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AQUA AAA
22492985
‘John Houston Scott (SBN 72578)
Lizabeth N. de Vries (SBN 227215)
FEL
SCOTT LAW FIRM
1388 Sutter Street, Suite 715
San Francisco,.California
Telephone: (415) 561-9600
94109
ALAMEDA COUNTY
Facsimile: (415) 561-9609
john@scottlawfirm.net NOV 6 ~ 9n19
liza@scottlawfirm.net
CLERK OF.THE SUPERIOR
nN AN
y = SS at
COURT
i C3
Attorneys forPlaintiff MILDRED OLIVER
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA — OAKLAND DIVISION
10
1] MILDRED OLIVER,
Case No. RG19007799
12 Plaintiff,
DISCOVERY
13 Vv.
MEMORANDUM OF POINTS AND
14 CITY OF OAKLAND, OAKLAND AUTHORITIES IN SUPPORT OF
POLICE DEPARTMENT, and DOES 1- PLAINTIFF’S MOTION FOR DISCOVERY
15 OF POLICE PERSONNEL INFORMATION
25, inclusive. (“PITCHESS”) MOTION
16 Defendants.
Date: December 20, 2019
17 Time: 9:00 a.m.
Department: 25, The Honorable Ronni MacLaren
18
19 Reservation No.: R-2132170
20 Date Action Filed: February 21, 2019
Date FAC Filed: April 23, 2019
21 Trial Date: August 21, 2020
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23
24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF PLAINTIFF’S
MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION
INTRODUCTION
This isan unusual Pitchess motion because thiscase arises from allegations thatplaintiff,
Sergeant Mildred Oliver, did not properly conduct an internal affairs ([A) investigation. There is
a protective order in place. Because Sgt. Oliver’s job performance regarding her handling of the
IA investigation isat issue, the plaintiff seeks production of:
1. The entire investigation fileof Case No. 15-0771;
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2. The Chron Log prepared by Sgt. Oliver of her activities inCase No. 15-0771;
NSN
3. The filemaintained by CID (Criminal Investigation Division) regarding the
CO
investigation related to Officer O’Brien’s suicide, including all interviews and
Oo
10 related recordings;
11 4. The audio/video interview of Jasmine Celeste Cedillo aka Celeste Gaup taken by
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12 Sergeant Jason Anderson including allrecordings of private conversations Jasmine
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13 Celeste Gaup had with third person when investigators leftthe room.
CA
STREET,
14 Defense counsel does not dispute that there isgood cause for the discovery sought.
LAW
FRANCISCO,
15 However, the City cannot produce the requested documents and recordings without a court order.
SCOTT
SUTTER
16 STATEMENT OF THE CASE
SAN
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17 I. Background: Sgt. Mildred Oliver has served the OPD for 22 years: in 2014 she was
an investigator in the Internal Affairs Division (IAD).
18
From August 22, 1997 to the present Mildred L. Oliver, a Black female, was employed as
19
a police officer forthe Oakland Police Department (hereafter "OPD"), and was promoted to
20
Sergeant in 2012.
21
Throughout her tenure, she performed her job duties satisfactorily.
22
In 2014, Sgt. Oliver was assigned as an investigator in the Internal Affairs Division of the
23
OPD (“IAD”).
24
Sgt. Oliver was the only female OPD JAD investigator out of eight investigators.
25
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION
II. The OPD assigns Sgt. Olivera limited investigation of a suicide note even though the
note implicated OPD officers as engaging in statutory rape of an identified Minor.
On June 14, 2014, OPD Officer Brendan O’Brien’s wife was killed. Officer O’ Brien was
a primary suspect. Plaintiff alleges on information and belief that Officer O’Brien’s wife had
recently discovered that her husband had been cheating on her.
The OPD’s official investigation concluded that Officer O’Brien’s wife’s death was a
suicide, not a murder. Sgt. Mike Gantt disagreed with this conclusion. Sgt. Gantt believed Officer
SN
O’Brien’s wife’s death was a homicide. However, after he voiced these beliefs, the OPD removed
Oo
Sgt. Gantt from the investigation.
Oo
On September 25, 2015, OPD Officer O’Brien committed suicide and left a note. Officer
10
O’Brien implicated himself and two other OPD members. He identified a minor female
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(“Celeste”) who accused Officer O’Brien and another former OPD officer (Officer #1) of
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statutory rape. The note also identified aBlack male OPD Sergeant, Sgt. Leroy Johnson, as aware
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of Officer O’Brien’s and Officers #1’s misconduct.
