Case Number: BC495973 Hearing Date: February 17, 2015 Dept: 50

BLAKE v. CALIFORNIA DEPT. OF MOTOR VEHICLES, ET AL.
CASE NO. BC495973

MOTION BY PLAINTIFF NOELLE BLAKE FOR DISCOVERY UNDER PITCHESS V. SUPERIOR COURT

Background

Plaintiff Noelle Blake alleges that she bought a used car in March 2010 from a dealership in Azusa. (First Amended Complaint, ¶ 11.) Blake alleges that the Pomona office of the Department of Motor Vehicles (DMV) refused to permit her to renew her vehicle registration in March 2011 because of suspected fraud by the dealership, and the DMV referred Blake to the “DMV Investigations Department.” (Ibid.) Blake alleges that in May 2011 the DMV assigned her case to Investigator Omar Alfaro, an employee of the DMV. (Id., ¶¶ 5, 12.) Blake alleges that Alfaro called her in July 2011 and suggested that they meet at a Starbucks, but Blake refused because she was concerned that Alfaro wanted to establish a personal relationship rather than conduct an investigation. (Id., ¶ 13.) Blake alleges that Alfaro left her message in July 2011 that he had “retrieved her tags from the dealership and wanted to drop them off at her house,” but that Blake wanted to arrange a time she could pick the tags up from Alfaro at the DMV. (Id., ¶¶ 13-14.)

Blake alleges that she contacted Alfaro on August 31, 2011 and Alfaro instructed her to ask for Alfaro in order to avoid waiting in line. (Id., ¶ 14.) Blake alleges that on September 2, 2011 she went to the Whittier DMV office with her mother and daughter and asked for Alfaro, and that Alfaro led the three of them to his cubicle to explain the details of his investigation. (Id., ¶ 15.) Blake alleges that Alfaro then escorted the group back to the front counter and asked the clerk to waive some of Blake’s fees. (Ibid.) Blake alleges that once she paid the remaining fees Alfaro gave Blake the vehicle tags but did not give her the license plates. When she asked for her plates Alfaro asked for her identification. (Id., ¶ 16.) Blake alleges that she did not have her driver’s license with her that day but offered to show him her official “CDCR employee identification,” at which point Alfaro asked her to come with him back to his office. (Ibid.) As they returned to Blake’s office Alfaro told Blake that she was under arrest for an outstanding warrant, although he did not know what the warrant was for, and that when they reached his office Alfaro handcuffed Blake and confiscated her purse. (Id., ¶ 17.) Blake alleges that Alfaro then searched her purse and informed her mother that Blake was under arrest. (Id., ¶ 18.) Blake alleges that, although it was apparent that she did not have any weapons because she was wearing a black t-shirt material dress and flip-flop sandals, Alfaro conducted not merely a pat down for weapons but “a highly-intrusive search” that was “well beyond that necessary to ensure that she was not concealing any weapons.” (Id., ¶¶ 19-22.) Blake alleges that Alfaro then placed her in the back cabin of an unmarked Ford truck to take her to the Sheriff’s Department in such a way that her dress no longer covered her underwear, stared at her during the drive, complimented the designs on her toenails, and asked her to contact him when she got out of jail. (Id., ¶¶ 23-25.) Blake alleges that after her release she called Alfaro on September 5, 2011 to retrieve her tags and license plates, and he told her she would have to come see him to pick them up. (Id., ¶ 26.) Blake alleges that when Blake’s mother contacted Alfaro to pick up the plates, Alfaro mailed them to Blake. (Id., ¶ 26.)

Blake alleges causes of action for violation of 42 USC section 1983, violation of under Civil Code section 52.1, violation of Civil Code section 51.7, sexual harassment under Civil Code section 51.9, sexual battery under Civil Code section 1708.5, and false imprisonment. Blake has filed a Pitchess motion seeking production of records relating to DMV Case Nos. 1220A00429 and 1220A00186, which the DMV identified in its privilege log as responsive to Request for Production Nos. 6, 8, 10-12, 30-35. During meet and confer discussions between counsel, counsel for the DMV stated that the DMV would only produce these documents pursuant to the Pitchess procedure. (Brown Decl., ¶¶ 3-5.)

