Case Number: 19STCV06709 Hearing Date: February 14, 2020 Dept: 76

HEARING DATE: February 14, 2020

CASE NO.: 19STCV06709

MOVING PARTY: Plaintiff, Stacie Hernandez

RESPONDING PARTY: Defendants, California Department of Corrections and Rehabilitation, Rudy Esparza, and Lisa Williams
Motion for Discovery of Peace Officer Personnel and Other Records

Legal Standard:

In general, the personnel records of peace officers are protected from discovery pursuant to Penal Code Section 832.7. The exclusive means for obtaining these materials is through a Pitchess motion. (County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1611.) A Pitchess motion shall (1) identify 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 record, and the time and place at which the motion for discovery or disclosure shall be heard, (2) describe the type of records of information sought, and (3) present affidavits showing good cause for the discovery or disclosure sought. (Evid. Code § 1043, subd. (b).)

The standard of “good cause” required for Pitchess disclosure is “relatively relaxed” to “insure the production” for trial court review of “all potentially relevant documents.” (People v. Gaines (2009) 46 Cal.4th 172, 179.) Good cause for discovery exists when the party shows (1) materiality to the subject matter of the pending litigation and (2) a reasonable belief that the agency has the type of information sought. (Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413.) 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. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655 (citing Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027).) A plausible scenario is one that might or could have occurred. (Warrick, supra, 35 Cal.4th at 1026.) In assessing the showing, “[t]he 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.” (Riske, supra, 6 Cal.App.5th at 655.)

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 relevant (Evid. Code § 1045). (Warrick, supra, 35 Cal.4th at 1027.)

Discussion:

Plaintiff moves to compel Defendants to produce personnel records with respect to the following categories: (1) Plaintiff’s personnel and payroll records, including all communications and documentation related to her medical leave and requests for accommodation (Document Production Request Nos. 59, 62, 64-70, 72-74, 76, 78, 81-85, 93-95, 97-98, 104); (2) investigation files from Defendants’ investigations of Plaintiff’s complaints of harassment, discrimination, and retaliation (Form Interrogatory Nos. 207.1, 208.2, 215.1, 215.2; Special Interrogatory Request No. 46; Document Production Request Nos. 115-118); (3) complaints from other employees at the same location related to sexual harassment or retaliation from making protected complaints during the past ten years, and the investigation files from those complaints (Special Interrogatory Request Nos. 48-51, 53-60; Document Production Request Nos. 108-113, 119-120); and (4) information and documents supporting Defendants’ denials of Plaintiff’s allegations and affirmative defenses (Form Interrogatory No. 15.1; Document Production Request No. 17).

Good Cause

Plaintiff states that good cause supports each of these requests.

In this action, Plaintiff has asserted a cause of action for gender and disability discrimination and retaliation in violation of the FEHA. To establish a claim for unlawful discrimination, the plaintiff must prove that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive.” (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1004.) The retaliation cause of action consists of the following elements: (1) the plaintiff engaged in a protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942.) Whether Plaintiff was a member of a protected class, whether Plaintiff engaged in protected activity, and whether Defendants subjected Plaintiff to an adverse employment action by (among other things) terminating Plaintiff are readily ascertainable without reference to these personnel records.

Accordingly, Plaintiff’s good cause showing hinges on whether the records tend to establish a discriminatory motive and causal link between the asserted protected activity and the adverse employment action. “At least three types of evidence can be used to show pretext: (1) direct evidence of retaliation, such as statements or admissions, (2) comparative evidence, and (3) statistics.” (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 663, quoting Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816.) Like in Riske, Plaintiff’s requests for personnel records partly falls into the second category – comparative evidence. Comparative evidence is “evidence that [the plaintiff] was treated differently from others who were similarly situated.” (Iwekaogwu, supra, 75 Cal.App.4th at 817.) “Another employee is similarly situated if, among other things, he or she ‘engaged in the same conduct without any mitigating or distinguishing circumstances.’” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172.)

Category 1

The first category of documents Plaintiff seeks to have Defendants produce are Plaintiff’s personnel and payroll records, including all communications and documentation related to her medical leave and requests for accommodation (Document Production Request Nos. 59, 62, 64-70, 72-74, 76, 78, 81-85, 93-95, 97-98, 104). Plaintiff’s own personnel and payroll records are clearly relevant to, at a minimum, proving the following: Plaintiff’s assignments and job duties, her performance of her duties, the facts leading to her separation of her employment, her medical leave, and the calculation of damages. (Schulman Decl., ¶ 23.)

In its opposition, Defendants state that Plaintiff’s request for the above referenced information, including her personnel files, medical leave, and resignation documents were already produced and bate stamped as “CDCR-C-0001 to CDCR-C-0313.” (Vallecillo Decl., ¶¶ 2-3, Exhs. 1-2.)

Accordingly, the motion is DENIED AS MOOT as to Category 1.

