Opposition_to_demurrer_to_facOppositionCal. Super. - 4th Dist.July 29, 2015oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN COREY W. GLAVE (State Bar No. 164746) Attorney at Law 1042 2™ Street Hermosa Beach, CA 90254 Phone: (323) 547-0472 Fax: (310) 379-0456 POAattorney@aol.com Attorneys for Plaintiffs Santa Ana Police Officers Assoc. and Officers No. 1 and Officer No. 2 ELECTRONICALLY FILED Superior Court of California, County of Orange 1217/2015 at 03:31:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE-CENTRAL SANTA ANA POLICE OFFICERS ASSOCIATION and DOE OFFICER 1 AND DOE OFFICER 2 Plaintiffs, VS. Corporation; SANTA ANA POLICE DEPARTMENT, a public safety department; CARLOS ROJAS, Chief of Police; DOES I-X, inclusive ) ) ) ) ) ) CITY OF SANTA ANA, a Municipal ) ) Defendants. Case 30-2015-00801604-CU-OE-CJC Assigned to Hon. Ronald L. Bauer PLAINTIFFS" OPPOSITION TO DEFENDANTS’ DEMURRER TO COMPLAINT Hearing: January 4, 2016 Time: 9:00 p.m. Dept.: Cx-103 COMES NOW, Plaintiffs Santa Ana Police Officers Association and Doe Officer 1 and Doe Officer 2, and oppose Defendants’ Demurrer. l STANDARD ON DEMURRER The law is well settled as to the standard to be used on demurrer. Demurrer admits all material and issuable facts properly pleaded but does not admit contentions, deductions or conclusions of fact or law alleged therein. Highlanders Inc. v. Olsan (1978) 77 Cal.App.3d 690. OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN Il. OBJECTION TO REQUEST FOR JUDICIAL NOTICE Defendants seek judicial notice of the Court's ruling on Plaintiffs’ ex parte application for a temporary restraining order; this should be denied. The documents are not relevant as 1) they contain matters outside of the complaint, and 2) are not relevant as a ruling on preliminary injunction relief is not on the merits. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (to take judicial notice, the document must be relevant)). A preliminary injunctive order does not reach the merits of permanent injunctive relief sought in the complaint; the court, at that stage, balances the equities of the parties and determines whether the defendants should be restrained from exercising the right claimed by them pending a trial on the merits. California State University, Hayward v. National Collegiate Athletic Ass'n (1975) 47 Cal.App.3d 533; State Bd. of Barber Examiners v. Star (1970) 8 Cal.App.3d 736; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109; Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528 (Order denying preliminary injunction did not reach merits; and, therefore, did not establish law of the case). i. ARGUMENT IN OPPOSITION A. Plaintiffs Have Alleged Facts to Give Rise to a Cause of Action Based on Use of lllegal Recordings. Plaintiffs Doe Officers 1 and 2 are full time police officer for the City of Santa Ana, Santa Ana Police Department and were involved in the service of a narcotic search warrant on May 26, 2015, on a location in the City of Santa Ana commonly referred to as the “Sky High Medical Marijuana Dispensary” (“Dispensary”) (FAC 13) During the search warrant service, a number of undercover officers participated in the search, but wore masks to hide their identity from the general public. (FAC 1114). The Doe Officers were asked to work overtime and/or an extra assignment after their regular shift and normal duties to assist the Medical marijuana Dispensary 2 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN task force. Although this Marijuana Dispensary Task Force is a special unit, they do not have enough personnel to safely execute the search warrants. (FAC 15) The Dispensary has a set of outer doors wherein the public would enter into a hallway like area leading to another door on the south wall of the first interior room. The second room is believe to be a lobby of sorts. On the west wall was a window, similar to one you would see at a drive thru. A “volunteer” would sit at this location and was in charge of maintaining the flow of traffic into the “show room” where marijuana is dispensed. The north wall consisted of blacked out windows from floor to ceiling so no one from the outside of the business could see into the business. (FAC [16) After officer made entry into the “Dispensary” all civilians present in the Dispensary were escorted out of the business and detained outside. Once all civilians from inside the building had been accounted for and escorted out of the business, officers conducted a final sweep through the dispensary to ensure no civilians were hiding within. All of the rooms were checked and re-checked. Only after it had been determined no one, aside