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Court of Appeal, Second District, Division 2, California.

James RASSMANN, Louis Berry, Thomas Hindman, Terrill Coker, Daniel McCann, Mark T. Milburn, and Custodian of Records for the Los Angeles County Sheriff's Department, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. John Elbert GRAVES and Margaret A. Graves, Real Parties in Interest.

Civ. 65033.

Decided: July 07, 1982

John H. Larson, Los Angeles County Counsel, and Catherine Dziuba, Deputy County Counsel, Los Angeles, for petitioners. No appearance for respondent court. Hugh R. Manes and Carol A. Watson, Los Angeles, for real parties in interest.


Petitioners are six individual deputy sheriffs named as defendants in an assault and battery action brought by plaintiffs John and Margaret Graves, real parties in interest.   Petitioners seek an order from this court prohibiting the superior court from enforcing parts of its order granting plaintiffs' discovery of Sheriff's Department records and production of certain personnel records of some of the named defendants.   We granted an alternative writ and heard the matter.   We now grant the petition.


By unverified first amended complaint plaintiffs brought action for assault and battery against the individual deputies and against the County of Los Angeles for negligent employment of the deputies.   Nearly five years after filing their complaint plaintiffs moved to discover information from the peace officers' personnel files.   The superior court granted the request.   We hold that the order of the trial court granting the motion is too broad and unsupported in several respects.

1. Supporting Declarations Lack Proper Showing for the Order

 Penal Code section 832.7 provides in relevant part that:  “Peace officer personnel records and records maintained pursuant to Section 832.5, or information obtained from such records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Section 1043 of the Evidence Code.”  Evidence Code section 1043 provides for the method by which discovery or disclosure of peace officer personnel records may be had.   It requires that the moving party submit “(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation ․”  (Emphasis added.)   Whether “good cause” has been shown is primarily a fact question to be determined by the trial court in the exercise of its discretion, which will not be disturbed absent a clear abuse of that discretion.   Nonetheless, there are some guides as to some minimal standards which must be met to establish “good cause” for purposes of allowing discovery.

 Part of the discovery statute provides:  “A party required to show ‘good cause’ to obtain discovery under any provisions of Chapter 2 (commencing with Section 1985) or of Article 3 (commencing with Section 2016) of Chapter 3 of this title shall show specific facts justifying discovery and that the matter is relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.”  (Code Civ.Proc., § 2036, subd. (a).)  As applied here this means “․ a party who is required to show good cause under the provisions of [discovery statutes] ‘shall show specific facts justifying discovery and mere proof of the relevance of the information sought to the subject matter of the action shall not be sufficient.’   By the mandate of this section good cause ‘must now be articulated in any given case by an affirmative showing of specific facts justifying discovery.’ ”   (Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 836, 66 Cal.Rptr. 134;  emphasis added.)   With respect to petitioners Berry and Coker, the declarations submitted by plaintiffs fail to satisfy the mandatory conditions set forth in Evidence Code section 1043.   Neither declaration mentions any force used at any time by Deputies Coker or Berry.   Consequently, under the rule requiring showing good cause by affidavit (or other sworn document), information from the personnel files of these officers may not be disclosed.   (Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 127 Cal.Rptr. 664.)

No verified complaint, no affidavit nor sworn declaration of any percipient or competent witness states that Berry or Coker actually assaulted or struck either plaintiff or aided any other defendant in striking, assaulting or committing any other unlawful act against plaintiffs.   The only affidavits filed in support of the plaintiffs' discovery motion were the affidavits of plaintiffs' attorney and his associate.   Both documents are entirely hearsay documents of nonpercipient witnesses.   Both totally fail to show any actual participation in unlawful conduct on the part of defendants Berry and Coker and fail to show any other good cause for the issuance of the order with respect to Berry and Coker.   Disclosure of information from the personnel files of Berry and Coker should not be made.   They are confidential (Pen.Code, § 832.7), and privileged (Evid.Code, § 1040, subd. (b) ), and plaintiffs' showing does not meet the requirements of Evidence Code section 1043, subdivision (b)(3) and (c).

