Case Name: Lohman v. City of Mountain View, et al.
Case No.: 16-CV-292398

This is a sexual harassment and discrimination case initiated by plaintiff Annie Lohman (“Plaintiff”) against defendants City of Mountain View (“City”) and Max Bosel (“Chief Bosel”).

According to the complaint (“Complaint”) , in 2003, the City hired Plaintiff to work as a dispatcher for the Mountain View Police Department (“Department”). (Supp. Complaint, ¶ 9.) After joining the Department’s SWAT team in 2005, Plaintiff has been repeatedly subjected to sexually explicit banter, lewd jokes, nudity, and simulated sex acts. (Id. at ¶ 10.) Plaintiff’s then SWAT team leader and now current Police Chief of the Department, Chief Bosel, did nothing to stop the behavior and actively encouraged it. (Ibid.)

As a result of the harassment, Plaintiff made a complaint to Human Resources addressing sexual harassment and gender discrimination. (Supp. Complaint, ¶ 12.) Due to Chief Bosel’s leadership of the communications division (the division in which Plaintiff works), Plaintiff has been endlessly subjected to intense scrutiny and meritless investigations. (Id. at ¶ 13.) In February 2015, when the City’s investigations did not result in any findings of misconduct, the City placed Plaintiff on administrative leave. (Id. at ¶ 15.)

Plaintiff subsequently received a notice of intended discipline from Chief Bosel recommending she be demoted, placed on a training program, and removed from the SWAT team. (Supp. Complaint, ¶ 16.) The notice informed Plaintiff she could not return to work unless she voluntarily accepted the demotion and placement in a training program. (Ibid.) Plaintiff contested the demotion and, as a result, the City reduced her pay. (Ibid.)

Plaintiff also suffered discrimination based on a perceived disability. An audiometric evaluation revealed that Plaintiff had a hearing impairment and she filed a worker’s compensation claim as a result. (Supp. Complaint, ¶ 18.) The City “regarded [P]laintiff as disabled” and subjected her to “adverse employment actions.” (Id. at ¶¶ 42-43.)

Plaintiff alleges six causes of action for: (1) Retaliation in Violation of Government Code section 12900 et seq.; (2) Sexual Harassment in Violation of Government Code section 12900 et seq.; (3) Gender Discrimination in Violation of Government Code section 12900 et seq.; (4) Disability Discrimination in Violation of Government Code section 12900 et seq.; (5) Failure to Prevent Harassment, Discrimination, and Retaliation in Violation of Government Code section 12900 et seq.; and (6) Violation of California Fair Pay Act, Labor Code section 1197.5.

The motion before the Court involves a discovery dispute. On January 13, 2017, Plaintiff served a second set of requests for admissions (“RFA”) and special interrogatories (“SI”) on the City. (Weddell Decl., ¶ 5.) On March 3, 2017, the City served its responses, including objection-only responses to RFA Nos. 12 and 13 and SI Nos. 3 and 4. (Id. at ¶ 6.) Among other things, the City objected on the basis the requests sought information protected by the Pitchess statutes that could not be obtained absent a Pitchess motion. Plaintiff’s counsel considered the objections to these requests meritless and sent the City’s counsel a meet and confer letter in an effort to informally resolve the dispute. (Id. at ¶ 7.) The City’s counsel replied, stating his client would not amend its responses and would stand on its objections. (Id. at ¶ 8.) Plaintiff consequently filed the instant motion to compel further responses to SI Nos. 3 and 4 and RFA Nos. 12 and 13 or, alternatively, a Pitchess motion.

I. Motion to Compel

A. SI Nos. 3 and 4

A party may respond to an interrogatory by providing “[a]n answer containing the information sought to be discovered” or objecting. (Code Civ. Proc., § 2030.210, subd. (a).) A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) The responding party has the burden of justifying any objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
SI Nos. 3 and 4 ask the City to explain with specificity every disciplinary action it administered against any of its employees as a result of the findings in Karen Kramer’s July 17, 2015 and December 21, 2015 reports (the “Reports”). The City provided objection-only responses. Plaintiff moves to compel further responses to SI Nos. 3 and 4 on the basis the objections are without merit.
In response to SI Nos. 3 and 4, the City objected on numerous grounds, including that the information sought could only be obtained by filing a Pitchess motion. In opposition to this motion, the City only attempts to justify its Pitchess objection.

