2017-00210093-CU-PO

Allison Irwin vs. County of Sacramento

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Dreyer, Roger A.

Plaintiffs’ Motion to County of Sacramento to Produce the Personnel File and Related Documents of Deputy Spurgeon pursuant to Evidence Code §§ 1043, 1045 (Pitchess) is GRANTED, in part, as set forth below.

Relevant Facts

Plaintiffs’ complaint alleges five causes of action: for wrongful death (negligence of public employees in the course and scope of their employment, wrongful death (intentional/reckless conduct), assault, battery, and negligent infliction of emotional distress.

Plaintiffs allege personal injuries resulting from a fatal incident that occurred on August 18, 2016. At that time, plaintiff Allison Irwin and her husband Chad Irwin were involved in a verbal argument at their home. Chad Irwin left the premises following the argument. Shortly thereafter, two Sacramento County Sheriff’s Department officers arrived at their residence and spoke with Mrs. Irwin. Mr. Irwin telephoned his wife, and said he was going to come home.

The Sheriff’s deputies waited for Chad Irwin to arrive. When he arrived, the officers exited their patrol vehicles and approached Mr. Irwin. Mr. Irwin had been drinking and using narcotics, and brandished a knife. Deputy Spurgeon fired his weapon 11 times, killing Mr. Irwin. Deputy Conger did not fire his weapon a single time.

Documents Requested

Plaintiffs file this Pitchess motion to obtain discovery requesting six categories of documents; as recited in the motion these are:

(1) Any and all documents related to any and all hearing decisions, behavior reviews, or discipline-related evaluations based on the conduct of Deputy Spurgeon as related to the underlying shooting of decedent, Chad Irwin, that occurred on August 18, 2016;

(2) All complaints from any and all sources relating to acts of aggressive behavior, violence, excessive force, or attempted violence or excessive, racial bias, gender bias, ethnic bias, sexual orientation bias, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion

and/or probable cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude within the meaning of People v. Wheeler (1992) 4 Cal.4th 284 against Deputy Spurgeon;

(3) The names, addresses, dates of birth, and telephone numbers of all persons who filed complaints, who may be witnesses, and/or who were interviewed by the employing agency or their agents, the dates and locations of the incidents complained of, as well as the date of the filing of such complaints. Note that Plaintiffs are entitled to discover any discipline imposed upon the named officers as a result of the investigation of any citizen complaint described in item one (City of San Jose v. Superior Court (Michael B.) (1993) 5 Cal.4th 47, 54-57.);

(4) Production of the complete personnel file of Deputy Spurgeon to the Court, for in camera inspection under Evidence Code section 1045, Penal Code section 832.7, and Evidence Code sections 1043 and 1046. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

(5) Production of the complete training records of Deputy Spurgeon to the Court, for in camera inspection under Evidence Code section 1045, Penal Code section 832.7, and Evidence Code sections 1043 and 1046. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

The underlying Motion will be made on the grounds that Defendant County of Sacramento and/or Sacramento County Sheriff’s Department negligently hired, trained, and/or supervised Deputy Spurgeon in such a fashion as to cause and/or contribute to the occurrence of the subject incident;

(6) The names, addresses, contact information, and transcripts of testimony of all persons who testified at any Civil Service Commission hearing(s) wherein the named officers were accused of any of the misconduct sought under paragraph 1, above. Also, Plaintiffs seek copies of all evidence submitted to the Civil Service Commission and its hearing officer(s) (where practical) and/or a list of evidence items submitted to the Commission and any hearing officer(s). In addition, all findings, rulings, and statements made by the Commission, its members hearing officers.

Pitchess Motion

Generically, peace officer personnel records and records maintained by any state or local agency pursuant to Penal Code § 832.5 or information obtained in 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. (Penal Code § 832.7.) A party moving for the disclosure of records pursuant to Evidence Code § 1043 must provide a description of the type of records or information sought as well as affidavits showing “good cause” for the discovery or disclosure sought, setting forth the “materiality” thereof to the subject matter of the pending litigation and stating upon reasonable belief that the governmental agency has the records or information from the records. (Evid. Code § 1043.)

The procedure to obtain records is a two-part process and puts the burden on the party seeking the documents that are otherwise protected from disclosure. The party seeking disclosure must first file a motion describing the records sought along with affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation. (Evid. Code, § 1043 (b) (3).) The moving party must describe a “specific factual scenario” that

establishes a “plausible factual foundation.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.)

Once good cause is established, the court must examine the sought-after information in camera. (Evid. Code, § 1043 (b).) In a civil case, the court must exclude from disclosure (1) complaints concerning conduct more than five years prior to the incident at issue; and (2) facts that are “so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045 (b) (1)-(3).) Where an issue in the litigation “concerns the policies or patterns 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.” (Evid. Code, § 1043 (c).) Courts have further safeguarded the privacy interests at stake by generally refusing to disclose actual reports or records from personnel files, but rather only ordering that names, addresses, and phone numbers for witnesses and complainants be revealed for similar misconduct by the officer. (City of Santa Cruz, supra, 49 Cal.3d at 84; Warrick, supra, 35 Cal.4th at 1019

Additionally, an officer’s personnel file will frequently contain documents that are irrelevant to the case at hand, such as documents describing marital status, family information, employment applications, promotion records, and health records. (See Cal. Penal Code § 832.8.) Accordingly, in the context of an in camera inspection, documents clearly irrelevant to a party’s Pitchess request need not be presented to the trial court for in camera review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)

Defendant objects to the Pitchess motion on the grounds that plaintiffs have failed to show good cause for the production of confidential information. A showing of “good cause” requires moving party to demonstrate the relevance of the requested information by providing a “specific factual scenario” which establishes a “plausible factual foundation” for the allegations of officer misconduct committed in connection with the movant. California Highway Patrol v. Superior Court (2000) 84 Cal. App. 4th 1010, 1020. This specificity requirement excludes requests for officer information that are irrelevant to the pending action. Warrick, supra, at p. 1021.

