2017-00205970-CU-PO

Eric Leroy Nelson vs. Maria Carmen Nelson

Nature of Proceeding: Motion Under Evidence Code 1043 and 1045 for Discovery and in

Filed By: Badiga, Jayalakshmi

Defendant Maria Maestas’ motion under Evidence Code 1043 and 1045 is GRANTED as follows.

Plaintiff and Defendant are litigating their divorce in family court. Defendant obtained a domestic violence restraining order (DVRO) against Plaintiff in that case. Plaintiff appealed from the DVRO, but the Court of Appeal affirmed in an unpublished opinion. In the instant case, Plaintiff alleges Defendant obtained the DVRO wrongfully and has misused it during the divorce proceedings. He also alleges Defendant ruined his career as a police officer from the Stockton Police Department (“Stockton PD”) . Plaintiff’s employment ended in 2010.

Defendant seeks from the Stockton PD:

1. The entire personnel file of Eric Nelson including but not limited to his application for employment, his separation from employment, all evaluations regarding his employment, all actions including warnings, admonitions, discipline taken regarding him during employment, all complaints of any kind made about his actions or failures to act during his employment, all documents relating to his administrative leave, separation, and termination of employment and the reasons for each.

2. All documents of any kind reflecting any appeal of or complaints regarding his separation from employment.

3. All documents of any kind regarding any claim by Eric Nelson of disability to perform his job or medical condition effecting his attendance to his job.

4. All records or documents of any kind concerning statements, reputation and opinions, including but not limited to, findings, letters formal reports, and oral

conversations made by superior officers or other officers, regarding the above named former police officer and his fitness for duty, fabrication, dishonesty, illegal behavior, moral laxity, or other characteristics inconsistent with continuing employment as a police officer at the Stockton Police Department.

5. Any and all records of any statements made between Eric Nelson and Chief Blair Ulring during Eric Nelson’s employment or after, including after Chief Blair retired regarding Eric Nelson’s employment.

6. Any record of Chief Blair Ulring experiencing any problems related to his internet use, including hacking, impersonation or taking of his identity, or false postings or false stories or comments generated about him after he retired from the Stockton Police Department.

7. Any record or report of Eric Nelson using hidden cameras or audio equipment on his person to photo, video or record member of the police department or others.

8. Any complaints from members of the public, fellow officers or supervisors concerning Eric Nelson’s performance as a police officer or record of comments of any conduct or habit inconsistent with good performance as a police officer.

Plaintiff filed a “response” to the motion. Plaintiff does not object to any documents or records being sought that relate to his final 10 years he was on the force, but objects to any records being produced from more than 10 years prior to his departure.
According to Defendant, Plaintiff was only on the police force from September 2004 to December 2010, thus, Plaintiff has agreed to produce all records.

Stockton PD filed a non-opposition to the motion, but requests that the Court issue a protective order pursuant to Evid. Code §1045(e).

Plaintiff filed a partial objection to Stockton PD’s proposed protective order. Plaintiff objects to the extent the protective order prohibits himself from disclosing any of the information contained therein to third parties.

A party may seek discovery or disclosure of a peace officer’s personnel records by filing a noticed motion showing good cause, “setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (Evid. Code section 1043.) The moving party must establish good cause. (Cal. Evid. Code § 1043(b)(3) .) By way of affidavit, a moving party shows good cause by demonstrating the materiality to the subject matter of the lawsuit and a reasonable belief that the agency possesses the type of information sought. (People v. Sanderson (2010) 181 Cal.App.4th 1334,1339-1340.) Good cause in the context of a Pitchess motion is a “relatively relaxed” standard designed to “insure the production” for trial court review of “all potentially relevant documents.” (Id. at 1340 [citation omitted].) In

considering the motion, the court must balance plaintiff’s need for the information sought against defendant’s need to preserve the confidentiality of its records. (City of Los Angeles v. Superior Court (1973) 33 Cal. App. 3d 778, 785.)

Given that Plaintiff claims Defendant ruined his career with the Stockton PD, Defendant has shown good cause for the production. Coupled with Plaintiff and Stockton PD’s non-opposition, the motion is GRANTED.

In conducting the Pitchess hearing, the parties are directed to review People v. Mooc, (2001) 26 Cal. 4th 1216. 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 [requesting party] only those records that are found both relevant and otherwise in compliance with statutory limitations.” (Id. at 1227 [emphasis added].) Thus, the Court is required to conduct an in camera review of the records before any record can be disclosed.

Stockton PD shall be prepared to produce for the Court’s review and consideration all documents potentially responsive to Defendant’s requests no later than April 29, 2018 (unless Defendant agrees to a later date memorialized in writing).

Defendant shall, after meeting and conferring with Stockton PD re: dates on which the custodian is available to appear for the in camera review, contact the clerk in Department 54 to schedule the in camera review. The custodian may be accompanied by counsel not associated with Plaintiff or Defendant.

The Court directs Plaintiff, Defendant and the Stockton PD to meet-and-confer so as to formulate a mutually agreeable protective order and to submit for the Court’s consideration the agreed upon proposed protective order prior to the in camera review.