Judge: Teresa A. Beaudet, Case: 22STCV15665, Date: 2023-08-18 Tentative Ruling

Case Number: 22STCV15665    Hearing Date: August 18, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Marshay M. Wallace (“Plaintiff”) filed this action on May 11, 2022 against Defendants County of Los Angeles and Julio Garcia, Jr. (“Garcia”) (jointly, “Defendants”). The Complaint asserts causes of action for (1) hostile work environment sexual harassment, (2) race and sex discrimination, (3) retaliation, (4) failure to take all reasonable steps necessary to prevent and correct discrimination, harassment, and retaliation, (5) intentional infliction of emotional distress, and (6) battery.

            The Complaint alleges that “Plaintiff is, and at all times herein mentioned was, an employee of the Los Angeles County Probation Department, where she holds the title of Deputy Probation Officer I.” (Compl., ¶ 11.) “Defendant Garcia is, and at all times herein mentioned was, an employee and supervisor within the Los Angeles County Probation Department, where he holds the title of Supervising Deputy Probation Officer.” (Compl., ¶ 12.) In 2018, Plaintiff was on Special Assignment at the Dorothy Kirby Center (“DKC”). (Compl., ¶ 19.) Also in 2018, Garcia became a supervisor at DKC and the two began working together on nearly a daily basis. (Compl., ¶ 20.)

            Plaintiff alleges that “Garcia began by hugging Plaintiff approximately once a day. At first, Plaintiff did not view a single, occasional hug as inappropriate; however, one hug turned into five hugs a day. The hugging became longer and tighter. Just about every time Defendant Garcia would see Plaintiff, which could be 5 or 10 times per day, he would say ‘bring it in’ and attempt to hug her. Defendant Garcia would push Plaintiff up against him like he was trying to feel her breasts pressed up against his chest. These hugs could last between 15 and 25 seconds and sometimes would include Defendant Garcia rubbing Plaintiff’s back.” (Compl., ¶ 22.)

            Plaintiff alleges that “[a]s the hugging increased in frequency and sexual intimacy, Plaintiff began voicing her disapproval to Defendant Garcia, both in private and in front of colleagues. Plaintiff told Defendant Garcia on multiple occasions that the hugging made her feel uncomfortable, and it was unwanted.” (Compl., ¶ 23.) “In response to her repeated protests, Defendant Garcia told Plaintiff that ‘everyone needs a hug,’ that other employees were not uncomfortable with his hugs, and hugs can help the body produce oxytocin, which makes people happier.” (Compl., ¶ 24.)

“Plaintiff complained to her immediate supervisor, Supervising Deputy Probation Officer (SDPO) Javier Rodriguez (‘SDPO Rodriguez’), that Defendant Garcia’s conduct was unwanted, inappropriate, and harassing.” (Compl., ¶ 27.) “However, instead of reporting Plaintiff’s complaint to the County Intake Specialist Unit, which is an affirmative duty of a supervisor per Defendant County’s Policy of Equity, SDPO Rodriguez dismissed Plaintiff’s concerns because it was ‘just a hug.’” (Compl., ¶ 28.) Plaintiff further alleges that “on February 4, 2021, Plaintiff attended the Safe Crisis Management Training…where Defendant Garcia was doing a demonstration in front of 10-12 other people. Due to the Covid pandemic, department members were not supposed to physically touch; however, Defendant Garcia selected Plaintiff from the group, came up behind her, and physically restrained her to prove a point during the demonstration.” (Compl., ¶ 31.)

Plaintiff also alleges that “[i]n addition to Defendant Garcia’s sexually harassing conduct, Plaintiff was also subjected to harassing and discriminatory treatment based on her race and gender.” (Compl., ¶ 33.) Plaintiff alleges that “Garcia began telling Plaintiff’s co-workers that they did not have to listen to her as the BMP Coordinator. Plaintiff was the only African American woman on Special Assignment in that area, and Defendant Garcia seemed to have a problem with African American women.” (Compl., ¶ 34.) Plaintiff further alleges that on February 24, 2021, DKC sponsored a Black History Program, and Plaintiff helped with the decorations for the event. (Compl., ¶ 35.) Plaintiff alleges that “Director Michael Varela wanted to take a picture with Plaintiff in front of the decorations. Director Varela also asked Defendant Garcia to be in the picture. As Defendant Garcia approached Plaintiff, he said, ‘[y]ou know Varela only wants you in the picture because you are black.’” (Compl., ¶ 35.)

