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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Jeffrey Whitson vs Santa Barbara County et al

Case No: 16CV03698
Hearing Date: Fri Dec 08, 2017 9:30

Nature of Proceedings: Hearing: Motion - Pretrial Discovery; Motion to Compel

TENTATIVE RULING:

(1)        For the reasons set forth herein, the motion of defendants to compel production of original verification is denied as moot. All requests for awards of monetary sanctions are denied.

(2)        For the reasons set forth herein, the motion of plaintiff of discovery of law enforcement personnel records is denied without prejudice to the making of a further, appropriately specific motion.

 

Background:

In this action, plaintiff Jeffrey Whitson alleges claims arising from misuse of a confidential law enforcement database against defendants County of Santa Barbara (County), Santa Barbara County Sheriff’s Department, Jake Thomas Malone, Sergeant Garnica, and Corporal Cardenas.

(1)        Motion of Defendants to Compel Production of Original Verifications

On May 15, 2017, Whitson served verified responses to defendants’ special interrogatories, set one, form interrogatories, set one, and inspection demand, set one. (Rothstein decl., ¶ 2 & exhibits 1-3.) (Note: The declarations filed by both parties violate Rules of Court, rule 3.1110(f)(4) in that neither declaration contains electronic bookmarks.)

On September 5, 2017, Whitson served verified responses to defendants’ request for admissions, set one, and form interrogatories, set two. (Rothstein decl., ¶ 3 & exhibits 4-5.)

On October 3, 2017, Whitson served verified amended responses to County’s form interrogatories, set two. (Rothstein decl., ¶ 4 & exhibit 6.)

Because of defendants’ concerns about the authenticity of the verifications, defendants requested the original verifications. (Rothstein decl., ¶¶ 5-11.) On October 16, 2017, counsel for defendants, Senior Deputy County Counsel Lisa Rothstein, sent an email to counsel for plaintiff, attorney Diane Weissburg, following up and demanding that the verifications are provided by October 23, and if not, defendants would move to compel their production. (Rothstein decl., ¶ 12 & exhibit 10.) Weissburg responded that she was in trial in Fresno and would respond next week when she returned to Los Angeles. (Ibid.)

After some additional emails back and forth on other matters, Weissburg replied to Rothstein on October 25 that she asked her client for the original verification and he stated that he was looking for it. (Rothstein decl., ¶¶ 13, 16 & exhibit 12 [Note: There are no paragraphs 14 or 15].) Rothstein responded that she would hold off until Monday (October 30). (Rothstein decl., ¶ 17 & exhibit 13.)

On November 6, 2017, defendants filed this motion to compel production of the original verifications. Defendants also seek monetary sanctions in the amount of $641.79. (Rothstein decl., ¶ 19.) The requested amount is increased to $823 in the reply. (Rothstein supp. decl., ¶ 8.)

After a thorough search, plaintiff was unable to find his original verifications. (Weissburg decl., ¶ 10.) Plaintiff signed duplicate verifications and a declaration stating he was doing so because he could not locate the original verifications. (Weissburg decl., ¶ 10 & exhibit 4.) Weissburg sent the replacement verifications and plaintiff’s declaration to Rothstein on November 14, 2017. (Weissburg decl., ¶ 11 & exhibit 4.)

Plaintiff opposes the motion and seeks monetary sanctions in the amount of $2,800.

In reply, defendants acknowledge receipt of replacement verifications but continue to assert their claim for sanctions.

(2)        Motion of Plaintiff for Discovery of Law Enforcement Personnel Records

Whitson also moves for an order pursuant to Evidence Code section 1043 for production of four categories of documents:

“(1) All complaints from any and all sources relating to acts of aggressive behavior, violence, excessive force, or attempted violence or excessive, racial bias, gender bias, ethnic bias, sexual orientation bias, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of false police reports, writing of false reports to cover up the use of excessive force, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude within the meaning of People v. Wheeler (1992) 4 Cal.4th 284 against Officer(s) MALONE, CORPORAL CARDENAS, and SERGEANT GARNICA. Plaintiff specifically requests production of the names, addresses, dates of birth, and telephone numbers of all persons who filed complaints, who may be witnesses, and/or who were interviewed by the employing agency or their agents, the dates and locations of the incidents complained of, as well as the date of the filing of such complaints.”

“(2) Plaintiff is entitled to discover any discipline imposed upon the named officers as a result of the investigation of any citizen complaint described in item one. [Citation.]”

“(3) Any other material which is exculpatory or impeaching within the meaning of Brady

v. Maryland (1963) 373 U.S. 83. ‘Evidence is favorable and must be disclosed if it will either help the defendant or hurt the prosecution.’ [Citation.]”

