Judge: Nathan Nhan Vu, Case: 30-2022-01239731, Date: 2023-08-28 Tentative Ruling

Motion for Discovery of Peace Officer Personnel Records

Plaintiff Albert Hughes III’s Amended Motion for Discovery of Peace Officer Personnel Records is CONTINUED to September 25, 2023 at 8:30 a.m. in Department N15.

Los Angeles County Sheriff’s Department is ORDERED to properly serve the Opposition to Plaintiff’s Motion for Peace Officer Records and Filles (Pitchess) and Memorandum of Points and Authorities upon Plaintiff Albert Hughes III no later than August 30, 2023.

Plaintiff Albert Hughes III moves for an order directing the Los Angeles County Sheriff’s Department to make available to Plaintiff for examination, inspection, and copying “all documents concerning bailiff Albert Hughes Jr. (‘Defendant’) as defined by Penal Code section 832.8; records maintained pursuant to Penal Code section 832.5, subdivision (b); and any other records, documents, or items pertaining to the defendant Albert Hughes Jr.” (Amend. Mot. for Discovery of Peace Officer Personnel Records at p. 2:12-16.)

Although Plaintiff lists 7 categories of personnel records, Plaintiff states that he seeks “all records concerning bailiff Albert Hughes Jr. (‘Defendant’) . . . including but not limited to” the 7 categories. (Id. at p. 2:16-17.)

Standard for Discovery of Peace Officer Personnel Records (Pitchess Motion)

Pursuant to Penal Code section 832.7, peace officer “personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” (Penal Code, § 832.7, subd. (a); see Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 399-400 [these provisions “take precedence over the general discovery rules outlined in the Code of Civil Procedure”]; County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1610 [“any . . . civil proceeding” includes personal injury actions].)

Penal Code section 832.8 defines “personnel records” as:

[A]ny file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(b) Medical history.

(c) Election of employee benefits.

(d) Employee advancement, appraisal, or discipline.

(e) Complaints, or investigations or 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.

(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

(Penal Code, § 832.8; see Ibarra v. Superior Court (2013) 217 Cal.App.4th 695, 702 [“[P]ersonnel records include only the types of information enumerated in section 832.8.”].)

When discovery or disclosure is sought of such peace officer personnel 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.” (Evid. Code, § 1043, subd. (a).) This motion is commonly referred to as a Pitchess motion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

The Pitchess motion must include 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.

(Evid. Code, § 1043, subd. (b).) The party requesting the discovery or disclosure also must give written notice of the motion to the governmental agency that has custody and control of the records and the agency must immediately notify the individual whose records are being sought. (Evid. Code, § 1043, subds. (a), (c).)

The motion involves a two-step process. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020.)

First, the moving party must meet the requirements of Evidence Code section 1043, and in particular include “[a]ffidavits showing good cause for the discovery . . ., 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.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; see Evid. Code, § 1043, subd. (b)(3).)

To show the requested information is material, the affidavits should set forth “a ‘specific factual scenario’ which provide[s] sufficient information to allow the trial court to assess whether the records [are] material ‘to the subject matter involved in the pending litigation’.” (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1146, quoting Evid. Code., § 1043., subd. (b)(3).) In other words, the moving party must articulate with some specificity how the personnel records being sought will support a claim or defense, or how it will impeach the officer’s version of events. (See Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.)

“This good cause showing is a ‘relatively low threshold for discovery.’ Assertions in the affidavits ‘may be on information and belief and need not be based on personal knowledge, but the information sought must be requested with sufficient specificity to preclude the possibility of a [party] simply casting about for any helpful information.’” (Garcia v. Superior Court, supra, 42 Cal.4th at p. 70, quoting City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83, and People v. Mooc (2001) 26 Cal.4th 1216, 1226.)

Second, if the trial court concludes that the party has met its initial burden of showing good cause, the court shall examine the information in chambers, pursuant to Evidence Code section 1045, to determine if there is information relevant to the subject matter in the pending litigation. (Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086.)

Section 1045(b)(1) requires the court to exclude discovery in a criminal case of “the conclusions of any officer investigating a [citizen’s] complaint filed pursuant to Section 832.5 of the Penal Code.” (Evid. Code, § 1045, subd. (b)(1); see City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 56 [“[T]he statutory scheme reveals a legislative intent to allow disclosure of the outcome of an investigation, i.e., the discipline imposed, without also requiring disclosure of how or why the investigating body reached that outcome.”].)

While Section 1045(b)(1) does not apply in a civil case such as this one, Section 1045(b)(2) still requires the court to consider whether the records “are so remote as to make disclosure of little or no practical benefit.” (See Evid. Code., § 1045, subd. (b)(2).) Thus, the court must determine, on a case-by-case basis, whether the “thought processes of, and factual inferences and deductions drawn by, an officer investigating a complaint, concerning such matters as the credibility of witnesses or the significance, strength, or lack of evidence” should be produced. (See Haggerty v. Superior Court, supra, 117 Cal.App.4th at pp.1088-1089, quoting City of San Jose v. Superior Court, supra, 5 Cal.4th at p. 55.)