The Court finds that sufficient good cause has been shown for the production of records regarding the use of excessive force, only. The additional categories of documents set forth in item 2, are not required to be produced.

Defendant objects that Deputy Spurgeon’s training records are not subject to disclosure under Pitchess. (Penal Code, sec. 832.8.) Additionally, Deputy Spurgeon’s training history has already been provided in response to a Request for Production of Documents.

Defendant further objects that the required five year limitation on requests has not been included. (Evid. Code, sec. 1045(b) (1))

In reply, plaintiffs appropriately concede that prior complaint information regarding use of excessive force by Deputy Spurgeon should be limited to five years prior to the incident. However, they seek production of all civil service commission information and/or documents pertaining to hearings or investigations conducted pursuant to Penal Code, sec. 832.5, related to Deputy Spurgeon’s use of excessive force.

The Court holds that no complaints of excessive force, if any, or documents from civil service commission investigations or hearings dated prior to August 11, 2011 (five years before the events of August 18, 2016) are ordered produced.

The Court finds that the declaration in support of the motion complies with Evidence Code sections 1043(b)(2) and (b)(3) in that it sets forth the description of the type of records sought, the materiality of the records sought to the instant action, and a reasonable belief that the governmental agency has the records. (Evid. Code § 1043
(b) (2)-(3).)

Plaintiffs have demonstrated that the some of the requested records are relevant and material to the claims in this action.

Good cause exists for the requested discovery as to the use of excessive force. Parenthetically, “good cause” in this context is a showing of a reasonable belief that the type of records requested are material to the claims or defenses, and in the possession of the employing agency; only a relatively low threshold is necessary to compel discovery. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 [showing of good cause under Evid. Code § 1043(b)(3], which is measured by “relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents,” to obtain in-chambers review of relevant documents in personnel records of police officer accused of misconduct against defendant, requires only that defendant demonstrate that scenario of alleged officer misconduct could or might have occurred. Id. at p. 1016]; City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 92.) When a trial court concludes a defendant’s Pitchess motion shows “good cause” for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all “potentially relevant” documents to permit the trial court [a neutral trial judge] to examine them for itself.

In Camera Review

The Court is, of course, required to conduct an in camera review of the records before any record can be disclosed. The parties shall meet and confer on a date for the in camera review at least 15 court days from this date, in conjunction with the court’s clerk. The custodian of the personnel records at CDCR is required to be present, and if desired, may bring independent counsel. People v. Mooc, (2001) 26 Cal. 4th 1216, remains the best description of how a Pitchess hearing should be conducted. Mooc states that “both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations.” (Id. at p. 1227.) [emphasis added] Based on Mooc, the Court perceives the requirement that the custodian of records for the defendant to have independent counsel – and to exclude defense counsel from the in camera Pitchess hearing – in that a unwaivable conflict may exist between defense counsel and the role of the custodian.

Pursuant to People v. Mooc, supra, the custodian of records should bring to the in camera review all documents “potentially relevant” to the defendants’ motion [“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the

custodian of the records is obligated to bring to the trial court all “potentially relevant” documents to permit the trial court to examine them for itself. … Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. 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 statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record.” (Mooc, supra, 26 Cal.4th at p. 1228-1229.)]. (City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 84.) It is to be noted, if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. 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” (Id., § 915, subd. (b), see Id., § 1045, subd. (b) [incorporating Id., § 915]). Subject to statutory exceptions and limitations, discussed below, the trial court should then disclose to plaintiff “such information [that] is relevant to the subject matter involved in the pending litigations.” (Id. § 1045, subd. (a).)

All records must be BATES stamped so that the court can refer to the records by page number. Pursuant to Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 415, the peace officer has the right to be present at the in camera review of the files. The defendant peace officer may be accompanied by counsel other than counsel of record for this case.

Documents to be produced for In Camera review

(1) Any and all documents related to any and all hearing decisions, behavior reviews, or discipline-related evaluations based on the conduct of Deputy Spurgeon as related to the underlying shooting of decedent, Chad Irwin that occurred on August 18, 2016.

(2) All complaints from any and all sources relating to acts of aggressive behavior,

violence, excessive force, or attempted violence, subsequent to August 19, 2011 (five years before the events of August 18, 2016).

(3) The names, addresses, dates of birth, and telephone numbers of all persons who filed complaints, who may be witnesses, and/or who were interviewed by the employing agency or their agents, the dates and locations of the incidents complained of, as well as the date of the filing of such complaints subsequent to August 19, 2011 (five years before the events of August 18, 2016).

(4) Personnel file. No documents from Deputy Spurgeon’s personnel file that are clearly irrelevant to a party’s Pitchess request (marital status, family information, employment applications, promotion records, and health records) need be presented to the trial court for in camera review, subsequent to August 19, 2011 (five years

before the events of August 18, 2016).

(5) The Court orders that no training record documents are required to be produced in camera.

(6) The names, addresses, contact information, and transcripts of testimony of all persons who testified at any Civil Service Commission hearing(s) wherein the named officers were accused of any of the misconduct sought under paragraph 1, above, subsequent to August 19, 2011 (five years before the events of August 18, 2016). Copies of all evidence submitted to the Civil Service Commission and its hearing officer(s) (where practical) and/or a list of evidence items submitted to the Commission and any hearing officer(s), additionally, all findings, rulings, and statements made by the Commission, its members hearing officers subsequent to August 19, 2011 (five years before the events of August 18, 2016).