Judge: Steven A. Ellis, Case: 22STCV21496, Date: 2024-02-14 Tentative Ruling
Case Number: 22STCV21496 Hearing Date: February 14, 2024 Dept: 29
Motion for Pre-Trial Discovery (Pitchess Motion)
filed by Defendants Samantha Friedman and Evan Wildstein.
Tentative
The motion is denied without prejudice.
Background
These consolidated cases arise out of an alleged vehicle accident on
April 29, 2021, near the intersection of Temple Street and Main Street in downtown
Los Angeles.
On July 1, 2022, Plaintiff Diego Esparza (“Esparza”) filed the complaint
in Case No. 22STCV21496 against Samantha Friedman (“Friedman”), Evan Wildstein (“Wildstein”),
and Does 1 through 50 asserting causes of action for motor vehicle negligence
and general negligence (the “Esparza Action”).
Friedman and Wildstein filed their answers in August and October 2022.
On September 13, 2022, Plaintiff City of Los Angeles (“City”) filed
the complaint in Case No. 22STCV29848 against Friedman, Wildstein, and Does 1
to 50 asserting causes of action for subrogation of worker’s compensation
benefits paid and property damage (the “City Action”). City alleges that defendants negligently caused
the accident and injured Jeffri Norat and Diego Ramirez during the course of
their employment with City and that, as a result, City paid Norat and Ramirez
benefits, including as compensation and as medical treatment. Friedman and Wildstein filed their answers on
March 2, 2023.
The Esparza Action and the City Action were related on April 28,
2023, and then consolidated on June 27, 2023.
(As a side note, it appears that the full name of the plaintiff in the
Esparza Action is Diego Esparza Ramirez and, accordingly, that the person
described in the complaint in the City Action as “Diego Ramirez” is in fact Esparza.)
On January 18, 2024, Friedman and Wildstein (collectively “Defendants”)
filed this motion for pre-trial discovery of personnel records of Esparza and
Norat, who are Los Angeles Police Department (“LAPD”) officers. City filed an opposition on January 30, which
Esparza joined. Defendants filed their
reply on February 6.
Legal Standard
A motion to
obtain discovery of a law enforcement officer’s personnel file or other police
agency records is called a Pitchess motion. (Pitchess v. Super. Ct. (1974)
11 Cal.3d 531, 536-540.) The procedures for a Pitchess motion have
been codified, at least in part, in Evidence Code sections 1043 through 1047
and Penal Code sections 832.5, 832.7, and 832.8. (People v. Mooc (2001)
26 Cal.4th 1216, 1226.) Within the scope of their provisions, these
statutes provide the exclusive means of discovery of such records in both
criminal and civil proceedings. (County of Los Angeles v. Super.
Ct. (1990) 219 Cal.App.3d 1605, 1609-1610.)
Evidence Code
section 1043 provides, in pertinent part, as follows:
(a) In
any case in which discovery or disclosure is sought of peace or custodial
officer personnel records or records maintained pursuant to Section 832.5 of
the Penal Code or information from those 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 that has
custody and control of the records ….
(b) The
motion shall include 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.
(c) Upon receipt of a notice served pursuant to
subdivision (a), the governmental agency shall immediately notify the
individual whose records are sought.
(d) No hearing upon a motion for discovery or disclosure
shall be held without full compliance with the notice provisions of this
section except upon a showing by the moving party of good cause for
noncompliance, or upon a waiver of the hearing by the governmental agency
identified as having the records.
A party seeking discovery of a peace officer’s
personnel records must follow a two-step process. (Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1019.) “First, the party must file a written motion
describing the type of records sought, supported by affidavits 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. This initial burden is a ‘relatively
relaxed standard.’ Information is material if it will
facilitate the ascertainment of the facts and a fair
trial. A declaration by counsel on information and belief is sufficient
to state facts to satisfy the ‘materiality’ component of that section.” (Haggerty
v. Super. Ct. (2004) 117 Cal.App.4th 1079, 1085-1086 [citations
omitted].) The motion must provide a “specific factual scenario” that
establishes the materiality of the discovery sought. (City of Santa Cruz
v. Municipal Ct. (1989) 49 Cal.3d 74, 85-86.) The documents must
be requested “with adequate specificity” to preclude the possibility that the
moving party is engaged in a “fishing expedition.” (People
v. Memro (1985) 38 Cal.3d 658, 678 [overruled on other grounds
in People v. Gaines (2009) 46 Cal.4th 172, 181, n. 2].)
Nonetheless, the good cause standard is in this context a “relatively low
threshold.” (Santa Cruz, supra, 49 Cal.3d at p. 83; see also, e.g., Gaines, supra, 46
Cal.4th at p. 179.)
