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TODD P. EMANUEL (SBN 169301)
PAMELA E. GLAZNER (SBN 247007) '
EMANUEL LAW GROUP
702 Marshall Street, Suite 400
Redwood City, California 94063 _
SAN
I L- ECOUNTY
FMATFO D
Telephone: (650) 369.8900
Facsimile: (650) 369.8999 AUG 2 5 2016
(OmNQCD-POJNA
Attorneys for Plaintiff
JOSE VERDUSCO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
._;
CASE NO. CIV53774O
._;
JOSE VERDUSCO,
DECLARATION OF COUNSEL IN
__x
Plaintiff, SUPPORT OF PLAINTIFF JOSE
VERDUSCO’S PITCHESS MOTION
..;
VS.
ZT SePtember 2.2. 2016
._x
ANDY MAR, COUNTY OF SAN MATEO 2?“?
'me- At"!
and DOES 1-20 inclusive 61.00
LVi/l -x
Dept:
+844
__x
Defendants.
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DECL
1
Declaration
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162701
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CDNCDCDLOJNAOQOCDNODU'ILOJNAO
l, Todd P. Emanuel, hereby declare as follows: illlllllllllllllllll
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1. l am an attorney, duly licensed to practice law in California, at the Emanuel
P\J
Law Group, counsel for Plaintiff Jose Verdusco (“Plaintiff”) in this action. lf called as a
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witness, l could and would testify competently to the matters Stated in this declaration.
P\)
2. As alleged in the First Amended Complaint, on or about April 13, 2015,
F\J
Plaintiff was in Courtroom 7B of the Superior Court of California, County of San Mateo,
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located at 400 County Center, Redwood City, California, performing his janitorial duties.
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Two other people — a court clerk and a court reporter — were present in the courtroom, and
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the clerk was a percipient witness to the event. Without cause or provocation, Defendant
I\)
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION
[CASE NO. 537740]
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San Mateo County Sheriff's Office Deputy Andy Mar (“Defendant Mar"), who was stationed
as a bailiff in that courtroom, unholstered his duty firearm and aimed it directly at Plaintiff.
Defendant Mar’s finger was on the trigger, and the firearm was loaded. Defendant Mar
tracked Plaintiff by continuously pointing his firearm at Plaintiff as Plaintiff ducked and
(DmNCDU'l-POONA
moved to avoid being within the sights of the firearm. Plaintiff pleaded with Defendant Mar
to put his firearm away, to which Defendant Mar responded to Plaintiff, “You want some
South Carolina justice," referring to recent events of unprovoked law enforcement
shootings of minority civilians. Alarmed and scared, Plaintiff escaped courtroom 7B
through the back employee entrance. On an occasion prior to this incident, Defendant
.
_\
O Mar saw Plaintiff on the first floor of the courthouse and stated to Plaintiff, “They hire any
_\ —\
Mexican here,” referencing Defendant Mar’s perception of Plaintiff's race, color, ancestry
_\
N and/or national origin. Attached as Exhibit 1 is a true and correct copy of the Amended
_\ O)
_
Complaint filed on March 14, 2016.
_\ -l>~
3. As further alleged in the Amended Complaint, shortly after Defendant Mar
_\ O1
assaulted and threatened Plaintiff, the matter was reported to the San Mateo County
_\ O)
Sheriffs Office (“SMCSO”). Two of Defendant Mar’s fellow SMCSO sheriffs officers,
_\ \l Lieutenant Ken Jones and Sergeant Dwayne Earles, were instructed to go to Courtroom
_\
CD 7B and to address the situation with Defendant Mar. However, the SMCSO had no
_\
(O intention of making Defendant Mar the subject of a criminal investigation or referring the
NO matter to a different law enforcement agency. ln fact, Sergeant Earles attempted to
N —‘~
protect Defendant Mar from making any incriminating statements by forcefully telling him
|\) N to be quiet. Despite those efforts, Defendant Mar told Lieutenant Jones and Sergeant
N OJ Earles that he knew why they had come to see him. Defendant Mar admitted to Sergeant
I
NA Earles that he “did it.”
N U1 4. l am informed and believe, based 0n the San Mateo County District Attorney’s _
N O) Office Investigation Report (“Investigation Report"), that Defendant Mar was not regularly
N \l assigned as a bailiff in the courthouse, and instead was primarily stationed in a
N oo
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION
[CASE NO. 537740]
correctional facility where he does not carry a firearm. Attached as Exhibit 2 is a true and
correct copy of the San Mateo County District Attorney's Office Investigation Report,~
redacted in accordance with Penal Code section 1054.2 and to eliminate other sensitive
personal information.
(OQNCDCH-bCON-é
5. I am informed and believe, based on the Investigation Report, that the
following facts occurred: The court clerk, Alma De La Rosa, witnessed the events. De La
Rosa saw, and later confirmed in text messages sent to Plaintiff shortly after the incident,
that she saw Defendant Mar with his firearm out and that he was pointing it in the general
direction of Plaintiff.
