Riske v. Superior Court

Filed 4/16/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROBERT RISKE, B283035
Petitioner, (Los Angeles County
v. Super. Ct. No. BC557535)
THE SUPERIOR COURT
OF LOS ANGELES COUNTY,
Respondent;
CITY OF LOS ANGELES,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate, Mark V. Mooney,
Judge. Petition Granted.
Law Offices of Gregory W. Smith, Gregory W. Smith, Diana
Wang Wells; Benedon & Serlin, Douglas G. Benedon, Gerald M.
Serlin and Judith E. Posner for Petitioner.
No appearance for Respondent.
Michael N. Feuer, City Attorney, Blithe S. Bock, Managing
Assistant City Attorney, and Paul L. Winnemore, Deputy City
Attorney, for Real Party in Interest.
___________________
Robert Riske, a retired Los Angeles police officer, sued the
City of Los Angeles alleging the Los Angeles Police Department
had retaliated against him for protected whistleblower activity by
failing to assign or promote him to several positions and selecting
instead less qualified candidates. Riske filed a discovery motion
1
pursuant to Evidence Code sections 1043 and 1045 to obtain
certain summary personnel records relied on by the City in
making assignment and promotion decisions. After the superior
court erroneously ruled those records were not subject to
discovery because the officers selected for the positions Riske
sought were innocent third parties who had not witnessed or
caused Riske’s injury, we issued a writ of mandate directing the
superior court to vacate its order denying Riske’s discovery
motion and to enter a new order directing the City to produce
those records for an in camera inspection in accordance with
section 1045. (See Riske v. Superior Court (2016) 6 Cal.App.5th
647, 664-665 (Riske I).)
The superior court conducted the in camera hearing and
ordered the requested personnel records to be produced in
accordance with the parties’ protective order. However, pursuant
to section 1045, subdivision (b)(1), which excludes from disclosure
“[i]nformation consisting of complaints concerning conduct
occurring more than five years before the event or transaction
1
Statutory references are to this code unless otherwise
stated.
2
that is the subject of the litigation” in which discovery or
disclosure is sought, the court ordered redaction of all items in
those reports concerning conduct that had occurred more than
five years before Riske filed his complaint.
Riske again petitioned this court for a writ of mandate
directing the superior court to order the City to produce those
records without redaction. In response to our inquiry, both Riske
and the City agree that, if section 1045, subdivision (b)’s five-year
disclosure bar applies at all, it is measured from the date each
officer was promoted instead of Riske—the alleged adverse
employment action at issue in the litigation—and not the date
Riske filed his complaint, as the superior court ruled. However,
Riske also argues more broadly that section 1045, subdivision (b),
which prohibits disclosure of stale complaints against police
officers, has no application to the personnel reports sought in this
case. We agree and grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Riske’s Whistleblower Activity
According to the allegations in his complaint, Riske worked
as a police officer with the Department from 1990 until his
retirement in September 2014. In 2008, while working as a
detective-I in the Southeast Narcotics Enforcement Division,
Riske reported two of his fellow officers for filing false police
reports and testified against them at an administrative hearing
that ultimately resulted in their termination. Afterward, Riske’s
colleagues referred to him as a “snitch” and refused to work with
him, even at times ignoring Riske’s requests for assistance in the
field. Fearing for his safety, Riske transferred from the
Southeast Division to the Harbor Division. Between 2011 and
2013 Riske applied for 14 highly desirable detective-I and
3
detective-II positions. Notwithstanding his superior
qualifications, his applications were repeatedly denied, each time
in favor of less experienced or less qualified persons.
2. Riske’s Lawsuit and Discovery Request
On September 12, 2014 Riske sued the Department for
unlawful retaliation in violation of Labor Code section 1102.5,
alleging the Department’s refusal to assign or promote him to
more desirable positions was in retaliation for his protected
whistleblower activity. The City answered the complaint,
denying the allegations, and then moved for summary judgment.