“Second, if the trial court concludes [a
party] has fulfilled these prerequisites and made a showing of good cause,
the custodian of records should bring to court all documents ‘potentially
relevant’ to the [requesting party’s] motion…. The trial court ‘shall
examine the information in chambers, out of the presence and hearing
of all persons except the person authorized to possess the records and
such other persons the custodian of records is willing to have present…. Subject
to statutory exceptions and limitations ...the trial court should then
disclose to the defendant such information that is relevant to the subject
matter involved in the pending litigation.” (Haggerty, supra,
117 Cal.App.4th at p. 1086 [citations omitted]; see also, e.g., Warrick, supra, 35 Cal.4th
at 1019.)
Discussion
Defendants
seek eleven categories of records from the personnel files of Esparza and Norat:
(1) All documents that refer
or relate to any workers’ compensation claims made by Jeffri Norat while
employed by the City of Los Angeles in the five (5) years prior to the
incident;
(2) All documents that refer
or relate to any workers’ compensation claims made by Diego Esparza Ramirez
while employed by the City of Los Angeles in the five (5) years prior to the
incident;
(3) A copy of Jeffri Norat’s
personnel file related to his employment with the City of Los Angeles;
(4) A copy of Diego Esparza
Ramirez’s personnel file related to his employment with the City of Los
Angeles;
(5) All documents that refer
in any way to any collective bargaining agreement that involved Jeffri Norat
and/or Diego Esparza Ramirez;
(6) Any and all documents of
any injury sustained by Jeffri Norat prior to the incident, that involve the
same parts of Jeffri Norat’s body that he claims were injured in the incident;
(7) Any and all documents of
any injury sustained by Diego Esparza Ramirez prior to the incident, that
involve the same parts of Diego Esparza Ramirez’s body that he claims were
injured in the incident;
(8) Any and all documents
reflecting any correspondence between City of Los Angeles and Jeffri Norat
after the incident regarding the incident;
(9) Any and all documents
reflecting any correspondence between City of Los Angeles and Diego Esparza
Ramirez after the incident regarding the incident;
(10)
All
documents pertaining to any imaging studies (including but not limited to
x-rays, MRI scans, or CT scans) performed of any part of Jeffri Norat’s body
that he claims to have injured as a result of this incident, during the ten
(10) years prior to the incident;
(11)
All
documents pertaining to any imaging studies (including but not limited to
x-rays, MRI scans, or CT scans) performed of any part of Diego Esparza
Ramirez’s body that he claims to have injured as a result of this incident,
during the ten (10) years prior to the incident.
Before
reaching the merits, the Court considers three threshold arguments raised by City.
First, City
argues that this motion was not properly served. Evidence Code section 1043, subdivision (a), requires
that written notice be given “to the governmental agency that has
custody and control of the records.”
Here, that is the LAPD and the Personnel Office, (Worthy Decl., ¶ 5), neither
of which were served. Absent “full
compliance with the notice provisions of this section,” the hearing may not
proceed. (Evid. Code, § 1043, subd.
(d).)
Defendants
assert in their reply “[u]pon information and belief” that service on City was
sufficient, but they cite no evidence or authority for this assertion. Nor do Defendants contend that there is any exception
to the service requirement that applies here.
Although Defendants argue that they “should not be penalized for failing
to serve an additional agency within the City of Los Angeles,” this is not a
matter of anyone being “penalized.”
Rather, there are statutory requirements established by the Legislature that
have not been met here.
Accordingly,
for this threshold reason, the Court must deny the motion without prejudice.
To
provide guidance to the parties in moving forward, the Court provides the
following tentative rulings as to the second and third threshold arguments
raised by City.
City’s
second threshold argument is that Defendants were required to give notice to
non-party Norat and failed to do so.
That argument is meritless.
Evidence Code section 1043, subdivision (c), plainly and expressly puts
the notification burden on the agency, not the party seeking production of the
records. The Court assumes that if Defendants
file a subsequent motion for production of these records, meritless arguments
will not be made in the briefing.
City’s third
threshold argument is that Defendants failed to meet and confer as required by
Code of Civil Procedure section 2016.040.
Although it is certainly good practice for parties to meet and confer
before filing a motion, City cites no statutory basis for this Court to require
such a meet-and-confer prior to filing a Pitchess motion (and of course
Evidence Code 1043 is not part of the Civil Discovery Act).
Based solely
on Plaintiff’s failure to give the notice required by Evidence Code section
1043, subdivision (a), to LAPD and the Personnel office, the agencies with
custody and control of the records sought, the Court DENIES Defendants’ Pitchess
motion without prejudice.
Conclusion
The Court
DENIES Defendants’ Pitchess motion without prejudice.
Moving Party is
ORDERED to give notice.