Judge Stephen I. Goorvitch, Case Number: 23STCP04422, Date: 2024-08-21 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04422, Date: 2024-08-21 Tentative Ruling

Gerardo Vivar and Enrique Velazquez (“Petitioners”) filed this petition for writ of mandate alleging that the County of Los Angeles (the “County”) and the Los Angeles County Sheriff’s Department (the “Department”) (collectively “Respondents”) violated the Public Safety Officers’ Procedural Bill of Rights Act (“POBRA”) when they disciplined Petitioners, both of whom are deputy sheriffs, for alleged misconduct occurring on July 4, 2022. Petitioners now more for an order compelling Respondents to produce Petitioners’ personnel records for use in this proceeding. Petitioners also move for an order compelling Respondents to provide substantive responses to certain requests for admissions (“RFAs”) to which Respondents objected based on peace officer confidentiality. The motions are granted.

On July 4, 2022, Petitioners were involved in a call for service during which a suspect was arrested for burglary. (Petition (“Pet.”) ¶ 6.) Before transporting the suspect to the Palmdale Station, “deputy personnel permitted the suspect’s aunt to take possession of his cash, which was handed to her by unknown deputy personnel.” (Id. ¶ 6.) The suspect was released the next day, at which point he complained to Sergeant Terence Roberts that “deputy personnel had stolen his money.” (Id. ¶ 7.) This complaint was recorded on Sergeant Roberts’ body-worn camera. (Id. ¶ 7.)

On that same date, Sergeant Roberts opened a Watch Commander Service Comment Review (“WCSCR”), as required by policy. (Id. ¶ 8.) Sergeant Roberts interviewed witnesses and provided the WCSCR, dated August 5, 2022, to Captain Ronald Shaffer. (Ibid.) The WCSCR included witness statements.” (Ibid.)

On August 3, 2023, Petitioners were informed that they were subjects of an administrative investigation pertaining to alleged violations of Department Policy 3-01/040.35 (titled “Money And Property Of Others”) and Department Policy 3- 06/200.00 (titled “Body Worn Cameras”). (Id. ¶ 11.) The notification named October 6, 2022, as the date on which “a sergeant, or above, became aware of an act, omission, or other misconduct.” (Ibid.) On October 4, 2023, Petitioners were served with identical Letters of Intent for a two-day suspension each. (Id. ¶ 14.)

On December 6, 2023, Petitioners filed this petition for writ of mandate alleging that Respondents violated POBRA by, among other things, “failing to notify [Petitioners] of the intended discipline within one year of the discovery of alleged misconduct by a person authorized to initiate an investigation.” (Id. ¶ 19.)

The petition is brought pursuant to Government Code section 3390.5 and Code of Civil Procedure section 1085. Government Code section 3309.5(c) provides that the court has “initial jurisdiction over any proceeding” alleging a violation of POBRA. “[T]he Legislature intended with the passage of section 3309.5 to eliminate the requirement peace officers must exhaust their administrative remedies for alleged violations of the act before seeking judicial relief.” (Mounger v. Gates (1987) 193 Cal.App.3d 1248, 1256.)

The disclosure of law enforcement personnel files is governed by Evidence Code section 1043 through 1047, as well as Penal Code sections 832.5, 832.7, and 832.8. (See Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085.) These code sections were enacted to codify the California Supreme Court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531 (“Pitchess”).

Under this process, a party seeking discovery of a peace officer’s personnel records must follow a two-step process. First, the party must file a written motion describing the type of records sought, supported by affidavits showing good cause for the discovery. (Haggerty, supra, 117 Cal.App.4th at 1085.) These affidavits must establish “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.” (Id. at 1085-1086, citing Evid. Code § 1043(b)(3).) This initial burden is subject to a “relatively relaxed standard.” (Id. at 1086, citation omitted.) A declaration of counsel usually will satisfy the standard. (See ibid.) If the moving party satisfies this standard, the court conducts an in camera review of all “potentially relevant” documents. (See ibid.)

Petitioners seek their own personnel records related to Department’s investigation of the July 4, 2022, incident. (Mellk Decl. ¶ 4.) To do so, Petitioners served the following demands for production on Respondents:

DEMAND FOR PRODUCTION NO. 3: Produce all reports, memoranda, or other documents generated by Sergeant Terence Roberts during or subsequent to his investigation into the suspect’s complaint on July 4, 2022.

DEMAND FOR PRODUCTION NO. 4: Produce all reports, memoranda, or other documents generated by Sergeant Roberts’ superiors related to Sergeant Roberts’ investigation into the suspect’s complaint on July 4, 2022.

DEMAND FOR PRODUCTION NO. 5: Provide the Investigator’s Log generated during the Department’s administrative investigation into Deputy Vivar.

DEMAND FOR PRODUCTION NO. 6: Provide the Investigator’s Log generated during the Department’s administrative investigation into Deputy Velazquez.

