Tentative Rulings

Case Number: BC688086    Hearing Date: March 11, 2020    Dept: 37

HEARING DATE: March 11, 2020

CASE NUMBER: BC688086

CASE NAME: Jose Montenegro v. City of LA Department of LA World Airports, et al.

MOVING PARTY: Plaintiff Jose Montenegro

OPPOSING PARTY: Defendant City of LA, Department of LA World Airport

TRIAL DATE: July 14, 2020

PROOF OF SERVICE: OK

PROCEEDING: Plaintiff’s Renewed Motion for Discovery

OPPOSITION: February 27, 2020

REPLY: March 4, 2020

TENTATIVE: Plaintiff’s “Renewed Motion for Discovery” is denied, with the exception of a discussion to be held with the court as to Plaintiff’s request for LAWA officer depositions. Plaintiff is to provide notice.

Background

This action arises out of Plaintiff, Jose Montenegro’s (“Plaintiff’”) prior employment as a police officer with City of Los Angeles, Department of LA World Airports (“LAWA.”) Plaintiff alleges that he had been employed with LAWA until his termination on or about March 4, 2017, and that during that time he was subject to disability discrimination on account of his cumulative traumatic back injury. Specifically, Plaintiff alleges that LAWA failed to provide him reasonable accommodation for his back injury by placing him on light duty assignments which were temporary, but arbitrarily so. Plaintiff contends that other LAWA officers who were disabled were able to obtain permanent light duty assignments, contrary to LAWA’s representations to him that it was LAWA’s policy to only utilize temporary light duty assignments. Plaintiff alleges that, accordingly, the time limitations placed on these light duty assignments were pretextual. Plaintiff further alleges that his attempts to be assigned a permanent administrative light duty assignment were repeatedly denied, leading to his loss of wages and other damages.

Plaintiff’s operative Complaint, filed, December 22, 2017, alleges four causes of action for: (1) disability discrimination in violation of the Fair Housing Employment Act (“FEHA”), (2) failure to engage in the interactive process in violation of the FEHA, (3) failure to provide reasonable accommodation for known physical disability in violation of the FEHA, and (4) retaliation for requesting reasonable accommodation for disability.

On September 30, 2019 Plaintiff’s Pitchess motion for officer records was denied for failure to satisfy the statutory requirements. On November 12, 2019, Plaintiff noticed the depositions of thirteen different LAWA employees. The depositions were set to take place on December 2, 3 and 10, but did not take place.

On December 23, 2019 the court issued a ruling on Plaintiff’s ex parte application for various relief. With respect to discovery, the minute order stated “The discovery deadline is continued to the date of the new trial hearing, only as to the discovery requested in the Ex Parte. All other remaining discovery deadlines remain with the previous March trial date.

Plaintiff now files numerous discovery related motions. Defendant opposes.

Evidentiary Objections

LAWA’s Objections to Plaintiff’s Declaration

Overruled:

Sustained: 1-25 .

Discussion

A motion to discover a law enforcement officer’s personnel file or other police agency record that contains relevant information is called a Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-540.) The Pitchess motion has been partly codified in Evidence Code, section 1043, which makes law enforcement personnel records privileged and subject to disclosure only by noticed motion. (Evid. Code, § 1043; Pen. Code, § 832.7(a).) The statutory scheme governing Pitchess motions is set forth in Evidence Code sections 1043-1047 and Penal Code sections 832.5, 832.7, 832.8. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) These statutes provide the exclusive means of discovery of such records in both criminal and civil proceedings. (County of Los Angeles v. Sup. Ct. (1990) 219 Cal.App.3d 1605, 1609-1610.)

“Under the statutory scheme, a party seeking discovery of a peace officer’s personnel records must follow a two-step process. First, the party must file a written motion describing the type of records sought, supported by affidavits showing good cause for the discovery…, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. This initial burden is a ‘relatively relaxed standard.’ Information is material if it will facilitate the ascertainment of the facts and a fair trial. A declaration by counsel on information and belief is sufficient to state facts to satisfy the ‘materiality’ component of that section.” (Haggerty v. Sup. Ct. (2004) 117 Cal.App.4th 1079, 1085-1086 (Haggerty), internal citations and quotations omitted.) The motion must provide a “specific factual scenario” that establishes the materiality of the discovery sought. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86 (Santa Cruz).) The documents must be requested “with adequate specificity” to preclude the possibility that the moving party is engaged in a “fishing expedition.” (People v. Memro (1985) 38 Cal.3d 658, 678 (Memro), overruled on unrelated grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, n. 2.) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery is sought must be excluded from disclosure. (Evid. Code, § 1045, subd. (b).)

