Judge Virginia Keeny, Case Number: 23STCV11211, Date: 2025-02-20 Tentative Ruling

Responding Party: Defendants City of Huntington Park; Officers Paul Munoz & Joshua Volasgis

On March 6, 2024, Plaintiff A.L, by and through her guardian at litem, Myissha Lowe (hereinafter “Plaintiff”) filed the underlying wrongful death action against Defendants City of Huntington Park; Officer Paul Munoz, Officer Joshua Valasgis, and Does 1-10 (collectively “Defendants) for the following four causes of action: (1) wrongful death (CCP § 377.60); (2) assault and battery; (3) negligence; and (4) violation of Bane Civil Rights Act (CC §.52.1). Plaintiff filed the First Amended Complaint (“FAC”), which is now the operative complaint, on May 6, 2024.[1] Plaintiff further prays for punitive damages.

On January 26, 2023, Plaintiff alleges that Defendants Huntington Park Police Department (“HPPD”); and Officers Paul Munoz and Joshua Volasgis (collectively “Officer Defendants”) shot and killed Decedent, Anthony Lowe—a physically disabled man and recent double amputee—needing a wheelchair to ambulate. (FAC, pg. 2.) Plaintiff contends Decedent Anthony Lowe was suffering a mental health crisis at the time, due to losing both his legs only several months prior. (DeSimone Decl., ¶ 7.) The same day, Decedent Anthony Lowe apparently had an encounter with a member of the public which caused Officers Paul Munoz, Joshua Volasgis, Freddy Ramireiz, and Tomas Perez to attempt to make contact and arrest him. Officers had received notice Decedant Lowe was involved in a stabbing. Ultimately, the Officers shot Decedent Lowe eleven (11) times, resulting in his death. (FAC, pg. 2.)

Plaintiff A.L. Is Decedent’s minor child who brings this action in her individual capacity and as successor in interest pursuant to California State Law. (Id.) Plaintiff contends the use of deadly force was not justified, as Decedent Lowe was not posing an imminent threat of death or serious injury to the officers or others at the time of the shooting such that the excessive and deadly force was warranted. (Id.) Moreover, Decedent Lowe was thrown from his wheelchair and although he was brandishing a knife, he was hobbling away from the Officers and not towards them at the time he was shot.

On August 20, 2024, Plaintiff A.L. filed the instant Notice of Motion and (Pitchess) Motion for Production of Evidence Pursuant to Evidence Code Section 1040 et. seq. (“Mot.”); a Proposed Order; and the Declaration of V. James DeSimone (“Simone Decl.”). On February 5, 2025, Defendants filed Defendants’ Joint Opposition to Plaintiff A.L.’s Pitchess Motion. On February 11, 2025, Plaintiff filed her Reply, as well as the Declaration of a member of Plaintiff’s Counsel, Ryann E. Hall, including Exhibits (A)-(C).

1. The Pitchess Motion is granted subject to an in-camera review and subject to a proposed protective order by Defendants for the Court’s review.

In general, the personnel records of peace officers are protected from discovery pursuant to Penal Code § 832.7. The exclusive means for obtaining these materials is through Pitchess Motion. (County of Los Angeles v. Superior Court (1990) 219 Cal. App. 3d 1605, 161.) A Pitchess Motion shall (1) identify 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 record, and the time and place at which the motion for discovery or disclosure shall be heard, (2) describe the type of records or information sought, and (3) present affidavits showing good cause for the discovery or disclosure sought. (Evid. Code § 1043(b).)

The standard of “good cause” required for Pitchess disclosure is “relatively relaxed” to “insure the production” for trial court review of “all potentially relevant documents”. (People v. Gaines (2009) 46 Cal.4th 172,179.) Good cause for discovery exists when the party shows (1) materiality to the subject matter of the pending litigation and (2) a reasonable belief that the agency has the type of information sought. (Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413.) A sufficient threshold showing is established if the party seeking records demonstrates through affidavits a “plausible factual foundation” for how the records are material to the subject matter of the pending litigation. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655.) In assessing the showing, the trial court determines whether a plausible factual foundation has been established.

If the trial 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 under Evid. Code § 1045.

Plaintiff satisfies the requirement to provide sixteen-court days’ notice of Plaintiff’s hearing on her Pitchess motion to the Defendants, as well as Defense Counsel because Notice was filed on August 20, 2024 and the underlying Pitchess hearing is scheduled for February 20, 2025. (DeSimone Decl., ¶ 2.)

The Court also notes that Plaintiff’s Reply Declaration includes Exhibits (A)-(C) which introduces new evidence not presented in Plaintiff’s moving papers. Defendants do not object but the Court reserves its right to preclude such exhibits for the purposes of this motion if it deems necessary. (See Hall Decl.)

