Stanford Law School - Robert Crown Law Library

Filed 12/1/14



IN THE SUPREME COURT OF CALIFORNIA



RIVERSIDE COUNTY SHERIFF‘S

DEPARTMENT,

Plaintiff and Respondent,

S206350

v.

Ct.App. 4/2 E052729

JAN STIGLITZ, as Hearing Officer, etc.,

Riverside County

Defendant and Respondent;

Super. Ct. No. RIC10004998

KRISTY DRINKWATER,

Real Party in Interest and

Respondent;

RIVERSIDE SHERIFFS‘

ASSOCIATION,

Intervener and Appellant.

____________________________________)


RIVERSIDE COUNTY SHERIFF‘S

DEPARTMENT,

Plaintiff and Respondent,

v.

Ct.App. 4/2 E052807

JAN STIGLITZ, as Hearing Officer, etc.,

Riverside County

Defendant and Respondent;

Super. Ct. No. RIC10004998

KRISTY DRINKWATER,

---

Real Party in Interest and

Appellant.



Here we hold that when hearing an administrative appeal from discipline

imposed on a correctional officer, an arbitrator may rule upon a discovery motion

for officer personnel records, commonly referred to as a Pitchess motion.

(Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Evid. Code, §§ 1043,

1045.) Evidence Code section 1043 expressly provides that Pitchess motions may

be filed with an appropriate ―administrative body.‖ The language reflects a

legislative intent that administrative hearing officers be allowed to rule on these

motions. This holding harmonizes the statutory scheme with other Evidence Code

provisions and furthers the goals of the Public Safety Officers Procedural Bill of

Rights Act (Gov. Code, § 3300 et seq.).

I. BACKGROUND

The Riverside County Sheriff‘s Department (the department) fired Deputy

Kristy Drinkwater for falsifying her payroll forms. A memorandum of

understanding (MOU) between the Riverside Sheriffs‘ Association (Sheriffs‘

Association) and the county provided for an administrative appeal. The parties

chose arbitrator Jan Stiglitz as the hearing officer.

Drinkwater intended to urge a disparate treatment defense, claiming that

others had committed similar misconduct but were not fired. Accordingly, she

sought discovery of redacted records ―from personnel investigations of any

Department employees who have been disciplined for similar acts of misconduct.‖

(See Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 105-106; Talmo v.

Civil Service Com. (1991) 231 Cal.App.3d 210, 229-231.) Limiting her request to

events during the previous five years, she sought incident summaries, the rank of

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the officer, and the discipline imposed. The department objected, arguing in part

that Drinkwater could not satisfy the requirements for a Pitchess motion under

Evidence Code sections 1043 and 1045, and could not establish the good cause

required for discovery. Stiglitz denied the motion without prejudice, ruling the

department need not search its records for similar disciplinary cases. Instead,

Drinkwater was obligated to identify particular officers whose records she

believed were relevant to her claim.

Drinkwater renewed her motion, supported by counsel‘s declaration that 11

named officers had allegedly committed similar misconduct but received little or

no discipline. Stiglitz ordered production of the 11 officers‘ records for in camera

review.

The department sought a writ of administrative mandate in superior court.

(See Code Civ. Proc., § 1094.5.) It argued initially that Drinkwater failed to

establish good cause for discovery because counsel‘s declaration was speculative

and Pitchess discovery was only available for officers involved in the underlying

incident at issue. The department then filed a supplemental brief citing the recent

case of Brown v. Valverde (2010) 183 Cal.App.4th 1531 (Brown). Brown held

that a driver facing a license suspension for driving under the influence could not

seek Pitchess discovery in a Department of Motor Vehicles (DMV) administrative

proceeding. (See discussion, post.) Relying upon Brown, the department argued

only judicial officers could grant Pitchess motions, depriving Stiglitz of authority

to rule. The superior court agreed and granted mandate, ordering Stiglitz to

reverse his prior order.

The Sheriffs‘ Association sought to intervene, moving to set aside the

mandate order and to secure a new hearing. Intervention was granted. After

additional briefing and a new hearing, the superior court again granted the

department‘s mandate petition, relying upon Brown.

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Drinkwater and intervener Sheriffs‘ Association sought review. In

consolidated appeals, the Court of Appeal reversed, distinguishing Brown and

criticizing its reasoning. We affirm.

