Riske v. Superior Court of Los Angeles County

Filed 12/12/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROBERT RISKE, No. B270043
Petitioner, (Los Angeles County
Super. Ct. No. BC557535)
v.
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
WangWells; Benedon & Serlin, Douglas G. Benedon, Gerald M.
Serlin and Judith E. Posner, for Petitioner.
No appearance for Respondent.
Michael N. Feuer, City Attorney, Amy Jo Field, Assistant
City Attorney and Lisa S. Berger, 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, selecting
instead less qualified candidates. Riske filed a discovery motion
pursuant to Evidence Code sections 1043 and 1045, which
establish procedures for the disclosure of confidential personnel
records of peace officers, to obtain certain records of the officers
selected for the positions to which he had applied. Riske asserted
the documents he sought were necessary to show the City’s stated
business reason for its promotion decisions—the successful
candidates were more qualified than Riske—was pretext for
retaliation. The City opposed the motion, claiming the officers’
personnel records were not subject to discovery because the
officers were innocent third parties who had not witnessed or
caused Riske’s injury. The superior court agreed and denied
Riske’s motion.
We grant Riske’s petition for a writ of mandate and direct
the superior court to vacate its order denying Riske’s discovery
motion and to enter a new order requiring the City to produce the
reports sought by Riske for an in camera inspection pursuant to
Evidence Code section 1045 and to thereafter order production of
all discoverable information. The statutory scheme governing the
discovery of peace officer personnel records is not limited to cases
involving officers who either witnessed or committed misconduct.
If a plaintiff can demonstrate the officer’s personnel records are
material to the subject matter of the litigation, the records must
2
be produced by the custodian of records and reviewed by the court
at an in camera hearing in accordance with the statutory
procedures to assess the discoverability of the information
contained in them. The court must then order production of those
records that are relevant and not otherwise protected from
disclosure.
FACTUAL AND PROCEDURAL BACKGROUND
1. Riske’s Whistleblower Activity and the Subsequent
Adverse Response by Fellow Officers
According to 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 the officers 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. At
times they even ignored 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 he
applied for 14 highly desirable detective-I and detective-II
positions. Notwithstanding his superior qualifications, his
applications were denied each time in favor of less experienced or
less qualified persons.
2. Riske’s Lawsuit, the Department’s Summary Judgment
Motion and Riske’s Initial Request for Production of
Documents
In September 2014 Riske sued the Department for unlawful
retaliation in violation of Labor Code section 1102.5, alleging the
Department’s refusal to promote him was in retaliation for his
3
protected whistleblower activity. The City answered the
complaint, denying the allegations, and thereafter moved for
summary judgment arguing, among other things, it had a
legitimate business reason for its promotional 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 for 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 the parties’
stipulated protective order.1 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.
3. Riske’s Discovery Motion for Peace Officer Personnel
Records
Riske moved under Evidence Code sections 1043 and 1045
for production of the selected officers’ Training Evaluation and
Manage System (“TEAMS”) reports, which summarized the
successful candidates’ qualifications and history of
commendations and complaints, and their last two performance
1
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
2
evaluations, known as Standards Based Assessments. To
support his motion 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, all
officers applying for the positions Riske identified were required
to submit a TEAMS report and their last two performance
evaluations; and the supervisors making the
promotion/assignment/hiring decision were required to consider
that information in arriving at their overall rating of the
applicants. Captain Justice characterized the TEAMS reports as
playing a “crucial role” in the selection process. He also testified
performance evaluations were critical because receipt of a “notice
to correct” conduct would be reflected in a performance evaluation
but not in a TEAMS report. Riske argued the documents were
material to his ability to prove the Department’s stated business
reasons for its failure to promote him were pretext for unlawful
retaliation.