6. l am informed and believe, based on the Investigation Report, that the
following facts occurred: On April 13, 2015, the day of the incident, Lieutenant Jones and
Sergeant Earles conducted an internal investigation of the incident. After interviewing the
court clerk and court reporter, Lieutenant Jones and Sergeant Earles met with SMCSO
Undersheriff Carlos Bolanos and the SMCSO determined to have Defendant Mar leave for
the day. Thereafter, Lieutenant Jones and Sergeant Earles contacted Defendant Mar to
instruct him to leave. On information and belief, while Lieutenant Jones spoke to the judge
separately, Sergeant Earles relayed the news to Defendant Mar that he was to leave for
NMNNNNNNNA-XA-‘LAA-A-X-XA
the day. During a second meeting among Undersheriff Bolanos, Lieutenant Jones and
mNCDUI-POONAOCOOJNODU'l-PQJNAO
Sergeant Earles, still on the day of the incident, and after Defendant Mar had been told to
leave for the remainder of day, Sergeant Earles twice relayed that Defendant Mar said, “I
did it.”
7. l am informed and believe, based on the Investigation Report, that the
following facts occurred: Also on the day of the incident, Lieutenant Jones and Sergeant
Earles stated to Court Human Resources Director Ron Mortenson that the matter was
going to be referred to the SMCSO’s Internal Affairs Department and further stated to
Mortenson that Defendant Mar would be immediately reassigned so that he would not be
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION
[CASE NO. 537740]
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present in the courts. SMCSO Sergeant Christina Corpus was assigned to conduct further
investigation 0n behalf of the Internal Affairs Department.
8. l am informed and believe that the following facts occurred: After the incident,
Plaintiff was assured that Defendant Mar would not be present in the courthouse. So, on
the day following the incident, Plaintiff went to the San Mateo County District Attorney’s
(OGJNODU'ILOONA
Office to report the incident. Plaintiff also intended to try to attend to his duties given that
he expected to be safe from harm. However, while Plaintiff was eating some lunch in the
cafe in the basement of the coUrthouse, Plaintiff saw Defendant Mar, in full uniform and
‘
with his hand on service weapon, looking directly at Plaintiff. Despite knowing the details
from the investigation conducted by Undersheriff Bolanos, Lieutenant Jones and Sergeant
Earles, one or more empIOyees of the County of San Mateo assigned and/or permitted
Defendant Mar to work an overtime shift the day after the incident in the transportation unit
— i.e., the unit in which sheriffs deputies work as bailiffs in the courthouse with service
weapons.
9. l am informed and believe, based on the Investigation Report, that the
following facts occurred: Sergeant Earles equivocally stated to the district attorney’s office
investigator on April 15, 2015, two days after the incident, that Defendant Mar either said,
“l did it” or “l didn't do it,” but he was so forcefully telling Defendant Mar to be quiet that he
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could not be certain. On April 21, 2015, Sergeant Earles changed his statement to the
mNODCJ'l-b-OONAOQOOONOU'I-bWN-AO
San Mateo County District Attorney’s Office to state that Defendant Mar had in fact said, “I
I
did it.”
10. With these additional facts, Plaintiff intends to allege that the County of San
Mateo is vicariously liable for the negligent acts of SMCSO officers who permitted
Defendant Mar to return to work the day following the incident, whereupon Plaintiff was re-
traumatized by seeing him in the courthouse, in uniform and with his hand on his duty
weapon.
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DECLARATION OF COUNSEL lN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION
‘
[CASE NO. 537740]
11. Based on statements Defendant Mar made to the San Mateo County District
Attorney’s Office investigators, as memorialized in the InvestigationReport, l am informed
Iand believe that Defendant Mar claims the following facts: On April 13, 2015, Defendant
Mar upholstered his duty weapon - which was loaded with a roUnd' in the chamber - and
l
iaimed it at the wall approximately five (5) feet from Plaintiff and looked through the sights.
(DOONO'JUI-h-QMA
Defendant Mar was merely taking the opportunity to become more comfortable with the
newly-issued service weapon and holster, and to obtain muscle memory in using it.
Defendant Mar had received a relatively small amount of training. Defendant Mar had
been told during training that theofficers would have to practice with the new holster to
become comfortable with it. Defendant Mar was trained to practice with his service
;
weapon in a safe and secure location. Defendant Mar was checking the functionality of
his service weapon and its holster. Defendant Mar was trained to check his service gear
before starting a shift. Other deputies play with their guns in court and in other work
areas.
12. As a result of his conduct, which is the subject of this civil action, the San
Mateo County District Attorney charged Defendant Mar with one violation of Penal Code
section 417(a)(2)(A), in People v. Andy Mar, Case N0. SM397830A. On information and
mNQCH-wAOCOCXJNCDm-bOJNAC)
belief, Defendant Mar’s criminal trial began on or about August 22, 2016. Further, on
information and belief, Defendant Mar was eventually removed from his duties as a
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courtroom bailiff.
13. Defendant Mar answered the Amended Complaint with a general-denial on
April 13,2016. _
_
I
On.
14. May 26, 2016, Judge Joseph Scott granted a demurrer by Defendant
County of San Mateo to Plaintiff's Amended Complaint with leave to amend until August
22, 2016 in order to allow Plaintiffs counsel to take Defendant Mar’s deposition after the
conclusion of the criminal trial for the purpose of potentially discovering facts necessary to
amend the complaint against Defendant County of San Mateo.
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION
[CASE NO. 537740]
15. On August 5, 2016, by stipulation of all parties, the Court imposed a stay of
discovery, including on the filing of this Motion, until August 22, 2016, and granted Plaintiff
‘an extension until October 24, 2016 to file any second amended complaint.
16. In order to complete the deposition of Defendant Mar, potentially amend the
i
complaint against Defendant County of San Mateo, and to prepare Plaintiffs case,
(OCDNCDU'ILOJNA
Plaintiffs counsel requires information from Defendant Mar's personnel record.