II. DISCUSSION

The department again urges that only judicial officers are authorized to rule

on Pitchess motions. That argument fails in light of the governing statutes.

A. The Pitchess Statutes

In Pitchess, this court held a criminal defendant could obtain discovery of

certain law enforcement personnel records upon a sufficient showing of good

cause. (Pitchess, supra, 11 Cal.3d at pp. 537-540.) ―In 1978, the California

Legislature codified the privileges and procedures surrounding what had come to

be known as ‗Pitchess motions‘ . . . through the enactment of Penal Code sections

832.7 and 832.8 and Evidence Code sections 1043 through 1045.‖ (City of Santa

Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fn. omitted (City of Santa

Cruz).) Those sections create a statutory scheme making these records

confidential and subject to discovery only through the procedure set out in the

Evidence Code. (City of Santa Cruz, at pp. 81-82.) The sole issue here is

whether, by statute, these motions may only be ruled on in the superior court, or

whether they can be resolved by an administrative hearing officer. In answering

this question of statutory interpretation, our goal is to effectuate the Legislature‘s

intent. (People v. Johnson (2013) 57 Cal.4th 250, 260; People v. Cornett (2012)

53 Cal.4th 1261, 1265.) ― ‗When interpreting statutes, we begin with the plain,

commonsense meaning of the language used by the Legislature. [Citation.] If the

language is unambiguous, the plain meaning controls.‘ [Citation.] ‗[W]henever

possible, significance must be given to every word [in a statute] in pursuing the

legislative purpose, and the court should avoid a construction that makes some

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words surplusage.‘ [Citation.] ‗[W]e may reject a literal construction that is

contrary to the legislative intent apparent in the statute or that would lead to absurd

results . . . .‘ [Citation.]‖ (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131;

accord, Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52

Cal.4th 499, 518-519.) We consider the applicable statutes in turn.

Penal Code section 832.7, subdivision (a) provides in part: ―Peace officer

or custodial officer personnel records and records maintained by any state or local

agency pursuant to [Penal Code] Section 832.5 [regarding the investigation and

retention of citizen complaints], or information obtained from these records, are

confidential and shall not be disclosed in any criminal or civil proceeding except

by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.‖ (Italics

added.) Penal Code section 832.8 defines ―personnel records,‖ a definition not

disputed here.1

Evidence Code section 1043, subdivision (a) reads in part: ―In any case in

which discovery or disclosure is sought of peace or custodial officer personnel

records . . . , the party seeking the discovery or disclosure shall file a written

motion with the appropriate court or administrative body . . . .‖ (Italics added.)

The expansive language of Evidence Code section 1043, subdivision (a) does two

things. First, it makes clear that Pitchess motions may be brought in both civil and

criminal cases. (See Commission on Peace Officer Standards & Training v.

Superior Court (2007) 42 Cal.4th 278, 293 (Peace Officer Standards); Pen. Code,


1

Penal Code section 832.8 defines personnel records as any file maintained

under an individual‘s name by his or her employer, and includes information such
as personal data, medical history, employee ―advancement, appraisal, or
discipline,‖ complaints or investigation of complaints pertaining to the
performance of the officer‘s duties, and ―[a]ny other information the disclosure of
which would constitute an unwarranted invasion of personal privacy.‖

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§ 832.7, subd. (f).) Second, Evidence Code section 1043 specifically states the

motion should be filed in the appropriate court ―or administrative body.‖ Sections

1043 and 1045 appear in division 8 of the Evidence Code dealing with privileges.

Chapter 4, article 9 of that division contains definitions to govern the construction

of sections contained in division 8. Evidence Code section 901 expansively

defines a ―proceeding‖ as ―any action, hearing, investigation, inquest, or inquiry

(whether conducted by a court, administrative agency, hearing officer, arbitrator,

legislative body, or any other person authorized by law) in which, pursuant to law,

testimony can be compelled to be given.‖ (Italics added.) The Law Revision

Commission explained that this definition included ―administrative proceedings‖

and ―arbitration proceedings‖ (Cal. Law Revision Com. com., reprinted at 29B pt.

