Judge Mitchell L. Beckloff, Case Number: 24STCP00232, Date: 2024-03-13 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 24STCP00232, Date: 2024-03-13 Tentative Ruling

Petitioner, Professional Peace Officers Association (PPOA), moves for a preliminary injunction enjoining Respondents, the County of Los Angeles, the County of Los Angeles Sheriff’s Department (Department), Sheriff Robert Luna, the County of Los Angeles Office of Inspector General (OIG), and the County OIG Inspector General Max Huntsman from “[p]roviding any documents, materials, information, or otherwise to the OIG as it relates to any PPOA represented Department employee (‘Affected PPOA members’) in response to the OIG’s subpoena dated December 19, 2023.” (Proposed Order 2.)

Each law enforcement agency shall maintain a policy that prohibits participation in a law enforcement gang and that makes violation of that policy grounds for termination. A law enforcement agency shall cooperate in any investigation into these gangs by an inspector general, the Attorney General, or any other authorized agency. Notwithstanding any other law, local agencies may impose greater restrictions on membership and participation in law enforcement gangs, including for discipline and termination purposes. (Pen. Code, § 13670, subd. (b).)

a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to, matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing. . . . (Id. at subd. (a)(2).)

In enacting Penal Code section 13670, the Legislature made the following findings:

(a) Law enforcement gangs have been identified within California law enforcement agencies, undermining California’s movement to enhance professional standards of policing throughout the state. Law enforcement gangs have been recognized by the Los Angeles Sheriff's Department as damaging to the trust and reputation of law enforcement throughout California.

(c) Building and preserving trust between California communities and law enforcement agencies, and protecting the integrity of law enforcement as an institution will require agencies to proactively root out “bad apples” including those who participate, formally or informally, in this type of behavior.

(2021 Cal. Legis. Serv. Ch. 408 (A.B. 958) (WEST); see also Huntsman Decl. ¶¶ 5-6.)

The Meyers-Milias-Brown Act (MMBA) and the County’s Employment Relations Ordinance (ERO)

Employment relations between the County and PPOA are governed by the MMBA, Government Code section 3500 et seq. The MMBA provides that recognized employee organizations such as PPOA “shall have the right to represent [its members] in their employment relations with public agencies.” (Gov. Code, § 3503.)

[e]xcept in cases of emergency as provided in this section, the governing body of a public agency . . . shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body or the designated boards and commissions and shall give the recognized employee organization the opportunity to meet with the governing body or the boards and commissions. (Gov. Code, § 3504.5, subd. (a).)

shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations . . . and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action. (Gov. Code, § 3505.)

In addition, the County adopted the ERO, Los Angeles County Code[1] section 5.04.010, which provides rules and regulations governing the administration of labor relations in the County. The ERO provides, “it shall be an unfair employee relations practice for the county . . . to refuse to negotiate with representatives of certified employee organizations on negotiable matters.” (County Code, section 5.04.240, subd. (A)(3).) (See Pet. ¶¶ 14, 72.)

As discussed below, “a public employer’s ‘duty to bargain arises under two circumstances:

(1) when the decision itself is subject to bargaining, and (2) when the effects of the decision are subject to bargaining, even if the decision, itself, is nonnegotiable.’ ” (County of Sonoma v. Public Employment Relations Board (2022) 80 Cal.App.5th 167, 179.)

The November 2022 Decision of the County’s Employee Relations Commission (ERCOM)

“On November 30, 2022, [ERCOM] provided a Decision and Order directing Respondents to meet and confer over the negotiable effects of the County of Los Angeles’ implementation of Measure R and Ordinance 20-0520 (collectively the ‘Oversight Legislation’), which together added Chapter 3.79.190 and amended Chapters 3.79.030 and 3.79.130 of the County Code to permit the Civilian Oversight Commission (‘COC’) and the Office of the Inspector General (‘OIG’) to access information, documents, and testimony through subpoena power, ‘in compliance with all laws and confidentiality protections,’ in order to conduct oversight over the County of Los Angeles Sheriff’s Department . . . . Pursuant to ERCOM’s Decision and Order, ERCOM confirmed that: ‘Members of the employee representation units represented by [the Association for Los Angeles Deputy Sheriffs] and PPOA shall not be required to respond to subpoenas issued pursuant to the Oversight Legislation until the conclusion of the meet-and-confer process. . . .’ ” (Johnson Decl. ¶ 5; see also Ex Parte App. Exh. B.)[2]