DEMAND FOR PRODUCTION NO. 7: Provide all communications by or to the Department’s investigators pertaining to the investigation into the suspect’s complaint.

DEMAND FOR PRODUCTION NO. 8: Provide all documents, including electronic communications (e.g., emails, text messages), generated by any sergeant, lieutenant, captain, commander, or chief, pertaining to Deputy Vivar’s actions on July 4, 2022.

DEMAND FOR PRODUCTION NO. 9: Provide all documents, including electronic communications (e.g., emails, text messages), generated by any sergeant, lieutenant, captain, commander, or chief, pertaining to Deputy Velazquez’s actions on July 4, 2022.

(Id. Decl. ¶ 7.) In opposition, Respondents have acknowledged that they have possession of personnel records sought by Petitioners.

In her declaration, Petitioners’ attorney, Gidian Mellk, summarizes Department’s investigation of the incident on July 4, 2022, which led to the Letters of Intent served on Petitioners on October 4, 2023. (Id. ¶ 8.) Petitioners’ attorney explains that the “documents sought are crucial for Petitioners/Plaintiffs to be able to demonstrate that the Department violated the one-year statute of limitations set forth in Government Code section 3304(d)(1) when it disciplined them for their conduct related to the complaint filed on July 4, 2022.” (Id. ¶ 9.)

Respondents assert that “the declaration submitted in support of discovery is insufficient in that it fails to establish good cause and materiality for the production of the requested documents.” (Oppo. 2:6-9.) However, Respondents do not offer any legal analysis of the declaration or explanation of how it is deficient. (See id. 5-6.) In fact, the “good cause” and “materiality” are abundantly clear. For a Pitchess motion, Petitioners’ initial burden is a “relatively relaxed” standard, i.e., information is material if it will “facilitate the ascertainment of the facts and a fair trial.” (Haggerty, supra, 117 Cal.App.4th at 1085-86, citations and internal quotations omitted.) Petitioners’ counsel’s declaration easily satisfies the standard because it makes clear that the records are necessary in order to challenge the discipline on statute of limitations grounds. POBRA states in relevant part as follows:

[N]o punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.

(Gov. Code § 3304(d)(1).) A suspension is a “punitive action” for purposes of the statute. (Gov. Code § 3251(c).) The one-year limitations period “begins to run when a person authorized to initiate an investigation discovers, or through the use of reasonable diligence should have discovered, the allegation of misconduct.” (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 101, 104.)

Petitioners seek the records in order to demonstrate that, as alleged in the petition, Sergeant Roberts learned of the issue on July 4, 2022, and Captain Shaffer learned of the issue on August 5, 2022. (See Pet. ¶ 8.) Petitioners allege that they were served with Letters of Intent on October 4, 2023. (Id. ¶ 14.) According to the Petition, Respondents claim that the date on which “a sergeant, or above, became aware of an act, omission, or other misconduct” was October 6, 2022. (Id. ¶ 11.) Petitioners seek the records to demonstrate that this was false, and the one-year statute of limitations began to run on July 4, 2022 (or August 5, 2022). This satisfies the standards.

This motion implicates different confidentiality concerns than other Pitchess motions. Usually, a Pitchess motion seeks personnel records of law enforcement witnesses for impeachment purposes. These motions implicate a host of privacy issues because the witnesses are third-parties, not directly involved in the litigation, who have a right to privacy in their personnel information. By contrast, Petitioners seek their own personnel records. To the extent witnesses provided inculpatory information during the investigation, their identities and information likely would be revealed during the administrative hearing if the court denies this petition for writ of mandate. Therefore, while this motion is subject to the same statutory process, there are lesser confidentiality considerations. It also appears that Respondents could eliminate the need for this discovery by stipulating that Sergeant Roberts learned of the issue on July 4, 2022 and Captain Shaffer learned of the issue on August 5, 2022, in favor of litigating the issue whether these notifications triggered the statute of limitations.

Because Petitioners have demonstrated good cause and materiality for disclosure, the court orders Respondents’ custodian-of-records to bring all “potentially relevant” documents to court for an in camera review.

Respondents argue that the categories of documents requested, and “especially” demands Nos. 8 and 9, are overbroad. (Oppo. 2:8-9, 4-5.) Respondents provide no legal analysis in support of this assertion. Respondents argue that the request for all communications, including email, is overbroad. The court disagrees. On its face, this is not a voluminous request. The allegations were discrete in scope, and the relevant time period is July 4, 2022, to October 6, 2022. The court will place this time limitation on the document categories.