3A West‘s Ann. Evid. Code (2009 ed.) foll. § 901, p. 213), and that this broad

definition was necessary to protect privileges by making them applicable to

nonjudicial proceedings (id., foll. § 910, pp. 216-217).

As explained in City of Santa Cruz, Evidence Code section 1043 sets out

the initial good cause showing an applicant must make to even begin the discovery

process. If that showing is successful, Evidence Code section 1045 governs the

conduct of the resultant hearing in camera. The materials sought must be shown

―relevant to the subject matter involved in the pending litigation.‖ (Evid. Code,

§ 1045, subd. (a).) Certain categories of information are not discoverable.2 (Evid.

Code, § 1045, subds. (a), (b); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)


2

Information excluded from disclosure include complaints regarding

incidents occurring five or more years before the event at issue, facts ―that are so
remote as to make disclosure of little or no practical benefit,‖ and, in any criminal
case, the conclusions of an officer investigating a complaint. (Evid. Code, § 1045,
subd. (b).)

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B. Evidence Code Section 1043 and the Lack of a Transfer Mechanism

The department observes that Evidence Code section 1045 repeatedly refers

to ―the court‖ as the entity that must conduct an in camera review, determine

relevance, and issue appropriate protective orders. It argues that because ―the

court‖ appears five3 times in Evidence Code section 1045, these references trump

the single reference to ―administrative body‖ in Evidence Code section 1043. The

department argues that although Evidence Code section 1043 mandates that

Pitchess motions be filed in ―the appropriate court or administrative body,‖

Evidence Code section 1045‘s repeated reference to ―the court‖ means that only

judicial officers may rule on them.

This argument fails for several reasons. First, it simply reads

―administrative body‖ out of Evidence Code section 1043. If the Legislature

intended that only the superior court could rule on Pitchess motions, it could easily

have said so. There is no discernable reason why the Legislature would expressly

provide in Evidence Code section 1043 that a Pitchess motion may be filed before

an administrative body, then implicitly suggest in Evidence Code section 1045 that

such a body was powerless to act upon the motion because only ―the court‖ may

conduct the required in camera review. Indeed, such an interpretation would mean

the Legislature had expressly provided for the doing of an idle act: filing a motion

in a body not authorized to rule on it.


3

See Evidence Code section 1045, subdivisions (b) (―In determining

relevance, the court shall examine . . . :‖), (c) (―the court shall consider . . . .‖), (d)
(―the court may make any order which justice requires . . . .‖), (e) (―The court
shall . . . order that the records disclosed or discovered may not be used for any
purpose other than a court proceeding pursuant to applicable law.‖). The
department counts as a sixth reference the use of ―the court‖ in Evidence Code
section 915, subdivision (b). This statute predated the statutory Pitchess scheme,
and its reference to ―the court‖ does not support the department‘s position in any
event.

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Second, the argument completely ignores the broad definition of

―proceeding‖ in Evidence Code section 901, which includes administrative

hearings and arbitrations. Disregarding that section violates the principle that we

consider the language of the entire scheme and related statutes, harmonizing the

terms when possible. If any ambiguity remains, we may examine the legislative

history and the stated purpose of the scheme to guide our interpretation. (See

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55

Cal.4th 783, 803.) Evidence Code section 900 reflects a legislative mandate that

the definitions provided ―govern the construction‖ of the division in which

Evidence Code sections 1043 and 1045 appear.

Further, had the Legislature intended that Pitchess motions could only be

conducted in the superior court, it could have provided a mechanism to transfer a

motion from an administrative proceeding to the superior courts. It did not do so.

Evidence Code section 1043 makes no provision for the transfer of Pitchess

motions from an administrative setting to the superior court. The parties agree that

no other statute authorizes such a transfer. A transfer procedure would require the

creation of an extraordinary procedure because, in a case like this one, there is no

case or controversy pending in the superior court.

While the parties cite no statutory transfer mechanism, amici curiae suggest

one may be found through various other provisions. The Los Angeles Police

Protective League (the Protective League) points to two statutes that might permit

an extraordinary transfer. First, it cites Code of Civil Procedure4 section 1281.8,

subdivision (b), which allows a party in arbitration to file in superior court ―an

application for a provisional remedy in connection with an arbitrable controversy,


4

Unspecified statutory references are to the Code of Civil Procedure.

