Judge Theresa M. Traber, Case 19STCV05254 2022-12-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 19STCV05254, Date: 2022-12-22 Tentative Ruling

Case Number: 19STCV05254 Hearing Date: December 22, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: December 22, 2022 TRIAL DATE: July 25, 2023

CASE: Nicole Mehringer v. City of Los Angeles.

CASE NO.: 19STCV05254

PITCHESS MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL RECORDS PURSUANT TO EVIDENCE CODE SECTION 1043

MOVING PARTY: Plaintiff Nicole Mehringer

RESPONDING PARTY(S): Defendant City of Los Angeles.

CASE HISTORY:

02/15/19: Complaint filed.
01/11/22: First Amended Complaint filed

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff was terminated by the Los Angeles Police Department following a Board of Rights hearing regarding alleged misconduct by Plaintiff. Plaintiff alleges that her termination was in retaliation for whistleblowing regarding misconduct of other police officers.

Plaintiff moves for discovery of peace officer personnel records pursuant to Evidence Code section 1043.

TENTATIVE RULING:

Plaintiff’s Pitchess motion is GRANTED.

The Court sets an in camera hearing for January 23, 2023, at 1:30 pm in Department 47, Stanley Mosk Courthouse. The custodian of records is to produce at the hearing all potentially responsive documents for in camera inspection by the Court.

The Court orders the parties to meet and confer regarding the preparation and filing of a joint stipulation to a protective order concerning limitations on the use of the records pursuant to Evidence Code section 1045 and the redaction of potentially responsive documents as to private personal information. The parties are directed to file any such joint stipulation on or before the date of the in camera hearing.

DISCUSSION:

Plaintiff moves for discovery of peace officer personnel records pursuant to Evidence Code section 1043. Specifically, Plaintiff seeks documents relating to select disciplinary proceedings involving the following Los Angeles Police Department officers: (1) Assistant Chief Jorge Villegas; (2) Deputy Chief Jorge Rodriguez; (3) Commander Jeff Nolte; (4) Commander Lou Paglialonga; (5) Captain III Steve Ruiz; (6) Captain II Julian Melendez; (7) Detective Wes Porter; (8) Sergeant II Randy Holcombe; (9) Sergeant I Gustavo Marroquin; (10) Sergeant Oscar Ontiveros; (11) Police Officer III William Perez; (12) Police Officer III Rich Alba; (13) Police Officer III Gabriel Gaxiola, and; (14) Police Officer II Shaun Hillman.

Plaintiff has subsequently withdrawn requests Nos. 7 and 11-14. (Reply p. 2:11-15.) The Court will therefore only address the merits of the motion as to the remaining nine requests.

Legal Standard

Obtaining discovery of peace officers’ personnel records is a two-step process. First, the party seeking discovery “must file a motion supported by affidavits showing ‘good cause for the discovery,’ by demonstrating the materiality of the information to the pending litigation, and by ‘stating upon reasonable belief’ that the police agency has the records or information at issue.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) Second, if the Court finds good cause for the discovery, “it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance.” (Ibid.)

The Pitchess procedure applies when “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.” (Evid. Code § 1043(a).)

Penal Code § 832.5 applies to “complaints by members of the public against the personnel of these departments or agencies.” (Penal Code § 832.5(a)(1).) “Complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years.” (Id. § 832.5(b).) They “may be maintained either in the peace or custodial officer’s general personnel file or in a separate file designated by the department or agency.” (Ibid.)

The term “personnel records” is defined as follows:

“Personnel records” means any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following:

(1) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(2) Medical history.

(3) Election of employee benefits.

(4) Employee advancement, appraisal, or discipline.

(5) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.

(6) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

(Penal Code § 832.8(a).) Under Evidence Code section 1043, a party may seek disclosure of these records by filing a regularly noticed motion with the appropriate court. (Evid. Code § 1043(a).)

Good Cause

Under Evidence Code section 1043, a Pitchess motion must include:

(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 which 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(b).) The good cause requirement creates a “relatively low threshold for discovery.” (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655-56.) A party seeking records need only demonstrate through affidavits a “plausible factual foundation” for how the records are material to the subject matter of the pending litigation. (Id.) The affidavits may be based on information and belief, and may be made by counsel, as the party seeking disclosure usually does not know the contents of the records. (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51.)

Here, the Notice of Motion identifies the proceeding, the party seeking disclosure, the governmental agency with custody and control of the records, and the officers whose records are sought, as required by subdivision (b)(1). The Notice of Motion also describes the records sought, as required by subdivision (b)(2).

The Declaration of Diana Wells attached to the Motion states that the materials sought relate directly to Plaintiff’s claim for whistleblower retaliation under Labor Code section 1102.5, insofar as they are relevant to proving both that Plaintiff engaged in protected activity by disclosing to the Board of Rights that male and female LAPD officers are treated differently for similar misconduct and that the Board’s decision to terminate Plaintiff was based on this disclosure, not on any misconduct. (Declaration of Diana Wells ISO Mot. ¶ 31.)

In opposition, Defendant contends that Plaintiff has not shown good cause for these requests as they are irrelevant, inadmissible, and immaterial. Defendant contends that Requests Nos. 1-4 seek irrelevant information because the records sought relate to allegations of different types of misconduct. Defendant cites no law or precedent in support of the conclusory assertion that the requests are not relevant to this matter because the allegations against those officers are distinguishable from Plaintiff’s misconduct. This is not sufficient to establish that good cause does not exist for production of these documents for, at minimum, in camera review. With respect to Requests Nos. 5, 6 and 8-10, Defendant’s conclusory statement that these records are inadmissible because the officers in question held ranks below Plaintiff is similarly unpersuasive. Defendant’s sole citation in support of this contention, City of Santa Cruz v. Mun. Ct., does not actually address this issue, instead discussing the fact that an affiant under Evidence Code section 1043 need not have personal knowledge of the facts and averments to justify discovery under the statute. (City of Santa Cruz v. Mun. Ct. (1989) 49 Cal.3d 74, 86.)

