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

• Decision Date: 16 April 2018
• Docket Number: B283035
• Citation: 231 Cal.Rptr.3d 367,22 Cal.App.5th 295
• Parties: Robert RISKE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; City of Los Angeles, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

22 Cal.App.5th 295

231 Cal.Rptr.3d 367

Robert RISKE, Petitioner,

v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;City of Los Angeles, Real Party in Interest.

B283035

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

Filed April 16, 2018

Law Offices of Gregory W. Smith, Gregory W. Smith, Diana Wang Wells, Beverly Hills; Benedon & Serlin, Douglas G. Benedon, Woodland Hills, Gerald M. Serlin and Judith E. Posner, for Petitioner.

No appearance for Respondent.

Michael N. Feuer, City Attorney, Blithe S. Bock, Managing Assistant City Attorney, and Paul L. Winnemore, 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 and selecting instead less qualified candidates. Riske filed a discovery motion pursuant to Evidence Code sections 1043 and 1045¹ to obtain certain summary personnel records relied on by the City in making assignment and promotion decisions. After the superior court erroneously ruled those records were not subject to discovery because the officers selected for the positions Riske sought were innocent third parties who had not witnessed or caused Riske's injury, we issued a writ of mandate directing the superior court to vacate its order denying Riske's discovery motion and to enter a new order directing the City to produce those records for an in camera inspection in accordance with section 1045. (See Riske v. Superior Court (2016) 6 Cal.App.5th 647, 664-665, 211 Cal.Rptr.3d 477 ( Riske I ).)

The superior court conducted the in camera hearing and ordered the requested personnel records to be produced in accordance with the parties' protective order. However, pursuant to section 1045, subdivision (b)(1), which excludes from disclosure "[i]nformation consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation" in which discovery or disclosure is sought, the court ordered redaction of all items in those reports concerning conduct that had occurred more than five years before Riske filed his complaint.

Riske again petitioned this court for a writ of mandate directing the superior court to order the City to produce those records without redaction. In response to our inquiry, both Riske and the City agree that, if section 1045, subdivision (b)'s five-year disclosure bar applies at all, it is measured from the date each officer was promoted instead of Riske—the alleged adverse employment action at issue in the litigation—and not the date Riske filed his complaint, as the superior court ruled. However, Riske also argues more broadly that section 1045, subdivision (b), which prohibits disclosure of stale complaints against police officers, has no application to the personnel reports sought in this case. We agree and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. Riske's Whistleblower Activity

According to the allegations in 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 them 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, even at times ignoring 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 Riske applied for 14 highly desirable detective-I and detective-II positions. Notwithstanding his superior qualifications, his applications were repeatedly denied, each time in favor of less experienced or less qualified persons.

2. Riske's Lawsuit and Discovery Request

On September 12, 2014 Riske sued the Department for unlawful retaliation in violation of Labor Code section 1102.5, alleging the Department's refusal to assign or promote him to more desirable positions was in retaliation for his protected whistleblower activity. The City answered the complaint, denying the allegations, and then moved for summary judgment. The City argued, among other things, it had a legitimate business reason for its promotional/assignment 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 seeking 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.² 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 Motion To Compel Discovery of Peace Officer Personnel Records

Riske moved under sections 1043 and 1045 for production of the selected officers' Training Evaluation and Management System ("TEAMS") reports, which summarized the successful candidates' history of discipline, commendations and other personnel matters throughout the officer's employment.³ To support his request for the TEAMS reports, 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, "TEAMS reports play a crucial role in the [candidate] selection process. Specifically, it is mandatory for supervisors on interview panels to review the TEAMS reports submitted by candidates applying for promotional or coveted positions." "As a supervisor participating in the decision to select an officer for a promotional or coveted position, I would refer to candidates' TEAMS reports to determine, among other things, how many sustained personnel complaints they had; how many citizen commendations they had received; how many other commendations they had received; how many uses of force they had; and whether their work history evidenced that they were hard-working." The TEAMS reports submitted by the candidates contain only sustained complaints; unresolved or unsustained personnel complaints are not included. Captain Justice stated before making a hiring decision he would run "a final selection process TEAMS report," which would reflect any pending personnel complaints that had not been adjudicated. Information obtained from a candidate's TEAMS reports, together with the candidate's two most recent performance evaluations, would then make up the "final rating of 'Outstanding,' 'Excellent,' or 'Satisfactory' the decision makers would assign to that officer for the vacant position."

4. The Court's Denial of Riske's Discovery Motion; Riske's First Writ Petition; Issuance of the Writ Compelling an In Camera Hearing

The superior court denied Riske's discovery motion, ruling the discovery procedures applicable to peace officer personnel records did not apply to records of third party officers who had not committed any misconduct. Riske petitioned this court for a writ of mandate, challenging that ruling. We issued an order to show cause and stayed further proceedings in the superior court.

On December 12, 2016 we granted Riske's petition for writ of mandate. ( Riske I, supra, 6 Cal.App.5th at pp. 664-665, 211 Cal.Rptr.3d 477.) We explained section 1043 requires the party seeking discovery from peace officer personnel records in a criminal or civil case to show good cause for the information by setting forth " 'the materiality thereof to the subject matter involved in the pending litigation. ...' " ( Riske I, at p. 658, 211 Cal.Rptr.3d 477, quoting § 1043.) The critical limitation for purposes of the initial discovery threshold, we emphasized, was not officer misconduct but materiality—that is, whether the evidence sought is admissible or may lead to the discovery of admissible evidence. ( Riske I , at p. 658, 211 Cal.Rptr.3d 477.) Because Riske's lawsuit is premised on the allegation that individuals less qualified than he were promoted instead of him in retaliation for his protected whistleblower activity, and Riske had made a plausible factual showing that the TEAMS reports play a critical role in that decisionmaking process and could very well reveal the City's stated business reason for selecting the candidates over Riske—they were more qualified—was pretext for unlawful retaliation, we found Riske carried his minimal burden to show good cause to obtain an in camera inspection of the personnel records he requested. Accordingly, we directed the superior court to vacate its order denying Riske's motion to discover the TEAMS reports and performance evaluations of the officers identified in his motion and to enter a new order directing the City to produce those reports for an in camera inspection in accordance with section 1045. We left it to the superior court to determine in the first instance whether, and to what extent, the information it inspected at the hearing was discoverable. ( Riske I, at pp. 664-665, 211 Cal.Rptr.3d 477.)

5. The In Camera Hearings

During the April 12, 2017 in camera hearing the City's custodian of records, accompanied by the City's counsel in the instant litigation, produced the TEAMS reports and the two most recent personnel evaluations of 10 of the 14 candidates who were selected or promoted to new positions rather than Riske. The custodian stated documents concerning the other four candidates had not yet been located.

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