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but only upon the ground that the award to which the applicant may be entitled

may be rendered ineffectual without provisional relief.‖ (Italics added.) ―The

logical reason for the requirement that an applicant be required to show that an

arbitration award may be rendered ineffectual is to ensure that the court does not

invade the province of the arbitrator—i.e., the court should be empowered to grant

provisional relief in an arbitrable controversy only where the arbitrator‘s award

may not be adequate to make the aggrieved party whole.‖ (Woolley v. Embassy

Suites, Inc. (1991) 227 Cal.App.3d 1520, 1527, italics added; see California Retail

Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193

Cal.App.4th 849, 856.) Section 1281.8, thus, does not speak to any and all types

of harm. It addresses only a circumstance in which a party might prevail in an

arbitration but still have no recourse due to some changing condition. (See

California Retail Portfolio Fund GMBH & Co. KG, at pp. 859-862 [affirming writ

of attachment under section 1281.8 due to the defendant‘s potential insolvency,

which might have rendered an arbitration award ineffectual].)

This scheme does not apply here. Initially, section 1281.8 only applies to

applications by parties. There may be instances in which the custodian of records

is not a party to the arbitration. Here, although the department is a party, the only

substantive ―award‖ to which it may be entitled in the arbitration is a confirmation

that its decision to terminate Drinkwater was proper. The department does not

explain how that potential confirmation would be rendered ineffectual by

production of the records sought, or by any proper order of disclosure.

The Protective League also cites a provision of the Public Safety Officers

Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.). Government

Code section 3309.5, subdivision (d)(1) provides: ―In any case where the superior

court finds that a public safety department has violated any of the provisions of

this chapter, the court shall render appropriate injunctive or other extraordinary

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relief to remedy the violation and to prevent future violations of a like or similar

nature, including, but not limited to, the granting of a temporary restraining order,

preliminary injunction, or permanent injunction prohibiting the public safety

department from taking any punitive action against the public safety officer.‖ This

provision was enacted to prevent police departments from violating the rights of

officers. (See Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 827-

828.) It simply does not speak to the situation at issue here. Further, nothing in

the POBRA‘s general grant of a right to administrative appeal (Gov. Code,

§§ 3304, subd. (b), 3304.5) suggests an authorization to transfer a matter from an

administrative proceeding to the superior court.

The California State Association of Counties and the California League of

Cities suggest a writ of administrative mandate might provide a transfer

mechanism. They propose that the hearing officer could begin the Pitchess

inquiry under Evidence Code section 1043. If the hearing officer finds a good

cause showing has been made, a party may seek administrative mandate. The

superior court could then review the records under Evidence Code section 1045.

Such an interpretation would morph the mandate statute beyond its

delineated contours. The Code of Civil Procedure permits administrative mandate

for inquiry ―into the validity of any final administrative order,‖ but only as to

―whether the respondent has proceeded without, or in excess of, jurisdiction;

whether there was a fair trial; and whether there was any prejudicial abuse of

discretion.‖ (§ 1094.5, subds. (a), (b).) In that mandate proceeding, the superior

court would only be empowered to review the propriety of the good cause

determination and production order. If it determined that the order was proper, the

court‘s review role would end. The authority conferred under section 1094.5 does

not grant the court broader jurisdiction to actually conduct a review of the records

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produced. Nor does it create a cause or controversy beyond the question referred

to in the statutory language.

Similarly, we are not authorized to create a nonstatutory transfer

mechanism here. Drinkwater cites section 187, which states: ―When jurisdiction

is, by the Constitution or this Code, or by any other statute, conferred on a Court

or judicial officer, all the means necessary to carry it into effect are also given; and

in the exercise of this jurisdiction, if the course of proceeding be not specifically

pointed out by this Code or the statute, any suitable process or mode of proceeding

may be adopted which may appear most conformable to the spirit of this code.‖

―The section does not speak to jurisdiction; it does not create jurisdiction; rather,

the existence of jurisdiction is the premise for its application. Where jurisdiction

exists from other sources, Code of Civil Procedure section 187 grants courts

authority to exercise any of their various powers as may be necessary to carry out

that jurisdiction.‖ (People v. Picklesimer (2010) 48 Cal.4th 330, 338

(Picklesimer).)