For context, “[i]n 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, internal citations omitted (“City of Santa Cruz”.) Penal Code section 832.7 (“Section 832.7”) deems personnel records of peace officers or information obtained therefrom to be confidential and prohibits disclosure in any criminal or civil proceeding except by discovery pursuant to Evidence Code sections 1043 and 1046. Penal Code section 832.8 (“Section 832.8”) defines a personnel record as including records reflecting employee discipline. Evidence Code section 1043 (“Section 1043”) states the procedural requirements for seeking discovery of peace officer personnel records, including the filing of a motion. Production of documents deemed privileged under Sections 832.7 and 832.8 cannot be compelled pursuant to the Civil Discovery Act; a party seeking such information must file a Pitchess motion pursuant to Section 1043. (City of Santa Cruz, supra, 49 Cal.3d at pp. 81–83.) This statutory scheme was enacted in response to Pitchess v. Superior Court of Los Angeles County (1974) 11 Cal.3d 531 (“Pitchess”). (Commission On Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278, 292–293 (“CPOST”).) “Pitchess held that a defendant seeking evidence to support his claim of self-defense in a criminal prosecution for battery committed upon deputy sheriffs had established good cause for the discovery of records of citizen complaints that had been made against those deputies and involved the excessive use of force.” (Ibid.) The Pitchess procedures were adopted to balance officer privacy and the need for evidence in the context of criminal prosecution. (Ibid.)

Given the circumstances surrounding the enactment of the Pitchess procedures, there is a threshold question of whether Pitchess applies in a civil action brought by an employee for sexual harassment and discrimination. The law is clear that Pitchess is broadly applied. The California Supreme Court discussed the scope of Pitchess in a subsequent case, CPOST, as follows: “It is apparent that the Legislature’s major focus in adopting the statutory scheme here at issue was the type of record at issue in Pitchess—records of citizen complaints against police officers. The new legislation required that those records be maintained, but provided assurances to peace officers that such records would remain confidential except as necessary in order to ensure a fair trial in civil or criminal proceedings. Nonetheless, the legislation was drafted to include all police officer personnel records, not only records of complaints and disciplinary actions.” (CPOST, supra, 42 Cal.4th at p. 293, emphasis in original.) Section 832.7’s expansive statutory language “demonstrates that the Legislature was intending to recognize the confidentiality of peace officer personnel records regardless of the context in which the records were sought.” (San Diego Police Officers’ Assn. v. City of San Diego Civil Service Com. (2002) 104 Cal.App.4th 275, 284; see also Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 637 (“Stiglitz”) [explaining Pitchess motions are used in other contexts outside of criminal prosecution].)

Thus, although the Pitchess procedures derive from criminal investigation, they are widely applied in civil proceedings not involving civilian complaints against police officers. (See Stiglitz, supra, 60 Cal.4th at pp. 636–637 [holding an administrative appeal body may hear Pitchess motions where the plaintiff was allegedly terminated as a result of disparate treatment from the police force]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1121, fn. 5 [in employment discrimination action, attendance sheets are confidential peace officer personnel records that cannot be disclosed without filing a Pitchess motion]; see also 73 Ops.Cal.Atty.Gen. 90 (1990) [advising that in an employment discrimination case filed by a peace officer, the county affirmative action officer may not lawfully provide a copy of the completed investigation report to a complainant who is not a peace officer without complying with the procedures set forth in the Evidence Code because the file is confidential pursuant to Section 832.7].) For example, a plaintiff seeking non-payroll personnel records of a spouse peace officer in a marriage dissolution proceeding is required to file a Pitchess motion to obtain the information sought. (See Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 59.)

