Judge: Thomas D. Long, Case: 21STCV31539, Date: 2022-08-25 Tentative Ruling

Case Number: 21STCV31539    Hearing Date: August 25, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 25, 2021, Plaintiff Vincenzo Averaimo filed this action against Defendant City of Los Angeles, alleging discrimination, retaliation, and failure to take all reasonable steps to prevent discrimination/retaliation.  On July 28, 2022, Plaintiff filed a Pitchess motion under Evidence Code section 1043 et seq. and Penal Code section 832.5.

A party may discover a law enforcement officer’s personnel file through a Pitchess motion.  (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)  The Pitchess motion has been partly codified in Evidence Code, section 1043, which makes law enforcement personnel records, public complaints against officers, and reports relating to those public complaints privileged and subject to disclosure only by noticed motion.  (Evid. Code, § 1043.)  The statutory scheme governing Pitchess motions is set forth in Evidence Code sections 1043 to 1047 and Penal Code sections 832.5, 832.7, 832.8.  (See People v. Mooc (2001) 26 Cal.4th 1216, 1226.)  These statutes provide the exclusive means of discovery of such records in both criminal and civil proceedings.  (County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1609-1610.)

“[A] party seeking discovery of a peace officer’s personnel records must follow a two-step process.  [Citation.]  First, the party must file a written motion describing the type of records sought, supported by ‘[a]ffidavits showing good cause for the discovery . . . , 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.’  [Citation.]  This initial burden is a ‘relatively relaxed standard [].’  [Citation.]  Information is material if it ‘ “will facilitate the ascertainment of the facts and a fair trial.”  [Citation.]’  [Citation.]  ‘[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the “materiality” component of that section.’  [Citation.]”  (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085-1086 (Haggerty).)  The motion must provide a “specific factual scenario” that establishes the materiality of the discovery sought.  (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.)  The documents must be requested “with adequate specificity” to preclude the possibility that the moving party is engaged in a “fishing expedition.”  (People v. Memro (1985) 38 Cal.3d 658, 678.)

“Second, if ‘the trial court concludes [a party] 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 [requesting party’s] motion . . . .  The trial court “shall examine the information in chambers” [citation], “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 defendant “such information [that] is relevant to the subject matter involved in the pending litigation.”  [Citations.]’ ”  (Haggerty, supra, 117 Cal.App.4th at p. 1086.)

Under the two-step process, “[o]nce a court conducts an in camera hearing, section 1045 governs the documents that may be disclosed.”  (Haggerty, supra, 117 Cal.App.4th at p. 1087.)  Section 1045, subdivision (a) allows “the right of access to records of complaints, or investigation of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer . . . participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation.”

Plaintiff requests 4 categories of documents.  Plaintiff’s counsel declares he believes the Los Angeles Police Department has custody of the records and information sought by Plaintiff.  (Nair Decl. ¶ 13.)  Counsel believes the requested documents will show that the investigation was biased and/or inadequate or be an admission of wrongdoing.  (Id. at ¶ 8.)  Plaintiff believes the investigation requests are material because they will demonstrate the adequacy of the investigation into the FEHA violations alleged, and show what steps, if any, the Defendant took in response to the findings.  (Ibid.)  Recorded witness statements will aid in cross-examination of witnesses at trial, the questions asked will prove whether Internal Affairs was seeking the truth or sweeping it under the rug, and the statements will help Plaintiff examine whether the summaries are accurate.  (Id. at ¶ 9.)  Plaintiff has no other method of obtaining the documents.  (Id. at ¶ 10.)

The Court rules as follows:

A.        Request No. 1

Request No. 1 seeks “[a]ny Los Angeles Police Department (‘LAPD’) investigation(s) into any and/or all of the allegations of the instant lawsuit.  Such writings may include, but are not limited to: any and all materials used and/or considered during the investigation, including but not limited to, addenda items, recorded witness interviews and/or statements (including audio, video, and/or digital recordings and transcripts thereof), photos, correspondence, witness lists, rough notes, the investigator’s log; and any and all materials related to the disposition of investigation, including but not limited to, any disciplinary actions recommended or taken; any response by the accused, and any other follow-up or action.”

Evidence Code section 1043 states a party seeking discovery of “officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records” is to file a Pitchess motion.  Section 832.5, subdivision (a) requires agencies and departments employing peace officers to establish a procedure to investigate complaints by members of the public against their personnel.  Section 832.5, subdivision (b) requires a department to retain such public “[c]omplaints and any reports or findings relating to these complaints for a period of at least five years.”  Because section 832.5 addresses complaints by members of the public, it does not apply here to Plaintiff’s internal complaints.  Section 1043 does not state that all documents relating to the investigation of a complaint made by an officer are subject to the Pitchess process, but instead allows discovery of officer personnel records.  (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655 [explaining “Evidence Code section 1043 requires the party seeking the discovery of peace . . . officer personnel records or information from those records to file a motion with the court . . . .”].) 

This request is not limited to any particular officer’s personnel records and seeks materials beyond what is available through the Pitchess process.  To the extent documents relating to investigations are not contained within personnel records, Plaintiff can seek discovery of them through the regular discovery process.

Because the request does not identify any officer personnel records, the motion is denied.

B.        Request Nos. 2-4

Request No. 2 seeks “[a]ny and all writings relating to Internal Affairs complaint investigation CF NO 19-001689, along with all audio recordings of witnesses interviewed.  This personnel complaint involved harassment which Plaintiff complained about.”  Request No. 3 seeks the same for Internal Affairs complaint investigation CF NO 19-001720.  Request No. 4 seeks the same for Internal Affairs complaint investigation CF NO 19-003448, involving a personnel complaint “generated against Plaintiff regarding his failure to properly report an off duty incident which would reveal his sexual identity”

These requests are vague, too broad, seek documents beyond those available under Evidence Code section 1043 or Penal Code section 832.5, and does not request any particular officer’s personnel records.

The motion is granted only as to these documents contained in Plaintiff’s personnel records and is otherwise denied.

C.        Conclusion

In sum, the motion is GRANTED IN PART and DENIED IN PART.

In-Camera Hearing of Personnel Records from City of Los Angeles is scheduled for _________ at 09:00 AM in Department 48 at Stanley Mosk Courthouse.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 25th day of August 2022