Judge: Mark C. Kim, Case: TC028076, Date: 2022-08-18 Tentative Ruling
Case Number: TC028076 Hearing Date: August 18, 2022 Dept: S27
1. Background
Facts
Plaintiffs, Lashun Carcamo, Anthony
January, and Kirby Hales filed this action against Defendants, Los Angeles County
Sheriff’s Department and Deputy Larry Billoups for false imprisonment and
battery. The case was ultimately tried
to a jury. The parties proposed jury
instructions, and the Court adopted a special verdict form that included the question,
“Did Deputy Billoups observe each of the Plaintiffs drunk in public in
violation of Carson Municipal Code §4201 that, if proved, would constitute reasonable
cause to believe each of the Plaintiffs had committed a crime in Deputy Billoup’s
presence?” The jury answered yes to the question,
and therefore the Court entered a defense verdict.
Plaintiffs appealed. The issue on appeal was (a) whether §4201 was
valid in light of Penal Code §647(f), (b) whether the special verdict form and related
jury instructions were improper in light of state law preemption, and (c)
whether any impropriety in the verdict form and instructions was
prejudicial. The Court of Appeals held
§647(f) was intended to occupy the field, such that §4201 was invalid. The Court of Appeals held that the special
verdict form and instructions were improper in light of the preemption. The Court of Appeals held that the impropriety
in the verdict form and instructions was prejudicial, as Defendants conceded
they had not arrested Plaintiffs with probable cause per the standard set forth
in §647(f), which is much higher than the standard set forth in §4201.
2. Motion
for Discovery of Peace Officer Records (Pitchess Motion)
a. Parties’
Positions
Plaintiffs seek to discover Officer
Billoups’s personnel file, contending it is relevant to their claims against
him at the upcoming trial. Specifically,
Plaintiffs contend the personnel file may include information going to Officer
Billoups’s moral turpitude, including records that show intent, whether willful
and accomplished in conscious disregard of Plaintiffs’ fundamental rights. Plaintiffs contend Billoups was aware of the governing
law, but chose to ignore it, and also fabricated allegations against Plaintiffs
for the purpose of arresting them.
Plaintiffs argue Billoups sexually harassed Carcamo and demeaned January,
and the arrests were a culmination of a strangely motivated vendetta against
them because their arrests occurred on Valentine’s Day weekend, which Billoups
was forced to work.
The County opposes the motion. It argues the declaration submitted in
support of the motion is insufficient to show good cause and materiality, and if
the documents are produced, the categories sought are overbroad as to time and
information requested. The County
contends discovery of Billoups’s records for the purpose of showing moral
turpitude is only permitted if there is a specific factual scenario showing officer
misconduct, and no such specific factual scenario has been presented here. It contends the motion seeks records that are
overbroad as to time, and that if the motion is granted, only the names and
addresses of the relevant complainants are discoverable.
b. Law
Governing Pitchess Motions
Evidence Code §1043 provides:
(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 which has custody and control of the records.
The written notice shall be given at the times prescribed by subdivision (b) of
Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the
governmental agency served shall immediately notify the individual whose
records are sought.
(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 which 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.
(c) No hearing upon a motion for
discovery or disclosure shall be held without full compliance with the notice
provisions of this section except upon a showing by the moving party of good
cause for noncompliance, or upon a waiver of the hearing by the governmental
agency identified as having the records.
Evidence Code §1045 provides:
(a) Nothing in this article shall
be construed to affect the right of access to records of complaints, or
investigations of complaints, or discipline imposed as a result of those
investigations, concerning an event or transaction in which the peace officer
or custodial officer, as defined in Section 831.5 of the Penal Code,
participated, or which he or she perceived, and pertaining to the manner in
which he or she performed his or her duties, provided that information is
relevant to the subject matter involved in the pending litigation.
(b) In determining relevance, the
court shall examine the information in chambers in conformity with Section 915,
and shall exclude from disclosure:
(1) Information consisting of
complaints concerning conduct occurring more than five years before the event
or transaction that is the subject of the litigation in aid of which discovery
or disclosure is sought.