17. The contents of Defendant Mar’s personnel record related to the following
I
topics are material and relevant to this litigation and should be disclosed:
a. Documentation of any training Defendant Mar received regarding the
appropriate use of firearms prior tothe incident on April 13, 2015.
b. Documentation of any racial and/or ethnic sensitivity training
Defendant Mar received prior to the incident on April 13, 2015.
c. Documentation of Defendant Mar's assignments by SMCSO, in the five
years prior to the incident on April 13, 2015 and to the present, including but not
limited to his assignments in the transportation unit and in any correctional facilities.
NMNN-AA-A-AA-XAAA-L
d. Any and all documents maintained in either the general personnel file
(ION-\OCOCDNOU'I-b-OON-AO
of Defendant Mar or in a separate file pertaining to the April 13, 2015 incident that is
the subject of Plaintiffs action, including but not limited to complaints made in
accordance with California Penal Code section 832.5, by any private citizen, fellow
officer, arrestee or attorney, whether or not deemed frivolous, unfounded or
exonerated. This request specifically includes any and all documents concerning
any internal investigation regarding the April 13, 2015 incident that is the subject of
Plaintiff's action, including but not limited to any investigation conducted pursuant to
NA
Penal Code section 832.5, the investigation conducted by SMCSO Undersheriff
Carlos Bolanos, Lieutenant Ken Jones and Sergeant Dwayne Earles, and the
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(DNOUCD
investigation conduCted by the Internal Affairs Department.
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION
[CASE NO. 537740]
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e. Any and all documents maintained in either the general personnel file
of Defendant Mar or in a separate file regarding any complaint received by the
SMCSO, including but not limited to complaints made in accordance with California
Penal Code section 832.5, by any private citizen, fellow officer, arrestee or attorney
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naming Defendant Mar, whether or not deemed frivolous, unfounded or exonerated,
and alleging any inappropriate behavior by Defendant Mar, including but not limited
to (1) the inappropriate use of a firearm, (2) any aggressive actions or excessive
force, and (3) behaving in a racially and/or ethnically insensitive manner from the
five years prior to April 13, 2015 incident alleged in Plaintiffs lawsuit until the
'
present.
f. Any and all documents maintained in either the general personnel file
of Defendant Mar or in a separate file regarding any complaint received by the
SMCSO, including but not limited to complaints made in accordance with California
Penal Code section 832.5, by any private citizen, fellow officer, arrestee or attorney
naming Defendant Mar, whether or not deemed frivolous, unfounded or exonerated,
and alleging fabrication of evidence, dishonesty, filing of false police reports or
testifying falsely from five years prior to the April 13, 2015 incident alleged in
NMNNNNNNNA-AA-XA-XA-XAA
Plaintiff's lawsuit until the present. g
CDNOUCfi-hOJNAOCOmNQCD-PWNAO
g. The names, addresses and telephone numbers of all persons
submitting complaints identified in Paragraphs 17.d-f above.
h. The dates of the filing of each of the complaints identified in
Paragraphs 17.d-f above.-
i. The names, addresses and telephone numbers of all persons
interviewed by SMCSO during the investigation of each of the complaints identified
in Paragraphs 17.d-f above.
j. All records regarding the investigation of any of the complaints
identified in Paragraphs 17.d-f above, and the outcome of any investigation,
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION
[CASE NO. 537740]
including any discipline imposed, and the observations, analysis and conclusions of
the investigating officers.
k. Reports by psychologists, psychiatrists, therapists or consultants
pertaining to any of the complaints identified in Paragraphs 17.d-f above.
(OQNQLDACDNA
l. Any documentation that Defendant Mar deviated from any policy or
procedure imposed by the SMCSO upon SMCSO deputies both generally and
specifically including Defendant Mar.
m. Any and all indemnity agreements between and/or applicable to
Defendant County of San Mateo and Defendant Mar.
_\
O n. If Deputy Andy Mar has been employed as a peace officer with any
A —\
other agency in the five years prior to April 13,2015, the name and address of the
N agency.
._\_\
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18. The documents sought in Paragraphs 17.a-d and 17.g-k relating to or bearing
_\
L j on the April 13, 2015 incident that is the subject of Plaintiff’s lawsuit are directly relevant to
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this litigation. More specifically, documentation of training Defendant Mar received
regarding the use of firearms and racial and/or ethnic sensitivity are clearly material to his
'
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behavior and whether he was acting negligently vis-a-vis departmental policy during the
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events and causes of action, particularly the Fifth Cause of Action for a violation of the
Ralph Civil Rights Act (Civil Code, § 51.7), alleged in the First Amended Complaint. Also,
_\
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Deputy Mar’s assignments as a deputy may lead~ to the discovery of admissible evidence
N —\
of whether Defendant Mar was likely toact negligently in his assignment as a courtroom
NN bailiff. This is relevant to whether Defendant Mar should have been even more cautious in
|\J 00
his duties, as well as whether Defendant County of San Mateo had any inkling that
i
N Defendant Mar would act negligently as a courtroom bailiff prio'r to the April 13, 2015
(huh
N incident.
N O) 19. .