“Second, if the trial court concludes [a party] has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the [requesting party’s] motion…. The trial court ‘shall examine the information in chambers, out of the presence and hearing of all persons except the person authorized to possess the records and such other persons the custodian of records is willing to have present…. Subject to statutory exceptions and limitations ... the trial court should then disclose to the defendant such information that is relevant to the subject matter involved in the pending litigation.” (Haggerty, supra, 117 Cal.App.4th at p. 1086, internal quotation marks and citations omitted).

As a general matter, it is unclear what Plaintiff seeks in the instant motion, as it appears that Plaintiff is seeking multiple types of relief, many of which are barred by the December 23, 2019 ruling regarding the discovery cut-off date. Specifically, it appears that Plaintiff is seeking all of the following: (1) discovery of LAWA officers’ personnel files, (2) further responses to Special Interrogatories seeking information regarding LAWA officers, (3) sanctions in connection with purported motion to compel further responses to special interrogatories, (4) an order denying LAWA’s motion for summary judgment pursuant to Code of Civil Procedure, § 437c(i), (5) depositions of LAWA’s officers, as previously requested in Plaintiff’s December 2019 Ex Parte or, in the alternative, contact information for each LAWA officer.

The court notes that Plaintiff appears to title his motion a Pitchess motion. However, the court previously denied Plaintiff’s Pitchess motion on September 30, 2019. As such, Plaintiff’s renewed request for the personnel files of defendant LAWA’s officers is effectively an untimely motion for reconsideration. Therefore, it is denied.

On December 23, 2019, the court granted Plaintiff’s Ex Parte Application to Continue Motion for Summary Judgment, Trial, and Related Matters (“Ex Parte”). Specifically, the court ruled on December 23, 2019 that the trial was continued to July 14, 2020 and further ruled that the discovery cut-off with regard to the discovery requested in the Ex Parte was continued to the new trial date. The court also ruled that the discovery cut-off remained in line with the March 3, 2020 trial date as to discovery not requested in the Ex Parte.

The renewed Pitchess motion was not requested in the Ex Parte, so untimeliness is another reason for it to be denied.

The court also denies Plaintiff’s request to deny LAWA’s motion for summary judgment pursuant to Code of Civil Procedure section 437c(i). Code of Civil Procedure section 437c(i) grants the court discretion to deny a motion for summary judgment if, after granting a continuance on the hearing on motion for summary judgment, the court determines that “the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted.” However, the court finds that Plaintiff has not made a sufficient factual showing that LAWA has not unreasonably failed to allow discovery to go forward with regard to its motion for summary judgment. On the contrary, it is clear from Plaintiff’s moving papers that the parties have engaged in extensive met and confer regarding Plaintiff’s request for information pertaining to LAWA’s officers.

The court also denies Plaintiff’s purported motion to compel further responses to Special Interrogatories. While a motion to compel with respect to the Special Interrogatories was a matter that was raised in the Ex Parte, there was no finding on the timeliness of any such motion. The court takes judicial notice on its own motion of Plaintiff’s Ex Parte, which admits that the Special Interrogatories at issue were served on LAWA on May 31, 2019. (see Ex Parte at p. 4.) Further, Plaintiff’s Ex Parte indicates that LAWA served its responses on July 3, 2019. (Id. at p. 5.) Plaintiff’s counsel attested to sending and email requesting an extension on a motion to compel until 15 days following an IDC. (Id. at p. 5.) However, there is no statement that Defendant agreed to that request, and he later states that Defendant informed him it would not participate in an IDC on November 6, 2019. (Id. at p. 8.) Fifteen days after that date was well before the Ex Parte. To the extent Plaintiff’s instant motion seeks an order compelling further responses to these Special Interrogatories the motion is untimely and is hereby denied.

Finally, as to Plaintiff’s request for depositions of LAWA’s officers, the court was previously told the parties would work to schedule these depositions and that, therefore, LASA’s request for a protective order was taken off calendar except for its request for sanctions. The instant motion was filed too soon to determine whether those depositions have been scheduled and taken. The parties should be prepared to discuss the scheduling of these depositons.

Conclusion

Plaintiff’s “Renewed Motion for Discovery” is denied, with the exception of a discussion to be held with the court as to Plaintiff’s request for LAWA officer depositions. Plaintiff is to provide notice.