As to materiality, Defendant contends that the information sought is immaterial because there is no requirement that similar charges brought in front of an administrative agency must result in identical penalties. Defendant is correct that there is no requirement that an administrative agency impose the same penalties for similar behavior in the context of a petition for writ of mandamus for abuse of discretion. (See, e.g., Coleman v. Harris (1963) 218 Cal.App.2d 401, 404 [seeking reversal of revocation of license to sell alcoholic beverages]; Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 565-66 [seeking reversal of revocation of medical certificate for alcohol abuse].) As Plaintiff points out in reply, however, this case asserts a whistleblower retaliation claim for money damages, not a petition for writ of mandamus to reverse the Board of Rights’ decision. Further, Defendant’s principal case in support of its opposition, Marino v. City of Los Angeles (1971) 34 Cal.App.3d 461, is inapplicable here. In Marino, a former police officer had petitioned for a writ of mandamus seeking his reinstatement as a police officer, following a Board of Rights decision to terminate him. (Marino, supra, 34 Cal.App.3d at 463.) The Court of Appeal held that the trial court did not err in refusing to take judicial notice of the records of the Board of Rights where the petitioner made no reference to the specifics of any decision showing how they were similar to his case. (Id. at 465-66.) Critically, the Marino court stated that “[i]n the absence of some definite offer to show that there was discrimination in the penalty, the court is not compelled to consume its time in a mere fishing expedition.” (Id. at 466 [emphasis added].)

Here, Plaintiff’s essential allegations are that she disclosed to the Board of Rights specific incidents of similar misconduct, which resulted in different disciplinary outcomes allegedly because the officers in question were male. (First Amended Complaint ¶¶ 13-14.) Plaintiff asserts that the Board of Rights chose to terminate her in retaliation for that disclosure. (Id.) Further, Plaintiff is not seeking disclosure of the entire record of the Board of Rights but instead seeks only the records of specific individuals in an effort to support Plaintiff’s underlying contention of discrimination and claim for whistleblower retaliation. The Court cannot say, especially in light of the Court of Appeal’s comments in Marino, that Plaintiff has not met the minimal requirements to establish good cause to require in camera review of the materials sought.

In Camera Review

The parties agree that, pursuant to Evidence Code section 1045, the records sought must be reviewed in camera to determine if they are discoverable.

[I]f “the trial court concludes the defendant 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 . . . motion. . . . The trial court ‘shall examine the information in chambers’ (Evid. Code, § 1045, subd. (b)), ‘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 [moving party] ‘such information [that] is relevant to the subject matter involved in the pending litigation.’ [Citations.]”

(Haggerty, supra, 117 Cal.App.4th at 1086, bold emphasis added.)

Evidence Code section 1045 sets forth certain statutory limitations on relevance:

(b)¿In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure:

(1)¿Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.

* * *

(3)¿Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

(c)¿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.

All document production will be limited as set forth in Evidence Code § 1045(b) and (c).

Privilege under Evidence Code section 1040

Defendant makes a conclusory assertion that the information sought is protected under Evidence Code section 1040. This section provides, in relevant part:

(a) As used in this section, official information means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state.

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(Evid. Code § 1040 (a)-(b).) Defendant makes no effort to support this contention, citing no law forbidding disclosure of the information sought and providing no basis to conclude that disclosure of the information is against the public interest as provided under subdivision (b). As Defendant has not justified this position, the Court rejects Defendant’s argument.

Redaction of Private Information

Defendant contends that, to the extent the records requested contain information that is protected by third-party privacy rights, such as dates of birth, home addresses, or social security numbers, those records should be redacted. Plaintiff states that she has no objection to this request.

Protective Order

Defendant contends that any information that the Court concludes should be disclosed should be produced subject to a protective order.

Production of documents following the in camera inspection is subject to a protective order:

The 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.

(Evid. Code § 1045(e).)

If the court determines the requested personnel records are relevant within the meaning of section 1045, subdivision (a), and do not fall within the exceptions set forth in section 1045, subdivisions (b) or (c), the court should generally order their production subject to an order “that the records disclosed … may not be used for any purpose other than a court proceeding pursuant to applicable law.” (§ 1045, subds. (d), (e).)

(Haggerty, supra, 117 Cal.App.4th at 1088.) Plaintiff does not object to this request and agrees that any production should be subject to a protective order as provided by section 1045. However, no proposed protective order has been filed by either party. The Court will therefore exercise its discretionary authority to order the parties to meet and confer regarding a stipulation to a protective order concerning the requested redactions as well as reasonable restrictions on disclosure and use of the documents, pursuant to Evidence Code section 1045 subdivisions (d) and (e), of any documents to be produced.

CONCLUSION:

Accordingly, Plaintiff’s Pitchess motion is GRANTED.

The Court orders the parties to meet and confer regarding the preparation and filing of a joint stipulation for a protective order concerning the redaction of potentially responsive documents as to private personal information, and as to limitations on the use of the records pursuant to Evidence Code section 1045. The parties are directed to file any such joint stipulation on or before the date of the in camera hearing.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: December 22, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.