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1 JOHN H. SCOTT, ESQ. (STATE BAR NO. 72578)
The Scott Law Firm
2 1388 Sutter Street, Ste. 715
San Francisco, CA 94109
3 Telephone: (415) 569-9600
Facsimile: (415) 561-9609
4 E-mail: john@scottlawfirm.net
5 PAMELA Y. PRICE, ESQ. (STATE BAR NO. 107713)
P.O. Box 5843
6 Oakland, CA 94605
Telephone: (510) 452-0292
7 E-mail: pamela@pypesq.com
Attorneys for Plaintiff
8 MILDRED OLIVER
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF ALAMEDA
12
13
14 MILDRED OLIVER, No. RG19007799
15 Plaintiff, SEPARATE STATEMENT OF
DOCUMENTS TO BE COMPELLED
16 v. PURSUANT TO PLAINTIFF’S PITCHESS
MOTION
17 CITY OF OAKLAND, et al.,
DATE: April 11, 2022
18 Defendants. TIME: 9:00 a.m.
/ DEPT: 25
19
Complaint Filed: February 21, 2019
20 Trial Date: N/A
21
PROPOUNDING PARTY: PLAINTIFF MILDRED OLIVER
22
RESPONDING PARTY: DEFENDANT CITY OF OAKLAND
23
Pursuant to California Rules of Court, Rule 3.1345 and the Court’s Order on Plaintiff’s
24
Motion for Discovery of Police Personnel Information (“Pitchess”) Motion and Setting Briefing
25
Scheduled filed on March 3, 2022, COMES NOW the parties and submit a Separate Statement of
26
Documents to Be Compelled Pursuant to Plaintiff’s Pitchess Motion.
27
28
13530P408-DIS -1-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 REQUEST NO. 21:
2 The employment records of Jason Andersen, excluding medical and benefits information.
3 RESPONSE TO REQUEST NO. 21:
4 The City objects to this request on the following grounds: (1) the request calls for
5 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by
6 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third
7 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence.
8 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
9 One of the disputed issues in this retaliation, gender and race discrimination case is whether
10 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to
11 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in
12 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s
13 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight
14
investigators. She was removed from her assignment to IAD in August 2016 for allegedly
15
conducting “a flawed investigation” into the Guap scandal which “caused significant negative
16
attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and
17
retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and
18
Fifth Causes of Action).
19
Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s
20
removal from multiple IAD investigations “were simply routine personnel decisions” supported by
21
“legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points
22
and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were
23
“deficiencies” in the handling of the IAD investigation which were highlighted by the independent
24
monitoring team (IMT) and later an independent investigator that were “legitimate
25
nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.)
26
Jason Andersen was a similarly-situated OPD investigator assigned to investigate the
27
Celeste Guap scandal. Jason Andersen is a white male employee. He was assigned to the Criminal
28
13530P408-DIS -2-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 Investigations Division (CID) and handled the CID investigation of the Guap case before and about
2 the same time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Anderson’s
3 actions and investigative approach to the Guap case was also more severely criticized by the
4 independent monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s
5 investigation. (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.)
6 Counsel alleges, on information and belief, that Mr. Andersen was not removed from any
7 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, based
8 upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and served
9 concurrently herewith at p. 2:14-21.) Whether Defendant City disciplined and/or treated Sgt. Oliver
10 differently from Mr. Andersen despite the documented deficiencies in his investigation is a material
11 disputed fact in this action, and relevant to the issues of pretext and discrimination.
12 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed under
13 a disparate treatment model, which applies when an individual [has been] “singled out and treated
14
less favorably than others similarly situated on account of race or any other [impermissible]
15
criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. (1982).)
16
Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing (1)
17
that she is a member of a protected class (African-American and female); (2) she was qualified for
18
her position; (3) Defendant City disciplined her; and (4) Defendant City did not discipline
19
similarly-situated non-African-American female employees who violated the same or similar work
20
rules.1 (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493
21
22
1/
The question of whether Defendant City’s actions toward Sgt. Oliver constituted
23
“discipline” or an adverse action of any type is not at issue in the instant discovery motion and it is
24 one of the issues in dispute in the City’s Motion for Summary Judgment, or in the Alternative,
Summary Adjudication of Issues. Sgt. Oliver notes that “although an adverse employment action
25 must materially affect the terms, conditions, or privileges of employment to be actionable, the
determination of whether a particular action or course of conduct rises to the level of actionable
26
conduct should take into account the unique circumstances of the affected employee as well as the
27 workplace context of the claim” and it includes “the entire spectrum of employment actions that are
reasonably likely to adversely and materially affect an employee's job performance or opportunity
28 for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
13530P408-DIS -3-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 (1976); Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. Texas Instruments,
2 555 F.2d 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir.
3 1987).)
4 The requested information is relevant to Sgt. Oliver’s claims and could provide information
5 to establish that she was treated differently then other similarly situated individuals employed at in
6 the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366,
7 100 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816,
8 89 Cal.Rptr.2d 505.)
