Riske v. Superior Court of Los Angeles County

Filed 12/12/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ROBERT RISKE, No. B270043

Petitioner, (Los Angeles County

Super. Ct. No. BC557535)

v.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Respondent;

CITY OF LOS ANGELES,

Real Party in Interest.

ORIGINAL PROCEEDINGS in Mandate. Mark V. Mooney,

Judge. Petition Granted.

Law Offices of Gregory W. Smith, Gregory W. Smith, Diana

WangWells; Benedon & Serlin, Douglas G. Benedon, Gerald M.

Serlin and Judith E. Posner, for Petitioner.

No appearance for Respondent.

Michael N. Feuer, City Attorney, Amy Jo Field, Assistant

City Attorney and Lisa S. Berger, Deputy City Attorney, for Real

Party in Interest.

__________________

Robert Riske, a retired Los Angeles police officer, sued the

City of Los Angeles alleging the Los Angeles Police Department

had retaliated against him for protected whistleblower activity by

failing to assign or promote him to several positions, selecting

instead less qualified candidates. Riske filed a discovery motion

pursuant to Evidence Code sections 1043 and 1045, which

establish procedures for the disclosure of confidential personnel

records of peace officers, to obtain certain records of the officers

selected for the positions to which he had applied. Riske asserted

the documents he sought were necessary to show the City’s stated

business reason for its promotion decisions—the successful

candidates were more qualified than Riske—was pretext for

retaliation. The City opposed the motion, claiming the officers’

personnel records were not subject to discovery because the

officers were innocent third parties who had not witnessed or

caused Riske’s injury. The superior court agreed and denied

Riske’s motion.

We grant Riske’s petition for a writ of mandate and direct

the superior court to vacate its order denying Riske’s discovery

motion and to enter a new order requiring the City to produce the

reports sought by Riske for an in camera inspection pursuant to

Evidence Code section 1045 and to thereafter order production of

all discoverable information. The statutory scheme governing the

discovery of peace officer personnel records is not limited to cases

involving officers who either witnessed or committed misconduct.

If a plaintiff can demonstrate the officer’s personnel records are

material to the subject matter of the litigation, the records must

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be produced by the custodian of records and reviewed by the court

at an in camera hearing in accordance with the statutory

procedures to assess the discoverability of the information

contained in them. The court must then order production of those

records that are relevant and not otherwise protected from

disclosure.

FACTUAL AND PROCEDURAL BACKGROUND

1. Riske’s Whistleblower Activity and the Subsequent

Adverse Response by Fellow Officers

According to his complaint, Riske worked as a police

officer with the Department from 1990 until his retirement in

September 2014. In 2008, while working as a detective-I in the

Southeast Narcotics Enforcement Division, Riske reported two of

his fellow officers for filing false police reports and testified

against the officers at an administrative hearing that ultimately

resulted in their termination. Afterward, Riske’s colleagues

referred to him as a “snitch” and refused to work with him. At

times they even ignored Riske’s requests for assistance in the

field. Fearing for his safety, Riske transferred from the Southeast

Division to the Harbor Division. Between 2011 and 2013 he

applied for 14 highly desirable detective-I and detective-II

positions. Notwithstanding his superior qualifications, his

applications were denied each time in favor of less experienced or

less qualified persons.

2. Riske’s Lawsuit, the Department’s Summary Judgment

Motion and Riske’s Initial Request for Production of

Documents

In September 2014 Riske sued the Department for unlawful

retaliation in violation of Labor Code section 1102.5, alleging the

Department’s refusal to promote him was in retaliation for his

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protected whistleblower activity. The City answered the

complaint, denying the allegations, and thereafter moved for

summary judgment arguing, among other things, it had a

legitimate business reason for its promotional decisions—the

selected candidates were more qualified than Riske.

Prior to responding to the City’s summary judgment motion,

Riske served the City with a discovery request for all documents

submitted by the successful candidates for the relevant positions

and all documents relied on by the Department to select those

officers for the positions, subject to the terms of the parties’

stipulated protective order.1 The City produced some documents,

including rating sheets and ranking matrices used by the

Department’s decision makers for each position, but nothing from

the selected candidates’ confidential personnel files.

