Judge: Malcolm Mackey, Case: 21STCP03366, Date: 2022-11-21 Tentative Ruling
Case Number: 21STCP03366 Hearing Date: November 21, 2022 Dept: 55
COUNTY
OF L.A. v. HON. ALEX VILLANUEVA, SHERIFF 21STCP03366
Hearing Date: 11/21/22,
Dept. 55
#3:
PETITION
FOR ORDER TO SHOW CAUSE RE: REFUSAL BY SHERIFF ALEX
VILLANUEVA TO COMPLY WITH OFFICE OF INSPECTOR GENERAL’S FEBRUARY 25, 2021
SUBPOENA FOR PERSONAL APPEARANCE.
APPLICATION FOR LEAVE TO
INTERVENE BY RESPONDENT-IN-INTERVENTION.
Notice: Okay
Opposition
MP:
Petitioner/Cross-Respondent COUNTY OF L.A.
ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS.
RP:
Respondent/Cross-Petitioner HONORABLE ALEX VILLANUEVA,
SHERIFF; ASSOCIATION FOR LOS ANGELES
DEPUTY SHERIFFS (proposed opposition in intervention).
Petitioner/Cross-Respondent COUNTY OF L.A.
Summary
On 10/12/21, Petitioner County of L.A. filed the First
Amended Petition, alleging that the Sheriff’s refusal to comply with a Subpoena
issued by the Office of Inspector General (OIG), on 2/25/21, subjects him to
enforcement via procedures set forth in Government Code Section 25303.7.
Moving
Parties’ Positions
Petitioner County advocates issuing an OSC regarding
contempt, and requiring the Sheriff to testify as a witness regarding the
subject topic, for reasons including the following:
·
More than 13 months after the OIG sought
Sheriff Villanueva’s testimony about deputy secret societies, the Sheriff
continues offering myriad meritless excuses.
·
The Subpoena is valid and appropriate.
Deputy secret societies have been a significant problem in the Sheriff’s
Department for decades.
·
The Legislature enacted Penal Code Section
13670 to root out “law enforcement gangs” from sheriff’s departments.
·
The
Legislature noted that the Los Angeles County Sheriff’s Department “appear[s]
to be the agency with the most prolific problem” of having “law enforcement
gangs.”
·
In ruling on a prior demurrer to the
Sheriff’s petition for writ of mandate, Judge Chalfant ruled the OIG has a
right “to engage with the Sheriff on issues such as deputy secret
societies.” (Reply, filed 3/25/22, ex.
1).
Proposed intervenor ALADS requests permission to
intervene in this action, on bases including the following:
·
The Hearing Officer in the administrative
proceeding before ERCOM directed that the County shall cease enforcing
compliance with those subpoenas until fulfilling its duty to bargain pursuant
to the ERO and MMBA.
·
The deposition questions here sought
specific information about deputy sheriffs that could only have been derived
from their personnel files.
·
ALADS’s involvement in this litigation is
essential to protect its members’ rights.
·
The County’s Opposition also makes clear
that the County does not believe that any ALADS member has objections such as a
privacy interest, and so ALADS participation is needed to protect the rights.
·
The intervention statute mandates and
permits intervention in both civil actions and proceedings, and therefore it is
appropriate to grant intervention here.
·
The motion was timely, because it was
filed shortly after the initial decision from the Hearing Officer in the
administrative proceeding before ERCOM.
Opposing
Parties’ Positions
Respondent advocates denying an OSC regarding
contempt, for reasons including the following:
Petitioner County advocates denying intervention, for
reasons including the following:
·
ALADS has no right to belatedly interject
itself into this special proceeding to enforce the Subpoena to the Sheriff—a
subpoena issued more than twenty months ago and under which the Sheriff already
gave some testimony over six months ago.
·
ALADS’s objections to the County
discovering this information are meritless.
·
ALADS mischaracterizes the OIG’s subpoena
power in an attempt to connect it to a not-yet-final Los Angeles County
Employee Relations Commission (“ERCOM”) decision about a different oversight
agency and different sources of subpoena authority under County law.