Additionally, as requested in Paragraphs17.d and 17.g-k, any and all
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investigations of the April 13, 2015 subject incident, including but not limited to any
N-N
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION
[CASE NO. 537740]
,f’ "
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investigation conducted pursuant to Penal Code section 832.5, the investigation
‘conducted by SMCSO Undersheriff Carlos Bolanos, Lieutenant Ken Jones and Sergeant
Dwayne Earles, and the investigation conducted by the Internal Affairs Department, are,
per se, material and relevant to the litigation regarding the very same incident. ‘Moreover,
as the allegations delineated above in Paragraphs 6-9 demonstrate, SMCSO knew and
cooovoatn-booro
may have documented in Defendant Mar’s personnel files that he had admitted to his
conduct, which had been corroborated by Plaintiff and ‘at least one other witness, yet
personnel in the SMCSO assigned Defendant Mar to be in the courthouse where Plaintiff
was employed very next day. The statements and conduct of the personnel investigating
'
the incident, who are from the same agency employing Defendant Mar and know him well,
are relevant to Plaintiffs lawsuit because they may lead to the discovery of admissible
evidence regarding what the County of San Mateo knew about Defendant Mar and
=
whether its employees acted negligently in permitting‘ Defendant Mar to return to work in
the courthouse the very next day. Furthermore, the observations, analysis, opinions and
conclusions of the investigating officers bear on the credibility of all involved in the case,
I
including Sergeant Earles who initial investigated the incident, equivocated as to
Defendant Mar’s statement that “l did it,” and changed his statement to reflect that
mNODUT-tAOCOmNCDU'l-POJN-Ao
Defendant had so stated. Finally, in Paragraph 17.m, Plaintiff seeks any indemnity
agreements between the Defendant Mar and his employer, the County of San Mateo. Any
NMNNNNNNN-LA-AA-LAAAAA
such agreement is material to the scope of Defendant CSM's liability, if any, for Defendant
Mar’s conduct in this case.
20. The information regarding prior incidents of misconduct and deviations from
policy requested in Paragraphs 17.e and 17.g-l above is material and relevant based on
the facts set forth above in Paragraph 11. This information is material and relevant to this
litigation because it may lead to the discovery of admissible evidence that Defendant Mar
was aware that his behavior was inappropriate on the date in question, and therefore that
it was neither a mistake nor an aCcident. This information may also establish that
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DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION
[CASE NO. 537740]
\.
\
/ \
‘Defendant Mar had a habit or custom of behaving inappropriately with his firearm or other
weaponry, or in a racially and ethnically insensitive manner. Given, as set forth above in
Paragraph 4, Defendant Mar’s usual placement in correctional facilities where deputies do
_
not carry firearms, Plaintiff has good cause tO believe there may be some such
A
(OQNODU'l-bO-‘INA
documents. Past instances of misconduct may also support Defendant Mar’s motive or
intent to behave as he did on the day of the incident, including in a racially and/ ethnically
abhorrent manner in this case, which is particularly relevant to Plaintiff's cause of action
under the Ralph Civil Rights Act (Civil Code, § 51.7). This information may both provide
evidence on the ultimate facts to be proved against Defendant Mar, and also undermine
I
O Defendant Mar’s credibility as to his behavior on the date of the subject incident. The
-\
name and address Of any other agency with which Defendant Mar has been employed as
N . a peace officer in the five years prior to April 13, 2015 as requested in Paragraph 17.n is
00
material for Plaintiff to seek similar records Of prior misconduct.
h 21. With respect to the prior incidents of dishonesty, the documents and ,
U'l
information sought in Paragraphs 17.f-k above are material and relevant to this litigation
O)
because they bear on the credibility of a key witness in this case — Defendant Andy Mar,
\l whose conduct forms the basis of this lawsuit. Moreover, as set forth above in Paragraphs ‘
2, 5 and 11, Defendant Mar’s credibility is at issue because, while Defendant Mar claims
NMNNNNNNNAAAAA-A-LA-A-A
CD
(O that he pointed his firearm approximately five (5) feet from Plaintiff, Plaintiff saw Defendant
O Mar point it directly at him and independent witness, courtroom clerk De La Rosa, saw
—\
Defendant Mar point it in Plaintiffs general direction. Defendant Mar having behaved
dishonestly in any other instance bears on Defendant Mar’s credibility directly. Witnesses
OOr,n-r>.<_.ow-Ao
Complaint to show such true, names and capacities When they have been determined.
5. Plaintiff is informed and ‘believes, and upon such information and belief
l
alleges that at, all relevant times herein mentibned, each of; the Defendants, including
Defendants CSM and MAR, was the partner, joint venturer, alder .and .abettor, agent,-
.__\_
(O employee and/or representative of each .of the remaining Defendants and was acting at
least in part within the course and scope of said relationship. Whenever a defendant ‘is.
the: subject of any charging allegation by Plaintiff, it shall be- deemed that the
NN'MIN“N.
Defendant's DOES 1 through '20, inclusive, and each of them, are likewise. subject'to this
charging allegation.
6.. Plaintiff filed a government tort claim pursuant to GoVer'nment Code
'Qo'=\~|o_)_01-POJ§N‘—‘~O
section 900 et seq. on June 15, 2015. By ‘letter dated July 221,. 2015, Defendant (ISM
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notified Plaintiff that .CSM’s- Board of ‘Supervisors rejected Plaintiffs claim on July 21,
2015.. Plaintiffihas' timely filed this ‘action pursuant to Governmenf'Code section 94.5.6.
