2016-00205417-CU-PA

Maria Luisa Hills vs. State of California

Nature of Proceeding: Motion for Pre-Trial Discovery (Pitchess)

Filed By: Breining, Matthew M.

Plaintiffs Maria Luisa Hills’ and Barry Hills’ motion for pre-trial discovery (Pitchess) is granted, as set forth below.

In this action Plaintiffs allege that the California Department of Corrections and Rehabilitation (“CDCR”), the City of Folsom and the County of Sacramento created a dangerous condition of public property by closing a sidewalk and directing her to pass into the road where she was struck by a car. Correctional Officer Nader Saca was supervising the CDCR inmate work crew at the time of the incident.

Plaintiffs now seek to obtain CO Saca’s personnel records from the CDCR pursuant to Evidence Code §§ 1043, 1045. Specifically, Plaintiffs seek: (1) All documents relating to CO Saca’s education, training, and employment history; (2) All documents related to “Post Orders” and/or any other operational instructions related to CO Saca and/or his position in effect at the time of the incident, including any executed signature verification sheet; (3) All training documents regarding CO Saca’s post orders and/or any operational instructions on the date of the incident; (4) All policy and procedure

documents regarding CO Saca’s post orders and/or any operational instructions on the date of the incident, including any executed signature verification sheet; (5) All documents regarding CO Saca’s physical, emotional, or mental disability or condition that may have contributed to the incident or were otherwise present around the time of the incident; (6) All documents relating to any medication, alcoholic beverage, marijuana, or other drug used or consumed by CO Saca within 24 hours before the incident; (7) All documents relating to any medication prescribed to CO Saca at the time of the incident; (8) All documents relating to complaints or investigations of complaints concerning CO Saca; (9) All documents regarding adverse action by CDCR against CO Saca within 5 years of the incident to present; and (10) All documents regarding corrective action by CDCR regarding CO Saca within 5 years of the incident to present.

The Court previously denied Plaintiffs’ motion without prejudice after finding that Plaintiffs’ counsel’s declaration which simply stated that the records were “necessary to Plaintiffs’ case because they tend to prove CDCR’s liability” was insufficient (ROA 91.) Plaintiffs have now re-filed the motion supported by Plaintiff’s counsel’s declaration discussing each of the various categories.

The CDCR and CO Saca oppose the motion on the basis that Plaintiffs failed to establish good cause.

Peace officer personnel records and records maintained by any state or local agency pursuant to Penal Code § 832.5. or information obtained in these records are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. (Penal Code § 832.7.) A party moving for the disclosure of records pursuant to Evidence Code § 1043 must provide a description of the type of records or information sought as well as affidavits showing “good cause” for the discovery or disclosure sought, setting forth the “materiality” thereof to the subject matter of the pending litigation and stating upon reasonable belief that the governmental agency has the records or information from the records. (Evid. Code § 1043.) Indeed, when a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all “potentially relevant” documents to permit the trial court to examine them for itself. People v. Mooc, ( ) 26 Cal. 4th 1216, 1229-1230.

“[A] showing of good cause must be based on a discovery request which is tailored to the specific officer misconduct that is alleged…only documentation 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 [emphasis in original].) Plaintiffs were required to set forth 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.) Parenthetically, “good cause” in this context is a showing of a reasonable belief that the type of records requested are material to the claims or defenses, and in the possession of the employing agency; only a relatively low threshold is necessary to compel discovery. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) When a trial court concludes a defendant’s Pitchess motion shows “good cause” for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all “potentially relevant” documents to permit the trial court [a neutral trial judge]

to examine them for itself. The affidavits showing good cause may be based on information and belief and are not required to be premised on personal knowledge. ( People v. Mooc (2001) 26 Cal.4th 1216, 1226.)

Plaintiffs’ counsel’s declaration discusses each category of the requested documents and why they are relevant to this action. (Breining Decl. ¶¶ 8(a)-(j).) A theory in Plaintiffs’ case is that Defendants created a dangerous condition of public property when they closed down a pedestrian route and failed to take reasonable precautions for the safe passage of pedestrians. The requested documents are relevant and material to the subject matter of this action. Here, CO Saca was supervising the inmate work crew at the time of the incident. The categories of documents regarding CO Saca’s employment, education, and training are relevant to whether CO Saca was qualified to provide for pedestrian safety while supervising the inmate work crew. The information regarding CO Saca’s physical, emotional or mental condition and/or use of prescription drugs or other substances are relevant to whether CO Saca may have been impaired at the time of the incident. The other categories relate to whether CO Saca was competent to supervise the work crew and whether CDCR was on notice regarding any issues regarding CO Saca’a ability to safely supervise the crew and provide safety to pedestrians.