from police officers, were inside of the business did the collection of evidence begin. The only people to remain inside the Dispensary were Police Department employees, until Fire Authority personnel arrived to open locked safes. (FAC 17) After all civilians were escorted/detained outside, Doe Officer 1, as instructed by his superior officers, disabled all known recording devices (video cameras and DVR). It was reasonably believed that all surveillance systems had been rendered inoperable at that time. At this time, all police personnel present had a reasonable expectation that their conversations were no longer being recorded. (FAC §[18) In fact, it was only after all known cameras and recording devices were removed and the hard drive had been collected by detectives did the undercover detectives feel the crime scene was safe; all detectives kept their facial coverings on during this entire operation until the camera systems had been removed. (FAC [19). Once the camera system had been made in operative, many of the officers, including the Doe Officers, let down their guard and 3 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN began communicating with one another as they would a non-public setting outside the purview the public. While completing mundane tasks such as recording recovered evidence, the officer engaged in conversations amongst each other that were not meant to be heard by any members of the dispensary or the public. (FAC 420) Due to the fact that the officers believed there were in a private setting, officers joked and spoke about matters that they would never say to a public audience. Some of these topics included confidential work related topics as well as talking about personal family issues. Doe Officer 2 spoke to her son via cell phone and would have left the area had she known she was being recorded both visually and with audio. The officers engaged in conversations about family wherein in if any member of the public was present or they knew that they were being recorded, they would not reveal the existence of their family for fear for their safety. (FAC 21) Although the officers remained calm and professional while dealing with the public and/or difficult situations, at times officers joke and make light of a situation in private to relieve stress. Officers involved in this case engaged in conversations they believed only they would hear and believed that their conversation could not be overheard and were not being recorded. (FAC 422). After the known recording devices were disabled, the officers, including Doe Officer 1 and Doe Officer 2, had an objectively reasonable expectation that their communications (words and actions) were not being overheard or recorded and that their actions, conversations and all forms of communications would be confined to the parties thereto. Their communications were not in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public. They also did not reasonably expect that their communications may be overheard or recorded. (FAC 123) Unbeknownst to involved officers, the owners of the business and/or their attorney (collectively “Recording Party”), in anticipation that the Dispensary would be raided, placed additional hidden cameras in the Dispensary to record the communications (actions and words) of law enforcement officers. The Recording Party 4 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN did not seek nor obtain the consent of any officer to record their communications. (FAC 1124). The Recording Party, which was not a party to the communications, in fact secretly recorded the private communications of the involved officers, including Doe Officer 1 and Doe Officer 2. The Recording Party then released edited portions of the secret and illegal recording to media outlets in a manner to distort the officers actions and cause problems for both the involved officers and the City’s enforcement actions. (FAC 1125) After the illegal recordings were released to the media, Defendants, and each of them, viewed the videos and, based solely on the audio and/or video content of the edited illegal recordings, initiated internal affairs investigations of each of the officers involved in the warrant service, including internal investigations of Doe Officer 1 and Doe Officer 2. (FAC 1126). Both Doe Officers were interrogated by Defendants, and prior to being interviewed, they were shown selective portions of the illegal recordings. Both officers, via his legal counsel, objected to the investigation based on the fact that the investigation was initiated and based solely on the illegal recordings. Defendants did not deny the