The City argued, among other things, it had a legitimate business
reason for its promotional/assignment decisions: The selected
candidates were more qualified than Riske.
Prior to responding to the City’s summary judgment
motion, Riske served the City with a discovery request seeking
all documents submitted by the successful candidates for the
relevant positions and all documents relied on by the Department
to select those officers for the positions, subject to the terms of
2
the parties’ stipulated protective order. The City produced some
documents, including rating sheets and ranking matrices used by
the Department’s decision makers for each position, but nothing
from the selected candidates’ confidential personnel files.
2
In December 2014 the parties entered into a stipulation,
signed as an order by the court, governing production of
documents and disclosure of information in the case. Under the
terms of the order confidential information produced in discovery
would be used solely in connection with the instant matter and
viewed only by the parties, their attorneys and representatives
participating in this case.
4
3. Riske’s Motion To Compel Discovery of Peace Officer
Personnel Records
Riske moved under sections 1043 and 1045 for production
of the selected officers’ Training Evaluation and Management
System (“TEAMS”) reports, which summarized the successful
candidates’ history of discipline, commendations and other
3
personnel matters throughout the officer’s employment. To
support his request for the TEAMS reports, Riske included an
affidavit from retired Captain Joel Justice, a 21-year veteran of
the Department, who was familiar with the Department’s hiring
policies and procedures during the period Riske submitted his
applications for reassignment and/or promotion. According to
Captain Justice, “TEAMS reports play a crucial role in the
[candidate] selection process. Specifically, it is mandatory for
supervisors on interview panels to review the TEAMS reports
submitted by candidates applying for promotional or coveted
positions.” “As a supervisor participating in the decision to select
3
According to the parties, TEAMS is a data system
maintained by the Department “to track detailed information
pertaining to an officer’s entire career with the Department.”
The report, prepared in a chart format, summarizes the
employee’s history of (1) discipline, (2) use of force, (3) pursuits,
(4) collisions, (5) civil litigation, (6) assignment/rank history and
(6) work permit information for “last five years.” A blank TEAMS
report, provided by the City at our request, is attached as
Appendix A, post, page 20.
In his discovery motion, Riske also sought the successful
candidates’ performance evaluations used by the Department to
make the employment decisions at issue in the litigation. The
court ordered production of those documents, apparently without
redactions. They are not at issue in this proceeding.
5
an officer for a promotional or coveted position, I would refer to
candidates’ TEAMS reports to determine, among other things,
how many sustained personnel complaints they had; how many
citizen commendations they had received; how many other
commendations they had received; how many uses of force they
had; and whether their work history evidenced that they were
hard-working.” The TEAMS reports submitted by the candidates
contain only sustained complaints; unresolved or unsustained
personnel complaints are not included. Captain Justice stated
before making a hiring decision he would run “a final selection
process TEAMS report,” which would reflect any pending
personnel complaints that had not been adjudicated. Information
obtained from a candidate’s TEAMS reports, together with the
candidate’s two most recent performance evaluations, would then
make up the “final rating of ‘Outstanding,’ Excellent,’ or
‘Satisfactory’ the decision makers would assign to that officer for
the vacant position.”
4. The Court’s Denial of Riske’s Discovery Motion; Riske’s
First Writ Petition; Issuance of the Writ Compelling an
In Camera Hearing
The superior court denied Riske’s discovery motion, ruling
the discovery procedures applicable to peace officer personnel
records did not apply to records of third party officers who had
not committed any misconduct. Riske petitioned this court for a
writ of mandate, challenging that ruling. We issued an order to
show cause and stayed further proceedings in the superior court.