Given this matter is set for jury trial on April 14, 2025, the close of written discovery is March 14, 2025.

Plaintiff moves this Court for an order compelling Defendant City of Huntington Park (hereinafter “City”) to produce evidence pursuant to Evidence Code section 1040 et seq., including Officers Paul Munoz, Joshua Volasgis, Officers Freddy Ramirez, and Tomas Perez personnel records and documents pertaining to complaints about said individual Defendants. (Mot., pg. 3.) Thus, Plaintiff requests the following documents and record pursuant to both CCP section 1005, subdivision (b), and Evidence Code section 1043, subdivision (a):

Complaints against Officers Paul Munoz, Joshua Volasgis, Freddy Ramirez, and Tomas Perez including complaints of excessive force, dishonesty, illegal and/or unconstitutional conduct, negligence, and reckless behavior, and all investigations related thereto; and Personnel files for Officers Paul Munoz, Joshua Volasgis, Freddy Ramirez, and Tomas Perez, including any training, performance reviews, promotion or demotion received, and disciplinary action taken against said Officers. I am informed and believe that Defendant City of Huntington Park is in possession of said documents.

Plaintiff moves the Court on the grounds that the evidence sought by Plaintiff is directly relevant to the issues in the instant case and that good causes exists warranting its production. (Mot., pg. 3.) Counsel DeSimone further declares that the documents are not being made for an improper purpose or intended to harass Defendants. (DeSimone Decl., ¶ 4.) Plaintiff contends that California law is clear and unequivocal: “[D]ocumentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery.” (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021 ) (citing People v. Gill (1997) 60 Cal.App.4th 743, 749.)

Plaintiff’s First Amended Complaint (hereinafter “FAC”) sets forth facts demonstrating the officers’ pattern of using excessive force and violating civil rights of innocent civilians blatantly, willfully, and with clear disregard for the safety of others. The FAC further alleges that Defendant City had actual knowledge of the unfitness of the Officers. Indeed, Defendant Officer Volasgis was involved in the shooting death of Charley Leundeu Keunang on March 1, 2015, in Skid Row, Downtown Los Angeles. Thus, Defendant City hired Officers who are not qualified to be police officers. Accordingly, Defendant City and its police department, caused the death of Anthony Lowe by hiring Officers Paul Munoz, Joshua Volasgis, Freddy Ramirez, and Tomas Perez, who are incompetent and not well trained. (Mot., pg. 8.)

Plaintiff further alleges in the FAC that Officers did not form a tactical plan nor attempt to address Decedent Lowe’s disability in any way when they decided to make contact with him. (FAC, ¶ 17.) Furthermore, Plaintiff argues that at the time the Officers made contact, Lowe was not an imminent threat to anyone, including the Officers and when they approached Lowe, Lowe moved away from the Officers. (FAC, ¶ 18.) Moreover, after one of the Officers grabbed the back of Lowe’s wheelchair and threw it to the side, Lowe was thrown onto the ground at which time the Officers drew their weapons and pointed their guns at Lowe. (FAC, ¶¶ 20-21.) Although. Lowe had a knife in his hand—throughout the encounter—Lowe continued to retreat while the Officers remained more than six feet away from him when force was used. (FAC ¶ 23.)

Plaintiff asserts the requested records are directly relevant to Plaintiff’s claims that Officers Paul Munoz, Joshua Volasgis, Freddy Ramirez, and Tomas Perez engaged in a practice and custom of excessive force, whether they were dishonest about their justification for said excessive force, whether Defendant City took any corrective action in response to the usage of said excessive force, including imposing any disciplinary action against said officers, and whether Defendant City took all reasonable steps to prevent usage of any further excessive force by said officers. The requested records are also directly relevant to Plaintiff’s allegations that Defendant City is responsible for its complete failure to adequately train or otherwise prevent its officers from committing illegal acts and abusing their inherent powers as officers of the law. (DeSimone Decl., ¶ 5-15.)

Plaintiff contends that she has fully complied with Evidence Code section 1043’s “relatively low threshold” for discovery. (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 395 (“section 1043 embodies a ‘relatively low threshold’ for discovery . . .”)) Also, as required by Evidence Code section 1043, Plaintiff has provided proper notice to Defendants City of Huntington Park and the individual Officers, has set forth the categories of records sought, and has identified the specific records involved. The attached Declaration of V. James DeSimone establishes good cause for the requested documents, relates the “materiality” of the requested documents to the subject litigation, and states upon reasonable belief that the Defendant City of Huntington Park has the records sought. (Evid. Code, § 1043, subd. (b); see DeSimone Decl.) Nothing more is required to satisfy Evidence Code section 1043. (Evid. Code, § 1043; Fletcher, supra, 100 Cal.App.4th at 395.)

