Judge Teresa A. Beaudet, Case Number: 22STCV30776, Date: 2023-08-14 Tentative Ruling

Plaintiffs Jane Doe 2 (A.T.), Jane Doe 3 (A.T.), Jane Doe 4 (G.T.), minors, by and through their guardian ad litem Jane Doe 1 (A.T.) (collectively, “Plaintiffs”) filed this action on

September 20, 2022 against Defendants County of Los Angeles and Los Angeles County Sheriff’s Department. The Complaint alleges causes of action for (1) personal injury: sexual abuse of a minor, (2) negligent infliction of emotional distress, and (3) negligent supervision, training, review, and retention.

In the Complaint, Plaintiffs allege that “[i]n 2013, Deputy Sean Jerome Essex began grooming JANE DOE 2 (A.T.), JANE DOE 3 (A.T.), and JANE DOE 4 (G.T.) under the guise of his role as an official with the SHERIFF’S DEPARTMENT.” (Compl., ¶ 9.) “Deputy Sean Jerome Essex started a friendship with JANE DOE 1 (A.T.) and would often arrive at her home in his SHERIFF’S DEPARTMENT patrol vehicle wearing his SHERIFF’S DEPARTMENT uniform.” (Compl., ¶ 10.)

Plaintiffs allege that “[o]n or about 2015 Deputy Sean Jerome Essex began driving Plaintiffs, one at a time, with him to get food for the family. During these trips, Deputy Sean Jerome Essex would wear his police uniform and would transport Plaintiffs in his SHERIFF’S DEPARTMENT patrol vehicle.” (Compl., ¶ 12.) “Plaintiffs would also visit Deputy Sean Jerome Essex, while he was on duty and in his SHERIFF’S DEPARTMENT uniform, at the Harbor-UCLA Medical Center located at 1000 W. Carson Street Torrance, CA 90509. During these visits, Deputy Sean Jerome Essex would also take Plaintiffs in his SHERIFF’S DEPARTMENT patrol vehicle, one at a time, to get food for the other Plaintiffs and for JANE DOE 1 (A.T.).” (Compl., ¶ 13.) Plaintiffs allege that “[u]nbeknownst to JANE DOE 1 (A.T.), when Deputy Sean Jerome Essex would take the minor Plaintiffs to get food, he would sexually abuse Plaintiffs.” (Compl., ¶ 14.)

Plaintiffs allege that “[o]n August 10, 2022, the Los Angeles County District Attorney George Gascon unsealed an indictment against Deputy Sean Jerome Essex alleging 18 counts of oral copulation of a child, 12 counts of lewd acts upon a child under the age of 14, two counts of continuous sexual abuse of a child under 14 and one count of possession of material depicting a child sex act.” (Compl., ¶ 16.)

Plaintiffs now move for an order that the County of Los Angeles and the Los Angeles County Sheriff’s Department make available certain specified documents and records pertaining to Officer/Deputy Sean Jerome Essex. Real Party in Interest, the Custodian of Records for the Los Angeles County Sheriff’s Department (“Real Party in Interest”) opposes.

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.’”).)

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.”].)

As set forth above, the Custodian of Records for the Los Angeles County Sheriff’s Department opposes the instant motion, and no objection has been made as to notice. In the motion, Plaintiffs seek twenty-one categories of records, as follows:

1. Any and all documents in the personnel records of Officer/Deputy Sean Jerome Essex that record any complaint registered with the Los Angeles County Sheriff’s Department of the County of Los Angeles by any inmate, fellow officer, any private citizen, or any other individual alleging any excessive force or violence, assaultive behavior, or proclivity for violence.

2. Any and all documents in the personnel records of Officer/Deputy Sean Jerome Essex that record any complaint registered with the Los Angeles County Sheriff’s Department of the County of Los Angeles by any inmate, fellow officer, any private citizen, or any other individual alleging any sexual assault, sexual battery, inappropriate sexual comments, or other inappropriate sexual acts.

3. Any and all documents and/or reports involving investigation or proceedings concerning the misconduct of Officer/Deputy Sean Jerome Essex.

4. Any and all documents and/or reports referencing or referring to charge evaluation worksheets for Officer/Deputy Sean Jerome Essex.

5. Any and all documents relating to any incidents in which it was alleged that Officer/Deputy Sean Jerome Essex engaged in dishonest conduct and/or lying during an investigation.

6. Any and all documents referencing or referring to all Peace Officer Standards and Training (POST) training records, Los Angeles County Sheriff’s Department internal training and all other documented training for Officer/Deputy Sean Jerome Essex.

7. The name, addresses, and telephone numbers of all persons who filed complaints as described in paragraphs 1 through 6.

8. The names, addresses, and telephone numbers of all people interviewed by the Los Angeles County Sheriff’s Department during the investigation of said complaints.

