Judge Mitchell L. Beckloff, Case Number: 23STCP01060, Date: 2023-05-24 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP01060, Date: 2023-05-24 Tentative Ruling

Plaintiff, the City of Los Angeles, seeks a writ of possession against Defendants, Ben Camacho and Stop LAPD Spying Coalition, over the following property: “Flash drive produced by Los Angeles Police Department to Ben Camacho's attorneys on September 16, 2022, all records contained therein, and all physical and digital copies of records obtained from that drive.”[1]

Both Defendants filed identical evidentiary objections to the City’s evidence. The following objections are sustained: 1, 2 (as to “and firmly believe . . . and their children” only), 3, 4, 5, 6, 7 (as to all except the first sentence), 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (authentication, foundation), 19 (authentication, foundation), 20, (authentication, foundation), 21, 22, 23, 24, 25 (as to “I learned . . . my personal information” only), 26 (as to “must” only) and 28 (as to "My family . . .similar concerns” only).

The City’s objections to Defendants’ evidence are all sustained except objection 27 which is overruled.

Defendant Stop LAPD Spying Coalition’s request for judicial notice is denied as irrelevant.

The Reporters Committee for Freedom of the Press and 21 other media organizations request to file an amicus curiae brief is denied without prejudice. As the City has failed to meet its burden on its application, the court does not address herein any Constitutional issues.

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply . . . for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc., § 512.010, subd. (a).)

Pursuant to Code of Civil Procedure section 512.010, subdivision (b), the application must be submitted under oath and include:

“(1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached.

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.”

“The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.” (Code Civ. Proc., § 512.040, subd. (b).) “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 511.090.) “If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff's right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.” (Code Civ. Proc., § 512.040, subd. (c).)

Prior to the issuance of a writ of possession, the plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.” (Code Civ. Proc., § 515.010, subd. (a).) “The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant's interest in the property.” (Id.) “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff's undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Code Civ. Proc., § 515.010, subd. (b).)

As noted, a plaintiff seeking a writ of possession must make a showing that “the plaintiff is entitled to possession of the property claimed.” (Code Civ. Proc., § 512.010, subd. (b).) “The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.” (Code Civ. Proc., § 512.040.)

The City’s complaint alleges causes of action for claim and delivery, declaratory relief and return of government records. The City claims entitlement to the “Flash drive produced by Los Angeles Police Department to Ben Camacho’s attorneys on September 16, 2022, all records contained therein, and all physical and digital copies of records obtained from that drive.”[2] (Application, ¶ 4.)

The dispute between the City and Defendants arose in the context of a request under the California Public Records Act (CPRA), Government Code section 7920.000, et seq. On October, 11, 2021, Defendant Camacho requested the Los Angeles Police Department (LAPD) provide him with “ ‘[t]he most up-to-date roster of LAPD names, badge numbers, serial numbers, division, sworn status. The department headshot photos of all of the same officers referenced above.’ ” (Complaint ¶ 8.)

The LAPD responded to Defendant Camacho’s CPRA request on January 25, 2022. At that time, the LAPD produced certain documents to Defendant Camacho, including a roster containing names and other requested information but denied the request for photographs of its officers. (Complaint ¶ 9.)

Dissatisfied with the LAPD’s production, Defendant Camacho filed a petition for writ of mandate with the court on or around May 27, 2022. [Ben Camacho v. City of Los Angeles, LASC Case No. 22STCP02029.] (Complaint ¶ 10.)

The City and Defendant Camacho settled the litigation brought by Defendant Camacho. (Complaint ¶ 11.) “The City agreed to provide pictures of all full-time, active duty, sworn officers as of July 3, 2022 that were available in LAPD’s system, except for images of officers working in an undercover capacity.” (Complaint ¶ 11. Collins Decl., ¶ 2, Ex. 1; see also ¶ 4.)

On September 16, 2022, Defendant Camacho “met with a staff member of the City Attorney’s Office, who handed [him] a flash drive with the LAPD officers’ photographs [].” (Camacho Decl., ¶ 13.)[3] The staff member also handed Defendant Camacho a letter. The letter reported the flash drive “ ‘includes pictures of all full-time, active duty, sworn officers’ and that ‘[a]s discussed and agreed upon by all counsel, images of officers working in an undercover capacity as of the time the pictures were downloaded (end of July 2022) are not included.’ ” (Camacho Decl., ¶ 13, Ex. B.)