3. Riske’s Discovery Motion for Peace Officer Personnel

Records

Riske moved under Evidence Code sections 1043 and 1045

for production of the selected officers’ Training Evaluation and

Manage System (“TEAMS”) reports, which summarized the

successful candidates’ qualifications and history of

commendations and complaints, and their last two performance

1

In December 2014 the parties entered into a stipulation,

signed as an order by the court, governing production of

documents and disclosure of information in the case. Under the

terms of the order confidential information produced in discovery

would be used solely in connection with the instant matter and

viewed only by the parties, their attorneys and representatives

participating in this case.

4

2

evaluations, known as Standards Based Assessments. To

support his motion Riske included an affidavit from retired

Captain Joel Justice, a 21-year veteran of the Department, who

was familiar with the Department’s hiring policies and procedures

during the period Riske submitted his applications for

reassignment and/or promotion. According to Captain Justice, all

officers applying for the positions Riske identified were required

to submit a TEAMS report and their last two performance

evaluations; and the supervisors making the

promotion/assignment/hiring decision were required to consider

that information in arriving at their overall rating of the

applicants. Captain Justice characterized the TEAMS reports as

playing a “crucial role” in the selection process. He also testified

performance evaluations were critical because receipt of a “notice

to correct” conduct would be reflected in a performance evaluation

but not in a TEAMS report. Riske argued the documents were

material to his ability to prove the Department’s stated business

reasons for its failure to promote him were pretext for unlawful

retaliation.

The City opposed Riske’s motion, arguing peace officer

personnel records are confidential and the statutory scheme

permitting discovery of those records did not apply when the

officers whose personnel records were sought had neither

witnessed nor been accused of any misconduct. The City also

2

The parties agree that TEAMS is a system maintained by

the Department “to track detailed information pertaining to an

officer’s entire career with the Department. A TEAMS report is a

report generated by the TEAMS [data-tracking] system, and

includes such information as [an officer’s] training, assignments,

personnel complaints, discipline, commendations, and use[] of

force.”

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insisted Riske had failed to demonstrate good cause for production

of the records.

4. The Superior Court’s Denial of Riske’s Motion for

Personnel Records

The superior court denied Riske’s motion, ruling the

discovery procedures applicable to peace officer personnel records

did not apply to records of officers who had not committed or

witnessed any misconduct. The court stated, “You want records of

all these officers who have got nothing to do with this case other

than, you know, they were considered for these positions at the

same time as your client was. But they did nothing wrong.

They’re not a witness to anything. They committed no alleged

misconduct. So that’s why I still don’t think [you] get discovery of

their otherwise privileged personnel files.” The court continued

the hearing on the summary judgment to April 12, 2016.

On February 5, 2016 Riske filed a petition for writ of

mandate in this court, challenging the superior court’s denial of

his statutory discovery motion. On March 2, 2016 we issued an

order to show cause and stayed further proceedings in the

superior court pending our ruling on Riske’s petition.

DISCUSSION

1. Governing Law and Standard of Review

In Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)

the Supreme Court held a criminal defendant, upon a showing of

good cause, could compel discovery of information in a police

officer’s personnel file that was relevant to the defendant’s ability

to defend against a criminal charge. In 1978 the Legislature

enacted Penal Code sections 832.7 and 832.8 and Evidence Code

sections 1043 through 1045, codifying many of the principles

articulated in Pitchess and creating a statutory scheme for the

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limited discovery of peace and custodial officer personnel records

in both civil and criminal cases. (See Stats. 1978, ch. 630, §§ 1-3

& 5-6, pp. 2082-2083; Riverside County Sheriff’s Dept. v. Stiglitz

(2014) 60 Cal.4th 624, 631 (Stiglitz); City of Los Angeles v.

Superior Court (2002) 29 Cal.4th 1, 9.)

Currently, Penal Code section 832.7, subdivision (a),

provides in part that the personnel records3 of a peace or custodial

officer are “confidential and shall not be disclosed in any criminal

or civil proceeding” except by discovery procedures set forth in

Evidence Code sections 1043 and 1045.4 Evidence Code

3

Personnel records are defined in Penal Code section 832.8 as

“any file maintained under that individual’s name by his or her

employing agency and containing records relating to any of the

following: [¶] (a) Personal data, including marital status, family

members, educational and employment history, home addresses,

or similar information. [¶] (b) Medical history. [¶] (c) Election

of employee benefits. [¶] (d) Employee advancement, appraisal,

or discipline. [¶] (e) Complaints or investigations of complaints

concerning an event or transaction in which he or she

participated, or which he or she perceived, and pertaining to the

manner in which he or she performed his or her duties. [¶] (f)

Any other information the disclosure of which would constitute an

unwarranted invasion of personal privacy.” (See Commission on

Peace Officer Standards & Training v. Superior Court (2007)

42 Cal.4th 278, 289-290 [only information falling into one of

Penal Code section 832.8’s specifically listed categories is a

“personnel record” for Pitchess purposes]; Zanone v. City of

Whittier (2008) 162 Cal.App.4th 174, 188 [same].)