9 Inconsistency in the application of the decision-making process is evidence of pretext. (See
10 Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the City’s
11 selective application of its asserted basis for denying promotion to Officer Jauregui itself created an
12 inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 Cal.App.4th
13 533, 554 (court compares other candidates for a position for evidence of pretext).) Irregularities and
14
deviations from protocol support an inference of pretext sufficient to overcome summary judgment.
15
(Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) Departure from an
16
employer’s own rules, policies, practices or procedures, may constitute evidence of pretext and
17
unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 758 (9th Cir. 1990).)
18
Mr. Andersen’s employment records will show whether he was disciplined, reassigned or
19
counseled or suffered any adverse consequences for violating “the same or similar work rules”
20
allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. (See
21
Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Andersen was not
22
disciplined, reassigned, counseled or subjected to any adverse consequences for alleged
23
deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient to
24
overcome summary judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 896; see
25
also Morgan v. Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If he was
26
27
28 1052-1054.)
13530P408-DIS -4-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 maintained in his position or even promoted, that information is also
2 relevant to the inquiry. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 663-664.)
3 REQUEST NO. 22:
4 The employment records of Brad Baker, excluding medical and benefits information.
5 RESPONSE TO REQUEST NO. 22:
6 The City objects to this request on the following grounds: (1) the request calls for
7 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by
8 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third
9 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence.
10 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
11 One of the disputed issues in this retaliation, gender and race discrimination case is whether
12 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to
13 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in
14
connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s
15
Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight
16
investigators. She was removed from her assignment to IAD in August 2016 for allegedly
17
conducting “a flawed investigation” into the Guap scandal which “caused significant negative
18
attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and
19
retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and
20
Fifth Causes of Action).
21
Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s
22
removal from multiple IAD investigations “were simply routine personnel decisions” supported by
23
“legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points
24
and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were
25
“deficiencies” in the handling of the IAD investigation which were highlighted by the independent
26
monitoring team (IMT) and later an independent investigator that were “legitimate
27
nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.)
28
13530P408-DIS -5-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 Brad Baker was a similarly-situated OPD investigator assigned to investigate the Celeste
2 Guap scandal. Brad Baker is a white male employee. He was assigned to the Criminal
3 Investigations Division (CID) and handled the CID investigation of the Guap case before and about
4 the same time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Baker’s
5 actions and investigative approach to the Guap case was also more severely criticized by the
6 independent monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s
7 investigation. (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.)
8 Counsel alleges, on information and belief, that Mr. Baker was not removed from any
9 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, based
10 upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and served
11 concurrently herewith at p.2:14-21.) Whether Defendant City disciplined and/or treated Sgt. Oliver
12 differently from Mr. Baker despite the documented deficiencies in his investigation is a material
13 disputed fact in this action, and relevant to the issues of pretext and discrimination.
14
Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed under
15
a disparate treatment model, which applies when an individual [has been] “singled out and treated
16
less favorably than others similarly situated on account of race or any other [impermissible]
17
criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. (1982).)
18
Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing (1)
19
that she is a member of a protected class (African-American and female); (2) she was qualified for
20
her position; (3) Defendant City disciplined her; and (4) Defendant City did not discipline
21
similarly-situated non-African-American female employees who violated the same or similar work
22
rules. (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493
23
(1976); Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. Texas Instruments,
24
555 F.2d 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir.
25
1987).)
26
The requested information is relevant to Sgt. Oliver’s claims and could provide information
27
to establish that she was treated differently then other similarly situated individuals employed at in
28
13530P408-DIS -6-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366,
2 100 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816,
3 89 Cal.Rptr.2d 505.)
4 Inconsistency in the application of the decision-making process is evidence of pretext. (See
5 Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the City’s
6 selective application of its asserted basis for denying promotion to Officer Jauregui itself created an
7 inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 Cal.App.4th
8 533, 554 (court compares other candidates for a position for evidence of pretext).) Irregularities and
9 deviations from protocol support an inference of pretext sufficient to overcome summary judgment.
10 (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) Departure from an
11 employer’s own rules, policies, practices or procedures, may constitute evidence of pretext and
12 unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 758 (9th Cir. 1990).)
13 Mr. Baker’s employment records will show whether he was disciplined, reassigned or
14
counseled or suffered any adverse consequences for violating “the same or similar work rules”
15
allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. (See
16
Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Baker was not
17
disciplined, reassigned, counseled or subjected to any adverse consequences for alleged
18
deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient to
19
overcome summary judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 896; see
20
also Morgan v. Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If he was
21
maintained in his position or even promoted, that information is also relevant to the inquiry. (Riske
22
v. Superior Court (2016) 6 Cal.App.5th 647, 663-664.)
23
REQUEST NO. 23:
24
The employment records of Dominique Arotzarena, excluding medical and benefits
25
information.
26
RESPONSE TO REQUEST NO. 23:
27
The City objects to this request on the following grounds: (1) the request calls for
28
13530P408-DIS -7-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by
2 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third
3 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence.
