Judge: Theresa M. Traber, Case: 19STCV05254, Date: 2023-06-27 Tentative Ruling
Case Number: 19STCV05254 Hearing Date: April 18, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 18, 2024 TRIAL
DATE: September 17, 2024
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:
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff was terminated by the
Los Angeles Police Department following a Board of Rights hearing regarding
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 to the extent described herein.
The Court sets an in camera
hearing for Thursday, June 6, 2024, 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.
DISCUSSION:
Plaintiff
moves for discovery of peace officer personnel records pursuant to Evidence
Code section 1043.
Request for Judicial Notice
Defendant
requests that the Court take judicial notice of (1) the Complaint in this
action; (2) the First Amended Complaint in this action; (3) the Motion for
Leave to File First Amended Complaint; (4) Plaintiff’s September 6, 2018 Pitchess
Motion; (5) Plaintiff’s October 25, 2018 Pitchess Motion; (6) the
judgment in Mehringer v. City of Los Angeles, et al. LASC Case No.
19STCP00781; (7) the Complaint in McBride v. City of Los Angeles, LASC
Case No. BC565084; and (8) the Second Amended Complaint filed in Whittingham
v. City of Los Angeles, et al. (C.D.
Cal.) Case No. 2:16-cv-08412. With respect to Requests Nos. 1 through 5,
Defendant’s requests are GRANTED pursuant to Evidence Code section 452(d)
(court records). Defendant’s remaining requests are DENIED as immaterial to the
Court’s ruling. (Gbur v. Cohen
(1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to
those matters which are relevant to the issue at hand.”].)
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,’ first by demonstrating the materiality of the information to the
pending litigation, and second 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 may be material to the subject matter of the
pending litigation. (Id.) The affidavits may be based on information and
belief and 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).
Plaintiff’s
Notice of Motion identifies 6 sets of peace officer records sought, which can
be divided into three categories: (1) Request Nos. 1 and 2, which seek correspondence
sent or received by specific command staff pertaining to allegations of sexual
assault against Les Moonves, former CEO of CBS, made by Phyllis Golden-Gottlieb,
as well as documents pertaining to any claim that LAPD personnel disclosed
confidential information to CBS pertaining to those allegations; (2) Requests
Nos. 3 and 4, which seek documents pertaining to the failure of specific
officers to report their relationships with female subordinates; and (3) Requests
No. 5 and 6, which seek materials relating to allegations of alcohol-related
misconduct against other command staff.
At the
outset, Defendant opposes all of Plaintiff’s requests to the extent that they
seek analyses and conclusions of investigating officers as seeking irrelevant
information. A party is not entitled to the subjective impressions and
conclusions of an investigating civil officer unless they are relevant. (Haggerty
v. Superior Ct. (2004) 117 Cal.App.4th 1078, 1088-89.) For the reasons
stated below with respect to each set of requests, the Court is persuaded that the
investigative documents sought are relevant here.
Defendant
also opposes all of Plaintiff’s requests to the extent that they seek documents
pertaining to matters predating Plaintiff’s Pitchess motion in the Board
of Rights proceeding, which motion Defendant calls Plaintiff’s “whistle blow.” Defendant
relies on a recent opinion in which the Court of Appeal stated that “[a]ctual
retaliation must be based on an individual’s engagement in protected activity,
not his personal protected status.” (Kourounian v. California Dep’t of Tax
& Fee Admin. (Cal Ct. App. May 24, 2023, No. B309007) 2023 WL 3612540 at
*6.) However, Defendant neglects the details of the record in Kourounian which
render it factually and legally distinguishable. As Plaintiff states in reply, the
Kourounian court held that while the act of filing an EEOC complaint for
discrimination was relevant under FEHA as that act was the protected activity
at issue in the plaintiff’s FEHA retaliation claim, the allegations within that
complaint were not relevant. (Id.) Here, Plaintiff has brought a claim
for whistleblower retaliation under Labor Code section 1102.5, which states:
An employer, or any person acting on
behalf of the employer, shall not retaliate against an employee for disclosing
information, or because the employer believes that the employee disclosed or
may disclose information, to a government or law enforcement agency, to a
person with authority over the employee or another employee who has the
authority to investigate, discover, or correct the violation or noncompliance,
or for providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry, if the employee has
reasonable cause to believe that the information discloses a violation of state
or federal statute, or a violation of or noncompliance with a local, state, or
federal rule or regulation, regardless of whether disclosing the
information is part of the employee’s job duties.
(Labor Code § 1102.5(b) [emphasis added].) As addressed
further infra, Plaintiff’s requests seek documents pertaining to the
treatment of other LAPD personnel, which are relevant to the issue of
discriminatory intent insofar as Defendants’ knowledge of the existence of
these matters might have been a basis to retaliate against Plaintiff for her Pitchess
motion. This case thus concerns both different factual conduct and a different
legal standard from Kouronian. Defendant’s citation to Nejadian v.
County of Los Angeles is similarly unpersuasive, as the Nejadian
court’s statement that “actions the employer took before the plaintiff engaged
in protected activity necessarily are irrelevant,” in context, refers to the Nejadian
court’s refusal to consider allegations of adverse actions taken against that
particular plaintiff before the protected activity occurred. (Nejadian v.
County of Los Angeles (2019) 40 Cal.App.5th 703, 724 fn. 17.)
In sum, the
Court is not persuaded by Defendant’s arguments that blanket limitations should
be imposed on all of Plaintiff’s document requests with respect to whether good
cause exists for in camera review of these documents. The Court now
addresses the specific requests by category and Defendant’s specific objections
to those categories.
1.