9. All statements, written or oral, made by people interviewed during the investigations of said complaints.

10. All tape recordings and/or transcriptions thereof, notes and memoranda by investigating personnel of Los Angeles County Sheriff’s Department made pursuant to investigations described in paragraphs 1 through 6.

11. The names and assignments of investigators and other personnel employed by the Los Angeles County Sheriff’s Department in investigations described in paragraphs 1 through 6.

12. All investigative reports made as a result of said complaints, excluding any “conclusions” reached by any officer, employee, or other individual investigating the complaint.

13. Any and all documents that record disciplinary action commenced or imposed against Officer/Deputy Sean Jerome Essex because of the conduct described in paragraphs 1 through 6.

14. The names of any law enforcement agencies that previously employed Officer/Deputy Sean Jerome Essex.

15. Any information that might reasonably lead to evidence of Officer/Deputy Sean Jerome Essex’s habits or custom for behavior described in paragraphs 1-5.

17. Any information concerning behavior involving moral turpitude by Officer/Deputy Sean Jerome Essex, which would qualify as impeachment evidence under People v. Wheeler (1992) 4 Cal.4th 284.

18. The written procedures established by the Los Angeles County Sheriff’s Department to investigate citizen complaints against the Department or it is personnel as required by Penal Code section 832.5(a), which were utilized with respect to complaints against Officer/Deputy Sean Jerome Essex.

19. Any and all documents in the personnel records of Officer/Deputy Sean Jerome Essex, that record any complaints registered with the Los Angeles County Sheriff’s Department by any inmate, fellow officer, any private citizen or any other individual alleging the following:

20. All test records, reports, and statements, including but not limited to letters, reports, and oral conversations of psychiatrists, psychologists, and fellow officers pertaining to Officer/Deputy Sean Jerome Essex, regarding his propensity to engage in conduct described in paragraphs 1 through 6.

21. Any and all documents listing Sean Jerome Essex’s assignments and/or schedule at Harbor-UCLA Medical Center located at 1000 W. Carson Street Torrance, CA 90509.

Here, Plaintiffs assert that good cause exists for the production of the requested documents and records. As discussed above, “[g]ood cause for discovery exists when the defendant shows both materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought. 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.” (Becerrada v. Superior Ct., supra, 131 Cal.App.4th at p. 413 [internal quotations and citations omitted].)

In his supporting declaration, Plaintiffs’ counsel states that “[b]eginning in 2013, Officer/Deputy Sean Jerome Essex began a relationship with Guardian Ad Litem Jane Doe 1 (A.T.). At that time, Essex was already serving as an employee of the Los Angeles County Sheriff’s Department.” (Freeman Decl., ¶ 2.) Plaintiffs’ counsel states that “[b]eginning in 2015, Essex began to drive Plaintiffs, one at a time, in his patrol vehicle, to get food for the other family members. Plaintiffs would also visit Deputy Sean Jerome Essex, while he was on duty and in his Sheriff’s Department uniform, at the Harbor-UCLA Medical Center located at 1000 W. Carson Street Torrance, CA 90509. During these visits, Deputy Sean Jerome Essex would also take Plaintiffs in his Sheriff’s Department patrol vehicle, one at a time, to get food for the other Plaintiffs and for JANE DOE 1 (A.T.).” (Freeman Decl., ¶ 4.) “When Deputy Sean Jerome Essex would take the minor Plaintiffs to get food, he would sexually abuse Plaintiffs.” (Freeman Decl., ¶ 5.)

Plaintiffs’ counsel states that “[o]n April 8, 2022, Deputy Sean Jerome Essex was arrested on suspicion of lewd and lascivious acts with a child under 14 years old and committing oral copulation with a child under the age of 14.” (Freeman Decl., ¶ 6.) In addition, “[o]n August 10, 2022, the Los Angeles County District Attorney George Gascon unsealed an indictment against Deputy Sean Jerome Essex alleging 18 counts of oral copulation of a child, 12 counts of lewd acts upon a child under the age of 14, two counts of continuous sexual abuse of a child under 14 and one count of possession of material depicting a child sex act.” (Freeman Decl., ¶ 7.)

Plaintiffs’ counsel states in his declaration that “I am informed and believe that on occasion arrestees, or the attorneys, friends, relatives of such arrestees, or coworkers made complaints to the Los Angeles County Sherriff’s Department concerning its law enforcement officers.” (Freeman Decl., ¶¶ 10-11.) Plaintiffs’ counsel states that “[t]hese complaints may allege that Officer/Deputy Sean Jerome Essex committed acts of excessive force or violence, assaultive behavior, or that evidenced a proclivity for violence.” (Freeman Decl., ¶ 10.) Plaintiffs’ counsel also states that “[t]hese complaints may allege that Officer/Deputy Sean Jerome Essex committed acts of sexual assault, sexual battery, inappropriate sexual comments, or other inappropriate sexual acts.” (Freeman Decl., ¶ 11.)