CA
STREET,
14
LAW
FRANCISCO,
The OPD launched an JAD investigation only as against Sgt. Johnson for his alleged
15
SCOTT
SUTTER
failure to report misconduct by Officers O’Brien and XXX.
16
On or about October 1,2015, the OPD assigned the Sgt. Johnson IAD investigation to
SAN
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17
Set. Oliver.
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a. Sgt. Oliver finds Celeste to be credible and seeks to expand the investigation
19 and refer the case as a criminal matter; the OPD denied both requests.
20 Within days of the assignment, Sgt. Oliver reviewed the case file, watched the video of
21 the criminal investigators’ interview of Celeste, and discussed the matter with her supervisor,
22 Acting Lt. Todd Mork (White male). Sgt. Oliver recommended the scope of the investigation be
23 expanded and referred as acriminal investigation and Acting Lt. Mork agreed with plaintiff's
24 recommendations. However, the OPD denied both requests. Instead, the OPD instructed plaintiff
25 to continue with the limited administrative investigation against Sgt. Johnson.
26
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION
Plaintiff was told that the chain of command decided Celeste was not “credible.” In
contrast, Sgt. Oliver found Celeste to be credible. Sgt. Oliver was also concerned because
Celeste’s mother was then working at the OPD, as a Dispatcher #1.
The OPD elected to address thissuicide note, containing allegations of OPD officers
&
participating in statutory rape, as if itwere a garden-variety IAD investigation. This avoided
NW
identifying and investigating other OPD officers who potentially engaged in criminal behavior. It
DN
also avoided determining whether Officer O’Brien’s wife’s death was a homicide.
Ss
Between October 2015 and February 2016, plaintiffworked closely with her chain of
command (Lt.Alan Yu and Capt. Donna Hoppenhauer) and the assigned City Attorney (Allyson
10 Cook) toconduct the investigation of Sgt. Johnson.
1] The OPD provided Sgt. Oliver with no support to timely complete this investigation. For
715
12 example, she was not offered overtime or assistance. Rather, she was told that then-Chief Sean
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13 Whent wanted thiscase behind him. Sgt. Oliver also had three other investigations assigned to
CA
STREET,
14 her.
LAW
FRANCISCO,
15
b. In February 2016, Sgt. Oliver was told by OPD members and agents that she
SCOTT
SUTTER
16 was doing a good job in concluding that Sgt. Johnson failed to report
misconduct.
SAN
1388
17
On or about February 10, 2016, Sgt. Oliver timely drafted and presented her IA report and
18
recommended a sustained finding against Sgt. Johnson.
19
Sgt. Oliver also referenced numerous other OPD officers as potential subjects for a
20
statutory-rape investigation.
21
Sgt. Oliver followed proper procedures and received favorable responses regarding the
22
content and recommended findings of thisIAD report.
23
In February 2016, the plaintiffwas told she was doing a good job.
24
HII. The NSA was an obstacle for the OPD to sweep this sex scandal under the rug.
25
The OPD was then (and now) subject to a federal-court monitoring process; the OPD had
26
to comply with aNegotiated Settlement Agreement (“NSA”).
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION
The NSA required the OPD report to a court-appointed Monitor and ultimately the federal
court to demonstrate thatthe OPD was in compliance with the NSA.
In March 2016, Sgt. Oliver’s report on the sexual-misconduct matter involving Sgt.
Johnson was presented to the Monitor and then to the Honorable Thelton E. Henderson.
oy
a. In March 2016, the federal court overseeing the OPD understood that the
MN
OPD IAD investigation was unduly narrowed and incomplete.
NHN
On March 26, 2016, Judge Henderson issued an order which stated as follows: “This case
TD
raises most serious concerns that may well impact Defendants’ [OPD] abilityto demonstrate their
CO
commitment to accountability and sustainability — both of which are key to ending court
oO
oversight.” The judge also noted that the matter revealed “irregularities and potential violations of
10
the NSA.” Moreover, the Court directed the Compliance Director touse his authority “to ensure
il
this case and any related matters are properly and timely investigated and that all appropriate
715
12
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follow-up actions are taken.”