1&1
FirstlAinended Complaint -C'a'se No. crvssmo
2
FACTS COMMON IO ALL CAUSES ‘0F ACTION‘
‘7., ~_At"the 2time of the incident alleged herein, Plaintiff was employed: by the
Chunty of San Mateo as a lead custodian, assigned to clean various courtrooms,~
'workstat'ioris. ofoourt personnel, and private judge's: chambers —'of‘th'e ‘Stiperlidrr' Court Oi‘
Preview
TODD P. EMANUEL (SBN 169301) PAMELA E. GLAZNER (SBN 247007) ' EMANUEL LAW GROUP 702 Marshall Street, Suite 400 Redwood City, California 94063 _ SAN I L- ECOUNTY FMATFO D Telephone: (650) 369.8900 Facsimile: (650) 369.8999 AUG 2 5 2016 (OmNQCD-POJNA Attorneys for Plaintiff JOSE VERDUSCO SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO ._; CASE NO. CIV53774O ._; JOSE VERDUSCO, DECLARATION OF COUNSEL IN __x Plaintiff, SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION ..; VS. ZT SePtember 2.2. 2016 ._x ANDY MAR, COUNTY OF SAN MATEO 2?“? 'me- At"! and DOES 1-20 inclusive 61.00 LVi/l -x Dept: +844 __x Defendants. ' ._s civsamo DECL 1 Declaration -A 162701 l -L CDNCDCDLOJNAOQOCDNODU'ILOJNAO l, Todd P. Emanuel, hereby declare as follows: illlllllllllllllllll P\J 1. l am an attorney, duly licensed to practice law in California, at the Emanuel P\J Law Group, counsel for Plaintiff Jose Verdusco (“Plaintiff”) in this action. lf called as a f\J witness, l could and would testify competently to the matters Stated in this declaration. P\) 2. As alleged in the First Amended Complaint, on or about April 13, 2015, F\J Plaintiff was in Courtroom 7B of the Superior Court of California, County of San Mateo, I\J located at 400 County Center, Redwood City, California, performing his janitorial duties. I\J Two other people — a court clerk and a court reporter — were present in the courtroom, and I\J the clerk was a percipient witness to the event. Without cause or provocation, Defendant I\) 1 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION [CASE NO. 537740] ' /T\_ \J San Mateo County Sheriff's Office Deputy Andy Mar (“Defendant Mar"), who was stationed as a bailiff in that courtroom, unholstered his duty firearm and aimed it directly at Plaintiff. Defendant Mar’s finger was on the trigger, and the firearm was loaded. Defendant Mar tracked Plaintiff by continuously pointing his firearm at Plaintiff as Plaintiff ducked and (DmNCDU'l-POONA moved to avoid being within the sights of the firearm. Plaintiff pleaded with Defendant Mar to put his firearm away, to which Defendant Mar responded to Plaintiff, “You want some South Carolina justice," referring to recent events of unprovoked law enforcement shootings of minority civilians. Alarmed and scared, Plaintiff escaped courtroom 7B through the back employee entrance. On an occasion prior to this incident, Defendant . _\ O Mar saw Plaintiff on the first floor of the courthouse and stated to Plaintiff, “They hire any _\ —\ Mexican here,” referencing Defendant Mar’s perception of Plaintiff's race, color, ancestry _\ N and/or national origin. Attached as Exhibit 1 is a true and correct copy of the Amended _\ O) _ Complaint filed on March 14, 2016. _\ -l>~ 3. As further alleged in the Amended Complaint, shortly after Defendant Mar _\ O1 assaulted and threatened Plaintiff, the matter was reported to the San Mateo County _\ O) Sheriffs Office (“SMCSO”). Two of Defendant Mar’s fellow SMCSO sheriffs officers, _\ \l Lieutenant Ken Jones and Sergeant Dwayne Earles, were instructed to go to Courtroom _\ CD 7B and to address the situation with Defendant Mar. However, the SMCSO had no _\ (O intention of making Defendant Mar the subject of a criminal investigation or referring the NO matter to a different law enforcement agency. ln fact, Sergeant Earles attempted to N —‘~ protect Defendant Mar from making any incriminating statements by forcefully telling him |\) N to be quiet. Despite those efforts, Defendant Mar told Lieutenant Jones and Sergeant N OJ Earles that he knew why they had come to see him. Defendant Mar admitted to Sergeant I NA Earles that he “did it.” N U1 4. l am informed and believe, based 0n the San Mateo County District Attorney’s _ N O) Office Investigation Report (“Investigation Report"), that Defendant Mar was not regularly N \l assigned as a bailiff in the courthouse, and instead was primarily stationed in a N oo 2 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION [CASE NO. 537740] correctional facility where he does not carry a firearm. Attached as Exhibit 2 is a true and correct copy of the San Mateo County District Attorney's Office Investigation Report,~ redacted in accordance with Penal Code section 1054.2 and to eliminate other sensitive personal information. (OQNCDCH-bCON-é 5. I am informed and believe, based on the Investigation Report, that the following facts occurred: The court clerk, Alma De La Rosa, witnessed the events. De La Rosa saw, and later confirmed in text messages sent to Plaintiff shortly after the incident, that she saw Defendant Mar with his firearm out and that he was pointing it in the general direction of Plaintiff. 