4 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
5 The disputed issues in this gender and race discrimination case include (1) whether Sgt.
6 Oliver was subjected to discrimination based upon her gender and/or race or retaliation when she
7 was “scapegoated” and removed from her assignment to IAD in August 2016; (2) whether her new
8 supervisor, Acting Lt. Dominique Arotzarena created a hostile work environment for her based on
9 her gender or race; and (3) whether Lt. Arotzarena instigated an unfair investigation which resulted
10 in overly harsh disciplinary action against Sgt. Oliver based on her gender and/or race, or in
11 retaliation for her previous protected activity in connection with the Guap scandal. (See First
12 Amended Complaint, paras. 40-46; First, Second, Third, Fourth and Fifth Causes of Action).
13 Lt. Dominique Arotzarena’s actions, motive and intent are at the heart of the allegations in
14
this case. Sgt. Oliver has alleged that he created a hostile work environment for her by inter alia
15
undermining her supervisory authority and verbally belittling her in front of her colleagues. (First
16
Amended Complaint, para. 46.) Plaintiff is also informed and believes, and has alleged that he
17
played a significant role in instigating disciplinary action against her and Chief Kirkpatrick’s
18
decision to demote her. (Ibid. at paras. 45, 60.)
19
Under the “cat’s paw” theory, Lt. Arotzarena’s improper motives can be imputed to the
20
decisionmaker, in this case, Chief Kirkpatrick. If the decisionmakers worked closely together in
21
formulating personnel decisions, a supervisor’s bias may be imputed to the subordinate and vice-
22
versa. (Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027, at fn. 5, compiling
23
cases, including Wells v. New Cherokee Corp., 58 F.3d 233, 237-238 (6th Cir. 1995) (a
24
supervisor’s animus imputed to the ultimate decisionmaker, because evidence showed that the two
25
“worked closely together and consulted with each other on personnel decisions” and they
26
“themselves testified that they acted jointly”) and Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir.
27
2003) (the relevant inquiry is whether the person who made the discriminatory remark “had
28
13530P408-DIS -8-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 influence or leverage over” the formal decisionmaker).)
2 In addition to his employment history, Lt. Arotzarena’s employment records should include
3 any complaints of gender and/or race discrimination or harassment against him, complaints of
4 retaliation against him, and whether he has himself ever alleged any form of retaliation or
5 harassment, and whether he has been counselled, reprimanded or disciplined for prior similar
6 conduct, This information is probative of his motives and the intent underlying his actions toward
7 Sgt. Oliver. When the officer’s conduct is material to the claims, good cause exists for production
8 of his personnel records. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 659.)
9 Personnel files and other performance-related documents are discoverable under California
10 law to show other allegations of misconduct or discriminatory intent. (Bihun v. AT&T Information
11 Systems (1993) 13 Cal.App.4th 976, 16 Cal.Rptr.2d 787; see also Riske v. Superior Court, 6
12 Cal.App.5th supra at 657-658.) It has long been held that any doubts as to relevance should
13 generally be resolved in favor of permitting discovery. (Pacific Telephone & Telegraph Co. v.
14
Superior Court (1970) 2 Cal.3d 161, 173, 84 Cal.Rptr. 718; accord, Williams v. Superior Court
15
(2017) 3 Cal.5th 531, 542.)
16
REQUEST NO. 24:
17
Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR decision to
18
discipline Plaintiff Mildred Oliver, including but not limited to the entire IAD Investigation File
19
No. 17-0139.
20
RESPONSE TO REQUEST NO. 24:
21
The City objects to this request on the following grounds: (1) the request is overbroad; (2)
22
the request calls for information protected by Cal. Penal Code § 832.7; (3) the request calls for
23
information protected by Cal. Evid. Code §§ 1040-43; and (4) the request calls for confidential and
24
private information of third parties.
25
Without waiving these objections, the City’s custodian of records will provide the entire
26
IAD File for IAD investigation No. 17-0139 to the trial court for an in camera review pursuant to a
27
properly noticed Pitchess motion. To the extent there are other documents beyond the IAD files,
28
13530P408-DIS -9-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 the City will produce responsive non-privileged documents in its custody and control.
2 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
3 Based on the City’s response, this issue is moot.
4 REQUEST NO. 26:
5 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR
6 investigation referenced in the e-mail dated November 16, 2015 from Belinda Calvin-Adlao to
7 Spruce Metzger in the Oakland City Administrator’s office, as described in the article “High-Level
8 City Staff Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed”
9 published on February 10, 2017 and attached hereto as Exhibit A, including but not limited to the
10 entire Investigation File.
11 RESPONSE TO REQUEST NO. 26:
12 The City objects to this request on the following grounds: (1) the term “investigation” is
13 vague and overbroad; (2) the request calls for information protected by Cal. Penal Code § 832.7;
14
(3) the request calls for information protected by Cal. Evid. Code §§ 1040-43; (4) the request calls
15
for information protected by Cal. Code of Civ. Proc. § 129; (5) the request calls for confidential
16
and private information of third parties; (6) the request is not reasonably calculated to lead to the
17
discovery of admissible evidence; (7) the request calls for attorney-client communications and
18
work product; and (8) the request refers to hearsay statements from a news article which the City
19
has no reasonable way of verifying and calls for the City’s interpretation of the article.
20
Without waiving these objections, the City has already produced all documents responsive
21
to this request—the author of the article attached to these requests appears to be describing IAD
22
investigation 15-0771, and thus all responsive documents, including the entire IAD investigative
23
file for 15-0771, were produced pursuant to the Court’s December 27, 2019 order.
