Motion for Discovery of Peace Officer Personnel Records (Judge Maureen A. Folan)

Case Name: ??? Nicholas W. Emmerling v. City of Mountain View, et al.

Case No.:??????? 2015-1-CV-280920

Currently before the Court are the following motions: (1) defendant City of Mountain View?s (?Defendant?) motion for discovery of peace officer personnel records directed at non-party City of San Luis Obispo (?SLO?); (2) Defendant?s motion for discovery of peace officer personnel records directed at non-party City of Palo Alto (?Palo Alto?); (3) Defendant?s motion for discovery of peace officer personnel records directed at non-party Alameda County Sheriff?s Department (?Alameda?); and (4) Defendant?s motion for discovery of peace officer personnel records directed at non-party City of Sunnyvale (?Sunnyvale?).

  1. Factual and Procedural Background

This is an action arising from the termination of plaintiff Nicholas W. Emmerling (?Plaintiff?) from his position as an officer with Defendant?s police department. In his complaint, Plaintiff alleges the following: Plaintiff is an honorably-discharged veteran of Operation Iraqi Freedom and a member of the California Army National Guard. (Compl., ? 3.) Plaintiff served as a reserve police officer with the City from 2008 until February 2012, at which time he applied for a full-time position. (Compl., ?? 8, 11.) During the interview process, Defendant specifically asked Plaintiff about his future military obligations and potential for deployment. (Compl., ? 14.) Defendant discriminated against Plaintiff on account of his military status when it hired two reserve officers with less seniority and experience specifically because they had no military obligations. (Compl., ? 17.) In August 2012, Plaintiff reapplied for a full-time position with Defendant. (Compl., ? 19.)? Initially, Defendant sought to promote another junior reserve officer without military obligations. (Compl., ? 19.) Plaintiff was hired as a probationary full-time employee only after the junior officer refused the position. (Compl., ? 19.)

While Plaintiff served as a probationary officer, his supervisors intentionally scheduled him to work on weekends, which conflicted with his military duties, and permitted less senior officers to work shifts during the week. (Compl., ? 23.) In addition, Defendant penalized Plaintiff for taking protected family leave to tend to his newborn child and his wife when she suffered a serious illness. (Compl., ? 26.)

On May 5, 2014, Defendant extended Plaintiff?s probationary period, citing his military leave as the reason for the extension. (Compl., ? 27.) Plaintiff sent an e-mail to Human Resources questioning the legality of this action. (Compl., ? 29.) Within 18 days of sending this e-mail, Plaintiff was terminated without explanation. (Compl., ?? 32-34.) Plaintiff consistently received positive evaluations during his employment until one month before his termination, which coincided with his return from military training. (Compl., ? 39.) After his termination, Plaintiff applied to other police departments throughout Northern California, but could not secure a new position as a result of Defendant?s conduct. (Compl., ?? 47, 53, 58, 63, 69.) The complaint asserts four causes of action for: (1) discrimination in violation of the Fair Employment and Housing Act (the ?FEHA?); (2) retaliation in violation of the FEHA; (3) retaliation in violation of the California Family Rights Act (the ?CFRA?); and (4) violation of the Military and Veterans Code.

On May 6, 2016, Defendant filed the instant motions for discovery of peace officer personnel files. Sunnyvale filed its response on May 17, 2016. On May 18, 2016, Plaintiff, Palo Alto, Alameda, and SLO filed their responses the motions. Defendant filed its consolidated reply brief on May 23, 2016.

  1. Motions for Discovery of Peace Officer Personnel Files

Defendant seeks an order authorizing discovery of the following records from Palo Alto, Alameda, and SLO: records relating to Plaintiff?s application for employment with these entities, Plaintiff?s progression through the pre-employment screening process, and the entities? decision not to offer Plaintiff employment. In addition, Defendant seeks an order authorizing discovery of the following records from Sunnyvale: all records relating to Plaintiff?s performance during the Field Training Program and probation and Sunnyvale?s decision to release Plaintiff from its employ.

  1. Legal Standards

?In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ?Pitchess motions? ? through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.?

(City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, internal citations omitted.) These code sections provide that peace officer personnel records are confidential and subject to discovery under the two-step procedure enumerated in Evidence Code sections 1043 and 1045. (Id. at p. 82.)

