Preview
ORIG! NAL a | = !
- BARBARA J..PARKER, City Attorney — SBN 069722
MARIA BEE, Chief Assistant City Attorney — SBN 16771
DAVID A. PEREDA, Special Courisel — SBN 237982 _ ibved DY
MICHAEL QUIRK, Deputy City Attorney — SBN 283351
One Branic H. eawa Plaza, 6th Floor DEC 09 2019
Oakland, California 94612 ae COURT
Telephone: (510) 238-6520 Fax: (510) 238-6500 CLERK OF THE,St
Email: DPereda@oaklandcityattorney.org By. ;
(33244/2874525
Attorneys for Defendant
DH
CITY OF OAKLAND
NIN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
Co
COUNTY OF ALAMEDA
oO
10
1 MILDRED L. OLIVER,
Case No. RG19007799
12 .Plaintiff, .
; ASSIGNED FOR ALL PURPOSES TO
13 Vv. JUDGE RONNI MACLAREN
: | DEPARTMENT 25
14 CITY OF OAKLAND, OAKLAND , _
POLICE DEPARTMENT, AND DOES 1. | CITY OF OAKLAND’S RESPONSE
15 25, INCLUSIVE _. _| TOPITCHESS MOTION.
16 Defendants.
;
~ Date:
)
December 20, 2019
Time: 9:00 a.m.
17 Filed: February 21, 2019
Trial Date: August 21, 2020
18
19
20
21
22
23
24
25
26
27
28 |
- RESPONSE TO PITCHESS MOTION
-SUMMARY OF RESPONSE
Mildred Oliver claims that she endured discrimination (race and gender), a
hostile work environment, and retaliation before she retired from the Oakland Police
Lo
Department. The City strongly disputes her claims. While Sergeant Oliver was
- assigned to the Internal Affairs Division, she investigated a disturbing sexual-
WN
misconduct scandal, IAD No. 15-0771. Due to deficiencies in the investigation, it
HN
was reassigned. Later, while Sergeant Oliver was working in the Patrol Division, :
Sa
she was disciplined for an unrelated violation of the Department's Manual of Rules.
Against that backdrop, Sergeant Oliver seeks the entire Internal Affairs file —
10 for [AD No. 15-0771 and the Criminal Investigation Division file related to Officer
11 Brendan O’Brien’s suicide. An apparent suicide note he left led the Department to
12 open IAD No. 15-0771.
13 Under the state’s revised Pitchess statute, some of the records Sergeant Oliver
14 seeks are subject to public disclosure, and the City has produced those records. But
15 many of the records are not. And even though Sergeant Oliver’s allegations rest in
16 part on IAD No.15-0771, the records cannot be produced without going through the
17 Pitchess process. | | |
18 | The parties are working cooperatively to resolve this issue andto make sure
19 that all the records needed to litigate this case are made available. To that end, City .
20 produced what it could without violating the law, the parties met and conferred in
21 good faith on the need for this motion, and the City voluntarily produced other |
22 relevant records that Sergeant Oliver has not yet requested.
23 Lastly, the City notes: that IAD No. 15-0771 is vast. The City is organizing
24 the file to make the Court’s review as easy and efficient as possible.
25
26
27
28
1
RESPONSE TO P/TCHESS MOTION
| DISCUSSION
I. THE PARTIES MUST GO THROUGH THE PITCHESS PROCESS
The state’s Pitchess statue, Penal Code section 832.7, protects police officer
we
personnel records, citizen complaint records, and “information obtained from these
records.” Penal Code § 832.7(a). Such records, the statute provides, “shall not be
wa
disclosed in any criminal or civil proceeding except by discovery pursuant to Sections
A
1043 and 1046 of the Evidence: Code.” Id.
