, Defendants seek the following personnel records/Internal Affairs files: (1) Officer Michael Sportelli - Internal Affairs Case 2021-007 relating to a non-fatal Officer Involved Shooting (OIS) occurring on April 5, 2021; (2) Officer Robert Rude - Internal Affairs Case 2021-008 relating to a fatal OIS occurring on April 12, 2021; and (3) Plaintiff Ashley Cummins – all Internal Affairs cases, including but not limited to Case 2021-005 and 2021-007.

Defendants have demonstrated that Internal Affairs Cases 2021-007 and 2021-008 are material and that there is good cause for their production. Cummins alleges: Calendar No.: Event ID:  TENTATIVE RULINGS

3098853  37 CASE NUMBER: CASE TITLE:  CUMMINS VS THE CITY OF NATIONAL CITY [IMAGED]  37-2022-00004671-CU-OE-CTL 'Defendants have kept an IA investigation for an officer-involved shooting against Ms. Cummins open to the date of this writing even though Ms. Cummins was cleared by the District Attorney's ('DA') office in or around December 2021. As a result, Ms. Cummins is unable to apply or even be considered for a law enforcement position until that IA investigation ends. Upon information and belief, it is common practice to close an IA investigation if the DA clears you. In an effort to punish Ms. Cummins, Defendants have kept the IA open and refuse to let Ms. Cummins move on.' Cummins also testified that there 'is no reason for that IA to still be open to try to hinder me from applying elsewhere other than retaliation.' The IA investigation that was allegedly left open is Case 2021-007. That case relates to a high-risk vehicle stop of a stolen vehicle that resulted in Officers Sportelli and Cummins exchanging gunshots with a suspect who ultimately escaped. Case 2021-008 relates to an attempted apprehension of that same suspect a week later that resulted in Officer Rude and another NCPD officer exchanging gunshots with the suspect who ultimately died.

Defendants explain that the records will help demonstrate 'the unique circumstances presented by these two separate but related OIS incidents, the coordination between the NCPD Internal Affairs Unit and the San Diego County District Attorney's Office, and the time that may be required for OIS investigations to conclude.' Defendants also explain that Officers Sportelli and Rude are male, and therefore the files will help show that she was treated no differently because she is a female. Defendants further explain that the records are 'material to [their] police practices expert Karen Laser, including how NCPD officers are assessed following the discharge of their weapons including the application of the San Diego County OIS Protocol and NCPD Policies 300 and 304 regarding the Use of Force and Officer Involved Shootings.' Cummins' argument that the request is overbroad for purposes of the first step is not persuasive.

Defendants have also demonstrated that Internal Affairs Case 2021-005 is material and that there is good cause for its production. Cummins alleges: 'In an effort to continue the career she loved in a better environment, Ms. Cummins was actively applying to other police departments/agencies in or near the San Diego area. Unfortunately for Ms.

Cummins, Defendants, including Ms. Cummins' supervisor, Sergeant Hernandez, actively reached out to Sergeant Cephas of the San Diego Police Department ('SDPD') and told him that Ms. Cummins was 'trouble,' or words to that effect.' Case 2021-005 was prompted by Cummins' allegation for employment with SDPD. Defendants were notified by SDPD when Cummins failed a polygraph examination during her background investigation.

Defendants explain that the records will provide 'material information about why Plaintiff was unable to secure employment with at least one of the local law enforcement agencies to whom she applied and thus is relevant to her claim for damages and her ability to mitigate damages.' Cummins' argument that the request is duplicative of Defendants' subpoena to SDPD, to which Cummins separately objected and unsuccessfully moved to quash, is not persuasive.

Defendants have not demonstrated that any other Internal Affairs cases relating to Cummins are material or that there is good cause for their production. Neither the motion nor the supporting declaration gave any explanation as to why any other cases should be produced. In reply, Defendants argue that the records are relevant to Cummins' allegations that they failed to open IA investigations in response to her complaints of discrimination and harassment. However, Defendants do not adequately explain how every investigation opened regarding Cummins during her tenure is relevant to investigations they should have opened into others as alleged in the complaint.

The motion is therefore granted in part and denied in part. The motion is granted as to Cases 2021-005, Calendar No.: Event ID:  TENTATIVE RULINGS

3098853  37 CASE NUMBER: CASE TITLE:  CUMMINS VS THE CITY OF NATIONAL CITY [IMAGED]  37-2022-00004671-CU-OE-CTL 2021-007, and 2021-008. The motion is otherwise denied.

The custodian of records for the National City Police Department is directed to produce the documents on July 12, 2024 at 2:30pm for an in camera examination.

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