Tentative
Ruling
The petition for order to show cause is denied,
without prejudice.
The motion to intervene is denied.
Contempt
The Court trusts that the order to show cause soon will
become moot, after this ruling requiring the Respondent Sheriff to obey the
subpoena.
The Court finds and concludes that Petitioner through Civilian
Oversight Commission (COC) and/or the Office of Inspector General (OIG) has the
authority to subpoena the Sheriff regarding the legitimate public interest in the
problems, if any, related to secret societies.
Effective 1/1/21, the California Legislature passed
Government Code Section 25303.7 further providing authority of the Board of
Supervisors to create oversight bodies like the OIG and the COC, to assist the
Board with supervising the Sheriff, pursuant to Section 25203.
Assuming, arguendo, that the Petitioner is
politically motivated to harass and remove the Sheriff from the position, that
is not a cognizable consideration for discovery. The fact that a party seeking discovery might
have an unauthorized motive or may “gain an incidental additional benefit from
information it is legally entitled to receive is not grounds for denying it
access to that information ….”. Home
Ins. Co. v. Sup. Ct. (1996) 46 Cal. App. 4th 1286, 1294.
Further, Respondent cannot legitimately avoid
testifying under oath, as to the legislatively authorized subpoena process.
Analogously, under the Discovery Act, a motion lies to
compel a non-party witness to obey a deposition subpoena, and contempt is
available where the non-party consciously refused to attend the deposition, and
had knowledge of the subpoena, and an ability to comply. CCP §1987.1;
Person v. Farmers Ins. Group of Cos. (1997) 52 Cal.App.4th
813, 818; Chapman v. Sup. Ct.
(1968) 261 Cal.App.2d 194, 200. “‘[U]pon
motion reasonably made by the party,’
judges may rule upon motions for quashing, modifying or compelling compliance with,
subpoenas.” Lee v. Swansboro Country
Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-83. “‘If a deponent fails to answer any question
or to produce any document or tangible thing under the deponent's control that
is specified in the deposition notice or a deposition subpoena, the party
seeking discovery may move the court for an order compelling that answer or
production.’” Unzipped Apparel, LLC
v. Bader (2007) 156 Cal. App. 4th 123, 129 (quoting CCP §2025.480(a)). A
court may quash a subpoena entirely or partially, and issue an order to protect
parties, witnesses or consumers from unreasonable or oppressive demands
including violations of privacy. CCP
§1987.1. An extreme request without any
relationship to the manner in which records are kept may be too broad. Calcor Space Facility, Inc. v. Sup. Ct.
(1997) 53 Cal.App.4th 216, 222-23 (subpoena having six pages of definitions and
instructions made 32 document requests complicated categories, effectively
requesting everything in respondent's possession in any way related to a
category).
Trial courts have discretion as to whether to
punish any contempt. Goold v. Sup.
Ct. (2006) 145 Cal. App. 4th 1, 9. See, also, e.g., CCP §§1211(a) (“may be
punished….”); 1212 (“warrant … may be
issued….”); 1991 (“Disobediance to a
subpoena… may be punished as a contempt….”);
1993(a)(1) (“may issue a warrant” re deposition subpoena); 2020.240 (“deponent who disobeys a deposition
subpoena . . . may be punished for contempt….”); 2023.030(e) (court "may" impose
contempt sanction.) “‘The power of the
court to punish for contempt is indeed broad, but it is not unlimited. It is a
drastic remedy, to be employed only when necessary to the proper and orderly
conduct of judicial proceedings.’” Chapman
v. Sup. Ct. (1968) 261 Cal.App.2d 194, 201.