Plaintiffs have not demonstrated the relevancy, materiality or admissibility of the information sought;  but equally important, plaintiffs have not demonstrated that the necessity of the confidentiality is outweighed by the purpose sought to be accomplished.  (City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 778, 109 Cal.Rptr. 365.)

“ ‘The members of a police department must be able to rely on their confidential records and notations being preserved for their internal use ․ for if it were otherwise, the knowledge that some of the confidential information recorded might be later exposed to outside parties would have a certain and chilling effect upon the internal use of such record making.’ ․ [¶]  On the other hand confidential personnel files are vital to the development of full information on members of the police department.   Proper supervision and control of any large body of subordinates demand comprehensive personnel records which will fully and accurately reflect their performances, a demand that would be largely frustrated if personnel records became routinely available for public inspection.”  (City of Los Angeles v. Superior Court, supra, 33 Cal.App.3d 778, 785–786, 109 Cal.Rptr. 365.)

Plaintiffs assert that discovery is not to be tested by rules of relevancy and materiality of the matter sought to be discovered.   Plaintiffs argue that all they need show is that the matter sought be reasonably calculated to lead to admissible evidence.   The test of discovery is, as a general rule, ordinarily often phrased in such terms.   But this is not an ordinary case.   It is rather a case which involves the delicate balancing of two important considerations.   One is plaintiffs' right to discover facts which they presently do not know, but perhaps may conscientiously believe exist and which may be admissible and probative of the issue in trial.   The other is the need for a high degree of confidentiality of police records and the right of personal privacy of the officers.   The public's need for an effective police or sheriff's department to enforce the law and protect the public requires law-abiding officers.   They are entitled to protection from constant attacks on their integrity by unfounded claims and lawsuits against them.   Often such claims and lawsuits are brought against them simply because they happen to be lawfully performing their duty at or near an incident or even participate in some aspect thereof although with no wrong on their part.   Such is the case at least of Berry and Coker from anything that can be determined from the affidavits in support of the discovery motion.

2. Discovery of Events Before and After the Incident

 Plaintiffs claim that they are entitled to discover information concerning events covering a span of nearly 10 years.   They seek from the personnel records information relating to events subsequent to and during the course of the incident and prior thereto.   They argue this material is discoverable in order to show malicious intent and oppression and as evidence of an issue of fact such as intent, knowledge, motive, interest, absence of mistake, accident and for impeachment.   In truth what the plaintiffs admittedly seek is evidence of the character of the deputies for being racially biased and prejudiced.   Plaintiffs seek to prove this by specific acts or by the even less reliable evidence of the claims of others whether proven or unproven of such alleged acts of bias and prejudice against black people to prove the right to punitive damages and to prove the other alleged issues.   This kind of discovery which plaintiffs seek may not be had for such purpose.

The mere fact that the information which plaintiffs seek is inadmissible will not deny them discovery.   However, the fact that the information sought can only lead to inadmissible evidence is another matter and on this basis such discovery to that extent may be denied.   As indicated, plaintiffs candidly acknowledge the purpose of their discovery.   Therefore, in examining and testing the motion and requests therein together with the affidavits filed in support thereof, we may and do consider, although not exclusively, the materiality, relevancy and ultimate admissibility of (1) the matter sought to be discovered as well as (2) the evidence to which it might lead.

Evidence of a person's character offered in the form of evidence of specific instances of his conduct is inadmissible when offered to prove his conduct on a specified occasion.  (Evid.Code, § 1101, subd. (a).)

