Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. John Shepard Wiley Jr., Judge., Los Angeles County Super. Ct. No. BC422252
Burke Williams & Sorensen, Ronald F. Frank, Robert J. Tyson, Michele L. Graeler; and Kristin A. Pelletier for Petitioner City of Burbank.
Stone Busailah and Michael P. Stone for Petitioners Jay Jette and Eric Rosoff.
No appearance for Respondent.
Law Offices of Gregory W. Smith, Gregory W. Smith; Benedon & Serlin, Douglas G. Benedon, Gerald M. Serlin; and Christopher Brizzolara for Real Party in Interest.
ALDRICH, J.
INTRODUCTION
Real party in interest William Taylor sued his former employer, petitioner City of Burbank, for retaliation, based on allegations he was demoted and eventually fired from the police department for reporting sexual harassment and racial discrimination. To support his cause, Taylor served various discovery motions under Evidence Code sections 1043 and 1045 seeking personnel records of Burbank Police Officers Jay Jette and Eric Rosoff. Claiming that the motions circumvented the statutory scheme regarding disclosure of those records by revealing their contents, Burbank and the officers asked the trial court to seal Taylor’s motions. The trial court refused. We hold that the motions should be sealed, and we therefore grant the petition.
BACKGROUND
I. Taylor sues the City of Burbank for retaliation.
Real party in interest Taylor was Burbank Police Department’s deputy chief of police. In September 2009, he sued the City of Burbank for retaliation under Labor Code section 1102.5 and for retaliation in violation of California’s Fair Employment and Housing Act. The complaint alleged that Taylor reported allegations of sexual harassment by a police department employee; he complained that Black and Hispanic employees were being fired because of their race; and he had asked outside agencies to investigate a theft at the police department that Taylor suspected someone in the department committed. For these actions, Taylor was demoted to captain. Taylor was ultimately fired in June 2010, and he therefore amended his complaint in January 2011.
II. Taylor requests the personnel records of Officers Jette and Rosoff.
In August 2010, Taylor served twodiscovery motions seeking personnel records of Burbank Police Officers Jette and Rosoff, but Taylor agreed not to file the motions until the officers and Burbank could file a request to file the motions under seal. The officers filed the motion for protective order, and Taylor’s discovery motions were lodged under seal.
III. The trial court denies the motion for a protective order to seal Taylor’s discovery motions.
On December 15, 2010, the trial court denied the motion for a protective order and held that Taylor could file the motions unsealed. The court stated three reasons for denying the motion to seal the discovery motions: first, the “highly important principle of American jurisprudence of public access to courts”; second, Taylor’s “account of the world is certain to be aired at trial”; and, third, the court did not find an “overriding or strong public interest in placing material under seal that, by my analysis, inevitably would come out at trial. It would come out in the form of witness testimony subject to cross-examination.”
This petition followed. We issued a stay of the trial court’s order and issued an order to show cause. We now grant the petition and issue a writ.
DISCUSSION
IV. Taylor’s discovery motions should be filed under seal.
Burbank and Officers Jette and Rosoff argue that Taylor’s discovery motions subvert the statutory process by which peace officers’ personnel records may be obtained by revealing, in the motions themselves, the very information they seek. Burbank and the officers therefore contend that Taylor’s discovery motions are “confidential” and should have been sealed pending a ruling on the discoverability of the actual records.
In any case, civil or criminal, in which discovery or disclosure of a peace officer’s personnel records are sought, the party seeking disclosure must file a written motion, known in the criminal context as a Pitchess motion, that, among other things, describes the information sought and states good cause for the discovery, “setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(3); see generally, Evid. Code, §§ 1043, 1045; Pen. Code, §§ 832.5, 832.7, 832.8; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The affidavit setting forth good cause “may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information [citation].” (Mooc, at p. 1226.) If the moving party fulfills these requirements, then the court examines the records in camera. (Ibid.) This process balances the conflicting interests of the moving party’s right to a fair trial and the officer’s interest in privacy. (Id. at p. 1227.) An officer thus has a conditional privilege in his or her personnel records. (Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 614.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
This conditional privilege has been broadly interpreted. In Hackett v. Superior Court (1993) 13 Cal.App.4th 96, 98, the plaintiff in a suit for damages against Hackett served interrogatories asking for Hackett’s home address, telephone number, place of birth, driver’s license number, and educational background. Hackett found that the conditional privilege applies to all information in an officer’s file “without regard to whether a particular piece of information can also be found elsewhere.” (Id. at p. 97; see City of San Diego v. Superior Court (1981) 136 Cal.App.3d 236 [trial court granted partial disclosure of one incident in officers’ records; plaintiff could not ask the officers in deposition about other undisclosed incidents]; Fagan v. Superior Court, supra, 111 Cal.App.4th at p. 615 [district attorney who reviewed confidential peace officer personnel files when investigating police misconduct was obligated to maintain their confidentiality absent judicial review under Evidence Code section 1043 of the relevance of the information to a criminal or civil action].)
