Hearing Date: February 18, 2020

Case Name: Carranza v. City of Los Angeles, et al.

Case No.: 19STCV02594

Motion: Pitchess Motion

Moving Party: Plaintiff Lillian Carranza

Responding Party: Defendant City of Los Angeles

This is an action in which Plaintiff, a captain III with the LAPD, alleges that her coworkers subjected her to harassment by circulating a photo of a naked woman they claimed was Plaintiff. On January 25, 2019, Plaintiff filed the operative Complaint for sexual harassment—hostile work environment in violation of the FEHA.

Plaintiff brings a Motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 to obtain:

1. The complete Los Angeles Police Department Internal Affairs investigation file (including the complaint face sheet, complaint adjudication form, letter of transmittal, complaint investigation report, addenda, chronological log, and witness statements in any and all existing forms, including but not limited to audio recording and transcript form) for LAPD Internal Affairs investigation CF # 18-003240 pertaining to the allegations that employees circulated a photograph of a nude woman and indicated it was Plaintiff.

2. The complete file for any investigation(s) conducted by the Los Angeles Police Department (including the complaint face sheet, complaint adjudication form, letter of transmittal, complaint investigation report, addenda, chronological log, and witness statements in any and all existing forms, including but not limited to audio recording and transcript form) into any complaint(s), report(s), or allegation(s) by or against any Department employee(s), including but not limited to any complaint against Corey Palka, pertaining to the photograph at issue in CF # 18-003240, a copy of which is attached hereto as Exhibit “2”.

“[T]he personnel records of peace officers and custodial officers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from 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. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.” (Penal Code § 832.7.)

A Pitchess motion is required when “discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code [(concerning records of investigations of public complaints against peace officers)] or information from those records.” (Evid. Code § 1043(a).)

Evidence Code § 1043(b) states that a Pitchess motion must include: (1) identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard; (2) a description of the type of records or information sought; and (3) affidavits 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 the governmental agency identified has the records or information from the records.

The showing of good cause is “a relatively low threshold for discovery.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) “[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) “The information sought must, however, be ‘requested with adequate specificity to preclude the possibility that defendant is engaging in a ‘fishing expedition.’ ” (Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 85 (quoting Pitchess, supra, 11 Cal.3d at p. 538.)

“A finding of ‘good cause’ under [Evidence Code] section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, [Evidence Code] section 1045 provides that the court shall then examine the information ‘in chambers’ in conformity with [Evidence Code] section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint …’ and (3) facts which are ‘so remote as to make disclosure of little or no practical benefit.’ ( [Evid.Code,] § 1045, subd. (b).)

“In addition to the exclusion of specific categories of information from disclosure, [Evidence Code] section 1045 establishes general criteria to guide the court’s determination and insure that the privacy interests of the officers subject to the motion are protected. Where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the statute requires the court to ‘consider whether the information sought may be obtained from other records … which would not necessitate the disclosure of individual personnel records.’ ( [Evid.Code,] § 1045, subd. (c).) The law further provides that the court may, in its discretion, ‘make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.’ ( [Evid.Code,] § 1045, subd. (d), italics added.) And, finally, the statute mandates that in any case where disclosure is permitted, the court ‘shall … order that the records disclosed or discovered shall not be used for any purpose other than a court proceeding pursuant to applicable law.’ ( [Evid.Code,] § 1045, subd. (e), italics added.)

. . .

If the court finds good cause, the second step involves an in camera review of the personnel records. (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61, 52 Cal.Rptr.3d 731.) There, the court, in the presence of the custodian of records, a court reporter, and sometimes the attorney for the agency and the officer, personally examines the potentially relevant records in chambers. (Evid.Code, § 915, subd. (b); People v. Mooc, supra, 26 Cal.4th at pp. 1226, 1229, 114 Cal.Rptr.2d 482, 36 P.3d 21.) As explained in Mooc, “The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statement, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.] ¶ The trial court should then make a record of what documents it examined before ruling on the Pitchess motion…. Of course, to protect the officer’s privacy, the examination of documents and question of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.” (People v. Mooc, supra, 26 Cal.4th at p. 1229, 114 Cal.Rptr.2d 482, 36 P.3d 21, fn. omitted.)

