Judge Theresa M. Traber, Case 21STCP00687 2022-08-24 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCP00687, Date: 2022-08-24 Tentative Ruling

Case Number: 21STCP00687 Hearing Date: August 24, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 24, 2022 TRIAL DATE: NOT SET

CASE: California Department of State Hospitals v. California State Personnel Board, et al.

CASE NO.: 21STCP00687

(1) PITCHESS MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL RECORDS PURSUANT TO EVIDENCE CODE §1043;

(2) MOTION TO SEAL CONFIDENTIAL PEACE OFFICER RECORDS.

MOVING PARTY: (1) & (2)Petitioner California Department of State Hospitals

RESPONDING PARTY(S): No response on eCourt as of August 18, 2022.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a Petition for Writ of Administrative Mandate filed on March 3, 2021. Petitioner seeks a writ setting aside a decision by Respondent State Personnel Board and ordering the Respondents to adopt an Administrative Law Judge’s decision affirming Petitioner’s dismissal of a hospital police officer for cause.

Petitioner now moves for discovery of peace officer personnel records pursuant to Evidence Code section 1043 and for an order permitting their filing under seal.

TENTATIVE RULING:

Petitioner’s Pitchess Motion is GRANTED. The Court authorizes disclosure of the records identified above for use in these proceedings, subject to the Motion to File Under Seal for those same documents.

Motion to File Under Seal is GRANTED.

Pitchess Motion for Discovery of Peace Officer Personnel Records

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

Analysis

Penal Code section 832.7(a) states that the personnel records of peace officers, and information obtained from those records, are confidential and may not be disclosed in any criminal or civil proceeding except by discovery pursuant to Evidence Code sections 1043 and 1046. (Penal Code § 832.7(a).) Under Evidence Code 1043, a party may seek disclosure of these records by filing a regularly noticed motion with the appropriate court. (Evid. Code § 1043(a).) The 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.)

Petitioner has identified the proceeding in which discovery is sought in the caption of the motion, as it is this proceeding in which discovery is sought. The Notice of Motion also states that Petitioner is seeking discovery of Officer Fabian Barraza’s personnel records, which have been filed by Petitioner under conditional seal. (Notice of Motion p. 2.) The Notice of Motion also states the time and place of this hearing. (Id. p. 1.)

Further, the Notice of Motion also identifies the records sought, consisting of (1) the Administrative Record of the State personnel Board’s Official Hearing Transcripts and Evidence related to Fabian Barraza v. Department of State Hospitals, Case No. 19-0975A; and (2) enumerated and selected excerpts from the Administrative Record, including Office of Law Enforcement Support Complaints, Daily Activity and Incident Reports related to a Patient M, Notices of Administrative Interrogations and records of those interrogations, email from Officer Barraza regarding the OLES complaints, a DSH letter from March 11, 2019 revoking Officer Barraza’s peace officer status, transcriptions of interrogations of Officers Barraza and Dan Gurule, a proposed decision from Administrative Law Judge Douglas Purdy affirming Barraza’s dismissal, and the SPB’s Decision and Order. (Notice of Motion pp. 2-3.)

The Declaration of Ernesto J. Fong in support of this motion states that most of the documents used in support of the petition are confidential personnel records, and that Petitioner will use documents from Officer Barraza’s personnel file to support its Memorandum of Points and Authorities in support of this motion. (Declaration of Ernesto J. Fong ISO Mot ¶ 2.) Thus, Petitioner’s counsel states, the documents at issue are material because they are necessary for the parties in the lawsuit to advance their arguments, as they are all part of the evidence used in the SPB’s evidentiary hearing that ultimately gave rise to this action. (Id.) The Declaration states that the Respondents and Officer Barraza himself both have possession of the documents, as well as Petitioner. (Id. ¶ 4.) Considering the basis for the Petition is the SPB’s decision following an evidentiary hearing on Officer Barraza’s dismissal due to his alleged conduct, the Court finds that the documents sought are material to the Petition on their face and that good cause exists for the disclosure of these documents.