In sum, Pitchess is meant to be broadly applied in circumstances where the information sought is confidential pursuant to Sections 832.7 and 832.8, even in a sexual harassment action. Therefore, the Court must next determine whether SI Nos. 3 and 4 seek information deemed confidential under Sections 832.7 and 832.8.

A personnel record includes any file maintained under the individual’s name by the employing agency and containing, among other things, information on employee discipline. (Pen. Code, § 832.8.) SI Nos. 3 and 4 request the City specifically explain all discipline administered as a result of the Reports. The requests further define a specific explanation as including the peace officer’s identity and a description of the administered discipline. It is evident that in order to be sufficiently specific, the City must provide details of discipline contained within personnel records. The level of specificity required to respond to the requests render them privileged under Section 832.8. The legislative concern in enacting the Pitchess procedures was “linking a named officer to the private or sensitive information listed in section 832.8[.]” (CPOST, supra, 42 Cal.4th at pp. 295-296.) Thus, the statutes protect disseminating information in connection with specific peace officers. (Ibid.) While SI Nos. 3 and 4 are not specific to any peace officer, adequately responding to them would require the identification of any officer who was disciplined and a description of disciplinary actions. Neither party appears to debate the information sought by the SI falls within the scope of employee discipline and, as a result, is privileged pursuant to Section 832.7. Accordingly, the objection on the basis Plaintiff must seek the information sought by SI Nos. 3 and 4 by filing a Pitchess motion is sustained.

With that said, the Pitchess objection only applies to the extent the requests seek personnel records of sworn peace officers; it does not apply to the requests relative to non-peace officers. The City served amended responses to SI Nos. 3 and 4 on May 18, 2017 with its opposition to this motion. (Castelhano Decl., ¶ 2; Exhibit A.) The amended responses contain the same objections as the original responses and additionally state as follows: “Subject to and without waiver of the foregoing objections, Defendant responds that as to non-sworn, non-peace officer City employees, including Plaintiff, no disciplinary action was administered by the City as a result of the findings in [the Reports] which did not sustain Plaintiff’s allegations.” (Ibid.) To the extent the City provided substantive responses to SI Nos. 3 and 4 relative to non-peace officers, the responses appear to be code-compliant. (See Code Civ. Proc., § 2030.220, subd. (a) [each answer must be “as complete and straightforward as the information reasonably available to the responding party permits”].)
In light of the above, Plaintiff must file a Pitchess motion to obtain the information sought in SI Nos. 3 and 4 relative to peace officers. The City’s responses to SI Nos. 3 and 4 otherwise appear to be code-compliant. Accordingly, the motion to compel further responses to SI Nos. 3 and 4 is DENIED.

B. RFA Nos. 12 and 13

A response to a request for admission “shall answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc., § 2033.210, subd. (b).) On receipt of a response to requests for admission, the requesting party may move for an order compelling a further response if that party deems that an objection is without merit or an answer to a particular request is evasive or incomplete. (Code Civ. Proc., § 2033.290, subd. (a).)

RFA Nos. 12 and 13 request the City admit it did not take any disciplinary action against any employee as a result of the Reports. The City provided objection-only responses. Plaintiff moves to compel further responses to RFA Nos. 12 and 13 on the basis the objections are without merit.

1. Objections

In response to RFA Nos. 12 and 13, the City objected on numerous grounds, including that the information sought could only be obtained by filing a Pitchess motion. In opposition to this motion, the City only attempts to justify its Pitchess objection; thus its other objections are overruled.

As discussed above, a Pitchess motion is the appropriate vehicle for seeking information contained in a privileged peace officer personnel record. The threshold issue here is whether RFA Nos. 12 and 13 seek information covered by such privilege. Once again, Section 832.8 provides records reflecting employee discipline in a peace officer’s personnel record are privileged.

Plaintiff argues a Pitchess motion is not required to disclose the information sought by RFA Nos. 12 and 13 because an admission or denial does not require revealing a peace officer’s identity. In opposition, the City does not specifically address RFA Nos. 3 and 4 or Plaintiff’s argument that they do not seek the identity of any peace officer.