Category 2

The second category of documents Plaintiff seeks to have Defendants produce are investigation documents from Defendants’ investigations of Plaintiff’s complaints of harassment, discrimination, and retaliation (Form Interrogatory Nos. 207.1, 208.2, 215.1, 215.2; Special Interrogatory Request No. 46; Document Production Request Nos. 115-118). Plaintiff alleges having reported the sexual harassment, assault and battery to Sergeant Davis on May 16, 2017. (FAC, ¶ 25.) It is alleged that Plaintiff, after experiencing retaliation by Sergeant Esparza and Sergeant Williams (FAC, ¶ 26), made a complaint to the EEOC regarding Defendants’ retaliation on June 5, 2017, and made a complaint to the DFEH regarding the discrimination, harassment, and retaliation on July 11, 2017. (FAC, ¶¶ 29-30.) Plaintiff asserts that documents related to the investigation of Plaintiff’s complaints are relevant to Plaintiff’s cause of action for failure to prevent discrimination, harassment, and retaliation; to Defendants’ liability for the acts of its employees; and to prove Defendant’s discriminatory and retaliatory intent. (Vallecillo Decl., ¶ 24.) Plaintiff also asserts that witness statements are relevant to impeach the speakers and to challenge the credibility of defense witnesses. (Id.) The court finds this reasoning persuasive as the requested records have obvious relevancy to his lawsuit which is predicated on those complaints.

Accordingly, good cause may support the production of documents pursuant to Category 2 – investigation documents from Defendants’ investigations of Plaintiff’s complaints of harassment, discrimination, and retaliation.

Category 3

The third category of documents Plaintiff seeks to have Defendants produce are “complaints from other employees at the same location related to sexual harassment or retaliation from making protected complaints during the past ten years, [and] the investigation files from those complaints” (Special Interrogatory Request Nos. 48-51, 53-60; Document Production Request Nos. 108-113, 119-120). (Schulman Decl., ¶ 25.) Plaintiff seeks the following information as comparative evidence: (1) all documents relating to complaints to the DFEH and EEOC about Defendants for discrimination, harassment, and retaliation in the last five years (Document Production Request Nos. 108-113); (2) all documents relating to any complaints made by any employees of CDCR working at the California State Prison in Lancaster relating to sexual harassment and retaliation for making a protected complaint, from January 1, 2010 through present (Document Production Request Nos. 119-120); (3) the identity of each individual employed by Defendants who, at any time, made a complaint against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 48-49, 53-54); (4) the identity of each individual employed by Defendants who, at any time, made a complaint of harassment against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 50-51, 55-56); (5) the identity of each individual employed by Defendants who made a complaint about violence in the workplace from July 11, 2014 through September 26, 2015, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 57-58); and (6) the identity of each individual employed by Defendants who made a complaint about assault by another employee from July 11, 2014 through September 26, 2015, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 59-60). Plaintiff asserts that the information is relevant to finding “me too” evidence, to prove Defendants’ discriminatory, harassing, and retaliatory intent, to Plaintiff’s cause of action for failure to prevent discrimination, harassment, and retaliation, and to Defendants’ liability for the act of its employees. (Schulman Decl., ¶ 25.)

The Court mostly disagrees. As Defendants argue in their opposition, Plaintiff’s requests are overbroad. On one hand, the Court recognizes that “me too” evidence is relevant to establishing a defendant’s discriminatory mental state. (See Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 767 (concluding that evidence of defendant’s pregnancy discrimination against other employees are relevant in showing gender bias in motivating pregnant plaintiff’s firing as they were sufficiently similar); see also Pantoja v. Anton (2011) 198 Cal.App.4th 87, 115 (finding evidence that employer sexually harassed other employees was relevant to discriminatory intent for discriminating against plaintiff on the basis of sex and therefore admissible).) However, this comparative evidence is relevant only insofar as it depicts differential treatment “from others who were similarly situated.” (See Iwekaogwu, supra, 75 Cal.App.4th at 817 (emphasis added); see also Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172 (stating that plaintiff “must identify other similarly situated employees the [employer] did not terminate.”).) “Another employee is similarly situated if, among other things, he or she ‘engaged in the same conduct without mitigating or distinguishing circumstances.” (Wills, supra, 195 Cal.App.4th at 172.)

Accordingly, the Court finds good cause may supports the production of documents relating to any complaints made by any employees of CDCR working at the California State Prison in Lancaster relating to sexual harassment and retaliation for making a protected complaint (Document Production Request Nos. 119-120); the identification of each individual employed by Defendants who, at any time, made a complaint of harassment against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 50-51, 55-56); and the identification of each individual employed by Defendants who, at any time, made a complaint of harassment against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 50-51, 55-56).

Plaintiff has otherwise failed to establish good cause in showing that other employees made complaints against Defendants, and that those employees were similarly situated to Plaintiff. Therefore, good cause does not support the production of all documents relating to complaints to the DFEH and EEOC about Defendants for discrimination, harassment, and retaliation in the last five years (Document Production Request Nos. 108-113); the identification of each individual employed by Defendants who, at any time, made a complaint against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 48-49, 53-54); the identification of each individual employed by Defendants who made a complaint about violence in the workplace from July 11, 2014 through September 26, 2015, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 57-58); and the identification of each individual employed by Defendants who made a complaint about assault by another employee from July 11, 2014 through September 26, 2015, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 59-60).