(2) In any
criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section
832.5 of the Penal Code.
(3) Facts sought to be disclosed
that are so remote as to make disclosure of little or no practical benefit.
(c) In determining relevance where
the issue in litigation concerns the policies or pattern of conduct of the
employing agency, the court shall consider whether the information sought may
be obtained from other records maintained by the employing agency in the
regular course of agency business which would not necessitate the disclosure of
individual personnel records.
(d) Upon motion seasonably made by
the governmental agency which has custody or control of the records to be
examined or by the officer whose records are sought, and upon good cause
showing the necessity thereof, the court may make any order which justice
requires to protect the officer or agency from unnecessary annoyance,
embarrassment or oppression.
(e) The court shall, in any case or
proceeding permitting the disclosure or discovery of any peace or custodial
officer records requested pursuant to Section 1043, order that the records
disclosed or discovered may not be used for any purpose other than a court
proceeding pursuant to applicable law.
c. Entire
Personnel File
Plaintiffs’ notice of motion is not
entirely clear concerning what documents Plaintiffs seek. In reviewing the moving papers, it appears
Plaintiffs are seeking production of Billoups’s entire personnel file. At page 3, lines 7-8, Plaintiffs indicate
they seek “relevant documents or information in the personnel records” of
Billoups. At page 4, line 6, Plaintiffs argue
they have met their burden to show they are entitled to discover “Deputy
Billoups’ personnel file.” At page 6,
lines 12-18, Plaintiffs note that citizen complaints are typically sought by
way of a Pitchess motion, but contend such discovery is not limited to citizen
complaints.
Plaintiffs attached “Exhibit ‘A’”
to their moving papers. The points and
authorities and notice of motion never mention Exhibit A. Exhibit A appears to be a list of the types
of documents Plaintiffs wish to have produced.
The list includes all records maintained by the Department or in the records
of the Office of Citizen Complaints from five years prior to the subject
incident to the present relating to nineteen different categories of
information, as well as various other documents. The exhibit is three pages long and the
categories are not clearly defined.
As noted above, Evidence Code
§832.7 makes personnel records confidential with certain exceptions. §832.7(a) states that such records “maintained
by a state or local agency pursuant to §832.5” are subject to this
protection. §832.5 specifically details the
types of citizen complaints and related records that are entitled to the
subject protection.
Plaintiffs cite People v. Wheeler
(1992) 4 Cal.4th 284, People v. Mickle (1991) 54 Cal.3d 140, 168,
and People v. Harris (1989) 47 Cal.3d 1047 to support their position that
records other than citizen complaints can be sought by way of a Pitchess motion. Plaintiffs provide no pinpoint cites or quotations
for Wheeler or Harris. Wheeler is a long
opinion, and the opinion considers whether and when evidence of a criminal
defendant’s prior bad acts is admissible.
The Court could not locate any portion of the opinion relating to
Pitchess motions in any way. Page 168 of
Mickle concerns trial court error in excluding evidence submitted at trial and
in no way concerns Pitchess motions. The
issue in Harris was whether the death penalty was properly imposed in a murder
case. Again, the Court could find no
portion of the opinion concerning or discussion Pitchess motions in any
way. The Court asks Plaintiffs to ensure
citations are pinpoint in nature and include quotations whenever possible, and
that citations actually stand for the position advanced; this will ensure the
Court need not go on a wild goose chase to locate portions of opinions that do
not appear to exist.
The Court finds only portions of the
personnel file concerning citizen complaints are discoverable using the Pitchess
procedure. The Court will evaluate the
motion to determine whether evidence of prior citizen complaints should be
produced or not, but will not evaluate the motion to determine whether any
other evidence need be produced.
d. Moral
Turpitude
Plaintiffs argue a Pitchess motion is an appropriate
avenue to discover records relating to an officer’s moral turpitude, including
issues relating to credibility.
