Judge: Theresa M. Traber, Case: 19STCV05254, Date: 2024-11-08 Tentative Ruling

Case Number: 19STCV05254    Hearing Date: November 8, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 8, 2024                 TRIAL DATE: January 28, 2025

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 misconduct by Plaintiff. Plaintiff alleges that her termination was in retaliation for whistleblowing regarding Defendant’s differential treatment of other police officers arising from their misconduct.

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 Friday, December 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.

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DISCUSSION:

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

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” showing 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).

            Plaintiff’s Notice of Motion identifies 2 sets of records sought: (1) the transcript for the Board of Rights’ December 4, 2018, in camera review of Pitchess materials requested by Plaintiff; and (2) the transcript for the Board of Rights’ December 10, 2018 in camera review of Pitchess materials.

            Plaintiff contends that these transcripts are material to the instant case because they would tend to show the Board of Rights’ reaction to Plaintiff’s 2018 Pitchess motion, and, therefore, whether the Board of Rights’ ultimate decision to terminate Plaintiff was motivated by retaliatory animus. (See Declaration of Diana Wells ISO Mot. ¶¶ 8-16.) Defendant, in opposition, argues that Plaintiff cannot demonstrate the materiality of these documents except by relying upon statements by the Board of Rights Members during the hearing on the Pitchess motion, which Defendant contends cannot serve as evidence of retaliatory animus. Defendant’s argument is grounded on inapposite authority governing bias or partiality motions, such as motions to disqualify. (Liteky v. United States (1994) 510 U.S. 540, 555 [“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”].) This motion is not a motion to disqualify which would be subject to these authorities. Further, the Court’s ruling on Defendant’s Motion for Protective Order has no bearing on the issue presented by Plaintiff’s Pitchess request, as the Court’s ruling on that earlier motion addressed whether Plaintiff had met the heightened showing to depose a quasi-judicial officer. (See September 11, 2024 Minute Order.) Here, Plaintiff is seeking disclosure of existing transcripts.

            Nor is the Court persuaded by Defendant’s assertion that the central issue in this action was previously decided by a writ proceeding and therefore barred by the doctrine of collateral estoppel, as Defendant makes no effort to demonstrate that each element of the doctrine is met. (See DKN Holdings, LLC v. Faerber (2015) 61 Cal.4th 813, 823-25.)

            The transcripts which Plaintiff seeks via this motion are potentially material to the action on their face, as their contents are direct evidence of the intentions of the Board of Rights. The Court therefore finds that Plaintiff has demonstrated good cause for in camera review of these records to determine their relevance.

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 both of the following:

(1) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(2) 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 Friday, December 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:  November 8, 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.