Here, the information sought by RFA Nos. 12 and 13 is not privileged pursuant to Section 832.8. “[T]he statute prevents the unauthorized disclosure of the specified types of information concerning a named officer” and expressly allows an enforcement agency to “disseminate data regarding the number, type, or disposition of complaints” against its officers “if that information is in a form which does not identify the individuals involved.” (CPOST, supra, 42 Cal.4th at pp. 295-296, citations omitted.) The requests do not identify any individuals or require the City to do so, unlike SI Nos. 3 and 4. Therefore, there is no possibility of “linking” a specific officer to specific discipline administered. Because RFA Nos. 12 and 13 do not seek information specific to an individual peace officer, the Pitchess protections are not implicated.

As a result, the Pitchess objection is overruled.

2. Substantive Responses

Again, RFA Nos. 12 and 13 request the City admit or deny it did not discipline any employee as a result of the Reports. The City served amended responses to RFA Nos. 12 and 13 on May 18, 2017 with its opposition to this motion. (Castelhano Decl., ¶ 2; Exhibit A.) The amended responses contain the same objections as the original responses and also state as follows: “Subject to and without waiver of the foregoing objections, Defendant responds that as to non-sworn, non-peace officer City employees, including Plaintiff: Admit.” (Ibid.)
The responses are not code-compliant because they do not answer the entire question stated. In responding to a request for admission, “[e]ach response shall answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc., § 2033.210, subd. (b).) Each response must be as straightforward and complete as the information available permits. (Code Civ. Proc., § 2033.220, subd. (a).) These responses do not answer the totality of the substance of the question. The responses fail to address all employees because they exclude sworn peace officers. As a result, the responses are deficient.

3. Conclusion

Accordingly, the motion to compel further responses to RFA Nos. 12 and 13 is GRANTED. The City shall provide verified, code-compliant further responses, without objections within 20 calendar days of this Order.

II. Pitchess Motion

Plaintiff moves to compel the City to disclose specific disciplinary actions taken against peace officers as a result of the Reports.
The Pitchess statutes provide that peace officer personnel records are subject to discovery under a two-step procedure. Under the first step, the moving party must file a motion establishing good cause for the disclosure sought. (Evid. Code, § 1043, subd. (b).) The motion must include “[a] description of the type of records or information sought,” supported by “[a]ffidavits 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 such governmental agency identified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(2)-(3).) The second step is reached after the party seeking disclosure makes a showing of good cause for the discovery. (City of Santa Cruz, supra, 49 Cal.3d at p. 83.) “Evidence Code section 1045 specifies that once the moving party has made a showing of good cause for disclosure of peace officer personnel records, the trial court proceeds to an in chambers examination of the records to determine whether they have any relevance to the issues presented in the current proceedings.” (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019–20, citations and quotations omitted.) The City contends Plaintiff fails to satisfy the first step because she does not adhere to the strict procedural requirements for presenting the motion or establish good cause for the discovery sought.

With respect to the procedural requirements, the City asserts this motion should be denied because Plaintiff did not properly provide notice to the officers whose personnel files and privacy rights are being infringed upon.

Although the City is correct that Plaintiff must properly identify the records sought pursuant to Section 1043, the statute does not require her to notify the peace officers or state their names in the motion. Rather, Section 1043 requires the motion include the “identification” of “the peace or custodial officer whose records are sought.” Further, the statute dictates that “[u]pon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.” (Evid. Code, § 1043, subd. (a).) Thus, the burden does not rest with Plaintiff to notify the peace officers. The Court otherwise finds Plaintiff adequately identifies the peace officers whose records are sought. As persuasively argued by Plaintiff in reply, the City does not point to a single legal authority requiring her to identify the peace officers by name in the motion. Plaintiff identifies the peace officers as those disciplined as a result of the Reports. This information is adequate for the City to identify the peace officers and provide them notice.