The City opposed Riske’s motion, arguing peace officer
personnel records are confidential and the statutory scheme
permitting discovery of those records did not apply when the
officers whose personnel records were sought had neither
witnessed nor been accused of any misconduct. The City also
2
The parties agree that TEAMS is a system maintained by
the Department “to track detailed information pertaining to an
officer’s entire career with the Department. A TEAMS report is a
report generated by the TEAMS [data-tracking] system, and
includes such information as [an officer’s] training, assignments,
personnel complaints, discipline, commendations, and use[] of
force.”
5
insisted Riske had failed to demonstrate good cause for production
of the records.
4. The Superior Court’s Denial of Riske’s Motion for
Personnel Records
The superior court denied Riske’s motion, ruling the
discovery procedures applicable to peace officer personnel records
did not apply to records of officers who had not committed or
witnessed any misconduct. The court stated, “You want records of
all these officers who have got nothing to do with this case other
than, you know, they were considered for these positions at the
same time as your client was. But they did nothing wrong.
They’re not a witness to anything. They committed no alleged
misconduct. So that’s why I still don’t think [you] get discovery of
their otherwise privileged personnel files.” The court continued
the hearing on the summary judgment to April 12, 2016.
On February 5, 2016 Riske filed a petition for writ of
mandate in this court, challenging the superior court’s denial of
his statutory discovery motion. On March 2, 2016 we issued an
order to show cause and stayed further proceedings in the
superior court pending our ruling on Riske’s petition.
DISCUSSION
1. Governing Law and Standard of Review
In Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)
the Supreme Court held a criminal defendant, upon a showing of
good cause, could compel discovery of information in a police
officer’s personnel file that was relevant to the defendant’s ability
to defend against a criminal charge. In 1978 the Legislature
enacted Penal Code sections 832.7 and 832.8 and Evidence Code
sections 1043 through 1045, codifying many of the principles
articulated in Pitchess and creating a statutory scheme for the
6
limited discovery of peace and custodial officer personnel records
in both civil and criminal cases. (See Stats. 1978, ch. 630, §§ 1-3
& 5-6, pp. 2082-2083; Riverside County Sheriff’s Dept. v. Stiglitz
(2014) 60 Cal.4th 624, 631 (Stiglitz); City of Los Angeles v.
Superior Court (2002) 29 Cal.4th 1, 9.)
Currently, Penal Code section 832.7, subdivision (a),
provides in part that the personnel records3 of a peace or custodial
officer are “confidential and shall not be disclosed in any criminal
or civil proceeding” except by discovery procedures set forth in
Evidence Code sections 1043 and 1045.4 Evidence Code
3
Personnel records are defined in Penal Code section 832.8 as
“any file maintained under that individual’s name by his or her
employing agency and containing records relating to any of the
following: [¶] (a) Personal data, including marital status, family
members, educational and employment history, home addresses,
or similar information. [¶] (b) Medical history. [¶] (c) Election
of employee benefits. [¶] (d) Employee advancement, appraisal,
or discipline. [¶] (e) Complaints or investigations of complaints
concerning an event or transaction in which he or she
participated, or which he or she perceived, and pertaining to the
manner in which he or she performed his or her duties. [¶] (f)
Any other information the disclosure of which would constitute an
unwarranted invasion of personal privacy.” (See Commission on
Peace Officer Standards & Training v. Superior Court (2007)
42 Cal.4th 278, 289-290 [only information falling into one of
Penal Code section 832.8’s specifically listed categories is a
“personnel record” for Pitchess purposes]; Zanone v. City of
Whittier (2008) 162 Cal.App.4th 174, 188 [same].)
4
Evidence Code sections 1046 and 1047, added by the
Legislature in 1985 (Stats. 1985, ch. 539, §§ 1, 2, p. 1917), govern
discovery of peace officer personnel records in excessive force cases
and are not at issue here. (See Stiglitz, supra, 60 Cal.4th at
7
section 1043 requires the party seeking the discovery of peace or
custodial officer personnel records or information from those
records to file a motion with the court and give notice of the
motion to the government agency that has custody or control of
the records. (Evid. Code, § 1043, subd. (a).) The discovery motion
must include, among other things, a description of the type of
records or information sought and affidavits showing good
cause for their discovery or disclosure. (Evid. Code,
§ 1043, subd. (b)(2)-(3).)