If the court determines there are personnel records that are “relevant to the subject matter involved in the pending litigation,” it orders the records produced and the custodian of records must then prepare them for production. (Evid.Code, § 1045, subd. (a); People v. Mooc, supra, 26 Cal.4th at p. 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21.)

(Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1539.)

On December 13, 2019, the Court tentatively found “good cause” for the discovery sought. That ruling is incorporated herein by reference. The Court, however, continued the Motion for supplemental briefing on two issues relating to the second step of the Pitchess framework: (1) whether disclosure is limited to witness identifying information as opposed to full records and (2) whether defense counsel can be present for the impending in camera proceeding.

On the first issue, the Court agrees with Plaintiff that disclosure is not limited to witness names, addresses, and telephone numbers. This is because the records sought—including officer analysis and conclusions—could be directly relevant to establishing (1) the occurrence of harassment and (2) whether such harassment was exacerbated by Defendant’s failure to take remedial action. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1090 [“The central rationale underlying the rule limiting discovery to witness identifying information is that the actual documents of third party complaint information often have minimal relevance and constitute a substantial invasion of officer privacy. This reasoning does not apply in this case. As compared with the third party complaint situation, the information contained in the Internal Affairs report is highly probative. Guindazola has the burden of proving the elements of his claims, and the investigation at issue concerns the very incident that is the subject of the civil claim.”].) Of course, the Court cannot say at this moment what precisely will be produced without an examination of the actual documents to be provided by Defendant’s custodian of records.

On the second issue, Plaintiff is incorrect that defense counsel cannot be present at the upcoming in camera proceeding and has cited nothing to directly support her position. In fact, the only explicit commentary on the issue provides that the custodian of records may have his or her counsel of choice present. (See, e.g., Evid. Code § 915; Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1541 [“If the court finds good cause, the second step involves an in camera review of the personnel records. . . . There, the court, in the presence of the custodian of records, a court reporter, and sometimes the attorney for the agency and the officer, personally examines the potentially relevant records in chambers.”] (emphasis added)); People v. Mooc (2002) 26 Cal.4th 1216, 1226 [“ ‘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” ’ ”]; Riske v. Superior Court (2018) 22 Cal.App.5th 295, 302 [“During the April 12, 2017 in camera hearing the City’s custodian of records, accompanied by the City’s counsel in the instant litigation, produced the TEAMS reports and the two most recent personnel evaluations of 10 of the 14 candidates who were selected or promoted to new positions rather than Riske.”] (emphasis added).)

Plaintiff also argues that neither the custodian of records nor defense counsel can engage in substantive discussions at the in camera proceeding as to the relevancy of the subject records.

However, Defendant does not argue to the contrary, instead stating, “[f]ollowing the in camera review, the Court should announce its preliminary intent regarding disclosure in open court, and the parties can then undertake oral argument if they wish to be heard.” (Supp. Brief at p. 15.)

Further, the Court intends to limit in camera discussions to the issue of the completeness of the record. (See People v. Mooc (2002) 26 Cal.4th 1216, 1226 [“The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. (1b) A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record.”].)

The Court will discuss a date for in camera review at the Motion hearing. “ ‘[T]he custodian of records should bring to court all documents “potentially relevant” to the … motion.’ (Mooc, supra, 26 Cal.4th at p. 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21.) ‘[I]f the custodian has any doubt whether a particular document is relevant, [the custodian] should present it to the trial court.’ (Id., at p. 1229, 114 Cal.Rptr.2d 482, 36 P.3d 21.)” (Ass’n for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 42.) The Court will require production of relevant and permissible documents subject to an appropriate protective order.