A few days later, Defendant Camacho announced on his Twitter account that he had obtained photographs of LAPD officers through a CPRA lawsuit. (Camacho Decl., ¶ 14.)

Several months later, a representative of Defendant Stop LAPD Spying Coalition asked Defendant Camacho “for a copy of the flash drive of the LAPD officers photographs, names, and rank.” (Camacho Decl., ¶ 15.) Defendant Camacho provided Defendant Stop LAPD Spying Coalition with access to the flash drive. (Camacho Decl., ¶ 15.)

On March 20, 2023, Defendant Camacho posted a link on his Twitter account to the “photographs, names, and serial numbers of 9,310 LAPD officer that the City had provided to” him. (Camacho Decl., ¶ 17.)

To respond to Defendant Camacho’s CPRA request, the City obtained more than 9,300 digital files of officers with the LAPD from the LAPD. (Collins Decl., ¶ 5.) The Deputy City Attorney handling the dispute between Defendant Camacho and the LAPD believed (“understood”) that the images provided by the LAPD did not include “undercover officers.” (Collins Decl., ¶ 5.)

The City alleges in its complaint the flash drive “contain[s] inadvertently produced photographs of officers assigned to undercover duties, . . . .” (Complaint ¶ 26.) The City further alleges it is “entitled to immediate possession” of the photographs of the officers assigned to undercover duties. (Complaint ¶ 26.)

On the merits of the City’s claim, the City acknowledges as a general matter that photographs of LAPD officers are public records as defined under the CPRA. (Gov. Code, § 7920.530.) Nonetheless, the City contends photographs and images of officers assigned to undercover duties are exempt from disclosure under the CPRA. (Id., § 7920.000.) The City therefore concludes Defendants are not authorized to possess the photographs of officers assigned to undercover duties (exempt records) despite having obtained such photographs and images.

The court agrees under certain circumstances records revealing the identify of certain police officers may be exempt under the CPRA. (See Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 301; see also Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 74.)

The admissible evidence before the court, however, does not establish Defendants are in possession of exempt records under the CPRA. Accordingly, the City has not met its burden of demonstrating its “claim is probably valid,” and it is “entitled to possession of the property claimed.” (Code Civ. Proc., §§ 512.040, 512.010, subd. (b).)

The City has not demonstrated with admissible evidence the flash drive it produced to Defendant Camacho contains photographs and/or images of LAPD officers serving in an undercover capacity.

The City has attempted to meet its burden on its application with three declarations: the Declaration of Hasmik Badalian Collins, the Declaration of LAPD Captain Jonathan L. Tippet and the Declaration of LAPD Detective John Doe 1. The City has submitted no other evidence to meet its burden under the application.

The Declaration of John Doe 1 provides no information about the material supplied by LAPD on the flash drive.[4]

The Declaration of Hasmik Badalian Collins also does not provide any information about the material supplied by LAPD on the flash drive.[5] In fact, Collins “understanding” suggests the material supplied by the LAPD on the flash drive actually did not contain photographs and images of LAPD officers serving in an undercover capacity. (Collins Decl., ¶ 5.) Collins’ email and letter to Defendant Camacho’s attorneys also suggests images of LAPD officers serving in an undercover capacity were excluded from the flash drive. (Collins Decl., Exs. 1, 2.) No admissible evidence suggests Collins’ belief about the contents of the flash drive was incorrect.

Finally, the Declaration of LAPD Captain Jonathan L. Tippet also provides no admissible evidence concerning the contents of the material provided by LAPD on the flash drive. Tippet attests to his employment and history with the LAPD. (Tippet Decl., ¶¶ 1-6.) Tippet also explains the Robbery-Homicide Division’s use of “undercover units, the significance of their duties, and the effect that the release of photographs of officers in those units will have on LAPD’s ability to conduct necessary operations.” (Tippet Decl., ¶¶ 7-10.) Tippet reports he is “extremely familiar with the training, methods and use of undercover officers, as well as officers in other sensitive positions.” (Tippet Decl., ¶ 12.) He explains undercover officers are important for close contact investigations where the LAPD needs covert investigations. (Tippet Decl., ¶ 14.) Finally, Tippet attests officers who engage in undercover work treat threats against them seriously. (Tippet Decl., ¶ 17.)