4

Evidence Code sections 1046 and 1047, added by the

Legislature in 1985 (Stats. 1985, ch. 539, §§ 1, 2, p. 1917), govern

discovery of peace officer personnel records in excessive force cases

and are not at issue here. (See Stiglitz, supra, 60 Cal.4th at

7

section 1043 requires the party seeking the discovery of peace or

custodial officer personnel records or information from those

records to file a motion with the court and give notice of the

motion to the government agency that has custody or control of

the records. (Evid. Code, § 1043, subd. (a).) The discovery motion

must include, among other things, a description of the type of

records or information sought and affidavits showing good

cause for their discovery or disclosure. (Evid. Code,

§ 1043, subd. (b)(2)-(3).)

Good cause for discovery of peace officer personnel records

under the statutory scheme exists when the party seeking the

discovery shows the ‘“materiality” of the information to the subject

matter of the pending litigation and states upon “reasonable

belief” that the agency has the type of information sought. (Evid.

Code, § 1043, subd. (b)(3); People v. Gaines (2009) 46 Cal.4th

172, 179 (Gaines); Warrick v. Superior Court (2005) 35 Cal.4th

1011, 1019 (Warrick).) A sufficient threshold showing is

established if the party seeking records demonstrates through

affidavits a “plausible factual foundation” for how the records are

material to the subject matter of the pending litigation. (Warrick,

at p. 1025.) The affiant’s credibility is not at issue; the trial court

determines whether a plausible factual foundation has been

established; it does not determine whether the moving party’s

version of events is credible or persuasive. (Ibid.)

This good cause requirement creates a “‘relatively low

threshold for discovery.’” (Warrick, supra, 35 Cal.4th at p. 1019;

accord, Gaines, supra, 46 Cal.4th at p. 179 [“[a] showing of good

cause [under Evidence Code section 1043] is measured by

pp. 641-642; Alt v. Superior Court (1999) 74 Cal.App.4th 950, 957-

958.)

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‘relatively relaxed standards’ that serve to ‘insure the production’

for trial court review of ‘all potentially relevant documents’”].) If

this threshold showing of good cause is met, the trial court must

then review the pertinent documents in chambers in conformity

with Evidence Code section 915 and disclose only that information

falling within the statutorily defined standards of relevance.

(Evid. Code, § 1045, subd. (a); Warrick, at p. 1019; City of

Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 19.)

The statutory scheme contains additional protections and

limitations on the scope of the discovery. For example, complaints

pertaining to officer conduct more than five years before the event

or the transaction at issue in the case, as well as any information

or record that is otherwise “so remote as to make disclosure of

little or no practical benefit,” are not discoverable. (Evid. Code,

§ 1045, subd. (b)(3).) In addition, the court must “consider

whether the information sought may be obtained from other

records maintained by the employing agency in the regular course

of agency business which would not necessitate the disclosure of

individual or personnel records.” (Evid. Code, § 1045, subd. (c).)

The court is also authorized to make “any order which justice

requires to protect the officer or agency from unnecessary

annoyance, embarrassment or oppression.” (Evid. Code,

§ 1045, subd. (d); see Alford v. Superior Court (2003) 29 Cal.4th

1033, 1039 (Alford) [“‘[t]he relatively low threshold for discovery

embodied in section 1043 is offset in turn, by section 1045’s

protective provisions which: (1) explicitly “exclude from

disclosure” certain enumerated categories of information

[citation]; (2) establish a procedure for in camera inspection by the

court prior to any disclosure [citation]; and (3) issue a forceful

directive to the courts to consider the privacy interests of the

officers whose records are sought and take whatever steps “justice

9

requires” to protect the officers from “unnecessary annoyance,

embarrassment or oppression”’”].)