6. l am informed and believe, based on the Investigation Report, that the following facts occurred: On April 13, 2015, the day of the incident, Lieutenant Jones and Sergeant Earles conducted an internal investigation of the incident. After interviewing the court clerk and court reporter, Lieutenant Jones and Sergeant Earles met with SMCSO Undersheriff Carlos Bolanos and the SMCSO determined to have Defendant Mar leave for the day. Thereafter, Lieutenant Jones and Sergeant Earles contacted Defendant Mar to instruct him to leave. On information and belief, while Lieutenant Jones spoke to the judge separately, Sergeant Earles relayed the news to Defendant Mar that he was to leave for NMNNNNNNNA-XA-‘LAA-A-X-XA the day. During a second meeting among Undersheriff Bolanos, Lieutenant Jones and mNCDUI-POONAOCOOJNODU'l-PQJNAO Sergeant Earles, still on the day of the incident, and after Defendant Mar had been told to leave for the remainder of day, Sergeant Earles twice relayed that Defendant Mar said, “I did it.” 7. l am informed and believe, based on the Investigation Report, that the following facts occurred: Also on the day of the incident, Lieutenant Jones and Sergeant Earles stated to Court Human Resources Director Ron Mortenson that the matter was going to be referred to the SMCSO’s Internal Affairs Department and further stated to Mortenson that Defendant Mar would be immediately reassigned so that he would not be 3 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION [CASE NO. 537740] ~ . present in the courts. SMCSO Sergeant Christina Corpus was assigned to conduct further investigation 0n behalf of the Internal Affairs Department. 8. l am informed and believe that the following facts occurred: After the incident, Plaintiff was assured that Defendant Mar would not be present in the courthouse. So, on the day following the incident, Plaintiff went to the San Mateo County District Attorney’s (OGJNODU'ILOONA Office to report the incident. Plaintiff also intended to try to attend to his duties given that he expected to be safe from harm. However, while Plaintiff was eating some lunch in the cafe in the basement of the coUrthouse, Plaintiff saw Defendant Mar, in full uniform and ‘ with his hand on service weapon, looking directly at Plaintiff. Despite knowing the details from the investigation conducted by Undersheriff Bolanos, Lieutenant Jones and Sergeant Earles, one or more empIOyees of the County of San Mateo assigned and/or permitted Defendant Mar to work an overtime shift the day after the incident in the transportation unit — i.e., the unit in which sheriffs deputies work as bailiffs in the courthouse with service weapons. 9. l am informed and believe, based on the Investigation Report, that the following facts occurred: Sergeant Earles equivocally stated to the district attorney’s office investigator on April 15, 2015, two days after the incident, that Defendant Mar either said, “l did it” or “l didn't do it,” but he was so forcefully telling Defendant Mar to be quiet that he NNNNNNNNNAA-AAAAA-X-AA could not be certain. On April 21, 2015, Sergeant Earles changed his statement to the mNODCJ'l-b-OONAOQOOONOU'I-bWN-AO San Mateo County District Attorney’s Office to state that Defendant Mar had in fact said, “I I did it.” 10. With these additional facts, Plaintiff intends to allege that the County of San Mateo is vicariously liable for the negligent acts of SMCSO officers who permitted Defendant Mar to return to work the day following the incident, whereupon Plaintiff was re- traumatized by seeing him in the courthouse, in uniform and with his hand on his duty weapon. .14 DECLARATION OF COUNSEL lN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION ‘ [CASE NO. 537740] 11. Based on statements Defendant Mar made to the San Mateo County District Attorney’s Office investigators, as memorialized in the InvestigationReport, l am informed Iand believe that Defendant Mar claims the following facts: On April 13, 2015, Defendant Mar upholstered his duty weapon - which was loaded with a roUnd' in the chamber - and l iaimed it at the wall approximately five (5) feet from Plaintiff and looked through the sights. (DOONO'JUI-h-QMA Defendant Mar was merely taking the opportunity to become more comfortable with the newly-issued service weapon and holster, and to obtain muscle memory in using it. Defendant Mar had received a relatively small amount of training. Defendant Mar had been told during training that theofficers would have to practice with the new holster to become comfortable with it. Defendant Mar was trained to practice with his service ; weapon in a safe and secure location. Defendant Mar was checking the functionality of his service weapon and its holster. Defendant Mar was trained to check his service gear before starting a shift. Other deputies play with their guns in court and in other work areas. 12. As a result of his conduct, which is the subject of this civil action, the San Mateo County District Attorney charged Defendant Mar with one violation of Penal Code section 417(a)(2)(A), in People v. Andy Mar, Case N0. SM397830A. On information and mNQCH-wAOCOCXJNCDm-bOJNAC) belief, Defendant Mar’s criminal trial began on or about August 22, 2016. Further, on information and belief, Defendant Mar was eventually removed from his duties as a NNNNNNYNNMAA-AAAAA-AAA courtroom bailiff. 13. Defendant Mar answered the Amended Complaint with a general-denial on April 13,2016. _ _ I On. 14. May 26, 2016, Judge Joseph Scott granted a demurrer by Defendant County of San Mateo to Plaintiff's Amended Complaint with leave to amend until August 22, 2016 in order to allow Plaintiffs counsel to take Defendant Mar’s deposition after the conclusion of the criminal trial for the purpose of potentially discovering facts necessary to amend the complaint against Defendant County of San Mateo. 5 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION [CASE NO. 537740] 15. On August 5, 2016, by stipulation of all parties, the Court imposed a stay of discovery, including on the filing of this Motion, until August 22, 2016, and granted Plaintiff ‘an extension until October 24, 2016 to file any second amended complaint. 16. In order to complete the deposition of Defendant Mar, potentially amend the i complaint against Defendant County of San Mateo, and to prepare Plaintiffs case, (OCDNCDU'ILOJNA Plaintiffs counsel requires information from Defendant Mar's personnel record. 