Under Evidence Code section 1045(a), if the Court finds that good cause has been shown, the Court must then review the pertinent documents in chambers, in conformity with the requirements of Evidence Code section 915 and disclose information falling within the statutorily defined standards of relevance. (Evid. Code § 1045(a).)

After reviewing the documents in camera, the Court finds that the following documents are relevant and may be disclosed:

(1) Excerpts of the Official State Personnel Board’s (“SPB”) Hearing Transcripts, Volumes I – VI;

(2) Office of Law Enforcement Support (“OLES”) Complaints; Daily Activity Reports related to the watch of Patient M; Incident Reports related to Patient M; Notices of Interviews of Officer Barraza; Administrative Interrogation records; email communications from Officer Barraza regarding the OLES Complaints; DSH Letter dated March 11, 2019 revoking Officer Barraza’s peace officer status; transcriptions of recorded interviews of Officer Barraza; Notice of Findings regarding Whistleblower Complaint, Barraza v. DSH et al., SPB Case No. 19-0475W; and Board Decision and Order in Barraza v. DSH, SPB Case No. 19-0975A.

Accordingly, the Pitchess motion is granted in its entirety.

Motion to File Records Under Seal

California Rules of Court, rule 2.550, subdivision (c) states: “Unless confidentiality is required by law, court records are presumed to be open.” Nevertheless, a party may move to seal records pursuant to Rules 2.550-2.551. California Rules of Court, rule 2.551, subdivision (b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”

The procedures set forth in Rules 2.550 and 2.551 “do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules and do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.”

California Rules of Court, rule 2.550, subdivision (d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

(CRC 2.550(d) [Emphasis added].)

The procedure set forth in California Rules of Court, rules 2.550 and 2.551, codified the standards announced by the California Supreme Court in NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178. In that case, the Supreme Court recognized the public’s constitutional right to access to court proceedings. The rationales for such a right were described as follows: “[P]ublic access plays an important and specific structural role in the conduct of such proceedings. Public access to civil proceedings serves to (i) demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings; (ii) provide a means by which citizens scrutinize and check the use and possible abuse of judicial power; and (iii) enhance the truthfinding function of the proceeding. [Citation.]” (Id. at p. 1219).

A reasoned decision about whether to seal public court records cannot be made without submissions “(1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations.” (HB Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894). The party seeking a sealing order must shoulder the burden of presenting information on the first two steps as he “is presumptively in the best position to know what disclosures will harm him and how.” (Ibid.). “This means at a minimum that the party seeking to seal documents, . . . , must come forward with a specific enumeration of the facts sought to be withheld and the specific reasons for withholding them.” (Ibid.).

The Court finds that Petitioner has satisfied its burden of demonstrating the propriety of an order sealing the pertinent records and makes the following findings:

1. The confidential nature of peace officer personnel records has been declared by the Legislature and is protected by legal procedures requiring oversight by the courts before such documents are disclosed in discovery. The Court finds that the protections accorded peace officer personnel records outweighs the general public’s interest in having access to court records.

2. The overriding interest in protecting peace officer personnel records supports sealing the records lodged with the Court, and the Court finds that there is a substantial probability that this overriding interest will be prejudiced if the Court does not order the records to be sealed.

3. The proposed sealing is tailored to extend only to the peace officer personnel records necessary for the disposition of this case. The Court is aware of no less restrictive means available to achieve the overriding interest of protecting against the disclosure of peace officer personnel records.

Based on these findings, the Court grants Petitioner’s motion to seal and orders that the peace officer personnel records disclosed via the Pitchess motion shall be accepted for filing under seal, now and in connection with the parties’ briefing on the merits.

CONCLUSION:

For the reasons explained above, Petitioner’s Pitchess Motion is GRANTED. The Court authorizes disclosure of the records identified above for use in these proceedings, subject to the Motion to File Under Seal for those same documents.

Petitioner’s Motion to File Records Under Seal is also GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 24, 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.