In Haggerty v. Superior Court, the Court of Appeal ruled, in a civil case, that the conclusions of an officer investigating a complaint against another peace officer should be excluded from production pursuant to Evidence Code section 1045(b)(2). (Haggerty v. Superior Court, supra, 117 Cal.App.4th at pp. 1088-1089.) However, the Court of Appeal also held that the remainder of the report investigating the complaint could be produced and that it was not sufficient merely to produce only “the names, addresses and telephone numbers of the prior complainants/witnesses.” (Id. at pp. 1089-1091.)

If the issue in the 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.” (Evid. Code, § 1045, subd. (c).) In addition, the court “ay make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.” (Evid. Code, § 1045, subd. (d).)

“If those statutory provisions do not prohibit disclosure, ‘the trial court should then disclose to the defendant such information [that] is relevant to the subject matter involved in the pending litigation.” (Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 640, quoting People v. Mooc, supra, 26 Cal.4th at p. 1226, and Evid. Code., § 1045, subd. (a).) The trial court has broad discretion in ruling on Pitchess motions and the standard of review is abuse of discretion. (Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086.)

As the Supreme Court has explained:

The statutory scheme thus carefully balances two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to his defense. The relatively relaxed standards for a showing of good cause under [Evidence Code] section 1043 . . . insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in [Evidence Code] section 1045 guarantee, in turn, a balancing of the officer’s privacy interests against the defendant’s need for disclosure . . . .

(City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.)

Notice and Opposition

The court previously continued the hearing on this motion because Plaintiff did not serve this motion upon the Los Angeles County Sheriff’s Department at the address designated for service of Pitchess motions and upon Defendant Albert Hughes, Jr., at his last known address. On June 26, 2023, Plaintiff filed and served an Amended Notice and Motion for Discovery of Peace Officer Personnel Records. (ROA #84.)

The Los Angeles County Sheriff’s Department (LASD) has filed an opposition to this motion that Plaintiff has not shown good cause for his request for Defendant Albert Hughes, Jr.’s personnel records.

LASD argues that “the motion fails to discuss how Deputy ALBERT HUGHES JR's personnel records are related to Plaintiffs lawsuit, for example, how complaints pertaining to sexual harassment are directly related to Plaintiffs assertions.” (Opp’n to Pltf.’s Mot. for Peace Officer Records and Files (Pitchess) at p. 6:4-6.)

LASD also asserts that Plaintiff’s request is overbroad because it seeks records without limit to time period.

In light of the fact that Plaintiff is requesting all personnel records of Defendant Albert Hughes, Jr., without respect to the subject matter or time period of the records, there is a serious concern about whether Plaintiff has shown good cause and whether Plaintiff’s request is overbroad.

Plaintiff makes some general arguments that there is good cause for disclosure because all prior misconduct is relevant circumstantial evidence to the current case and that records regarding Defendant Albert Hughes Jr.’s character, habits, customs, and credibility will tend to prove how he acted on the day that decedent passed away. Plaintiff also claims that some of this information may be impeachment evidence.

However, Plaintiff seeks much more than records regarding Defendant Albert Hughes, Jr.’s misconduct, character, habit, customs and credibility, and does not explain why he needs all personnel records from all time periods. And even assuming Plaintiff limited his request to records of misconduct, character, habit, customs, and credibility, Plaintiff does not connect all such records to the issues in this case. For example, Plaintiff does not explain how records of sexual harassment, which he seeks, relate to any of the allegations of the Complaint.

In addition, default was previously entered against the only named defendant in this case -- Defendant Albert Hughes, Jr. (See ROA #31.) Plaintiff subsequently filed a First Amended Complaint, that pleading was served on Defendant Albert Hughes, Jr. more than 5 months ago and he has not filed a response to the First Amended Complaint either. (See ROA #76.) In fact, Defendant Albert Hughes, Jr. has never made an appearance in this case, despite being served with numerous court filings.

Thus, Defendant Albert Hughes, Jr. defaulted and continues to default in this case. A defendant who is in default “is said to ‘confess’ the material facts alleged by the plaintiff, i.e., the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint.’” (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823, quoting 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 153, p. 570.)

Where all the allegations of the complaint are assumed to be true and the complaint is well pleaded, then the defendant is liable and the Plaintiff is entitled to a default judgment. Thus, it may be that there is no need for Plaintiff to prove Defendant Albert Hughes, Jr.’s liability and no need for the records in question.

However, LASD did not file its opposition until August 23, 2023, only 3 court days before the hearing. LASD’s opposition was thus untimely and gave Plaintiff insufficient time to respond. (See Evid. Code § 1043, subd. (a)(1); Code Civ. Proc., § 1005, subd. (b) [oppositions must be filed at least 9 court days before the hearing].)

In addition, LASD improperly served its opposition upon Plaintiff by electronic mail. Although Plaintiff is an attorney, he is a party representing himself in this action. Thus, Civil Procedure Code section 1010.6(b) does not apply here. In addition, there is no indication that Plaintiff affirmatively consented to electronic service. (See Code Civ. Proc., § 1010.6, subd. (c); Cal. Rule of Court, rule 2.251(c)(3)(B), rule 2.253(b)(G)(2)-(3).)

The court therefore will order LASD to serve Plaintiff the opposition proper means and continue the hearing to allow Plaintiff time to file and serve a reply.

Plaintiff shall give notice of this ruling.