13
CA
The OPD made a decision to make Sgt. Oliver a scapegoat. On March 29, 2016, Sgt.
STREET,
14
LAW
FRANCISCO,
Oliver was removed from the investigation and a team of other officers were assigned to complete
15
SCOTT
SUTTER
it.For the firsttime, Sgt. Oliver’s supervisors and the City Attorney’s office began criticizingher
16
SAN
job performance.
1388
17
18 ARGUMENT
Evidence Code Section 1043 requires a noticed Motion requesting an Order for the in
19
camera inspection of the documents sought and the subsequent production ofany discoverable
20
documents. After good cause isestablished, the Court must then conduct an in camera hearing to
21
determine which documents and/or information, if any, are discoverable. Garcia v.Superior
22
Court (2007) 42 Cal.4th 63, 70-71, 63 Cal.Rptr.3d 948; Pierre C. v. Superior Court (1984) 159
23
Cal.App.3d 1120; Pitchess v. Superior Court (1974) 11 Cal.3d 531.
24
The motion requires the moving party to:
25
(1) identify:
26
the proceeding in which discovery or disclosure is sought,
27
the party seeking discovery or disclosure,
28 _4-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION
the peace officer whose records are sought, and
the governmental agency which has custody and control of such records,
(2) state the time and place atwhich the motion for discovery or disclosure. shallbe heard;
(3) describe the type.of records or information sought; and
(4) establish good cause for the production for the discovery ordisclosure sought.
The documents and recordings at issue are clearly discoverable. This evidence will
NH
support the Plaintiff's allegations that she followed proper procedures and complied the directives
A
of those. who supervised the IA investigation. The documents sought will also establish that it
CO
was the chain of command, not the plaintiff, who sought to limit the scope of the investigation
Oo
10 into Officer O’Brien’s suicide.
i
CONCLUSION
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‘Ththe interest of justice this discovery motion should be granted.
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CA
STREET,
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LAW
FRANCISCO,
Dated: November 5,2019 Scotr Law FIRM
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SUTTER
SCOTT
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SAN
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Jéhn Houston Scott, Attomey for
18 aintiff MILDRED OLIVER
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26:
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION
Preview
AQUA AAA 22492985 ‘John Houston Scott (SBN 72578) Lizabeth N. de Vries (SBN 227215) FEL SCOTT LAW FIRM 1388 Sutter Street, Suite 715 San Francisco,.California Telephone: (415) 561-9600 94109 ALAMEDA COUNTY Facsimile: (415) 561-9609 john@scottlawfirm.net NOV 6 ~ 9n19 liza@scottlawfirm.net CLERK OF.THE SUPERIOR nN AN y = SS at COURT i C3 Attorneys forPlaintiff MILDRED OLIVER SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ALAMEDA — OAKLAND DIVISION 10 1] MILDRED OLIVER, Case No. RG19007799 12 Plaintiff, DISCOVERY 13 Vv. MEMORANDUM OF POINTS AND 14 CITY OF OAKLAND, OAKLAND AUTHORITIES IN SUPPORT OF POLICE DEPARTMENT, and DOES 1- PLAINTIFF’S MOTION FOR DISCOVERY 15 OF POLICE PERSONNEL INFORMATION 25, inclusive. (“PITCHESS”) MOTION 16 Defendants. Date: December 20, 2019 17 Time: 9:00 a.m. Department: 25, The Honorable Ronni MacLaren 18 19 Reservation No.: R-2132170 20 Date Action Filed: February 21, 2019 Date FAC Filed: April 23, 2019 21 Trial Date: August 21, 2020 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF PLAINTIFF’S MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION INTRODUCTION This isan unusual Pitchess motion because thiscase arises from allegations thatplaintiff, Sergeant Mildred Oliver, did not properly conduct an internal affairs ([A) investigation. There is a protective order in place. Because Sgt. Oliver’s job performance regarding her handling of the IA investigation isat issue, the plaintiff seeks production of: 1. The entire investigation fileof Case No. 15-0771; NN 2. The Chron Log prepared by Sgt. Oliver of her activities inCase No. 15-0771; NSN 3. The filemaintained by CID (Criminal Investigation Division) regarding the CO investigation related to Officer O’Brien’s suicide, including all interviews and Oo 10 related recordings; 11 4. The audio/video interview of Jasmine Celeste Cedillo aka Celeste Gaup taken by 715 12 Sergeant Jason Anderson including allrecordings of private conversations Jasmine 94109 SUITE FIRM 13 Celeste Gaup had with third person when investigators leftthe room. CA STREET, 14 Defense counsel does not dispute that there isgood cause for the discovery sought. LAW FRANCISCO, 15 However, the City cannot produce the requested documents and recordings without a court order. SCOTT SUTTER 16 STATEMENT OF THE CASE SAN 1388 17 I. Background: Sgt. Mildred Oliver has served the OPD for 22 years: in 2014 she was an investigator in the Internal Affairs Division (IAD). 