Discussion

A. The Pitchess Procedure

The legislature enacted Penal Code section 832.7 and Evidence Code sections 1043 and 1046 in response to the Supreme Court’s decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531. (See Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1538; Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 425.) In Pitchess, the court held that criminal defendants have the right to discover relevant information in a peace officer’s personnel records relating to citizen complaints, and, in “adopting the statutory scheme, the Legislature not only reaffirmed but expanded upon the principles of criminal discovery articulated in Pitchess.” (Rosales, supra, 82 Cal.App.4th at p. 425, citing Michael v. Gates (1995) 38 Cal.App.4th 737, 742.) Evidence Code section 1043 provides that in “any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records.” (Evid. Code § 1043, subd. (a).) Penal Code section 832.5 prescribes how citizens may obtain personnel files of peace officers. (See Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045 [“[t]he Pitchess procedure is . . . in essence a special instance of third party discovery”].) “Personnel records” include records relating to personal data, medical history, employee benefits, employment advancement, appraisal, or discipline, complaints or investigations regarding an officer’s performance of duties, and any other information the disclosure of which would constitute an unwarranted invasion of personal privacy. (Pen. Code § 832.8.) The procedure consists of two steps. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)

1. Step One

The party seeking disclosure must first file a motion that identifies the peace officer, the agency in possession of the records, a description of the records, 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 on reasonable belief that the governmental agency has the requested documents. (Evid. Code § 1043, subd. (b)(3).) The “good cause” declaration of section 1043(b) must be sufficiently specific “to preclude the possibility of [the moving party] simply casting about for any helpful information.” (People v. Mooc (2001) 26 Cal.4th 1216, 1226; see Garcia v. Superior Court (2007) 42 Cal.4th 63, 70.) An attorney declaration based on information and belief and containing hearsay, however, may show good cause in support of a Pitchess motion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086; see Warrick, supra, 35 Cal.4th at p. 1026 (“the Legislature expressly considered and rejected a requirement that counsel’s affidavit be made on personal knowledge”). Thus, the moving party need only show a “plausible factual foundation” for discovery, which is defined as a scenario of officer misconduct that might occur or could have occurred. (Warrick, supra, 35 Cal.4th at p. 1026.) The “good cause” requirement consists of a “relatively low threshold,” which may be the presentation of a scenario that might have or could have occurred. (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048; see 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, under which 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”]; Haggerty, supra, 117 Cal.App.4th at p. 1086 [“[i]nformation is material if it will facilitate the ascertainment of the facts and a fair trial”].)

Counsel for Blake, Stacey Brown, states that she has discussed the documents relating to DMV Case Nos. 1220A00429 and 1220A00186 with the counsel for the DMV, Dan Helfat, which the DMV identified in its privilege log as responsive to Request Nos. 6, 8, 10-12, 30-35. Thus, the DMV obviously has the documents. (Brown Decl., ¶¶ 3-5, 10; see Evid. Code § 1043, subd. (b)(3) [good cause declaration must set forth the materiality of the records, and that the governmental agency has the requested documents].) With respect to materiality, the DMV has admitted that documents relating to DMV Case Nos. 1220A00429 and 1220A00186 are responsive to Request Nos. 6, 8, 10-12, 30-35, which sought, among other things, documents memorializing statements by Alfaro or other DMV employees relating to Alfaro’s search, detention, and arrest of Blake on September 2, 2011, and documents regarding the search, detention, and arrest of Blake. (See Brown Decl., ¶ 3, Exhs. A [responses to Request Nos. 8, 10-11, and 30-35], B [Log Nos. 2, 14].) Moreover, Brown states that internal DMV Case Nos. 1220A00429 and 1220A00186 document investigations of the incident by DMV employees Christina Kutches, Ken Garcia, and Andy Au-Yeung, who interviewed Alfaro and other DMV employees, which may further document Blake’s allegations in this action. (Brown Decl., ¶¶ 8-10.) This is a sufficiently “plausible factual foundation” to justify the “good cause” requirement under Pitchess. (See Warrick, supra, 35 Cal.4th at p. 1026.) The DMV concedes that “California law mandates resolution of plaintiff’s motion” in an “in-camera review of the records sought.” (See Opposition, 2:4-6.)

2. Step Two

“If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance.” (Warrick, supra, 35 Cal.4th at p. 1019, citing Mooc, supra, 26 Cal.4th at pp. 1226-27; Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) After personally examining the records in camera, the trial court orders 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 p. 1226.) The court must exclude from disclosure “[i]nformation consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought,” and facts “that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code § 1045, subd. (b)(1), (3).) If the court orders disclosure, 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.” (Evid. Code § 1045, subd. (e); see Alford, supra, 29 Cal.4th at pp. 1039-40.)

The DMV asks the court to remember three things during the in-camera review. First, the DMV asks the court to remember during its in-camera review that the need to preserve the confidentiality of the information outweighs the need for disclosure under Evidence Code section 1040, subdivision (b)(2), because keeping the results of internal investigations confidential encourages participation in the investigations. The DMV, however, cites no authority for this proposition or for this proposition as a reason to deny Pitchess discovery. Moreover, Brown’s declaration shows that the DMV’s investigation consisted principally of interviewing Alfaro and other DMV witnesses. (Brown Decl., ¶ 8.) “‘All statements made by percipient witnesses and witnesses . . . related to the incident in question’ . . . are discoverable under the standards set forth in Pitchess.” (Haggerty, supra, 117 Cal.App.4th at p. 1090, quoting Robinson v. Superior Court (1978) 76 Cal.App.3d 968, 978.)