Good cause for discovery of peace officer personnel records
under the statutory scheme exists when the party seeking the
discovery shows the ‘“materiality” of the information to the subject
matter of the pending litigation and states upon “reasonable
belief” that the agency has the type of information sought. (Evid.
Code, § 1043, subd. (b)(3); People v. Gaines (2009) 46 Cal.4th
172, 179 (Gaines); Warrick v. Superior Court (2005) 35 Cal.4th
1011, 1019 (Warrick).) 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. (Warrick,
at p. 1025.) The 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. (Ibid.)
This good cause requirement creates a “‘relatively low
threshold for discovery.’” (Warrick, supra, 35 Cal.4th at p. 1019;
accord, Gaines, supra, 46 Cal.4th at p. 179 [“[a] showing of good
cause [under Evidence Code section 1043] is measured by
pp. 641-642; Alt v. Superior Court (1999) 74 Cal.App.4th 950, 957-
958.)
8
‘relatively relaxed standards’ that serve to ‘insure the production’
for trial court review of ‘all potentially relevant documents’”].) If
this threshold showing of good cause is met, the trial court must
then review the pertinent documents in chambers in conformity
with Evidence Code section 915 and disclose only that information
falling within the statutorily defined standards of relevance.
(Evid. Code, § 1045, subd. (a); Warrick, at p. 1019; City of
Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 19.)
The statutory scheme contains additional protections and
limitations on the scope of the discovery. For example, complaints
pertaining to officer conduct more than five years before the event
or the transaction at issue in the case, as well as any information
or record that is otherwise “so remote as to make disclosure of
little or no practical benefit,” are not discoverable. (Evid. Code,
§ 1045, subd. (b)(3).) In addition, the court must “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 or personnel records.” (Evid. Code, § 1045, subd. (c).)
The court is also authorized to make “any order which justice
requires to protect the officer or agency from unnecessary
annoyance, embarrassment or oppression.” (Evid. Code,
§ 1045, subd. (d); see Alford v. Superior Court (2003) 29 Cal.4th
1033, 1039 (Alford) [“‘[t]he relatively low threshold for discovery
embodied in section 1043 is offset in turn, by section 1045’s
protective provisions which: (1) explicitly “exclude from
disclosure” certain enumerated categories of information
[citation]; (2) establish a procedure for in camera inspection by the
court prior to any disclosure [citation]; and (3) issue a forceful
directive to the courts to consider the privacy interests of the
officers whose records are sought and take whatever steps “justice
9
requires” to protect the officers from “unnecessary annoyance,
embarrassment or oppression”’”].)
This two-step process for discovery of peace officer personnel
records balances the officer’s strong privacy interests in his or her
own personnel records with the needs of civil litigants and
criminal defendants to obtain information material to their claim
or defense. (People v. Mooc (2001) 26 Cal.4th 1216, 1227; see
Alford, supra, 29 Cal.4th at pp. 1038-1039 [“‘The statutory scheme
thus carefully balances two directly conflicting interests: the
peace officer’s just claim to confidentiality, and the criminal
defendant’s equally compelling interest in all information
pertinent to his defense. The relatively relaxed standards for a
showing of good cause under section 1043, subdivision (b)—
“materiality” to the subject matter of the pending litigation and a
“reasonable belief” that the agency has the type of information
sought—insure the production for inspection of all potentially
relevant documents. The in camera review procedure and
disclosure guidelines set forth in section 1045 guarantee, in turn,
a balancing of the officer’s privacy interests against the
defendant’s need for disclosure.’”]; Haggerty v. Superior Court
(2004) 117 Cal.App.4th 1079, 1085 [same].)