On December 12, 2016 we granted Riske’s petition for writ
of mandate. (Riske I, supra, 6 Cal.App.5th at pp. 664-665.) We
explained section 1043 requires the party seeking discovery from
peace officer personnel records in a criminal or civil case to show
6
good cause for the information by setting forth “‘the materiality
thereof to the subject matter involved in the pending
litigation. . . .’” (Riske I, at p. 658, quoting § 1043.) The critical
limitation for purposes of the initial discovery threshold, we
emphasized, was not officer misconduct but materiality—that is,
whether the evidence sought is admissible or may lead to the
discovery of admissible evidence. (Riske I, at p. 658.) Because
Riske’s lawsuit is premised on the allegation that individuals less
qualified than he were promoted instead of him in retaliation for
his protected whistleblower activity, and Riske had made a
plausible factual showing that the TEAMS reports play a critical
role in that decisionmaking process and could very well reveal
the City’s stated business reason for selecting the candidates over
Riske—they were more qualified—was pretext for unlawful
retaliation, we found Riske carried his minimal burden to show
good cause to obtain an in camera inspection of the personnel
records he requested. Accordingly, we directed the superior court
to vacate its order denying Riske’s motion to discover the TEAMS
reports and performance evaluations of the officers identified in
his motion and to enter a new order directing the City to produce
those reports for an in camera inspection in accordance with
section 1045. We left it to the superior court to determine in the
first instance whether, and to what extent, the information it
inspected at the hearing was discoverable. (Riske I, at pp. 664-
665.)
5. The In Camera Hearings
During the April 12, 2017 in camera hearing the City’s
custodian of records, accompanied by the City’s counsel in the
instant litigation, produced the TEAMS reports and the two most
recent personnel evaluations of 10 of the 14 candidates who were
7
selected or promoted to new positions rather than Riske. The
custodian stated documents concerning the other four candidates
had not yet been located.
Citing the “five-year-lookback provision” in section 1045,
subdivision (b), the custodian and the City’s counsel proposed
that all information in the TEAMS reports relating to conduct
that had occurred more than five years before Riske filed his
complaint—that is, all information, irrespective of category,
relating to officer conduct occurring before September 12, 2009—
be redacted prior to disclosure. The court agreed with this
interpretation of section 1045, subdivision (b)(1), and ordered
redaction of all information relating to conduct before
September 12, 2009. (Officer commendations given prior to
September 12, 2009 were deemed not subject to the five-year bar
and were not redacted.) The court ordered the Department to
produce the documents, as redacted, by April 19, 2017 and set a
further hearing for May 17, 2017 to review any additional
responsive documents.
At the second in camera hearing on May 17, 2017 the court
reviewed additional TEAMS reports and performance evaluations
for two more officers. The custodian averred the Department had
4
now produced all the reports in its possession. Identifying the
same “five-year-lookback provision,” the court ordered all the
4
Riske has not challenged the custodian’s assertion the
Department had produced all responsive TEAMS reports it could
locate for the officers Riske had identified.
8
identified unfavorable information occurring before
5
September 12, 2009 be redacted.
6. The Instant Petition for Writ of Mandate
Riske petitioned for a writ of mandate seeking production
of the TEAMS reports without the court-ordered redactions.
After reviewing the transcript of the in camera hearing, we
issued an order to show cause, set a briefing schedule and stayed
further proceedings in the superior court pending our ruling on
Riske’s petition. In its briefing in this court, the City has
disavowed its prior interpretation of section 1045,
subdivision (b)(1), and now agrees with Riske that the five-year
period is measured from the date each officer was selected for a
position for which Riske had applied and not the date Riske filed
this lawsuit, as the superior court ruled.
On November 29, 2017 we invited the parties to address in
supplemental letter briefs how section 1045, subdivision (b)(1), is
properly applied, if at all, to the contents of the TEAMS reports
at issue in this case. The parties filed supplemental letter briefs
on December 14, 2017.
DISCUSSION
1. Standard of Review
We review for abuse of discretion the superior court’s
discovery ruling concerning the production of a police officer’s
personnel records following an in camera hearing conducted in
accordance with section 1045. (People v. Winbush (2017)
2 Cal.5th 402, 442; Alford v. Superior Court (2003) 29 Cal. 4th
5
The court also ordered the City to produce the selected
candidates’ two most recent performance evaluations. Riske’s
arguments in this proceeding relate solely to the TEAMS reports.
