STEFANIE ALCOCER VS CITY OF LOS ANGELES

Tentative Rulings

Case Number: ****4793 Hearing Date: July 23, 2021 Dept: 30

Dept. 30

Calendar No.

Date: 07/23/2021

Alcocer vs. City of Los Angeles, et. al., Case No. ****4793

Tentative Ruling re: Plaintiff’s Motion to Compel Discovery

Plaintiff moves for an order compelling the custodian of records for the City of Los Angeles (the City) to produce personnel documents of the Los Angeles Police Department (LAPD) for the Court to review in chambers. The motion is granted.

A party in a civil proceeding may gain access to police officer records and citizen complaint records through the procedures established in Evidence Code sections 1043 and 1045. (See Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085 (Haggerty).)

Evidence Code section 1043 requires a written motion and notice to the governmental agency which has custody of the records sought, and affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation. It further states that no hearing for a discovery motion shall be held without full compliance except upon a showing of good cause for noncompliance or a waiver by the governmental agency with custody of the records. (Evid. Code, ; 1043, subd. (d).) Once good cause is established, Evidence Code section 1045 provides that the court must then examine the information in chambers in conformity with Evidence Code section 915 and shall exclude from disclosure information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation. (Evid. Code, ; 1045.)

The question before the Court is whether Plaintiff has demonstrated good cause and set forth the materiality of the discovery sought. (Evid. Code, ; 1043, subd. (b)(3).) This initial burden is a “relatively relaxed standard.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) Information has been deemed material where it “will facilitate the ascertainment of the facts and a fair trial” and general allegations which establish some cause for discovery are sufficient. (Id. at pp. 84-85 [citations omitted].) Declarations by counsel on information and belief are sufficient to show the materiality of the information sought in personnel files. (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 59; Warrick v. Superior Court (2005) 25 Cal.4th 1011, 1026.)

Here, Plaintiff has identified three categories of documents sought through this motion: (1) The Internal Affairs (IA) Complaint Investigations CF # 16-002968 and CF #17-001287; (2) the letters of transmittal and adjudication as to CF # 16-002968 and CF #17-001287; and (3) the TEAMS Reports for supervisors Capt. Kathryn Meek (Capt. Meek), Lt. Rick Smith (Lt. Smith), Sgt. Mike Salinaz (Sgt. Salinaz), and the TEAM Report for her co-worker and alleged harasser Harry Lathrop (Lathrop).

In addition to the issues framed by the allegations of the complaint, Plaintiff’s counsel submitted a declaration showing good cause for the discovery sought. Plaintiff has shown that the information sought is material. Plaintiff’s theory of liability is that her co-worker, a fellow employee of the City, sexually harassed her to the point of creating a hostile work environment. When she informed her supervisors of the harassment no action was taken to cure the hostile work environment.

Under the FEHA, an employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040-1041.) Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. (Gov. Code, ; 12940, subd. (k).) In addition, “when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation.” (Cal. Code Regs. tit. 2 ; 11023, subd. (b)(7).)

Each of the records sought here relates to the internal investigations done by the City’s employees and Plaintiff’s supervisors, whether the City was diligent in taking appropriate corrective action, and why the City either did or did not appropriately investigate Plaintiff’s claims. (See McNicholas Decl., ¶¶ 28-37.) In Haggerty, supra, the court held that the “relevancy of an investigation of the incident that is the basis for the lawsuit is ‘self-evident.’” (Haggerty, supra, 117 Cal.App.4th at p. 1087 [quoting Robinson v. Superior Court (1978) 76 Cal.App.3d 968, 977].)

Plaintiff has demonstrated a plausible factual scenario showing good cause. Plaintiff alleges that she began complaining that her co-worker, Lathrop, was sexually harassing her in June 2016. (Complaint ¶ 27; McNicholas Decl., ¶ 4.) From June to December 2016, Plaintiff made numerous complaints to multiple supervisors, and yet no real corrective action was taken. (Complaint ¶¶ 27-52; McNicholas Decl., ¶¶ 5-20.) Thus, the records Plaintiff seeks on this motion are directly relevant to whether the City knew of the harassing conduct and whether the City, through its supervisory personnel, took appropriate corrective action.

The evidence may be admissible based on the above and because the City has asserted as affirmative defenses in its answer that it acted appropriately and that it corrected the harassing conduct. (McNicholas Decl., ¶¶ 38-39; see also Answer at p. 3.)

In its late-filed opposition, the City argues, without citing any authority, that the information Plaintiff seeks is not material because the hostile work environment existed before the IA reports and because they contain hearsay. (Opposition at pp. 3-4.) It does not matter if the reports might contain hearsay. The relevant inquiry is whether “the evidence sought is admissible or may lead to discovery of admissible evidence.” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048–1049.) The standards for discovery under Evidence Code section 1043 are “relatively relaxed,” and the statute creates “a relatively low threshold for discovery.” (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655 (Riske).)

The City argues that CF #17-001287 focuses on allegations against unnamed supervisors for discrimination and retaliation, and not sexual harassment. The City cites no evidence and provides no support for this claim.

Further, the City argues that the motion is not tailored sufficiently. However, Plaintiff has limited her request to specific people and the investigation records related only to her complaints against Lathrop.

The City also argues that the TEAM Reports of Meek, Smith, and Salinaz are not relevant to Plaintiff’s sole remaining claim for harassment because they are not defendants and because they are not accused of harassment. The Court of Appeal has expressly rejected this argument. In Riske, supra, the Court of Appeal held that the fact that officers whose records were sought did not participate in or witness the conduct alleged to have caused the officer’s injuries did not preclude discovery of records pursuant to a Pitchess motion. (Id. at pp. 658-659.) The dispositive question was simply whether the records sought were material to the case. (Id. at p. 659.) As stated above, that is a “relatively low threshold for discovery,” which Plaintiff has met. (Id. at p. 655.)

The City is ordered to produce the documents sought by Plaintiff within ten (10) days for review by the Court in chambers. At that review, the Court will determine what information is relevant and what information the City should be required to produce.