The trial court’s decision to grant or deny a discovery motion
under Evidence Code sections 1043 and 10455 is ordinarily
reviewed for abuse of discretion. (Alford, supra, 29 Cal.4th
at p. 1039.) However, when, as here, the decision is based on an
5
Although the Legislature’s 1978 enactment of this statutory
scheme superseded the Court’s holding in Pitchess, supra,
11 Cal.3d 531, discovery motions and hearings conducted
pursuant to Evidence Code sections 1043 through 1046 are still
commonly referred to as Pitchess motions and hearings.
10
interpretation of the statutes governing such discovery, our review
is de novo. (City of Eureka v. Superior Court of Humboldt County
(2016) 1 Cal.App.5th 755, 763; Pasadena Police Officers Assn. v.
Superior Court (2015) 240 Cal.App.4th 268, 284.)
2. The Superior Court Erred in Ruling Pitchess Discovery
Was Not Available Because the Officers Whose Records
Were Sought Had Not Participated in or Witnessed the
Conduct Alleged To Have Caused Riske’s Injury
The superior court denied Riske’s discovery motion without
holding an in camera hearing because it agreed with the City the
discovery procedures for peace officer personnel records did not
apply when the officers whose records were sought did not cause
or witness the plaintiff’s injury. The court erred in narrowly
construing the statute to contain such a limitation.
Analysis of the requirements of Evidence Code section 1043
must begin with the plain language of the statute, giving the
words their ordinary and common meaning. (Voices of the
Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th
499, 519.) “If the language [of the statute] is unambiguous, the
plain meaning controls,” and no further analysis is warranted.
(Ibid.; accord, Wells v. One2One Learning Foundation (2006)
39 Cal.4th 1164, 1190; State ex rel. Bartlett v. Miller (2016)
243 Cal.App.4th 1398, 1408.) When the language allows for more
than one reasonable construction, we consider “such aids as the
legislative history of the [statute] and maxims of statutory
construction. In cases of uncertain meaning, we may also consider
the consequences of a particular interpretation, including its
impact on public policy.” (Wells, at p. 1190.)
Here, the language of Evidence Code section 1043,
subdivision (b)(3), is plain and unambiguous. (See Alford, supra,29 Cal.4th at pp. 1033 [“[a]s statutory schemes go [Evidence Code
11
sections 1043 through 1045] is a veritable model of clarity and
balance”].) As discussed, Evidence Code section 1043 requires the
party seeking discovery in a criminal or civil case to show good
cause for the information by setting forth “the materiality thereof
to the subject matter involved in the pending litigation . . . .” The
critical limitation for purposes of the initial threshold
determination is materiality, which, in this context, means the
evidence sought is admissible or may lead to discovery of
admissible evidence. (Richardson v. Superior Court (2008)
43 Cal.4th 1040, 1048-1049 [“the materiality standard [of
Evidence Code section 1043] is met if evidence of prior complaints
is admissible or may lead to admissible evidence”]; Alford, supra,29 Cal.4th at p. 1039; cf. People v. Superior Court (Johnson) (2015)
61 Cal.4th 696, 712 [a criminal defendant seeking an in camera
hearing for review and disclosure of peace officer personnel
records must make a threshold showing of materiality to the
pending litigation, a much lesser showing than required under the
Supreme Court’s constitutional materiality standard articulated
in Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194,
10 L.Ed.2d 215].)
The City concedes the statutory scheme applies in civil cases
and acknowledges that nothing in those statutes explicitly
restricts discovery to personnel records of peace officers who
participated in or witnessed the wrongdoing at issue in the
litigation. It nonetheless argues the Legislature, mindful that
Pitchess involved allegations of officer misconduct, must have had
that circumstance in mind in 1978 when it enacted Evidence Code
sections 1043 through 1045. This notion that the underlying facts
of the Pitchess decision articulate or inform the limits of
permissible discovery of peace officer personnel records under
Evidence Code sections 1043 and 1045 has long been rejected.
12
(See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84
[“In determining the question of ‘good cause,’ however, we do not
operate in a decisional vacuum. We have previously held that the
Legislature, in adopting the statutory scheme in question, ‘not
only reaffirmed but expanded’ the principles of criminal discovery
articulated by this court in the landmark case of Pitchess v.