Plaintiffs cite Larry E. v. Superior Court (1987) 194 Cal.App.3d 25,
28-33 to support their position. The
criminal defendant in Larry E., a minor child, contended the officers lied
about the minor having cocaine in his possession, lied and said the minor
attacked them, actually attacked the minor, and had racial and/or class bias
against the minor. Based on the foregoing,
the minor sought to obtain the officers’ records of prior citizen complaints
for the purpose of proving his own credibility and disproving the officers’ credibility. The trial court granted the motion in part
and denied it in part for reasons not relevant here, and the Court of Appeals
affirmed in part and overruled in part, holding that the subject records were
relevant to show credibility.
The County argues that, pursuant to
California Highway Patrol v. Superior Court (2016) 84 Cal.App.4th
1010, 1025, when records are sought to show moral turpitude, good cause must be
demonstrated by providing a specific factual scenario and establishing a
logical link between the legal position asserted and the discovery sought. The defendant in CHP argued personnel records
were necessary because officers are known to lie, and therefore were likely to
have lied in the case at issue.
Plaintiffs’ evidence in this case
falls somewhere between Larry E. and CHP.
Plaintiffs’ attorney charges Billoups with fabrication of evidence,
including an empty beer can, his observations of Plaintiffs’ intoxication, and Plaintiffs’
purported admissions that they had been drinking alcohol. The Court finds the foregoing is sufficient to
place Billoups’s credibility in question.
e. Police
Report
The County argues Plaintiffs’
failure to attach the police report is fatal to their motion, relying on
Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025. The Warrick Court discussed the police report
as one method of making the required showing relating to a Pitchess motion, but
never indicated it was absolutely required.
Notably, in this case we have an entire trial and appellate record,
which was not the case in Warrick. The Court
finds the failure to attach the police report is not fatal to the motion.
f. Time
Constraints
The County argues Plaintiffs improperly
seek all of Billoups’s records without any time constraints, when Evidence Code
§1045(b)(1) limits the records to be produced to those from five years prior to
the date of the incident to the present.
Plaintiffs’ Exhibit A specifies that the records sought are from five
years prior to the incident date (2/15/14) to the present, and therefore it
appears the parties agree that these are the records at issue.
g. Identifying
Information or Actual Complaints
The parties disagree concerning
whether the actual complaints need to be produced, or whether only the
identifying information of the complainants need to be produced. Pursuant to City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, typically only identifying information of
complainants is ordered produced. Plaintiffs
rely on People v. Matos (1979) 92 Cal.App.3d 862 to support their position that,
under the circumstances (the large elapse of time from 2009 to the present),
the actual complaints should be produced.
Plaintiffs failed to provide a pinpoint citation for Matos. It does not appear Matos was concerned with whether
names and addresses were adequate, and the Court can find nothing in Matos
supporting the position that something more than names and addresses can be
ordered produced.
The Court researched the issue, and
found Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112,
which discussed the issue at length. The
Alvarez Court held that typically only the names and addresses are ordered
disclosed, BUT if the complainant refuses to speak to the attorney, is
unavailable, or cannot remember the incident, THEN the trial court must order
disclosure of the actual statement. The Court
finds this process should be followed here.
Defendant will be ordered to disclose only the identifying information,
and then Plaintiffs can return to court if they are unable, after a reasonable
and good faith attempt, to locate the complainants, and/or the complainants
will not talk to them about the prior incident.
h. Scope
of Discovery
The Court will review the citizen
complaints in camera. The Court will determine
which, if any, of the subject complaints are sufficiently similar to the ones
being made in this case to make them discoverable. The Court will be mindful of Evidence Code
§1045(b)(2), which precludes it from ordering production of information so
remote as to make disclosure of little or no practical value.
i. Protective
Order
As required by CCP §1045(e) and
Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039-1040, the
disclosed information may not be used for any purpose other than a court proceeding
pursuant to applicable law.
j. Compliance
Date
Pursuant to City of Alhambra v.
Superior Court (1988) 205 Cal.App.3d 1118, 1131, the Court will order a compliance
date sufficient to allow the County to seek a writ of mandate if it wishes to
do so. The Court will discuss a compliance
date with the parties at the time of the hearing.