Second, the DMV reminds the court that under Government Code section 3303(f), “[n]o statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding,” except, for example, for impeachment purposes. (See Govt. Code, § 3303, subd. (f)(3) [“[t]his subdivision shall not prevent statements made by a public safety officer under interrogation from being used to impeach the testimony of that officer after an in camera review to determine whether the statements serve to impeach the testimony of the officer.”].) As Blake correctly argues on reply, however, section 3303 is a rule of admissibility not discoverability under Pitchess.

Third, the DMV states that the court must also consider the privacy rights of the third party witnesses whose statements the court will review in-camera review. Blake’s right to discover directly relevant information necessary to the fair resolution of her lawsuit, however, outweighs the privacy rights of the names and contact information for third party witnesses, where those witnesses are percipient witnesses interviewed by the DMV in its investigation of Blake’s complaint. (See John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199, 1209; Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853-54; see also Britt v. Superior Court (1978) 20 Cal.3d 844, 859-60 [privacy objections are resolved by balancing the right of privacy against the need for discovery, including where disclosure is essential to the fair resolution of the lawsuit].)

Therefore, the court will review the responsive documents in chambers and disclose only information that is “relevant to the matter involved in the pending litigation.” (Evid. Code § 1045, subd. (a); Warrick, supra, 35 Cal.4th at p. 1019, citing Mooc, supra, 26 Cal.4th at pp. 1226-27; Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) The court will not order production of any “[i]nformation consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought,” and facts “that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code § 1045, subd. (b)(1), (3).) The court will also order that the disclosed information may not be used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code § 1045, subd. (e); see Alford, supra, 29 Cal.4th at pp. 1039-40.)

In addition, “[w]hen the trial court, in exercising its discretion, grants a defendant’s Pitchess motion, it orders disclosure of the names, addresses, and telephone numbers of individuals who have in the past witnessed alleged officer misconduct or who have complained of misconduct by the officer named in the motion.” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 5; see Warrick, supra, 35 Cal.4th at p. 1019 [“[t]ypically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer” because that “practice ‘imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer’s privacy concerns are substantial”]; Alford, supra, 29 Cal.4th at p. 1039 [“[a]s a further safeguard, moreover, the courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead . . . that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question.”]; see also People v. Prince (2007) 40 Cal.4th 1179, 1283.) If initial Pitchess “discovery has proved to be inadequate the person seeking discovery may move for further discovery.” (City of Tulare v. Superior Court (2008) 169 Cal.App.4th 373, 382; see Kelvin L. v. Superior Court (1976) 62 Cal. App. 3d 823, 828-29 [defendant may move for further discovery if “names, addresses and telephone numbers” of complainants and witnesses “prove inadequate”].) The court, however, has discretion to release particular records within its discretion. (See Alford, supra, 29 Cal.4th at p. 1039.) Typically, the court orders production of the record only where “disclosure of the witness identities would not provide [plaintiff] with the substance of the relevant information found in the report.” (Haggerty, supra, 117 Cal. App. 4th at p. 1089.)

Blake apparently already knows the names of the witnesses in DMV Case Nos. 1220A00429 and 1220A00186. (Brown Decl., ¶ 8.) Thus, the court need only search for names that Blake is not already aware of (Alfaro, DMV Investigators Paul Poso, John Rivera, Rickey Hawkins, Warren Tapia, and Jim Philips, DMV Licensing Registration Examiner Juana Lugo, DMV Manager Natalia Gutierrez, and Los Angeles County Sheriff’s Department Deputy Yvette Mattes, and DMV Investigators Christina Kutches, Ken Garcia and Andy Au-Yeung, who conducted the interviews). (See ibid.) The court will look for documents that reveal the names of other witnesses, and will order the disclosure of only the witness identities, unless it appears that the witness would not testify truthfully by the nature of the statement in the investigative file. (Haggerty, supra, 117 Cal.App.4th at p. 1089-90.)

Disposition

Plaintiff’s motion is granted. The in-camera review will be on _____________, 2015, 8:30 a.m., Department 50. The court will order disclosure of the names, addresses, and telephone numbers of individuals revealed by the records, limited to the past five years. The court also orders that the disclosed information may not be used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code § 1045, subd. (e).) The court will also order disclosure of any records containing direct evidence which would not likely be revealed through deposition of those identified in the document. (See Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1089 [releasing internal affairs report because disclosure of the witness identities would not have provided plaintiff with the substance of the relevant information found in the report].) Plaintiff is to give notice.