Superior Court . . . .”]; Commission on Peace Officer Standards &
Training v. Superior Court (2007) 42 Cal.4th 278, 293 [Evidence
Code section 1043 governs all peace officer personnel records as
defined in Penal Code section 832.8, not simply the types of
complaints and disciplinary actions at issue in Pitchess]; County of
Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1609
[“Legislature’s use of the term ‘any criminal or civil proceeding’
. . . was intended to apply to any situation, including a personal
injury action . . . where a party seeks to discover information
contained in a peace officer’s personnel file”].)
To support its narrow interpretation of the term
“materiality” in Evidence Code section 1045, the City compares
several cases in which good cause was found because the officer
was alleged to have committed misconduct and contrasts them
with cases in which good cause was absent because the officer had
not committed misconduct. (Compare City of Santa Cruz v.
Municipal Court, supra, 49 Cal.3d at p. 85 [defense assertion of
excessive force by arresting officers established plausible factual
foundation for discovery of personnel records] and Slayton v.
Superior Court (2006) 146 Cal.App.4th 55, 61 [in marital
dissolution action alleging spousal abuse, wife could obtain
personnel records of peace officer husband under Evidence Code
section 1043 to the extent information in his file was material to
her claims he was violent] with People v. Cruz (2008) 44 Cal.4th
636, 669-670 [criminal defendant who asserted officers acted with
13
excessive force did not show good cause for obtaining personnel
records of officers who were not present when he was arrested;
“[t]here is no basis in the moving papers on which a conclusion
can be reached that [the officers’] past conduct would in any way
have anything to do with matters or material that might in any
way be helpful to the defense in the case’”]; People v. Collins
(2004) 115 Cal.App.4th 137, 151 [criminal defendant who alleged
officers planted drugs on him failed to show good cause for
discovery of personnel records; officers whose records were sought
were not involved in the body cavity search that led to the
discovery of drugs]; California Highway Patrol v. Superior Court
(2000) 84 Cal.App.4th 1010, 1023 [criminal defendant failed to
show good cause for personnel records to support his claim that
officer falsified police report; officer whose records were sought
was not alleged to have prepared a false report].)
Contrary to the City’s suggestion, the dispositive factor in
these cases was not the presence or absence of the officer during
the episode of misconduct at issue; it was the materiality of the
officer’s records to the issue before the court. When the officer’s
conduct was material to the claim, good cause was found. (See
City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 85.)
When the officer whose records were sought was not present when
the police misconduct was alleged to have taken place, that
officer’s past misconduct was not material to the defendant’s
allegations; and the motion was denied. (People v. Cruz, supra,44 Cal.4th at pp. 669-670; People v. Collins, supra,
115 Cal.App.4th at p. 151.) To be sure, as the cases cited by the
City demonstrate, materiality will typically be found when the
officer was involved, and not found when the officer was not
involved in the alleged wrongdoing. But that is not invariably the
case, as the Supreme Court has made clear. (See Stiglitz, supra,
14
60 Cal.4th 624; People v. Memro (1985) 38 Cal.3d 658, 685-687
(Memro), overruled on another ground in Gaines, supra,46 Cal.4th at p. 181, fn. 2.)
In Memro the defendant claimed the confession he made in
his postarrest interrogation had been coerced through excessive
force and sought information regarding excessive force complaints
from the personnel records of 16 officers, most of whom had not
participated in the interrogation. The Memro Court held
discovery of the records of a noninterrogating officer would be
proper if the defendant could show a link between that officer and
the interrogating officers such as training or other substantial
contacts, which would be relevant to the defendant’s theory that
the coercive techniques alleged were part of a pattern of conduct
by the South Gate Police Department. (Memro, supra, 38 Cal.3d
at pp. 685-687.) The defendant in Memro failed to make that
connection. (Ibid.)
Several months after Memro was decided the Legislature
enacted Evidence Code sections 1046 and 1047 specifically to
overturn that portion of Memro allowing discovery of the
personnel records of the noninterrogating officers. (See Stats.