Thus, under the statutory scheme and Hackett, even if conditionally privileged information can be gleaned from another source, it nonetheless remains conditionally privileged and can only be obtained by and disclosed after compliance with Evidence Code section 1043 et seq. If information is conditionally privileged, it follows that a party cannot reveal it absent filing the appropriate discovery motion and after an in-camera hearing. A party therefore cannot disclose the conditionally privileged information, even in the very discovery motion that seeks to obtain it.
But here Taylor filed very detailed discovery motions seeking Officers Jette’s and Rosoff’s personnel files. Those motions contain, for example, names, dates, and the substance of communications between people in the department. Taylor was Burbank’s deputy chief of police. As such, he was involved in internal affairs investigations and events that are the subject of the lawsuit, including an investigation into a burglary at the Burbank police department allegedly involving Officer Rosoff. Based on Taylor’s rank and intimate involvement in these events, it is a reasonable inference he has knowledge of the officers’ personnel files. It is a further reasonable inference that the information or allegations about the officers that Taylor recites in his discovery motion are in the officers’ personnel files.
It is therefore proper for the discovery motions to be sealed. A trial court has the inherent discretion to seal an affidavit filed in support of amotion filed under Evidence Code section 1043 et seq. (Garcia v. Superior Court (2007) 42 Cal.4th 63.) In Garcia, the defendant filed a Pitchess motion accompanied by defense counsel’s sealed declaration, which contained attorney-client and work product privileged information. (Id. at p. 68.) A redacted declaration was served on the City. The trial court found that some of declaration was privileged, but that other portions could be given to the City under the safeguard of a protective order. The California Supreme Court found that nothing in the relevant statutes precludes filing a Pitchess affidavit under seal, rather, a trial court has “inherent discretion to allow documents to be filed under seal in order to protect against revelation of privileged information.” (Garcia, at pp. 71-72; see also Evid. Code, § 1045, subd. (d) [“Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression”].) Garcia thus arguably articulated a broad principle that applies here: a trial court has the discretion to seal matters containing privileged matter in connection with discovery motions filed under Evidence Code sections 1043 and 1045.
The parties dispute what is the proper standard of review, with Taylor arguing it is an abuse of discretion and Burbank and the officers arguing it is de novo. We need not decide which standard of review applies, because the outcome would be no different under either standard.
The trial court, however, in declining to seal the discovery motions noted that the information in the motions will likely come out at trial. That may very well be true. In any event, the statutory process cannot be bypassed. The court also cited the notion that court proceedings are generally open to the public. Our Legislature, however, in enacting the discovery statutes at issue, created a “conditional exception” to that general rule: peace officer personnel files are discoverable if the party seeking them satisfies the statutory mandates. Taylor cannot reveal conditionally privileged information under the guise of seeking it, without first complying with the statutory mandates.
We conclude that the trial court should have granted Burbank’s and the officers’ request to seal Taylor’s discovery motions. We therefore grant the petition and issue a writ ordering the trial court to file Taylor’s discovery motions under seal.
DISPOSITION
The petition for writ of mandate, prohibition or other appropriate relief is granted. A writ of mandate shall issue directing the trial court to vacate its order denying the motion to seal Taylor’s discovery motion and to enter a new order granting the motion to seal. The stay issued on January 19, 2011 is lifted and the motions, while filed under seal, may be placed on calendar. The parties are to bear their own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.