In January 2022, OIG sent a letter to then Sheriff Alex Villanueva referencing Penal Code section 13670 and requesting the sheriff “direct all county employees under [his] supervision to cooperate with the Office of Inspector General.” (Huntsman Decl. ¶ 41, Exh. Z.)[3]

On May 12, 2023, OIG sent a letter to 35 sheriff’s deputies directing them to “appear in person to participate in an interview to be conducted by the Office of Inspector General concerning the presence of law enforcement gangs in the Los Angeles County Sheriff’s Department.” (Ex Parte App. Exh. C.) The letter specified the deputies could invoke their Fifth Amendment privilege and the OIG would not compel an answer over a Fifth Amendment assertion at the initial interview. (Ex Parte App. Exh. C.)

On May 18, 2023, Sheriff Robert Luna sent an email to sheriff’s department employees stating:

The Office of the Inspector General issued a letter on May 12, 2023, to a number of sworn personnel in the Department requesting their participation in an interview process. Please be advised that all Department personnel who received such a request are hereby ordered to appear and cooperate in such interviews. All statements made by Department personnel shall be full, complete, and truthful statements. (Huntsman Decl. ¶ 45; Ex Parte App. Exh. D.)

The Association for Los Angeles Deputy Sheriffs (ALADS), a labor union representing sheriff's deputies, filed a petition for a writ of mandate in this court (Hon. James C. Chalfant) seeking to enjoin the interviews.[4] ALADS asserted claims for violations of the Fourth and Fifth Amendments to the United States Constitution, California’s constitutional right to privacy, protections under Pitchess v. Superior Court and related statutes, as well as various labor laws.

The court found ALADS had established a likelihood of success on the merits only as to the labor law claims, and after balancing the harms, issued an injunction in July 2023. (Ex Parte App. Exh. F.) Specifically, the court’s order provided the preliminary injunction “shall issue that will enjoin the OIG’s interviews of Affected Deputies until the County completes its effects bargaining or – since effects bargaining is the sole basis for injunctive relief – until ERCOM decides the UFC [Unfair Employee Relations Practice Charge], whichever occurs first.” (Ex Parte App. Exh. F.) The County appealed the court’s decision.

On December 19, 2023, OIG issued a subpoena duces tecum to Sheriff Luna seeking production of the following documents:

a) All Documents and Information relating to any instances where LASD employees have been contacted for an interview either through an attorney or representative, or contacted directly, in any ICIB investigation and have not been interviewed from January 1, 2023, through the date of this subpoena;

b) All records relating to any instances where LASD employees have been contacted for an interview either through an attorney or representative, or contacted directly, in any ICIB investigation and have not been interviewed from January 1, 2023, through the date of this subpoena which may indicate why they were not interviewed, including the IV # and witness identifying information;

c) All Communications relating to any instances identified in section “a” or “b” and/or the issue of compelling witness statements in criminal cases to or from any LASD employees in 1dB, their chain of command, Sheriff Luna, Captain Kopperud, and/or Eileen Decker (Johnson Decl. ¶ 14, Exh. E; Huntsman Decl. ¶ 56, Exh. HH.)[5]

On January 23, 2024, PPOA filed its verified petition for a writ of mandate and complaint for declaratory relief. PPOA’s first cause of action seeks a writ of mandate and alleges Respondents violated the MMBA and the ERO. PPOA’s second cause of action is for declaratory relief. PPOA prays for a writ of mandate:

1. Compelling Respondents to act in compliance with their ministerial duty to engage in good faith meet and confer regarding the Oversight Legislation, consistent with ERCOM’s Decision and Order, and regarding the OIG’s investigative efforts attempted on December 19, 2023;

2. Restraining Respondents from authorizing compliance with the OIG’s December 19, 2023 subpoena;

3. Restraining Respondents from taking any punitive or disciplinary action against affected PPOA members pursuant to OIG investigative efforts pending disposition of PPOA and ALADS’ current Joint Unfair Employee Relations Practice Charges filed with ERCOM. (Pet. Prayer, First Cause of Action, ¶¶ 1-3.)