1985, ch. 539, § 2, p. 1917; Alt v. Superior Court (1999)
74 Cal.App.4th 950, 959, fn. 4.) In particular, Evidence Code
section 1047 protects from discovery records of officers who “were
not present during the arrest or had no contact with the party
seeking disclosure from the time of the arrest until the time of
booking, or who were not present at the time the conduct is
alleged to have occurred within a jail facility.”
Any question as to the scope of Evidence Code section 1047’s
protections and Memro’s continued viability concerning the
discoverability of personnel records of peace officers not directly
involved in the plaintiff’s injury was resolved in Stiglitz, supra,
15
60 Cal.4th 624. There, a sheriff’s deputy had filed an
administrative complaint challenging the Riverside County
Sheriff’s Department’s termination of her employment for
falsifying her payroll forms. The deputy contended she had been
subjected to disparate treatment, arguing other employees had
committed the same offense but had not been fired. To prove the
allegations in her complaint, she moved under Evidence Code
section 1043 for production of certain personnel records of several
employees who had been disciplined for falsifying payroll forms.
The Sheriff’s Department objected, arguing the deputy had not,
and could not, establish good cause for an in camera hearing
because none of the officers whose records were sought was
involved in the underlying incident that led to the deputy’s
termination. (Stiglitz, at p. 629.) The hearing officer ordered
production of the records, and the Sheriff’s Department sought to
overturn that decision by an administrative writ of mandate. In
addition to asserting lack of good cause, the Sheriff’s Department
filed a supplemental brief in superior court arguing only judicial
officers could hold Pitchess hearings and grant Pitchess discovery
motions, not hearing officers. The superior court agreed with this
latter argument and issued the administrative writ of mandate.
(Ibid.) The Court of Appeal reversed, ruling the hearing officer’s
order was valid under the statute.
The Supreme Court affirmed, holding Evidence Code section
1043 authorized both judicial officers and administrative hearing
officers to rule on discovery motions brought under the statutory
scheme governing disclosure of peace officer personnel records.
(Stiglitz, supra, 60 Cal.4th at pp. 630-631.) Of significance for the
case at bar, the Stiglitz Court also rejected the Sheriff’s
Department argument the records were not discoverable as a
matter of law because the officers whose personal information was
16
sought had no involvement in the deputy’s claimed injury: “The
department argues that, because the officers whose records [the
plaintiff] has requested had nothing to do with her termination,
she is not entitled to discovery. In support, the department cites
Evidence Code section 1047 . . . . The department’s reading of
this statute was rejected in Alt v. Superior Court [, supra,]
74 Cal.App.4th 950. Alt reasoned that Evidence Code
section 1047 only applies if the discovery request relates to an
incident involving an arrest or its equivalent. When, as here, the
discovery request is unrelated to an arrest, Evidence Code section
1047’s limitation does not apply. . . . [A contrary] interpretation of
section 1047 would mean that police personnel information could
be discovered only if there had been an arrest or contact between
arrest and booking, and in no other situation. This reading runs
counter to Memro’s observation that sections 1043 and 1045 do not
limit discovery of personnel records to cases involving police
officers and arrestees.’” (Stiglitz, at p. 641.)
Although the City does not rely on Evidence Code section
1047, in all other respects its argument is the same as the
Riverside Sheriff’s Department’s in Stiglitz: Because the officers
whose records Riske requested had nothing to do with the
employment decisions that are the subject of this litigation, their
personnel records are protected from discovery. The analytic
linchpin of the Stiglitz holding rejecting this argument, resulting
in the enforcement of the hearing officer’s order under Evidence
Code section 1043 to produce records for in camera inspection, is
that Evidence Code sections 1043 and 1045 do not limit the
production of confidential personnel records to those officers who
participated in, or witnessed, the alleged wrongdoing at issue in
the litigation. (See Stiglitz, supra, 60 Cal.4th at p. 641.) If the
plaintiff can show the confidential personnel records of officers
17
who were not involved in the injury are nonetheless material to
the litigation, he or she has demonstrated the good cause
necessary to obtain in camera review.
