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

• Citation: 6 Cal.App.5th 647,211 Cal.Rptr.3d 477
• Decision Date: 12 December 2016
• Docket Number: No. B270043,B270043
• Court: California Court of Appeals
• Parties: Robert RISKE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; City of Los Angeles, Real Party in Interest.

6 Cal.App.5th 647

211 Cal.Rptr.3d 477

Robert RISKE, Petitioner,

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

City of Los Angeles, Real Party in Interest.

No. B270043

Court of Appeal, Second District, Division 7, California.

Filed December 12, 2016

Law Offices of Gregory W. Smith, Gregory W. Smith, Diana Wang Wells, Beverly Hills; Benedon & Serlin, Douglas G. Benedon, Woodland HillsGerald 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.

PERLUSS, P.J.

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 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 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 evaluations, known as Standards Based Assessments.² 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 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, 113 Cal.Rptr. 897, 522 P.2d 305 (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 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, 181 Cal.Rptr.3d 1, 339 P.3d 295 (Stiglitz ); City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9, 124 Cal.Rptr.2d 202, 52 P.3d 129.)

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 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, 92 Cal.Rptr.3d 627, 205 P.3d 1074 (Gaines ); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019, 29 Cal.Rptr.3d 2, 112...