17. The contents of Defendant Mar’s personnel record related to the following I topics are material and relevant to this litigation and should be disclosed: a. Documentation of any training Defendant Mar received regarding the appropriate use of firearms prior tothe incident on April 13, 2015. b. Documentation of any racial and/or ethnic sensitivity training Defendant Mar received prior to the incident on April 13, 2015. c. Documentation of Defendant Mar's assignments by SMCSO, in the five years prior to the incident on April 13, 2015 and to the present, including but not limited to his assignments in the transportation unit and in any correctional facilities. NMNN-AA-A-AA-XAAA-L d. Any and all documents maintained in either the general personnel file (ION-\OCOCDNOU'I-b-OON-AO of Defendant Mar or in a separate file pertaining to the April 13, 2015 incident that is the subject of Plaintiffs action, including but not limited to complaints made in accordance with California Penal Code section 832.5, by any private citizen, fellow officer, arrestee or attorney, whether or not deemed frivolous, unfounded or exonerated. This request specifically includes any and all documents concerning any internal investigation regarding the April 13, 2015 incident that is the subject of Plaintiff's action, including but not limited to any investigation conducted pursuant to NA Penal Code section 832.5, the investigation conducted by SMCSO Undersheriff Carlos Bolanos, Lieutenant Ken Jones and Sergeant Dwayne Earles, and the NNNN (DNOUCD investigation conduCted by the Internal Affairs Department. 6 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION [CASE NO. 537740] * C I’) ~ e. Any and all documents maintained in either the general personnel file of Defendant Mar or in a separate file regarding any complaint received by the SMCSO, including but not limited to complaints made in accordance with California Penal Code section 832.5, by any private citizen, fellow officer, arrestee or attorney f.CJ(fi\IO)UIJ>~CJOI’\)--¥ naming Defendant Mar, whether or not deemed frivolous, unfounded or exonerated, and alleging any inappropriate behavior by Defendant Mar, including but not limited to (1) the inappropriate use of a firearm, (2) any aggressive actions or excessive force, and (3) behaving in a racially and/or ethnically insensitive manner from the five years prior to April 13, 2015 incident alleged in Plaintiffs lawsuit until the ' present. f. Any and all documents maintained in either the general personnel file of Defendant Mar or in a separate file regarding any complaint received by the SMCSO, including but not limited to complaints made in accordance with California Penal Code section 832.5, by any private citizen, fellow officer, arrestee or attorney naming Defendant Mar, whether or not deemed frivolous, unfounded or exonerated, and alleging fabrication of evidence, dishonesty, filing of false police reports or testifying falsely from five years prior to the April 13, 2015 incident alleged in NMNNNNNNNA-AA-XA-XA-XAA Plaintiff's lawsuit until the present. g CDNOUCfi-hOJNAOCOmNQCD-PWNAO g. The names, addresses and telephone numbers of all persons submitting complaints identified in Paragraphs 17.d-f above. h. The dates of the filing of each of the complaints identified in Paragraphs 17.d-f above.- i. The names, addresses and telephone numbers of all persons interviewed by SMCSO during the investigation of each of the complaints identified in Paragraphs 17.d-f above. j. All records regarding the investigation of any of the complaints identified in Paragraphs 17.d-f above, and the outcome of any investigation, 7 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO'S PITCHESS MOTION [CASE NO. 537740] including any discipline imposed, and the observations, analysis and conclusions of the investigating officers. k. Reports by psychologists, psychiatrists, therapists or consultants pertaining to any of the complaints identified in Paragraphs 17.d-f above. (OQNQLDACDNA l. Any documentation that Defendant Mar deviated from any policy or procedure imposed by the SMCSO upon SMCSO deputies both generally and specifically including Defendant Mar. m. Any and all indemnity agreements between and/or applicable to Defendant County of San Mateo and Defendant Mar. _\ O n. If Deputy Andy Mar has been employed as a peace officer with any A —\ other agency in the five years prior to April 13,2015, the name and address of the N agency. ._\_\ O) 18. The documents sought in Paragraphs 17.a-d and 17.g-k relating to or bearing _\ L j on the April 13, 2015 incident that is the subject of Plaintiff’s lawsuit are directly relevant to _\_\ C301 this litigation. More specifically, documentation of training Defendant Mar received regarding the use of firearms and racial and/or ethnic sensitivity are clearly material to his ' _\_\ behavior and whether he was acting negligently vis-a-vis departmental policy during the GJN events and causes of action, particularly the Fifth Cause of Action for a violation of the Ralph Civil Rights Act (Civil Code, § 51.7), alleged in the First Amended Complaint. Also, _\ OQO N Deputy Mar’s assignments as a deputy may lead~ to the discovery of admissible evidence N —\ of whether Defendant Mar was likely toact negligently in his assignment as a courtroom NN bailiff. This is relevant to whether Defendant Mar should have been even more cautious in |\J 00 his duties, as well as whether Defendant County of San Mateo had any inkling that i N Defendant Mar would act negligently as a courtroom bailiff prio'r to the April 13, 2015 (huh N incident. N O) 19. . Additionally, as requested in Paragraphs17.d and 17.g-k, any and all \l investigations of the April 13, 2015 subject incident, including but not limited to any N-N oo 8 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION [CASE NO. 537740] ,f’ " ' ' _ I K __ ./' l ._\ investigation conducted pursuant to Penal Code section 832.5, the investigation ‘conducted by