Plaintiffs’ counsel states that “[t]he items requested may also contain records showing disciplinary actions and suspensions of Officer/Deputy Sean Jerome Essex following review of the complaints by superior officers and fellow officers concerning past incidents of engaging in illegal or false arrests, improper tactics, improper search and seizure, dishonesty, false imprisonment, excessive force or violence, assaultive behavior, behavior that evidenced a proclivity for violence, acts of sexual assault, sexual battery, inappropriate sexual comments, or other inappropriate sexual acts.” (Freeman Decl., ¶ 12.)

Plaintiffs’ counsel also states that he has a “reasonable belief that the Los Angeles Sherriff’s Department and/or the County of Los Angeles are in possession of the documents and information south [sic] though this motion and declaration, as described above.” (Freeman Decl., ¶ 18.)

In the opposition, Real Party in Interest asserts that “the declaration of counsel seeks prior complaints against Deputy Essex related to ‘misconduct,’ excessive force, false arrest, dishonesty, and sexual assault and battery. There are no clear facts articulated in the defense declaration how the personnel records of Deputy Essex related to these categories are material to the lawsuit against the County of Los Angeles.” (Opp’n at p. 8:10-13.) However, Real Party in Interest also asserts that “the Plaintiff alleges that Deputy Essex sexually assaulted Plaintiffs. Records unrelated to sexual assault would be irrelevant and overly broad.” (Opp’n at p. 8:14-15.) Thus, Real Party in Interest appears to acknowledge that complaints relating to sexual assault are relevant here.

In addition, Plaintiffs counter that their “request for records was not overbroad as each category of records either goes to Deputy Essex’s fitness to serve as a law enforcement official, his propensity of truthfulness, the efforts made by the Sherrif’s Department to investigate reports of misconduct, or to his supervision or lack of supervision before and during the time he abused Plaintiffs.” (Reply at p. 5:2-6.)

Real Party in Interest also contends that “the declaration of counsel generally addresses the allegations contained in the complaint but does not specifically address why each of the requested [sic] would be material to the plaintiffs’ case.” (Opp’n at p. 8:24-25.) But Plaintiffs’ counsel’s declaration provides, inter alia, that “[a] substantial issue in the trial of this case will be the past misconduct of Officer/Deputy Sean Jerome Essex. The materials requested will be essential in establishing excessive force or violence, assaultive behavior, behavior that evidenced a proclivity for violence, acts of sexual assault, sexual battery, inappropriate sexual comments, or other sexual act by Officer/Deputy Sean Jerome Essex.” (Freeman Decl., ¶ 14.)

In addition, Plaintiffs’ counsel states that the materials are necessary for the proper preparation of this case for a trial, and may be used as follows: (a) “[t]o locate and investigate witnesses of other evidence of the aggressive and/or sexually deviant character of Officer/Deputy Sean Jerome Essex, involved to show that Officer/Deputy Sean Jerome Essex acted in conformity with that character at the time of his sexual assault against Plaintiffs,” (b) [t]o refresh recollection of witnesses to incidents of Officer/Deputy Sean Jerome Essex engaging in illegal or false arrests, improper tactics, improper search and seizure, dishonesty, false imprisonment, excessive force or violence, assaultive behavior, behavior that evidenced a proclivity for violence, acts of sexual assault, sexual battery, inappropriate sexual comments, or other inappropriate sexual acts so Plaintiffs’ counsel may accurately ascertain the facts and circumstances of those incidents,” (c) “[t]o properly prepare for cross-examination and impeachment of witnesses to be called by Defendants,” and (d) “[t]o impeach the testimony of Officer/Deputy Sean Jerome Essex in the sexual assault of Plaintiffs, by showing acts of a morally lax character and hence a readiness to lie.” (Freeman Decl., ¶ 17.)

Next, Real Party in Interest asserts that “[l]aw enforcement records relating to an ongoing criminal investigation should be barred from discovery in a civil case based on public interest.” (Opp’n at p. 9:8-9.) But Real Party in Interest does not cite to any legal authority in support of this proposition. In addition, as set forth above, Evidence Code section 1045, subdivision (e) provides that “[t]he court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.”

Real Party in Interest also asserts that Plaintiffs are not entitled to psychological records. As set forth above, Plaintiffs’ Category 20 seeks “[a]ll test records, reports, and statements, including but not limited to letters, reports, and oral conversations of psychiatrists, psychologists, and fellow officers pertaining to Officer/Deputy Sean Jerome Essex, regarding his propensity to engage in conduct described in paragraphs 1 through 6.” (Notice of Mot. at p. 4:8-12.)