Next, Defendant argues Plaintiff fails to establish good cause for the information sought because she does not identify individual peace officers and fails to establish materiality. A party may establish good cause for purposes of a Pitchess motion “by demonstrating the materiality of the information to the pending litigation[.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019, internal citations omitted.) Information is material if it “will facilitate the ascertainment of the facts and a fair trial.” (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086; see also People v. Mooc (2001) 26 Cal.4th 1216, 1226 [indicating that the records sought must be “potentially relevant”].) To preclude the possibility the moving party is engaged in a fishing expedition, the party seeking discovery must specifically articulate how the discovery sought would support the party’s theory of the case. (Haggerty, supra, 117 Cal.App.4th at p. 1021.)

Plaintiff’s attorney’s affidavit establishes good cause for the information sought, despite the fact it does not specifically identify officers by name. Plaintiff’s attorney attests that after her client complained to the City about the pervasive and inappropriate behavior occurring during her tenure on the SWAT team, it conducted an independent investigation culminating in the Reports. (Weddell Decl., ¶ 11.) Plaintiff’s attorney further states the City knows whether it disciplined any peace officers as a result of the inappropriate conduct detailed in the Reports. (Ibid.) This declaration meets the “relatively relaxed standards for a showing of good cause under section 1043.” (City of Santa Cruz, supra, 49 Cal.3d at p. 81.) Any administered discipline would reflect the alleged sexual harassment occurred in the first instance. The fact Plaintiff does not identify a single peace officer by name does not negate the showing of good cause. Plaintiff is entirely unable to name the peace officers because she does not know who has been disciplined as a result of the Reports. As discussed above, Plaintiff otherwise sufficiently identifies the peace officers whose personnel records are the subject of this motion.

In light of the above, Plaintiff establishes good cause for seeking information regarding any disciplinary actions taken against peace officers as a result of the Reports.

The second step of the Pitchess procedure requires the Court to conduct an in camera inspection of the information sought. (Evid. Code, § 1045, subd. (e).) The Court observes Plaintiff does not seek production of records, but rather detailed information of discipline administered to individual peace officers as a result of the Reports. Thus, the procedure of conducting an in camera review of relevant documents is inadequate to provide Plaintiff the information sought. Therefore, the custodian of records for the City shall present the Court with all potentially relevant records reflecting discipline administered to peace officers resulting from the Reports. The City shall also submit to the Court a proposed statement of information reflecting any such discipline with specific factual detail. The Court shall then compare the information contained in the documents and the statement of information to determine whether the statement adequately reflects the information sought by Plaintiff. At the in camera proceeding, the Court shall order the disclosure of all requested information, except for any information “that [is] so remote as to make disclosure of little or no practical value.” (Evid Code, § 1045, subd. (b)(3).) The City argues all information sought is so remote as to make disclosure of little or no practical value. This argument is problematic because this determination cannot be made without first conducting the in camera inspection. (See ibid.; see also City of Santa Cruz, supra, 49 Cal.3d at p. 84.) During that inspection, the Court will necessarily balance the privileged information contained within the personnel records against Plaintiff’s need for the information sought as outlined in Evidence Code section 1045.

If the Court deems the statement of information sufficient, the City shall then provide Plaintiff a verified copy. If the statement of information does not accurately or sufficiently reflect the information contained in the personnel records, the Court will order the City to amend the statement to contain all responsive information and thereafter provide Plaintiff a verified copy.

Accordingly, Plaintiff’s Pitchess motion for discovery of a statement describing peace officer discipline administered as a result of the Reports is GRANTED. Accordingly, within 15 days of entry of the Court’s Order, the City shall produce for in camera inspection all disciplinary records of any peace officers disciplined as a result of the Reports and a proposed statement of information. In addition, the Court enters a protective order directing that any information disclosed may only be used for the purposes of this litigation. (See Evid. Code, § 1045, subd. (e).) The Court will subsequently issue an order addressing whether the proposed statement of information is sufficient and any changes that may be warranted.