Davis v. City of Sacramento

• Decision Date: 31 March 1994
• Docket Number: No. C013547,C013547
• Citation: 29 Cal.Rptr.2d 232,24 Cal.App.4th 393
• Court: California Court of Appeals Court of Appeals
• Parties: Erma DAVIS et al., Plaintiffs and Appellants, v. CITY OF SACRAMENTO et al., Defendants and Respondents.

Page 232

29 Cal.Rptr.2d 232

24 Cal.App.4th 393

Erma DAVIS et al., Plaintiffs and Appellants, v. CITY OF SACRAMENTO et al., Defendants and Respondents.

No. C013547.

Court of Appeal, Third District, California.

March 31, 1994.

Review Denied June 5, 1994.

Thomas S. Crary, Sacramento, for plaintiffs and appellants.

George E. Murphy, Bolling, Walter & Gawthrop, Sacramento, for defendants and respondents.

PUGLIA, Presiding Justice.

This is a wrongful death action stemming from a police shooting during the investigation of a domestic dispute. Plaintiffs appeal from a judgment for defendants following return of the jury's special verdict finding no negligence. On appeal, plaintiffs contend the court erred in restricting discovery of the personnel files of the officer who fired the fatal shot and a former officer retained by defendants as an expert witness. Plaintiffs also contend the evidence establishes negligence as a matter of law. We shall affirm.

I

At approximately 8 p.m. on August 24, 1986, plaintiff Alan Davis, the 21-year-old son of decedent Willie Davis, called a "911" operator and reported his parents had been arguing and decedent had gone to the garage where he kept a handgun. The operator communicated this information to three police units which responded to the scene several minutes later.

The first officer to arrive was Edward Rivera, who was flagged down by a group of people across the street from the decedent's residence. They informed Rivera decedent had been drinking, had chased somebody in the house, and had access to a gun. Rivera observed decedent moving around inside his garage. By this time, Officer Gary Kereazis had arrived on the scene. Rivera and Kereazis approached decedent's garage and Rivera asked him to come out and talk. Decedent responded by slamming down the garage door.

Officer Gary Shelley, one of the defendants herein, and his partner, Sergeant Bob Mitchell, arrived at about the time decedent closed the garage door. They parked their patrol car in front of the house next door. Shelley headed for the front of decedent's residence and Mitchell for the rear. As Shelley reached the corner of the residence, he observed a hand above a side gate holding what appeared to be a handgun. Shelley yelled "Freeze, police officer," but the individual ran toward the back of the residence. Using a police radio, Shelley advised the others what he had observed. During this time, Rivera had resumed his discussion with the individuals across the street. Rivera observed movement inside the residence and again asked decedent to come out and talk. There was no reply. Rivera asked decedent if he had a gun, to which decedent responded, "If you have one, I've got one too."

While Rivera spoke to decedent, Kereazis proceeded to the back of the residence and Shelley moved to a position near the front door where he could observe the inside. From his position near the back, Kereazis saw decedent, who appeared to be armed, standing at a bedroom window looking out. Kereazis broadcast this information on his police radio.

Shortly after Kereazis's observation, Shelley saw decedent, unarmed, standing in another area inside the residence near the front entrance. As decedent began to move toward the front door, Shelley decided to surprise him in order to eliminate any opportunity for decedent to retrieve his weapon. Holding his shotgun at "port arms position," Shelley rushed in and again announced, "Freeze. Police Officer." Decedent turned and lunged at Shelley. Shelley hit decedent with his shotgun and knocked him on his back. The force of the blow also caused Shelley to lose his balance and Shelley found himself on top of decedent with decedent holding the end of his shotgun.

Shelley and decedent wrestled for control of the shotgun. Rivera entered and positioned himself beside them. Rivera held his weapon on decedent and tried to get him to release the shotgun. Decedent, shouting obscenities, refused to let go. Eventually, Shelley told Rivera to get out of the way so he would not get hurt and Rivera retreated to a back bedroom. Fearing for his own life, as the barrel of the shotgun was being forced in his direction, Shelley eventually directed the barrel back toward decedent and again told him to freeze. Decedent said "fuck you" and lunged upward. Shelley fatally shot him.