Real Party in Interest cites to Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523, 531, where the Court of Appeal “conclude[d] that information pertaining to psychological test results and performance evaluations (items 12-15) was not properly discoverable.” The Arcelona Court noted that “[e]vidence Code section 1045 declares as irrelevant and nondiscoverable ‘[facts] . . . so remote as to make disclosure of little or no practical benefit.’…The supporting declaration merely states that the test results may form the basis of psychiatric opinion concerning the officers’ character (Evid. Code, § 1103) and may show bias for purposes of impeachment (Evid. Code, § 780, subd. (f)). In our opinion, the potential probative value of the requested information for the precise purposes stated is remote and purely speculative.” (Id. at p. 531 [emphasis in original].) The Arcelona Court further noted that “[b]oth constitutional (Cal. Const., art. I, § 1) and statutory (Civ. Code, § 1798 et seq.) principles protect the right of privacy of individuals and limit disclosure of personal data…Such important individual guarantees should not be hobbled without a countervailing showing that the lack of the requested information intrudes upon defendant’s constitutional right to a fair trial or otherwise impairs his ability to prepare an adequate defense.” (Id. at p. 532.)

Real Party in Interest contends that here, “Plaintiffs are requesting that this court go on a fishing expedition into these law enforcement officers’ personnel files and psychological reports/evaluations to see if such an expedition might disclose a pattern of behavior on the officers’ parts that Plaintiffs’ counsel could then later use for impeachment purposes. Here, the Plaintiffs cannot make a showing that failure to get these psychological records will intrude upon his right to a fair trial or would impair his ability to prepare the case.” (Opp’n at p. 10:1-6.)

In the motion and reply, Plaintiffs cite to Evidence Code section 1024, which provides that “[t]here is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.”[1]

In the reply, Plaintiffs contend that “Deputy Essex was previously employed as an active-duty member of the military who participated in active combat. Plaintiffs have a reasonable belief that this service in the military may have resulted in Deputy Essex developing some mental health conditions that may have contributed to his abuse of Plaintiffs’. Accordingly, Plaintiffs should be entitled to production of these records. Additionally, if no psychological records exist in Deputy Essex’s file then Plaintiffs should be entitled to that information, as the Sheriff’s Department failing to perform such evaluations may demonstrate it fell below the standard of care in supervision the actions of its officers.” (Reply at p. 6:20-27.) Plaintiffs thus assert that the psychological records of Mr. Essex are relevant and discoverable.

In the opposition, Real Party in Interest also asserts that “the Plaintiff’s moving papers do not articulate how the investigators’ conclusions and analyses would be of meaningful benefit in the litigation, or are likely to lead to the discovery of relevant or admissible evidence. Thus, the request verbatim records consisting of thought processes, factual inferences and deductions drawn by investigating officers concerning such matters must be denied.” (Opp’n at p. 11:15-19.) The Court notes that it is unclear what category of requested documents Real Party in Interest is referring to.

Lastly, Real Party in Interest states that “[i]n the event of an in camera inspection and an order for disclosure, this Real Party requests that the court issue a protective order limiting the use and dissemination of the information to this case for which the requirements under Evid. Code §1043-1045 has been met.” (Opp’n at p. 12:1-3.) Real Party in Interest has filed a proposed protective order in connection with the opposition. In the reply, Plaintiffs state that they “are not opposed to a protective order as long as the order allows for Plaintiffs to move, at a later date for these records to be made public.” (Reply at p. 7:23-25.)

The Court notes that it will address the Real Party in Interest’s proposed protective order following the in camera inspection discussed below. As set forth above, if the court finds good cause then an in camera hearing must be held. (Slayton v. Superior Court, supra, 146 Cal.App.4th at p. 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, supra, 29 Cal.4th at pp. 1039-1040 (overruled on other grounds).)

Based on the foregoing, the Court finds that Plaintiffs have shown good cause for the documents and records requested.

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 the Los Angeles County Sheriff’s Department shall bring the records described in Plaintiffs’ notice of motion. (See Notice of Motion at pp. 2:3-4:14.)

[1] Plaintiffs cite to Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 160, where the Court of Appeal found that “Defendant is, of course, not precluded from presenting to the trial court hereafter any appropriate motion relating to pretrial discovery, including a motion to test the applicability of Evidence Code section 1024 and for an in camera inspection of these records if they exist. There is no indication whatever in the record, however, that defendant requested any such in camera inspection in the trial court, and it is not he who raises the question in this court…The question before us is whether the trial court abused its discretion, and we decline to hold the trial court abused its discretion in failing to conduct an in camera inspection not requested by defendant in the trial court or here and the propriety of which was not indicated to the trial court by defendant’s contentions.”

Superior Court of California

County of Los Angeles

Department 50