Without acknowledging the holding or analysis in Stiglitz,
the City argues permitting discovery of relevant information when
the officer whose records are sought was not involved in plaintiff’s
injury would effectively create a less protective standard for the
discovery of peace officer personnel records than for the third-
party consumer records. (See Life Technologies Corp. v. Superior
Court (2011) 197 Cal.App.4th 640, 652 [in civil cases third-party
personnel files are considered confidential and protected by a
constitutional right to privacy under the California Constitution
unless the party seeking them can demonstrate a “compelling
need” for their discovery]; Harding Lawson Associates v. Superior
Court (1992) 10 Cal.App.4th 7, 10 [same].) Even were this true,
that is a policy judgment for the Legislature, not this court. In
any event, the City’s assessment of the purported differences in
these cases is flawed. In peace officer and non-peace officer cases
personnel records are conditionally privileged. In both types of
cases notice must be given to the officer or consumer whose
records are sought to give that party the opportunity to object.
(See Evid. Code, § 1043, subd. (a) [peace officers]; Code Civ. Proc.,
§ 1985.3, subd. (b) [third-party consumers].) And in each type of
case actual relevance is likely dispositive. (Compare
Life Technologies Corp., at p. 652 [“‘[a] showing of relevancy may
be enough to cause the court to balance the compelling public need
for discovery against the fundamental right of privacy’”] with
Evid. Code, § 1045, subd. (b) [information subject to disclosure
must be relevant to subject matter involved in the pending
litigation].) Also, in both categories the courts must consider
whether “the information cannot reasonably be obtained through
18
depositions or from nonconfidential sources.” (Life Technologies
Corp., at p. 652, ital. omitted; see also Evid. Code,
§ 1045, subds. (c)-(e).)
Moreover, when personnel records of peace officers are
involved, an additional level of protection exists—a threshold
inquiry by the court not conducted when private citizen personnel
records are sought. (Alford, supra, 29 Cal.4th at p. 1039.) Only
after this initial hurdle has been cleared—an evaluation whether
good cause has been sufficiently alleged to justify an in camera
review of potentially relevant documents—does the trial court
conduct its in camera review of peace officer personnel records
and determine, as in the case of third-party personnel records,
whether and to what extent relevant information may be disclosed
without intruding too significantly on a peace officer’s privacy.
(See Evid. Code, § 1045, subds. (b)-(d).)
3. Riske Has Demonstrated a Plausible Factual Basis
Sufficient To Establish Good Cause and Obtain an In
Camera Hearing
The City contends, even if the general procedures for
Pitchess discovery apply in this case, Riske did not demonstrate a
plausible factual scenario indicating the relevance of the
personnel records he requested and thus did not meet his burden
to show good cause.6 To the contrary, Riske’s retaliation case
6
The superior court denied Riske’s motion on the erroneous
ground that, absent misconduct, good cause could not be
established. In some circumstances we would remand for the trial
court to exercise its discretion as to whether a threshold good
cause showing has been made. When, as here, it is clear the trial
court’s discretion could only be exercised in one way, remand is
unnecessary. (Cf. Langford v. Superior Court (1987) 43 Cal.3d
19rests on the premise that persons less qualified than he were
promoted ahead of him in retaliation for his protected
whistleblower activity. The City’s defense, at least in part, was
that the successful candidates were more qualified. Information
in the TEAMS report and performance evaluations of the
successful candidates could very well be material to Riske’s claim
the City’s stated business reason was a pretext for unlawful
retaliation. (See Ash v. Tyson Foods, Inc. (2006) 546 U.S. 454, 457
[126 S.Ct. 1195, 163 L.Ed.2d 1053] [qualifications evidence is
relevant to show pretext]; Iwekaogwu v City of Los Angeles (1999)
75 Cal.App.4th 803, 816 [“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”]; Shelley v. Geren (9th Cir. 2012) 666 F.3d 599, 610
[“[e]vidence of a plaintiff’s superior qualifications, standing alone,
may be sufficient to prove pretext”].)