On January 24, 2024, PPOA filed its ex parte application for a temporary restraining order (TRO) and Order to Show Cause (OSC) re: preliminary injunction.[6] On February 2, 2024, Respondents filed their opposition.

On February 8, 2024, after a hearing, the court denied PPOA’s request for a TRO and set the OSC re: preliminary injunction for hearing.

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal. App. 4th 618, 623.) The court considers two factors when considering a request for a preliminiary injunction: “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) However, the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show an inadequate remedy at law. (Code Civ. Proc., § 526, subd. (a).)

PPOA alleges “the OIG’s December 19, 2023 subpoena implicates mandatory subjects of bargaining, both as to the decision to implement the changes and regarding the ‘effects’ of the implementation of Penal Code section 13670, subdivision (b) under Gov. Code section 3500 et seq. and ERO section 5.04.090(B).” (Pet. ¶ 79.) PPOA contends “Respondents clearly violated their duties under the MMBA to meet and confer over the reasonably foreseeable effects of the OIG’s December 19, 2023 subpoena which impacts material terms and conditions of employment for Affected PPOA members.” (Ex Parte App. 12:7-9; see also Pet. ¶ 84.)

The duty to meet and confer in good faith is limited to matters within the “scope of representation.” (Gov. Code § 3505.)[7] “The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” (§ 3504.)

The California Supreme Court has set forth the following three-part test relevant here:

First, we ask whether the management action has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees.” [Citation.] If not, there is no duty to meet and confer. [Citations.] Second, we ask whether the significant and adverse effect arises from the implementation of a fundamental managerial or policy decision. If not, then, as in Building Material, the meet-and-confer requirement applies. (Building Material, supra, 41 Cal.3d at p. 664, [].) Third, if both factors are present—if an action taken to implement a fundamental managerial or policy decision has a significant and adverse effect on the wages, hours, or working conditions of the employees—we apply a balancing test. The action “is within the scope of representation only if the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (Building Material, supra, 41 Cal.3d at p. 660, [].) (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638 [Claremont]; see also Ex Parte App. Exh. A at 14-15.)

PPOA has not disputed that OIG’s issuance of the December 19, 2023 subpoena to Sheriff Luna (the Subpoena) was a non-negotiable management decision. (See e.g., Ex Parte App. 17-18; Reply 4-5; Pet. ¶ 78 [“non-negotiable decisions that have a foreseeable effect on discipline”]; see also Opposition Exh. HH p. 1517-1518 [discussing authority vested in OIG by Penal Code section 13670, Government Code section 25303.7, and County Code section 6.44.190.I].)

PPOA contends “whether a PPOA member will potentially lose their peace officer license for failing to comply with OIG investigative efforts represent issues that have a direct and unequivocal impact on employment affecting all licensed PPOA members.” (Ex Parte App. 12:15-17 [emphasis added].) PPOA’s argument is not sufficiently supported by the evidence and is speculative. The Subpoena named only Sheriff Luna as the responding party and seeks records that are presumably in his possession. (Ex Parte App. Exh. B.) PPOA fails to demonstrate the Subpoena requires any action or compliance by PPOA members. To the extent PPOA suggests its members could suffer discipline if they fail to produce records in their possession to the sheriff (so Sheriff Luna may comply with the Subpoena), PPOA does not support its position with evidence.

