Grima v. County of Santa Clara
Case No. 17cv305192

Plaintiff is a former deputy sheriff in Santa Clara County. He is suing the County and a high-ranking member of the Sheriff’s Department (William Chan), claiming age and disability discrimination, harassment, and retaliation. In his civil Pitchess motion, Plaintiff now seeks personnel records of various individuals in the Sheriff’s Department, including Sheriff Laurie Smith. The County opposes the motion.

After considering the briefs and accompanying papers, the Court issues the following tentative ruling:

1. This Pitchess discovery scheme for discovery of peace officer personnel records applies to civil cases, not just criminal cases. (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1423–1424.) The court in Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655–656, captured well the key elements:

Good cause for discovery of peace officer personnel records under the statutory scheme exists when the party seeking the discovery shows the “materiality” of the information to the subject matter of the pending litigation and states upon “reasonable belief” that the agency has the type of information sought. (Evid. Code, § 1043, subd. (b)(3); People v. Gaines (2009) 46 Cal.4th 172, 179, 92 Cal.Rptr.3d 627, 205 P.3d 1074 (Gaines); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019, 29 Cal.Rptr.3d 2, 112 P.3d 2 (Warrick).) A sufficient threshold showing is established if the party seeking records demonstrates through affidavits a “plausible factual foundation” for how the records are material to the subject matter of the pending litigation. (Warrick, at p. 1025, 29 Cal.Rptr.3d 2, 112 P.3d 2.) The affiant’s credibility is not at issue; the trial court determines whether a plausible factual foundation has been established; it does not determine whether the moving party’s version of events is credible or persuasive. (Ibid.)

This good cause requirement creates a “ ‘relatively low threshold for discovery.’ ” (Warrick, supra, 35 Cal.4th at p. 1019, 29 Cal.Rptr.3d 2, 112 P.3d 2; accord, Gaines, supra, 46 Cal.4th at p. 179, 92 Cal.Rptr.3d 627, 205 P.3d 1074 [“[a] showing of good cause [under Evidence Code section 1043] is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents’ ”].) If this threshold showing of good cause is met, the trial court must then review *656 the pertinent documents in chambers in conformity with Evidence Code section 915 and disclose only that information falling within the statutorily defined standards of relevance. (Evid. Code, § 1045, subd. (a); Warrick, at p. 1019, 29 Cal.Rptr.3d 2, 112 P.3d 2; City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 19, 124 Cal.Rptr.2d 202, 52 P.3d 129.)

2. Even taken together, and even considering the “relatively relaxed standard” the Court must use, counsel’s declarations do not establish a plausible factual foundation for how the requested records from Sheriff Smith and Training Officer Kind might be material to the underlying case. Specifically:

A. Sheriff Smith: The allegation against Sheriff Smith arises out of an alleged incident that occurred more than five years ago, which makes documents relating to the allegation off-limits for Pitchess discovery in this civil case. (City of Los Angeles v. Superior Court (2002) 29 Cal. 4th 1.) To the extent counsel’s reply declaration seems to imply there were multiple instances of harassment, no detail is provided.

Also, the allegation against Sheriff Smith relates to sexual harassment. But Plaintiff is not suing on a sexual harassment theory. Thus, the relevance of the allegations is nil, even under the relaxed standard the Court employs in this context.

B. Training Officer Kind: There is only one comment alleged, and it is ambiguous as to whether it refers to the age or disability discrimination claims now being made by Plaintiff. And Plaintiff has not alleged that any kind of complaint was made against Training Officer Kind, either by Plaintiff or anyone else, for this comment or similar comments. There is no plausible factual scenario where Training Officer Kind’s records are relevant.

3. But counsel’s declarations do establish a plausible factual scenario for how Lieutenant Borzginner’s and Sergeant Darnell’s records might be relevant. Specifically, they allege that the Sheriff’s Department had a pattern of ignoring complaints from Plaintiff (or ignoring complaints about conduct similar to what Plaintiff allegedly experienced). These allegations, if believed by a factfinder, would support Plaintiff’s theory that he was harassed, retaliated against, and discriminated against by the Department.

Therefore, the Court finds that in camera review of the following records would be appropriate:

A. Sgt. Darnell:

i) Documents that concern, relate to or otherwise constitute the harassment and/or discrimination complaint made against Darnell in 2014;
ii) Documents that concern, relate to or otherwise constitute the investigation of harassment and/or discrimination allegations made against Darnell;
iii) Documents that concern, relate to or otherwise constitute the findings and recommendations following the investigation of harassment and/or discrimination allegations made against Darnell.

B. Lt. Borzginner:

i) Documents that concern, relate to or otherwise constitute the harassment and/or discrimination complaint made against Borzginner in 2016;
ii) Documents that concern, relate to or otherwise constitute the investigation of harassment and/or discrimination allegations made against Borzginner;
iii) Documents that concern, relate to or otherwise constitute the findings and recommendations following the investigation of harassment and/or discrimination allegations made against Borzginner.

Granted, Evidence Code section 1045, subdivision (c) states that “In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.” The Court has made that consideration, and finds that the information sought by Plaintiff here likely cannot be obtained through other, non-personnel records.

4. The Court notes that unlike in criminal cases, courts in civil cases can disclose to the requesting party’s counsel actual documents from a peace officer’s personnel file if relevant, as opposed to merely the name, phone number, and address of relevant witnesses. (See Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1090.)
The parties can enter into (if they’ve not done so already) a protective order to keep any disclosed information confidential. The Court, however, will not make any decisions about what to produce (and what redactions, if any, are appropriate) until it reviews these officers’ files.

5. The Court also notes various limitations on the scope of review:

A. the Court will not be reviewing psychological records from these two officers’ files for potential disclosure. At this time, plaintiff has not established the need to invade the officers’ privacy to that degree.

B. the Court will not be reviewing the officer’s “rap sheets” (if any). Those documents are not material to this age/disability discrimination case. And counsel’s declarations do not explain how these records would be material to the underlying case.

C. external citizen complaints are not relevant here, as this case deals with alleged internal discrimination, retaliation, and harassment. And counsel’s declarations do not explain how these records would be material to the underlying case.

D. the Court will not perform a general review of the file for dishonesty, lack of credibility, prior wrongful acts involving moral turpitude, and “[d]ishonesty/untruthfulness/veracity/false testimony/false arrest/conduct unbecoming an
officer/use of excessive force/neglect of duty.” These topics are not relevant to the allegations in the underlying case. Counsel’s declarations fail to show how they would be material.

E. to the extent there are reports that might otherwise be relevant, the Court will not order disclosure of “conclusions” or mental processes. Only the outcome of the investigations (i.e., the discipline imposed) may be disclosed, along with the name of the complainant, as Plaintiff has not made a sufficient showing that such conclusions or mental processes of the investigators, as opposed to their discipline imposed, of “meaningful benefit in the litigation.” (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1088–1089.)

F. The Court will not order disclosure through the Pitchess process of “written procedures established by the Santa Clara County Sheriff‘s Office to investigate citizen complaints against the department or its personnel.” (Opening Brief.) These are subject to the standard discovery process.

6. The Court, in conjunction with the parties, will schedule a date for in camera review of these two officers’ personnel files. Plaintiff is ordered to supply a court reporter for that review. Of course, plaintiff and his counsel cannot be present during the in camera review. (See People v. Woolman (1974) 40 Cal.App.3d 652, 65