~~
Here, there is no dispute that IAD No. 15-0771 contains records protected by .
the Pitchess statute. See Memo. of P. & A. in Support of Pitchess Motion at 4-5. The
10 City, then, cannot produce the records without following the process set forth by
11 Evidence Code sections 1043 and 1046.
12 That process has two steps. First, the party seeking the records must bring a
13 formal motion that has the following supporting information:
14
(1) Identification of the proceeding in which discovery or
15 disclosure is sought, the party seeking discovery or
disclosure, the peace or custodial officer whose records are
16 sought, the governmental agency which has custody and
control of the records, and the time and place at which the
17 motion for discovery or disclosure shall be heard:
18 (2) A description of the type of records or information
sought.
19
(3) Affidavits showing good cause for the discovery or
20 disclosure sought, setting forth the materiality thereof to
the subject matter involved in the pending litigation and
21 stating upon reasonable belief that the governmental _
agency identified has the records or information from the
22 records.
23 Evid. Code § 1043(a),(b).
24 Second, if the trial court finds that the records are material and there is good
25 cause to produce them, the court next reviews the records in chambers “out of the
26 presence of all persons except the person authorized to possess the records and such
27 other person the custodian is willing to have present.” People v. Mooc (2001) 26
28 Cal.4th 1216, 1226.
, 2
RESPONSE TO PITCHESS MOTION
If, based on that review, the trial court finds that any records should be
disclosed, the records are subject to a protective order. Haggerty v. Superior Court
(2004) 117 Cal.App.4th 1079, 1093. —
Here, the parties have already agreed to such an order, which the City
-
Attorney’s Office adapted from the Northern District’s model order for standard
MN
litigation. The City attaches it to this brief. |
DN
II. OFFICER O’BRIEN’S FAMILY ASSERTS A PRIVACY INTEREST
SN
One of the specific records Sergeant Oliver seeks is an apparent suicide note
Oo
by Officer O’Brien. Officer O’Brien’s family asserts a privacy interest in the note
oO
10 and contends that there is no good cause in this case to release it. The City looks to
11 honor the family’s wishes and defers to the family’s brief on this issue.
12 III]. THE CITY MAINTAINS ATTORNEY-CLIENT AND WORK PRODUCT
PRIVELEGES
13
14 Finally, the City does not read Sergeant Oliver’s Pitchess motion as in any
15 way moving to compel any attorney-client communications or work product. The
16 City has.not waived those privileges. The parties are meeting and conferring on
17 whether Sergeant Oliver contends that any such records are not protected.
18 CONCLUSION
19 The City looks forward to working with the Court to facilitate discovery and to
20 ensure that appropriate Pitchess protections are in place.
“21
22 Dated: December 9, 2019 Respectfully submitted,
23 DAVID A. PEREDA, Special Counsel
24
25
By:
26 Attorneys for Defendant
CITY OF OAKLAND
27
28
3
‘RESPONSE TO PITCHESS MOTION
. PROOF OF SERVICE
Mildred L. Oliver v. City of Oakland, et al.
Alameda County Superior Court Case No. RG19007799
I am a resident of the State of California, over the age of eighteen years, and
not a party to the within action. My business address is City Hall, One Frank H.
Ogawa Plaza, 6th Floor, Oakland, California 94612. On the date set forth below I
served the within documents:
RESPONSE TO PITCHESS MOTION -
NH
[] by transmitting via facsimile the document(s) listed above to the fax
ss
number(s) set forth below, or as stated on the attached service list, on |
this date before 5:00 p.m.
CO
[by placing the document(s) listed above in a sealed envelope with
postage thereon fully prepaid, in the United States mail at Oakland,
oO
California addressed as set forth.
10 by causing personal delivery by One Hour Delivery Service of the
11 document(s) listed above to the person(s) at the address(es) set forth |
below.
12 C_sby personally delivering the document(s) listed above to the person(s)
at the address(es) set forth below.
13
[] by causing such envelope to be sent by Federal Express/ Express Mail.
14
| John Houston Scott
15 Lizabeth n. de Vries
Scott Law Firm
16 1388 Sutter Street, Suite 715
17 San Francisco,
Telephone:
CA
(415)
94109
561-9600
Fax: (415) 561-6909
18 Email: john@scottlawfirm.net
Email: liza@scottlawfirm.net
19
Attorneys for Plaintiff
20
21
’ I declare under penalty of perjury under the laws of the State of California
22 that. the above is true and correct.