Intervention
First, the Court finds that the proposed intervention
does not involve a direct and immediate interest in the action, where the
union-management disputes are being presided over by the Hearing Officer in
administrative proceedings who is authorized to enforce the agency’s own decisions,
the instant papers show no involvement of discovery into Pitchess information,
and it is logically unlikely what any relevant information about an unchecked,
secret society would be stored within any peace officer’s personnel file. Certainly, the deposition could proceed at
least to the great extent that Pitchess information regarding disciplinary
matters and administrative investigations are not targeted by deposition
questions, such that prohibiting the whole deposition would be grossly overly
broad. While such overbreadth
theoretically might assist with Labor-Management relations, that is outside the
scope and jurisdiction of this action, and within the jurisdiction of the Los
Angeles County Employee Relations Commission.
Second, the Court finds that the proposed intervention
would enlarge the issues beyond Petition’s request to enforce the subpoena, by
getting into union-management disputes and Pitchess objections.
Third, the Court finds that the action for subpoena
enforcement will not impair or impede the employee union’s ability to protect
interest, where labor-management relations are being handled in another
jurisdiction-- the Hearing Officer in the administrative
proceeding before ERCOM, and the deponent or affected third-parties theoretically
could assert any Pitchess, privacy or other objections in the unlikely event such
issues arise.
Fourth, for similar reasons, the Court finds that the
interest are being adequately represented by the existing parties.
“The trial court has discretion to
permit a nonparty to intervene where: (1) the proper procedures have been
followed, (2) the nonparty has a direct and immediate interest in the action,
(3) the intervention will not enlarge the issues in the litigation, and (4) the
reasons for the intervention outweigh any opposition by the parties presently
in the action….” Chavez v. Netflix (2008)
162 Cal.App.4th 43, 51. In order to have
the right to intervene in a lawsuit, the interest in the outcome must be
direct, and not consequential. Hinton
v. Beck (2009) 176 Cal.App.4th 1378, 1383.
One has a direct interest justifying intervention where the judgment
itself would add to, or detract from, one’s legal rights, without reference to
rights and duties not involved in the action, as distinguished from a
consequential interest where one would not be directly affected. Hinton v. Beck (2009) 176 Cal.App.4th
1378, 1383.
“An order denying intervention is
reviewed under the deferential abuse-of-discretion standard.” Noya v. A.W. Coulter Trucking (2006)
143 Cal.App.4th 838, 842. “Because the decision whether to allow intervention is
best determined based on the particular facts in each case, it is generally
left to the sound discretion of the trial court.” City and County of San Francisco v. State
of Cal. (2005) 128 Cal. App. 4th 1030, 1036. Accord Hinton v. Beck (2009) 176
Cal.App.4th 1378, 1382 ("Intervention pursuant to section 387, subdivision
(a) is not a matter of right, but is discretionary with the trial
court.").
A court did not abuse its discretion
in denying intervention as untimely, even though there is no statutory time
limit. Noya v. A.W. Coulter Trucking
(2006) 143 Cal.App.4th 838, 842.
An opinion summarizes intervention
procedures as follows:
“The
right to intervention may be permissive or unconditional. It is permissive when
a person has an interest in the matter in litigation, or in the success of
either of the parties, or an interest against both of the parties. (Code Civ.
Proc., § 387, subd. (a).) It is unconditional when the person seeking
intervention claims an interest relating to the property or transaction that is
the subject of the action, the disposition of the action may impair or impede
the person's ability to protect that interest, and the interest is not being
adequately represented by existing parties. (Code Civ. Proc., § 387, subd.
(b).)
Mylan Labs. v. Soon-Shiong (1999) 76 Cal. App. 4th 71, 77-78.
Another opinion outlined the
intervention procedures as follows:
Intervention
is mandatory (as of right) or permissive. A nonparty has a right under Code of
Civil Procedure section 387, subdivision (b) to intervene in a pending action
“if the person seeking intervention claims an interest relating to the property
or transaction which is the subject of the action and that person is so
situated that the disposition of the action may as a practical matter impair or
impede that person's ability to protect that interest, unless that person's
interest is adequately represented by existing parties.” n2
n2
The trial court has discretion under Code of Civil Procedure section 387,
subdivision (a) to permit a nonparty to intervene if: (1) the proper procedures
have been followed; (2) the nonparty has a direct and immediate interest in the
action; (3) the intervention will not enlarge the issues in the litigation; and
(4) the reasons for the intervention outweigh any opposition by the parties
presently in the action. ( Reliance Ins. Co. v. Superior Court (2000) 84
Cal.App.4th 383, 386 [100 Cal.Rptr.2d 807]; Truck Ins. Exchange v. Superior
Court (1997) 60 Cal.App.4th 342, 346….
