Nelson v. The Sup. Ct. of LA County
| Decision Date | 25 May 2001 |
| Docket Number | No. B147607,B147607 |
| Citation | 107 Cal.Rptr.2d 469 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 2 Dist. 2001) LOTTIE NELSON et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; COUNTY OF LOS ANGELES et al., Real Parties in Interest. SECOND APPELLATE DISTRICT DIVISION ONE Filed |
ORIGINAL PROCEEDING, petition for a writ of mandate, David L. Minning, Judge. Petition granted in part and remanded.
Leo James Terrell for Petitioners.
Lloyd W. Pellman, County Counsel, Dennis M. Gonzales, Principal Deputy County Counsel; Greines, Martin, Stein & Richland, Timothy T. Coates and Alan Diamond for Real Parties in Interest.
No appearance for Respondent.
CERTIFIED FOR PUBLICATION
Fowler v. Superior Court (1984) 162 Cal.App.3d 215, a criminal case, holds that a county's obligation to preserve "recordings of telephone and radio communications" for more than 100 days arises only when the county has actual notice that such recordings "are evidence in any claim filed or any pending litigation." (Gov. Code, 26202.6.)1 In this civil case, we hold that a government tort claim filed with the county in conformance with section 911.2 constitutes actual notice to the county that a "claim" is pending within the meaning of section 26202.6.
On September 13, 1998, Dwayne Nelson was arrested by Deputies Steven Trammell and David Porter of the Los Angeles County Sheriff's Department (who were responding to "several 911 calls" about "a man with a gun"). According to the deputies, Mr. Nelson was placed in a patrol car, then "removed" from the vehicle because he was kicking and banging at the doors and windows. To keep Mr. Nelson from injuring himself or a deputy and to prevent damage to the vehicle, the deputies placed Mr. Nelson face-down on the ground and applied a Total Appendage Restraint Procedure (TARP or, as it is sometimes called, a "Ripp Hobble" restraint). Mr. Nelson stopped breathing at the scene, and was transported by ambulance to a hospital, where he was declared dead on arrival. There were numerous radio calls and computer transmissions from the deputies at the scene to and from their supervisors and other deputies, and the entire "TARPing" procedure was videotaped.
On October 7, 1998, Lottie Nelson (Dwayne Nelson's mother) filed a claim for damages with the County of Los Angeles in which she asserted that the County was responsible for her son's death. ( 911.2.) On February 11, 1999, Wallace Nelson (Dwayne Nelson's father) filed a similar claim with the County. On July 19, Lottie Nelson and Wallace Nelson, individually and as the administrators of Dwayne Nelson's estate (but represented by separate counsel), sued the County of Los Angeles and the Los Angeles County Sheriff's Department for wrongful death damages (and by later amendments added several individuals as defendants).
In the fall of 1999, Plaintiffs served on the County a request for the production of documents in which they asked for the "911 calls" to which the deputies responded, all "radio transmissions" from the Sheriff's Department vehicles, all "audio recordings," all "computer terminal transmissions from all Sheriff's Department vehicles," all "mobile display terminal records" from the Sheriff's Department's vehicles, all "mobile digital terminal printouts of all communications," and all "administrative messages and daily work shift messages" from the vehicles. The County produced the daily worksheets and administrative messages, but no mobile digital or "voice communication systems" or "audio communications."