More persuasively, PPOA argues “no assurances or explanations have been provided by Respondents regarding how any information obtained pursuant to the OIG’s December 19, 2023 subpoena will ultimately be utilized for purposes of PPOA members’ discipline and/or decertification.” (Ex Parte App. 13:12-15.) PPOA elaborates in reply arguing the Subpoena is “exceedingly broad” and “PERB has held that effects bargaining is required to address the impact of expanding certain subpoena powers over employees of law enforcement agencies for civilian oversight commissions.” (Reply 3 [County of Sonoma PERB Dec. No. 2772-M (2021)].)

The Subpoena seeks, among other things, “all Documents and Information relating to any instances where LASD employees have been contacted for an interview either through an attorney or representative, or contacted directly, in any ICIB investigation and have not been interviewed from January 1, 2023, through the date of this subpoena. . . .” (Johnson Decl. ¶ 14, Exh. E; Huntsman Decl. ¶ 56, Exh. HH.)

Specifically, the Office of Inspector General is investigating the Sheriff’s Department’s failure to implement California Penal Code 13670. Previous facts relevant to the existence of a “Code of Silence” within the Sheriff’s Department are set forth in the OIG 2020 report on LASD’s criminal investigation of an alleged assault by Banditos titled Analysis of the Criminal Investigation of Alleged Assault by Banditos and in the OIG 2021 report on the internal discipline system titled Los Angeles County Sheriff’s Department: Review and Analysis of Misconduct Investigations and Disciplinary Process, in the section entitled “Department Policies, Procedures and Practices Condone and Effectuate the Code of Silence.” (Johnson Decl. ¶ 14, Exh. E; Huntsman Decl. ¶ 56, Exh. HH.)

Penal Code section 13670, subdivision (b) provides “each law enforcement agency shall maintain a policy that prohibits participation in a law enforcement gang and that makes violation of that policy grounds for termination.” (Emphasis added.) The statute continues: “Notwithstanding any other law, local agencies may impose greater restrictions on membership and participation in law enforcement gangs, including for discipline and termination purposes.” (Emphasis added.)

The Subpoena admits the OIG seeks disclosure of employee-related records to support an investigation into the Department’s alleged failure to implement Probate Code section 13670, including through a “Code of Silence.” Because of the potential for discipline, including termination, for participation in a law enforcement gang, PPOA has demonstrated some merit to its claim OIG’s issuance of the Subpoena pursuant to Penal Code section 13670 and the Oversight Legislation significantly and adversely affects the working conditions of PPOA’s members.

In opposition, Respondents acknowledge they have an “obligation to provide notice and a meaningful opportunity to bargain over the reasonably-foreseeable effects of even non-negotiable decisions within the scope of bargaining prior to implementation of those decisions.” (Opposition 13:20-22.) Respondents contend the claimed effects of OIG’s actions are “rank speculation” (Opposition 14:11-12) and do not require bargaining because “OIG has no authority beyond the authority to investigate and report and any tangentially foreseeable adverse impacts at this juncture would run to Sheriff Luna himself and the LASD as an entity, and not the PPOA’s members.” (Opposition 14:7-10.) Respondents fail to provide a complete discussion of the Oversight Legislation and pertinent statutes to support their argument. Moreover, even assuming OIG’s role is solely to “investigate and report,” such actions could plausibly lead to evidence or “reports” that could be used in disciplinary proceedings (up to and including termination) against PPOA’s members.

Based on the foregoing and for purposes of this motion, PPOA has demonstrated some likelihood of proving up a fundamental managerial or policy decision with a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees. The court therefore balances competing interests pursuant to Claremont.

“[I]f an action taken to implement a fundamental managerial or policy decision has a significant and adverse effect on the wages, hours, or working conditions of the employees—we apply a balancing test. The action ‘is within the scope of representation only if the employer's need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.’ [Citation.] In balancing the interests to determine whether parties must meet and confer over a certain matter (§ 3505), a court may also consider whether the ‘transactional cost of the bargaining process outweighs its value.’ ” (Claremont, supra, 39 Cal.4th at 638.)

Here, employer-employee relations would clearly benefit from the completion of the meet and confer process as to implementation of the Oversight Legislation and Penal Code section 13670 before OIG issues a subpoena or takes other investigative acts affecting the working conditions of PPOA’s members.