9
1033, 1039.) When the court’s ruling involves the interpretation
of a statute, we review that question of law de novo. (People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141; Lexin v. Superior Court
(2010) 47 Cal. 4th 1050, 1072; Riske I, supra, 6 Cal.App.5th at
p. 657.)
2. Governing Law
In Riske I we explained in detail the two-step process
mandated by sections 1043 and 1045 for obtaining a police
officer’s confidential personnel records. First, the party seeking
the information must file a motion with the court describing the
records sought, supported by an affidavit demonstrating good
cause for their disclosure. (Riske I, supra, 6 Cal.App.5th at
pp. 654-655, citing § 1043.) Good cause for discovery under the
statutory scheme exists when the party seeking discovery
demonstrates through a plausible factual showing the
information is material—that is, the evidence sought is
admissible or may lead to the discovery of admissible evidence.
(Riske I, at pp. 655, 658, citing People v. Gaines (2009) 46 Cal. 4th
172, 179; Warrick v. Superior Court (2005) 35 Cal. 4th 1011,
1019.)
If the threshold showing of good cause is met, the trial
court reviews the pertinent documents in chambers in conformity
with section 915 and discloses only that information that is
relevant to the subject matter involved in the pending litigation.
(§ 1045, subd. (a); Riske I, supra, 6 Cal.App.5th at p. 656.)
Although relevance is the sole criterion for disclosure (§ 1045,
subd. (a)), the Legislature has identified certain information that
is categorically not subject to disclosure, in effect, deemed
irrelevant as a matter of law. In particular, section 1045,
subdivision (b), requires the trial court when considering
10
relevance to “exclude from disclosure: [¶] (1) Information
consisting of complaints concerning conduct occurring more than
five years before the event or transaction that is the subject of the
litigation”; “(2) [i]n any criminal proceeding the conclusions of
any officer investigating a [citizen] complaint”; and “(3) [f]acts
sought to be disclosed that are so remote as to make disclosure of
little or no practical benefit.” (§ 1045, subd. (b)(1)-(3); see Riske I,
6
at p. 656.)
In addition to these mandatory discovery limitations
identified in section 1045, subdivision (b), when “litigation
concerns the policies or pattern 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.”
(§ 1045, subd. (c).) The court may also make any order “justice
requires” to protect the officer or law enforcement agency from
“unnecessary annoyance, embarrassment or oppression.” (§ 1045,
subd. (d).) And even when discoverable, the court must order the
confidential records be used only in connection with the
proceeding in which they are requested and for no other purpose.
(§ 1045, subd. (e).)
6
If a citizen complaint is more than five years old and has
exculpatory value under Brady v. Maryland (1963) 373 U.S. 83
[83 S. Ct. 1194, 10 L. Ed. 2d 215], it is discoverable under the due
process clause notwithstanding the statute’s five-year bar to
disclosure. (City of Los Angeles v. Superior Court (2002)
29 Cal. 4th 1, 14-15.)
11
3. The Superior Court Erred in Excluding All Information
Relating to Conduct Occurring More than Five Years
from the Date Riske Filed his Lawsuit
Riske and the City now agree the five-year disclosure bar
applies to citizen complaints concerning and officer’s conduct
occurring more than five years before he or she was selected for a
position. For example, as to an officer selected or promoted in
January 2013 to a position for which Riske had also applied,
complaints against that officer concerning conduct that occurred
prior to January 2008 would be excluded under section 1045,
subdivision (b)(1). Because the superior court used the date
Riske filed his lawsuit, rather than the date each identified
officer was selected for the desired position, the parties agree the
court erred in its redaction order.