basis of the investigation, but summarily dismissed the objections and ordered the officers to continue with the interrogation or be subjected to discipline for insubordination. (FAC 427-29) Plaintiffs are informed and believe, and thereupon allege, that without the illegal recordings, there would have been no internal investigation of any officer, including Doe Officers, as there would be no basis to, rightfully or wrongfully, allege any misconduct against the officers involved in the service of the search warrant. (FAC 30). At some unknown point, Defendants obtained additional footage from the illegal recording referenced above. Based on the additional footage, Doe Officer 1, Doe Officer 2, and other involved officers were notified of subsequent or second interrogations. (FAC {[31) Both Doe Officer 1 and Doe Officer 2, reasserted their objections to the investigation in total as it was based on evidence obtained as the result of an unlawful recording of the officers. (FAC §[32). The Officer's objection was 5 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN ignored and they were ordered to appear for further investigation. (FAC 33). Doe Officer 1 was again interviewed on July 17, 2015, at approximately 1015 hours. Doe Officer 2 was again interviewed on July 17, 2015, at 1112 hours. Prior to and/or during breaks between the interviews, representatives of Defendants confirmed that the subsequent interviews were based on newly acquired recordings from the service of the search warrant. (FAC 34) 1. Legal Standard For lllegal Recording Under Provisions of Penal Code §632 and §637 In 1967, the California Legislature enacted a broad, protective invasion-of-privacy statute in response to what it viewed as a serious and increasing threat to the confidentiality of private communications resulting from then recent advances in science and technology that had led to the development of new devices and techniques for eavesdropping upon and recording such private communications. (Pen.Code, §§ 630- 637.2.) One of the provisions of the legislation, section 637.2, explicitly created a statutory private right of action, authorizing any person who has been injured by any violation of the invasion-of-privacy legislation to bring a civil action to recover damages and to obtain injunctive relief in response to such violation. (Kearney v. Salomon Smith Barney, Inc., (2006) 39 Cal.4th 95, 115-116). The Act is designed to effectuate California's strong public policy interest in protecting the privacy of its citizens. (Flanagan v. Flanagan, 27 Cal.4th 766, 775 (2002). To that end, “courts are required to liberally construe section 632 to effectuate [this] policy.” Kight v. CashCall, Inc., 231 Cal.App.4th112, 130 (2014) California Penal Code § 632 makes it illegal for any person to intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication. The term “confidential communication” is to be construed broadly and a conversation is a "confidential communication," if a party to the conversation has an 6 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan (2002) 27 Cal.4th 766; Frio v. Superior Court (1988) 203 Cal.App.3d 1480.). The high court stated that under the Frio test, "confidentiality" requires " 'nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation." " (Flanagan, supra, 27 Cal.4th at pp. 772-773) A "communication" "refers to any writing or conversation from one person to another or between persons." (Garner, A Dictionary of Modern Legal Usage (2d ed.1995) 180; see Black's Law Dict. (9th ed.2009) p. 316, col. 1 [A "communication" is "[t]he expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception"].) A "communication" has been interpreted to include a "conversation." (People v. Gibbons (1989) 215 Cal.App.3d 1204 [applying Pen.Code, §§ 630, 632 to video recordings] ["While communication and conversation are similar in their meaning, conversation refers to a spoken exchange of thoughts, opinions, and feelings while communication refers more broadly to the exchange of thoughts, messages, or information by any means"). Furthermore, the term “recording” includes any audio or video recording of "communication" (which is not limited to conversations or oral communications but rather encompasses any communication, regardless of its form, where any party to the communication desires it to be confined to the parties thereto.) People v. Gibbons, (Cal.App. 4 Dist. 1989) 215 Cal.App.3d 1204, 1208; see also Alvarez v. W.C.A.B., (2010) 187 Cal.App.4th 575; People v. Nakai, (2010) 183 Cal.App.4th 499; People v. Nazary, (2010) 191 Cal.App.4th 727 ["a video recorder ... is a recording device"; Shulman v. Group W Productions, Inc., (1996) 51 Cal.App.4th 850; People v. Henderson, (1990) 220 Cal.App.3d 1632, 1647 [a video recorder is a recording device for purposes of the privacy act, which proscribes the use of "any electronic amplifying or recording device" for the purpose of eavesdropping or recording private communications]. 