The admissible evidence submitted by the City to support its application does not provide any support whatsoever to its claim the material LAPD provided on the flash drive given to Defendant Camacho contains photographs and/or images of LAPD officers working in an undercover capacity. Witness declarations based on “information and belief” or statements told to them by others, such as “I have learned,” are objectionable, and Defendants’ objections are well taken on foundation grounds.[6]

Further, despite both Defendants having served their identical evidentiary objections to the City’s evidence on May 11, 2023, the City filed no additional evidence with its reply papers nearly a week later.[7] Instead, the City relies on evidence for which (well-taken) objections were pending. (Reply 8:11-12 [citing Collin Decl., ¶¶ 5-7; Tippet Decl., ¶ 11].)

Moreover, it is not entirely clear how LAPD defines officers acting in an undercover capacity. Admissible evidence from Tippet suggests there are undercover officers as well as “officers in other sensitive positions” who might make the same safety arguments. (Tippet Decl., ¶ 12.) The court does not have evidence before it related to how the parties may have defined “undercover officers” when they resolved the underlying lawsuit. (Collins Decl., Exs. 1, 2.)

Based on the foregoing, the court finds the City has failed to meet its burden on this application. The City has not demonstrated through admissible evidence the material provided by LAPD on the flash drive contains photographs and/or images of LAPD officers serving in an undercover capacity. Without such an evidentiary showing, the court cannot find Defendants are in possession of materials that are exempt under the CPRA that are subject to return to the City.

The City Has Not Submitted Evidence Showing the Property’s Probable Location

A plaintiff seeking a writ of possession over property located “within a private place which may have to be entered to take possession,” must “sho[w] that there is probable cause to believe that such property is located there.” (Code Civ. Proc., §§ 512.010, subd. (b)(4), 512.080; see also Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 242-43.)

The City has made no showing of the “location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.” (Code Civ. Proc.,

As noted, the scope of the City’s request for possession is not entirely clear. If the City seeks to recover possession of something more than the flash drive provided to Defendant Camacho on September 16, 2022, the City must supply a location for that property and evidence of probable cause to believe the property is at that location.

As noted in footnote 2 supra, the scope of relief requested by the City in this application is unclear. Certainly—assuming the City met the statutory requirements—the City could recover physical possession of the flash drive provided by it to Defendant Camacho on September 16, 2022. The City provides no authority for a writ of possession for any other property such as electronic copies and digital images perhaps posted somewhere on various websites on the internet.

Some older case authority suggests property sought to be recovered through a writ of possession must exist in some concrete or tangible form, capable of identification and seizure. (See Lamus v. Engwicht (1919) 39 Cal.App. 523, 528.) Further, a well-known treatise on civil law provides: “Claim and delivery . . . is a provisional remedy that enables the plaintiff in an action for recovery of specific, tangible personal property in the defendant's possession to obtain possession of the property prior to judgment.” (Rutter Group, Cal. Prac. Guide Enf. J. & Debt, Ch. 4-B [emphasis in original]; see also ibid. [“A receiver or injunction is also necessary to protect plaintiff's interest in intangible personal property—e.g., proceeds of accounts or general intangibles.”])

Finally, to the extent the City intends to obtain “possession” of all photographs and/or images beyond the control of Defendants, it appears those in possession of the photographs and/or images would be entitled to notice and an opportunity to be heard.

Based on the foregoing, the City’s application for a writ of possession is denied.

[1] The City filed a single application naming all Defendants, including Does 1-50.

[2] The property sought to be recovered is somewhat unclear. What the City seeks beyond the return of a flash drive and any physical copies made of or from it is unclear.

[3] The evidence Defendant Camacho relies upon to oppose the City’s application is located in his declaration attached to his special motion to strike filed April 18, 2023. (Opposition 2 n. 1.)

[4] Nothing in the declaration links the material on the flash drive to John Doe’s thoughts about publication of any photographs of him. (See Doe Decl., ¶ 4 [individual filmed Doe].)

[5] The court sustained an evidentiary objection to paragraph 7 on foundation and hearsay grounds.

[6] For example, Tippet’s knowledge about the material on the flash drive is without foundation and/or based on hearsay. The court struck the following evidence attested to by Tippet:

“I have learned that photographs of LAPD undercover officers, including current SIS detectives, were produced as a part of the records request at issue here. On information and belief, those photographs came into the possession of Stop LAPD Spying Coalition, who has posted them to a public website entitled Watch the Watchers.” (Tippet Decl., ¶ 11 [emphasis added] .)

[7] The court is not suggesting evidence for the City’s case-in-chief would properly have been submitted in reply. Nonetheless, the City’s failure to acknowledge or address the objections is curious.