This case was last updated from Los Angeles County Superior Courts on 09/26/2021 at 05:39:30 (UTC).

KIM ELIZABETH PAVEK VS COUNTY OF LOS ANGELES

Case Summary

On 03/02/2018 KIM ELIZABETH PAVEK filed a Labor - Other Labor lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are TERESA A. BEAUDET, JAMES R. DUNN and DALILA CORRAL LYONS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6218

  • Filing Date:

    03/02/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

TERESA A. BEAUDET

JAMES R. DUNN

DALILA CORRAL LYONS

 

Party Details

Petitioner and Plaintiff

PAVEK KIM ELIZABETH

Respondents and Defendants

LOS ANGELES COUNTY OF

DOES 1 TO 100

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

SMITH GREGORY W. ESQ.

Respondent and Defendant Attorneys

KESSEL & ASSOCIATES

KESSEL ELIZABETH M.

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/20/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

9/17/2021: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT (FOR RESETTING ONLY); ...)

9/20/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT (FOR RESETTING ONLY); ...)

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

9/20/2021: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Reply - REPLY PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PITCHESS MOTION FOR DISCOVERY OF RECORDS AND INFORMATION RELATING TO LT. BRIAN KIM AND FORMER LT. RYAN HAYS

9/21/2021: Reply - REPLY PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PITCHESS MOTION FOR DISCOVERY OF RECORDS AND INFORMATION RELATING TO LT. BRIAN KIM AND FORMER LT. RYAN HAYS

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

9/17/2021: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Informal Discovery Conference

9/16/2021: Informal Discovery Conference

Informal Discovery Conference

9/13/2021: Informal Discovery Conference

Objection - OBJECTION PLAINTIFF KIM PAVEKS AMENDED OBJECTIONS TO DEFENDANTS EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

9/13/2021: Objection - OBJECTION PLAINTIFF KIM PAVEKS AMENDED OBJECTIONS TO DEFENDANTS EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Objection - OBJECTION FURTHER AMENDED OBJECTIONS TO PLAINTIFF'S EVIDENCE

9/13/2021: Objection - OBJECTION FURTHER AMENDED OBJECTIONS TO PLAINTIFF'S EVIDENCE

Reply - REPLY TO OPPOSITION TO MOTION FOR PROTECTIVE ORDER

9/13/2021: Reply - REPLY TO OPPOSITION TO MOTION FOR PROTECTIVE ORDER

Response - RESPONSE PLAINTIFF'S RESPONSE TO DEFENDANT'S IDC STATEMENT

9/14/2021: Response - RESPONSE PLAINTIFF'S RESPONSE TO DEFENDANT'S IDC STATEMENT

Informal Discovery Conference

9/7/2021: Informal Discovery Conference

Order - ORDER CONTINUING HEARING ON PLAINTIFF'S PITCHESS MOTION

9/9/2021: Order - ORDER CONTINUING HEARING ON PLAINTIFF'S PITCHESS MOTION

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO CONTINUE THE HEARING DATE ON PLAINTIFF'S PITCHESS MOTION

9/8/2021: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO CONTINUE THE HEARING DATE ON PLAINTIFF'S PITCHESS MOTION

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE PLAINTIFF'S PITCH...)

9/9/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE PLAINTIFF'S PITCH...)

Notice - NOTICE OF DEFENDANTS FAILURE TO SERVE AN OPPOSITION TO PLAINTIFFS PITCHESS MOTION FOR DISCOVERY OF RECORDS AND INFORMATION RELATING TO LT. BRIAN KIM AND FORMER LT. RYAN HAYS

9/2/2021: Notice - NOTICE OF DEFENDANTS FAILURE TO SERVE AN OPPOSITION TO PLAINTIFFS PITCHESS MOTION FOR DISCOVERY OF RECORDS AND INFORMATION RELATING TO LT. BRIAN KIM AND FORMER LT. RYAN HAYS

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER; DECLARATION OF DIANA WANG WELLS

9/7/2021: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER; DECLARATION OF DIANA WANG WELLS

149 More Documents Available

 

Docket Entries

  • 04/27/2022
  • Hearing04/27/2022 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/08/2022
  • Hearing04/08/2022 at 10:00 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/01/2022
  • Hearing04/01/2022 at 4:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 10/28/2021
  • Hearing10/28/2021 at 10:00 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Protective Order

