JOHNSON VS. FISHER

CASE NUMBER: 24CV-0204746 Tentative Ruling on Motion for Discovery of Peace Office Personnel Records: Defendants Brodie Fisher and Morgan Michelle Fisher seek disclosure of Peace Officer records pursuant to Evidence Code sections 1043 and 1045. The records pertain to Plaintiff Edwin Scott Johnson’s employment with the California Highway Patrol. Both Plaintiff and the California Highway Patrol oppose the motion.

Request for Judicial Notice. Defendants request the Court take judicial notice of the Order dated November 30, 2023 in Sacramento Superior Court Case No. 34-2002-0032608-CU-OE-GDS and Vehicle Code § 20008. The requests are granted pursuant to Evid Code §§ 452(a) and (d) and 453.

Merits. A motion to obtain a peace officer’s personnel records or other documents maintained by a law enforcement agency related to a peace office is commonly known as a Pitchess motion. See Pitchess v. Superior Court (1974) 11 Cal.3d 531. Pitchess motions have been codified in Evid. Code § 1043 which requires a written motion in both civil and criminal actions. Evid. Code § 1043(a). The motion shall include: “1) identification of 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, 2) A description of the type of records or information sought” and “3) Affidavits showing good cause for the discovery or disclosure sought, 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.”

Evid. Code § 1403(b). The discovery motion must include, among other things, a description of the type of records or information sought and affidavits showing good cause for their discovery or disclosure. Riske v. Sup. Ct. (2016) 6 Cal.App.5th 647, 655. “Good cause for discovery of peace officer personnel records under the statutory scheme exists when the party seeking the discovery shows the “materiality” of the information to the subject matter of the pending litigation and states upon “reasonable belief” that the agency has the type of information sought.”

Id. This initial burden is a “relatively low threshold for discovery”. Id. A sufficient threshold showing is established if the party seeking records demonstrates through affidavits a “plausible factual foundation” for how the records are material to the subject matter of the pending litigation. Id. A “good cause” declaration may be made on information and belief and may be properly made by counsel. Abatti v. Sup. Ct. (2003) 112 Cal.App.4th 39, 51. If the threshold good cause is established, the second step is an in-camera review by the court in conformity with Evid.

Code § 915 and the court shall disclose only that information falling within the statutorily defined standards of relevant. Riske, supra 6 Cal.App.5th at 655-56.

Here, Defendants seek an Order that the following records be produced for an in camera review:

1. Plaintiff's CHP personnel file, including hiring documents, performance evaluations, attendance records, fitness for-duty evaluations, and separation documents (resignation, retirement, or termination); 2. All payroll, wage, and benefits records reflecting Plaintiffs compensation during his CHP employment, relevant to his claimed wage loss; 3. All workers' compensation claim files, injury reports, and related medical records pertaining to Plaintiff’s, relevant to his pre-incident physical condition and prior injuries;

4. All internal affairs, complaint, investigation, and disciplinary records pertaining to Plaintiff that bear on his credibility, physical condition, or honesty, including but not limited to materials produced or referenced in the Sacramento County civil action involving Plaintiff.

Defendants provided two declarations of counsel. The first declaration filed with the moving papers provides that Defendants attempted to subpoena the requested records from the California Highway Patrol who first stated that Plaintiff was not a peace officer, then stated that this was an error and Plaintiff is a peace officer. The declaration provides no evidence regarding the materiality the records sought and does not meet the minimum requirements for the Court to determine that a plausible factual foundation exists. The lack of supporting evidence was raised in the Oppositions. With the Reply, Defendants provided another declaration of counsel.

The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. “[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...” and if permitted, the other party should be given the opportunity to respond. Jay v Mahaffey (2013) 218 Cal. App. 4th 1522, 1538-1539.

Beside the issues of timing, the Court notes that the second declaration does not address the records requested. The threshold showing requires that the moving party provide, through affidavits, a plausible factual foundation for how the records are material to the subject matter of the pending litigation. Defendants provide that Plaintiff did not testify truthfully at his deposition regarding alcohol use in the months prior to the incident, that an in camera review was ordered in on a Pitchess motion made in the case of Weaver v.

California Highway Patrol from Sacramento County, and that Plaintiff testified that he violated his training as a CHP officer by failing to report an injury accident and the report states that a friend said that Plaintiff did not want law enforcement involved. The declaration makes no showing as to any of the four requests. Defendants have essentially presented evidence of what is characterized as dishonesty and now seek an entire personnel file from the California Highway Patrol. It appears that some of the records could possibly be relevant to the case at hand (such as documents showing prior injuries or wage statements).

However, Defendants have failed to make the necessary threshold evidentiary showing for the Court to order an in-camera review.

The motion is DENIED without prejudice. Defendants provided a proposed Order that will be modified to reflect the Court’s ruling.

LOMELI, ET AL. VS. DELIGHT FOODS, ET AL.