This two-step process for discovery of peace officer personnel

records balances the officer’s strong privacy interests in his or her

own personnel records with the needs of civil litigants and

criminal defendants to obtain information material to their claim

or defense. (People v. Mooc (2001) 26 Cal.4th 1216, 1227; see

Alford, supra, 29 Cal.4th at pp. 1038-1039 [“‘The statutory scheme

thus carefully balances two directly conflicting interests: the

peace officer’s just claim to confidentiality, and the criminal

defendant’s equally compelling interest in all information

pertinent to his defense. The relatively relaxed standards for a

showing of good cause under section 1043, subdivision (b)—

“materiality” to the subject matter of the pending litigation and a

“reasonable belief” that the agency has the type of information

sought—insure the production for inspection of all potentially

relevant documents. The in camera review procedure and

disclosure guidelines set forth in section 1045 guarantee, in turn,

a balancing of the officer’s privacy interests against the

defendant’s need for disclosure.’”]; Haggerty v. Superior Court

(2004) 117 Cal.App.4th 1079, 1085 [same].)

The trial court’s decision to grant or deny a discovery motion

under Evidence Code sections 1043 and 10455 is ordinarily

reviewed for abuse of discretion. (Alford, supra, 29 Cal.4th

at p. 1039.) However, when, as here, the decision is based on an

5

Although the Legislature’s 1978 enactment of this statutory

scheme superseded the Court’s holding in Pitchess, supra,

11 Cal.3d 531, discovery motions and hearings conducted

pursuant to Evidence Code sections 1043 through 1046 are still

commonly referred to as Pitchess motions and hearings.

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interpretation of the statutes governing such discovery, our review

is de novo. (City of Eureka v. Superior Court of Humboldt County

(2016) 1 Cal.App.5th 755, 763; Pasadena Police Officers Assn. v.

Superior Court (2015) 240 Cal.App.4th 268, 284.)

2. The Superior Court Erred in Ruling Pitchess Discovery

Was Not Available Because the Officers Whose Records

Were Sought Had Not Participated in or Witnessed the

Conduct Alleged To Have Caused Riske’s Injury

The superior court denied Riske’s discovery motion without

holding an in camera hearing because it agreed with the City the

discovery procedures for peace officer personnel records did not

apply when the officers whose records were sought did not cause

or witness the plaintiff’s injury. The court erred in narrowly

construing the statute to contain such a limitation.

Analysis of the requirements of Evidence Code section 1043

must begin with the plain language of the statute, giving the

words their ordinary and common meaning. (Voices of the

Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th

499, 519.) “If the language [of the statute] is unambiguous, the

plain meaning controls,” and no further analysis is warranted.

(Ibid.; accord, Wells v. One2One Learning Foundation (2006)

39 Cal.4th 1164, 1190; State ex rel. Bartlett v. Miller (2016)

243 Cal.App.4th 1398, 1408.) When the language allows for more

than one reasonable construction, we consider “such aids as the

legislative history of the [statute] and maxims of statutory

construction. In cases of uncertain meaning, we may also consider

the consequences of a particular interpretation, including its

impact on public policy.” (Wells, at p. 1190.)

Here, the language of Evidence Code section 1043,

subdivision (b)(3), is plain and unambiguous. (See Alford, supra,

29 Cal.4th at pp. 1033 [“[a]s statutory schemes go [Evidence Code

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sections 1043 through 1045] is a veritable model of clarity and

balance”].) As discussed, Evidence Code section 1043 requires the

party seeking discovery in a criminal or civil case to show good

cause for the information by setting forth “the materiality thereof

to the subject matter involved in the pending litigation . . . .” The

critical limitation for purposes of the initial threshold

determination is materiality, which, in this context, means the

evidence sought is admissible or may lead to discovery of

admissible evidence. (Richardson v. Superior Court (2008)

