Judge: Robert B. Broadbelt, Case: 22STCV01211, Date: 2024-02-22 Tentative Ruling

Case Number: 22STCV01211    Hearing Date: February 22, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff K’lem Fitzgerald Banner

RESPONDING PARTY:       Defendant City of Los Angeles

Motion for Discovery of Peace Officer Personnel Records and Other Documents

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiff K’lem Fitzgerald Banner (“Plaintiff”) filed the operative First Amended Complaint in this action against defendants City of Los Angeles and Los Angeles Police Department, alleging five causes of action for (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”), (2) harassment in violation of FEHA, (3) retaliation in violation of FEHA, (4) failure to accommodate in violation of FEHA, and (5) failure to engage in the interactive process in violation of FEHA.

Plaintiff now moves the court for an order, pursuant to Evidence Code section 1043, directing the City of Los Angeles and the Los Angeles Police Department, to make available documents that are responsive to the following five categories: (1) any investigation(s) initiated as a result of Plaintiff’s filing of this action on January 11, 2022; (2) any investigation(s) initiated as a result of Plaintiff’s filing a claim with the Department of Fair Employment and Housing on December 21, 2021 and his filing an amended claim therewith on May 13, 2022; (3) all complaints and/or investigations initiated against Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard, as a result of Plaintiff’s complaints of discrimination, retaliation, and/or harassment; (4) all documents containing prior complaints of discrimination, harassment, or retaliation, against Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard; and (5) all documents containing or pertaining to allegations, reports, complaints, and/or investigations related in any way to Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard (i) preparing or submitting false, misleading, or less-than-forthcoming reports, (ii) making false, misleading, and/or less-than-forthcoming statements,   (iii) engaging or participating in alleged acts of planting evidence, (iv) engaging and/or participating in alleged acts of failing to report or covering up violation(s) of department policy or law, (v) using excessive force, and/or (vi) responding to complaints or making statements made in connection with investigation(s) into complaints that are false, misleading, or less-than-forthcoming.  (Notice of Mot, pp. 2:12-5:13; Faal Decl., ¶ 9.)

LEGAL STANDARD

There is a special two-step procedure for obtaining disclosure of peace or custodial officer personnel records.¿ (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)¿ First, the party seeking disclosure must file a motion that includes 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 that 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 “good cause” declaration must be sufficiently specific “to preclude the possibility of [the movant] simply casting about for any helpful information.”¿ (People v. Mooc (2001) 26 Cal.4th 1216, 1226.)¿ The moving party need show only a “plausible factual foundation” for discovery -- i.e., a scenario of officer misconduct that might occur or could have occurred. (Warrick, supra, 35 Cal.4th at p. 1026; see also Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245, 1248 [“‘[T]he good cause requirement embodies a “relatively low threshold” for discovery’ [citation], under which a defendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense or how it would impeach the officer’s version of the events’ [citation].”]; Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413 [“A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents’”].)¿ A declaration by counsel, on information and belief, may be sufficient.¿ (People v. Oppel (1990) 222 Cal.App.3d 1146, 1153, fn. 6.)¿ 

Second, if the court finds good cause, then an in camera examination must be held.¿ (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.)¿ After examining the records in camera, the trial court shall order disclosure of peace officer personnel records that are “‘relevant to the subject matter involved in the pending litigation.’”¿ (People v. Mooc, supra, 26 Cal.4th at p. 1226.)¿ The court must exclude from disclosure “[f]acts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.”¿ (Evid. Code, § 1045, subd. (b)(2).)¿ “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.”¿ (Evid. Code, § 1045, subd. (c).)¿ If disclosure is ordered, the court must also order that the disclosed information may not be used “for any purpose other than a court proceeding pursuant to applicable law.”¿ (Evid. Code, § 1045, subd. (e).)¿¿ 

DISCUSSION

Plaintiff contends that there is good cause to disclose the documents requested in the five categories set forth above because (1) they are relevant to Plaintiff’s claims that he was subjected to discrimination, harassment, and/or retaliation by defendants City of Los Angeles and the Los Angeles Police Department (collectively, “City”), including wrongful conduct committed by Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard, (2) they may identify witnesses or evidence not yet discovered, and (3) they may assist the trier of fact in evaluating the credibility of witnesses.  (Faal Decl., ¶¶ 7, 11-14; FAC ¶¶ 22-24, 26-27 [alleging conduct involving Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard].)

First, the court finds that Plaintiff has established that the information sought by categories one through four are material to Plaintiff’s claims that City and its employees (including Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard) discriminated against, harassed, and retaliated against Plaintiff in violation of FEHA.  (Evid. Code, § 1043, subd. (b)(3); Faal Decl., ¶¶ 7, 11-14.)  Plaintiff’s counsel has also stated their reasonable belief that City has the requested records or information sought from the records.  (Evid. Code, § 1043, subd. (b)(3); Faal Decl., ¶ 18.)  The court therefore finds that Plaintiff has established good cause for this discovery.  (Code Civ. Proc., § 1043, subd. (b)(3).) 

