KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

Tentative Ruling

NOTICE:

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To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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The Department 53 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Plaintiff Joshua Kuzmicz’s motion for discovery pursuant to Evidence Code section 1043 (Pitchess motion) is granted and denied in parts as follows.

In this retaliation claim, Plaintiff alleges that he was employed by Defendant California Department of Corrections and Rehabilitation (“CDCR” or “Defendant”) as a Correctional Counselor II. (Compl., ¶¶ 2, 13.) Plaintiff alleges that he filed administrative complaints of discrimination and illegal conduct by Associate Warden and EEO Coordinator Chad Parry and that these complaints caused Defendant to retaliate against him based on a false memorandum written by Parry. (Compl., ¶ 13.) Plaintiff seeks damages and injunctive relief for the alleged retaliation.

Plaintiff now makes this Pitchess motion to discover peace officer personnel records in three discovery requests: 1) “All documents referencing any remedial action taken by defendants in response to the findings of the State Personnel Board Administrative Law Judge regarding the hearing involving the plaintiff and defendant that went forward on January 11 and 12, 2024;” 2) “All documents referencing any remedial action taken by defendant in response to any complaints made by plaintiff;” and 3) “All documents referencing any finding of misconduct by Chad Parry.” (Declaration of John W. Dalton in Support of Plaintiff’s Motion [“Dalton Decl.”] at 2:12-5; 3:11-13; 4:8-9.)

Legal Standard

Peace officer personnel records and records maintained by any state or local agency pursuant to Penal Code section 832.5 (i.e., records of public complaints), and information obtained from these records, are confidential and not subject to disclosure in any criminal or civil proceeding except by discovery pursuant to Evidence Code sections 1043 and 1046. (Pen. Code, § 832.7.) A Pitchess motion must identify “the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency that has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard,” as well as “a description of the type

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

of records or information sought.” (Evid. Code, § 1043, subd. (b)(1)–(2).)

The party must also submit affidavits demonstrating “good cause” for the discovery or disclosure sought, setting forth both “the materiality thereof to the subject matter involved in the pending litigation” and “reasonable belief that the governmental agency identified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(3).) The good cause standard is a relatively low threshold. (City of Santa Cruz v. Mun. Ct. (1989) 49 Cal.3d 74, 83.) However, good cause must be based on a discovery request “tailored to the specific officer misconduct that is alleged” because “only documentation of past officer misconduct which is similar to the misconduct alleged is relevant and therefore subject to discovery.” (Cal.

Highway Patrol v. Super. Ct. (2000) 84 Cal.App.4th 1010, 1021.) The specificity requirement prohibits fishing expeditions. (City of Santa Cruz, supra, 49 Cal.3d at p. 85.)

If a party demonstrates procedural compliance and good cause, then records are produced according to protective measures detailed in Evidence Code section 1045, subdivisions (b)–(e). Measures include in camera review by the court for relevance, exclusions from disclosure, and protective orders.

Discussion

Plaintiff’s motion is unopposed. The Court construes Defendant’s lack of opposition as a concession on the merits of any argument. (See D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 728, fn. 4.) Further, when an agency receives notice of a Pitchess motion, the agency must “immediately notify the individual whose records are sought.” (Evid. Code, § 1043, subd. (c).) Although Defendant presumably notified the subject individuals, no individuals whose records are sought have filed any opposition of their own. Still, the disclosure of confidential peace officer personnel records is procedurally and substantively limited by law, and the Court will confirm compliance.

Plaintiff’s Complaint relates to events that occurred at Pelican Bay State Prison (“Pelican Bay”). (Compl., ¶ 13.) Plaintiff seeks records in the possession of Defendant CDCR. (Mot. 1:4–6.) However, Plaintiff at times appears to refer to CDCR and Pelican Bay as if they were separate state agencies. (See, e.g., Mot. 2:13–15 [claiming service on CDCR and Pelican Bay]; Dalton Decl. 2:20–21 [“records are in the possession and control of [CDCR] or [Pelican Bay]”.)

Evidence Code section 1043, requires a party to give “written notice to the governmental agency that has custody and control of the records.” Plaintiff served the Pitchess motion on CDCR’s counsel. Pelican Bay is not separately named as a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

Defendant. While Plaintiff does not specifically state the relationship between CDCR and Pelican Bay, there is no evidence that they are somehow separate governmental agencies. Therefore, this order shall be directed solely as to documents sought from CDCR, which includes those personnel records within its possession, custody or control. To the extent any party might assert that Pelican Bay is not a facility within the control of CDCR, the Court makes no such finding here nor any orders specifically directed to such facility as such orders would be unnecessary.