43 Cal.4th 1040, 1048-1049 [“the materiality standard [of

Evidence Code section 1043] is met if evidence of prior complaints

is admissible or may lead to admissible evidence”]; Alford, supra,

29 Cal.4th at p. 1039; cf. People v. Superior Court (Johnson) (2015)

61 Cal.4th 696, 712 [a criminal defendant seeking an in camera

hearing for review and disclosure of peace officer personnel

records must make a threshold showing of materiality to the

pending litigation, a much lesser showing than required under the

Supreme Court’s constitutional materiality standard articulated

in Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194,

10 L.Ed.2d 215].)

The City concedes the statutory scheme applies in civil cases

and acknowledges that nothing in those statutes explicitly

restricts discovery to personnel records of peace officers who

participated in or witnessed the wrongdoing at issue in the

litigation. It nonetheless argues the Legislature, mindful that

Pitchess involved allegations of officer misconduct, must have had

that circumstance in mind in 1978 when it enacted Evidence Code

sections 1043 through 1045. This notion that the underlying facts

of the Pitchess decision articulate or inform the limits of

permissible discovery of peace officer personnel records under

Evidence Code sections 1043 and 1045 has long been rejected.

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(See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84

[“In determining the question of ‘good cause,’ however, we do not

operate in a decisional vacuum. We have previously held that the

Legislature, in adopting the statutory scheme in question, ‘not

only reaffirmed but expanded’ the principles of criminal discovery

articulated by this court in the landmark case of Pitchess v.

Superior Court . . . .”]; Commission on Peace Officer Standards &

Training v. Superior Court (2007) 42 Cal.4th 278, 293 [Evidence

Code section 1043 governs all peace officer personnel records as

defined in Penal Code section 832.8, not simply the types of

complaints and disciplinary actions at issue in Pitchess]; County of

Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1609

[“Legislature’s use of the term ‘any criminal or civil proceeding’

. . . was intended to apply to any situation, including a personal

injury action . . . where a party seeks to discover information

contained in a peace officer’s personnel file”].)

To support its narrow interpretation of the term

“materiality” in Evidence Code section 1045, the City compares

several cases in which good cause was found because the officer

was alleged to have committed misconduct and contrasts them

with cases in which good cause was absent because the officer had

not committed misconduct. (Compare City of Santa Cruz v.

Municipal Court, supra, 49 Cal.3d at p. 85 [defense assertion of

excessive force by arresting officers established plausible factual

foundation for discovery of personnel records] and Slayton v.

Superior Court (2006) 146 Cal.App.4th 55, 61 [in marital

dissolution action alleging spousal abuse, wife could obtain

personnel records of peace officer husband under Evidence Code

section 1043 to the extent information in his file was material to

her claims he was violent] with People v. Cruz (2008) 44 Cal.4th

636, 669-670 [criminal defendant who asserted officers acted with

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excessive force did not show good cause for obtaining personnel

records of officers who were not present when he was arrested;

“[t]here is no basis in the moving papers on which a conclusion

can be reached that [the officers’] past conduct would in any way

have anything to do with matters or material that might in any

way be helpful to the defense in the case’”]; People v. Collins

(2004) 115 Cal.App.4th 137, 151 [criminal defendant who alleged

officers planted drugs on him failed to show good cause for

discovery of personnel records; officers whose records were sought

were not involved in the body cavity search that led to the

discovery of drugs]; California Highway Patrol v. Superior Court

(2000) 84 Cal.App.4th 1010, 1023 [criminal defendant failed to

show good cause for personnel records to support his claim that

officer falsified police report; officer whose records were sought

was not alleged to have prepared a false report].)

Contrary to the City’s suggestion, the dispositive factor in

these cases was not the presence or absence of the officer during

the episode of misconduct at issue; it was the materiality of the

officer’s records to the issue before the court. When the officer’s

conduct was material to the claim, good cause was found. (See

City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 85.)

When the officer whose records were sought was not present when

the police misconduct was alleged to have taken place, that

officer’s past misconduct was not material to the defendant’s

allegations; and the motion was denied. (People v. Cruz, supra,

44 Cal.4th at pp. 669-670; People v. Collins, supra,

115 Cal.App.4th at p. 151.) To be sure, as the cases cited by the

City demonstrate, materiality will typically be found when the

officer was involved, and not found when the officer was not

involved in the alleged wrongdoing. But that is not invariably the

case, as the Supreme Court has made clear. (See Stiglitz, supra,

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60 Cal.4th 624; People v. Memro (1985) 38 Cal.3d 658, 685-687

(Memro), overruled on another ground in Gaines, supra,

46 Cal.4th at p. 181, fn. 2.)

In Memro the defendant claimed the confession he made in

his postarrest interrogation had been coerced through excessive

force and sought information regarding excessive force complaints

from the personnel records of 16 officers, most of whom had not

participated in the interrogation. The Memro Court held

discovery of the records of a noninterrogating officer would be

proper if the defendant could show a link between that officer and

the interrogating officers such as training or other substantial

contacts, which would be relevant to the defendant’s theory that

the coercive techniques alleged were part of a pattern of conduct

by the South Gate Police Department. (Memro, supra, 38 Cal.3d

at pp. 685-687.) The defendant in Memro failed to make that

connection. (Ibid.)

