RIVERSIDE COUNTY SHERIFF'S DEPARTMENT v. STIGLITZ

Respondent’s Reply to Answer to Petition for Review

Cal.November 29, 2012

SUPREME COURT FILED NOV 29 2012 Case No. 8206350 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Frank A. McGuire Clerk RIVERSIDE COUNTY SHERIFF’S ) Case No.S206350 Deputy DEPARTMENT, ) ) REPLY TO ANSWERS TO Plaintiff and Respondent ) PETITION FOR REVIEW ) vs. ) ) [Riverside Superior Court JAN STIGLITZ, ) No. RIC10004998,after . ) Published Decision of the Defendant. ) Fourth District Court of ) Appeal, Div. Two, No. RIVERSIDE SHERIFF’S ) E052729] ASSOCIATION, ) ) Intervenor/Appellant. ) ) AND RELATED ACTIONS. ) RESPONDENT’S REPLY TO ANSWERS TO PETITION FOR REVIEW After Published Opinion of the Fourth Appellate District, Division Two,in the appeal from the Superior Court for the County of Riverside Honorable MacR.Fisher, Judge Presiding, Bruce D.Praet, SBN 119430 FERGUSON, PRAET & SHERMAN 1631 E. 18" Street Santa Ana, CA 92705-7101 (714) 953-5300 Telephone (714) 953-1143 Facsimile Attorneys for Plaintiff/Respondent Case No. S206350 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RIVERSIDE COUNTY SHERIFF’S ) Case No.S$206350 DEPARTMENT, ) ) REPLY TO ANSWERS TO Plaintiff and Respondent ) PETITION FOR REVIEW ) vs. ) ) [Riverside Superior Court JAN STIGLITZ, ) No. RIC10004998,after ) Published Decision ofthe Defendant. ) Fourth District Court of ) Appeal, Div. Two, No. RIVERSIDE SHERIFF’S ) E052729}] ASSOCIATION, ) ) Intervenor/Appellant. ) ) AND RELATED ACTIONS. ) RESPONDENT’S REPLY TO ANSWERS TO PETITION FOR REVIEW After Published Opinion ofthe Fourth Appellate District, Division Two, in the appeal from the Superior Court for the County of Riverside Honorable MacR.Fisher, Judge Presiding, Bruce D.Praet, SBN 119430 FERGUSON, PRAET & SHERMAN 1631 E. 18" Street Santa Ana, CA 92705-7101 (714) 953-5300 Telephone (714) 953-1143 Facsimile Attomeys for Plaintiff/Respondent TO: THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA. Respondent, RIVERSIDE COUNTY SHERIFF’S DEPARTMENT (hereafter “The Department’) respectively replies to both Answersfiled by Appellant (hereafter “RSA”) and Real Party in Interest (hereafter “Drinkwater’’) in response to the Petition for review ofthe published decision and opinion filed by the Fourth District Court of Appeal, Division Two, on September 28, 2012, in Riverside County Sheriff's Departmentv. Jan Stiglitz, E052729. PREFATORY STATEMENT In the interest of brevity, the Departmentwill file a single Reply to the two Answersfiled in this case. Ironically, Drinkwater’s Answer uses more than twice the volume of the original Petition to argue in the first instance that review should somehowbedenied,yet in the next breath proffers additional (new) issues this Court should consider on review. While Drinkwater raises a numberof arguments on the merits of the underlying issues, there islittle, if any, authority provided in either answer as to why this Court should not grant review beyond conclusory claims that the underlying opinion should remain in favor of the non-petitioning parties. Moreover, Drinkwater at least commendably concursthat the issue presentedhas statewide application (Answer, p. 15), while RSA blindly ignores the widespread implications of the issue presented. (Answer,p. 4) As morefully set forth in the Petition, even the Court ofAppeal agreed that the Supreme Court should consider this matter and, as evidenced by the numberofAmicusletters already filed in support of review, the issue presented in this caseis of critical concern on a statewide level which begs clarification and guidance from this learned Court. Without repeating the concise arguments contained in the Department’s Petition, the Department will briefly address the few issues raised by the Answersfiled by the parties. NECESSITY FOR REVIEW 1. The Published Opinion Of The Fourth District Court Of Appeal Remainsin Direct Conflict With The Published Decision of the First Appellate District in Brown y. Valverde (2010) 183 Cal.App. 4th 1531. Asthe “prevailing parties” in the Court ofAppeal, it is not surprising that both answeringparties offer little more than a regurgitation of the underlying Slip Opinion as argumentthat the current case is somehow not in conflict with the First District’s published decision in Brown v. Valverde (2010) 183 Cal.App. 4th 1531. However, neither party proffers any further substantive support for the glaring fact that these two published opinions are in direct conflict with each other and demandreview bythis Court. Notwithstanding the strained efforts of the Court ofAppealto try to reconcile the two decisions, a simple reading of both opinions reveals the glaring conflict between the two already pointed out in the Petition. 