Code of Civil Procedure section 187 (CCP section 187) comes into play

only when a court has lawful jurisdiction. No statute confers jurisdiction on the

superior court to hear a Pitchess motion when, as here, the motion is filed with an

administrative hearing officer. Neither Evidence Code section 1045 nor Evidence

Code section 915 speaks to jurisdiction. (See discussion, post.) At most, those

provisions describe the duties of a court if the motion is properly before it. Only

Evidence Code section 1043, which allows a Pitchess motion to be filed ―with the

appropriate court or administrative body,‖ speaks to jurisdiction. This

understanding is confirmed by Evidence Code section 1043, subdivision (b)(3),

which provides that a motion must include affidavits that ―set[] forth the

materiality thereof to the subject matter involved in the pending litigation . . . .‖

(Italics added.) Here, the pending litigation is the administrative appeal conducted

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pursuant to the MOU. The only express grant of jurisdiction reflected in the

Pitchess statutes allows the matter to be placed before the hearing officer. CCP

section 187 requires an independent grant of jurisdiction by constitution or statute.

Evidence Code section 1043 articulates the appropriate venue for the filing of a

Pitchess motion. These provisions, read together, do not authorize the judicial

creation of a transfer mechanism from the hearing officer to superior court. (See

Picklesimer, supra, 48 Cal.4th at p. 338 [refusing to apply CCP § 187 to find the

superior court had jurisdiction to hear a postjudgment motion for relief from an

improper sex offender registration requirement]; Swarthout v. Superior Court

(2012) 208 Cal.App.4th 701, 707-708 [same as to a postconviction motion to

transfer an inmate]; People v. Ainsworth (1990) 217 Cal.App.3d 247, 254-255

[same as to postconviction discovery motion].)

Drinkwater also suggests that ―all courts have inherent supervisory or

administrative powers which enable them to carry out their duties, and which exist

apart from any statutory authority.‖ This argument suffers the same defect as the

one above. Courts have supervisory authority to ― ‗control litigation before

them. . . . [Citation.]‘ ‖ (In re Reno (2012) 55 Cal.4th 428, 522, italics added.) A

court has no authority to confer jurisdiction upon itself where none exists. Indeed,

in Pitchess itself, although we suggested that a court had ―inherent power to order

discovery when the interests of justice so demand‖ (Pitchess, supra, 11 Cal.3d at

p. 535), there was no question that the court had jurisdiction over the pending

criminal case. Similar exercises of a court‘s inherent supervisory authority have

occurred in the context of a court that already had jurisdiction over the matter.5


5

See Shively v. Stewart (1966) 65 Cal.2d 475, 479-480 (nonstatutory

discovery); Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 811-813
(compensation for mandatory improvements made after condemnation); Tide


(footnote continued on next page)

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The Legislature did not specify a transfer mechanism in the Pitchess

statutes. No other statute or authority exists for such a transfer. Accordingly, we

conclude that by expressly permitting filing with an appropriate administrative

body in Evidence Code section 1043, the Legislature intended to allow

administrative hearing officers to decide such motions without court intervention.

The department‘s contrary construction of the scheme violates ―the rule of

construction that courts should, if possible, accord meaning to every word and

phrase in a statute to effectuate the Legislature‘s intent.‖ (People v. Cobb (2010)

48 Cal.4th 243, 253; St. Marie v. Riverside County Regional Park & Open-Space

Dist. (2009) 46 Cal.4th 282, 289.) There is no indication the Legislature

contemplated the filing of an ineffectual motion with a body that could not

consider it.

C. Evidence Code Sections 1045 and 915

Evidence Code section 1045‘s repeated reference to the duties of ―the

court‖ can be understood in the context of the legislative history of the Pitchess

statutes. When Evidence Code sections 1043 and 1045 were enacted, the



(footnote continued from previous page)

Water Associated Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 825-826 (cross-
complaints); People v. Castello (1998) 65 Cal.App.4th 1242, 1246-1250
(reconsideration of interim ruling); In re Amber S. (1993) 15 Cal.App.4th 1260,
1263-1267 (control of testimony); Cottle v. Superior Court (1992) 3 Cal.App.4th
1367, 1376-1381 (exclusion of evidence); Asbestos Claims Facility v. Berry &
Berry (1990) 219 Cal.App.3d 9, 18-23 (designating defense counsel program in
asbestos litigation); Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200
Cal.App.3d 272, 286-291 (evidence sanction); James v. Superior Court (1978) 77
Cal.App.3d 169, 175-176 (juvenile competency hearing); cf. Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 967-968 (control of litigation); Walker v.
Superior Court (1991) 53 Cal.3d 257, 266-267 (preunification authority to transfer
cases to the municipal court).