23 Executed on December 9, 2019 at Oakla Yalifornia.
WW
CARMA CARDEN
1
PROOF OF SERVICE
Preview
ORIG! NAL a | = ! - BARBARA J..PARKER, City Attorney — SBN 069722 MARIA BEE, Chief Assistant City Attorney — SBN 16771 DAVID A. PEREDA, Special Courisel — SBN 237982 _ ibved DY MICHAEL QUIRK, Deputy City Attorney — SBN 283351 One Branic H. eawa Plaza, 6th Floor DEC 09 2019 Oakland, California 94612 ae COURT Telephone: (510) 238-6520 Fax: (510) 238-6500 CLERK OF THE,St Email: DPereda@oaklandcityattorney.org By. ; (33244/2874525 Attorneys for Defendant DH CITY OF OAKLAND NIN SUPERIOR COURT OF THE STATE OF CALIFORNIA Co COUNTY OF ALAMEDA oO 10 1 MILDRED L. OLIVER, Case No. RG19007799 12 .Plaintiff, . ; ASSIGNED FOR ALL PURPOSES TO 13 Vv. JUDGE RONNI MACLAREN : | DEPARTMENT 25 14 CITY OF OAKLAND, OAKLAND , _ POLICE DEPARTMENT, AND DOES 1. | CITY OF OAKLAND’S RESPONSE 15 25, INCLUSIVE _. _| TOPITCHESS MOTION. 16 Defendants. ; ~ Date: ) December 20, 2019 Time: 9:00 a.m. 17 Filed: February 21, 2019 Trial Date: August 21, 2020 18 19 20 21 22 23 24 25 26 27 28 | - RESPONSE TO PITCHESS MOTION -SUMMARY OF RESPONSE Mildred Oliver claims that she endured discrimination (race and gender), a hostile work environment, and retaliation before she retired from the Oakland Police Lo Department. The City strongly disputes her claims. While Sergeant Oliver was - assigned to the Internal Affairs Division, she investigated a disturbing sexual- WN misconduct scandal, IAD No. 15-0771. Due to deficiencies in the investigation, it HN was reassigned. Later, while Sergeant Oliver was working in the Patrol Division, : Sa she was disciplined for an unrelated violation of the Department's Manual of Rules. Against that backdrop, Sergeant Oliver seeks the entire Internal Affairs file — 10 for [AD No. 15-0771 and the Criminal Investigation Division file related to Officer 11 Brendan O’Brien’s suicide. An apparent suicide note he left led the Department to 12 open IAD No. 15-0771. 13 Under the state’s revised Pitchess statute, some of the records Sergeant Oliver 14 seeks are subject to public disclosure, and the City has produced those records. But 15 many of the records are not. And even though Sergeant Oliver’s allegations rest in 16 part on IAD No.15-0771, the records cannot be produced without going through the 17 Pitchess process. | | | 18 | The parties are working cooperatively to resolve this issue andto make sure 19 that all the records needed to litigate this case are made available. To that end, City . 20 produced what it could without violating the law, the parties met and conferred in 21 good faith on the need for this motion, and the City voluntarily produced other | 22 relevant records that Sergeant Oliver has not yet requested. 23 Lastly, the City notes: that IAD No. 15-0771 is vast. The City is organizing 24 the file to make the Court’s review as easy and efficient as possible. 25 26 27 28 1 RESPONSE TO P/TCHESS MOTION | DISCUSSION I. THE PARTIES MUST GO THROUGH THE PITCHESS PROCESS The state’s Pitchess statue, Penal Code section 832.7, protects police officer we personnel records, citizen complaint records, and “information obtained from these records.” Penal Code § 832.7(a). Such records, the statute provides, “shall not be wa disclosed in any criminal or civil proceeding except by discovery pursuant to Sections A 1043 and 1046 of the Evidence: Code.” Id. ~~ Here, there is no dispute that IAD No. 15-0771 contains records protected by . the Pitchess statute. See Memo. of P. & A. in Support of Pitchess Motion at 4-5. The 10 City, then, cannot produce the records without following the process set forth by 11 Evidence Code sections 1043 and 1046. 