Hodge v. Kirkpatrick Development,
Inc. (2005) 130 Cal. App. 4th 540,
547. Accord Siena Court Homeowners Assn. v. Green
Valley Corp. (2008) 164 Cal.App.4th 1416, 1423-30 (applying all of the
statutory factors, to find no basis for intervention); Royal Indem. Co. v. United Enters.
(2008) 162 Cal.App.4th 194, 203, 212 (“Only abstract rights and interests have
been asserted …, and they are too indirect, remote, and consequential.”).
Pitchess
motion requirements are inapposite to information that does not fall within the
definition of "personnel records" of Penal Code Section 832, even if
found in a personnel file. Zanone v.
City of Whittier (2008) 162 Cal.App.4th 174, 188. Penal Code sections 832.7 and 832.8 do not
automatically apply to all information contained in an employer’s file, but
instead make confidential and protect from disclosure only information
specifically enumerated in section 832.8.
Ibarra v. Sup. Ct. (2013) 217 Cal.App.4th 695, 704.
Effective January 1, 2019, amended Penal Code section
832.7 allows disclosure of records “relating to officer-involved shootings,
serious use of force and sustained findings of sexual assault or serious
dishonesty…. This statute renders the records non-confidential and applies to
‘any file maintained under [the] individual's name by his or her employing
agency.’… Previously, these records could be accessed only through a Pitchess…
motion pursuant to Evidence Code sections 1043 and 1045.” Ventura Cty. Deputy Sheriffs' Ass'n v.
Cty. of Ventura (2021) 61 Cal. App. 5th 585, 589. As amended, Penal Code Section 832.7(a)
requires public disclosure of records “ ‘relating to an incident in which a
sustained finding was made by any law enforcement agency or oversight agency of
dishonestly by a peace office or custodial officer directly relating to the
reporting, investigation, or prosecution of a crime, or directly relating to
the reporting of, or investigation of misconduct by, another peace officer or
custodial officer, including, but not limited to, any sustained finding of
perjury, false statements, filing false reports, destruction, falsifying, or
concealing of evidence.’ “ Collondrez
v. City of Rio Vista (2021) 61 Cal. App. 5th 1039, 1051.
Where a Pitchess
motion does not apply to the information sought, the proper procedure is to
demand an inspection of the information pursuant to Code of Civil Procedure
Section 2031.030. Ibarra v. Sup. Ct.
(2013) 217 Cal.App.4th 695, 706 (“In the interests of justice and judicial
economy, we will deem … motion for disclosure as a demand for inspection of the
photographs ….”).
A peace officer’s asserting objections is permissible,
and an objection-free investigation is not required, such that lawful interests
can be protected: “Failure to cooperate
with an investigation into potential police misconduct, including an
investigation conducted pursuant to this chapter. For purposes of this
paragraph, the lawful exercise of rights granted under the United States
Constitution, the California Constitution, or any other law shall not be
considered a failure to cooperate.” Cal.
Penal Code § 13510.8(b)(8).
A blanket order against a deposition may be an abuse
of discretion, and instead objections can be raised question-by-question. Meritplan Ins. Co. v. Sup. Ct. (1981)
124 Cal.App.3d 237, 242.
Third parties must be notified (e.g., by letter or e-mail)
and given an opportunity to either consent or object, before discovery
responses revealing their private information, and parties cannot waive such
rights of third parties. Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 554, 561-62; Pioneer Electronics (USA), Inc. v. Sup. Ct.
(2007) 40 Cal.4th 360, 374-75; DOE 2
v. Sup. Ct. (2005) 132 Cal.App.4th 1504, 1521.