Several months after Memro was decided the Legislature

enacted Evidence Code sections 1046 and 1047 specifically to

overturn that portion of Memro allowing discovery of the

personnel records of the noninterrogating officers. (See Stats.

1985, ch. 539, § 2, p. 1917; Alt v. Superior Court (1999)

74 Cal.App.4th 950, 959, fn. 4.) In particular, Evidence Code

section 1047 protects from discovery records of officers who “were

not present during the arrest or had no contact with the party

seeking disclosure from the time of the arrest until the time of

booking, or who were not present at the time the conduct is

alleged to have occurred within a jail facility.”

Any question as to the scope of Evidence Code section 1047’s

protections and Memro’s continued viability concerning the

discoverability of personnel records of peace officers not directly

involved in the plaintiff’s injury was resolved in Stiglitz, supra,

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60 Cal.4th 624. There, a sheriff’s deputy had filed an

administrative complaint challenging the Riverside County

Sheriff’s Department’s termination of her employment for

falsifying her payroll forms. The deputy contended she had been

subjected to disparate treatment, arguing other employees had

committed the same offense but had not been fired. To prove the

allegations in her complaint, she moved under Evidence Code

section 1043 for production of certain personnel records of several

employees who had been disciplined for falsifying payroll forms.

The Sheriff’s Department objected, arguing the deputy had not,

and could not, establish good cause for an in camera hearing

because none of the officers whose records were sought was

involved in the underlying incident that led to the deputy’s

termination. (Stiglitz, at p. 629.) The hearing officer ordered

production of the records, and the Sheriff’s Department sought to

overturn that decision by an administrative writ of mandate. In

addition to asserting lack of good cause, the Sheriff’s Department

filed a supplemental brief in superior court arguing only judicial

officers could hold Pitchess hearings and grant Pitchess discovery

motions, not hearing officers. The superior court agreed with this

latter argument and issued the administrative writ of mandate.

(Ibid.) The Court of Appeal reversed, ruling the hearing officer’s

order was valid under the statute.

The Supreme Court affirmed, holding Evidence Code section

1043 authorized both judicial officers and administrative hearing

officers to rule on discovery motions brought under the statutory

scheme governing disclosure of peace officer personnel records.

(Stiglitz, supra, 60 Cal.4th at pp. 630-631.) Of significance for the

case at bar, the Stiglitz Court also rejected the Sheriff’s

Department argument the records were not discoverable as a

matter of law because the officers whose personal information was

16

sought had no involvement in the deputy’s claimed injury: “The

department argues that, because the officers whose records [the

plaintiff] has requested had nothing to do with her termination,

she is not entitled to discovery. In support, the department cites

Evidence Code section 1047 . . . . The department’s reading of

this statute was rejected in Alt v. Superior Court [, supra,]

74 Cal.App.4th 950. Alt reasoned that Evidence Code

section 1047 only applies if the discovery request relates to an

incident involving an arrest or its equivalent. When, as here, the

discovery request is unrelated to an arrest, Evidence Code section

1047’s limitation does not apply. . . . [A contrary] interpretation of

section 1047 would mean that police personnel information could

be discovered only if there had been an arrest or contact between

arrest and booking, and in no other situation. This reading runs

counter to Memro’s observation that sections 1043 and 1045 do not

limit discovery of personnel records to cases involving police

officers and arrestees.’” (Stiglitz, at p. 641.)