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Legislature was focused primarily upon our Pitchess decision and its

consequences in the context of criminal prosecutions, which obviously occur

before courts. ―After this court rendered its decision, concerns were expressed to

the Legislature that, in response to Pitchess, law enforcement departments were

destroying personnel records in order to prevent discovery; in some instances,

criminal charges had been dismissed because the records to which the defendant

would have been entitled no longer were available. (See Sen. Com. on Judiciary,

Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.) as introduced, p. 7; Sen.

Com. on Judiciary, Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.) as

amended Apr. 3, 1978; Assem. Com. on Crim. Justice, Analysis of Sen. Bill No.

1436 (1977–1978 Reg. Sess.) as amended Aug. 7, 1978.) As a result of these

concerns, Senate Bill No. 1436 was enacted, requiring that records relating to

citizen complaints be maintained for a period of five years. (Stats. 1978, ch. 630,

§ 4, p. 2083, amending [Pen. Code,] § 832.5, subd. (b).) The statute also

established procedures, consistent with Pitchess, permitting discovery of peace

officer personnel records in civil or criminal cases only after an in camera review

of the records by a judge and a determination that the information sought is

relevant to the pending litigation. (Stats. 1978, ch. 630, §§ 1 & 3, pp. 2082–2083,

adding Evid. Code, §§ 1043 & 1045.)‖ (Peace Officer Standards, supra, 42

Cal.4th at p. 293.)

The reality that Pitchess motions are so frequently made in the context of

criminal prosecutions would explain why Evidence Code section 1045 references

―the court.‖ However, the Legislature recognized in Evidence Code section 1043

that Pitchess motions may be relevant in other contexts, thus explaining its broad

language allowing the filing of the motion in ―any case‖ before ―the appropriate

court or administrative body.‖ Given the legislative history of the Pitchess

statutes, the expansive language of Evidence Code section 1043, and the absence

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of a transfer mechanism, the Legislature‘s reference to ―the court‖ in Evidence

Code section 1045 cannot be interpreted as a coded expression of legislative intent

to substantively limit who may rule on Pitchess motions.

The department argues that Evidence Code section 915 constitutes such a

substantive limitation. Evidence Code section 915, subdivision (a) states that in

ruling on a claim of privilege, the presiding officer cannot require disclosure of the

assertedly privileged information before ruling on the privilege claim. Evidence

Code section 915, subdivision (b) provides an exception when the court is unable

to rule unless it knows the content of the assertedly privileged information. In

such a case, the court may order the disputed information disclosed for review in

chambers. The Law Revision Commission‘s comments following Evidence Code

section 915 noted that ―[t]he exception in subdivision (b) applies only when a

court is ruling on the claim of privilege. Thus, in view of subdivision (a),

disclosure of the information cannot be required, for example, in an administrative

proceeding.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid.

Code, supra, foll. § 915, p. 256.)

The department observes Evidence Code section 1045, subdivision (b)

directs that ―[i]n determining relevance, the court shall examine the [sought]

information in chambers in conformity with Section 915 . . . .‖ Because Evidence

Code section 915 does not mention administrative proceedings, the department

argues hearing officers have no authority to decide Pitchess motions. The

department‘s argument is unpersuasive for several reasons. First, Evidence Code

section 1045 simply requires that an in camera Pitchess hearing must be had ―in

conformity with‖ Evidence Code section 915, ― ‗i.e., out of the presence of all

persons except the person authorized to claim the privilege and such other persons

as he or she is willing to have present . . . .‘ ‖ (Alford v. Superior Court (2003) 29

Cal.4th 1033, 1038 (Alford); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)

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We observed in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc): ―[T]o protect the

officer‘s privacy, the examination of documents and questioning of the custodian

should be done in camera in accordance with the requirements of Evidence Code

section 915, and the transcript of the in camera hearing and all copies of the

documents should be sealed.‖ (Id. at p. 1229.) Thus, we have recognized that

Evidence Code section 1045 referenced Evidence Code section 915 only to the

extent the latter provision defined what procedure was required at an in camera

hearing, not who would conduct the hearing. The department‘s reading of the

statute would render the reference to Evidence Code section 915 mere surplusage.