Plaintiff now moves “for an order compelling the production of police officer files and records regarding Los Angeles County Deputy Julio Garcia and any and all information and documentation regarding Plaintiff’s complaints about Garcia, investigation done, and corrective actions taken.” Defendants oppose.

Discussion

There is a special two-step procedure for securing disclosure of peace officer personnel records. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) First, the party seeking disclosure must file a motion that identifies the peace officer, the agency in possession of the records, a description of the records, who is seeking the records, as well as the time and place of the hearing. (Evid. Code, § 1043, subd. (b)(1).) The motion must be accompanied by a declaration showing “good cause” for disclosure of the records: setting forth the materiality of the records, and stating upon reasonable belief that the governmental agency has the requested documents. (Evid. Code, § 1043, subd. (b)(3).) This is a so-called “Pitchess” motion, derived from Pitchess v. Superior Court (1974) 11 Cal.3d 531.

The Evidence Code section 1043, subdivision (b) “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.) However, a declaration based upon information and belief and containing hearsay may be used to evidence good cause in support of a Pitchess motion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) 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 v. Superior Court, supra, 35 Cal.4th at p. 1025.) All that is required is the presentation of a scenario that might have or could have occurred, i.e., a “relatively low threshold.” (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048; see also Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245, 1248 (the good cause requirement of section 1043(b) “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’”); 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.’”).)

Second, if the court finds good cause then an in camera hearing must be held. (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) After personally 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” (Evid. Code, § 1045, subd. (a); People v. Mooc, supra, 26 Cal.4th at p. 1226.) 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); see Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039-1040 (overruled on other grounds).)

In terms of procedure, notice of the motion must be served in compliance with Code of Civil Procedure section 1005, subdivision (b) on the parties and on the governmental agency having the records. (Evid. Code, § 1043, subd. (a).) The agency is required to notify the individual officer whose records are sought. (Evid. Code, § 1043, subd. (c); see also Evid. Code, § 1043, subd. (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.”].)

The Court finds that Plaintiff has complied with the requisite procedural requirements. Plaintiff’s proof of service filed with the motion indicates that the motion has been served on “Attorneys for Defendant COLA & Garcia Jr.” as well as the “Custodian of Records for Defendants COLA and Garcia Jr.”

As set forth above, Plaintiff moves for an order “compelling the production of police officer files and records regarding Los Angeles County Deputy Julio Garcia and any and all information and documentation regarding Plaintiff’s complaints about Garcia, investigation done, and corrective actions taken.” (Mot. at p. 1:25-27.) At multiple locations in Plaintiff’s motion, Plaintiff describes certain categories of documents she seeks. As pages 7:7-18 of the motion, Plaintiff indicates that she seeks the following categories of documents: (1) Garcia’s personnel file; (2) information about Plaintiff’s sexual harassment, discrimination, and retaliation allegations made to the County and the investigation done into Plaintiff’s allegations, including any corrective actions taken; (3) any other allegations made against Garcia, including investigations done and corrective actions taken; and (4) information about Defendants’ defenses, if said information is contained in the personnel file of Garcia and/or in investigation documents. (Mot. at p. 7:7-18.)

In addition, at pages 22:4-23:7 of the motion, Plaintiff states that she seeks the following eleven categories of documents:

1.     Copies of all records, reports, or investigative reports filed, pending, completed or otherwise made, and all other writings pertaining to any of the above-mentioned conduct by Garcia, including but not limited to documentation of Plaintiff’s allegations;

2.     Copies of department records regarding any other complaints against the officer with regard to the above-mentioned conduct;

3.     Names addresses and telephone numbers of all persons who have complained about any of the above-mentioned conduct by the identified officer;

4.     Copies or transcripts of all tape recorded or written statements by any person, including the identified officer, which were taken in connection with any investigation initiated, filed, pending, completed or otherwise made regarding any complaint of the above-mentioned conduct;

5.     Names, addresses and telephone numbers of all persons giving such statements including but not limited to, persons involved in the case at hand;

6.     Information regarding any discipline that was imposed on any officer listed above in any incident involving the above-mentioned conduct;

7.     Any information contained in the personnel or internal investigation filed which indicated or identifies previous employment or experience by the identified officer in law enforcement related work;