Although Riske and the City agree on the correct
interpretation of the five-year disclosure bar, they sharply
disagree on the proper application of section 1045 to the contents
of the TEAMS reports. Riske contends nothing in the TEAMS
reports used by the Department in making assignment and
promotion decisions is a citizen “complaint” as that term is used
in section 1045, subdivision (b)(1), and the reports are not subject
to that provision’s disclosure bar. The City, in contrast, contends
section 1045, subdivision (b)(1), applies to a broad range of
matters relating to complaints and argues information in the
TEAMS report involving discipline, use of force, pursuits,
collisions and civil litigation and other matters necessarily
related to, or obtained from, citizen complaints must be redacted
if the event prompting the complaint occurred more than five
years before Riske was denied a position.
12
a. Section 1045, subdivision (b)(1), applies only to
complaints
In construing section 1045, subdivision (b)(1)’s five-year
disclosure bar, we rely on well-settled and familiar principles of
statutory interpretation. “Our primary task in interpreting a
statute is to determine the Legislature’s intent, giving effect to
the law’s purpose. [Citation.] We consider first the words of a
statute, as the most reliable indicator of legislative intent.
[Citation.] ‘“‘Words must be construed in context, and statutes
must be harmonized, both internally and with each other, to the
extent possible.’ [Citation.] Interpretations that lead to absurd
results or render words surplusage are to be avoided.”’”
(Tuolomne Jobs & Small Business Alliance v. Superior Court
(2014) 59 Cal. 4th 1029, 1037; accord, In re D.B. (2014) 58 Cal. 4th
941, 945-946.) “A court may not, ‘under the guise of construction,
rewrite the law or give the words an effect different from the
plain and direct import of the terms used.’” (DiCampli-Mintz v.
County of Santa Clara (2012) 55 Cal. 4th 983, 992.)
We begin with the language of section 1045, subdivision (a),
which states “[n]othing in this article shall be construed to affect
the right of access to records of complaints, or investigations of
complaints or discipline imposed as a result of those
investigations . . . provided that information is relevant . . . .” In
other words, information that is relevant is discoverable. (City of
Los Angeles v. Superior Court (2002) 29 Cal. 4th 1, 11 (City of
Los Angeles).) In sharp contrast to subdivision (a)’s expansive
language, section 1045, subdivision (b)(1), is quite narrow,
excluding only “[i]nformation consisting of [citizen] complaints
concerning conduct more than five years” before the event at
issue in the litigation. (See City of Los Angeles, at p. 11 [under
13
section 1045, subdivision (b)(1), “there is no statutory right to
disclosure of citizen complaints of police misconduct that occurred
‘more than five years before’ the charged crime”].)
Section 1045, subdivision (b)(1)’s use of the phrase
“consisting of complaints” rather than “relating to” complaints is
telling. Matters pertaining to complaints, including investigative
reports and statements of disciplinary consequences as a result of
a complaint, expressly identified as discoverable in
subdivision (a), if relevant (see City of Los Angeles, supra,
29 Cal.4th at p. 11), are not identified in subdivision (b)(1).
Investigatory conclusions are specified in subdivision (b)(2), but
excluded in “criminal proceeding[s]” only. The omission of these
categories of information from subdivision (b)(1), when expressly
included in subdivisions (a) and (b)(2), unmistakably
demonstrates the Legislature’s intent to confine section 1045,
subdivision (b)(1)’s five-year bar to citizen complaints only. (See
Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 725
[“‘when the Legislature has carefully employed a term in one
place and excluded it in another, it should not be implied where
excluded’”]; Roy v. Superior Court (2011) 198 Cal. App. 4th 1337,
1352 [“‘[w]hen the Legislature uses different words as part of the
same statutory scheme, those words are presumed to have
different meanings’”]; see also People v. Licas (2007) 41 Cal. 4th
362, 367 [“‘“[w]here a statute, with reference to one subject
contains a given provision, the omission of such provision from a
similar statute concerning a related subject is significant to show
that a different intention existed”’”]; City of Port Hueneme v. City
of Oxnard (1959) 52 Cal. 2d 385, 395 [same].)