Second, the court finds that the fifth category requesting documents containing or pertaining to allegations that Sergeant Jerome Walker, Sergeant Wesley Ikeda, Officer David Hale, and/or Commander Randy Goddard prepared false or misleading reports, made false or misleading statements (including in connection with investigations into complaints), planted evidence, covered up violations of law, or used excessive force is overbroad and includes records that are not material to the subject matter involved in the pending litigation.  (Faal Decl., ¶ 9.)  The court therefore finds that Plaintiff has not established good cause for this discovery.  (Evid. Code, § 1043, subd. (b)(3).)

Thus, the court finds that Plaintiff has demonstrated good cause for the production of records relating to the first through fourth categories of information set forth in Plaintiff’s notice of motion.  (Not. of Mot., p. 2:12-4:18.)

ORDER

            The court grants in part plaintiff K’lem Fitzgerald Banner’s motion for discovery of peace officer personnel records and other documents as follows.

            The court orders the custodian of records for the City of Los Angeles and the Los Angeles Police Department to appear and produce the documents set forth below for an in camera review by the court on __________________, 2024, at 1:30 p.m., in Department 53.  

            The court orders the custodian of records for the City of Los Angeles and the Los Angeles Police Department, or its agents, to produce the following documents:

1.     Any investigation initiated as a result of plaintiff K’lem Fitzgerald Banner’s filing of this action (Case No. 22STCV01211), including the following:

a.      The complaint form, complaint adjudication form, complaint review report, letter of transmittal, and complaint investigation.

b.     Investigation addenda and exhibits, witness interviews and/or statements, photos, correspondence, witness lists, rough notes, investigator’s log, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, military endorsement(s), and any other follow-up or action.

c.      All audio, video, and/or digital recordings and transcripts of witness interviews or statements.

d.     Any Professional Standards Unit “investigative package” associated with this investigation.

2.     Any investigation initiated as a result of plaintiff K’lem Fitzgerald Banner’s filing of (1) a claim with the Department of Fair Employment and Housing on December 21, 2021, and (2) an amended claim on May 13, 2022 (DFEH Matter No. 202122-15690121), including:

a.      The complaint form, complaint adjudication form, complaint review report, letter of transmittal, and complaint investigation.

b.     Investigation addenda and exhibits, witness interviews and/or statements, photos, correspondence, witness lists, rough notes, investigator’s log, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, military endorsement(s), and any other follow-up or action.

c.      All audio, video, and/or digital recordings and transcripts of witness interviews or statements.

d.     Any Professional Standards Unit “investigative package” associated with this investigation.

3.     All complaints and/or investigations initiated against (1) Sergeant Jerome Walker,  (2) Sergeant Wesley Ikeda, (3) Officer David Hale, and/or (4) Commander Randy Goddard, as a result of plaintiff K’lem Fitzgerald Banner’s complaints of discrimination, retaliation, and/or harassment, including:

a.      The complaint form (Form No. 1.28), complaint adjudication form, complaint review report, letter of transmittal, and complaint investigation.

b.     Investigation addenda and exhibits, witness interviews and/or statements, photos, correspondence, witness lists, rough notes, investigator’s log, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, military endorsement(s), and any other follow-up or action.

c.      All audio, video, and/or digital recordings and transcripts of witness interviews or statements.

d.     Any Internal Affairs “Investigative Package” associated with this investigation.

4.     All documents containing prior complaints of discrimination, harassment, or retaliation against (1) Sergeant Jerome Walker, (2) Sergeant Wesley Ikeda,              (3) Officer David Hale, and/or (4) Commander Randy Goddard, as a result of complaints of discrimination, retaliation, and/or harassment, including:

a.      The complaint form (Form No. 1.28), complaint adjudication form, complaint review report, letter of transmittal, and complaint investigation.

b.     Investigation addenda and exhibits, witness interviews and/or statements, photos, correspondence, witness lists, rough notes, investigator’s log, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, military endorsement(s), and any other follow-up or action.

c.      All audio, video, and/or digital recordings and transcripts of witness interviews or statements.

d.     Any Internal Affairs “investigative package” associated with this investigation.

The court orders that all such documents shall be produced for an in camera examination by the court.  The court will conduct an in camera examination of the records to determine the relevance of the materials to this action.  (People v. Gill (1997) 60 Cal.App.4th 793, 749.)  The scope of the in camera examination will be governed by Evidence Code section 1045, subdivisions (b) and (c).  

The court orders plaintiff K’lem Fitzgerald Banner to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 22, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court