Case Number: BC703802 Hearing Date: September 10, 2019 Dept: 4A

Pitchess Motion

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 25, 2018, Plaintiff County of Los Angeles (“Plaintiff”) filed a complaint in subrogation of its employee, Kevin Goran, against Defendant Miguel Antonio Zermeno (“Defendant”) alleging motor vehicle negligence for an automobile collision that occurred on May 13, 2016.

On August 12, 2019, Defendant filed a Pitchess motion seeking documents from Plaintiff that, according to Plaintiff, are protected by Penal Code section 832.7.

Trial is set for April 21, 2020.

PARTY’S REQUEST

Defendant asks the Court to compel Plaintiff to respond to Defendant’s Request for Production (Set Two) seeking Kevin Goran’s medical and employment records.

LEGAL STANDARD

There is a special two-step procedure for securing disclosure of peace officer personnel records. (Warrick v. Superior Court (2005) 35 Cal.4th1011, 1019.) First, the party seeking disclosure must file a motion that identifies the peace officer, the agency in possession of the records, a description of the records, and the party who is seeking the records, as well as time and place of the hearing. (Evid. Code § 1043, subd. (b)(1).) The motion must be accompanied by a declaration: showing “good cause” for disclosure of the records; setting forth the materiality of the records; and stating upon reasonable belief that the governmental agency has the requested documents. (Evid. Code § 1043, subd. (b)(3).)

The California Evidence Code section 1043, subdivision (b) “good cause” declaration must be sufficiently specific “to preclude the possibility of [the movant] simply casting about for any helpful information.” (People v. Mooc (2001) 26 Cal.4th1216, 1226.) However, an attorney declaration based upon information and belief and containing hearsay may be used to evidence good cause in support of a Pitchess motion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) The moving party need show only a “plausible factual foundation” for discovery— that is, a scenario of officer misconduct that might occur or could have occurred. (Warrick, supra, 35 Cal.4th at 1026.) This is a “relatively low threshold.” (Uybungco v. Superior Court (2008) 163 Cal.App.4th1043, 1048; see also Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245, 1248 (the good cause requirement of section 1043(b) “embodies a ‘relatively low threshold’ for discovery’ [citation], under which [in a criminal case] a defendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense’”).

Turning to the second step, if the court finds good cause then an in camera hearing must be held. (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) After personally examining the records in camera, the trial court shall order disclosure of peace officer personnel records that are “relevant to the matter involved in the pending litigation.” (Evid. Code § 1045, subd. (a); Mooc, supra, 26 Cal.4th at 1226.) If disclosure is ordered, the court must also order that the disclosed information may not be used “for any purpose other than a court proceeding pursuant to applicable law.” Code Civ. Proc. § 1045, subd. (e); see also Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039–1040.)

DISCUSSION

Pursuant to California Evidence Code section 1043, Defendant requests Kevin Goran’s employment records and medical records in relation to workers compensation benefits paid to Kevin Goran. (Motion, p. 6:3-6:22.) On July 2, 2018, Defendant served Request for Production (Set One) on Plaintiff, requesting, in part, the following documents:

Any and all documents, which purport to record, evidence, or set forth Kevin Goran’s source of income, during the two (2) calendar years prior to the occurrence of the incident.

Any and all documents, which support your claim of other damages or other expenses incurred as a result of the incident which forms the basis of this lawsuit.

Copies of all medical records, medical reports, and medical bills relating to the treatment of, care of, or benefits made to Kevin Goran from May 13, 2016, to the present time.

(Sullivan Decl., ¶¶ 2-3, Exh. A.) Plaintiff objected to these requests pursuant to Penal Code sections 832.7 and 832.8. (Sullivan Decl., ¶¶ 4-5, Exh. B.)

On October 8, 2018, Defendant served a deposition notice on Plaintiff requesting the following documents:

All documents referencing medical and employment payments made to claimant, Kevin Goran, Claim number 16-01618-A.

All medical records, reports, radiological studies, all office, emergency room, inpatient, outpatient, hospital charts and records, including all electronically stored documents and files, all radiology materials and films, x-rays, MRI’s and CT-scans pertaining to Kevin Goran, Claim number 16-01618-A.

(Sullivan Decl., ¶¶ 6-7, Exh. C.)

Plaintiff refused to provide the documents requested at the deposition without authorization from Kevin Goran or a Court Order. (Sullivan Decl., ¶¶ 8-9, Exh. D.) Defendant argues there is good cause to compel Plaintiff to provide such documents because Plaintiff is claiming subrogation of wages and workers’ compensation benefits paid to its employee, Kevin Goran, in connection to the automobile collision that gives rise to this action. (Motion, p. 6:3-6:22; Sullivan Decl., ¶ 10.)

In his reply, Defendant more clearly states that the following documents are requested through this motion:

All documents identifying, reflecting, showing all damages claimed by plaintiff in this matter regarding all wages and worker’s compensation benefits paid to or on behalf of plaintiff’s employee Kevin Goran, as identified in the Complaint.

All medical records, reports, radiological studies, all office, emergency room, inpatient, outpatient, hospital charts and records including all electronically stored documents and files; all radiology materials and filsm, x-rays, MRI’s and CT-scans pertaining to Kevin Goran, Claim number 16-01618-A.

All employment records for Kevin Goran from 5/1/16 to the present.

(Reply, p. 2:14-2:21.)

The Court finds there is good cause to grant the motion, in part. Plaintiff is suing Defendant “[a]s a subrogated, self-insured employer, [for] damages for all wages and workers[’] compensation benefits paid to or on behalf of Plaintiff’s employee, Kevin Goran.” (Compl., p. 3.) It follows that there is good cause for Defendant to have all documents pertaining to the wages and workers’ compensation benefits paid to Kevin Goran which Plaintiff is claiming as damages in this action.

That being said, Defendant requests additional documents, including all of Kevin Goran’s employment records from May 1, 2016 to the present, workers’ compensation benefits paid to Goran that are unrelated to this action, and medical records that do not pertain to this action. Plaintiff asserts that Defendant has not shown good cause for these documents to be produced. The Court agrees.

The motions are GRANTED IN PART and DENIED IN PART.

The Court ORDERS that Plaintiff produce the following records for an in camera review immediately following the hearing on September 10, 2019: records in Kevin Goran’s personnel file only as they pertain to wages and workers’ compensation benefits paid to or on the behalf of Plaintiff’s employee, Kevin Goran, which Plaintiff seeks to recover from Defendant in this action.

Defendant is ordered to give notice of this ruling.