Judge Michael Small, Case Number: 22STCV18029, Date: 2024-05-29 Tentative Ruling

Judge: Michael Small, Case: 22STCV18029, Date: 2024-05-29 Tentative Ruling

Case Number: 22STCV18029 Hearing Date: May 29, 2024 Dept: 57

Plaintiff Gregory Hoskins sued defendant City of Los Angeles (“the City”) alleging a single cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”). As alleged in his complaint, Plaintiff has been a sworn officer in the Los Angeles Police Department (“LAPD” or “the Department”) since at least 2003. (Compl., ¶ 11.) He currently holds the rank of Sergeant. (Id, ¶ 11.) Around 2010, he sued the City and the Department for racial discrimination in violation of FEHA. (Id., ¶ 12.) In that lawsuit, Plaintiff alleged he had been denied a position on the Department’s SWAT team because of his race. (Ibid.) The case was tried to a jury in 2011. (Id., ¶ 13.) After the verdict, members of the SWAT team -- Lieutenant Ruben Lopez, in particular -- “openly stated on multiple occasions that Plaintiff ‘could never work [in SWAT] after trying to sue ... ,’ or words to that effect.” (Id., ¶ 14.) Ten years later, in 2021, Plaintiff applied for a SWAT position again. (Id., ¶ 15.) Despite being the most qualified candidate, he was passed over in favor of less-qualified applicants. (Id., ¶ 16.) Plaintiff then sued the City again through the action that is pending before this Court. Plaintiff alleges in his complaint in this action that he was denied the opportunity to advance or promote within the Department because of his prior assertion of his rights under FEHA.

Pending before the Court is Plaintiff’s motion for an order requiring the City to disclose for in camera review by the Court certain peace office personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 [“Pitchess”]. The Court is granting Plaintiff’s motion.

Under Pitchess, “a criminal defendant, upon a showing of good cause, [can] compel discovery of information in a police officer’s personnel file that [is] relevant to the defendant’s ability to defend against a criminal charge.” (Riske v. Superior Court (City of Los Angeles) (2016) 6 Cal.App.5th 647, 654.) The principles and standards of Pitchess have been codified in statutes applicable in both criminal and civil cases. (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 68.) Among the types of civil cases in which Pitchess and the statutes codifying it have been applied and enforced are cases in which the plaintiff alleges retaliation in his or her employment with a law enforcement agency, even when there is no allegation that the peace officers whose records are sought committed or witnessed the alleged retaliation. (Riske, supra, 6 Cal.App.5th at pp. 652, 658.)

A motion under Pitchess must describe the type of records or information sought and include an affidavit showing good cause for the discovery, which explains the materiality of the information to the subject of the pending litigation and states on reasonable belief that the governmental agency has the records or information. (People v. Superior Court) (Johnson) (2016) 61 Cal. App.4th 696, 710.) The required “good cause” showing reflects a “relatively low threshold for discovery.” (Garcia v. Superior Court (City of Santa Ana) (2007) 42 Cal.4th 63, 71.) Specifically, the affidavit need only present ‘a plausible factual foundation” for the asserted materiality of the records sought to the subject matter of the litigation. (Warrick v. Superior Court (City of Los Angeles Police Department) (2005) 35 Cal. 4th 1011, 1025.) In deciding whether the moving party has shown good cause for the disclosure of the records sought based on a plausible factual scenario, the trial court does not assess credibility of either the affiant or the version of the events set forth in the affidavit. (Id. at p. 1026.) “When a trial court concludes [that the] Pitchess motion shows good cause for discovery a law enforcement officer's personnel files, the custodian of the records of the agency is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself.” (People v. Mooc (2001) 26 Cal.4th 1216, 1228–1229.) That review is conducted in camera. (City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal.3d 74, 83.)

Here, the peace officer personnel records that Plaintiff seeks in his Pitchess motion fall in the following three categories:

1. All documents relating to the selection of Sergeant Michael Knoke over Plaintiff for the LAPD SWAT Sergeant II + 3 position that Knoke was selected for in or around May of 2021, including but not limited to:

a. The 15.88 Form, Training Evaluation and Management System (“TEAMS”) Report, and the two performance evaluations submitted by Sergeant Michael Knoke for the position;

b. The interview rating sheets completed by the oral interview panel members pertaining to Sergeant Michael Knoke and Plaintiff for the position;

c. Any ranking matrices pertaining to the position;

d. The Commanding Officer’s rationale for the selection of Sgt. Knoke for the position; and

e. Any other documents relied upon to select Sgt. Knoke and/or reject Plaintiff for the position.

2. The same of records, relating to the selection of Sergeant Paul Hong over Plaintiff for the LAPD SWAT Sergeant II + 3 position that Hong was selected for in or around July of 2021.

3. The Internal Affairs interviews (in any and all formats in which they exist, including but not limited to, audio files and transcripts) from any and all LAPD Internal Affairs investigations into the allegations in Plaintiff’s Complaint in this matter.”

In the Court’s view, Plaintiff has shown good cause for disclosure of the records he is seeking through his Pitchess motion. The affidavits supporting the motion establish a plausible factual foundation for the materiality of the records to the Plaintiff’s retaliation claim. In particular, Plaintiff’s requests in categories 1 and 2 set forth above are limited to the records related to the two officers whom Plaintiff alleges were selected over him for the position on the SWAT team for which he applied, even though they were less qualified than the Plaintiff. As to records in category 3, Haggerty v. Superior Court (Guindazola) (2004) 117 Cal.App.4th 1079, 1087 establishes that an internal affairs investigation directly related to the allegations in the litigation may be disclosed through an order granting a Pitchess motion.

Finally, the Court observes that Plaintiff is correct that the relevant statutes do not at present set a temporal limit of five years on records sought through a Pitchess motion. Senate Bill 16 (2021-2022 Reg. Sess.) 2021 Cal. Legis. Serv. ch. 402, § 1 deleted that limit and excluded form disclosure in civil proceedings only “[f]acts ... that are so remote as to make disclosure of little or no practical benefit.”