Murray vs. Leclaire

Opposition

Cal. Super. - 4th Dist.August 19, 2011

T H E H O M A M P O U R L A W F I R M A P R O F E S S I O N A L L A W C O R P O R A T I O N 1 5 3 0 3 V E N T U R A B O U L E V A R D - S U I T E | O O O * F A X ( 3 2 3 ) 6 5 8 - 8 4 7 7 S H E R M A N O A K S , C A L I F O R N I A 9 1 4 0 3 P H O N E ( 3 2 3 ) 6 5 8 - 8 0 7 7 WwW Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARASH HOMAMPOUR (State Bar No. 165407) COREY ARZOUMANIAN (State Bar No. 278035) THE HOMAMPOUR LAW FIRM, PLC 15303 Ventura Boulevard, Suite 1000 BA Ey ED Sherman Oaks, California 91403 County of Orange Clerk of the Superior Court CHARLES G. COHAN (State Bar No. 70563) By e Clerk, Deputy Clerk CHARLES G. COHAN LAW CORPORATION 8929 S. Sepulveda Boulevard, Suite 204 Los Angeles, California 90045 (323) 678-1095 Office | Fax: (323) 395-0704 Attorneys for Plaintiffs NANCY MURRAY and RAYMOND ELIGAN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER NANCY MURRAY and RAYMOND ELIGAN) CASE NO: 30-2011 00501653 PLAINTIFFS' OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER ADVANCING DEFENDANT'S APRIL 7, V. 2016 HEARING ON ITS MOTION FOR STEVEN MATTHEW LECLAIRE, an) DISCOVERY OF PEACE OFFICER individual, CYPRESS LODGE, L.P., a) PERSONNEL RECORDS FOR KEVIN California Limited Partnership; SATELLITE) RONCEVICH MANAGEMENT CO., a California) Plaintiffs, N r ’ N r ’ N r ’ N r N r N r ’ Corporation and DOES 1 through 60,) Date: February 29, 2016 inclusive ) Time: 1:30 p.m. ) Dept.: C-15 Defendants. ) ) Complaint Filed on August 19, 2011 Assigned to Dept. C-15 TO THE COURT; ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs hereby object to Defendants’ ex-parte application in hand (on their motion shortening time on their motion advancing Defendants' April 7, 2016 Hearing on its Motion for Discovery of Peace Officer Personnel Records for Kevin Roncevich. While Plaintiffs do not have Defendants' ex-parte application in hand; Plaintiffs cannot image Defendants can put forth the required good cause, in their Declaration that would justify advancing a Pitchess Motion for the disclosure of a retired officer's private and protected personnel file. Plaintiffs’ Opposition to Defendants’ Shortening Time to Discover Plaintiffs’ Expert's Personnel File - Page i T H E H O M A M P O U R L A W F I R M A P R O F E S S I O N A L L A W C O R P O R A T I O N 1 5 3 0 3 V E N T U R A B O U L E V A R D - S U I T E | O O O S H E R M A N O A K S , C A L I F O R N I A 9 1 4 0 3 P H O N E ( 3 2 3 ) 6 5 8 - 8 0 7 7 * F A X ( 3 2 3 ) 6 5 8 - 8 4 7 7 WwW Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant's Ex-parte Application to advance the Pifchess Motion should be denied outright. Information contained in the peace officer or custodial officer's personnel file, is protected from discovery or disclosure under Penal Code section 832.7 and Evidence Code section 1043, et seq. The protection extends to records and findings of governmental agencies that investigate complaints against peace officers. Berkeley Police Association v. City of Berkeley,( 2008 ) 167 Cal. App.4th at 385, 404 and 405. The protection extends to any information of a private nature, including complaints and investigations of the officer and information concerning the officer personally, such as a home address, marital status, education, and employment history. In that regard, you may see Penal Code section 832.7(a) and 832.8. Defendants have failed to meet their burden for an application for an order shortening time as that would interfere with the strict requirements of the process of a Pitchess Motion, as there is a special two-step procedure for securing disclosure of a peace officer's personnel records. Additionally please see Warrick v. Superior Court (the real party in interest was the City of Los Angeles) 35 Cal.4th 1011 at 1019. 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 a time and place for the hearing pursuant to Evidence Code section 1043(b)(1). If, and only if, the court finds good cause, an in camera hearing must be held. Slayton v. Superior Court, 146 Cal. App.4th 55, at page 61. For these reasons Defendant's motion should be denied. Dated: February 26, 2016 THE HO POUR LAW FIRM rofegsional Law Gorporation Pn, By: Arash Homampour, Corey Arzotrmanian, Attorneys for Plaintiffs Plaintiffs’ Opposition to Defendants’ Shortening Time to Discover Plaintiffs’ Expert's Personnel File - Page ii T H E H O M A M P O U R L A W F I R M A P R O F E S S I O N A L L A W C O R P O R A T I O N 1 5 3 0 3 V E N T U R A B O U L E V A R D - S U I T E | O O O S H E R M A N O A K S , C A L I F O R N I A 9 1 4 0 3 P H O N E ( 3 2 3 ) 6 5 8 - 8 0 7 7 * F A X ( 3 2 3 ) 6 5 8 - 8 4 7 7 WwW Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT The Cypress Lodge was a motel with a history of high crime activity, where a guest carrying a concealed weapon, who eventually flashed the gun to other guests and the onsite manager and who was intoxicated during his entire stay at the motel, who had gotten into a fight with another guest, and had threatened to rape a woman, eventually (and foreseeably) discharged his gun. Defendants Cypress Lodge, L.P. and Satellite Management Company, owners and managers of the motel in Cypress, California were on notice LeClaire's and his gun and did nothing to prevent or guard against LeClaire or respond to his imminent or actual crime. Defendants’ Motion should be denied; as Defendants cannot argue in good faith that it is entitled to a Peace Officer Personnel Records for a retired officer offering opinions is a civil action, simply because retired officer Kevin