On November 23, 2020, Plaintiff Malcolm Thomas filed this action against Defendants City of Los Angeles (“City”), Michel Moore, Marc Reina, Robert Arcos, David Grimes, and Los Angeles Police Protective League (collectively, “Defendants”), arising from Plaintiff’s allegedly wrongful termination. Plaintiff later dismissed Reina, Arcos, and Grimes.
On May 4, 2021, Plaintiff filed a Pitchess motion. Defendants filed a late opposition and a proposed protective order. Defendants generally do not object to Plaintiff’s requests, but they contend that Request No. 12 is too broad. (Opposition at pp. 2-3.)
A party may discover a law enforcement officer’s personnel file through a Pitchess motion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.) The Pitchess motion has been partly codified in Evidence Code, section 1043, which makes law enforcement personnel records, public complaints against officers, and reports relating to those public complaints privileged and subject to disclosure only by noticed motion. (Evid. Code, § 1043.) The statutory scheme governing Pitchess motions is set forth in Evidence Code sections 1043 to 1047 and Penal Code sections 832.5, 832.7, 832.8. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) These statutes provide the exclusive means of discovery of such records in both criminal and civil proceedings. (County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1609-1610.)
“[A] party seeking discovery of a peace officer’s personnel records must follow a two-step process. [Citation.] First, the party must file a written motion describing the type of records sought, supported by ‘[a]ffidavits showing good cause for the discovery . . . , 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.’ [Citation.] This initial burden is a ‘relatively relaxed standard [].’ [Citation.] Information is material if it ‘ “will facilitate the ascertainment of the facts and a fair trial.” [Citation.]’ [Citation.] ‘[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the “materiality” component of that section.’ [Citation.]” (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085-1086.) The motion must provide a “specific factual scenario” that establishes the materiality of the discovery sought. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.) The documents must be requested “with adequate specificity” to preclude the possibility that the moving party is engaged in a “fishing expedition.” (People v. Memro (1985) 38 Cal.3d 658, 678.) 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 is sought must be excluded from disclosure. (Evid. Code, § 1045, subd. (b).)
“Second, if ‘the trial court concludes [a party] has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents “potentially relevant” to the [requesting party’s] motion . . . . The trial court “shall examine the information in chambers” [citation], “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.” . . . Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.” [Citations.]’ ” (Haggerty, supra, 117 Cal.App.4th at p. 1086.)
Plaintiff seeks fourteen categories of documents, which Defendant does not oppose except for one aspect of Request No. 12. The motion explains that the information is sought to show that the allegations against him were pretextual and were instead motivated by discrimination and retaliation. (Motion at p. 5.) Plaintiff believes that the information in the personnel records and files is essential for depositions, include depositions of the internal affairs investigator and the individual Defendants. (Id. at pp. 5-6.) The personnel files may also contain evidence of past discrimination, harassment, and retaliation or other disciplinary problems similar to those claimed by Plaintiff, showing City’s advance knowledge of employees’ unfitness. (Id. at p. 7.) Plaintiff should have included this information in a declaration as required by the statute. Before the hearing, Plaintiff is to file a declaration containing the required information to establish the materiality of the information sought, which will show the requisite good cause.
Regarding Request No. 12, which seeks all documents about the decision to terminated Plaintiff, Defendant states that “communications among decision makers” about that decision are probative (Opposition at pp. 2-3), but that the request is so broad it would include litigation material. The Court narrows the Request No. 12 to all communications among decisionmakers about the decision to terminate Plaintiff.
Plaintiff’s motion is GRANTED subject to Plaintiff filing the declaration described above and narrowed Request No. 12. Also, Plaintiff is to separately file the stipulated protective order for the Court to sign. At the hearing, the parties should be prepared to discuss the procedure for the Court to review the documents.
Moving party to give notice.