Under the first step, the moving party must file a motion establishing good cause for the disclosure sought. (Evid. Code, ? 1043, subd. (b).) A party may establish good cause ?by demonstrating the materiality of the information to the pending litigation ?.? (Warrick v. Sup. Ct. (2005) 35 Cal.4th 1011, 1019, internal citations omitted.) Information is material if it ?will facilitate the ascertainment of the facts and a fair trial.? (Haggerty v. Sup. Ct. (2004) 117 Cal.App.4th 1079, 1086; see also People v. Mooc (2001) 26 Cal.4th 1216, 1226 [indicating that the records sought must be ?potentially relevant?].) To preclude the possibility, however, that the moving party is engaged in a fishing expedition, the party seeking discovery must specifically articulate how the discovery sought would support the party?s theory of the case. (Haggerty, supra, 117 Cal.App.4th at p. 1021; see also People v. Memro (1985) 38 Cal.3d 658, 682 [stating that the declaration must ?articulate a theory as to how the information would be used in litigating the question?], overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172.)

Under the second step, ?the court ? examine[s] the information ?in chambers? in conformity with 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 [] exclude[s] 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.? (? 1045, subd. (b).) In addition to the exclusion of specific categories of information from disclosure, 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.? (? 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.? (? 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.? (? 1045, subd. (e), italics added.)? (City of Santa Cruz, supra, 49 Cal.3d at p. 83.)

  1. Applicability of Pitchess Motion to Non-Employee Records

Preliminarily, Defendant?s motions for orders authorizing the discovery of records from Palo Alto, Alameda, and SLO are not well-taken because Defendant does not seek disclosure of Plaintiff?s ?personnel records.?

As previously noted, Evidence Code sections 1043 and 1045 only apply to the disclosure a peace officer?s ?personnel records.? (Pen. Code, ? 832.7, subd. (a).) These records are explicitly defined by statute as ?any file maintained under that individual?s name by his or her employing agency? and containing records relating to the employee?s personal data, medical history, benefits, advancement, appraisal, or discipline as well as complaints or investigations concerning an event in which the employee participated. (Penal Code, ? 832.8, emphasis added.) Here, it is undisputed that Palo Alto, Alameda, and SLO never employed Plaintiff. (See Castelhano Decl., ? 7 [stating that these entities did not hire Plaintiff].) Therefore, the records at issue do not constitute peace officer ?personnel records.? (See Commission On Peace Officer Standards And Training v. Sup. Ct. (2007) 42 Cal.4th 278, 293 [refusing to extend requirements of Evid. Code, ?? 1043 and 1045 to records not specifically protected by Pen. Code, ? 832.8].) Accordingly, Defendant?s motions for orders authorizing the discovery of records from Palo Alto, Alameda, and SLO are DENIED.[1]

  1. Motion Directed to Sunnyvale

There is no dispute that the records sought from Sunnyvale are Plaintiff?s personnel records. Accordingly, the Court shall apply the procedure outlined in Evidence Code sections 1043 and 1045 with respect to these records.

  1. First Step ? Good Cause

Defendant asserts that good cause exists for the disclosure of the records from Sunnyvale based on the declaration of its counsel, Sarah Castelhano, who states, in pertinent part: From May 2006 to May 2007, Plaintiff was a probationary police officer with Sunnyvale; Plaintiff resigned under ?questionable circumstances,? and did not complete the probationary police officer training; Plaintiff was terminated from Defendant?s police department for failing to engage in ?self-initiated activity? in finding and investigating violations while not occupied with dispatch calls for service; and Plaintiff did not complete Sunnyvale?s probationary police officer trainee program for the same reasons he was terminated from Defendant?s program. (Castelhano Decl., ?? 8, 9, 11.)

Defendant contends that the records sought are material to the present action because they could bolster its argument that it terminated Plaintiff for his lack of productivity, a legitimate non-discriminatory reason. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-356 [stating that an employer may rebut a prima facie case of discrimination or retaliation by demonstrating a legitimate reason for its actions].) This argument is well-taken. Plaintiff does not allege that Sunnyvale terminated him based on a discriminatory or retaliatory action. As such, evidence indicating that Sunnyvale terminated him for lack of productivity would have some tendency in reason to prove that Defendant?s termination of Plaintiff on this same ground was not pretextual. (See Guz, supra, 24 Cal.4th at p. 356 [stating that a plaintiff may ?attack the employer?s proffered reasons as pretexts for discrimination?].) Accordingly, good cause exists for the disclosure of the records sought.

