City of Santa Cruz v. Municipal Court

Decision Date27 July 1989
Docket NumberNo. S006651,S006651
Citation49 Cal.3d 74,776 P.2d 222,260 Cal.Rptr. 520
CourtCalifornia Supreme Court
Parties, 776 P.2d 222 CITY OF SANTA CRUZ, Petitioner, v. The MUNICIPAL COURT FOR the SANTA CRUZ JUDICIAL DISTRICT OF SANTA CRUZ COUNTY, Respondent; Howard KENNEDY, Real Party in Interest.
[776 P.2d 223] Gerald D. Bowden, John G. Barisone and Atchison & Anderson, Santa Cruz, for petitioner

Samara C. Marion and Diana L. August, Santa Cruz, for real party in interest.

William B. Sage, City Atty., Huntington Beach, John K. Van de Kamp, Atty. Gen., Steve White, Joel Carey and Derald Granberg, Deputy Attys. Gen. as amici curiae on behalf of petitioner.

KAUFMAN, Justice.

We granted review in this case to determine whether a showing of "good cause" for discovery of peace officer personnel records, pursuant to Evidence Code section 1043, subdivision (b), 1 requires an affidavit based on the affiant's personal knowledge

of the averments set forth therein. We hold that personal knowledge is not a requirement under section 1043, subdivision (b).


On the evening of December 2, 1987, real party in interest (hereafter defendant) Howard Kennedy was arrested and charged with resisting arrest (Pen.Code, § 148) and exhibiting a knife (Pen.Code, § 417). Defendant subsequently filed a motion for discovery of all prior complaints of excessive force or violence involving the two arresting officers, Harris and Dickson. The motion was based on the police reports of the incident and a declaration of defendant's attorney.

Officer Harris's report stated in substance as follows: On the evening in question, he and Officer Dickson responded to a report of an individual brandishing a knife. The alleged victim of the assault identified defendant as the assailant. The officers ordered defendant to place his hands on a fence, step back and spread his legs. Defendant placed his hands on the fence but refused to step back. When Officer Dickson began a pat-down search, defendant became agitated and removed his hands from the fence. Officer Dickson then pushed defendant against the fence and ordered him to leave his hands there. When defendant again removed his hands, both officers grabbed him by the wrists and ordered him not to resist. As soon as they released him, however, defendant turned as if to walk away, whereupon both officers again attempted to grab his arms. Defendant then swung his fist at Officer Harris but missed. In response, Officer Harris struck defendant with, in his own words, a "closed left fist in the side of his face causing him to lose balance." Officer Dickson then wrestled defendant to the ground, Officer Harris joined in, and the three "wrestled around" until Officer Harris was able to place handcuffs on defendant. A supplemental police report filed by the backup officer states that both the alleged victim and his friend, referred to in the police report as "independent witnesses," were of the opinion that the officers "used the correct amount of force necessary...."

The declaration of defendant's attorney in support of the motion stated, in pertinent part, as follows: "The requested documents and records are relevant to a defense of the charges.... [p] I am informed and believe based upon information contained in the police report as well as from [defendant], that Officers Harris and Dickson ... used excessive, unreasonable and unnecessary force to arrest [defendant] and that said excessive force was beyond the scope of the duties of said arresting officers so as to make said arrest illegal and otherwise improper. [p ] A material and substantial issue in the trial of this matter will be the character, habits, customs and credibility of the officers. [p] I am informed and believe, and thereon allege that Officers Dickson and Harris grabbed [defendant] and handcuffed him. Officers Dickson and Harris then grabbed [defendant] by the hair and threw him down to the ground. One officer then stepped on [defendant's] head, while the other twisted his arm behind his back."

Counsel's declaration continued: "I believe that other complaints of use of excessive force by the officer[s] may have been filed by members of the public resulting in investigation and related reports to which the prosecution has sole access; that such complaints would tend to show or will lead to evidence which will show a tendency or propensity on the part of the arresting officer[s] herein to engage in the use of unlawful and excessive force in the execution of arrests." The declaration further alleged on information and belief that the records sought were within the possession, custody or control of the City of Santa Cruz Police Department (City).

At the hearing on the motion, the municipal court judge ruled that defendant had made a sufficient showing of good cause to justify an in camera hearing, pursuant to the provisions of sections 1043, subdivision (b) and 1045, subdivision (b), to determine whether the materials sought were relevant In so ruling, the court expressly rejected the City's contention that counsel's declaration in support of the motion was inherently inadequate because the allegations were based on "information and belief." While acknowledging that City of Santa Cruz v. Superior Court (1987) 190 Cal.App.3d 1669, 236 Cal.Rptr. 155 supported the City's position, the court held that the better rule and the overwhelming weight of authority, including two cases decided after City of Santa Cruz, i.e., Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 239 Cal.Rptr. 264 and Jalilie v. Superior Court (1987) 195 Cal.App.3d 487, 240 Cal.Rptr. 662, held that allegations on information and belief may establish good cause for discovery under section 1043, subdivision (b). In any event, the court observed that ignoring counsel's declaration, the "police reports, standing on their own, are satisfactory justification for the motion in this case."

to the pending litigation. The court further ruled that any disclosure would be limited to the name, address and phone number of any prior complainants and witnesses and the date of any prior incidents. [776 P.2d 225] The court explicitly declined to disclose any documents, records or copies of reports, as well as any information relating to disciplinary proceedings or investigations of the police department. 2

The City thereupon petitioned the superior court for a writ of mandate to compel the municipal court to vacate its order. The superior court denied the petition. The City then petitioned the Court of Appeal. The latter, after soliciting and receiving opposition, issued a peremptory writ in the first instance directing the municipal court to vacate its original order and to enter a new and different order denying the motion. In so ruling, the Court of Appeal reaffirmed its earlier holding in City of Santa Cruz v. Superior Court, supra, 190 Cal.App.3d 1669, 236 Cal.Rptr. 155, that averments in an affidavit on information and belief cannot satisfy the good cause requirements of section 1043, subdivision (b).

We granted review to resolve a widening conflict among the Courts of Appeal over an issue of ongoing statewide importance. We now reverse the judgment of the Court of Appeal.

A. The Statutory Background

Notwithstanding contrary decisions in one Court of Appeal and the views of the dissenters here, we find the statutory scheme clear, the statutory language quite plain and the legislative intent manifest.

In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as "Pitchess motions" (after our decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305) through the enactment of Penal Code sections 832.7 and 832.8 3 and Evidence Code A finding of "good cause" under section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, section 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.)

                [776 P.2d 226] sections 1043 through 1045.   THE PENAL CODE4 [49 Cal.3d 82] provisions define "personnel records" (Pen.Code, § 832.8) and provide that such records are "confidential" and subject to discovery only pursuant to the procedures set forth in the Evidence Code.  (Pen.Code, § 832.7.)  Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail.  As here pertinent, section 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, "(2) A description of the type of records or information sought;  and [p] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such

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