Ibarra v. Superior Court of L. A. Cnty.

• Citation: 217 Cal.App.4th 695,158 Cal.Rptr.3d 751
• Decision Date: 27 June 2013
• Docket Number: B244824
• Court: California Court of Appeals Court of Appeals
• Parties: Armanda IBARRA et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; William Tillman, Real Party in Interest.

217 Cal.App.4th 695

158 Cal.Rptr.3d 751

Armanda IBARRA et al., Petitioners,

v.The SUPERIOR COURT of Los Angeles County, Respondent;

William Tillman, Real Party in Interest.

B244824

Court of Appeal,

Second District, Division 3, California.

Filed June 27, 2013

See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 66.

ORIGINAL PROCEEDINGS in mandate. Ramona G. See, Judge. Petition granted. (Los Angeles County Super. Ct. No. BC471749)

Hurrell Cantrall, Los Angeles, Thomas C. Hurrell, Melinda Cantrall and Rittu Kumar for Petitioners.

No appearance for Respondent.

Law Offices of Gary S. Casselman and Gary S. Casselman, Los Angeles, for Real Party in Interest.

CROSKEY, Acting P.J.

William Tillman filed a complaint against several peace officers alleging that guards at the Men's Central Jail in Los Angeles physically mistreated him while he was an inmate there. He sought the production of the guards' official service photographs for use in witness interviews. He filed a motion for disclosure of the photographs as peace officer personnel records. The trial court ordered the photographs to be produced to plaintiff's counsel and imposed conditions on their use.

The officers filed a petition for writ of mandate in this court challenging the order. ¹ We share the officers' concern that the order does not adequately protect them from the dangers inherent in the disclosure of their photographs in these circumstances.

We conclude that a peace officer's official service photograph is not a personnel record under Penal Code section 832.8 and therefore is not subject to the requirements of Penal Code section 832.7 and Evidence Code section 1043 when discovery or disclosure is sought. We also conclude that the photographs are not protected by either the right to privacy under the California Constitution (art. I, § 1) or the official information privilege (Evid. Code, § 1040). We conclude further, however, that the trial court abused its discretion by compelling the disclosure of the photographs in these circumstances without more stringent restrictions on their use. We therefore will grant the petition in order to require measures to ensure that the disclosure does not create a threat to the officers' safety and security.

FACTUAL AND PROCEDURAL BACKGROUND

Tillman filed a complaint against Sheriff Lee Baca and others in December 2011 alleging that employees of the Sheriff's Department at the Men's Central Jail had beaten him severely on March 25, 2011, after accusing him of bad-mouthing them behind their backs. He alleges in his first amended complaint filed in June 2012 that a sheriff's deputy ordered him to face a cement wall and then slammed his face against the wall, rendering him unconscious. He alleges that when he regained consciousness he was handcuffed behind his back and the deputy was mounted on his back holding him down while punching the side of his face and striking the back of Tillman's head with his fist. Tillman alleges that a second deputy kicked him in the ribs and pepper sprayed him in the face while the first deputy held him down. He alleges that a custody assistant then shot him three times in the back with a stun gun.

Tillman alleges that he was hospitalized for two days as a result and suffered a large laceration to his forehead, bruises, sore ribs and continued headaches. He alleges that the two deputy sheriffs and other officers prepared false reports of the incident claiming that he had attacked them. He alleges counts for (1) battery, against four deputy sheriffs and a custody assistant; (2) interference with his enjoyment of civil rights (Civ. Code, § 52.1), against the same defendants; (3) negligence, against the same defendants; and (4) negligence, against Sheriff Baca, Assistant Sheriff Paul Tanaka and Alexander R. Yim as Chief of the Correctional Services Division of the Sheriff's Department.

Tillman filed a Motion for Disclosure of Peace Officer Personnel Records in July 2012 seeking the disclosure of 15 categories of documents relating to the incident and other accusations of misconduct. One of the categories was “An official current service photograph identifying each officer.” He sought the photographs for use in witness interviews and argued that there was good cause for the disclosure as required by Evidence Code section 1043, subdivision (b)(3). Petitioners opposed the motion arguing that the requested documents were peace officer personnel records under Penal Code section 832.8and were protected by their constitutional right to privacy and the official information privilege, and that Tillman had failed to show good cause for the disclosure.