24
REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
25
Based on the City’s response, this issue is moot.
26
REQUEST NO. 27:
27
Any and all COMMUNICATIONS from Belinda Calvin-Adlao to City Attorney Allyson
28
13530P408-DIS -10-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 Cook regarding the investigation of Monica Cedillo described in the article “High-Level City Staff
2 Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed” published on
3 February 10, 2017 and attached hereto as Exhibit A, including but not limited to any e-mails sent
4 during the period from November 2015 to December 2015.
5 RESPONSE TO REQUEST NO. 27:
6 The City objects to this request on the following grounds: (1) the term “investigation” is
7 vague and overbroad; (2) the request calls for confidential and private information of third parties;
8 (3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4)
9 the request refers to hearsay statements from a news article which the City has no reasonable way
10 of verifying and calls for the City’s interpretation of the article.
11 Without waiving these objections, the City will produce responsive documents in its
12 custody and control.
13 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
14
Based on the City’s response, this issue is moot.
15
REQUEST NO. 28:
16
Any and all COMMUNICATIONS from City Attorney Allyson Cook to Belinda Calvin-
17
Adlao regarding the investigation of Monica Cedillo described in the article “High-Level City Staff
18
Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed” published on
19
February 10, 2017 and attached hereto as Exhibit A, including but not limited to any e-mails sent
20
during the period from November 2015 to December 2015.
21
RESPONSE TO REQUEST NO. 28:
22
The City objects to this request on the following grounds: (1) the term “investigation” is
23
vague and overbroad; (2) the request calls for confidential and private information of third parties;
24
(3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4)
25
the request refers to hearsay statements from a news article which the City has no reasonable way
26
of verifying and calls for the City’s interpretation of the article.
27
Without waiving these objections, the City will produce responsive documents in its
28
13530P408-DIS -11-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 custody and control.
2 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
3 Based on the City’s response, this issue is moot.
4 REQUEST NO. 29:
5 Any and all e-mails to YOU from Belinda Calvin-Adlao regarding the investigation of
6 Monica Cedillo described in the article “High-Level City Staff Knew of Police Sex Crimes Months
7 Before Oakland Mayor Says She Was Informed” published on February 10, 2017 and attached
8 hereto as Exhibit A.
9 RESPONSE TO REQUEST NO. 29:
10 The City objects to this request on the following grounds: (1) the term “investigation” is
11 vague and overbroad; (2) the request calls for confidential and private information of third parties;
12 (3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4)
13 the request refers to hearsay statements from a news article which the City has no reasonable way
14
of verifying and calls for the City’s interpretation of the article.
15
Without waiving these objections, the City will produce responsive documents in its
16
custody and control.
17
REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
18
Based on the City’s response, this issue is moot.
19
REQUEST NO. 30:
20
Any and all e-mails from YOU to Belinda Calvin-Adlao regarding the investigation of
21
Monica Cedillo described in the article “High-Level City Staff Knew of Police Sex Crimes Months
22
Before Oakland Mayor Says She Was Informed” published on February 10, 2017 and attached
23
hereto as Exhibit A.
24
RESPONSE TO REQUEST NO. 30:
25
The City objects to this request on the following grounds: (1) the term “investigation” is
26
vague and overbroad; (2) the request calls for confidential and private information of third parties;
27
(3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4)
28
13530P408-DIS -12-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
1 the request refers to hearsay statements from a news article which the City has no reasonable way
2 of verifying and calls for the City’s interpretation of the article.
3 Without waiving these objections, the City will produce responsive documents in its
4 custody and control.
5 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
6 Based on the City’s response, this issue is moot.
7 REQUEST NO. 31:
8 Any and all COMMUNICATIONS between YOU and Edward Swanson regarding the
9 investigation of Monica Cedillo described in the article “High-Level City Staff Knew of Police Sex
10 Crimes Months Before Oakland Mayor Says She Was Informed” published on February 10, 2017
11 and attached hereto as Exhibit A.
12 RESPONSE TO REQUEST NO. 31:
13 The City objects to this request on the following grounds: (1) the term “investigation” is
14
vague and overbroad; (2) the request calls for information protected by Cal. Penal Code § 832.7;
15
the request calls for information protected by Cal. Evid. Code §§ 1040-43; (4) the request calls for
16
confidential and private information of third parties; (5) the request calls for information that is
17
confidential pursuant to court orders and the negotiated settlement agreement in Allen v. City of
18
Oakland, Case No. 3:00-cv-04599-WHO, (6) the request is not reasonably calculated to lead to the
19
discovery of admissible evidence; (7) the request calls for attorney-client communications and
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work product; and (8) the request refers to hearsay statements from a news article which the City
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has no reasonable way of verifying and calls for the City’s interpretation of the article.
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REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
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Based on the City’s response, Plaintiff does not contend that the information sought is
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information protected by California Penal Code § 832.7 or Evidence Code §§ 1040-1043.