    Read MoreRead Less
  • 09/28/2021
  • Hearing09/28/2021 at 2:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 09/28/2021
  • Hearing09/28/2021 at 2:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion)

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  • 09/21/2021
  • DocketReply (Plaintiffs Reply to Defendants Opposition to Pitchess Motion for Discovery of Records and Information Relating to Lt. Brian Kim and Former Lt. Ryan Hays); Filed by Kim Elizabeth Pavek (Plaintiff)

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  • 09/20/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Protective Order - Not Held - Continued - Court's Motion

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  • 09/20/2021
  • Docketat 3:00 PM in Department 50, Teresa A. Beaudet, Presiding; Hearing - Other (Hearing on Objections) - Held

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  • 09/20/2021
  • Docketat 3:00 PM in Department 50, Teresa A. Beaudet, Presiding; Trial Setting Conference - Held

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244 More Docket Entries
  • 05/18/2018
  • DocketCIVIL DEPOSIT

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  • 05/02/2018
  • DocketDeclaration; Filed by Los Angeles, County of (Defendant)

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  • 05/02/2018
  • DocketDECLARATION OF ARMINEH MEGRABYAN FOR AN AUTOMATIC 30- DAY EXTENSION FOR DEFENDANTS TO FILE A RESPONSIVE PLEADING PURSUANT TO C.C.P. 430.41 AND 435.5

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  • 04/11/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Kim Elizabeth Pavek (Plaintiff)

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  • 04/11/2018
  • DocketPROOF OF SERVICE FOR DEFENDANT COUNTY OF LOS ANGELES

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  • 03/08/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/08/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/02/2018
  • DocketComplaint; Filed by Kim Elizabeth Pavek (Plaintiff)

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  • 03/02/2018
  • DocketSUMMONS

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  • 03/02/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. FEHA RETALIATION;ETC

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Tentative Rulings

b'

Case Number: BC696218 Hearing Date: September 28, 2021 Dept: 50

\r\n\r\n

\r\n\r\n

\r\n\r\n

Superior Court of California

\r\n\r\n

County of Los Angeles

\r\n\r\n

Department 50

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\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

kim elizabeth pavek,

\r\n

Plaintiff,

\r\n

vs.

\r\n

county of los angeles, et al.

\r\n

Defendants.

\r\n
\r\n

Case No.:

\r\n
\r\n

BC 696218

\r\n
\r\n

Hearing Date:

\r\n
\r\n

September 28, 2021

\r\n
\r\n

Hearing Time:

\r\n
\r\n

2:00 p.m.

\r\n
\r\n

[TENTATIVE]\r\n ORDER RE:

\r\n

\r\n

PLAINTIFFS’ PITCHESS MOTION FOR DISCOVERY OF RECORDS AND\r\n INFORMATION RELATING TO LT. BRIAN KIM AND FORMER LT. RYAN HAYS;

\r\n

\r\n

DEFENDANT COUNTY OF LOS ANGELES’ MOTION FOR SUMMARY JUDGMENT, OR IN THE\r\n ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES

\r\n

\r\n

\r\n\r\n

\r\n\r\n

The motion for summary judgment or, in the alternative, summary\r\nadjudication by Defendant County of Los Angeles will be continued to a date to\r\nbe set by the Court. Both Defendant County of Los Angeles and Plaintiff Kim\r\nElizabeth Pavek filed documents in support of and in opposition to the motion\r\nthat purport to be under seal. Neither Defendant nor Plaintiff have been\r\ngranted leave to file any documents under seal, and neither Defendant nor\r\nPlaintiff have sought such leave. Pursuant to California Rules of Court, rule 2.551(a), court approval is required before a record may be filed under seal.\r\nAccordingly, the Court orders the parties to immediately file a motion or\r\napplication to seal pursuant to California Rules of Court, rule 2.550 et seq.

\r\n\r\n

Background

\r\n\r\n

Plaintiff\r\nKim Elizabeth Pavek (“Pavek”) filed this employment action on March 2, 2018\r\nagainst Defendant County of Los Angeles (the “County”). Pavek, who is employed by the County’s Department of the Coroner as\r\na coroner investigator, alleges that she was retaliated against by the County\r\nafter she complained about and filed a lawsuit concerning sexual harassment by\r\na male colleague.