7 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN As shown above, the cases overwhelming support the legal conclusion that secret video recording, especially with concurrent audio recording, violates Penal Code §632 and §637. The only case cited by Defendants, People v. Drennan (2000) 84 Cal. App.4th 1349, 1357, is inapposite and has not been followed by the Fourth Appellate District. In Drennan, the Defendant, a school district superintendent, was convicted of intentional recording of a confidential communication based on installation of a hidden camera in high school principal's office which took periodic photographs, without accompanying sound. Defendant appealed. The Court of Appeal, held that: (1) statute that prohibits intentional eavesdropping upon or recording of a confidential communication protects only sound-based or symbol-based communications; and (2) statute did not extend to present case involving the taking of timed, still photographs without accompanying sound. In the matter at hand, the recordings in question involve continuous audio and video recording of the officers’ exchange of information by speech, gestures, and conduct. Even if the Court were to find that video recordings are not protected, it still must protected against the unlawful audio recording portion of the tapes. Plaintiffs have alleged facts to demonstrate that they had an objectively reasonable expectation, especially after all known recording devices were disabled, and all civilian were removed from the premises, that their conversations were not being overheard or recorded. But for the placement of additional, unknown, concealed cameras, their conversations were, in fact, not overheard. Unless this Court rules that police officers, during on-duty time, never have any expectation of privacy in their private conversations with co-workers, then Plaintiffs have pled sufficient facts to give rise to this cause of action. 2. Internal Affairs Investigations Are Legal Proceedings The Court has inquired if Internal Affairs Investigations are proceedings under the law; they are. (Green v. Cortez (1984) 151 Cal.App.3d 1068, 1073; Hansen v. 8 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544). Furthermore, they are proceedings where in testimony can be compelled. (See Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 827; see also Declaration of Carlos Rojas attached to Plaintiff's Request for Judicial Notice.) 3. Defendants Arguments Regarding Conversations Not Be Objectively Private are Based On Matters Not Contained in Complaint. Defendants argue that recordings of the officers are not illegal because marijuana dispensaries have a high risk of robberies and therefore has a higher need for placing multiple levels of secret, concealed cameras. None of these facts are contained in the four corners of the complaint and cannot be considered. Defendants entire argument is based on the claims that “Any reasonable person, especially trained law enforcement, would have an expectation that such an establishment has well equipped surveillance.” Reliance on this claim, without a factual basis in the complaint or supported by legal citations indicating as a matter of law officers should have such an expectation, is fatal to Defendants’ demurrer. Finally, Defendants argue the wrong legal standard. Defendants argue that the legal standard for Penal Code §632 is not whether the individual being recorded believes they are being recorded, but is whether the individual had an objectively reasonable expectation of privacy. (Note, there is no legal citation cited for this proposition). The California Supreme Court has ruled otherwise. The high court stated that under the Frio test, "confidentiality" requires " 'nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation." (Flanagan, supra, 27 Cal.4th at pp. 772-773). The use of the wrong legal standard is also fatal to Defendants’ demurrer. 