Plaintiffs, the wife and children of decedent, initiated this action for wrongful death against the City of Sacramento, the Sacramento Police Department, and Officer Shelley. The complaint alleges general negligence and negligent hiring and retention of Shelley. Prior to trial, plaintiffs moved for discovery of police personnel records of both Shelley and Joseph Callanan, a retired lieutenant of the Los Angeles County Sheriff's Department retained by defendants as an expert witness. The court denied the request as to Callanan but ordered an in camera review of Shelley's records. After this review, the court ordered limited disclosure from Shelley's personnel file consisting of only five pages of training records.

Because of the court's ruling on the motion to disclose Shelley's personnel file, the parties agreed the court could strike and the court then struck allegations in the complaint relating to negligent hiring and retention. The issue of general negligence was then tried and the jury returned a special verdict finding defendants were not negligent. Plaintiffs' motion for new trial was denied.

II

Plaintiffs contend the court erred in denying their motion for discovery of the personnel records of defense expert Callanan. They contend such records were necessary to verify the qualifications of the expert and were not protected from discovery as official police documents.

"Peace officer personnel records and records maintained by any state or local agency pursuant to [Penal Code] Section 832.5 [relating to citizen complaints], or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code." (Pen.Code, § 832.7, subd. (a).) Article 9 of chapter 4, division 8 of the Evidence Code (§§ 1040 through 1047) governs discovery of official police information, including peace officer personnel files. These provisions take precedence over the general discovery rules outlined in the Code of Civil Procedure. (County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1611, 269 Cal.Rptr. 187.)

Evidence Code section 1047 prohibits discovery of police department personnel records for officers not involved in the incident giving rise to particular litigation. It provides: "Records of peace officers, including supervisorial peace officers, who either 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, shall not be subject to disclosure."

Plaintiffs contend this section does not apply to personnel records of retired peace officers functioning as expert witnesses. We discern no such limitation in the statutory language. Because personnel records of a particular officer are presumably generated while the officer is employed by the police department, they are "[r]ecords of peace officers." They do not cease being such after the officer's retirement. If the Legislature had intended anything different, it could easily have so provided.

Plaintiffs also contend Evidence Code section 1047 does not apply where, as here, there was no arrest. They argue the language of the provision and its legislative history suggest it was intended to apply only in a criminal prosecution, i.e., where there has been an arrest. We disagree.

Section 1047 was added to the Evidence Code in 1985 as part of an act which also amended Penal Code section 832.7. (Stats.1985, ch. 539, § 3, p. 1917.) As previously noted, the latter provision protects peace officer personnel records from disclosure "in any criminal or civil proceeding." It is obvious the Legislature had more in mind in enacting this legislation than criminal proceedings. Although the language of Evidence Code section 1047, in particular the reference to "arrest" and "booking," tends to support plaintiffs' argument the interpretation of that provision for which plaintiffs contend would lead to absurd results. Plaintiffs cannot reasonably argue decedent would not have been arrested on one or more charges had his resistance been overcome before he was shot, or if shot, had the wound not been fatal. Application of Evidence Code section 1047 does not turn on whether a suspect survives a confrontation with police long enough to be arrested.

Plaintiffs contend Callanan waived his privacy rights by agreeing to serve as an expert witness and submitting his resume for scrutiny. They argue Callanan cannot rely on his employment background to qualify him as an expert and then hide behind the statute to preclude verification of his qualifications.

Plaintiffs overlook the fact that the privilege against disclosure of official police records is held both by the individual officer involved and by the police department. (San Francisco Police Officers' Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 189, 248 Cal.Rptr. 297.) ¹ The record indicates the Los Angeles County Sheriff's Department, where Callanan had been employed before retirement, objected to disclosure on the basis of Evidence Code section 1047. There was obviously no waiver of the Department's privilege.

At any rate, plaintiffs were never conclusively denied access to Callanan's personnel files. In denying plaintiffs' request, the trial court suggested plaintiffs had not yet exhausted means of verifying the accuracy of Callanan's resume less intrusive on his privacy. The court directed plaintiffs to seek the desired information through a direct request or through questioning of Callanan and invited plaintiffs to renew their...