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.