2. The Statutory Scheme Encompassing the Pitchess Process Contains an Unresolved Ambiguity. Despite the best effort ofRSA to suggest that there is no statutory ambiguity (RSA Answer, p. 4), even the Court ofAppeal identified the inescapable ambiguity contained in the statutory schemepresentedin this appeal (Slip Op., p. 28) and addressed in the Petition. It is also interesting that Drinkwater makesthe appropriate observation that POBR’ “provides a catalogue ofbasic rights and protections which must be afforded all peace officers by the public entities which employ them.” (Drinkwater Answer, p. 8, citing Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 380-81) Astrue as this concept might be, Drinkwater conveniently fails to point out that the Pitchess ' The Peace Officers’ Bill of Rights Act at Government Code § 3300, et seq. 3 processat issue on appeal is conspicuously missing from that catalog of rights provided by POBR. Drinkwater also argues that the underlying decision somehow doesn’t remove the procedural safeguards built into the Pitchess process. (Drinkwater Answer, p. 16). Yet, as pointed out in the Petition, there are no less than five (5) mandatory roles for “the court” to take in any Pitchess process which the Court of Appeal and the answering parties simply continue to ignore. Finally, Drinkwater suggests that because the administrative hearing officer in the instant case happensto be an attorney, the risk of allowingall hearing officers to balance the statutory privilege and sensitive privacy interests presented in Pitchess motions is somehow moot. (Drinkwater Answer, pgs. 15 and 18). Two obvious problems with this narrow view - (1) it is undisputed that not all administrative hearing officers are attorneys on a statewide level, and (2) Evidence Code § 915 exclusively reserves such balancing to “the court” and “thejudge” conducting in camera inspections. 3. The Issue Presented Continues to Have Widespread Statewide Application. As noted above, Drinkwater at least acknowledges the statewide impactofthe issue presented while RSA simply choosesto ignore the obvious. The Department has already demonstrated the obvious statewide implication ofthis issue and this Court is well aware ofits own historical consideration ofPitchess issues. Given the expressed interest ofAmici and the acknowledgmentofthe Court of Appeal that Supreme Court review is needed to resolve this unique issue, the Department respectfully urges this Court to grant review. 4. Conclusion. Given the minimal opposition to review and,for all of the reasons set forth above andin the Petition and Amiciletters, the Department continues to respectfully urge the Court to considerthis issue of statewide importance by granting this Petition for Review. Dated: November 27, 2012 Respectfully submitted, FERGUSON, PRAET & SHERMAN A Professional Corporation Bruce D.Praet, Attorneys for Respondent, Riverside Sheriffs Dept. CERTIFICATE OF WORD COUNT COMPLIANCE 1. This reply brief complies with the type volumelimitation of California Rules of Court, Rule 8.204 in that this brief contains 899 words. . 2. This brief complies with the typeface requirements of California Rules of Court, Rule 8.204 and type style requirements as this brief has been preparedin proportionally spaced typeface using Word Perfect X3, Times New Roman 13 point font. Dated: November 27, 2012 By: Respectfully submitted, FERGUSON, PRAET & SHERMAN A Professional Corporation am Bruce D.Praet, Attorneys for Respondent, Riverside Sheriff's Dept. PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I, Cathy Sherman, employed in the aforesaid County, State of California; I am over the age of 18 years and nota party to the within action. My business address is 1631 East 18th Street, Santa Ana, California 92705-7101. On November 28, 2012, served the RESPONDENT’S REPLY TO ANSWERSTO PETITION FOR REVIEW ontheinterested parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST XXX (By Mail) I placed such envelope with postage thereon fully paid to be placed in the United States mail at Santa Ana, California. XXX (State) I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on November 28, 2012, at Santa Ana, California. CNL Cathy Sherman SERVICE LIST Dennis J. Hayes, Esq. Adam Chaikin, Esq. Hayes & Cunningham Michael P. Stone, Esq. MunaBusailah, Esq. Travis M.Poteat, Esq. 5925 Kearny Villa Road, Suite 201 Stone Busailah LLP. San Diego, CA 92123 200 E. Del Mar Blvd., Suite 350 Pasadena, CA 91105 Jan Stiglitz, Arbitrator Clerk of the Court California Western School of Law_ Riverside Superior Court 225 Cedar Street 4050 Main Street San Diego, CA 92101 Riverside, CA 92501 Clerk of the Court California Court of Appeal Fourth District, Division Two No. E052729 3389 Twelfth Street Riverside, CA 92501 Office of the Attorney General 1300 "I" Street Sacramento, CA 95814-2919