Respondents contend “[t]he fundamental policy decision by the State, as evidenced by passage of Penal Code section 13670, to remove the widespread evils presented by law enforcement gangs . . . is aimed at protecting the public and law enforcement officers alike.” (Opposition 12:14-17.) Respondents analogize Penal Code section 13670 to the city’s decision to revise its use of force policy in San Francisco Police Officers’ Assn. v. San Francisco Police Comm. (2018) 27 Cal.App.5th 676, 690, in which the Court of Appeal concluded “compelling the City to arbitrate issues surrounding the new use of force policy before it can be implemented would defeat the purpose of requiring cities to make fundamental managerial or policy decisions independently.” (Ibid.)

Admittedly, the balancing of interests here is close. In the abstract, an injunction against all implementation of Penal Code section 13670 or the Oversight Legislation by the OIG until the meet and confer process is complete could undermine the purpose of that legislation. Nonetheless, Respondents do not demonstrate any clear or irreparable harm to a specific OIG investigation from a preliminary injunction against the Subpoena until bargaining is completed. Accordingly, for purposes of this motion, PPOA has shown a least some likelihood of success on the merits of Claremont’s balancing test.

PPOA also contends “Respondents’ unilateral circumvention of ERCOM’s November 30, 2022 Decision and Order, which commanded the OIG to engage in good faith meet and confer

prior to utilizing investigative subpoena power of the type OIG authorized on December 19, 2023, violates PPOA’s representational rights as a recognized labor organization under the MMBA . . . .” (Ex Parte App. 12:21-24.)

ERCOM’s order provides: “Members of the employee representation units represented by ALADS and PPOA shall not be required to respond to subpoenas issued pursuant to the Oversight Legislation until the conclusion of the meet-and-confer process described above in Paragraph 4.” (Ex Parte App. Exh. B.) The Subpoena names only Sheriff Luna as the responding party. No member of ALADS or PPOA is required to respond. Accordingly, PPOA does not show a violation of this provision of ERCOM’s order.

ERCOM’s order also provides: “the Respondent shall meet and confer with the Charging Parties with respect to the negotiable effects of the Oversight Legislation.” (Ex Parte App. Exh. B.)[8] PPOA indicates five meet and confer sessions have been held and that “[a] sixth meet and confer session regarding the Oversight Legislation is prospectively scheduled to be held on February 27, 2024.” (Johnson Decl. ¶ 10.) “To date, the County and PPOA are still engaged in meet and confer over the effects of the Oversight Legislation.” (Johnson Decl. ¶ 10.)

For the same reasons discussed earlier, PPOA has some likelihood of success on its claim OIG’s issuance of the Subpoena, before the meet and confer process has completed, affects the working conditions of PPOA’s members and is a “negotiable effect” of the Oversight Legislation. Relatedly, PPOA has some likelihood of success on its claim the Subpoena violates ERCOM’s order such that the court should issue the writ compelling Respondents to engage in meet and confer and enjoin compliance with the Subpoena pending the meet and confer.

Based on the foregoing, PPOA has shown some reasonable likelihood of success on its first cause of action for a writ of mandate.

PPOA contends the Subpoena “contemplates disclosure of materials that implicates the constitutional, POBR, employment and privacy rights of thousands of peace officers across the County even though less intrusive and more focused means may be available for Respondents to obtain the information sought.” (Ex Parte App. 13:9-12.) PPOA contends the Subpoena “violate[s] Affected PPOA members’ Fourth Amendment right against unreasonable search and seizure, Fifth Amendment right against self-incrimination (in light of the OIG’s failure to assure that any relevant Lybarger related admonitions will be provided), and right to privacy under the California Constitution.” (Ex Parte App. 13:19-22) PPOA also contends that the Subpoena violates the right of its members under the Pitchess statutes. (Ex Parte App. 15:12-14.)

The petition does not plead a cause of action for violation of the Fourth or Fifth Amendments. “A cause of action must exist before a court may grant a request for injunctive relief.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.) PPOA has not shown a preliminary injunction may issue based on alleged violations of the Fourth or Fifth Amendments not actually pleaded in the petition.