The City asserts Riske failed to show good cause because he
provided no specific evidence in his supporting affidavit that the
officers who were selected for the highly desirable positions were,
in fact, less qualified than he. Instead, it contends, he is engaging
in the type of “fishing expedition” the statute’s good cause
requirement was designed to prevent. (See City of San Jose v.
Superior Court (1993) 5 Cal.4th 47, 54 [the Legislature’s intent in
adopting the statutory scheme governing discovery of peace officer
personnel records “manifestly was to protect such records against
‘fishing expeditions’”].) The City’s argument fundamentally
misconceives the Pitchess discovery process.
21, 28; O’Bryan v. Superior Court of Los Angeles County (1941)
18 Cal.2d 490, 496.)
20
Good cause in the initial phase of a discovery request for
officer personnel records requires a plausible factual showing of
materiality. Riske made that showing by articulating his
whistleblower activity, a history of being maligned by other
officers for that activity and his substantial qualifications for each
of the 14 positions for which he applied. He also alleged he was
more qualified than each of the candidates selected. Further
particularity is not required. (People v. Superior Court (Johnson),
supra, 61 Cal.4th at p. 721 [requiring petitioner to know what is
located in the requested personnel records before he obtains
discovery would be impossible; “[t]he required threshold showing
does not place [the requesting party] ‘in the Catch-22 position of
having to allege with particularity the very information he is
seeking’ ”]; People v. Memro, supra, 38 Cal.3d at pp. 682, 684
[same].)
The City also asserts that personnel records of at least one
as-yet unidentified officer, the candidate selected for a detective-II
position at Pacific Division sometime after March 2014, was not
discoverable because Riske did not apply for that position after it
was reposted in March 2014. However, Riske alleged in his
complaint he applied for the position when it was first posted in
January 2014; the position was not then filled; and the position
was reposted several months later after Riske was rejected.
Contrary to the City’s contention, evidence of the successful
applicant’s qualifications could very well be material to Riske’s
claim even if he did not reapply. (Cf. McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792, 802 [93 S.Ct. 1817, 36 L.Ed.2d 668]
[prima facie case of disparate treatment established if plaintiff
proves he was qualified for position, was rejected, and after his
rejection, position remained open and employer continued to seek
applicants from persons of complainant’s qualifications]; Clark v.
21
Claremont University Center (1992) 6 Cal.App.4th 639, 663
[same].)
Finally, the City asserts the qualifications evidence is not
“material” because hiring decisions were based less on an
objective comparison of qualifications than on the subjective
impression of decision makers. This argument goes to the weight
of the evidence Riske will present to prove his case, not the
plausible factual scenario he advanced in support of his motion.
(See Warrick, supra, 35 Cal.4th at p. 1026 [“To require a criminal
defendant to present a credible or believable factual account of, or
a motive for, police misconduct suggests that the trial court’s task
in assessing a Pitchess motion is to weigh or assess the evidence.
It is not.”].)
In sum, Riske established good cause to obtain an in camera
review of the personnel records—the TEAMS reports and last two
performance evaluations—he requested.7 Whether and to what
extent any information in any of the identified officers’ personnel
file is thereafter discoverable is for the superior court to determine
in the first instance.
DISPOSITION
Let a peremptory writ of mandate issue directing the
superior court to vacate its order of December 10, 2015 denying
Riske’s motion to discover the TEAMS reports and performance
evaluations of the officers identified in his motion and to enter a
new and different order directing the City to produce those reports
7
Riske also sought personnel records pertaining to
investigations into his retaliation claim and documents pertaining
to retaliation against Lieutenant Leland Sands. Riske’s petition
does not challenge the trial court’s denial of those requests.
22
for an in camera inspection in accordance with Evidence Code
section 1045. Riske is to recover his costs in this proceeding.
PERLUSS, P. J.
We concur:
SEGAL, J.
KEENY, J. *
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
23