In Opposition, Defendants argue that Plaintiff does not meet the “strict requirements” of Evidence Code section 1043(b) because Defendants argue that Plaintiff’s counsel fails to set forth the requisite specific factual scenario demonstrating a plausible foundation for police misconduct as to the individual officers. (Opp., pgs. 2-3.) Thus, Plaintiff fails to meet the standard for the requested discovery and the private interests of police personnel records outweighs Plaintiff’s interest in disclosure. (Id, pg. 3.) Defendant emphasizes that Evidence Code section 1043(b) requires that a party make a two threshold showing to obtain discovery of confidential peace officer personnel records: (1) description of the type of records or information sought; and (2) affidavits showing good cause for discovery or disclosure, setting forth the materiality od the documents sought to the pending litigation and stating upon reasonable belief that the government agency has such records. (Id., pg. 4.) Though, even when these two threshold showings are met, the scope of discovery is limited to records which are relevant. (Id.) Accordingly, Defendants argue Plaintiff’s request here is overbroad.

Defendant provides that the Court has discretion to deny discovery if there is no showing which furnishes a “specific factual scenario” which establishes “plausible factual foundation” to justify inspection.” California Highway Patrol v. Superior Court (Luna), 84 Cal.App.4th 1010, 1021 (2000); City of Alhambra v. Superior Court, 205 Cal.App.3d 1118, 1131–1132 (1988) (citing Hill v. Superior Court, 10 Cal.3d 812, 817 (1974)). In order to show good cause, the moving party’s declaration for discovery must set forth the “materiality” of the requested documents to the subject matter of the pending litigation. Evid. Code § 1043(b)(3); See City of Santa Cruz v. Municipal Court, 49 Cal.3d 74 (1989).

In the instant case, Defendants assert that the Declaration of Plaintiff’s counsel V. James DeSimone does not establish a plausible factual scenario justifying the requested complaints and personnel records. (Opp., pg. 6.) The Declaration seeks to impute on all officers the same purported acts of misconduct by initially alleging that “Officers Paul Munoz, Joshua Volasgis, Freddy Ramirez, and Tomas Perez attempted to contact Lowe. (Id., pg. 7.)

Defendants argue that, critically, there is no mention of Detective Ramirez and Corporal Perez, or any allegations concerning their specific involvement in the incident. (Opp., pg. 7.) Further, no claims of excessive force have been brought against either of these officers, nor is there a factual basis for such claims where it is undisputed that Detective Ramirez only deployed his service taser against Lowe and that Corporal Perez used no force against Mr. Lowe as the corporal was in his patrol unit at the time shots were fired. (Id.) Because Plaintiff overreaches by ascribing identical factual scenarios to all of the officers, no specific factual scenario of officer misconduct can be plausibly established as to any of the individual officers. (Id.)

Thus, Defendants argue that Plaintiff’s blanket request for a plethora of records (some of which bear no relevance to the issues to be decided in this case) from all four peace officers (one of which did not use any force, another of which did not use deadly force, and none of which prepared a report or gave any statements to investigators regarding the incident) is totally unwarranted and amounts to unmitigated harassment. (Opp., pg. 8.) Furthermore, the honesty of these Officers and the Defendant Officers should not be at issue when it is undisputed that none of the officers provided statements to investigators or authored reports concerning this incident, specifically where the defendant officers have elected to exercise their Fifth Amendment rights against self-incrimination by not offering any statement as the criminal investigation into this incident remains active. (Id., pg. 9.)

Next, Defendants argue that Plaintiff’s “overbroad discovery request[s] potentially encompass copies of oral and written statements of complainants and witnesses related to the categories at issue.” (Opp., pg. 11.) However, Defendants argue case law is clear that at most, Plaintiff would be entitled to the names, addresses, and phone numbers of the complainants and witnesses concerning relevant conduct. Plaintiff is not entitled to the verbatim transcripts or copies of documents until they can demonstrate, if at all, that this information is inadequate. (City of Azusa v. Superior Court, 191 Cal.App.3d 693, 696–697 (1989).) (Id., pg. 12.) However, if the Court concludes that Plaintiff is entitled to some of the requested personnel records, an in- camera inspection must be undertaken prior to the disclosure of any material. (Id.) In such case, if an in-camera inspection is conducted by this Court, the in-camera proceedings must be sealed and a protective order must issue pursuant to Evidence Code sections 1045(e), and 1043. (Id., pgs. 12-13.)

