2011-00108676-CU-PA

Angel Arceo vs. Lee Anna Austin Strandberg

Nature of Proceeding:   Motion for the Production and Disclosure of Personnel Records

Filed By:  Meno, John T.

Defendant’s Motion for Production and Disclosure of peace officer personnel records
pursuant to Evidence Code section 1043, 1045 (Pitchess) is granted.

Plaintiffs are police officers who were passengers in an automobile accident in which
defendant’s vehicle struck the vehicle in which plaintiffs were riding.

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 Evid. 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.)

Defendant seeks the police officers’ personnel files concerning wages, absences,
injuries, and other issues that are potentially relevant to their claims for damages in
this action.  The Court finds that the declaration in support of the motion complies with
Evidence Code section 1043(b) (2) and (3) in that it sets forth the description of the
type of records sought, the materiality of the records sought to this action, and a
reasonable belief that the governmental agency has the records.  Evidence Code
section 1042(b)(2)(3).

Defendants issued a subpoena only to the CHP, however the motion seeks records
from both the CHP and Controller’s office.  The exhibits to the moving papers only
concern the CHP subpoena.  Therefore only the CHP is being ordered to comply with
the subpoena and present the records to the court for in camera review.

The Court is 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 30 days from this date, in conjunction with the court’s clerk.  The            custodian of records of the personnel records at the CHP is required to be present,
and if desired, may bring independent counsel.

Pursuant to People v. Mooc (2001) 26 Cal. 4th 1216, the custodian of records should
bring to the in camera review all documents “potentially relevant” to the defendant’s
motion. (Santa Cruz, supra, 49 Cal. 3d at p. 84) 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 the defendant
“such information [that] is relevant to the subject matter involved in the pending
litigation.” (Id., § 1045, subd. (a).)

All records must be BATES stamped so that the court can refer to the records by page
number.  A court reporter is required to make a record, however the court does not
supply the court reporter.  Pursuant to Becerrada v. Superior Court (2005) 131
Cal.App.4th 409, the plaintiff officers have the right to be present at the in camera
review of the files.  The plaintiffs may be accompanied by counsel other than counsel
of record for this case.

The defendants agree to the plaintiffs’ proposed protective order submitted with the
opposition.  The Court will sign the proposed protective order submitted with the
motion.

Defendants shall prepare a proposed order consistent with this ruling pursuant to CRC
3. 1312.  However, as noted,  the order shall not order the Controller to produce
records since the court could not locate any subpoena issued to the Controller’s office.