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Dated: April 11, 2022 PAMELA Y. PRICE, Attorney at Law
26
Pamela Y. Price
27 PAMELA Y. PRICE, Attorneys for Plaintiff
MILDRED OLIVER
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13530P408-DIS -13-
PLAINTIFF’S SEPARATE STATEMENT (RG19007799)
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1 JOHN H. SCOTT, ESQ. (STATE BAR NO. 72578) The Scott Law Firm 2 1388 Sutter Street, Ste. 715 San Francisco, CA 94109 3 Telephone: (415) 569-9600 Facsimile: (415) 561-9609 4 E-mail: john@scottlawfirm.net 5 PAMELA Y. PRICE, ESQ. (STATE BAR NO. 107713) P.O. Box 5843 6 Oakland, CA 94605 Telephone: (510) 452-0292 7 E-mail: pamela@pypesq.com Attorneys for Plaintiff 8 MILDRED OLIVER 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF ALAMEDA 12 13 14 MILDRED OLIVER, No. RG19007799 15 Plaintiff, SEPARATE STATEMENT OF DOCUMENTS TO BE COMPELLED 16 v. PURSUANT TO PLAINTIFF’S PITCHESS MOTION 17 CITY OF OAKLAND, et al., DATE: April 11, 2022 18 Defendants. TIME: 9:00 a.m. / DEPT: 25 19 Complaint Filed: February 21, 2019 20 Trial Date: N/A 21 PROPOUNDING PARTY: PLAINTIFF MILDRED OLIVER 22 RESPONDING PARTY: DEFENDANT CITY OF OAKLAND 23 Pursuant to California Rules of Court, Rule 3.1345 and the Court’s Order on Plaintiff’s 24 Motion for Discovery of Police Personnel Information (“Pitchess”) Motion and Setting Briefing 25 Scheduled filed on March 3, 2022, COMES NOW the parties and submit a Separate Statement of 26 Documents to Be Compelled Pursuant to Plaintiff’s Pitchess Motion. 27 28 13530P408-DIS -1- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 REQUEST NO. 21: 2 The employment records of Jason Andersen, excluding medical and benefits information. 3 RESPONSE TO REQUEST NO. 21: 4 The City objects to this request on the following grounds: (1) the request calls for 5 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by 6 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third 7 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence. 8 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 9 One of the disputed issues in this retaliation, gender and race discrimination case is whether 10 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to 11 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in 12 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s 13 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight 14 investigators. She was removed from her assignment to IAD in August 2016 for allegedly 15 conducting “a flawed investigation” into the Guap scandal which “caused significant negative 16 attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and 17 retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and 18 Fifth Causes of Action). 19 Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s 20 removal from multiple IAD investigations “were simply routine personnel decisions” supported by 21 “legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points 22 and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were 23 “deficiencies” in the handling of the IAD investigation which were highlighted by the independent 24 monitoring team (IMT) and later an independent investigator that were “legitimate 25 nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.) 26 Jason Andersen was a similarly-situated OPD investigator assigned to investigate the 27 Celeste Guap scandal. Jason Andersen is a white male employee. He was assigned to the Criminal 28 13530P408-DIS -2- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 Investigations Division (CID) and handled the CID investigation of the Guap case before and about 2 the same time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Anderson’s 3 actions and investigative approach to the Guap case was also more severely criticized by the 4 independent monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s 5 investigation. (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) 6 Counsel alleges, on information and belief, that Mr. Andersen was not removed from any 7 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, based 8 upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and served 9 concurrently herewith at p. 2:14-21.) Whether Defendant City disciplined and/or treated Sgt. Oliver 10 differently from Mr. Andersen despite the documented deficiencies in his investigation is a material 11 disputed fact in this action, and relevant to the issues of pretext and discrimination. 12 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed under 13 a disparate treatment model, which applies when an individual [has been] “singled out and treated 14 less favorably than others similarly situated on account of race or any other [impermissible] 15 criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. (1982).) 16 Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing (1) 17 that she is a member of a protected class (African-American and female); (2) she was qualified for 18 her position; (3) Defendant City disciplined her; and (4) Defendant City did not discipline 19 similarly-situated non-African-American female employees who violated the same or similar work 20 rules.1 (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 21 22 1/ The question of whether Defendant City’s actions toward Sgt. Oliver constituted 23 “discipline” or an adverse action of any type is not at issue in the instant discovery motion and it is 24 one of the issues in dispute in the City’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues. Sgt. Oliver notes that “although an adverse employment action 25 must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable 26 conduct should take into account the unique circumstances of the affected employee as well as the 27 workplace context of the claim” and it includes “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity 28 for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 13530P408-DIS -3- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 (1976); Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. Texas Instruments, 2 555 F.2d 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir. 3 1987).) 4 The requested information is relevant to Sgt. Oliver’s claims and could provide information 5 to establish that she was treated differently then other similarly situated individuals employed at in 6 the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366, 7 100 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816, 8 89 Cal.Rptr.2d 505.) 