4. Reasonableness is a Question of Fact for the Jury. Defendants entire demurrer to the First Cause of Action is based on the 9 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN assertion that Plaintiffs did not have an objectively reasonable expectation of privacy in their conversation or conduct. (Demurrer, p. 1:16-18). This assertion is fatal to Defendants’ demurrer. In determining whether a party had an objectively reasonable expectation that a communication is not being overheard or recorded, courts examine the content of the communication, the location of the communication, actions taken by the party to maintain the confidentiality of the communication, the identity of the party recording the communication, and the parties awareness of the recordings. (See, e.g., Coulter v. Bank of America, 28 Cal.App.4th 923 (1994); Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156, 169 (2003)). Consistent with this approach, when a communication occurs in a public setting or in the presence of others, courts evaluate the totality of the circumstances surrounding the communication to determine if it qualifies as confidential under the Act. (See Lieberman, 110 Cal.App.4th at 169 (hold that communication was “confidential” despite presence of other people). The issue whether there exists a reasonable expectation that no one is secretly listening to a conversation is generally a question of fact that may depend on numerous specific factors. Kight v. CashCall, Inc., (2011) 200 Cal.App.4th 1377, 1396. As such, Plaintiffs have, at this pleading stage, pled sufficient facts, when taken as true, support their assertion that they had a reasonable expectation of privacy in their communications. While Defendants argue that officers executing a search warrant at a private business location do not have an objective reasonable expectation of privacy that they are not being recorded. Defendants do not offer any legal support for this argument, nor do they cite to any facts in the First Amended Complaint to support such claims. To the contrary, courts have found, in regards to Penal Code §632, that police officers are not subject to lesser constitutional rights. (See Rattray v. City of National City, 51 F.3d 793 (9" Cir., 1994)). Rattray also Court found that Penal Code §632 applied to a police department's internal affairs investigations and/or discipline. 10 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN Indeed, other courts that have addressed the issue have determined that reasonableness, even with respect to an expectation concerning recording, is a factual question for the jury to decide. (See, e.g., Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 926, [jury must decide "whether it was reasonable for plaintiff to expect, in the circumstances of his particular workplace, that an interaction between coworkers would not be subject to covert videotaping"); Lieberman v. KCOP Television, Inc., (2003) 110 Cal.App.4th 156, 169 ["It is for the jury to decide whether under the circumstance presented [the plaintiff] could have reasonably expected that the communications were private" and, thus, would not be recorded].); Hataishi v. First American Home Buyers Protection Corporation, (2014) 223 Cal. App.4th 1454, 1467. The demurrer cannot be granted on these grounds, alone. B. Plaintiffs Have Properly Pled Violations of Government Code §3303 Plaintiffs have been subjected to interrogations during an internal investigation that could lead to punitive action. Consequently, they are entitled to all the rights and protections afforded under Government Code §3303. Doe Officer 1 and 2 are sworn police officers employed by the City of Santa Ana. As such, they are entitled to all the rights and protections afforded under Government Code §3300, et seq. (FAC §§6-8). Defendant City of Santa Ana, is a Municipal Corporation existing under the Constitution and the laws of the State of California. The City of Santa Ana, via state law, resolution, policy and past practice, has afforded sworn members of the Santa Ana Police Department with the same rights as afforded to sworn peace officers under Government Code §3300, et seq. Defendant, Santa Ana Police Department, is a public safety department, as that terms is used in Government Code §3309.5 and Defendant, Carlos Rojas is the Chief of Police for the City of Santa Ana, Santa Ana Police Department, and is charged with the supervision, management of personnel, including personnel investigations and discipline of employees of the 11 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN Santa Ana Police Department. (FAC §§9-11) After the illegal recordings, referenced above, were released to the media, Defendants, and each of them, viewed the videos and, based solely on the audio and/or video content of the edited illegal recordings, initiated internal affairs investigations of each of the officers involved in the warrant service, including internal investigations of Doe Officer 1 and Doe Officer 2. (FAC 9/26). On or about June 21, 