\r\n\r\n

Pavek now moves for an order directing the County\r\nto produce certain documents relating to (1) any investigation or disciplinary\r\naction of an incident wherein then-Coroner Investigator Brian Kim drew a\r\nfirearm on Forensic Attendant Lucy Montoya, (2) any investigation or\r\ndisciplinary action of Mr. Kim drawing his firearm anywhere at Coroner\r\nDepartment headquarters, (3) former Lieutenant Ryan Hays being placed on\r\nadministrative leave following Pavek’s reporting to the Department of her\r\nsexual harassment allegations against him, (4) Mr. Hays being asked to submit\r\nto a psychological fitness for duty examination following Pavek’s reporting to\r\nthe Department of her sexual harassment allegations against him, and (5) Mr.\r\nHays attending training on Department time while on administrative leave. The County\r\nopposes.

\r\n\r\n

Discussion

\r\n\r\n

There is a special two-step procedure for\r\nsecuring disclosure of peace officer personnel records. ((Warrick v. Superior Court (2005) 35\r\nCal.4th 1011, 1019.) First, the party seeking disclosure must file a motion\r\nthat identifies the peace officer, the agency in possession of the records, a\r\ndescription of the records, who is seeking the records, as well as the time and\r\nplace of the hearing. ((Evid. Code, § 1043, subd. (b)(1).)\r\nThe motion must be accompanied by a declaration showing “good cause” for\r\ndisclosure of the records: setting forth the materiality of the records, and\r\nstating upon reasonable belief that the governmental agency has the requested\r\ndocuments. ((Id.,\r\n§ 1043, subd. (b)(3).) This is a so-called “Pitchess” motion, derived from Pitchess v. Superior\r\nCourt (1974) 11 Cal.3d 531.

\r\n\r\n

The Evidence Code\r\nsection 1043(b) “good cause” declaration must be sufficiently specific “to\r\npreclude the possibility of [the movant] simply casting about for any helpful\r\ninformation.” ((People\r\nv. Mooc (2001) 26 Cal.4th 1216, 1226.) However, a declaration based\r\nupon information and belief and containing hearsay may be used to evidence good\r\ncause in support of a Pitchess motion. ((Haggerty v. Superior Court (2004) 117\r\nCal.App.4th 1079, 1086.) The moving party need show only a “plausible\r\nfactual foundation” for discovery—i.e.,\r\na scenario of officer misconduct that might occur or could have occurred. (Warrick, supra,\r\n35 Cal.4th at p. 1025.) All that is required is the presentation of a\r\nscenario that might have or could have occurred; i.e., a “relatively low threshold.” ((Uybungco v. Superior Court (2008) 163\r\nCal.App.4th 1043, 1048); see also Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245,\r\n1248 (the good cause requirement of section 1043(b) “embodies\r\na ‘relatively low threshold\' for discovery\' [citation], under which a defendant\r\nneed demonstrate only ‘a logical link between the defense proposed and the\r\npending charge’ and describe with some specificity ‘how the discovery being\r\nsought would support such a defense….’”); Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413 (“A\r\nshowing of good cause is measured by ‘relatively relaxed standards’ that serve\r\nto ‘insure the production’ for trial court review of ‘all potentially relevant\r\ndocuments.’”).)

\r\n\r\n

Second, if the court finds good cause then an\r\nin camera hearing must be held. ((Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) After\r\npersonally examining the records in camera, the trial court shall order\r\ndisclosure of peace officer personnel records that are “relevant to the subject\r\nmatter involved in the pending litigation” ((Evid.\r\nCode, § 1045, subd. (a)); Mooc, supra, 26 Cal.4th at p. 1226.) The court must exclude\r\nfrom disclosure “[i]nformation\r\nconsisting of complaints concerning conduct occurring more than five years\r\nbefore the event or transaction that is the subject of the litigation in aid of\r\nwhich discovery or disclosure is sought," and facts "that are so\r\nremote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b)(1) and (3).) If disclosure is ordered, the court must also\r\norder that the disclosed information may not be used “for any purpose other\r\nthan a court proceeding pursuant to applicable law.” (Evid.\r\nCode, § 1045, subd. (e).)