9 Inconsistency in the application of the decision-making process is evidence of pretext. (See 10 Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the City’s 11 selective application of its asserted basis for denying promotion to Officer Jauregui itself created an 12 inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 Cal.App.4th 13 533, 554 (court compares other candidates for a position for evidence of pretext).) Irregularities and 14 deviations from protocol support an inference of pretext sufficient to overcome summary judgment. 15 (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) Departure from an 16 employer’s own rules, policies, practices or procedures, may constitute evidence of pretext and 17 unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 758 (9th Cir. 1990).) 18 Mr. Andersen’s employment records will show whether he was disciplined, reassigned or 19 counseled or suffered any adverse consequences for violating “the same or similar work rules” 20 allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. (See 21 Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Andersen was not 22 disciplined, reassigned, counseled or subjected to any adverse consequences for alleged 23 deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient to 24 overcome summary judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 896; see 25 also Morgan v. Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If he was 26 27 28 1052-1054.) 13530P408-DIS -4- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 maintained in his position or even promoted, that information is also 2 relevant to the inquiry. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 663-664.) 3 REQUEST NO. 22: 4 The employment records of Brad Baker, excluding medical and benefits information. 5 RESPONSE TO REQUEST NO. 22: 6 The City objects to this request on the following grounds: (1) the request calls for 7 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by 8 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third 9 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence. 10 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 11 One of the disputed issues in this retaliation, gender and race discrimination case is whether 12 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to 13 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in 14 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s 15 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight 16 investigators. She was removed from her assignment to IAD in August 2016 for allegedly 17 conducting “a flawed investigation” into the Guap scandal which “caused significant negative 18 attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and 19 retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and 20 Fifth Causes of Action). 21 Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s 22 removal from multiple IAD investigations “were simply routine personnel decisions” supported by 23 “legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points 24 and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were 25 “deficiencies” in the handling of the IAD investigation which were highlighted by the independent 26 monitoring team (IMT) and later an independent investigator that were “legitimate 27 nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.) 28 13530P408-DIS -5- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 Brad Baker was a similarly-situated OPD investigator assigned to investigate the Celeste 2 Guap scandal. Brad Baker is a white male employee. He was assigned to the Criminal 3 Investigations Division (CID) and handled the CID investigation of the Guap case before and about 4 the same time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Baker’s 5 actions and investigative approach to the Guap case was also more severely criticized by the 6 independent monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s 7 investigation. (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) 8 Counsel alleges, on information and belief, that Mr. Baker was not removed from any 9 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, based 10 upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and served 11 concurrently herewith at p.2:14-21.) Whether Defendant City disciplined and/or treated Sgt. Oliver 12 differently from Mr. Baker despite the documented deficiencies in his investigation is a material 13 disputed fact in this action, and relevant to the issues of pretext and discrimination. 14 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed under 15 a disparate treatment model, which applies when an individual [has been] “singled out and treated 16 less favorably than others similarly situated on account of race or any other [impermissible] 17 criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. (1982).) 18 Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing (1) 19 that she is a member of a protected class (African-American and female); (2) she was qualified for 20 her position; (3) Defendant City disciplined her; and (4) Defendant City did not discipline 21 similarly-situated non-African-American female employees who violated the same or similar work 22 rules. (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 23 (1976); Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. Texas Instruments, 24 555 F.2d 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir. 25 1987).) 26 The requested information is relevant to Sgt. Oliver’s claims and could provide information 27 to establish that she was treated differently then other similarly situated individuals employed at in 28 13530P408-DIS -6- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366, 2 100 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816, 3 89 Cal.Rptr.2d 505.) 4 Inconsistency in the application of the decision-making process is evidence of pretext. (See 5 Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the City’s 6 selective application of its asserted basis for denying promotion to Officer Jauregui itself created an 7 inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 Cal.App.4th 8 533, 554 (court compares other candidates for a position for evidence of pretext).) Irregularities and 9 deviations from protocol support an inference of pretext sufficient to overcome summary judgment. 10 (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) Departure from an 11 employer’s own rules, policies, practices or procedures, may constitute evidence of pretext and 12 unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 758 (9th Cir. 1990).) 13 Mr. Baker’s employment records will show whether he was disciplined, reassigned or 14 counseled or suffered any adverse consequences for violating “the same or similar work rules” 15 allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. (See 16 Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Baker was not 17 disciplined, reassigned, counseled or subjected to any adverse consequences for alleged 18 deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient to 19 overcome summary judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 896; see 20 also Morgan v. Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If he was 21 maintained in his position or even promoted, that information is also relevant to the inquiry. (Riske 22 v. Superior Court (2016) 6 Cal.App.5th 647, 663-664.) 23 REQUEST NO. 23: 24 The employment records of Dominique Arotzarena, excluding medical and benefits 25 information. 26 RESPONSE TO REQUEST NO. 23: 27 The City objects to this request on the following grounds: (1) the request calls for 28 13530P408-DIS -7- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by 2 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third 3 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence. 4 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 5 The disputed issues in this gender and race discrimination case include (1) whether Sgt. 6 Oliver was subjected to discrimination based upon her gender and/or race or retaliation when she 7 was “scapegoated” and removed from her assignment to IAD in August 2016; (2) whether her new 8 supervisor, Acting Lt. Dominique Arotzarena created a hostile work environment for her based on 9 her gender or race; and (3) whether Lt. Arotzarena instigated an unfair investigation which resulted 10 in overly harsh disciplinary action against Sgt. Oliver based on her gender and/or race, or in 11 retaliation for her previous protected activity in connection with the Guap scandal. (See First 12 Amended Complaint, paras. 40-46; First, Second, Third, Fourth and Fifth Causes of Action). 13 Lt. Dominique Arotzarena’s actions, motive and intent are at the heart of the allegations in 14 this case. Sgt. Oliver has alleged that he created a hostile work environment for her by inter alia 15 undermining her supervisory authority and verbally belittling her in front of her colleagues. (First 16 Amended Complaint, para. 46.) Plaintiff is also informed and believes, and has alleged that he 17 played a significant role in instigating disciplinary action against her and Chief Kirkpatrick’s 18 decision to demote her. (Ibid. at paras. 45, 60.) 19 Under the “cat’s paw” theory, Lt. Arotzarena’s improper motives can be imputed to the 20 decisionmaker, in this case, Chief Kirkpatrick. If the decisionmakers worked closely together in 21 formulating personnel decisions, a supervisor’s bias may be imputed to the subordinate and vice- 22 versa. (Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027, at fn. 5, compiling 23 cases, including Wells v. New Cherokee Corp., 58 F.3d 233, 237-238 (6th Cir. 1995) (a 24 supervisor’s animus imputed to the ultimate decisionmaker, because evidence showed that the two 25 “worked closely together and consulted with each other on personnel decisions” and they 26 “themselves testified that they acted jointly”) and Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 27 2003) (the relevant inquiry is whether the person who made the discriminatory remark “had 28 13530P408-DIS -8- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 influence or leverage over” the formal decisionmaker).) 2 In addition to his employment history, Lt. Arotzarena’s employment records should include 3 any complaints of gender and/or race discrimination or harassment against him, complaints of 4 retaliation against him, and whether he has himself ever alleged any form of retaliation or 5 harassment, and whether he has been counselled, reprimanded or disciplined for prior similar 6 conduct, This information is probative of his motives and the intent underlying his actions toward 7 Sgt. Oliver. When the officer’s conduct is material to the claims, good cause exists for production 8 of his personnel records. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 659.) 9 Personnel files and other performance-related documents are discoverable under California 10 law to show other allegations of misconduct or discriminatory intent. (Bihun v. AT&T Information 11 Systems (1993) 13 Cal.App.4th 976, 16 Cal.Rptr.2d 787; see also Riske v. Superior Court, 6 12 Cal.App.5th supra at 657-658.) It has long been held that any doubts as to relevance should 13 generally be resolved in favor of permitting discovery. (Pacific Telephone & Telegraph Co. v. 14 Superior Court (1970) 2 Cal.3d 161, 173, 84 Cal.Rptr. 718; accord, Williams v. Superior Court 15 (2017) 3 Cal.5th 531, 542.) 16 REQUEST NO. 24: 17 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR decision to 18 discipline Plaintiff Mildred Oliver, including but not limited to the entire IAD Investigation File 19 No. 17-0139. 20 RESPONSE TO REQUEST NO. 24: 21 The City objects to this request on the following grounds: (1) the request is overbroad; (2) 22 the request calls for information protected by Cal. Penal Code § 832.7; (3) the request calls for 23 information protected by Cal. Evid. Code §§ 1040-43; and (4) the request calls for confidential and 24 private information of third parties. 25 Without waiving these objections, the City’s custodian of records will provide the entire 26 IAD File for IAD investigation No. 17-0139 to the trial court for an in camera review pursuant to a 27 properly noticed Pitchess motion. To the extent there are other documents beyond the IAD files, 28 13530P408-DIS -9- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 the City will produce responsive non-privileged documents in its custody and control. 2 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 3 Based on the City’s response, this issue is moot. 4 REQUEST NO. 26: 5 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR 6 investigation referenced in the e-mail dated November 16, 2015 from Belinda Calvin-Adlao to 7 Spruce Metzger in the Oakland City Administrator’s office, as described in the article “High-Level 8 City Staff Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed” 9 published on February 10, 2017 and attached hereto as Exhibit A, including but not limited to the 10 entire Investigation File. 11 RESPONSE TO REQUEST NO. 26: 12 The City objects to this request on the following grounds: (1) the term “investigation” is 13 vague and overbroad; (2) the request calls for information protected by Cal. Penal Code § 832.7; 14 (3) the request calls for information protected by Cal. Evid. Code §§ 1040-43; (4) the request calls 15 for information protected by Cal. Code of Civ. Proc. § 129; (5) the request calls for confidential 16 and private information of third parties; (6) the request is not reasonably calculated to lead to the 17 discovery of admissible evidence; (7) the request calls for attorney-client communications and 18 work product; and (8) the request refers to hearsay statements from a news article which the City 19 has no reasonable way of verifying and calls for the City’s interpretation of the article. 