As to the scope of Plaintiff’s motion and the records requested, the Court notes that Plaintiff states in his notice of motion and motion that he seeks “in camera review of the peace officer personnel records of Associate Warden Chad Parry,” followed by the statement, “[p]lease see Declaration of John W. Dalton, filed herewith.” (Mot. 1:10–11.) Plaintiff’s supporting declaration includes the three records requests quoted above, which seek records of Parry, as well as Pelican Bay Warden Jim Robertson, and unnamed individuals. Each request category is discussed separately herein.

Plaintiff first requests “[a]ll documents referencing any remedial action taken by defendant in response to the findings of the State Personnel Board Administrative Law Judge regarding the hearing involving the plaintiff and defendant that went forward on January 11 and 12, 2024.” (Dalton Decl., ¶ 9.) Plaintiff believes one or both of Chad Parry and Jim Robertson “may have been disciplined for making false claims in order to retaliate against Plaintiff.” (Id., ¶ 9(a).) Plaintiff declares this information is material to the litigation because the discipline “was the result of illegal conduct” against Plaintiff, “which is the subject of the lawsuit.” (Id., ¶ 9(d.)

As a preliminary matter, the Court DENIES IN PART Plaintiff’s motion as to this request to the extent it seeks documents that are not “personnel records” and thus, are not subject to the Pitchess procedure. While Plaintiff’s notice of motion states that Plaintiff seeks production of “peace officer personnel records,” the request itself seeks “all documents” pertaining to the subject matter stated, and thus, on its face, the information and/or documents ostensibly sought extend beyond 'personnel records' within the definition established by Penal Code §832.8. Subdivision (a) of this statute provides that 'personnel records' means any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following:

(1) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (2) Medical history. (3) Election of employee benefits. (4) Employee advancement, appraisal, or discipline.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

(5) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. (6) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

Thus, the definition of 'personnel records' which are subject to the Pitchess procedures discussed in Evidence Code §1043 et seq contains a requirement regarding how the documents/records are maintained and imposes separate substantive requirements. To the extent that CDCR may be in possession, custody or control of documents responsive to Plaintiff’s request category but are not maintained as “personnel records,” the motion is denied. Documents not maintained as “personnel records” may be sought using normal party-discovery methods.

As to documents sought which satisfy the statutory definition of “personnel records,” a Pitchess motion must identify “the peace or custodial officer whose records are sought.” (Evid. Code, § 1043, subd. (b)(1).) Here, Plaintiff’s declaration as incorporated into its notice of motion appears to satisfy this requirement. Moreover, Defendant did not oppose the motion and the point is conceded. The request is focused on relevant records to the extent they are maintained as “personnel records.”

The Court finds that the motion complies with Evidence Code sections 1043(b)(2) and (b)(3), in that it sets forth a description of the type of records sought, the materiality of the records sought to the instant action, and a reasonable belief that the governmental agency has the records. Plaintiff’s motion is GRANTED IN PART as to “personnel records” which reference any remedial action taken by Defendant in response to the findings of the State Personnel Board Administrative Law Judge regarding the hearing involving Plaintiff and Defendant that went forward on January 11 and 12, 2024, against either Associate Warden Chad Parry or Warden Jim Robertson.

As to its second request, Plaintiff seeks “[a]ll documents referencing any remedial action taken by defendant in response to any complaints made by plaintiff.” (Dalton Decl., ¶ 10.) Plaintiff declares that “the records requested will show that some individual may have been disciplined” for retaliation against Plaintiff. (Id., ¶ 10(a) [emphasis added].) On its face, this request does not comply with statute in that it fails to name “any peace or custodial officer whose records are sought.” The request also fails to meet the standard of specificity in good cause. Fishing expeditions are not permitted. (City of Santa Cruz, supra, 49 Cal.3d at p. 85.) Notably, this request also is overbroad insofar as it is phrased as seeking “all documents” including those beyond “personnel records.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

Plaintiff’s motion is DENIED as to “[a]ll documents referencing any remedial action taken by defendant in response to any complaints made by plaintiff.” This ruling is without prejudice to Plaintiff making a more specific and compliant motion and/or seeking records not subject to the Pitchess procedure.

As to its third and final request, Plaintiff seeks “[a]ll documents referencing any finding of misconduct by Chad Parry.” (Dalton Decl., ¶ 11.) As phrased, this request is overbroad on multiple grounds. First, for the same reasons discussed earlier, as it seeks “all documents,” it encompasses documents that are not “personnel records” and thus, may not be sought by this motion. Second, even to the extent it seeks “personnel records,” it seeks records of Parry’s misconduct on any basis. “[O]nly documentation of past officer misconduct which is similar to the misconduct alleged is relevant and therefore subject to discovery.” (Cal.

