Judge Theresa M. Traber, Case Number: 21STCV14409, Date: 2023-11-02 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV14409, Date: 2023-11-02 Tentative Ruling

Case Number: 21STCV14409 Hearing Date: November 2, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 2, 2023 TRIAL DATE: NOT SET

CASE: Walter Le Vaughn Mann, Sr. v. County of Los Angeles

CASE NO.: 21STCV14409

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

MOVING PARTY: Plaintiff Walter Le Vaughn Mann, Sr.

RESPONDING PARTY(S): Defendant County of Los Angeles

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for employment discrimination and whistleblower retaliation that was filed on April 15, 2021. Plaintiff alleges that he was subjected to extensive retaliation for reporting serious financial misconduct within the Los Angeles County Probation Department, including a demotion and denial of accommodations for his medical condition.

Plaintiff moves for discovery of probation officer 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 December 7, 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 probation officer 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).)

Challenge to Service

Defendant contends that Plaintiff failed to give written notice to the government agency that has custody and control of the records sought, as required by Evidence Code section 1043(a). Defendant’s argument is specious. The Los Angeles County Probation Department is a division of the County of Los Angeles, who is the Defendant in this case. Defendant does not dispute that it received written notice of this motion. Therefore, Plaintiff’s motion is not procedurally defective on this basis.

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” that 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 seeks 25 sets of documents from the personnel files of County of Los Angeles Probation Department officers Adam Bettino, Robert Smythe, Hannia Bocklen, Nancy Neville, Ron Barrett, and himself, divided into five categories. These categories are (1) complaints made by Plaintiff about others (Requests Nos. 1, 2, 6-8, 11, 14, and 17); (2) documents related to an investigation of purchasing improprieties regarding a professional development training in June of 2019 (Nos. 3, 5, 12, and 15); (3) documents regarding possible complaints made against Plaintiff (Nos. 4, 9-10, 13, 16, and 18): (4) documents pertaining to the adverse employment actions alleged in the Complaint (Nos. 5, 22-25); and (5) documents pertaining to any investigation of the claims asserted in this action, or with respect to Plaintiff’s Department of Fair Employment and Housing complaint and Government Tort claim. (Nos. 19-21.)

The Declaration of Pouya Chami in support of the Motion states upon information and belief that Plaintiff and the other officers named were involved in an investigation of purchasing improprieties regarding a professional development training event at Shutters on the Beach Hotel in Santa Monica, California on June 14, 2019. (Declaration of Pouya Chami ISO Mot. ¶ 12.) Plaintiff’s counsel further states—again on information and belief—that the records will memorialize Plaintiff’s complaints and Defendant’s response thereto regarding the allegations in the pleadings. (Id. ¶ 13.)

Defendant, in opposition, asserts that Plaintiff has not demonstrated good cause for the production and that there is no compelling need for the records because Defendant concedes that the Plaintiff’s complaints regarding the Shutters incident were substantiated. Defendant cites nothing showing that it has conceded anything in this case, and the factual question of whether Plaintiff’s complaints were meritorious has not been presented to the Court. The Court is not persuaded by Defendant’s conclusory, unsupported assertions concerning the motion as a whole.

Defendant also offers specific objections to some of the categories of documents sought.

1. Complaints Made by Plaintiff (Requests Nos. 1, 2, 6-8, 11, 14, 17)

Defendant objects to this category arguing, if responsive documents exist, Plaintiff “has that information or certainly could get it in a less intrusive fashion.” (Opposition p. 6:16.) Defendant also asserts that these requests invade the privacy of the officers whose records are sought. Defendant supports neither assertion with evidence nor explanation of how the cited legal authority applies to the facts. Bare conclusions are insufficient to demonstrate the documents should not be produced for in camera review.

2. Documents Related to Shutters Incident Investigation (Requests Nos. 3, 5, 12, and 15)

Defendant asserts, without any explanation, that Plaintiff’s request includes matters privileged under the deliberative process. Defendant offers no explanation of the deliberative process privilege’s application here nor the interest in nondisclosure of the materials sought. (See Citizens for Open Gov’t v. City of Lodi (2012) 205 Cal.App.4th 296, 305.) Defendant bears the burden of demonstrating the application of the privilege. (See Id. at 306.) A conclusory statement that the privilege applies is not sufficient.

3. Documents Regarding Possible Complaints Against Plaintiff (Requests Nos. 4, 9-10, 13, 16, 18)

Defendant does not object to production of documents responsive to these requests following in camera review by the Court.

4. Documents Pertaining to Adverse Employment Actions Alleged in Complaint (Requests Nos. 5, 22-25)

Defendant asserts these categories are the subject of ordinary discovery not involving probation officer records. The Court disagrees. Plaintiff’s notice of motion plainly states that it seeks documents responsive to these categories contained within probation officer personnel records that are protected by Evidence Code section 1043 et seq. Defendant has not demonstrated that these documents should not be produced for, at minimum, in camera review.

5. Documents Pertaining to Investigation of Plaintiff’s Claims (Requests Nos. 19-21)

Defendant objects to these requests as dealing with “absolutely privileged documents that are protected by attorney client, attorney work product and other privileges.” (Opp. p. 5:26-27.) These requests seek:

(19) Any and all documents pertaining to any and all witness statements of any employee of the County of Los Angeles pertaining to any allegation in the subject lawsuit filed by Plaintiff against Defendant during the period of April 1, 2019 to the present.

(20) Any and all documents pertaining to any investigation Defendant County of Los Angeles conducted concerning Plaintiff’s Government Tort Claim dated October 20, 2020.

(21) Any and all documents pertaining to any investigation Defendant County of Los Angeles conducted concerning Plaintiff’s DFEH complaint dated October 20, 2020, DFEH Matter Number: 202010-11673130.

(Notice of Motion p. 4:21-28.) These requests, on their face, encompass documents embraced by the attorney-client privilege and the work product doctrine because they include all documents pertaining to investigation of Plaintiff’s allegations after they were formally made, without limitation. Plaintiff does not address Defendant’s objection to these requests in his reply brief.

That said, although the requests encompass privileged materials on their face, not all materials that are responsive to these requests are necessarily privileged. The Court will therefore limit production in response to these requests to materials not subject to the attorney-client privilege and/or the work product doctrine, but will require Defendant to produce a privilege log identifying any materials not produced.

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:

* * *

(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).

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 address this request in his reply brief. Moreover, 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 to the extent described herein.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 2, 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.