Judge Theresa M. Traber, Case 20STCV19714 2023-01-27 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV19714, Date: 2023-01-27 Tentative Ruling

Case Number: 20STCV19714 Hearing Date: January 27, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 27, 2023 TRIAL DATE: March 18, 2024

CASE: Brown v. City of Los Angeles

CASE NO.: 20STCV19714

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

MOVING PARTY: Plaintiff Raymond Brown

RESPONDING PARTY(S): Defendant City of Los Angeles

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for whistleblower retaliation that was filed on May 23, 2020. Plaintiff alleges that he was retaliated against for making internal complaints regarding racially discriminatory remarks made by one of his superiors as an officer of the Los Angeles Police Department.

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 March 3, 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 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.

DISCUSSION:

Plaintiff moves for discovery of peace officer personnel records pursuant to Evidence Code section 1043. Specifically, Plaintiff seeks documents relating to the selection of Officers (1) Mike Lopez, (2) Dave Marroquin, and (3) Jeff Lee over Plaintiff for the position of LAPD Media Relations Division Police Officer III. Plaintiff also seeks documents relating to (4) any LAPD Internal Affairs investigation into any of the allegations in Plaintiff’s Complaint, and (5) any documents sent or received by Josh Rubenstein concerning the Police Officer III positions which Plaintiff was denied, or the selection process concerning those positions.

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 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 in connection with these requests relate directly to Plaintiff’s claim for whistleblower retaliation under Labor Code section 1102.5, insofar as they are relevant to prove that Defendant’s proffered reasons rejection of Plaintiff for promotion were pretextual. (Declaration of Diana Wells ISO Mot. ¶¶ 25, 30-31.)

In opposition, Defendant contends that Plaintiff has not shown good cause for the production of the documents requested. With respect to Requests Nos. 1-3, Defendant contends that Plaintiff has not presented evidence beyond the allegations in the Complaint that show that Officers Lopez, Marroquin, and Lee were the officers selected for the positions sought by Plaintiff. Even if that were a valid basis to limit production of the documents requested in discovery—and Defendant cites no authority that so states—it certainly would not be a valid basis to limit the scope of documents to be made available for in camera review.

With respect to Request No. 4, Defendant contends that Plaintiff has not shown good cause for the full scope of production requested because Plaintiff has not established materiality. Our Supreme Court described the evaluation of materiality thusly:

Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial?

(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027 [emphasis added].) Defendant argues that Plaintiff has not satisfied the requirements of Warrick as to “rough notes,” “all materials used and/or considered during the investigation,” and “all materials related to the disposition of investigation” for all investigations into “allegations of the instant lawsuit.” Plaintiff contends that Warrick is inapplicable because the underlying issue was the production of documents pursuant to a Pitchess motion by a criminal defendant. Nothing in Warrick invites such a narrow reading of the text. However, even under the Warrick standard, the Court cannot say that the request does not demonstrate materiality on its face. Plaintiff is seeking documents which are definitionally connected to Plaintiff’s claims, and only those documents which are connected to Plaintiff’s claims. The Court similarly cannot say that these materials are not likely to lead to information that would support Plaintiff’s claims on their face. Defendant’s conclusory assertion as to the insufficiency of Plaintiff’s proffered theory of admissibility as impeachment evidence against witnesses at trial is also unpersuasive, especially as Defendant’s claim is grounded on no authority whatsoever. At minimum, Plaintiff has demonstrated a valid basis to require those documents to be made available for in camera review.

Finally, with respect to Request No. 5, Defendant asserts that Plaintiff has not shown good cause for the request, as it is overbroad and a “fishing expedition” for “irrelevant information.” The request seeks documents which pertain to the Police Officer III positions at the center of the Complaint and were sent or received by one of the principal individuals identified in the Complaint. A conclusory assertion without citation to any law that these documents are not relevant is entirely unpersuasive. Plaintiff has demonstrated good cause for in camera review of these documents.

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).

Protective Order

Defendant contends that any information that the Court concludes should be disclosed should be 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 redaction and limitations on disclosure, pursuant to Evidence Code section 1045 subdivisions (d) and (e), of any documents to be produced.

CONCLUSION:

Accordingly, Plaintiff’s Pitchess motion is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 27, 2023 ___________________________________

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.