This conclusion is reinforced by considering section 1045,
subdivision (b)(1)’s five-year bar in context with other statutes
14
enacted as part of the same statutory scheme. (See In re
Isaiah W. (2016) 1 Cal.5th 1, 13 [“‘“‘we do not construe statutes in
isolation, but rather read every statute “with reference to the
entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness”’”’”]; Smith v. Superior Court
(2006) 39 Cal. 4th 77, 83 [same].) Penal Code section 832.5,
among the statutes enacted with section 1045, requires law
enforcement agencies to retain “complaints and any reports or
findings relating to [a] complaint” for “at least five years” (Pen.
Code, § 832.5, subd. (b)), after which time those records may be
destroyed if not otherwise prohibited as a matter of department
policy. (City of Los Angeles, supra, 29 Cal.4th at p. 11.) Likewise,
after five years, a citizen complaint is no longer discoverable
(§ 1045, subd. (b)(1)). These parallel five-year periods, the
Supreme Court has suggested, are not coincidental. They reflect
a “legislative recognition that after five years a citizen’s
complaint of officer misconduct has lost considerable relevance.”
(City of Los Angeles, at p. 11.)
Significantly, Penal Code section 832.5’s retention
requirements apply to “complaints and any reports or findings
relating to these complaints . . . .” (Pen. Code, § 832.5, subd. (b).)
If, as the City asserts, the term “complaint” as used in the context
of peace officer personnel records encompasses all information
related to a complaint, it would have been unnecessary for the
Legislature to include the additional phrase “reports or findings
relating to” complaints in Penal Code section 832.5. (Cf. Reno v.
Baird (1998) 18 Cal. 4th 640, 658 [“[i]t is a maxim of statutory
construction that ‘[c]ourts should give meaning to every word of a
statute if possible, and should avoid a construction making any
word [or phrase] surplusage’”]; State ex rel. Bartlett v. Miller
15
(2016) 243 Cal. App. 4th 1398, 1410 [same].) In short, when the
Legislature wanted to include not only complaints but also
information “relating to” complaints, it plainly knew how to do so.
(See Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 724;
Regents of University of California v. Superior Court (2013)
220 Cal. App. 4th 549, 565 [court is obligated to interpret different
terms used by the Legislature in the same statutory scheme to
have different meanings].) It elected in section 1045,
subdivision (b)(1), to specify only a strictly limited type of
document.
To support its argument that section 1045,
subdivision (b)(1)’s five-year bar applies not only to complaints
but also to all conduct, including disciplinary consequences,
relating to a complaint, the City relies primarily on language in
Fletcher v. Superior Court (2002) 100 Cal. App. 4th 386 (Fletcher),
which stated, “‘[t]he five-year restriction in section 1045 . . .
applies only to records of “complaints, or investigations of
complaints, or discipline imposed as a result of such
investigations.”’” (Fletcher, at p. 399, quoting People v. Superior
Court (Gremminger) (1997) 58 Cal. App. 4th 397, 407
(Gremminger).) While there is no question that comment
supports the City’s argument, the Fletcher court was not asked
to, and did not, decide the scope of section 1045,
subdivision (b)(1). Rather, because the plaintiff in Fletcher only
sought records within five years of the date of the occurrence at
issue in the litigation, the Fletcher court, like the Gremminger
court it quoted, conflated subdivisions (a) and (b) of section 1045
in summarizing the governing law without actually considering
the breadth of the five-year disclosure bar. (See Fletcher, at
p. 400 [personnel records requested by plaintiff pertaining to
16
prior law enforcement employment within last five years were
relevant and discoverable; nothing in section 1045,
subdivisions (a) or (b) excluded such records from scope of
discovery]; Gremminger, at p. 407 [personnel records of a peace
officer criminal defendant are not exempt from discovery under
sections 1043 and 1045].) Even the Supreme Court has at times
used broad language in dicta describing section 1045,
subdivision (b)(1). (See, e.g., People v. Gaines, supra, 46 Cal.4th
at p. 182 [following an in camera hearing, the “trial court may
then disclose information from the confidential records that ‘is
relevant to the subject matter involved in the pending litigation’
(Evid. Code, § 1045, subd. (a)), provided that the information does
not concern peace officer conduct occurring more than five years
earlier”]; but see City of Los Angeles, supra, 29 Cal.4th at p. 6
[under section 1045, subdivision (b)(1), “‘complaints concerning
[police officer] conduct occurring more than five years before the
event or transaction which is the subject of the litigation in aid of
which discovery . . . is sought’ must be ‘exclude[d] from
disclosure’” (italics omitted)]; People v. Mooc (2001) 26 Cal. 4th
1216, 1226-1227 [same, quoting statute].) Of course, “‘[i]t is
axiomatic that cases are not authority for propositions not
considered.’” (People v. Avila (2006) 38 Cal. 4th 491, 566; People
v. Ault (2004) 33 Cal. 4th 1250, 1268, fn. 10 [same].)