On Reply, Plaintiff reiterates she is amenable to an in-camera review and a protective order to preserve any privacy interests. However, Plaintiff also refutes Defendants’ argument with respect to the fact that Plaintiff would only be entitled, at most, to the

the names, addresses, and phone numbers of the complainants and witnesses concerning relevant conduct. Plaintiff correctly asserts that Defendants misconstrue case law here and that such argument pertains to criminal cases, not civil. In People v. Memro (1985) 38 Cal.3d 658, the Memro court held that the criminal defendant’s request for the identities of all complainants of excessive force was overly broad as his claim had involved involuntariness in the interrogation setting only. (Reply, pg. 7.)

Here, Plaintiff is requesting complaints of excessive force against defendant officers because said officers used excessive and unreasonable force against Mr. Lowe leading to his death. (Reply, pg. 8.) Complaints pertaining to dishonesty are similarly relevant as the officers’ testimony pertaining to their account of the incident will directly affect the weight of their testimony and the profred reasons for using force. (Id.) Moreover, if a police officer shows a pattern of deceit or dishonesty, it can be argued that the City of Huntington Park should have taken action to retrain, discipline, or terminate their employment. (Id.) Therefore, Memro doesn’t apply because of the specific factual nature of the inquiry.

The Court further notes that Defendants rely on a number of cases which are similarly factually inapposite like Memro. Moreover, Defendants cite to other Los Angeles Superior Court cases which are not binding on this Court. The Court further agrees with Plaintiff that the standard threshold showing for a Pitchess motion is not as heightened and strict as Defendants suggest.

Therefore, the standard is not whether the records in question would be admissible in court, as Defendants argue, or whether Plaintiff’s theories are credible. (Warrick, supra, 35 Cal.4th at 1025-1026; People v. Hustead (1999) 74 Cal.App.4th 410, 417 (Pitchess motion can discover information potentially relevant to impeach credibility of the peace officer); City of Santa Cruz v. Superior Court (1989) 49 Cal.3d 74, 85 (discovery of prior complaints of violence against police officers “might lead to admissible evidence that the interrogating officers had a ‘habit or custom’ of obtaining confessions by use of excessive force.”). (Reply, pgs. 5-6.) Section 1045 allows the discovery of information relating to an investigation, complaint, or discipline of a peace officer relating to an incident he or she participated in or observed, including Detective Ramirez and Corporal Perez, even though they did not directly exert excessive force towards Mr. Lowe, were present and witnessed the incident. Thus, records of any previous incidents of excessive force where they were involved, even if indirectly, is extremely relevant to the present case.

While Defendants argue that all of the Officers involved have pled the fifth to exercise their right against self-incrimination, the Court finds that such protection does not preclude the discovery of relevant information which can lead to admissible evidence at trial. Even if Defendant Officers did not prepare or draft a police report, their propensity to use excessive force and their credibility and honesty are indeed relevant to Plaintiff’s causes of actions alleged herein. Honesty is relevant to the veracity of any forthcoming testimony. Plaintiff is alleging negligence in the hiring, training, and supervision of the Officers and also, prior knowledge. For example, on March 1, 2015, Plaintiff contends that Officer Volasgis was involved in a prior use of force incident while employed by the LAPD whereby Charley Leundeu Keungeng was fatally shot on March 1, 2015. Given it is unclear why Officer Volasgis left the LAPD, whether he was fired from the West Covina Police Department in 2017, and why he was subsequently hired by Huntington Park City, Plaintiff concludes she is entitled to personnel records to ascertain what the City knew about Officer Volasgis and his record at the time of hire. (Reply, pg. 4.)

Plaintiff notes that Defendants seem to confuse the two-step procedure for discovery of a peace officer because Evidence Code section 1045 specifies that once the moving party has made a showing of good cause for disclosure of peace officer personnel records—which Plaintiff here has—the trial court then proceeds to an in camera examination of the records, precluding Plaintiff from having unfettered access to police records or going on a “fishing expedition.” Plaintiff has repeatedly expressed her amenability to in chambers review and, also, on reply, a protective order to narrow scope as this Court sees fit. Moreover, trial is set for April 24, 2025, which is fast approaching. Plaintiff has a right to obtain discovery to prepare for a fair trial and admit relevant evidence to make a case for her causes of action alleged therein.

The Court grants Plaintiff’s Pitchess Motion, subject to an in-camera review and the filing of a proposed protective order by Defendants.

[1] This action is consolidated with Estate of Anthony Lowe; Anthony Lowe Jr., individually and as successor in interest to Anthony Lowe, by and through his guardian ad litem Ebonique Simon v. City of Huntington Park; Paul Munoz; Joshua Volasgis; and Does 1-10 (23STCV11211) which is now designated as the lead case. The lead case was originally filed on May 17, 2023. Thus, this Pitchess motion concerns the action arising out of the consolidated and non-lead case (24STCV05657). It has been filed only by Plaintiff A.L through his guardian ad litem Ebonique Simon.