Although the City does not rely on Evidence Code section

1047, in all other respects its argument is the same as the

Riverside Sheriff’s Department’s in Stiglitz: Because the officers

whose records Riske requested had nothing to do with the

employment decisions that are the subject of this litigation, their

personnel records are protected from discovery. The analytic

linchpin of the Stiglitz holding rejecting this argument, resulting

in the enforcement of the hearing officer’s order under Evidence

Code section 1043 to produce records for in camera inspection, is

that Evidence Code sections 1043 and 1045 do not limit the

production of confidential personnel records to those officers who

participated in, or witnessed, the alleged wrongdoing at issue in

the litigation. (See Stiglitz, supra, 60 Cal.4th at p. 641.) If the

plaintiff can show the confidential personnel records of officers

17

who were not involved in the injury are nonetheless material to

the litigation, he or she has demonstrated the good cause

necessary to obtain in camera review.

Without acknowledging the holding or analysis in Stiglitz,

the City argues permitting discovery of relevant information when

the officer whose records are sought was not involved in plaintiff’s

injury would effectively create a less protective standard for the

discovery of peace officer personnel records than for the third-

party consumer records. (See Life Technologies Corp. v. Superior

Court (2011) 197 Cal.App.4th 640, 652 [in civil cases third-party

personnel files are considered confidential and protected by a

constitutional right to privacy under the California Constitution

unless the party seeking them can demonstrate a “compelling

need” for their discovery]; Harding Lawson Associates v. Superior

Court (1992) 10 Cal.App.4th 7, 10 [same].) Even were this true,

that is a policy judgment for the Legislature, not this court. In

any event, the City’s assessment of the purported differences in

these cases is flawed. In peace officer and non-peace officer cases

personnel records are conditionally privileged. In both types of

cases notice must be given to the officer or consumer whose

records are sought to give that party the opportunity to object.

(See Evid. Code, § 1043, subd. (a) [peace officers]; Code Civ. Proc.,

§ 1985.3, subd. (b) [third-party consumers].) And in each type of

case actual relevance is likely dispositive. (Compare

Life Technologies Corp., at p. 652 [“‘[a] showing of relevancy may

be enough to cause the court to balance the compelling public need

for discovery against the fundamental right of privacy’”] with

Evid. Code, § 1045, subd. (b) [information subject to disclosure

must be relevant to subject matter involved in the pending

litigation].) Also, in both categories the courts must consider

whether “the information cannot reasonably be obtained through

18

depositions or from nonconfidential sources.” (Life Technologies

Corp., at p. 652, ital. omitted; see also Evid. Code,

§ 1045, subds. (c)-(e).)

Moreover, when personnel records of peace officers are

involved, an additional level of protection exists—a threshold

inquiry by the court not conducted when private citizen personnel

records are sought. (Alford, supra, 29 Cal.4th at p. 1039.) Only

after this initial hurdle has been cleared—an evaluation whether

good cause has been sufficiently alleged to justify an in camera

review of potentially relevant documents—does the trial court

conduct its in camera review of peace officer personnel records

and determine, as in the case of third-party personnel records,

whether and to what extent relevant information may be disclosed

without intruding too significantly on a peace officer’s privacy.

(See Evid. Code, § 1045, subds. (b)-(d).)

3. Riske Has Demonstrated a Plausible Factual Basis

Sufficient To Establish Good Cause and Obtain an In

Camera Hearing

The City contends, even if the general procedures for

Pitchess discovery apply in this case, Riske did not demonstrate a

plausible factual scenario indicating the relevance of the

personnel records he requested and thus did not meet his burden

to show good cause.6 To the contrary, Riske’s retaliation case

6

The superior court denied Riske’s motion on the erroneous

ground that, absent misconduct, good cause could not be

established. In some circumstances we would remand for the trial

court to exercise its discretion as to whether a threshold good

cause showing has been made. When, as here, it is clear the trial

court’s discretion could only be exercised in one way, remand is

unnecessary. (Cf. Langford v. Superior Court (1987) 43 Cal.3d

19

rests on the premise that persons less qualified than he were

promoted ahead of him in retaliation for his protected

whistleblower activity. The City’s defense, at least in part, was

that the successful candidates were more qualified. Information

in the TEAMS report and performance evaluations of the

successful candidates could very well be material to Riske’s claim

the City’s stated business reason was a pretext for unlawful

retaliation. (See Ash v. Tyson Foods, Inc. (2006) 546 U.S. 454, 457

[126 S.Ct. 1195, 163 L.Ed.2d 1053] [qualifications evidence is

relevant to show pretext]; Iwekaogwu v City of Los Angeles (1999)

75 Cal.App.4th 803, 816 [“At least three types of evidence can be

used to show pretext: (1) direct evidence of retaliation, such as

statements or admissions, (2) comparative evidence, and

(3) statistics”]; Shelley v. Geren (9th Cir. 2012) 666 F.3d 599, 610

[“[e]vidence of a plaintiff’s superior qualifications, standing alone,

may be sufficient to prove pretext”].)