Highway Patrol v. Super. Ct., supra, 84 Cal.App.4th at p. 1021.) The core of Plaintiff’s case is that Warden Parry made false statements in order to retaliate against Plaintiff. (Dalton Decl., ¶ 4.) Plaintiff declares that the information is material because it contains details of discipline against Parry for misconduct while on duty, and because it shows a pattern and course of conduct on the part of Parry. (Id., ¶ 11(d) & (g).) This is not sufficient to support the substantial breadth of the request and thus, Plaintiff’s motion as to this request is DENIED IN PART.

However, if properly limited to “personnel records” and to findings of similar misconduct, i.e., making false claims or retaliating, the Court finds that the motion as to the third request category complies in such limited part with Evidence Code sections 1043(b)(2) and (b)(3), in that it sets forth a description of the type of records sought, the materiality of the records sought to the instant action, and a reasonable belief that the governmental agency has the records. The Court will GRANT IN PART Plaintiff’s motion as to “personnel records” which reference any finding of misconduct by Chad Parry for making false claims or for retaliation.

Disposition

The Court is required to conduct in camera review before any “personnel records” can be ordered disclosed. The custodian(s) of the personnel records is required to be present and, if desired, may bring independent counsel. People v. Mooc, (2001) 26 Cal.4th 1216, remains the best description of how a Pitchess review should be conducted. Mooc states that “both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the [moving party] only those records that are found both relevant and otherwise in compliance with statutory limitations.” (Id. at p. 1227.) As the Court noted, however, the custodian(s) or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

record are entitled to have their counsel of choice present during the in camera review in absence of any motion and grounds for disqualification.

Pursuant to People v. Mooc, supra, the custodian of records shall bring to the in camera review all documents “potentially relevant” to the motion:

When a trial court concludes a [moving party’s] Pitchess motion shows good cause for discovery of relevant evidence contained in a [peace] officer’s personnel files, the custodian of the records is obligated to bring to the trial court all “potentially relevant” documents to permit the trial court to examine them for itself. [Citation.] A [peace] officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen.

Code, § 832.8.) Documents clearly irrelevant to a [moving party’s] Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the [opposing party] or custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the [moving party’s] Pitchess motion.

A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record.

(Mooc, supra, 26 Cal.4th at pp. 1228–1229.)

The trial court “shall examine the information in chambers” (Evid. Code, § 1045, subd. (b)) “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” (Id., § 915, subd. (b); see Id., § 1045, subd. (b) [incorporating Evid. Code, § 915]). In determining relevance, the Court shall examine the information in conformity with section 915 and shall exclude “facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Id., § 1045, subd. (b).)

The Court orders in camera review as follows:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 01/08/2026 Hearing on Motion - Other to Direct Defendant to Produce Certain Peace Officer's Personnel Records in Department 53

Defendant’s custodian(s) of records is ordered to produce the records described in the two requests (partially) granted above. The custodian shall produce the records pursuant to the procedures stated in People v. Mooc (2001) 26 Cal.4th 1216, 1228– 1229. The custodian shall bring the original records plus one copy, BATES stamped so that the Court can refer to the records by consecutive page number. As discussed, the custodian may bring independent counsel.

Plaintiff’s and Defendant’s counsel are directed to meet and confer on scheduling the in camera hearing and to contact the Department 53 clerk to arrange a date. Counsel are directed to choose a Wednesday at 2:00 p.m. from one of the following dates: February 11, 2026; February 25, 2026; or March 4, 2026. If any party desires the in camera proceeding to be reported, counsel shall arrange for a court reporter.

Counsel shall confirm all of these arrangements with the Department 53 clerk at least five court days in advance of the agreed upon date, including whether a court reporter will be attending and if so, counsel shall comply with the Court’s procedures regarding the same. Counsel are advised that these dates may become unavailable if not promptly reserved.

Prior to the in camera review, counsel shall meet and confer upon a stipulated protective order pursuant to Evidence Code, section 1045, subdivision (e), regarding any information that may be disclosed pursuant to the Court’s review (or were produced by agreement without in camera review). Counsel shall submit such stipulation and order to the Court prior to any agreed upon date for the in camera review.

Plaintiff shall prepare a proposed order consistent with this ruling pursuant to Cal. Rules of Court, rule 3.1312.