Defendants’ argument that Plaintiffs failed to show good cause is conclusory and does not specifically address Plaintiffs’ counsel’s declaration other than stating that it is insufficient.

The Court finds that Plaintiffs have demonstrated that the requested records are relevant and material to the claims in this action. Essentially, the requested records could demonstrate whether CO Saca knew how to provide for the safety of pedestrians while supervising an inmate work crew, whether he had any conditions that could have impaired his judgment, and whether he should have been supervising a crew. Thus, the records could demonstrate whether CDCR appropriately trained and assigned CO Saca to supervise the inmate work crew. Good cause exists for the requested discovery.

The Court finds that the declaration in support of the motion complies with Evidence Code sections 1043(b)(2) and (b)(3) in that it sets forth the description of the type of records sought, the materiality of the records sought to the instant action, and a reasonable belief that the governmental agency has the records. (Evid. Code § 1043 (b)(2)-(3).)

Defendants also argue that the documents sought are protected from disclosure pursuant to the Official Information privilege in Evidence Code § 1040 because they could seek opinions and conclusions as well as statements made during investigations of unrelated incidents. However, Evidence Code § 1045(a) governs access to records of complaints or investigations of the complaints concerning peace officers where the information is relevant to the subject matter involved in the pending litigation as may be the case here. “[S]ection 1045 subdivision (a) can only be seen as a constitutionally required exception to the blanket prohibition of disclosure of information formerly protected by section 1040.” (Fletcher v. Superior Court (2002) 100 Cal.Ap.4th 386, 398.) “It is significant that these statutes do not limit discovery of such records to cases involving altercations between police officers and arrestees, in the context in which Pitchess arose. It is also noteworthy that the Legislature saw fit to ensure that ‘[n]othing in this article [citation] shall be construed to affect the right of

access to records of complaints, or investigations of complaints, or discipline imposed as a result of such investigations, concerning an event or transaction in which the peace officer participated, or which he perceived, and pertaining to the manner in which he performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation.’ (Evid. Code, § 1045 subd. (a).) If anything, then, the principles of Pitchess were not only reaffirmed but expanded by the 1978 legislation.” (People v. Memro (1985) 28 Cal. 3d 658, 679-680.) Defendants’ argument based on Evidence Code § 1040 has no merit as the statutes and cases recognize that it is no bar to discovery in the context of a Pitchess motion.

The Court is, of course, required to conduct an in camera review of the records before any record can be disclosed. The parties shall meet and confer on a date for the in camera review at least 15 court days from this date, in conjunction with the court’s clerk. The custodian of the personnel records at CDCR is required to be present, and if desired, may bring independent counsel. People v. Mooc, (2001) 26 Cal. 4th 1216, remains the best description of how a Pitchess hearing should be conducted. Mooc states that “both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations.” (Id. at p. 1227.) [emphasis added] Based on Mooc, the Court perceives the requirement that the custodian of records for the defendant to have independent counsel – and to exclude defense counsel from the in camera Pitchess hearing – is that a unwaivable conflict may exist between defense counsel and the role of the custodian.

Pursuant to People v. Mooc, supra, the custodian of records should bring to the in camera review all documents “potentially relevant” to the defendants’ motion [“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all “potentially relevant” documents to permit the trial court to examine them for itself. … Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record.” (Mooc, supra, 26 Cal.4th at p. 1228-1229.)]. (City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 84.) It is to be noted, if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. 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” (Id., § 915, subd. (b), see Id., § 1045, subd. (b) [incorporating Id., §

915]). Subject to statutory exceptions and limitations, discussed below, the trial court should then disclose to plaintiff “such information [that] is relevant to the subject matter involved in the pending litigations.” (Id. § 1045, subd. (a).)

Indeed, consistent with these procedures, the court may not disclose complaints more than five years old, the “conclusions of any officer” who investigates a citizen complaint of police misconduct, or facts “so remote as to make [their] disclosure of little or no practical benefit.” (Evidence Code § 1045(b).) “Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)

All records must be BATES stamped so that the court can refer to the records by page number. Pursuant to Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 415, the peace officer has the right to be present at the in camera review of the files. The peace officer may be accompanied by counsel other than counsel of record for this case.

In addition, the parties shall meet and confer and agree upon a protective order (Evid. Code § 1045(e)) regarding any information that may be disclosed pursuant to the Court’s in camera review and submit such order to the Court prior to any agreed upon date for the in camera review.

Again, the parties shall meet and confer on a date for the in camera review at least 15 court days from this date, in conjunction with the court’s clerk.