Roncevich was retained by Plaintiffs. II. ARGUMENT Any Discovery of Retired Officer Kevin Roncevich’s Personnel File is Improper At the outset, Defendants have not made any showing that Retired Officer Kevin Roncevich’s personnel file is in any way relevant. Retired Officer Kevin Roncevich’s personnel file is privileged and has absolutely no relevance to the pending disputes. Thus, Defendants’ request must be denied. The personnel records of peace officers are strictly privileged under Penal Code Section 832.7 and are protected by the constitutional right to privacy. (City and County of San Francisco v. Superior Court (1981) 125 Cal. App.3d 879, 882.) The privacy rights of uninvolved officers are also invoked under Art. I, § 1 of the California Constitution. (See also City of Santa Cruz v. Superior Court (1987) 190 Cal. App.3d 1669, 1674) where the Court observed that beyond their constitutional rights, peace officers have specific protection against disclosure of their personnel records and records of citizen complaints.) Plaintiffs’ Opposition to Defendants’ Shortening Time to Discover Plaintiffs’ Expert's Personnel File - Page 1 T H E H O M A M P O U R L A W F I R M A P R O F E S S I O N A L L A W C O R P O R A T I O N 1 5 3 0 3 V E N T U R A B O U L E V A R D - S U I T E | O O O S H E R M A N O A K S , C A L I F O R N I A 9 1 4 0 3 * F A X ( 3 2 3 ) 6 5 8 - 8 4 7 7 P H O N E ( 3 2 3 ) 6 5 8 - 8 0 7 7 WwW Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential. (Kelly v. City of San Jose, 114 F.R.D. 114 F.R.D. 653, 660 (N.D. Cal. 1987).) These privacy interests must be balanced against the weight afforded to federal law in civil rights cases against police departments. (Soto, 162 F.R.D. at 616.) To carry out this balancing process and ensure that only material information is disclosed, federal law has adopted an in camera review of law enforcement personnel records before disclosure. (United States v. Cadet, 727 F.2d 1453, 1467-1468 (9th Cir. 1984); see also United States v. Henthorn, 931 F.2d 29 (1991).) The standard for balancing between a party’s right to discovery and an officer’s right to privacy was articulated by the court in Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) as follows: Federal common law recognizes a qualified privilege for official information. Kerr v. U.S. Dist. Ct. for the Northern Dist., 511 F.2d 192, 198 (9th Cir. 1975). In determining what level of protection should be afforded by this privilege, courts conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege. Kelly v. City of San Jose, 114 F.R.D. at 660; Miller v. Pancucci, 141 F.R.D. at 300; Hampton v. City of San Diego, 147 F.R.D. at 230-31; Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir.1990), cert den., 502 U.S. 957, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991). In the context of civil rights suits against police departments, this balancing approach should be “moderately pre-weighted in favor of disclosure.” Kelly, 114 F.R.D. at 661. If the party asserting the privilege meets the threshold requirement, the court will conduct a balancing analysis that considers, but is not limited to, the following factors: (1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self- evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case. Kelly v. City of San Jose, 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa.1973). Plaintiffs’ Opposition to Defendants’ Shortening Time to Discover Plaintiffs’ Expert's Personnel File - Page 2 T H E H O M A M P O U R L A W F I R M A P R O F E S S I O N A L L A W C O R P O R A T I O N 1 5 3 0 3 V E N T U R A B O U L E V A R D - S U I T E | O O O S H E R M A N O A K S , C A L I F O R N I A 9 1 4 0 3 P H O N E ( 3 2 3 ) 6 5 8 - 8 0 7 7 * F A X ( 3 2 3 ) 6 5 8 - 8 4 7 7 WwW Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The potential chilling effect of requiring disclosure of any IA files is also significant. Under the legal authorities cited herein, public entities and law enforcement agencies are provided with the authority to conduct investigations of their own employees actions, including providing a means for circumventing an officers federally guaranteed rights in very narrow circumstances. (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822.) Should this Court require full disclosure of any IA reports, it would result in a substantial chilling effect on public entities willingness to undertake internal investigations as any potential information and/or conclusions could potentially be ordered distributed to an aggrieved party. Similarly, such disclosure would also have a chilling effect upon a witnesses willingness to speak candidly with law enforcement personnel. Since Defendants’ seek discovery of Retired Officer Kevin Roncevich’s complete personnel file, they likewise are seeking production of any citizen complaints and/or I.A.’s. (Penal Code § 832.7; Evidence Code § 1043.) Defendants are not entitled to the statements of complainants, statements of witnesses and other people interviewed, statements of an investigating officer, and discipline records. (Evid. Code § 1045(b)(2), and see, Pen. Code § 832.5.) V. CONCLUSION Plaintiffs respectfully request that this court deny Defendant’s Application shortening time on Defendants’ Pitchess Motion for Kevin Roncevich’s records and take Defendants’ April 7, 2016 Hearing off calendar. Dated: February 26, 2016 HOMAMPOUR LAW FIRM N rpfessional Law mn Arash Homapnpour, Corey Arzoumanian, Attorneys for Plaintiffs Plaintiffs’ Opposition to Defendants’ Shortening Time to Discover Plaintiffs’ Expert's Personnel File - Page 3