8.     Any and all information related to any internal affairs or other similar investigation into the incident that is the basis of this lawsuit and the related lawsuits;

9.     Employment application and background check requested and/or performed and any training received;

10.  Performance evaluations; disciplinary documents, including write-ups and corrective action notices; documents evidencing any complaint against Garcia by any person or employee; documents evidencing LA County’s response to any complaints against Garcia by any person or employee; documents evidencing all commendations, raises, and promotions received; and

11. Documents describing job duties and responsibilities for all positions held.

            Plaintiff asserts that she has met the “relatively low threshold” for a showing of good cause here. Plaintiff notes that she is requesting portions of the personnel file of the person who she alleged sexually harassed her in the workplace in this action. Plaintiff asserts that “[t]he requested documents are critical to a number of issues in this case. Whether the employee’s performance documents reflect criticism, or, no criticism of their sexual harassment and/or retaliation of plaintiff (and/or other female employees), is central to whether Defendant COUNTY abided by their statutory duty to promptly take remedial action to stop discrimination and/or sexual harassment…Any commendations and positive performance reviews, especially after complaints were made, go to these issues as well.” (Mot. at p. 13:8-13, emphasis omitted.) Plaintiff’s counsel’s declaration in support of the motion states that “[p]ursuant to Evidence Code §§ 1043 and 1045, good cause exists for discovery of the matter at hand because the documents and responses are material to the allegations contained in Plaintiff’s lawsuit. I believe Defendant COUNTY has possession of all records and information sought herein.” (Burrit Decl., ¶ 15.)

In the opposition, Defendant contends that “[r]egular discovery should be conducted before burdening the court with a Pitchess motion, to demonstrate the requisite necessity for the information sought, including a showing that any information is not available through other means.” (Opp’n at p. 4:18-20.) Defendants appear to cite to Alford v. Superior Court, supra, 29 Cal.4th at page 1039 in support of this proposition. (See Opp’n at p. 13:10-12.) But the Court does not see where in Alford the Court found that information must first be obtained from other sources before a Pitchess motion may be filed.

            Defendants also assert that “not only are the requests overbroad as to time and scope, but it seeks materials wholly collateral to the crux of the allegations by implicating other peace officers, who are neither Julio Garcia, Jr. nor identified within the suit.” (Opp’n at p. 4:8-10.) Defendant also asserts that “[t]he motion should be denied because it fails to show good cause and materiality for discovery of confidential peace officer personnel records as required by statute.” (Opp’n at p. 8:16-17.)

The Court finds that Plaintiff has shown good cause for categories 2 through 4 of documents requested on page 7:7-18 of the motion. The request for the personnel file is too broad. The Court also finds that Plaintiff has demonstrated good cause for the documents described in categories 1-11 on pages 22:7-23:7 of the motion, but only to the extent the references to “officer” and “identified officer” in those categories pertains to Garcia, to the extent that “above-mentioned conduct” concerns the allegations of the Complaint in this case, and to the extent categories 9 and 11 concern Garcia.

            As set forth above, Plaintiff alleges causes of action for (1) hostile work environment sexual harassment, (2) race and sex discrimination, (3) retaliation, (4) failure to take all reasonable steps necessary to prevent and correct discrimination, harassment, and retaliation, (5) intentional infliction of emotional distress, and (6) battery. As discussed above, the Complaint describes a number of alleged events involving Garcia. Herein, Plaintiff seeks information pertaining to Garcia, including, inter alia, Garcia’s personnel file, “[i]nformation about Plaintiff’s sexual harassment, discrimination, and retaliation allegations made to the County and the investigation done into Plaintiff’s allegations,” and “[a]ny other allegations made against Garcia, including investigations done and corrective actions taken.” (Mot. at p. 7:7-14.) Plaintiff’s counsel asserts that “good cause exists for discovery of the matter at hand because the documents and responses are material to the allegations contained in Plaintiff’s lawsuit.” (Burrit Decl., ¶ 15.)

Conclusion

Based on the foregoing, the hearing on this matter will be continued to ____________, 2023, at ________ in Dept. 50 to allow for an in camera inspection.

At the continued hearing, the custodian of records for Defendants shall bring the records described on pages 7:7-18 and 22:7-23:7 of the motion, as limited above.

Plaintiff is ordered to provide notice of this ruling.

DATED:  August 18, 2023                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court