Judge Theresa M. Traber, Case Number: 22STCV11178, Date: 2023-10-27 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV11178, Date: 2023-10-27 Tentative Ruling

Case Number: 22STCV11178 Hearing Date: March 27, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 27, 2024 TRIAL DATE: May 14, 2024

CASE: Johnny Smith et al. v. City of Los Angeles, et al.

CASE NO.: 22STCV11178

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

MOVING PARTY: Plaintiffs Johnny Smith, individually and as a Personal Representative of the Estate of Aidan Smith, and Reily Smith

RESPONDING PARTY(S): Defendant City of Los Angeles,

CASE HISTORY:

· 04/01/22: Complaint filed.

· 06/02/22: First Amended Complaint filed.

· 01/17/23: Second Amended Complaint filed.

· 02/16/23: Cross-Complaint filed by County of Los Angeles.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for negligence and wrongful death that was filed on April 1, 2022. In their First Amended Complaint, filed June 2, 2022, Plaintiffs contend that Defendants City of Los Angeles, County of Los Angeles, and others negligently breached their duties to act to prevent the suicide of Plaintiffs’ family member, Aidan Smith (“Aidan”).

Plaintiffs move for discovery of peace officer personnel records pursuant to Evidence Code section 1043.

TENTATIVE RULING:

Plaintiffs’ second Pitchess motion is GRANTED.

The Court sets an in camera hearing for April 26, 2024 at 2:00 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:

Plaintiffs move 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” 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 Court therefore finds that Plaintiffs have complied with the procedural requirements of subdivisions (b)(1) and (b)(2).

Plaintiffs’ Notice of Motion identifies 3 sets of peace officer records sought: (1) complaints against any “involved LAPD employee” related to neglect of duty, including untruthfulness, failure to investigate, obstructing or conspiring to obstruct an investigation, interference with an investigation, or destruction of evidence, from November of 2014 to the present; (2) complaints against LAPD employees related to failure to properly report a fellow LAPD employee’s alleged criminal storage of a firearm from November 2014 to the present; and (3) any documents and correspondence discussing or otherwise contemplating an investigation of Eric Eppolito for the “incident.” (Notice of Motion pp. ii-iii.) “Incident” is defined as “the access of Aidan Smith to LAPD officer service weapons between approximately November 1, 2019 and December 17, 2019, leading to his ultimate death by gunshot.” (Notice p.ii:9-11.) “Involved LAPD Employee” includes Eric and Amira Eppolito, their commanding officers, those officers’ superiors, Plaintiff Johnny Smith, and his partner, as well as Deputy Chief Rodriguez, Commander Hamilton, and Chief Moore. (Id. pp. ii:12-iii:3.)

1. LAPD Employee Misconduct

The Declaration of Gregory Yates attached to the motion states that a key element of Plaintiffs’ case against the City of Los Angeles is whether a formal complaint was lodged or an investigation conducted regarding the decedent’s access to an LAPD service weapon and attempted suicide, for which he was placed on an involuntary hold. (Declaration of Gregory Yates ISO Mot. ¶ 7; SAC ¶¶ 83-108.) Plaintiffs contend that one of the “involved LAPD employees” was downgraded for warning a subordinate of an ongoing investigation in a separate matter, which permitted that subordinate to destroy evidence. (Id. ¶¶ 8-9.) Thus, Plaintiffs argue, the records sought in the first category (request No. 12) are relevant and admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or to attack credibility of witnesses. (Evid. Code § 1101(b).)

Defendant argues that the scope of Plaintiffs’ request is generally overbroad. As the Court has previously stated, although such an objection may be sufficient to warrant limitations on disclosure, the Court is not persuaded, based on the allegations as pled, that they should not be produced for in camera review.

Defendant also argues that Plaintiffs are not entitled to receive entire complaints, merely the names, addresses, and telephone numbers of complainants and witnesses, nor conclusions by any investigating officer. These are standards applicable to disclosure not to the general relevance measure applied in a Pitchess motion. Thus, a party may not be 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.) Similarly, a party may not receive materials from third-party complaints other than the names, addresses, and phone numbers of the complainants absent a showing that further information is required. (See, e.g., Kevin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-29.) Although such materials may be prohibited from disclosure, they are not outside the scope of what should be produced for in camera review. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) Accordingly, the Court disagrees with Defendant’s opposition to the motion on this basis.

2. Firearm Storage Complaints

Plaintiffs argue that the materials sought with respect to this category are relevant to demonstrate a pattern and practice of failing to report or investigate improper storage of a firearms by LAPD employees. (Yates Decl. ¶¶ 7, 10-11.) Plaintiffs contend on information and belief that there has been at least one other incident of a failure to properly report an LAPD employee’s improper storage of a firearm within the relevant period. (Yates Decl. ¶ 11.) Such materials are facially relevant to the allegations in Plaintiffs’ fifth cause of action. (SAC ¶¶ 109-120.)

Defendant again argues that this request is overbroad, and that it is not required to produce more than names, addresses, and telephone numbers of complainants and witnesses. For the reasons stated above, the Court rejects these arguments with respect to whether the materials sought should be produced for in camera review.

Plaintiffs contend that this request is relevant because Johnny Smith testified in deposition that he was informed that the firearm used by Aiden belonged to Eric Eppolito. (Yates Decl. ¶ 12.) According to Plaintiffs, both Eric and Amira’s weapons were likely stored in the same safe and thus were both accessed when Aidan guessed Amira’s birthday as the code to the safe. (See SAC ¶ 31.) Defendant argues Plaintiffs’ basis for this request is mere “speculation” in a Plaintiff’s statements are more properly characterized as a contention made “on information and belief,” which is all that is required to demonstrate good cause for in camera review.

Defendant also argues that this request transforms the motion into an improper motion to compel because it is seeking records that were sought in Plaintiffs’ first Pitchess motion. This argument is based entirely on the implication in Plaintiffs’ moving papers that these records were expected to be part of Defendant’s previous Pitchess production with respect to Eric Eppolito’s personnel file. (Motion p. 5:8-12.) Defendant’s assumption is flawed in that records evidencing discussion or contemplation of an investigation would not necessarily be part of an officer’s personnel file, and thus the requests are not identical on their face. Further, Defendant cites no authority standing for the position that a motion to compel is the sole method authorized by law to obtain materials which were expected but not received, nor that supplemental discovery requests of narrower scope and identifying materials sought with greater specificity are at all improper.

The Court therefore finds that Plaintiffs have demonstrated good cause for in camera review of the materials sought.

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, Plaintiffs’ second Pitchess motion is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 27, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court