20 Without waiving these objections, the City has already produced all documents responsive 21 to this request—the author of the article attached to these requests appears to be describing IAD 22 investigation 15-0771, and thus all responsive documents, including the entire IAD investigative 23 file for 15-0771, were produced pursuant to the Court’s December 27, 2019 order. 24 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 25 Based on the City’s response, this issue is moot. 26 REQUEST NO. 27: 27 Any and all COMMUNICATIONS from Belinda Calvin-Adlao to City Attorney Allyson 28 13530P408-DIS -10- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 Cook regarding the investigation of Monica Cedillo described in the article “High-Level City Staff 2 Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed” published on 3 February 10, 2017 and attached hereto as Exhibit A, including but not limited to any e-mails sent 4 during the period from November 2015 to December 2015. 5 RESPONSE TO REQUEST NO. 27: 6 The City objects to this request on the following grounds: (1) the term “investigation” is 7 vague and overbroad; (2) the request calls for confidential and private information of third parties; 8 (3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4) 9 the request refers to hearsay statements from a news article which the City has no reasonable way 10 of verifying and calls for the City’s interpretation of the article. 11 Without waiving these objections, the City will produce responsive documents in its 12 custody and control. 13 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 14 Based on the City’s response, this issue is moot. 15 REQUEST NO. 28: 16 Any and all COMMUNICATIONS from City Attorney Allyson Cook to Belinda Calvin- 17 Adlao regarding the investigation of Monica Cedillo described in the article “High-Level City Staff 18 Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed” published on 19 February 10, 2017 and attached hereto as Exhibit A, including but not limited to any e-mails sent 20 during the period from November 2015 to December 2015. 21 RESPONSE TO REQUEST NO. 28: 22 The City objects to this request on the following grounds: (1) the term “investigation” is 23 vague and overbroad; (2) the request calls for confidential and private information of third parties; 24 (3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4) 25 the request refers to hearsay statements from a news article which the City has no reasonable way 26 of verifying and calls for the City’s interpretation of the article. 27 Without waiving these objections, the City will produce responsive documents in its 28 13530P408-DIS -11- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 custody and control. 2 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 3 Based on the City’s response, this issue is moot. 4 REQUEST NO. 29: 5 Any and all e-mails to YOU from Belinda Calvin-Adlao regarding the investigation of 6 Monica Cedillo described in the article “High-Level City Staff Knew of Police Sex Crimes Months 7 Before Oakland Mayor Says She Was Informed” published on February 10, 2017 and attached 8 hereto as Exhibit A. 9 RESPONSE TO REQUEST NO. 29: 10 The City objects to this request on the following grounds: (1) the term “investigation” is 11 vague and overbroad; (2) the request calls for confidential and private information of third parties; 12 (3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4) 13 the request refers to hearsay statements from a news article which the City has no reasonable way 14 of verifying and calls for the City’s interpretation of the article. 15 Without waiving these objections, the City will produce responsive documents in its 16 custody and control. 17 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 18 Based on the City’s response, this issue is moot. 19 REQUEST NO. 30: 20 Any and all e-mails from YOU to Belinda Calvin-Adlao regarding the investigation of 21 Monica Cedillo described in the article “High-Level City Staff Knew of Police Sex Crimes Months 22 Before Oakland Mayor Says She Was Informed” published on February 10, 2017 and attached 23 hereto as Exhibit A. 24 RESPONSE TO REQUEST NO. 30: 25 The City objects to this request on the following grounds: (1) the term “investigation” is 26 vague and overbroad; (2) the request calls for confidential and private information of third parties; 27 (3) the request is not reasonably calculated to lead to the discovery of admissible evidence; and (4) 28 13530P408-DIS -12- PLAINTIFF’S SEPARATE STATEMENT (RG19007799) 1 the request refers to hearsay statements from a news article which the City has no reasonable way 2 of verifying and calls for the City’s interpretation of the article. 3 Without waiving these objections, the City will produce responsive documents in its 4 custody and control. 5 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 6 Based on the City’s response, this issue is moot. 7 REQUEST NO. 31: 8 Any and all COMMUNICATIONS between YOU and Edward Swanson regarding the 9 investigation of Monica Cedillo described in the article “High-Level City Staff Knew of Police Sex 10 Crimes Months Before Oakland Mayor Says She Was Informed” published on February 10, 2017 11 and attached hereto as Exhibit A. 12 RESPONSE TO REQUEST NO. 31: 13 The City objects to this request on the following grounds: (1) the term “investigation” is 14 vague and overbroad; (2) the request calls for information protected by Cal. Penal Code § 832.7; 15 the request calls for information protected by Cal. Evid. Code §§ 1040-43; (4) the request calls for 16 confidential and private information of third parties; (5) the request calls for information that is 17 confidential pursuant to court orders and the negotiated settlement agreement in Allen v. City of 18 Oakland, Case No. 3:00-cv-04599-WHO, (6) the request is not reasonably calculated to lead to the 19 discovery of admissible evidence; (7) the request calls for attorney-client communications and 20 work product; and (8) the request refers to hearsay statements from a news article which the City 21 has no reasonable way of verifying and calls for the City’s interpretation of the article. 22 REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 23 Based on the City’s response, Plaintiff does not contend that the information sought is 24 information protected by California Penal Code § 832.7 or Evidence Code §§ 1040-1043. 25 Dated: April 11, 2022 PAMELA Y. PRICE, Attorney at Law 26 Pamela Y. Price 27 PAMELA Y. PRICE, Attorneys for Plaintiff MILDRED OLIVER 28 13530P408-DIS -13- PLAINTIFF’S SEPARATE STATEMENT (RG19007799)