2015, Doe Officer 1 was interrogated by Defendants as part of the internal investigation. (FAC 1148). Similarly, or about June 18, 2015, Doe Officer 2 was interrogated by Defendants as part of the internal investigation. (FAC 149). After their first interrogations, Doe Officer 1 and Doe Officer 2 were notified that they were going to be subjected to further interrogation at a subsequent time (second interrogations). (FAC 9/50). Upon being notified of the further interrogation at a subsequent time, both Doe Officer 1 and Doe Officer 2, via counsel, requested that Defendants provide, in a reasonable time prior to these subsequent interrogations, all required documents under Government Code §3303. The Officer's request for materials were denied and they were ordered to appear for further investigation without being provided any materials other than the recording of their first interrogation. (FAC 55) So as not to be insubordinate, both officers, even though their rights had been and/or were being violated, appeared for their subsequent interrogations. Doe Officer 1 was subsequently interrogated for a second time on July 17, 2015, at approximately 1015 hours. Doe Officer 2 was subsequently interrogated for a second time on July 17, 2015, at 1112 hours. (FAC 156). Plaintiffs are informed and believe, and thereon allege that the administrative investigation has been completed and further proceedings are contemplated. Defendants still have not provided Plaintiffs with the materials required under Government Code §3303(g). (FAC 157) Contrary to Defendants’ claims, the violations of Government Code §3303 are not based on, in any way, the illegal recording of the officers while at the marijuana dispensary. 12 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN 1. Legal Standard for Government Code §3300, et seq. In 1976 the California State Legislature passed Government Code Section 3300, et. seq., also known as “The Public Safety Officers Procedural Bill of Rights Act. This legislation was created in order to provide public safety officers throughout the State of California with the rights and protections the Legislature found necessary to stop the abusive practices of public safety agencies when conducting internal investigations. These protections consist of restrictions on the manner in which investigation and interviews can be conducted and set out certain rights and procedures. Pasadena Police Officers Ass'n v. City of Pasadena, (1990) 51 Cal.3d 564. The Act specifies the "basic rights and protections which must be afforded all public safety officers (see § 3301) by the public entities which employ them and was a catalogue of the minimum rights to protect employees from abuse or arbitrary treatment. (/bid; Baggett v. Gates, (1982) 32 Cal.3d 128; White v. County of Sacramento (1982) 31 Cal.3d 676). Specifically, Government Code §3303(g) provides: “The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file.” The clear language of the statute provides directions for what occurs after the first interrogation of the officer and prior to any further interrogation or when further proceedings are contemplated. Defendants’ demurrer fails to address these subsequent actions covered by Government Code §3303, and this failure is fatal to the demurrer. 13 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN 2. Required Disclosure of Recording and Materials is Coextensive The central issue in this case is when does Government Code §3303(g) required that copies of notes, reports and complaints be disclosed to the officers under investigation. Plaintiff asserts that disclosure is required prior to any further interrogations at a subsequent time and/or with further proceedings are being contemplated. The City claims that disclosure is only required after the investigation is concluded and the officer has been notified of intended punitive action. Defendants’ position is not contrary to court decisions; whereas, Plaintiffs’ position is supported by the law and the courts. First, while both parties cite to the Pasadena decision, Defendants do not address the following passage: “We also note that the Legislature placed the provision regarding disclosure of reports and complaints and the provision specifying entitlement to transcribed notes in the same sentence in subdivision (f). That sentence states that the officer "shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential." (§ 3303, subd. (f), italics added.) This placement is an additional indication that the Legislature must have intended the discovery rights in each instance to be coextensive...” (Pasadena Police Officers Assn. v. City of Pasadena, (Cal. 1990) 51 Cal.3d 564, 575-576)’ Defendants concede that they are required to provide the officers under investigation with copies of recordings of prior interrogations before any further interrogation. As the duty to produce the recording is coextensive with the duty to produce the notes, reports and complaint, then such production is required 1) prior to 'See also Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264; San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779). 