In September 2000, after Plaintiffs learned (at the deposition of the deputy who had videotaped Dwayne Nelson on September 13, 1998) that the County had not produced "certain items which were requested in the first round of discovery," they wrote to the lawyer representing both the County and the Sheriff's Department, demanding the production of transcripts of witness interviews; a copy "of the microcassette made . . . on the night of Dwayne Nelson's death"; all "911 dispatch tapes" for calls made for medical assistance for Dwayne Nelson; certain daily activity logs; and all videotapes describing the Sheriff's Department's policies and practices regarding the use of a Ripp Hobble.2
In late September, defense counsel produced complete copies of all interview tapes and transcripts, the requested microcassette, and the daily worksheets -- but explained, in an accompanying letter, that "the radio transmissions [were] no longer available" but that "the audio portion of the videotape contain[ed] the request for the paramedics and the dispatcher's acknowledgement thereof." The letter was supported by a declaration from a Sheriff's Department Communication Operator explaining that a search had been made for tapes of the radio communications but none had been found -- because section
In January 2001 (about two weeks after the County and the Sheriff's Department filed a motion for summary judgment and about six weeks before trial was set to begin), Plaintiffs moved for sanctions against the County and the Sheriff's Department on the ground that they had in bad faith destroyed the mobile digital and voice recordings made at the time of Dwayne Nelson's arrest and death. Plaintiffs asked the court for orders striking the answer filed by the County and the Sheriff's Department and imposing issue and evidentiary sanctions, for jury instructions to the effect that the recordings had been destroyed notwithstanding a legal requirement to maintain them pending resolution of this litigation, and for monetary sanctions.
The County and the Sheriff's Department opposed the motion on the ground that they were legally entitled to destroy "recordings of telephone and radio communications." Relying on section 26202.6 -- which authorizes the destruction of "recordings of telephone and radio communications" after 100 days unless the recordings and communications "are evidence in any claim filed or any pending litigation" -- as interpreted by Fowler v. Superior Court, supra, 162 Cal.App.3d 215, to mean that a duty to preserve such evidence does not arise absent actual notice of a claim or pending litigation, the trial court denied Plaintiffs' motion for sanctions.
Plaintiffs, in turn, filed a petition for a writ of mandate in which they asked us to find that Lottie Nelson's claim (filed 28 days after Dwayne Nelson's death) was sufficient to constitute a "claim" within the meaning of section 26202.6, and to trigger the County's obligation to preserve the recordings beyond 100 days. We issued an order to show cause and set the matter for hearing.
Plaintiffs contend Lottie Nelson's government tort claim is a "claim" within the meaning of section 26202.6, and that the County and the Sheriff's Department were therefore required by law to preserve the recordings of telephone and radio communications involving the Dwayne Nelson "incident." We agree.
Section 26202.6 provides:
"For purposes of this section, 'recordings of telephone and radio communications' means the routine daily taping and recording of telephone communications to and from a city, county, city and county, or special district department and all radio communications relating to the operations of such departments or special district." (Italics added.)3
In the 20 years since section 26202.6 was enacted (Stats. 1981, ch. 1174, 1, p. 4731), it has been the subject of only one published opinion, the Fourth District's 1984 decision in Fowler v. Superior Court, supra, 162 Cal.App.3d 215, a criminal case. In Fowler, the defendant was arrested (on January 16, 1983) after the police responded to an anonymous report of a burglary. Fowler was released on bail the next day (January 17); after twice returning to court as ordered (on February 17 and March 3), he was told that no criminal complaint had been filed and he was not ordered to return. But the information he was given was wrong -- and a complaint had been "issued" on February 16 (and filed on February 28), in which he was charged with possession of a firearm by an ex-felon and possession of heroin. A notice to appear was returned as undeliverable, and a bench warrant was issued on May 5. He was arrested on May 19. (Id. at p. 217.)
In the trial court, Fowler moved to dismiss on the ground that the police had failed to preserve the tape recording of the dispatcher's conversation with the unknown caller who reported the burglary. In opposition, the prosecutor explained that, as authorized by section 26202.6, the recordings made by the Huntington Beach Police Department had been erased or reused on the 101st day after Fowler's original arrest. The trial court denied Fowler's motion, and (as to this issue) Division Three of the Fourth District thereafter denied his petition for extraordinary relief. (Fowler v. Superior Court, supra, 162 Cal.App.3d at pp. 218, 222.) As relevant, this is Fowler's analysis:
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Nelson v. Superior Court
... 107 Cal.Rptr.2d 469 ... 89 Cal.App.4th 565 ... Lottie NELSON et al., Petitioners, ... The SUPERIOR COURT of Los Angeles County, Respondent; ... County of Los Angeles et al., Real Parties in Interest ... No. B147607 ... Court of Appeal, Second District, Division 1 ... ...