\r\n\r\n

In terms of procedure, notice of the motion\r\nmust be served in compliance with Code of Civil\r\nProcedure section 1005, subdivision (b) on the parties and on the\r\ngovernmental agency having the records. (Evid. Code, §\r\n1043, subd. (a).) The agency is required to notify the individual officer\r\nwhose records are sought. (Evid. Code, § 1043, subd. (a);\r\nsee also\r\nEvid. Code, § 1043, subd. (c) [“No hearing upon a motion for discovery or\r\ndisclosure shall be held without full compliance with the notice provisions of\r\nthis section except upon a showing by the moving party of good cause for\r\nnoncompliance, or upon a waiver of the hearing by the governmental agency\r\nidentified as having the records.”].)

\r\n\r\n

The Court finds that Pavek has complied with\r\nall of the procedural requirements for the instant motion. The motion was\r\nserved on the parties and on the governmental agency having the records at\r\nissue.

\r\n\r\n

The County contends that the motion is\r\nuntimely because the discovery cut-off date is August 30, 2021 based on a trial\r\ndate of September 29, 2021. But as the County acknowledges, Pavek’s motion was\r\nfiled on August 10, 2021. Code of Civil Procedure\r\nsection 2024.020, subdivision (a) provides that “any party shall be\r\nentitled as a matter of right to . . . have motions concerning discovery heard\r\non or before the 15th day, before the date initially set for the trial of the\r\naction.” The instant motion is one “concerning discovery.” It was originally\r\nnoticed for hearing on September 10, 2021, which was within the discovery\r\nmotion cut-off. However, the motion was not heard on that day because the\r\nCounty applied ex parte to continue the hearing based on the County’s\r\ninadvertent failure to file a timely opposition. Thus, the Court is not\r\ninclined to deny this motion as untimely based on these circumstances.

\r\n\r\n

Pavek seeks documents and/or information\r\nrelating to a firearm incident involving Brian Kim, which Pavek asserts is\r\nrelevant to the Department’s contention that it takes violations of its Weapons\r\nPolicy “seriously”. Pavek also seeks documents and information about how the\r\nDepartment treated Ryan Hays after Pavek reported being assaulted and harassed\r\nby him. Pavek contends that while she was sent home on administrative leave and\r\nordered to a mental fitness for duty exam, Mr. Hays was not placed on\r\nadministrative leave for six months after Pavek reported the harassment, was\r\nnot asked to take a psychological fitness for duty exam, and was allowed to\r\nattend work-related training while on administrative leave.

\r\n\r\n

The Court finds that Pavek has established\r\nthat a plausible factual foundation exists for how the records sought are\r\nmaterial to her case. Pavek asserts that she reported and complained about\r\nsexual harassment, which is a protected activity under FEHA and Labor Code section 1102.5. (Wells Decl., ¶¶ 12-15.)\r\nAfter these complaints, Pavek was subjected to an adverse employment action:\r\nbeing placed on administrative leave for over one year, during which time she\r\ncould not work overtime or apply for coveted and/or promotional positions in\r\nthe Department, and was denied permission to attend trainings necessary to\r\nmaintain her certifications. (Wells Decl., ¶¶ 22-25.) The Department’s stated\r\nreason for placing Pavek on administrative leave was that Pavek had her firearm\r\nwith her at work on February 1, 2017. (Wells Decl., ¶ 23.) As a result of this\r\nincident, the County hired an independent psychologist to perform a mental\r\nfitness for duty examination. (Wells Decl., ¶ 26.) Pavek seeks the records\r\nconcerning Brian Kim and Ryan Hays to establish that she was treated\r\ndifferently from each of them, which would support her retaliation claims. ((See Iwekaogwu v. City of L.A. (1999) 75 Cal.App.4th 803, 817 [“evidence\r\nthat [the plaintiff] was treated differently from others who were similarly\r\nsituated” can demonstrate pretext for purposes of proving retaliation]); see\r\nalso Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624,\r\n640 [where Pitchess records being sought were “limited to\r\nincidents involving conduct similar to [plaintiff’s],” the limitation “balances\r\nprivacy interests while permitting focused discovery”].)