Requests Nos. 1-2
Requests Nos. 1 and 2 seek (1) correspondence
sent or received by specific command staff pertaining to allegations of sexual
assault against Les Moonves, former CEO of CBS, made by Phyllis
Golden-Gottlieb, and (2) documents pertaining to any claim that LAPD personnel
disclosed confidential information to CBS pertaining to those allegations. 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 that
Plaintiff had reason to believe that her Pitchess motion disclosed a
pattern of disparate treatment based on gender for alcohol-related and sexual
misconduct, and the Board and Chief Moore had reason to retaliate her for
embarrassing the Department. (Declaration of Diana Wells ISO Mot. ¶ 23-27.) Plaintiff’s
motion asserts that Captain Cory Palka passed along confidential information to
CBS pertaining to the allegations against Moonves and instructed the
investigating officer to admonish the claimant not to speak with the press.
(Motion p.11:14-12:6.) Plaintiff also asserts that supervisors in LAPD, at a
minimum, failed to investigate Palka’s actions. (Id. p.12:7-10.)
In opposition, Defendant contends
that Plaintiff has not shown good cause for these documents because the alleged
wrongdoing of these officers as described by Plaintiff bears no similarity to
the misconduct for which Plaintiff was terminated. In reply, Plaintiff argues
that the materials sought pertain to more serious misconduct—i.e., informing a
suspect that someone has accused him of a crime and pressuring the victim to
remain silent—and are therefore probative of Defendant’s disparate treatment. Plaintiff
offers in support a 1998 opinion by the Eighth Circuit Court of Appeals which rejected
the position that other employees must have committed an identical offense to
find them “similarly situated” for the purpose of proving discrimination or
pretext, stating:
… To show that
employees are similarly situated, a plaintiff need only establish that he or
she was treated differently than other employees whose violations were of
“comparable seriousness.” [Citations.] To require that employees always have to
engage in the exact same offense as a prerequisite for finding them similarly
situated would result in a scenario where evidence of favorable treatment of an
employee who has committed a different but more serious, perhaps even criminal
offense, could never be relevant to prove discrimination. Common sense as well
as our case law dictate that we reject such an approach.
(Lynn v. Deaconess
Med. Center-West Campus (8th Cir. 1998) 160 F.3d 484, 488 [footnotes
omitted], abrogated in part on other grounds by Torgerson v. City of
Rochester (8th Cir. 2011) 643 F.3d 1031.) As Plaintiff admits, however,
a key element of the Lynn Court’s reasoning was that the employee who
committed a more serious offense—a nurse who was repeatedly found asleep on the
job—appeared to show a similar lack of appropriate judgment that was the basis
for the plaintiff’s discharge for repeatedly arriving late to work. (Id.
at 488-89.) Here, on the other hand, Plaintiff was terminated for an apparent “lack
of judgment relating to her job as a Police Commander and the boundaries that
she should have observed in her off-duty relationships.” (Reply p.8 12-13.) Although
Plaintiff describes the misconduct asserted in these requests as pertaining to
a similar failure to respect ethical and professional boundaries, that analogy
is strained at best. Passing confidential information to a suspect is certainly
more serious than the conduct of which Plaintiff was accused, but that
misconduct, if proven, is more reflective of partiality toward the suspect than
a failure to maintain proper boundaries between one’s personal and professional
lives. The Court is therefore not persuaded that good cause exists for these
requests.
2.
Requests Nos. 3-4
Requests Nos. 3 and 4 seek
documents pertaining to the failure of specific officers to report their
relationships with female subordinates. Plaintiff contends that these materials
are relevant to prove that the Board’s proffered basis for her termination of
an improper relationship with a subordinate was pretextual because LAPD does
not regularly enforce that policy. (Wells Decl. ¶¶ 28-33.) Defendant concedes
that these requests are similar to previous requests for which the Court
ordered in camera review and reincorporates its previous arguments. As
the Court previously found that good cause exists for in camera review of
materials of this nature, the Court reaches a similar conclusion here.
3.
Requests Nos. 5-6
Requests No. 5 and 6 seek materials
relating to allegations of alcohol-related misconduct against other command
staff. Request No. 5 specifically seeks
materials pertaining to allegations that Chief of Police Michel Moore was
intoxicated in public. Request no. 6 seeks materials pertaining to Commander
David Kowalski’s travel to San Diego in 2023. Plaintiff contends these
materials are relevant to prove that the Board’s proffered basis for her
termination for public intoxication was pretextual because other senior staff
have been publicly intoxicated or driving under the influence without consequence.
(Wells Decl. ¶¶ 34-37.)
With
respect to Request No. 5, Defendant states that it will produce to Plaintiff a
“declaration stating that the two complaint files at issue have been reviewed
and in no way relate to any allegations regarding alcohol or intoxication or
any of the other misconduct for which Plaintiff was terminated.” That
determination is not for Defendant to make and is a wholly inadequate response
to the request. The Court therefore finds good cause for in camera
review of the materials sought pertaining to request No. 5.
With respect to Request No. 6,
Defendant argues—without citation to authority—that these materials are not
relevant because they post-date Plaintiff’s termination. The Court is not
persuaded. Subsequent conduct is plainly relevant to prove inconsistencies or
contradictions in the employer’s proffered legitimate reasons for a course of
conduct. (See McRae v. Dep’t of Corrections & Rehabilitation (2006)
142 Cal.App.4th 377, 389 [describing standard for showing pretext].) Plaintiff
has demonstrated good cause for this request.
In Camera Review
The parties
agree that, pursuant to Evidence Code section 1045, the records sought must be
reviewed in camera to determine if the records 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).
CONCLUSION:
Accordingly, Plaintiff’s Pitchess
motion is GRANTED to the extent described herein.
The Court sets an in camera
hearing for Thursday, June 6, 2024, 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.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: April 18, 2024 ___________________________________
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.