14 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN any further interrogation at a subsequent time and/or when further proceedings are being contemplated.” Defendants appear to imply that Plaintiffs are only entitled to such records after the investigation (versus after the interrogation) has been completed and punitive action is being proposed. This is simply not the law. As the Supreme Court observed in Pasadena, "[s]ubdivision (f) [now (g) ] defines only disclosure requirements incident to an investigation; it does not address an officer's entitlement to discovery in the event he or she is administratively charged with misconduct." (Pasadena, supra, 51 Cal.3d at p. 575; Gilbert v. City of Sunnyvale, (2005) 130 Cal.App.4th 1264, 1283). Additionally, such an argument would make the provision “if any further proceedings are contemplated” unnecessary. In the matter at hand, Doe Officer 2 was interviewed on June 18, 2015, and further interrogated on July 17, 2015. Doe Officer 1 was interrogated on June 21, 2015, and further interrogated on July 17, 2015. The Complaint further alleges that the investigation has been completed and that further proceedings are being contemplated by the Defendants. While the officers were not entitled to pre-interrogation discovery prior to the June interviews, they were and are entitled to the production of certain documents prior to their second or “subsequent” interrogations and now that further proceedings are being contemplated. Defendants have not produced the required documents/materials, and therefore have violated the Act. While the Court and Defendants have argued a narrow reading of Government Code §3303(g), in interpreting the public safety officer's rights under the Act, a general rule of statutory construction requires a liberal construction in favor of those persons for whom a statute was designed to protect. Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 826-827. Consequently, in the matter at hand, the construction of Government Code §3300, and its subparts should be liberally constructed to protect the employee’s rights as the Act is remedial, and case law call for a liberal construction of the rights guaranteed by the Act. Baggett (supra); White (supra); Lybarger (supra) 15 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN C. Relief Requested Is Not Vague at Pleading Stage Defendants assert that the Complaint is “uncertain” because the request for injunctive relief is Vague. (Demurrer, p. 7:7-27). Plaintiffs simply seek that relief that is afforded them under Government Code §3309.5, including, but not limited to injunctive and/or mandamus relief enjoining defendants from (A) using and/or maintaining any materials/information unlawfully obtained during second or “subsequent” interrogations of Doe Officer 1 and/or Doe Officer 2, and/or the fruits of said materials/information. This would bar the use of the entire second interrogation as Defendants did not produce the required documents prior to the officers’ subsequent interrogation. Similarly, Plaintiffs seek to bar any reference to the content of the officers’ July 2015 statements in their personnel file, or files used for personnel purposes, or any other written record of his employee performance. Finally, Plaintiff seeks to bar the use of the July 2015 statements, and/or any fruits of said statements, in any proceeding against the officers, including but not limited to any administrative investigation and/or punitive action. If the requests are overly vague, then Plaintiffs can amend their complaint to make it clearer. V. CONCLUSION Plaintiffs request that the demurrer be overruled. If sustained, then Plaintiffs request twenty (20) days leave to amend. Dated: December 17, 2015 COREY W. GLAVE, ATTORNEY AT LAW Isl Corey W. Glave By Corey W. Glave, Attorney for Plaintiffs 16 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: | am employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my address is 1042 2™ Street, Hermosa Beach, CA 90254 On December 17, 2015, | served the foregoing document described as Opposition to Demurrer on the parties in this action by