18 From August 22, 1997 to the present Mildred L. Oliver, a Black female, was employed as 19 a police officer forthe Oakland Police Department (hereafter "OPD"), and was promoted to 20 Sergeant in 2012. 21 Throughout her tenure, she performed her job duties satisfactorily. 22 In 2014, Sgt. Oliver was assigned as an investigator in the Internal Affairs Division of the 23 OPD (“IAD”). 24 Sgt. Oliver was the only female OPD JAD investigator out of eight investigators. 25 26 27 28 -l- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION II. The OPD assigns Sgt. Olivera limited investigation of a suicide note even though the note implicated OPD officers as engaging in statutory rape of an identified Minor. On June 14, 2014, OPD Officer Brendan O’Brien’s wife was killed. Officer O’ Brien was a primary suspect. Plaintiff alleges on information and belief that Officer O’Brien’s wife had recently discovered that her husband had been cheating on her. The OPD’s official investigation concluded that Officer O’Brien’s wife’s death was a suicide, not a murder. Sgt. Mike Gantt disagreed with this conclusion. Sgt. Gantt believed Officer SN O’Brien’s wife’s death was a homicide. However, after he voiced these beliefs, the OPD removed Oo Sgt. Gantt from the investigation. Oo On September 25, 2015, OPD Officer O’Brien committed suicide and left a note. Officer 10 O’Brien implicated himself and two other OPD members. He identified a minor female 11 (“Celeste”) who accused Officer O’Brien and another former OPD officer (Officer #1) of 715 12 94109 statutory rape. The note also identified aBlack male OPD Sergeant, Sgt. Leroy Johnson, as aware SUITE FIRM 13 of Officer O’Brien’s and Officers #1’s misconduct. CA STREET, 14 LAW FRANCISCO, The OPD launched an JAD investigation only as against Sgt. Johnson for his alleged 15 SCOTT SUTTER failure to report misconduct by Officers O’Brien and XXX. 16 On or about October 1,2015, the OPD assigned the Sgt. Johnson IAD investigation to SAN 1388 17 Set. Oliver. 18 a. Sgt. Oliver finds Celeste to be credible and seeks to expand the investigation 19 and refer the case as a criminal matter; the OPD denied both requests. 20 Within days of the assignment, Sgt. Oliver reviewed the case file, watched the video of 21 the criminal investigators’ interview of Celeste, and discussed the matter with her supervisor, 22 Acting Lt. Todd Mork (White male). Sgt. Oliver recommended the scope of the investigation be 23 expanded and referred as acriminal investigation and Acting Lt. Mork agreed with plaintiff's 24 recommendations. However, the OPD denied both requests. Instead, the OPD instructed plaintiff 25 to continue with the limited administrative investigation against Sgt. Johnson. 26 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION Plaintiff was told that the chain of command decided Celeste was not “credible.” In contrast, Sgt. Oliver found Celeste to be credible. Sgt. Oliver was also concerned because Celeste’s mother was then working at the OPD, as a Dispatcher #1. The OPD elected to address thissuicide note, containing allegations of OPD officers & participating in statutory rape, as if itwere a garden-variety IAD investigation. This avoided NW identifying and investigating other OPD officers who potentially engaged in criminal behavior. It DN also avoided determining whether Officer O’Brien’s wife’s death was a homicide. Ss Between October 2015 and February 2016, plaintiffworked closely with her chain of command (Lt.Alan Yu and Capt. Donna Hoppenhauer) and the assigned City Attorney (Allyson 10 Cook) toconduct the investigation of Sgt. Johnson. 