12 That process has two steps. First, the party seeking the records must bring a 13 formal motion that has the following supporting information: 14 (1) Identification of the proceeding in which discovery or 15 disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are 16 sought, the governmental agency which has custody and control of the records, and the time and place at which the 17 motion for discovery or disclosure shall be heard: 18 (2) A description of the type of records or information sought. 19 (3) Affidavits showing good cause for the discovery or 20 disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and 21 stating upon reasonable belief that the governmental _ agency identified has the records or information from the 22 records. 23 Evid. Code § 1043(a),(b). 24 Second, if the trial court finds that the records are material and there is good 25 cause to produce them, the court next reviews the records in chambers “out of the 26 presence of all persons except the person authorized to possess the records and such 27 other person the custodian is willing to have present.” People v. Mooc (2001) 26 28 Cal.4th 1216, 1226. , 2 RESPONSE TO PITCHESS MOTION If, based on that review, the trial court finds that any records should be disclosed, the records are subject to a protective order. Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1093. — Here, the parties have already agreed to such an order, which the City - Attorney’s Office adapted from the Northern District’s model order for standard MN litigation. The City attaches it to this brief. | DN II. OFFICER O’BRIEN’S FAMILY ASSERTS A PRIVACY INTEREST SN One of the specific records Sergeant Oliver seeks is an apparent suicide note Oo by Officer O’Brien. Officer O’Brien’s family asserts a privacy interest in the note oO 10 and contends that there is no good cause in this case to release it. The City looks to 11 honor the family’s wishes and defers to the family’s brief on this issue. 12 III]. THE CITY MAINTAINS ATTORNEY-CLIENT AND WORK PRODUCT PRIVELEGES 13 14 Finally, the City does not read Sergeant Oliver’s Pitchess motion as in any 15 way moving to compel any attorney-client communications or work product. The 16 City has.not waived those privileges. The parties are meeting and conferring on 17 whether Sergeant Oliver contends that any such records are not protected. 18 CONCLUSION 19 The City looks forward to working with the Court to facilitate discovery and to 20 ensure that appropriate Pitchess protections are in place. “21 22 Dated: December 9, 2019 Respectfully submitted, 23 DAVID A. PEREDA, Special Counsel 24 25 By: 26 Attorneys for Defendant CITY OF OAKLAND 27 28 3 ‘RESPONSE TO PITCHESS MOTION . PROOF OF SERVICE Mildred L. Oliver v. City of Oakland, et al. Alameda County Superior Court Case No. RG19007799 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is City Hall, One Frank H. Ogawa Plaza, 6th Floor, Oakland, California 94612. On the date set forth below I served the within documents: RESPONSE TO PITCHESS MOTION - NH [] by transmitting via facsimile the document(s) listed above to the fax ss number(s) set forth below, or as stated on the attached service list, on | this date before 5:00 p.m. CO [by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Oakland, oO California addressed as set forth. 10 by causing personal delivery by One Hour Delivery Service of the 11 document(s) listed above to the person(s) at the address(es) set forth | below. 12 C_sby personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. 13 [] by causing such envelope to be sent by Federal Express/ Express Mail. 14 | John Houston Scott 15 Lizabeth n. de Vries Scott Law Firm 16 1388 Sutter Street, Suite 715 17 San Francisco, Telephone: CA (415) 94109 561-9600 Fax: (415) 561-6909 18 Email: john@scottlawfirm.net Email: liza@scottlawfirm.net 19 Attorneys for Plaintiff 20 21 ’ I declare under penalty of perjury under the laws of the State of California 22 that. the above is true and correct. 23 Executed on December 9, 2019 at Oakla Yalifornia. WW CARMA CARDEN 1 PROOF OF SERVICE