The City asserts Riske failed to show good cause because he

provided no specific evidence in his supporting affidavit that the

officers who were selected for the highly desirable positions were,

in fact, less qualified than he. Instead, it contends, he is engaging

in the type of “fishing expedition” the statute’s good cause

requirement was designed to prevent. (See City of San Jose v.

Superior Court (1993) 5 Cal.4th 47, 54 [the Legislature’s intent in

adopting the statutory scheme governing discovery of peace officer

personnel records “manifestly was to protect such records against

‘fishing expeditions’”].) The City’s argument fundamentally

misconceives the Pitchess discovery process.

21, 28; O’Bryan v. Superior Court of Los Angeles County (1941)

18 Cal.2d 490, 496.)

20

Good cause in the initial phase of a discovery request for

officer personnel records requires a plausible factual showing of

materiality. Riske made that showing by articulating his

whistleblower activity, a history of being maligned by other

officers for that activity and his substantial qualifications for each

of the 14 positions for which he applied. He also alleged he was

more qualified than each of the candidates selected. Further

particularity is not required. (People v. Superior Court (Johnson),

supra, 61 Cal.4th at p. 721 [requiring petitioner to know what is

located in the requested personnel records before he obtains

discovery would be impossible; “[t]he required threshold showing

does not place [the requesting party] ‘in the Catch-22 position of

having to allege with particularity the very information he is

seeking’ ”]; People v. Memro, supra, 38 Cal.3d at pp. 682, 684

[same].)

The City also asserts that personnel records of at least one

as-yet unidentified officer, the candidate selected for a detective-II

position at Pacific Division sometime after March 2014, was not

discoverable because Riske did not apply for that position after it

was reposted in March 2014. However, Riske alleged in his

complaint he applied for the position when it was first posted in

January 2014; the position was not then filled; and the position

was reposted several months later after Riske was rejected.

Contrary to the City’s contention, evidence of the successful

applicant’s qualifications could very well be material to Riske’s

claim even if he did not reapply. (Cf. McDonnell Douglas Corp. v.

Green (1973) 411 U.S. 792, 802 [93 S.Ct. 1817, 36 L.Ed.2d 668]

[prima facie case of disparate treatment established if plaintiff

proves he was qualified for position, was rejected, and after his

rejection, position remained open and employer continued to seek

applicants from persons of complainant’s qualifications]; Clark v.

21

Claremont University Center (1992) 6 Cal.App.4th 639, 663

[same].)

Finally, the City asserts the qualifications evidence is not

“material” because hiring decisions were based less on an

objective comparison of qualifications than on the subjective

impression of decision makers. This argument goes to the weight

of the evidence Riske will present to prove his case, not the

plausible factual scenario he advanced in support of his motion.

(See Warrick, supra, 35 Cal.4th at p. 1026 [“To require a criminal

defendant to present a credible or believable factual account of, or

a motive for, police misconduct suggests that the trial court’s task

in assessing a Pitchess motion is to weigh or assess the evidence.

It is not.”].)

In sum, Riske established good cause to obtain an in camera

review of the personnel records—the TEAMS reports and last two

performance evaluations—he requested.7 Whether and to what

extent any information in any of the identified officers’ personnel

file is thereafter discoverable is for the superior court to determine

in the first instance.

DISPOSITION

Let a peremptory writ of mandate issue directing the

superior court to vacate its order of December 10, 2015 denying

Riske’s motion to discover the TEAMS reports and performance

evaluations of the officers identified in his motion and to enter a

new and different order directing the City to produce those reports

7

Riske also sought personnel records pertaining to

investigations into his retaliation claim and documents pertaining

to retaliation against Lieutenant Leland Sands. Riske’s petition

does not challenge the trial court’s denial of those requests.

22

for an in camera inspection in accordance with Evidence Code

section 1045. Riske is to recover his costs in this proceeding.

PERLUSS, P. J.

We concur:

SEGAL, J.

KEENY, J. *

* Judge of the Los Angeles County Superior Court, assigned

by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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