Respondents move for a protective order in the opposition. Petitioners do not oppose a protective order but argue that Respondents’ proposed protective order is too broad. As an initial matter, it is not appropriate to notice a motion in an opposition brief; a motion must be separately noticed and filed. More important, the parties should be able to resolve this dispute amongst themselves. In fact, Respondents’ proposed order appears to be quite broad. Because this is a writ proceeding, not a trial, some of Respondents’ proposed procedures appear to be unnecessary. For example, the court would accept a stipulation to file personnel documents under seal, per California Rules of Court rules 2.550 and 2.551, because it is clear the documents satisfy the requisite standard, so the court could perform an independent evaluation as required by rule 2.551(a).[1]

At this point, the court orders that the records disclosed or discovered may not be used for any purpose other than litigating the petition for writ of mandate in the instant case, per Evidence Code section 1045(e). The court also orders the parties to meet-and-confer to discuss additional terms. The court orders the parties to file a stipulation and proposed protective order.

In the notice of motion, Petitioners also request an order compelling Respondents to provide substantive responses to requests for admissions (“RFAs”) served by Petitioners. (Mot. 2-3.) In her declaration, Petitioners’ counsel states that the following RFAs were served on Defendants in this action:

REQUEST FOR ADMISSION NO. 2: Prior to the suspect’s transport to Palmdale Station for booking, deputy personnel permitted the suspect’s aunt to take possession of his cash, which was handed to her by unknown deputy personnel.

REQUEST FOR ADMISSION NO. 3: Immediately following the suspect’s release on July 4, 2022, the suspect spoke to Sergeant Terence Roberts and lodged a complaint, alleging that deputy personnel had stolen his money.

REQUEST FOR ADMISSION NO. 4: The complaint made by the suspect on July 4, 2022 was recorded on Sergeant Roberts’ body-worn camera.

REQUEST FOR ADMISSION NO. 5: On July 4, 2022, Sergeant Roberts opened a Watch Commander Service Comment Review regarding the suspect’s complaint.

REQUEST FOR ADMISSION NO. 8: Sergeant Roberts interviewed witnesses regarding the suspect’s complaint.

REQUEST FOR ADMISSION NO. 9: Department investigators reviewed the body-worn cameras of all deputies on scene when the suspect was brought to the Station.

REQUEST FOR ADMISSION NO. 10: The body-worn cameras revealed that Deputy Vivar and Deputy Velazquez were the only deputies who spoke with the suspect’s aunt at the Station.

REQUEST FOR ADMISSION NO. 12: On July 4, 2022, Sergeant Roberts initiated an investigation into Deputy Vivar’s and Deputy Velazquez’s conduct on that same date.

(Mellk Decl. ¶ 7.) Petitioners’ counsel declares that, on an unspecified date, Respondents objected to the RFAs “on the basis of peace officer confidentiality (as well as being ‘vague,’ ‘ambiguous,’ ‘overbroad,’ violating the work product doctrine and/or attorney client privilege) and thus did not provide responses.” (Ibid.) Petitioners contend that because they have complied with the procedural requirements of the Pitchess statutes, the court should order Respondents to “provide responses to the Requests for Admission.” (Mot. 10.)

Because the court has initial jurisdiction under Government Code section 3309.5, the court has authority to order discovery. Respondents do not oppose the motion to compel responses to the RFAs or dispute the court’s authority to order discovery related to alleged violations of POBRA, per section 3309.5. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) The court finds that the requested RFAs are narrowly-tailored to the dispositive issues. To the extent any response to the RFAs would require Respondents to provide information from Petitioners’ personnel files, Petitioners have satisfied the requirements to obtain such information, as discussed.

Respondents have not provided any justification for their other objections. The RFAs are not vague, ambiguous, or overbroad, and there is no evidence that providing substantive responses would violate the work product doctrine or attorney client privilege. Respondents have not asserted any procedural deficiency in Petitioner’s motion to compel, including its timeliness, or that the court lacks discretion to consider the motion as filed as part of this Pitchess proceeding. (See generally Code Civ. Proc. § 2033.290 [procedures for motion to compel further responses to RFAs].) Accordingly, the court grants the motion to compel responses to the RFAs.

1. The court grants Petitioners’ Pitchess motion based upon Petitioners’ requested document categories, but the court limits the time period to July 4, 2022, to October 6, 2022.

2. The court shall hold an in camera review on __________, 2024, at _____. The court orders Respondents’ custodian of records to bring all potentially relevant documents.

3. The court orders that the court orders that the records disclosed or discovered may not be used for any purpose other than litigating the petition for writ of mandate in the instant case, per Evidence Code section 1045(e).

4. The court orders the parties to meet-and-confer to discuss additional terms. The court also orders the parties to file a stipulation and proposed protective order.

5. The court shall hold a status conference on the parties’ stipulated protective order on ________, 2024, at _______.

6. The court grants Petitioners’ motion to compel responses to the Requests for Admission. Respondents shall provide verified responses, without objections, on or before _________, 2024.

7. The court continues the trial setting conference to _________, 2024, at ______.

[1] “The Court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules Court, rule 2.551(a).)