“(4) The names, addresses, contact information, and transcripts of testimony of all persons who testified at any Civil Service Commission hearing(s) wherein the named officers were accused of any of the misconduct sought in items 1 and 3, above. Also, Plaintiff seeks copies of all evidence submitted to the Civil Service Commission and its hearing board members (where practical) and/or a list of evidence items submitted to the Commission and any hearing officer(s).” (Notice, pp. 1-2.)

The motion is opposed by defendants. The arguments of the parties are discussed below.

In reply, plaintiff provide additional evidence and exhibits. In light of the court’s disposition of this motion below, the court will not consider evidence presented for the first time in reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Analysis:

(1)        Motion to Compel Verifications

The procedure relating to verifications is consistent across the varying discovery methods. With respect to interrogatories:

“The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” (Code Civ. Proc., § 2030.250, subd. (a).) “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party ….” (Code Civ. Proc., § 2030.260, subd. (a).) “The propounding party shall retain both the original of the interrogatories, with the original proof of service affixed to them, and the original of the sworn response until six months after final disposition of the action.” (Code Civ. Proc., § 2030.280, subd. (b).)

The genesis of this motion is the fact that there are striking similarities among the signatures as they appear in the three May 12, 2017, verifications and between the signatures as they appear in in the two August 28, 2017, verifications, which two sets appear not so similar to each other. Whitson’s deposition testimony regarding the manner of signature may not be entirely consistent with these striking similarities. (See Rothstein decl., ¶¶ 7-8 & exhibit 7.)

The fact of verification of the responses is not at issue. Although there is some issue about whether the underlying responses are correct (which is not at issue here, either), Whitson has straightforwardly asserted that he signed the originals of the verifications, scanned them, and sent them to his counsel. (Rothstein decl., exhibit 7.) The problem identified in Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090—that the “the use of a presigned verification in discovery proceedings, without first consulting with the client to assure that any assertions of fact are true, is a clear and serious violation of the statutes and rules” (emphasis omitted)—is a different problem than someone using a replicated signature with the client’s consent. For purposes of this litigation, there is no dispute that the verifications provided were intended by Whitson to serve as verifications for the responses to which they were attached. The responses are verified for all legal purposes.

It appears from the evidence that the original, signed verifications were created and held by Whitson personally and then electronically transmitted to Whitson’s counsel. It is unclear from the papers presented in this motion how the responses, including the verifications, were then transmitted to defendants’ counsel. Nonetheless, defendants argue that they are entitled to view the original verifications. Subsequent events have rendered this impossible. After the motion was filed, a search for the original verifications failed to find them and replacement verifications, which are also not at issue, were produced. As a result, there is nothing that can be produced that is sought by the motion and it is substantively moot.

The only remaining issue is whether to award monetary sanctions. “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Rules of Court, rule 3.1348(a).)

The service of something other than an original verification does not comply with Code of Civil Procedure section 2030.260, subdivision (a) (and the corresponding provisions dealing with other methods of discovery, sections 2031.260 and 2033.250), which provides: “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” In insisting upon compliance with section 2030.260, this motion is not frivolous, as suggested by Whitson.

Section 2030.260, subdivision (a), does not provide for an award of sanctions for non-compliance. One could argue that service of a duplicate rather than an original verification constitutes an answer to an interrogatory that is “incomplete” and for which a motion to compel would be appropriate under Code of Civil Procedure section 2030.300, subdivision (a)(1), but that section has a 45-day time limit for making the motion which has since expired as to all responses except for the October 3 amended responses. Section 2030.300 is not stated as a basis for the motion in the notice of motion. The originals could also be the subject of a separate document demand or deposition subpoena, but this is not a motion to comply with such a demand or subpoena.

The situation here also violates Rules of Court, rule 3.250(b), which provides:

“(1) Unless the paper served is a response, the party who serves a paper listed in (a) must retain the original with the original proof of service affixed. If served electronically under rule 2.251, the proof of electronic service must meet the requirements in rule 2.251(i).

“(2) The original of a response must be served, and it must be retained by the person upon whom it is served.

“(3) An original must be retained under (1) or (2) in the paper or electronic form in which it was created or received.

“(4) All original papers must be retained until six months after final disposition of the case, unless the court on motion of any party and for good cause shown orders the original papers preserved for a longer period.”

But there is no request for sanctions for violation of rule 3.250. (See Rules of Court, rule 2.30(c).) The citations in the opposition to Rules of Court, rules 8.75 (pertaining to electronic filing in the Court of Appeal) and 2.305 (pertaining to service by fax) are to rules that are not shown to apply to the circumstances here.

It is questionable as to whether, given the procedural posture of the motion, the court has authority to impose sanctions. In any event, under all of the circumstances presented, the court determines that the imposition of sanctions against any party would be unjust. The request for sanctions by all parties will be denied.

(2)        Motion of Plaintiff for Discovery of Law Enforcement Personnel Records

“Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” (Pen. Code, § 832.7, subd. (a).) Plaintiff now moves for pretrial discovery of such records, commonly known as a Pitchess motion. This motion is governed by statute:

“In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.” (Evid. Code, § 1043, subd. (a).)