The trial court found that Tillman had established a plausible factual foundation for the alleged officer misconduct and conducted an in camera inspection of documents. On October 24, 2012, the court granted the motion in part and denied it in part, and ordered the sheriff to produce a photograph of each of the officers to plaintiff's counsel within five court days. The court ordered plaintiff's counsel to maintain possession of the photographs and not to provide them to anyone not involved in this litigation.

Petitioners filed a petition for a writ of mandate in this court on October 30, 2012, challenging the order to produce their service photographs to plaintiff's counsel. We issued a temporary stay and an order to show cause.

CONTENTIONS

Petitioners contend (1) the photographs are peace officer personnel records as defined in Penal Code section 832.8, and Tillman failed to show good cause for disclosure as required under Evidence Code section 1043; (2) the photographs are protected by their constitutional right to privacy; and (3) the photographs are protected by the official information privilege.

DISCUSSION

1. Standard of Review

We review an order compelling discovery for abuse of discretion. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 965, 87 Cal.Rptr.3d 400.) Interlocutory review of a discovery order on a petition for writ of mandate is appropriate if the ruling threatens immediate harm for which there is no other adequate remedy, as here. (Doe v. Superior Court (2011) 194 Cal.App.4th 750, 754, 123 Cal.Rptr.3d 557.)

An abuse of discretion is shown if there is no substantial basis for the trial court's ruling or the court applied an incorrect legal standard. (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1071, 19 Cal.Rptr.3d 324.) We review the ruling de novo to the extent that it involves statutory interpretation or any other legal question. (Ibid.)

2. The Service Photographs Are Not Peace Officer Personnel Records

a. Peace Officer Personnel Records Defined

Peace officer personnel records and information obtained from those records are confidential and can be disclosed in a criminal or civil proceeding only under specified discovery procedures. (Pen. Code, § 832.7, subd. (a).) Evidence Code section 1043 requires a noticed motion and a showing of good cause for the disclosure.

Penal Code section 832.8 defines “personnel records” for purposes of section 832.7 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 or 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.”

Penal Code sections 832.7 and 832.8 do not make confidential and protect from disclosure any and all information contained in a file maintained by the employing agency simply because some of the records in that file do relate to one or more of the items specifically identified in section 832.8. Instead, sections 832.7 and 832.8 make confidential and protect from disclosure only the types of information specifically enumerated in section 832.8. (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 293, 64 Cal.Rptr.3d 661, 165 P.3d 462 (POST ).)

POST,supra, 42 Cal.4th 278, involved a judgment by the trial court requiring the Commission on Peace Officer Standards and Training to release to a newspaper reporter certain information in its database on California peace officers. The reporter sought the information in order to investigate the movement of police officers from one department to another, and particularly those hired by one agency after leaving other agencies involuntarily. The court ordered the commission to disclose the name, employing department and employment dates for all individuals who were newly appointed as peace officers from 1991 through 2001. (Id. at pp. 286–287, 64 Cal.Rptr.3d 661, 165 P.3d 462.) The California Supreme Court held that such information was not confidential under Penal Code sections 832.7 and 832.8 simply by virtue of being contained in a file that contains the information specifically identified in section 832.8. (POST, supra, at p. 293, 64 Cal.Rptr.3d 661, 165 P.3d 462.)

POST stated, “We consider it unlikely the Legislature intended to render documents confidential based on their location, rather than their content.... [W]e do not believe that the Legislature intended that a public agency be able to shield information from public disclosure simply by placing it in a file that contains the type of information specified in [Penal Code] section 832.8.” (POST,supra, 42 Cal.4th at p. 291, 64 Cal.Rptr.3d 661, 165 P.3d 462.) POST concluded, “The categories of information listed in section 832.8 certainly are...