  1. Second Step ? In Camera Review and Limitations on Disclosure

In its response, Sunnyvale requests the following limitations on the disclosure of the records: (1) the Court should release only relevant records; (2) records concerning the conduct of officers that occurred more than five years ago should be excluded; (3) records of other officers should not be released; (4) only dates of prior incidents and the contact information of witnesses should be released; (5) conclusions of investigating officers should not be released; and (6) the Court should enter an appropriate protective order.

  1. Relevant Records

?[T]he statutory scheme codifying Pitchess require[s] 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.? (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) Accordingly, the Court will release only those records that are relevant to the instant action.

  1. Five-Year Limitation

Under Evidence Code section 1045, subdivision (b)(1), the Court shall exclude from disclosure ?information 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.? The Sixth District Court of Appeal has interpreted this provision to apply only to records of citizen complaints, or investigations of such complaints, or discipline imposed as a result of such investigations. (People v. Sup. Ct. (Gremminger) (1997) 58 Cal.App.4th 397, 407.) Since Defendant does not seek records concerning third-party complaints or investigations, this provision is inapplicable.

  1. Records of Other Officers

Pursuant to Evidence Code section 1047, records of peace officers not present at the time of an arrest or booking shall not be subject to disclosure. Since Defendant does not seek records concerning an arrest or booking, the provision is inapplicable.

  1. Dates of Incidents and Witness Contact Information

?The in camera review procedure and disclosure guidelines set forth in section 1045 guarantee ? a balancing of the officer?s privacy interests against the defendant?s need for disclosure. As 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.? (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) ?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.? (Haggerty, supra, 117 Cal.App.4th at p. 1090.) When this rationale is not implicated, courts permit the disclosure of personnel records without this additional safeguard. (Ibid.)

Here, Defendant does not seek records concerning third-party complaints or investigations. Therefore, this additional safeguard is unnecessary, and the Court will not restrict the disclosure to the dates of prior incidents and witness contact information.

  1. Conclusions of Investigating Officer

Under Evidence Code section 1045, subdivision (b)(2), the court shall exclude from disclosure, ?[i]n any criminal proceeding the conclusions of any officer investigating a complaint?.? (Emphasis added.) Since this is not a criminal proceeding and Defendant does not seek any third-party complaints, the provision is inapplicable.

  1. Protective Order

Under Evidence Code section 1045, subdivision (e), ?[t]he court shall, in any case or proceeding permitting the disclosure or discovery of any peace ? officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.? Accordingly, the Court shall enter a protective order directing that the information and/or documents released may only be used for the purpose of this litigation.

Sunnyvale also requests an order containing further protections, namely, an order preventing the duplication of the records and/or the dissemination of the records to third parties as well as an order requiring the records to be returned at the conclusion of the action. Pursuant to Evidence Code section 1045, subdivision (d), a governmental agency may make a motion for additional protections by showing good cause for such an order. Here, Sunnyvale did not file a motion and has made no attempt to establish good cause for the requested order. Accordingly, Sunnyvale fails to demonstrate that the records should be subject to additional protections at this time. That being said, Defendant appears to be amenable to at least some of these additional protections. (See Defendant?s Consolidated Reply, pp. 4:26-28, 1-21.) Therefore, the Court encourages Defendant and Sunnyvale to meet and confer concerning the entry of a stipulated protective order.

  1. Conclusion

In light of the foregoing, Defendant?s motion for an order granting discovery of police personnel files from Sunnyvale is GRANTED. Accordingly, within 60 calendar days of entry of the Court?s order, Sunnyvale?s custodian of records shall produce for in camera inspection all records relating to Plaintiff?s performance during the Field Training Program and probation and Sunnyvale?s decision to release Plaintiff from its employ. In addition, the Court enters a protective order directing that any information and/or documents disclosed may only be used for the purposes of this litigation. Sunnyvale?s request for an additional protective order is DENIED WITHOUT PREJUDICE.

[1] Of course, Defendant is not precluded from seeking these records through other discovery devices.