SMCSO Undersheriff Carlos Bolanos, Lieutenant Ken Jones and Sergeant Dwayne Earles, and the investigation conducted by the Internal Affairs Department, are, per se, material and relevant to the litigation regarding the very same incident. ‘Moreover, as the allegations delineated above in Paragraphs 6-9 demonstrate, SMCSO knew and cooovoatn-booro may have documented in Defendant Mar’s personnel files that he had admitted to his conduct, which had been corroborated by Plaintiff and ‘at least one other witness, yet personnel in the SMCSO assigned Defendant Mar to be in the courthouse where Plaintiff was employed very next day. The statements and conduct of the personnel investigating ' the incident, who are from the same agency employing Defendant Mar and know him well, are relevant to Plaintiffs lawsuit because they may lead to the discovery of admissible evidence regarding what the County of San Mateo knew about Defendant Mar and = whether its employees acted negligently in permitting‘ Defendant Mar to return to work in the courthouse the very next day. Furthermore, the observations, analysis, opinions and conclusions of the investigating officers bear on the credibility of all involved in the case, I including Sergeant Earles who initial investigated the incident, equivocated as to Defendant Mar’s statement that “l did it,” and changed his statement to reflect that mNODUT-tAOCOmNCDU'l-POJN-Ao Defendant had so stated. Finally, in Paragraph 17.m, Plaintiff seeks any indemnity agreements between the Defendant Mar and his employer, the County of San Mateo. Any NMNNNNNNN-LA-AA-LAAAAA such agreement is material to the scope of Defendant CSM's liability, if any, for Defendant Mar’s conduct in this case. 20. The information regarding prior incidents of misconduct and deviations from policy requested in Paragraphs 17.e and 17.g-l above is material and relevant based on the facts set forth above in Paragraph 11. This information is material and relevant to this litigation because it may lead to the discovery of admissible evidence that Defendant Mar was aware that his behavior was inappropriate on the date in question, and therefore that it was neither a mistake nor an aCcident. This information may also establish that 9 DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF JOSE VERDUSCO’S PITCHESS MOTION [CASE NO. 537740] \. \ / \ ‘Defendant Mar had a habit or custom of behaving inappropriately with his firearm or other weaponry, or in a racially and ethnically insensitive manner. Given, as set forth above in Paragraph 4, Defendant Mar’s usual placement in correctional facilities where deputies do _ not carry firearms, Plaintiff has good cause tO believe there may be some such A (OQNODU'l-bO-‘INA documents. Past instances of misconduct may also support Defendant Mar’s motive or intent to behave as he did on the day of the incident, including in a racially and/ ethnically abhorrent manner in this case, which is particularly relevant to Plaintiff's cause of action under the Ralph Civil Rights Act (Civil Code, § 51.7). This information may both provide evidence on the ultimate facts to be proved against Defendant Mar, and also undermine I O Defendant Mar’s credibility as to his behavior on the date of the subject incident. The -\ name and address Of any other agency with which Defendant Mar has been employed as N . a peace officer in the five years prior to April 13, 2015 as requested in Paragraph 17.n is 00 material for Plaintiff to seek similar records Of prior misconduct. h 21. With respect to the prior incidents of dishonesty, the documents and , U'l information sought in Paragraphs 17.f-k above are material and relevant to this litigation O) because they bear on the credibility of a key witness in this case — Defendant Andy Mar, \l whose conduct forms the basis of this lawsuit. Moreover, as set forth above in Paragraphs ‘ 2, 5 and 11, Defendant Mar’s credibility is at issue because, while Defendant Mar claims NMNNNNNNNAAAAA-A-LA-A-A CD (O that he pointed his firearm approximately five (5) feet from Plaintiff, Plaintiff saw Defendant O Mar point it directly at him and independent witness, courtroom clerk De La Rosa, saw —\ Defendant Mar point it in Plaintiffs general direction. Defendant Mar having behaved dishonestly in any other instance bears on Defendant Mar’s credibility directly. Witnesses OOr,n-r>.<_.ow-Ao Complaint to show such true, names and capacities When they have been determined. 5. Plaintiff is informed and ‘believes, and upon such information and belief l alleges that at, all relevant times herein mentibned, each of; the Defendants, including Defendants CSM and MAR, was the partner, joint venturer, alder .and .abettor, agent,- .__\_ (O employee and/or representative of each .of the remaining Defendants and was acting at least in part within the course and scope of said relationship. Whenever a defendant ‘is. the: subject of any charging allegation by Plaintiff, it shall be- deemed that the NN'MIN“N. Defendant's DOES 1 through '20, inclusive, and each of them, are likewise. subject'to this charging allegation. 6.. Plaintiff filed a government tort claim pursuant to GoVer'nment Code 'Qo'=\~|o_)_01-POJ§N‘—‘~O section 900 et seq. on June 15, 2015. By ‘letter dated July 221,. 2015, Defendant (ISM ,NNKJ notified Plaintiff that .CSM’s- Board of ‘Supervisors rejected Plaintiffs claim on July 21, 2015.. Plaintiffihas' timely filed this ‘action pursuant to Governmenf'Code section 94.5.6. 1&1 FirstlAinended Complaint -C'a'se No. crvssmo 2 FACTS COMMON IO ALL CAUSES ‘0F ACTION‘ ‘7., ~_At"the 2time of the incident alleged herein, Plaintiff was employed: by the Chunty of San Mateo as a lead custodian, assigned to clean various courtrooms,~ 'workstat'ioris. ofoourt personnel, and private judge's: chambers —'of‘th'e ‘Stiperlidrr' Court Oi‘