Category 4

The fourth category requests information and documents supporting Defendants’ denials of Plaintiff’s allegations and affirmative defenses (Form Interrogatory No. 15.1; Document Production Request No. 17).

“An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.” (Code Civ. Proc. § 2030.010, subd. (b).) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc. § 2017.010.) The Court finds good cause for an in camera review of documents responsive to Plaintiff’s requests for information and documents supporting Defendant’s denials of Plaintiff’s allegations and its affirmative defenses.

Exclusions

Defendants contend that any disclosure is limited to five years prior to the incident. Evidence Code Section 1045, subdivision (b)(1) states that the court shall exclude from disclosure “[i]nformation consisting of complaints concerning 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.” Defendants’ contention is premature, as at this stage, the court is only to determine whether Plaintiff established good cause for an in camera review of the documents requested. Determinations regarding whether a document should be disclosed is made at the second step, during an in camera hearing. The Court will comply with this statutory mandate accordingly.

Defendants also contend in its opposition that any opinions and conclusions of investigating officers must be redacted and not produced. Defendants argue that, to the extent that Plaintiff’s requests encompass information derived from investigatory files, the material is absolutely privileged under Government Code section 6254, subdivision (f). Additionally, Defendants assert that the information is privileged under Evidence Code Section 1040, subdivision (b)(2), because “the necessity of preserving the confidentiality of the material sought herein outweighs the necessity of disclosure in the interests of justice.”

As an initial matter, Government Code section 6254 is part of the California Public Records Act. Section 6254, subdivision (f) provides that records of investigations conducted by local police agencies are not open to inspection under the California Public Records Act. “The statute does not create a litigation privilege.” (Jackson v. County of Sacramento (1997 E.D. Cal.) 175 F.R.D. 653, 654-655.)

Furthermore, in contending that the information is privileged under Evidence Code section 6254, subdivision (f), Defendants rely upon Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079. In Haggerty, the Court of Appeal after reviewing the sealed documents at issue in the case, agreed with the trial court’s conclusion that the documents contained in the file were relevant, with the exception of the portions of the Internal Affairs report in which the investigating officer states his analysis and conclusions regarding the incident. (Haggerty, 117 Cal.App.4th at 1088.) The Haggerty court remanded the case to redact those portions of the Internal Affairs report reflecting solely the investigating officer’s conclusions. (Id. at 1089.) In invoking Evidence Code Section 1040, the court must specifically weigh the public interest as to each specific evidence that a party sought to have disclosed. (Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1043.) Such a weighing procedure will entail a separate assessment of the necessity for disclosure in the interest of justice and the necessity for preserving the confidentiality of the subject information. (Id.) This necessarily requires an in camera review. Therefore, issue should be raised not in opposition to Plaintiff’s motion, but during the in camera review, during which Defendants must make specific arguments as to each piece of evidence in the personnel files, rather than generically to the entirety of the files.

Finally, Defendants argue that any required disclosure should be limited by a protective order. “Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment, or oppression.” (Evid. Code § 1045, subd. (d).) To the extent that any disclosure is ordered, the Court will condition the disclosure on the entry of a suitable protective order.

Conclusion

The motion is DENIED AS MOOT as to Category 1 – Plaintiff’s personnel and payroll records, including all communications and documentation related to her medical leave and requests for accommodation (Document Production Request Nos. 59, 62, 64-70, 72-74, 76, 78, 81-85, 93-95, 97-98, 104).

The motion is GRANTED as to Category 2 – investigation files from Defendants’ investigations of Plaintiff’s complaints of harassment, discrimination, and retaliation (Form Interrogatory Nos. 207.1, 208.2, 215.1, 215.2; Special Interrogatory Request No. 46; Document Production Request Nos. 115-118).

The motion is granted in part and denied in part as to Category 3. The motion is GRANTED as to documents relating to (1) any complaints made by any employees of CDCR working at the California State Prison in Lancaster relating to sexual harassment and retaliation for making a protected complaint, from January 1, 2010 through present (Document Production Request Nos. 119-120); (2) the identification of each individual employed by Defendants who, at any time, made a complaint of harassment against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 50-51, 55-56); and (3) the identification of each individual employed by Defendants who, at any time, made a complaint of harassment against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 50-51, 55-56). The motion is DENIED as to (1) complaints to the DFEH and EEOC about Defendants for discrimination, harassment, and retaliation in the last five years (Document Production Request Nos. 108-113); (2) the identification of each individual employed by Defendants who, at any time, made a complaint against Esparza and Williams, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 48-49, 53-54); (3) the identification of each individual employed by Defendants who made a complaint about violence in the workplace from July 11, 2014 through September 26, 2015, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 57-58); and (4) the identification of each individual employed by Defendants who made a complaint about assault by another employee from July 11, 2014 through September 26, 2015, and the identification of all documents related to the complaint or any investigation thereof (Special Interrogatory Nos. 59-60).

The motion is GRANTED as to Category 4 – information and documents supporting Defendants’ denials of Plaintiff’s allegations and affirmative defenses (Form Interrogatory No. 15.1; Document Production Request No. 17).