Case Number: 19STCV02594 Hearing Date: December 13, 2019 Dept: 58

Judge John P. Doyle
Department 58

Hearing Date: December 13, 2019

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

Tentative Ruling: The Pitchess Motion is granted. The Court will hold an in camera review of documents provided by Defendant.

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.)

Defendant principally argues the Motion fails to show good cause for the subject records because no specific harassment incident or peace officer is identified.

The Court respectfully disagrees. There is good cause for the subject documents which relate only to investigations as to the circulation of the subject sexually explicit photo. Indeed, such documents relate to the substantive merit of whether hostile work environment harassment took place. The documents sought need not necessarily pertain only to misconduct taking place within Plaintiff’s sight (EEOC v. PVNF, L.L.C. (2007) 487 F.3d 790, 798 [“We have never held, nor would we, that to be subjected to a hostile work environment the discriminatory conduct must be both directed at the victim and intended to be received by the victim.”]), and it is sufficient that Plaintiff has pointed to knowledge that coworkers throughout the LAPD circulated the subject photo. (Faiz Decl., Exhibit 1.)[1] Additionally, Defendant likely possesses the subject documents as it appears undisputed that an investigation relating to the subject photo took place.

The Court rejects the contention that Plaintiff must specifically set forth the names of those peace officers as to which records are sought. The Court believes that for the purposes of Evidence Code § 1043(b) it is sufficient to set forth an identifiable group of peace officers—here, those involved in the investigation as to the subject photo. This makes sense as the identity of many such officers could be in the exclusive knowledge of Defendant and could easily be ascertained given the description of the documents sought. This is further supported by the fact that courts have contemplated that peace officer identities can be disclosed through Pitchess procedures. (See generally Ass’n for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 43.)

The Court concludes that the evidence provided by Plaintiff meets the low threshold for demonstrating good cause for the subject discovery. Thus, the Court will hold an in camera review without Plaintiff and her counsel present. “ ‘[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.)” (Id. at p. 42.) The Court will require production of relevant and permissible documents subject to an appropriate protective order.

[1] The objection to the cited evidence is overruled. All other objections are overruled as immaterial.