Although subdivision (b) of Evidence Code section 1101 permits evidence of a person's act, other than that in issue, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, these particular matters are not in issue.   Nothing in plaintiffs' pleadings or any declaration show factually that any of such listed matters are in issue.   To the contrary, plaintiffs clearly demonstrate that they are attempting to prove the disposition of the officers to commit racially biased acts.   But evidence of specific conduct to prove disposition to commit such acts is specifically prohibited by Evidence Code section 1101, subdivision (b).   The character of the defendants is not in issue.   The issue is simply whether defendants assaulted and battered the plaintiffs.   As to the individual defendants, such information relating to specific acts, based upon what is demonstrated in the affidavits of the attorney and his associate, is not discoverable from the personnel records of the individual defendants.  (City of Los Angeles v. Superior Court, supra, 33 Cal.App.3d 778, 109 Cal.Rptr. 365.)

 As to the admissibility and availability by discovery of the evidence of specific incidents involving excessive force by the police officers, such evidence may be relevant to show negligent employment or supervision by the employing entity.   It is properly discoverable.   However, this information must be limited to events prior to the incident underlying the lawsuit.  (Id. at p. 786, 109 Cal.Rptr. 365.)   Only such prior incidents would be relevant to that particular issue.   If evidence is not relevant to the pending litigation, it may not be obtained from the peace officers' records.  (Evid.Code, § 1045.)

3. Information Concerning Complaints of Allegedly False Statements or Claims Made by the Deputies is not Discoverable

 Plaintiffs allege that this material will tend to be useful as impeaching evidence as to the credibility of defendants as witnesses.   As evidence of the credibility of witnesses, such evidence is inadmissible.   (Evid.Code, § 787;  People v. Thompson (1979) 98 Cal.App.3d 467, 159 Cal.Rptr. 615.)   Since the kind of information sought is sought for its own sake for the purpose of using it as evidence which is inadmissible rather than as a lead, it is sought for an improper purpose and is not discoverable.   (Tyler v. Superior Court (1980) 102 Cal.App.3d 82, 162 Cal.Rptr. 82.)

4. The In-Camera Examination

 With reference to the matter of the examination by the trial court of the personnel records, the record before us is somewhat indefinite.   The custodian of the records from the Sheriff's Information Bureau, Joseph Klempin, appeared with counsel for defendants.   Apparently the trial court held an in camera proceeding in chambers.   There the court asked specific questions which were answered by counsel for defendants by reading from the individual records.   We are not sure from this record whether or not the trial judge herself made a thorough examination of the personnel records in order to determine the presence of all the criteria upon which discoverability depends.   It appears that to some extent the trial court determined that the materials ordered produced were relevant and were not privileged, as explained in our discussion above, the trial court erred in some respects in its determination of relevancy and privilege.   It is not clear to what extent all of the material which was subjected to the court's scrutiny was deemed relevant and/or privileged.   Although the trial court may have performed its function correctly as to all of the material presented, except in the particulars which we have explained above, nonetheless, an order from this court requiring the trial court to determine relevancy, materiality and privilege of the specific and several items will not unduly burden the court with repetitious work nor prejudice either party.

It is ordered that a peremptory writ of mandate issue commanding the trial court to:

I. Vacate the order of April 2, 1982 granting the motion of the plaintiffs pursuant to Evidence Code section 1043 and enter a new and different order;

(a) Denying disclosure of information from the personnel files of petitioners Louis Berry and Terrill Coker;

(b) Denying disclosure of information concerning complaints against petitioners and each and all of them, which complaints were made subsequent to the occurrence of the incident which forms the basis for the pending action;

(c) Denying disclosure of information concerning the alleged making by petitioners of allegedly false statements, reports, claims, records and/or entries;

II. Directing the trial court to personally examine in camera the records from which information is sought to be disclosed to determine whether the requested information is relevant to the pending action and to determine whether the requested information is protected from disclosure by reason of the privilege established by Evidence Code section 1040;  and

III. Directing that if the trial court finds the information and/or records are not relevant to the subject matter of the pending action, or if it finds that the information and/or records are privileged under Evidence Code section 1040, the trial court shall not order their disclosure.   The trial court shall be directed to make formal findings of fact and conclusions of law on such matters.

BEACH, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.

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