“The motion shall include all of the following:

            “(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 which 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.

            “(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, § 1043, subd. (b).)

“Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation.” (Evid. Code, § 1045, subd. (a).)

“In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure:

            “(1) 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 or disclosure is sought.

            “(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

            “(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b).) “Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)

“In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.” (Evid. Code, § 1045, subd. (c).)

These statutory procedures apply both in civil cases and in criminal cases. (Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278, 293.)

“[T]he Pitchess motion must describe ‘the type of records or information sought’ [citation] and include ‘[a]ffidavits 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’ [citation]. The affidavits may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information [citation].” (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) “Good cause for discovery exists when the defendant shows both ‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.)

The first category of information sought is quoted above and includes all complaints of misconduct amounting to moral turpitude against the three individual officer defendants (individual defendants).

“Regardless of how the materiality inquiry is described, however, a showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events. This court has long required that the information sought must be described with some specificity to ensure that the defendant’s request is not so broad as to garner ‘ “all information which has been obtained by the People in their investigation of the crime” ’ but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. [Citations.] [¶] This specificity requirement excludes requests for officer information that are irrelevant to the pending charges. [Citation.] And it enables the trial court to identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges. This inquiry establishes the statutorily required materiality prong of the good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1021-1022.)

The evidence presented in counsel’s declaration is that Officer Malone testified in his deposition that he accessed plaintiff’s personal information through secure computer programs at work on County computers and his superiors knew that he did it. (Weissburg decl., ¶¶ 14, 17.) Malone had not been trained on computer security. (Weissburg decl., ¶ 15.) Corporal Cardenas testified in her deposition that she is directly responsible for Malone but that she was not notified that Malone had been using County computers for his own personal use. (Weissburg decl., ¶ 19.) Cardenas also testified that she had never had any security training on computer terminals. (Ibid.) Sergeant Garnica testified in his deposition that he was the supervisor of Cardenas and Malone and never disciplined Malone for accessing secure databases for his own use. (Weissburg decl., ¶ 21.) There is no training on computer security and no monitoring of employee usage of secure programs. (Weissburg decl., ¶¶ 24-25.) There is no discipline for violations of the relevant statutes and the public’s right of privacy. (Weissburg decl., ¶ 26.) Plaintiff asserts that the evidence sought is relevant to show the officers have a propensity to engage in the alleged misconduct and that the officers engage in such misconduct. (Weissburg decl., ¶ 29.)

The claims here at issue all arise from the allegedly improper use of the restricted databases. There is no evidence connecting potential complaints of acts of aggressive behavior, specified biases, coercive conduct, fabrication of charges or evidence, false arrest, or false reporting to plaintiff’s claims and no showing that such evidence may actually exist. Evidence of habit or custom is relevant and admissible to provide conduct in conformity with the habit or custom. (See Evid. Code, § 1105.) While some aspects of false statements regarding computer usage may have some potential relevance, the generic description provided by plaintiff of documents sought in discovery is clearly intended to ask for everything imaginable and then put the burden on the court to sort it out. Plaintiff’s initial burden is to identify requested documents with reasonable specificity. Plaintiff has failed to provide this specificity.

Additionally, plaintiff has the burden, albeit a light burden given the asymmetry of information, to show a reasonable belief that the responding party has the information of the type requested. The evidence provided by plaintiff is to the contrary. The evidence presented by plaintiff is that the responding party has no policy regarding computer security, has not trained its personnel regarding computer security, does not actively monitor computer usage, and has not implemented discipline against its personnel for misuse of confidential computer information. This is evidence that documents of the generic sort sought by plaintiff do not exist, not that the responding party has information.

The court would generally be inclined to permit discovery relating to complaints concerning misuse of confidential information or misuse of secure computer databases such as the claims at issue. However, the instant motion fails to provide the necessary predicate specificity and information. The court will deny the request as to category 1 information without prejudice to the making of another motion in which the categories of information sought and evidence supporting the motion are appropriately specific.

Category 2 relates to discipline. The same analysis applies to category 2 and is also denied without prejudice.

Category 3 is for Brady information. Brady obligations apply in criminal cases: “In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), [the United States Supreme Court] held that the government violates the Constitution’s Due Process Clause ‘if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.’ [Citation.]” (Turner v. U.S. (2017) __ U.S. ___ [137 S.Ct. 1885, 1888, 198 L.Ed.2d 443].) This is not a criminal case and Brady does not directly apply. To the extent that plaintiff seeks to define documents by reference to Brady, the reference is insufficiently specific for the same reasons discussed above. The request will be denied as to category 3 without prejudice.

Category 4 relates to Civil Service Commission hearings relating to misconduct set forth in categories 1 and 3. For the same reasons, the request is insufficiently specific and will be denied without prejudice.

 
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