1] The OPD provided Sgt. Oliver with no support to timely complete this investigation. For 715 12 example, she was not offered overtime or assistance. Rather, she was told that then-Chief Sean 94109 SUITE FIRM 13 Whent wanted thiscase behind him. Sgt. Oliver also had three other investigations assigned to CA STREET, 14 her. LAW FRANCISCO, 15 b. In February 2016, Sgt. Oliver was told by OPD members and agents that she SCOTT SUTTER 16 was doing a good job in concluding that Sgt. Johnson failed to report misconduct. SAN 1388 17 On or about February 10, 2016, Sgt. Oliver timely drafted and presented her IA report and 18 recommended a sustained finding against Sgt. Johnson. 19 Sgt. Oliver also referenced numerous other OPD officers as potential subjects for a 20 statutory-rape investigation. 21 Sgt. Oliver followed proper procedures and received favorable responses regarding the 22 content and recommended findings of thisIAD report. 23 In February 2016, the plaintiffwas told she was doing a good job. 24 HII. The NSA was an obstacle for the OPD to sweep this sex scandal under the rug. 25 The OPD was then (and now) subject to a federal-court monitoring process; the OPD had 26 to comply with aNegotiated Settlement Agreement (“NSA”). 27 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION The NSA required the OPD report to a court-appointed Monitor and ultimately the federal court to demonstrate thatthe OPD was in compliance with the NSA. In March 2016, Sgt. Oliver’s report on the sexual-misconduct matter involving Sgt. Johnson was presented to the Monitor and then to the Honorable Thelton E. Henderson. oy a. In March 2016, the federal court overseeing the OPD understood that the MN OPD IAD investigation was unduly narrowed and incomplete. NHN On March 26, 2016, Judge Henderson issued an order which stated as follows: “This case TD raises most serious concerns that may well impact Defendants’ [OPD] abilityto demonstrate their CO commitment to accountability and sustainability — both of which are key to ending court oO oversight.” The judge also noted that the matter revealed “irregularities and potential violations of 10 the NSA.” Moreover, the Court directed the Compliance Director touse his authority “to ensure il this case and any related matters are properly and timely investigated and that all appropriate 715 12 94109 SUITE FIRM follow-up actions are taken.” 13 CA The OPD made a decision to make Sgt. Oliver a scapegoat. On March 29, 2016, Sgt. STREET, 14 LAW FRANCISCO, Oliver was removed from the investigation and a team of other officers were assigned to complete 15 SCOTT SUTTER it.For the firsttime, Sgt. Oliver’s supervisors and the City Attorney’s office began criticizingher 16 SAN job performance. 1388 17 18 ARGUMENT Evidence Code Section 1043 requires a noticed Motion requesting an Order for the in 19 camera inspection of the documents sought and the subsequent production ofany discoverable 20 documents. After good cause isestablished, the Court must then conduct an in camera hearing to 21 determine which documents and/or information, if any, are discoverable. Garcia v.Superior 22 Court (2007) 42 Cal.4th 63, 70-71, 63 Cal.Rptr.3d 948; Pierre C. v. Superior Court (1984) 159 23 Cal.App.3d 1120; Pitchess v. Superior Court (1974) 11 Cal.3d 531. 24 The motion requires the moving party to: 25 (1) identify: 26 the proceeding in which discovery or disclosure is sought, 27 the party seeking discovery or disclosure, 28 _4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION the peace officer whose records are sought, and the governmental agency which has custody and control of such records, (2) state the time and place atwhich the motion for discovery or disclosure. shallbe heard; (3) describe the type.of records or information sought; and (4) establish good cause for the production for the discovery ordisclosure sought. The documents and recordings at issue are clearly discoverable. This evidence will NH support the Plaintiff's allegations that she followed proper procedures and complied the directives A of those. who supervised the IA investigation. The documents sought will also establish that it CO was the chain of command, not the plaintiff, who sought to limit the scope of the investigation Oo 10 into Officer O’Brien’s suicide. i CONCLUSION 715. 12 94109 ‘Ththe interest of justice this discovery motion should be granted. SUITE FIRM 13 CA STREET, 14 LAW FRANCISCO, Dated: November 5,2019 Scotr Law FIRM 15 SUTTER SCOTT 16 SAN 17 1388 Jéhn Houston Scott, Attomey for 18 aintiff MILDRED OLIVER 19 20 21 22 23 24 25 26: 27 28 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR DISCOVERY OF POLICE PERSONNEL INFORMATION (“PITCHESS”) MOTION