Alternatively, PPOA has not shown a reasonable likelihood of success on its Fourth and Fifth Amendment claims. “To determine whether a Fourth Amendment violation occurred, we ask two primary questions: first, whether the government conduct amounted to a search within the meaning of the Fourth Amendment; and second, whether that search was reasonable.” (United States v. Dixon (9th Cir. 2020) 984 F.3d 814, 819.) The Subpoena named only Sheriff Luna as the responding party. No member of ALADS or PPOA is required to respond. PPOA has failed to develop an argument that the Subpoena amounts to a “search” within the meaning of the Fourth Amendment or that, even if it does, that the search is unreasonable. (See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863. [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”])

PPOA contends it is likely to succeed on its Fifth Amendment claim based on Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 because OIG has allegedly failed “to assure that any relevant Lybarger related admonitions will be provided.” (Ex Parte App. 13:19-22.) Lybarger v. City of Los Angeles held that a police officer’s compelled testimony pursuant to Penal Code section 832.7 cannot be used against the officer in later criminal proceedings. (People v. Gwillim (1990) 223 Cal.App.3d 1254, 1270.) The Subpoena seeks records relating to instances where the Department’s employees “have not been interviewed” and, thus, not compelled to make statements. (Ex Parte App. Exh. G.) PPOA has not developed an argument that Lybarger v. City of Los Angeles applies in such circumstances. PPOA also has not cited any evidence that the records responsive to the Subpoena are reasonably likely to include compelled statements of any Department employees.

Arguably, PPOA’s petition and second cause of action for declaratory relief include claims related to the privacy and Pitchess rights of PPOA’s members. (See e.g. Pet. ¶¶ 76, 84.) A claim for violation of the right to privacy under Article I, Section 1 of the California Constitution requires proof of three threshold elements: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill v. Nat’l Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 35-37.) Here, the Subpoena seeks information about the Department’s alleged failure to interview some of PPOA’s members in ICIB[9] criminal investigations. PPOA has not sufficiently developed an argument any of its members have a legally protected privacy interest in the employment-related records held by the Sheriff and sought in the Subpoena.

Pitchess is triggered by a disclosure of personnel records. (Pen. Code, § 832.7, subd. (b).) A “[p]ersonnel record” is “any file maintained under that individual’s name by his or her employing agency” containing records related to “(1) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (2) Medical history. (3) Election of employee benefits. (4) Employee advancement, appraisal, or discipline. (5) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. (6) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.” (Pen. Code, § 832.8, subd. (a).)

Records maintained by the Department addressing whether an employee was interviewed could possibly fall within the categories of “personnel records” in Penal Code section 832.8, subdivision (a) pertaining to “discipline” or “investigations of complaints.” Nonetheless, PPOA has not persuasively explained how a disclosure to OIG, a County entity, violates Pitchess.

For purposes of this motion, PPOA has not shown a reasonable likelihood of success on its claims made under the Fourth or Fifth Amendments, the right to privacy, or the Pitchess statutes. However, PPOA has shown some likelihood of success on its petition for a writ of mandate seeking to enforce the MMBA and ERO. PPOA’s likelihood of success on the writ petition is sufficiently strong for the court to reach the balance of harms.

For the second factor, the court must consider “the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) “Irreparable harm” generally means the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award. (See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

PPOA shows irreparable harm if the preliminary injunction is not issued. As discussed, PPOA submits evidence that Respondents have failed to complete the bargaining process with respect to implementation of the Oversight Legislation and Penal Code section 13670. A “failure to bargain in good faith, has long been understood as likely causing an irreparable injury to union representation.” (Frankl ex rel. NLRB v. HTH Corp. (2011) 650 F.3d 1334, 1363; accord Small v. Avanti Health Systems, LLC (2011) 661 F.3d 1180, 1192.)