electronic service to: Anthony Snodgras G. Craig Smith Ferguson, Praet & Sherman 1631 east 18" Street Santa Ana, CA 92705 csmith@law4cops.com asnodgrass@law4cops.com | caused the documents to be sent to the interested parties herein at the e-mail addresses provided by the attorneys for the parties. Executed on December 17, 2015, at Hermosa Beach, California. X STATE | declare under penalty of perjury under the laws of the State of California that the above is true and correct. /s/ Corey Glave Corey W. Glave 17 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n © ~N oO o Oo A O W N ~~ O O © o N o O oa dA ww DN - V. TABLE OF CONTENTS STANDARD ON DEMURRER.. . . . .... i. 1 OBJECTION TO REQUEST FOR JUDICIAL NOTICE. . . . ................ 2 ARGUMENT IN OPPOSITION. . ..... 2 A. Plaintiffs Have Alleged Facts to Give Rise to a Cause of Action Based on Lsg of lllegal Recordings. : «i ss sn sn sn sn sn sn sn sn sn sms msmsmsms ms 2 1. Legal Standard For lllegal Recording Under Provisions of Penal Code §632 and §637. . . . 6 2. Internal Affairs Investigations Are Legal Proceedings. ......... 8 3. Defendants Arguments Regarding Conversations Not Be Objectively Private are Based On Matters Not Contained in Complaint. ........ 9 4. Reasonableness is a Questionof Fact... ................... 9 B. Plaintiffs Have Properly Pled Violations of Government Code §3303... 11 1. Legal Standard for Government Code §3300, etseq.. ........ 13 2. Required Disclosure of Recording and Materials is Coextensive. 14 C. Relief Requested Is Not Vague at Pleading Stage. . . .............. 16 CONCLUSION. . . . ee 16 18 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN TABLE OF AUTHORITIES CASES Alvarez v. W.C.A.B., (2010) 187 Cal.App.4th 575. . . . .......... .. . . ... .. ... 7 Baggett v. Gates, (1982) 32 Cal.3d 128... ..... 13,15 California State University, Hayward v. National Collegiate Athletic Ass'n (1975) 47 Cal.App.3d 533. . oo 2 Continental Baking Co. v. Katz (1968) 68 Cal.2d 512. ......................... 2 Coulter v. Bank of America, 28 Cal.App.4th 923 (1994)... ...................... 9 Flanagan v. Flanagan, 27 Cal.4th 766, 775 (2002). ............. cco... 6,7,9 Frio v. Superior Court (1988) 203 Cal.App.3d 1480... ....................... 7,9 Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264... ................... 14 Green v. Cortez (1984) 151 Cal. App.3d 1068. ............. iio... 8 Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537.. 8 Hataishi v. First American Home Buyers Protection Corporation, (2014) 223 Cal. App. 4th 1454... 11 Highlanders Inc. v. Olsan (1978) 77 Cal.App.3d 690. . . . . . . .................... 1 Kearney v. Salomon Smith Barney, Inc., (2006) 39 Cal.4th 95. .................. 6 Kight v. CashCall, Inc., 231 Cal.App.4th112,130 (2014)... . .................. 6,9 Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156, 169 (2003)... ....... 9, 11 Lybarger v. City of Los Angeles (1985)40 Cal.3d 822... .................... 9,15 Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057... ................. 2 Paradise Hills Associates v. Procel (1991) 235 Cal. App.3d 1528 ................. 2 Pasadena Police Officers Ass'n v. City of Pasadena, (1990) 51 Cal.3d 564. . 13, 14, 15 People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090. . . . . ..................... 2 People v. Drennan (2000) 84 Cal. App.4th 1349. . .. . .............. ........... 8 People v. Gibbons (1989) 215 Cal.App.3d 1204 .. . . . iii 7 People v. Henderson, (1990) 220 Cal. App.3d 1632... . . ... i... 7 People v. Nakai, (2010) 183 Cal.App.4th 499. . ..... i... 7 People v. Nazary, (2010) 191 Cal. App.4th 727 .. . . . i. 7 19 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT oO © 00 N N Oo oa br Ww O N = N N ND ND ND ND ND D D D ND A a m m y m m y n oo N N oO o o BA W B N ~~ O O © 0 0 N N oO O0 0 b w DN Rattray v. City of National City, 51 F.3d 793 (9" Cir., 1994)... .................. 10 Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907. ........... 11 San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779.... 14 Shulman v. Group W Productions, Inc., (1996) 51 Cal.App.4th 850. ................ State Bd. of Barber Examiners v. Star (1970) 8 Cal. App.3d 736. ................. 2 White v. County of Sacramento (1982) 31 Cal.3d 676...................... 13, 15 STATUTES Government Code §3300. . . . .. 11,13, 15 Government Code § 3301. . . 13 Government Code §3303.. ....... 11, 12,13, 14, 15 Government Code §3309.5 .. .. 11, 16 Penal Code §630. . . ..... 6,7 Penal Code §632. . ..... 6,7,8,9, 10 Penal Code §637.2.. . . . .... e 6, 8 20 OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT
