RIVERSIDE COUNTY SHERIFF'S DEPARTMENT v. STIGLITZ

Real Party in Interest, Kristy Drinkwater, Answer to Petition for Review

Cal.November 19, 2012

Case No. 8206350 SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT RIVERSIDE COUNTYSHERIFFS’ DEPARTMENT, FILED Petitioner/Respondent, . J NOV 19 2012 JAN STIGLITZ, Frank A. McGuire Clerk Respondent. Deputy RIVERSIDE SHERIFFS’ ASSOCIATION, Intervenor/Appellant. After a Published Decision by the Court of Appeal of the State of California Fourth Appellate District, Division Two, Case No. E052729 Riverside County Superior Court The Honorable Mac R.Fisher, Judge Case No. RIC10004998 ANSWERTO PETITION FOR REVIEW MICHAELP. STONE (SBN 91142) MUNABUSAILAH J.C. ALLEN, members of STONE BUSAILAH, LLP A Partnership ofProfessional Law Corporations . 200 East Del Mar Blvd., Suite 350 Pasadena, California 91105 Telephone:(626)683-5600 _ =Fatsimile:(626)683-5656 Email:p.brady@police-defense.com Attorneys for Real Party in Interest/Appellant KRISTY DRINKWATER Case No. 8206350 SUPREME COURTOF THE STATE OF CALIFORNIA RIVERSIDE COUNTY SHERIFFS’ DEPARTMENT, Petitioner/Respondent, Vv. JAN STIGLITZ, Respondent. RIVERSIDE SHERIFFS’ ASSOCIATION, Intervenor/Appellant. After a Published Decision by the Court of Appeal of the State of California Fourth Appellate District, Division Two, Case No. E052729 Riverside County Superior Court The Honorable Mac R.Fisher, Judge Case No. RIC10004998 ANSWERTO PETITION FOR REVIEW MICHAEL P. STONE (SBN 91142) MUNA BUSAILAH J.C. ALLEN, members of STONE BUSAILAH, LLP A Partnership ofProfessional Law Corporations 200 East Del Mar Blvd., Suite 350 Pasadena, California 91105 Telephone:(626)683-5600 Facsimile:(626)683-5656 Email:p.brady@police-defense.com Attorneys for Real Party in Interest/Appellant KRISTY DRINKWATER TABLE OF CONTENTS I. ISSUE PRESENTED FOR REVIEW .. 0.0...cette 1 II. STATEMENT OF THE CASE... 1... ccctee eee nan 2 TT. ARGUMENT ...... 0.cceee tnt n tte e een neas 5 A. Grounds For Supreme Court Review Are Not Present ................ 5 1. Supreme Court Review Is Not Necessary To Secure Uniformity Of Decisions 1.6... . eeeeeteen eee e tenes 5 a. The Opinion Does Not Conflict with the Published Decision of the First Appellate District in Brown v. Valverde (2010) 183 Cal. App. 4th 1531.0... 000.02eee 5 b. The Opinion Correctly Interprets Brown’s Limited Applicability To Administrative Per Se DMV Hearings ... 7 2. Review Is Not Necessary To Settle An Important Question Of LAW 0.1eete et ene nent ene ees 11 a. The Opinion Correctly Interprets The Statutory Schemes Applicable To The Discovery Of Peace Officer Personnel Records 20... eeeeee eee ene eens 11 B. The Petition For Review Should NotBe Granted Simply Because The Opinion Has Widespread State Application ............. 0.00.00 eee 15 1. The Opinion Does Not Remove Any Procedural Safeguards From The Statutory Scheme Nor Does The Opinion Expand ThePitchess Discovery Process Beyond TheIntention Of The Legislature. ... 16 TV. CONCLUSION 2.0.0...cecettn tenn teen ne nes 19 CERTIFICATE OF COMPLIANCE........ 0.0.00. ccc cece etn ene 20 TABLE OF AUTHORITIES STATUTES Code ofCivil Procedure §1094.5 ooo. ccc ccc ccc cece ccc eee e etter nnnnnenes 3 Evidence Code § 915 2... ec ccc ccc ce cece ee tence bene eeenneenes 13 Evidence Code § 1043 0... ccc ccc ccc cece cece ence eet nnn etees passim Evidence Code § 1045 1... ccc ccc ccc cnc tee c eee e et neeeanns passim Government Code § 3300 1.0... cece ccc cece cece crete enenbennns 8 Government Code § 3304(b) ... 00... 0 cece cece ence ene neues passim Government Code § 3313 oo.ccc ccc cent ee ene neenneenees 8 Penal Code § 832.5 oo c ccc ccc etc nec e eee e teen enn ennnes 16 Penal Code § 832.7 1... ccc cc cece nce eee teen nneennns 6,16 Penal Code § 832.8 0... ccc ccc cc ence e ete e cent enn eneeay 6 Vehicle Code §13350 1...eccc teetee ete ene eee neennes 6 CASES Baggett v. Gates.eeeeee ee ete e teeta nes 9 32 Cal. 3d 128, 135 (1982) Brown v. Valverde oo. iiicee eee e cnet nee e een enns passim (2010) 183 Cal.App.4th 1531 City ofLos Angeles v. Superior Court (Labio) «0.0.00. 0c ccc cece eee eaes 8 57 Cal.App.4th 1506, 1512 (1997) City ofSanta Cruz vy. Municipal Court... 6.lcccc cece neces 18 (1989) 49 Cal.3d 74 il Coalition ofConcerned Communities, Inc. v. City ofLos Angeles ................. 13 (2004) 34 Cal.4th 733, 737 Dietz v. Meisenheimer & Herron 2... 000. ccc cece cee cece eee. 14 (2009) 177 Cal.App.4th 771, 792-794 Giuffre v. Sparks oocccn nett een eeceeees 13 (1999) 76 Cal.App.4th 1322, 1329-1331 McMahon vy. City ofLos Angeles (2009)... ccc ccc cece cece cece. 12 172 Cal.App.4th 1324, 1331 Moore v. City ofLos Angeles... 00066eee c cee eee. 8 156 Cal.App.4th 373, 380-381 (2007) Murphy v. Kenneth Cole Productions, Inc. (2007) 1.2.2.0... 0c ccc cc cece ees 13 40 Cal.4th 1-94, 1103 Pegues v. Civil Service Com... 6. ccc ccc cece cece eee e ee eeneeey 11 (1998) 67 Cal.App.4th 95, 104 People v. Woodhead... ccccee nett eee eeeeeeeees 14 (1987) 43 Cal.3d 1002, 1010 Perez v. City ofLos Angeles 6.0.0.0ccccee ccc eeee, 8 167 Cal.App.4th 118, 122 (2008) Petrus v. Department ofMotor Vehicles 0.0.0.0... 000 bcc ccc cece e eens 13 (2011) 194 Cal.App.4th 1240, 1244 Pitchess v. Superior Court .... 0... ccc ccc ccc cence eee eee eens passim (1974) 11 Cal.3d 531 Riverside County Sheriff's Department v. Jan Stiglitz, etal. .................0.-.. 1 (2012) 209 Cal.App.4th 883 (Court of Appeal No. E052729) Runyan v. Ellisoccbebe bebe bee eee. 8 40 Cal.App.4th 961, 964 (1995) lil Talmo v. Civil Service Com. o.oo ccccc ccc cece cece eee ee eee. ll (1991) 231 Cal.App.3d 210, 230 Upland Police Officer Ass'n v. City of Upland ...... 200.ee9 111 Cal.App.4th 1294, 1302 (2003) iv TOTHEHONORABLECHIEF JUSTICEAND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Real Party in Interest and Appellant KRISTY DRINKWATER [“Drinkwater” or “Appellant”] respectfully requests this Court to deny Respondent, RIVERSIDE COUNTY SHERIFF’S DEPARTMENT’S |““Department”’] petition for review ofthe published decision and opinion filed by the Fourth District Court ofAppeal, Division Two, on September28, 2012, in Riverside County Sheriff's Department v. Jan Stiglitz, et al. (2012) 209 Cal.App.4th 883 (Court of Appeal No. E052729). L ISSUE PRESENTED FOR REVIEW The opinion of the Court of Appeal well states the law andthe legislative intent of the State of California as expressed in statutes governing the discovery ofpeace officer personnel records and applies the law correctly in the case presented. The Department’s Petition for Review should therefore be denied. If, however, Petition for Review is granted, which it should notbe, Drinkwater requests review ofthe following additional issues: (1) whetherat the time, there was a long-standing past practice under the Memorandum of Understanding [“MOU”] between the County of Riverside and the Riverside Sheriffs’ Association [“RSA”], that featured litigation of so-called Pitchess motions and opposition thereto before hearing officers in MOUArticle XII administrative appeals, in which the Departmentneverobjectedto the hearing officers’ authority under the MOUto hearand decide these motions; (2) what is the effect of this established past practice on the case at bar, which neither the trial court nor the Court of Appeal addressed although invited by Drinkwater to do so; and (3) whether this Court should take judicial notice of Hearing Officer Jan Stigltiz’ curriculum vitae and standingas an attorney and law professoras evidenceofhis training andqualifications to hear and decide Pitchess motionsin the course of MOUArticle XII administrative appeals. I. STATEMENT OF THE CASE Drinkwater was employed by the Departmentasa correctional deputy. Following an administrative investigation, on March 11,2009, the Department terminated Drinkwater alleging that she had knowingly falsified her payroll form in order to receive compensation to which she was not entitled. Drinkwater timely appealed the termination pursuantto the terms of the MOU between the County ofRiverside and RSA. The MOUin effectat the time of Drinkwater’s termination provided for a disciplinary appeal procedure whereby correctional deputies, on appeal, would be afforded a hearing as provided for by Government Code §3304, subsection (b) [“§3304(b)”]. The 2 MOUprovided that the hearing would be presided over by a mutually agreed- upon hearing officer(Stiglitz). The namesofthe hearingofficers appearin the MOUandare agreed upon by the RSA andthe County of Riverside. As provided by the MOU,the hearing officer has the authority to “sustain, modify, or rescind an appealed disciplinary action”andthis decision is final, subjectto the right of either party toseek Judicial review pursuantto Code of Civil Procedure §1094.5. Thus, the hearing officer’s finding and opinion routinely addresses the question, “Was the Discipline Appropriate?” A central part of Drinkwater’s defense was (and remains) that the penalty oftermination wasdisproportionateto any alleged misconductasother Department employees who have been found to have engaged in the sameor similar misconduct were not discharged. Seeking evidence in support ofthis position, Drinkwater submitted a so-called Pitchess motionto Stiglitz’. In her motion, Drinkwater sought discovery ‘of. the disciplinary records of specifically-identified Department employeesthat she believed had either been investigated or disciplined for similar allegations and misconduct. Drinkwater’s motion wasnarrowlytailored to the production of only certain records and, in an effort to maintain the employee’s confidentiality, 'Referencing the process by which a moving party may access confidential peaceofficer personnelfiles as promulgated in Pitchessv. Superior Court (1974) 11 Cal.3d 531 and later codified in Evidence Code §1043, et Seq. 3 Drinkwater proposed the employee’s identity be redacted from any produced records. Finding good cause, Stiglitz granted Drinkwater’s motion. Thereafter, the Court of Appeal, First Appellate District, issued its opinion in Brown v. Valverde (2010) 183 Cal.App.4th 1531, holding that hearing officers in DMV administrative per se hearings did not havestatutory authority to hear Pitchess motions. The Departmentpresentedthis opinion to the trial court at hearingonits petition for writ of mandamusand argued that it applied to all administrative hearing officers, including Stiglitz. The superior court granted the petition. Drinkwater (and RSA as Intervenor) appealed the ruling. Subsequently, the Court of Appeal ordered additional briefing as well as invited and received oral argument on the case. In a unanimousandpublished opinionauthored by Presiding Justice McKinster,the Court of Appeal held that so-called Pitchess motions can be brought in administrative appealhearingsin police discipline cases, to discover evidence of excessive or disproportionate (“disparate”) penalties, for the purpose of showingthat others who committed substantially similar misconduct were not penalized to the same degree asthe appellants in such cases. HII. ARGUMENT A. Grounds For Supreme Court Review Are Not Present 1. Supreme Court Review Is Not Necessary To Secure Uniformity Of Decisions a. The Opinion Does Not Conflict with the Published Decision of the First Appellate District in Brown vy. Valverde (2010) 183 Cal.App.4th 1531. The Departmenterroneously asserts that the opinion of the Court of Appeal, Fourth Appellate District, conflicts with the opinion of the First Appellate District in Brown v. Valverde, (2010) 184 Cal.App.4th 1531. To the contrary, there is harmony between the two opinions, not conflict. Indeed, Brown v. Valverde, supra, only applies to administrative per se DMVhearings, not Government Code § 3304(b) appeals. The Court of Appeal correctly differentiated Brown from this case, noting that Brown only addressed “a single issue of law.” Brown v. Valderde, at p. 1535 [Emphasis added]. (See also Slip Op., 20 citing Brown at p. 1546 [“The issue before us is whether a Pitchess motion is available in a DMV administrative per se hearing.”]; and id. at pp. 1547-1559 [lengthy discussion by the court under the heading, “Pitchess Discovery Is Not Available in DMV Administrative Per Se Hearings”]). The case at bar concerns whether a so-called Pitchess motion may be broughtin a §3304(b) appeal. DMV administrative per se hearings are governed by Vehicle Code §13350 et seq., an entirely separate statutory scheme with no applicability whatsoeverto the current case. The mosttelling evidence that there is no conflict between the two decisions is the concurrence by both courts that Brown does not hold that Pitchess motions may neverbe properly heard in an administrative proceeding. In Brown,the court expressly held that Evidence Code §1043's use ofthe term “administrative body” is not “surplusage” and that “. . . there may be administrative proceedingsin which Pitchess discovery is permitted”but that en a DMV administrative per se hearing is not one of those administrative proceedings. Brown v. Valverde, 183 Cal.App.4th at p. 1549.2 The Fourth Appellate District agreed with the Brown court, holding that“... in the course of deciding the narrow issue presented ... the court ultimately found itself forced to conclude that the scheme does not foreclose the use of Pitchess motionsin all types of administrative proceedings. Rather, because Evidence Code section 1043 directs that a written Pitchess motion shall be filed ‘with the appropriate court or administrative body,’ the court held that the Legislature intended Pitchess discovery to be available in some types of *The court further stated that it was “clear” that the “Legislature did not intend Evidence Code sections 1043 and 1045 and Penal Code sections 832.7 and 832.8 to apply to DMV administrative per se hearings.” Brown, id. at p. 155. 6 administrative proceedings.”(Citations omitted) [Emphasis added] [Slip Op., at pp. 20-21]. Thus, the two decisions are in complete harmony and do not present a conflict. The Court of Appeal correctly determined that the Brown ruling applies only to DMV administrative per se hearings andits opinion does not conflict with Brown. b. The Opinion Correctly Interprets Brown’s Limited Applicability To Administrative Per Se DMV Hearings Brownisalsodistinguishable because, quite clearly, the First Appellate District never intended for its ruling to be expanded beyond a DMV administrative per se hearing and certainly ‘not stretched to the degree the Department advocates in its Petition for Review. Primarily, the court noted that the DMV administrative per se law (whereby the DMV immediately suspendsthe driver’s licence ofa person whois driving while intoxicated) was crafted and deemed necessary due to the “time lag” which “often occurs betweenthe arrest and a conviction for driving while intoxicated.” Brown, supra, at 1536. Thus, the administrative per se procedure serves as an expedited processto reduce court delays, serve as a deterrent and safeguardfor personsusing the roads and highways. The administrative per se hearing does not impose criminal penalties nor doesit “restrict the ability of a prosecutorto pursue related criminal actions.” Jd. Rather, the hearing, which may be presided over by an employee of the DMV with nolegal training, simply determines whetherthe peace officer had reasonable cause to believe that the driver was operating a vehicle with a bloodalcoholcontentof.08 or greater. Id. at 1537. This is the sole task of the hearing officer. Jd. Conversely, Drinkwater has sought the appeal of her termination pursuant to §3304(b). Government Code §§ 3300 through 3313 constitute the California Public Safety Officers’ Procedural Bill ofRights Act [“POBRA”]. Although POBRA doesnotapply to correctional officers, the MOU provides the protections of POBRA to correctional deputies, like Drinkwater. The purpose of POBRA is protection and preservation of public safety officers’ fundamental rights. An abundanceofdecisional law acknowledgesthis fact. “POBRA ‘provides procedural guarantees to public safety officers under investigation.’ ” Perez v. City of Los Angeles, 167 Cal.App.4th 118, 122 (2008) (quoting City ofLos Angeles v. Superior Court (Labio), 57 Cal.App.4th 1506, 1512 (1997)). “The ‘Act “provides a catalogue of basic rights and protections which mustbe affordedall peace officers by the public entities which employ them.’ ” Moore y. City ofLos Angeles, 156 Cal.App.4th 373, 380-381 (2007) (emphasis added) (quoting Runyan v. Ellis, 40 Cal.App.4th 961, 964 (1995)). Additionally, “‘[T]he total effect of this legislation [i.e., POBRA]is not to deprive local governments of the right to manage and control their police departments butto secure basic rights and protections to a segment of public employees who were thought unable to secure them for themselves.’ ” UplandPolice Officer Ass'n v. City ofUpland, 111 Cal.App.4th 1294, 1302 (2003) (quoting Baggett v. Gates, 32 Cal. 3d 128, 135 (1982)). The Departmentincorrectly and misleadingly asserts that the court has sought to rewrite §3304(b) under the “blanket guise” of due process. [Department’s Petition for Review, page 4, lines2-3]. In reality, the court has only aligned itself with the courts in the aforementioned cases. Similar to those cases, the court held that Drinkwater is entitled to certain rights and protections, to wit, a hearing pursuant to §3304(b). Further, that at this hearing, Drinkwater shouldbe permitted to exercise her constitutionalrightto due process and present a meaningful defense(i.e., disparate penalty). The court did not state, imply or infer that §3304(b) contained language regarding Pitchess discovery. Rather, the court references §3304(b) to illustrate the inherent difference between such a hearing and a DMV administrative per se hearing. [Slip Op., p. 21]. In fact, the court exemplified the difference between a §3304(b) hearing and a DMVadministrative per se hearing when it held that as “Brown points out . . . the statutes which govern the DMV administrative per se hearings contain no provision for discovery of law enforcement personnel records (Citations omitted). These statutes do not apply to a section 3304(b) hearing.”[Slip Op., p. 21]. “Brown also concluded that Pitchess motions may not be brought in an administrative per se hearing because the arresting officer’s personnel records are not relevant to the extremely limited issue to be decided in those hearings. [Emphasis added.] However, personnel records of other officers may be relevant in a section 3304(b) hearing where . . . the defense is that the punishment imposedis excessive.” [Slip Op., pp. 21-22]. Lastly, the court’s decision does not suggest that Drinkwater’s right to due process somehow overrides the discovery process for peace officer personnel records. In its opinion, the court provides yet another example of why Brown is completely distinguishable from Drinkwater. In Brown, the court questioned the relevance of the Pitchess discovery sought by the appellant. There, the appellant sought information regarding citizen complaints, effecting illegal arrests, fabricating evidence and offering false testimony, even records regarding the officer’s inability to participate in the hearing, as contained within the arresting officer’s confidential personnel record. The appellant argued this information was related to the officer’s credibility. The court denied the motion, holding that “the role of the DMV officer is to determine three things, whether (1) the arresting officer had 10 reasonable causeto believe the driver was driving underthe influence; (2) the driver was lawfully placed underarrest; and (3) the driver was driving with a BACof 0.08 percent or greater. (Internal citations omitted). That records in the arresting officer’s personnelfile could have any bearing on these questions is dubious.” Brown v. Valverde, 183 Cal_App.4th at p. 1557. Contrariwise, and as noted by the court in the instant matter, in a disciplinary appeal, “disparate treatment is... a recognized defense” and “a penalty which is greatly in excess of the penalty imposed in similar circumstances may constitute an abuse ofthe disciplinary body’s discretion.” [Slip Op., at p. 22, citing Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230 at pp. 229-231; Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 104 at pp. 104-106). In such a scenario, the personnel records of other officers may be relevant. “Forall these reasons, Brown is completely distinguishable from the present case.” [slip Op., at p. 23]. The opinion should therefore stand and the Petition for Review should be denied. 2. Review Is Not Necessary To Settle An Important Question OfLaw a. The Opinion Correctly Interprets The Statutory Schemes Applicable To The Discovery Of Peace Officer Personnel Records 11. In the opinion, the court noted that the “phrasing ofthetrial court’s ruling is somewhat unclear.” [Slip Op., at pg. 13]. However, the court determinedthat the question presented was one of statutory interpretation and it therefore properly reviewedthe statutory scheme independently. Jd., citing McMahony. City ofLos Angeles (2009) 172 Cal.App.4th 1324, 1331. The court determinedthat“because Evidence Code § 1043 providesthat a Pitchess motion is to be made in ‘the appropriate court or administrative body,’ Pitchess discovery is available in at least some administrative proceedings.” [Slip Op., at p. 24]. In its Petition for Review, the Department has once again re-asserted the same unsuccessful argument that Evidence Code §1043's reference to an “administrative body” should be disregardedin light of Evidence Code §1045's referenceto “the court.” Yet, in its opinion, the court acknowledged the ambiguity [Slip Op., at p. 25] and provided lengthy, 8-page discussionthat effectively resolves the ambiguity. [Slip Op., at pp. 24- 32]. The Department’s Petition for Review asks that this Court disregard the Court of Appeal’s well-reasoned and soundanalysis to consider an argument that has already failed to pass muster. In support of its position, the Departmentsuggests that Justices King and Richli asked passing questions at oral argument in regard to fashioning an alternative practice for Pitchess motions. However,the Justices quite obviously abandonedthisidea, assuming 12 arguendo,that the notion was even seriously considered at some point, when they concurred with the published opinion. “In determining the meaningor application ofstatute, a court’s task is to determinethe intent of the Legislature.” [Slip Op., p. 24]. Thus, the Court of Appeal first looked to statutory language “as it is normally the clearest indication of the Legislature’s intent” (Slip Op., p. 24, citing Coalition of Concerned Communities, Inc. v. City ofLos Angeles (2004) 34 Cal.4th 733, 737; Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1-94, 1103)]. Upon determining that ambiguity exists between Evidence Code §§1043 and 1045 (which references Evid. Code §915), the court nextrelied on extrinsic aids to attempt to ascertain the Legislature’s intent. /bid. The court thoroughly analyzed the language in Evidence Code §§ 1043, 1045 and 915 and concludedthat “strong evidence” existed that the Legislature did not intend for Pitchess motionsto only be decided bythe courts. [Emphasis added.] [Slip Op., at p. 26]. The court reasoned that such an interpretation clearly conflicts with the due processrights afforded to peace officers in disciplinary hearings by §3304(b). Jd. Due process in a §3304(b) hearing necessarily requires that the appellant be providedthe “opportunity for a full evidentiary hearing”[Slip Op., at p. 27 citing Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1329-1331] as well as the “opportunity to present a meaningful defense”[/d. citing Petrus 13 v. Department ofMotor Vehicles (2011) 194 Cal.App.4th 1240, 1244; and Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 792-794]. “Accordingly, where that defense (disparate treatment) is raised in a section 3304(b) hearing, due process mandates that the officer who is subject to discipline must have the opportunity to demonstrate the relevance of the personnel recordsofotherofficers.” [Slip Op., at p. 28]. Moreover, the court held that it “cannot simply read the phrase ‘administrative body’ out ofEvidence Code § 1043"as the Department would have the courts do. [Slip Op., at p. 26]. To do so would beto flagrantly ignore the Legislature’s expressintent. “It is a settled axiom ofstatutory construction that significance should beattributed to every word and phraseofstatute, and a construction making some wordssurplusage should be avoided.”[Slip Op., at p. 26 citing People v. Woodhead (1987) 43 Cal.3d 1002, 1010)]. Thus, the court held that there is “no justification for interpreting Evidence Code section 1043 in such a wayto renderthe phrase ‘or administrative body’ meaningless.” [Slip Op., at p. 27]. Lastly, the court concludedthat Brownfailed to address how a party seeking Pitchess discovery in an administrative proceeding would invoke the jurisdiction of a court to rule on the motion. The Department’s suggestion that “only a court be permitted to review the actual records in camera and issue 14 orders regardingtheir disclosure” [Department’s Pet. for Review, pg. 7] would flood the courts with Pitchess motions unrelated to any underlying judicial proceeding and reduce the already overwhelmed judicial officers to intermittent discovery referees. This is hardly a solution and, more importantly, it was rejected by the Court of Appeal. Contrary to the Department’s hyperbole that the court’s decision will permit administrative hearing officers who are “not even lawyers,” and who are “powerless to determinethesensitive privilege issues” [Department’s Pet. for Review,at p. 8], Stiglitz, like the other hearing officers approved by MOU, is a lawyer. In fact, not only is Stiglitz a lawyer in good standing with the State Bar of California, he is also a law professor, a highly-regarded appellate lawyer and the Director of the California Innocence Project. This is yet another distinction between the present case and Brown, supra, where the hearing officers were DMV employees with nolegal training. The opinion should therefore stand and the Petition for Review should be denied. B. The Petition For Review ShouldNot Be Granted Simply Because The Opinion Has Widespread State Application This issue does have widespread statewide application andrightly so. Respectfully however, this is not grounds for granting review. Indeed, this argument could be made for almost any case or issue seeking this Court’s 15 review. Furthermore, the Department offers no evidence in support ofits position that administrative hearings have proceeded for years without non- judicialofficers considering Pitchess motions. In fact, in this case, Drinkwater has demonstrated that the Department has participated in Pitchess motions with administrative hearing officers sufficient to establish a past practice. The Court ofAppeal declinedto rule on this issue as it was a mootissuein light of the court’s ruling that administrative hearing officers can hear and rule on Pitchess motions in §3304(b) appeals. 1. The Opinion Does Not Remove Any Procedural Safeguards From The Statutory Scheme Nor Does The Opinion Expand The Pitchess Discovery Process Beyond The Intention Of The Legislature. Drinkwater has never argued, nor does the opinion suggest, that confidential peace officer personnel records under Penal Code §§ 832.5 and 832.7 should be disclosed without compliance with the appropriate procedures under Evidence Code §§ 1043 and 1045. This includes notice, an affidavit showing good cause and materiality of the records to the pendinglitigation, and a determination of good cause and in camera review by the presiding hearing officer. The issue in the present case was whethera hearing officer may rule on a motion for peace officer personnel records pursuant to Evidence 16 Code §§ 1043 and 1045, not whether a hearingofficer may order disclosure of confidential personnel records in response to a simple “request”or “motionfor discovery.” Ifa motion is brought in compliance with the requirements of Evidence Code § 1043, and the hearing officer finds good cause and reviews the records for relevance before ordering disclosure, pursuant to § 1045, it cannotbe said that there has beendisclosure without compliance with Pitchess procedures. Thus, the Department’s argument onthis point lacks merit. In fact, the Department’s argument seemsto consistently ignorethe fact that disclosure of peace officer personnel records pursuant to a Evidence Code § 1043 motion, whetherin court or in an administrative hearing, requires a finding of good cause before the records are even ordered to be produced, and then finding of relevance after an in camera review before the records are ordered to be turned overto the movingparty; not simply a determination madein response to a mere “request.” Therefore, an officer whose records are sought does not have to fear any loss of confidentiality. This is particularly true in the present case where Drinkwater requested the identities of the officers be redacted. It is not the officer’s identity which is sought by Drinkwater, it is the Department’s imposition of discipline. Additionally, officers will not “forever” be concernedthatprior discipline will be raised in an administrative 17 appeal.> The Department has attempted to create a picture of a world gone wild and run amuck with Pitchess motions. Notonly is this grandstanding unfounded, it also ignores the requirements promulgated by the statutory schemeand reaffirmed by the Court ofAppeal. In the opinion, the court held that “[t]he Legislature devised the Pitchess procedurespecifically to balance privacy concerns with legitimate discovery needs, and provided that where Pitchess materials are relevant, privacy interests must give way to the legitimate interests ofparties to litigation.” [Slip Op., at p. 30 citing City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 at pp. 83-83]. Further, the court held that the officer’s privacy concerns have an “additional layer of protection” in thatit is “precisely because of the privacy interests involved” that “administrative mandamusis available to provide judicial review of a hearing officer’s order for production of officer personnel records before the records are actually produced.” [Slip Op., at p. 31]. The Department’s assertion that the hearing officer lacks the powerto protectthe file is absurd and superfluous. The hearing officer is required to follow the Pitchess procedure and review the personnel records in camera prior to rendering any decision. The procedure has not beenaltered by the opinion. In fact, the opinion emphasizes that this procedure will continued to be *Pitchess discovery only encompassesthe previous five years. 18 followed. [Slip Op., at pp. 30-32]. Finally, the Department claims that Brown “gotit right” because the Pitchess discovery process has “never been expanded to non-judicial administrative hearings in over 30 years.” However, the Brown court acknowledgedthat it was a case offirst impression (the decision is only two years old) and that the ruling only applied to DMV administrative per se hearings. This is hardly “strong evidence” that review should be granted. There simply is no conflict. Brown only applies to DMV administrative per se hearingsand the instant case applies to §3304(b) hearings. The Court of Appeal madethis overwhelmingly clear in its opinion. IV. CONCLUSION For the foregoing reasons, Real Party in Interest and Appellant Kristy Drinkwater respectfully requests that this Court deny the Petition for Review. Dated: November |, 2012 STONE BUSAILAH, LLP Michal 2 Str MICHAEL P. STONE MUNA BUSAILAH J.C. ALLEN Attorneys for Real Party In Interest/ Appellant Kristy Drinkwater 19 CERTIFICATE OF COMPLIANCE Pursuant to California Rules of Court, Rule 8.504(d)(1), I certify that this brief contains 4196 words, as determined by the word-count function of WordPerfect, the word processing program usedto create the answer. Dated: November |L 2012 STONE BUSAILAH, LLP OCAbon CALLEN UAL for Real Party In Interest/ Appellant Kristy Drinkwater 20 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 200 E. Del MarBlvd., Suite 350, Pasadena, CA 91105 On November | lor I served the foregoing document described as ANSWER TO PETITION FOR REVIEW onthe followinginterested parties in this action Dennis J. Hayes Hayes & Cunningham 5925 Kearny Villa Road, Suite 201 San Diego, CA 92123 Jan Stiglitz, Arbitrator California Western School of Law 225 CedarSt. San Diego, CA 92101 Bruce D.Praet Ferguson, Praet & Sherman 1631 E. 18"Street Santa Ana, CA 92705 Clerk of the Court California Court of Appeal Fourth District, Division Two 3389 12™ Street Riverside, CA 92501 Clerk of the Court County of Riverside 4050 Main Street Riverside, CA 92501 Office of the Attorney General 1300 “I” Street Sacramento, CA 95814 /x/ VIA MAIL I deposited such envelope in the mail at Pasadena, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, Californiain the ordinary course of business. I am aware that on motion of the party served, service is presumedinvalid if postal cancellation date or postage meter date is more than oneday after date of deposit for mailing in affidavit. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /X/ (State) I declare under penalty of perjury underthat laws of the State of California that the foregoing is true andcorrect. Executed on November/b 2012, at Pasadefn) alifornia. ‘Patricia Brady