Respondents contend PPOA “delayed with regard to the December 19, 2023 subpoena. PPOA had over two weeks—from December 19, 2023 (the date the subpoena was issued) until January 4, 2024— to file a regularly noticed motion.” (Opposition 19:13-15.)[10] The Subpoena set a compliance date of January 30, 2023. (Ex Parte App. Exh. G.)[11] PPOA filed its petition on January 23, 2024, and this application on January 24, 2024. Considering the compliance date, PPOA’s delay from December 19, 2023 until January 23, 2024, was not so substantial as to show a lack of irreparable harm.

Respondents contend the preliminary injunction would cause “harm to the public, public distrust, and financial injury to Respondents” in connection with the ongoing existence of deputy gangs. (Opposition 20:13) Respondents argue “[g]ranting PPOA’s request for relief would effectively shut down OIG’s ability to function in any meaningful capacity.” (Opposition 20:17-18.) Respondents claim is exaggerated. Respondents do not show OIG lacks the ability to conduct a more narrowly tailored investigation into the deputy gang problem. While there are important legislative and policy interests expressed through Penal Code section 13670, Respondents have not cited any evidence suggesting preliminarily enjoining compliance with the Subpoena—until the court conducts a hearing on the writ petition—would materially injury OIG’s ability to investigate or report.

The balance of harms weighs in favor of granting the preliminary injunction. Having considered PPOA’s likelihood of success on the merits and the balance of harms, the court grants PPOA’s request for a preliminary injunction.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc., § 529, subd. (a); City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 920; see Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 15-16 [“the prevailing defendant may recover that portion of his attorney's fees attributable to defending against those causes of action on which the issuance of the preliminary injunction had been based”].)

The court finds a $10,000 bond is appropriate. Respondents have not cited evidence that persuasively supports a bond greater than $10,000. (See Opposition 21:5-18.)

The application for a preliminary injunction is GRANTED. PPOA shall post an undertaking of $10,000.

[1] The Los Angeles County Code (County Code) is a codification of the general ordinances of the County.

[2] The court adopts ERCOM’s definition of “Oversight Legislation” herein.

[3] The January 2022 letter also requested the Sheriff produce certain “documents and information gathered by the Sheriff’s Department regarding deputy gangs.” (Huntsman Decl. ¶ 41, Exh. Z.)

[4] PPOA was not a party to the ALADS litigation.

[5] Steven Johnson, President of PPOA, attests: “on December 19, 2023, the OIG authorized a subpoena towards all Department personnel.” (Johnson Decl. ¶ 14.) However, the subpoena named only Sheriff Luna as the responding party.

[6] The moving brief is 20 pages and exceeds the applicable page limit of 15 pages. (Cal. Rules of Court, Rule 3.1113, subd. (d).) Respondents highlight the procedural error but do not object or show prejudice from the rule violation. (Opposition 15, fn. 1.) The court exercises its discretion to consider all 20 pages of PPOA’s brief. PPOA is reminded of the rule and the need to seek leave in the future if PPOA intends to file an oversize brief.

[7] All undesignated statutory references are to this code.

[8] More specifically, the ERCOM order states:

a. The parties shall immediately meet and confer on the schedule for negotiations and shall, no later than seven (7) days after the issuance of this Decision and Order, report to the Commission on any agreement as to the schedule for negotiations. b. If the parties are unable to reach an agreement as to the schedule for negotiations, then the Commission will consider an application by any party to issue a supplemental Decision and Order establishing the negotiations schedule. c. It is the Commission’s hope and expectation that negotiations will be completed no later than sixty (60) days from the commencement of negotiations, and that the parties will take all actions necessary to facilitate such a schedule, including the preselection of a mediator. The parties shall have the discretion to reach a mutual agreement pursuant to a lengthier schedule. d. The meet-and-confer process outlined in this Paragraphs 4 shall be without prejudice to the exhaustion of the impasse procedure otherwise required by law.

[9] ICIB, as used in the Subpoena, refers to Internal Criminal Investigations Bureau. (See Opposition 9:14.)

[10] Any delay with respect to the OIG’s May 12, 2023 letter is not at issue for this application.

[11] Neither party contends the Sheriff complied with the Subpoena on the compliance date or anytime thereafter.