The City’s reliance on Haggerty v. Superior Court (2004)
117 Cal. App. 4th 1079, 1082, is also misplaced. There, William
Haggerty brought a civil action against a San Diego County
sheriff’s deputy, alleging the deputy had used excessive physical
force while Haggerty was incarcerated in county jail. Haggerty
moved pursuant to sections 1043 and 1045 to obtain the internal
affairs report of the incident. Following an in camera hearing,
17
the trial court ordered the sheriff’s department to disclose the
internal affairs investigative report. The deputy petitioned for a
writ of mandate, arguing Haggerty was entitled only to
identifying information of the witnesses and not the full report.
Division One of the Fourth District granted the petition in part.
Although it rejected the deputy’s argument that the report was
not discoverable, it held the investigatory conclusions,
categorically inadmissible in a criminal proceeding under
section 1045, subdivision (b)(2), should have been excluded from
the production in the civil case because Haggerty had not
articulated how that information would have had any meaningful
benefit to the litigation. (Id. at pp. 1088-1089.) Here, in contrast,
Captain Justice’s declaration provided the necessary factual
predicate for the relevance of the TEAMS reports. If anything,
Haggerty strengthens our conclusion that all relevant material
apart from citizen complaints more than five years old is
discoverable, unless excluded under other provisions of
section 1045, subdivision (b), something the court did not address
in the instant case.
b. TEAMS reports are not “complaints” and do not
fall within the categorical exclusion of stale
complaints contained in 1045, subdivision (b)(1)
The TEAMS reports are not citizen complaints nor, as far
as we can determine from the record and the parties’ briefing, do
they directly quote from complaints. Rather, the TEAMS reports
contain summaries of personnel matters on which employment-
related decisions, such as assignment and promotion, are to be
based. As discussed, only complaints, and not broadly all
information related to complaints, as proposed by the City, are
subject to the five-year disclosure bar in section 1045,
subdivision (b)(1). Thus, while the TEAMS report may well
18
identify the nature of a complaint to explain or justify discipline
that has been imposed, essential information for the
Department’s decision makers in using the reports, none of that
information is akin to the unfiltered complaint. As such, the
TEAMS report is not subject to the categorical exclusion for stale
7
citizen complaints contained in section 1045, subdivision (b)(1).
DISPOSITION
Let a peremptory writ of mandate issue directing the
superior court to vacate its April 12, 2017 and May 17, 2017
orders requiring redaction of information in the TEAMS reports
pursuant to section 1045, subdivision (b)(1), and to make a new
order directing the City to produce those TEAMS reports without
redaction. Riske is to recover his costs in this proceeding.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
7
We not suggest a citizen complaint that has simply been
reproduced or transferred to a different medium (for example,
digitized) loses its character as a complaint and becomes subject
to disclosure. Indeed, presented with that hypothetical at oral
argument, Riske’s counsel conceded such a document would be
subject to the disclosure bar in section 1045, subdivision (b)(1).
19
APPENDIX A
20
21
22
23