\r\n\r\n

The County argues that Pavek improperly seeks\r\ninformation and documents that were previously requested in a prior Pitchess\r\nmotion, but the Court notes that the County offers no authority for this\r\ncontention.

\r\n\r\n

The County also argues that the information as\r\nto Ryan Hays is irrelevant because how the County handles sexual harassment\r\ncomplaints as opposed to complaints leading to mental fitness for duty\r\nevaluations are different. Even so, the Court finds that this issue is more\r\nappropriate for determination by a fact-finder. For purposes of the instant\r\nmotion, the Court finds that Pavek has established the requisite logical link\r\nto support the request—whether and how the County’s treatment of Ryan Hays and\r\nPavek differed though they both are alleged to have engaged in behavior that\r\nsuggests lack of judgment and questionable mental states. The County next\r\nargues that the requests concerning Ryan Hays’s records are overbroad, but the\r\nCourt finds that the requests are sufficiently specific.

\r\n\r\n

Lastly, the County contends that the requests\r\nviolate the privacy rights of Ryan Hays. But as noted by Pavek, the Pitchess\r\nprocedure already takes into account those privacy rights, and to the\r\nextent that his privacy interests are implicated, the County has not\r\ndemonstrated that Ryan Hays’s privacy rights outweigh the countervailing\r\ninterests of Pavek in prosecuting her retaliation claim.

\r\n\r\n

Based on the foregoing, the Court finds that\r\nPavek has shown good cause for the documents and information requested.

\r\n\r\n

Conclusion

\r\n\r\n

Based on the foregoing, the hearing on this\r\nmatter will be continued to ____________, 2021, at ________ in Dept. 50 to allow\r\nfor an in camera inspection.

\r\n\r\n

At the continued hearing, the custodian of\r\nrecords for the Los Angeles County Department of the Coroner shall bring the\r\nfollowing records:

\r\n\r\n

  1. Documents and/or information relating to whether Brian Kim was ever\r\ninvestigated for drawing his firearm on Forensic Attendant Lucy Montoya or\r\nanywhere at Coroner Department headquarters;

  2. Documents and/or information relating to whether Brian Kim was ever\r\ndisciplined for drawing his firearm on Forensic Attendant Lucy Montoya or\r\nanywhere at Coroner Department headquarters;

  3. If Brian Kim was neither investigated or disciplined for drawing his\r\nfirearm on Forensic Attendant Lucy Montoya or anywhere at Coroner Department\r\nheadquarters, documents and/or information relating to why not;

  4. Documents relating to Ryan Hays being placed on administrative leave\r\nfollowing Pavek’s reporting to the Department of her sexual harassment\r\nallegations against him;

  5. Documents and/or information relating to whether the Department ever\r\nasked Ryan Hays to submit to a psychological fitness for duty examination\r\nfollowing Pavek’s reporting to the Department of her sexual harassment\r\nallegations against him;

  6. Documents and/or information relating to whether Ryan Hays attended\r\ntraining on Department time while on administrative leave; and

  7. If Ryan Hays was not asked to undergo a psychological fitness for duty\r\nexam or did not attend training on Department time during administrative leave,\r\ndocuments relating to why not.

\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n

Pavek is ordered to provide notice of this\r\nruling.

\r\n\r\n

\r\n\r\n

DATED: September 28, 2021 ________________________________

\r\n\r\n

Hon.\r\nTeresa A. Beaudet

\r\n\r\n

Judge,\r\nLos Angeles Superior Court

\r\n\r\n

'b'

Case Number: BC696218 Hearing Date: August 17, 2021 Dept: 50

\r\n\r\n

\r\n\r\n

\r\n\r\n

Superior Court of California

\r\n\r\n

County of Los Angeles

\r\n\r\n

Department\r\n50

\r\n\r\n

\r\n\r\n

\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

kim elizabeth pavek,

\r\n

Plaintiffs,

\r\n

vs.

\r\n

county of los angeles, et al.

\r\n

Defendants.

\r\n
\r\n

Case No.:

\r\n
\r\n

BC 696218

\r\n
\r\n

Hearing Date:

\r\n
\r\n

August 17, 2021

\r\n
\r\n

Hearing Time:

\r\n
\r\n

2:00 p.m.

\r\n
\r\n

ORDER RE:

\r\n

\r\n

DEFENDANT COUNTY OF LOS ANGELES’ MOTION FOR SUMMARY JUDGMENT, OR IN THE\r\n ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES

\r\n

\r\n\r\n

\r\n\r\n

The motion for summary judgment/summary\r\nadjudication by Defendant County of Los Angeles is continued as set forth below.

\r\n\r\n

The parties have interposed more than 100\r\nevidentiary objections. Due to the voluminous number of objections, the hearing on the\r\nmotion for summary judgment will be continued to a date that will be set at the\r\nHearing on Objections discussed below.

\r\n\r\n

The Court orders the parties to meet and\r\nconfer by telephone or in person in a serious and good faith effort to resolve and\r\neliminate the objections. The only objections that should remain are those that\r\npertain to material evidence\r\nregarding material issues.\r\nKeeping the rules of evidence in mind, the parties should be able to reduce the\r\nobjections to just a few. If any material\r\nobjections remain unresolved, the parties are to set them forth in a joint\r\nstatement with the text, the objection, and the argument of each side in favor\r\nof their respective positions regarding the remaining material objections.

\r\n\r\n

The joint statement must be filed and a\r\nseparate ruling sheet must be lodged directly\r\nin Department 50 by noon on _______________. The Court will review any\r\nremaining objections with the parties at a hearing on _______________ at 2:00 p.m. (the “Hearing on Objections”). The\r\nCourt continues the hearing on the motion for summary judgment to\r\n________________, 2:00 p.m., in Dept. 50.

\r\n\r\n

If necessary, based upon the resolutions\r\nreached during the meet and confer process and/or at the Hearing on Objections,\r\nthe parties may respectively file and serve revised briefing and evidence. The\r\nrevised evidence may eliminate objectionable material; however, no new evidence or new argument is to be\r\nsubmitted unless it is as a result of compromises reached during the meet and\r\nconfer process. In the event that revised briefing and evidence is\r\nnecessary, the Court will discuss with the parties a briefing schedule for the\r\nrevised briefing at the Hearing on Objections. \r\n

\r\n\r\n

Defendant is ordered to give notice of this Order.

\r\n\r\n

\r\n\r\n

DATED: August 17, 2021

\r\n\r\n

________________________________

\r\n\r\n

Hon.\r\nTeresa A. Beaudet

\r\n\r\n

Judge,\r\nLos Angeles Superior Court

\r\n\r\n

'

Case Number: BC696218    Hearing Date: March 17, 2021    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

kim elizabeth pavek,

Plaintiff,

vs.

county of los angeles, et al.

Defendants.

Case No.:

BC 696218

Hearing Date:

March 17, 2021

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’ PITCHESS MOTION FOR DISCOVERY OF PERSONNEL AND OTHER RECORDS OF SUPERVISING CORONER INVESTIGATOR BRIAN KIM

Background

Plaintiff Kim Elizabeth Pavek (“Pavek”) filed this employment action on March 2, 2018 against Defendant County of Los Angeles (the “County”). Pavek, who is employed by the County’s Department of the Coroner as a coroner investigator, alleges that she was retaliated against by the County after she complained about and filed a lawsuit concerning sexual harassment by a male colleague.

Pavek now moves for an order directing the County to produce certain documents relating to any disciplinary action, warning, or reprimand of Supervising Coroner Investigator Brian Kim concerning an incident in 2016 where Mr. Kim drew a firearm on an individual in a County parking lot. The County opposes.

Discussion

There is a special two-step procedure for securing disclosure of peace officer personnel records. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) First, the party seeking disclosure must file a motion that identifies the peace officer, the agency in possession of the records, a description of the records, who is seeking the records, as well as the time and place of the hearing. (Evid. Code, § 1043, subd. (b)(1).) The motion must be accompanied by a declaration showing “good cause” for disclosure of the records: setting forth the materiality of the records, and stating upon reasonable belief that the governmental agency has the requested documents. (Evid. Code, § 1043, subd. (b)(3).) This is a so-called “Pitchess” motion, derived from Pitchess v. Superior Court (1974) 11 Cal.3d 531.

The Evidence Code section 1043(b) “good cause” declaration must be sufficiently specific “to preclude the possibility of [the movant] simply casting about for any helpful information.” (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) However, a declaration based upon information and belief and containing hearsay may be used to evidence good cause in support of a Pitchess motion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) The moving party need show only a “plausible factual foundation” for discovery—i.e., a scenario of officer misconduct that might occur or could have occurred. (Warrick, supra, 35 Cal.4th at p. 1025.) All that is required is the presentation of a scenario that might have or could have occurred; i.e., a “relatively low threshold.” (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048; see also Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245, 1248 (the good cause requirement of section 1043(b) “embodies a ‘relatively low threshold' for discovery' [citation], under which a defendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense’”); Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413 (“A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’”).)

Second, if the court finds good cause then an in camera hearing must be held. (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) After personally examining the records in camera, the trial court shall order disclosure of peace officer personnel records that are “relevant to the subject matter involved in the pending litigation” (Evid. Code, § 1045, subd. (a); Mooc, supra, 26 Cal.4th at p. 1226.) The court must exclude 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 aid of which discovery or disclosure is sought," and facts "that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b)(1) and (3).) If disclosure is ordered, the court must also order that the disclosed information may not be used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code, § 1045, subd. (e).)

In terms of procedure, notice of the motion must be served in compliance with Code of Civil Procedure section 1005, subdivision (b) on the parties and on the governmental agency having the records. (Evid. Code, § 1043, subd. (a).) The agency is required to notify the individual officer whose records are sought. (Evid. Code, § 1043, subd. (a); see also Evid. Code, § 1043, subd. (c) [“No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.”].)

As a threshold matter, the Court finds that Pavek has complied with all of the procedural requirements for the instant motion. The motion was served on the parties and on the governmental agency having the records at issue.

Pavek seeks any and all documents relating to the incident in 2016 where Brian Kim drew a firearm on an individual in the Department parking lot (including but not limited to investigations, witness interviews, and witness statements), and any documents reflecting any Coroner Department action against Brian Kim as a result (including but not limited to any disciplinary action, warning, or reprimand, whether official or unofficial).

Pavek contends that a plausible factual foundation exists for how the records sought are material to her case. Pavek asserts that she reported and complained about sexual harassment, which is a protected activity under FEHA and Labor Code section 1102.5. (Wells Decl., ¶¶ 12-15.) After these complaints, Pavek was subjected to an adverse employment action: being placed on administrative leave for over one year, during which time she could not work overtime or apply for coveted and/or promotional positions in the Department, and was denied permission to attend trainings necessary to maintain her certifications. (Wells Decl., ¶¶ 22-25.) The Department’s stated reason for placing Pavek on administrative leave was that Pavek had her firearm with her at work on February 1, 2017. (Wells Decl., ¶¶ 6-10.) As a result of this incident, the County hired an independent psychologist to perform a mental fitness for duty examination. (Wells Decl., ¶ 26.) Pavek seeks the records concerning Brian Kim’s firearm-related incident to establish that she was treated differently from Brian Kim, which would support her retaliation claims. (See Iwekaogwu v. City of L.A. (1999) 75 Cal.App.4th 803, 817 [“evidence that [the plaintiff] was treated differently from others who were similarly situated” can demonstrate pretext for purposes of proving retaliation]; see also Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 640 [where Pitchess records being sought were “limited to incidents involving conduct similar to [plaintiff’s],” the limitation “balances privacy interests while permitting focused discovery”].)

The County contends that notes from the hiring process, investigations performed into Brian Kim’s alleged actions, and possible deliberations among departmental employees regarding the decisions about Brian Kim’s alleged actions are completely privileged under the deliberative process privilege and not admissible at trial. But as noted by Pavek, the requested evidence need not be admissible at trial to be material for Pitchess purposes. (See Riske v. Superior Court (2016) 6 Cal.App.5th 647, 658 [“The critical limitation for purposes of the initial threshold determination is materiality, which, in this context, means the evidence sought is admissible or may lead to discovery of admissible evidence.”].) Also, the deliberative process privilege is not absolute, and the Court finds that the County has not shown that it applies here. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 307 [“While the policy behind the [deliberative process] privilege makes sense, invoking the policy is not sufficient to explain the public’s specific interest in nondisclosure of the documents in this case. That policy could apply to almost any decisionmaking process.”].) Similarly, the Court does not find that the County has established that the official information privilege, pursuant to Evidence Code section 1040, applies to bar production of the documents sought by Pavek. The County bases this privilege on Brian Kim’s privacy rights, but the Pitchess procedure itself serves to guard Mr. Kim’s privacy rights during the second step of the process.

The County also argues that documents relating to the investigation of Brian Kim’s alleged actions are irrelevant because Pavek was not placed on administrative leave for violating the gun policy. The County contends that instead, Pavek was required to undergo a fitness for duty examination because she was crying and emotional, with a gun on her desk. But the County offers no evidence in support of these contentions. Moreover, the Court notes that the County acknowledges that Pavek’s gun played some role in the decision to place her on administrative leave, and therefore, the Department’s gun policy and how it enforces the gun policy is material to Pavek’s claims of retaliation.

Next, the County argues that the persons who made decisions about the Brian Kim incident were not the same people who made the decision to require Pavek to undergo a fitness for duty examination. But Pavek is not required to know what is in the records that she does not yet have. (See People v. Superior Court (2015) 61 Cal.4th 696, 721 [noting that the party seeking Pitchess documents “need not know what information is located in personnel records before he obtains the discovery”].)

The County also contends that to the extent that good cause exists for production of Pitchess documents, production should exclude witness statements and interviews and the County’s internal investigation reports. The County argues that where the requesting party has failed to show that complainants are unavailable for the requesting party to interview, it is improper to order more than the production of the names and addresses of the complainants. (Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439, 441-442.) Evidence Code section 1045, subdivision (b)(2) also provides that courts shall exclude from disclosure the conclusions of any officer investigating a complaint against a peace officer in a criminal proceeding. (See also Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1089 [holding that “thought processes of, and factual inferences and deductions drawn by, an officer investigating a complaint, concerning such matters as the credibility of witnesses or the significance, strength, or lack of evidence” are not discoverable under Pitchess].) Pavek counters that Carruthers and Haggerty are inapposite because there, the party seeking peace officer personnel information was a criminal defendant whereas here, the moving party is an employee of the defendant and a peace officer herself. Pavek also notes that in Haggerty, the Court of Appeal allowed the production of full witness statements (as opposed to limited witness identification information). “The central rationale underlying the rule limiting discovery to witness identifying information is that the actual documents of third party complaint information often have minimal relevance and constitute a substantial invasion of officer privacy.” (Id. at p. 1090.) In Haggerty, the Court of Appeal found that this reasoning did not apply because the documents sought were “highly probative” and “the investigation at issue concern[ed] the very incident that is the subject of the civil claim.” (Ibid. .) Here, as well, the Court finds that the records sought are highly probative and are appropriately limited to an incident similar to the one at issue in Pavek’s case. This is also not a situation where the reports are third party complaints or derived from third party complaints of officer misconduct. For similar reasons, the limit on investigator conclusions set forth in Haggerty is not applicable here. The analysis and conclusions of the investigatory reports on Brian Kim’s gun-related incident are directly material to Pavek’s claims of retaliation. As explained by Pavek, the conclusions of the supervisors who decided to either discipline or not discipline Mr. Kim are probative of pretext because these decisions can be directly compared to how supervisors treated the decision to place Pavek on administrative leave.

Lastly, the Court finds that Pavek’s request is not overbroad or vague.

Conclusion

Based on the foregoing, the hearing on this matter will be continued to ____________, 2021, at ________ in Dept. 50 to allow for an in camera inspection.

At the continued hearing, the custodian of records for the Los Angeles County Department of the Coroner shall bring the following records: any and all documents relating to the incident in 2016 where Brian Kim drew a firearm on an individual in the Department parking lot (including but not limited to investigations, witness interviews, and witness statements), and any documents reflecting any Coroner Department action against Brian Kim as a result (including but not limited to any disciplinary action, warning, or reprimand, whether official or unofficial).

Pavek is ordered to provide notice of this ruling.

DATED: March 17, 2021 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

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