Second, section 915 was enacted as part of the original Evidence Code in

1965. The Law Revision Commission‘s comment predated both our Pitchess

decision and the Legislature‘s subsequent codification of it. It is, then, a poor

indicator of legislative intent as to the proper scope of the Pitchess scheme. The

commission‘s comments informed the Legislature‘s understanding at the time it

enacted the Evidence Code. They did not bar the Legislature from taking future

action, as it did when it amended the code 13 years later following this court‘s

Pitchess decision. (Cf. Duarte v. Chino Community Hospital (1999) 72

Cal.App.4th 849, 856, fn. 3.)

Third, and most problematic, the department‘s interpretation of Evidence

Code section 915 suffers from the same defect as its interpretation of Evidence

Code section 1045. It requires us to conclude that the Legislature intended to also

permit Pitchess filings with an appropriate ―administrative body‖ under Evidence

Code section 1043, yet render that body unable to act on them. The Legislature

could not have intended to provide for the idle act of filing ineffectual motions.

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D. The Purposes Behind the Pitchess Statutes and POBRA

Our conclusion is also consistent with the purposes behind the POBRA.

The POBRA, to which these parties have contractually bound themselves, ―sets

forth a number of basic rights and protections which must be accorded individual

public safety officers by the public agencies which employ them.‖ (White v.

County of Sacramento (1982) 31 Cal.3d 676, 679.) Included is the right to

administratively appeal an adverse employment decision, ―to give a peace officer

‗an opportunity . . . ―to convince the employing agency to reverse its decision‖ ‘ to

take punitive action.‖ (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th

1272, 1287 (Copley Press), italics omitted; County of Riverside v. Superior Court

(2002) 27 Cal.4th 793, 799.) The Legislature declared that ―effective law

enforcement depends upon the maintenance of stable . . . relations, between public

safety employees and their employers,‖ and that basic protections for officers were

necessary to preserve that stability. (Gov. Code, § 3301.) Allowing relevant

discovery to be ordered in an administrative hearing furthers these goals.

Our conclusion is also consistent with the overall aims of the Pitchess

scheme. Although the department adamantly argues the sole purpose of the

statutes was to rein in Pitchess motions, that characterization is not entirely

accurate. As discussed, the Pitchess statutes reflected the Legislature‘s attempt to

balance a litigant‘s discovery interest with an officer‘s confidentiality interest.

(See Peace Officer Standards, supra, 42 Cal.4th at p. 293; Garcia v. Superior

Court (2007) 42 Cal.4th 63, 69-70 (Garcia); City of Santa Cruz, supra, 49 Cal.3d

at p. 84.) Whether filed before a court or an administrative hearing officer,

interests must still be balanced when ruling on a Pitchess motion.

We emphasize that here there is no question hearing officer Stiglitz, an

attorney, is qualified to rule on the Pitchess motion. The MOU provides that a

hearing officer be selected from a mutually agreed-upon list. (MOU, art. XII,

17

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§ 14, subd. A.) If the department believed Stiglitz was not qualified for any

reason, it could have removed him from the list or stricken him as an available

hearing officer in this case. In any event, the Legislature in Evidence Code section

914 has determined that hearing officers generally have the authority to rule on

claims of privilege in the same manner as courts.6

Further, we observe that this case reflects several safeguards against

improper disclosure of confidential records. The MOU here expressly provides

that the administrative hearing is a ―private proceeding‖ between the disciplined

officer and the county. (MOU, art. XII, § 14, subd. (H)(9).) Officer personnel

records are confidential under Penal Code section 832.7, and we have held such

records produced at administrative disciplinary proceedings are not subject to

public disclosure. (See Copley Press, supra, 39 Cal.4th at pp. 1286-1299.) In

addition, any discovered records may only be used in the proceeding at issue.7

(See Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)

An additional confidentiality safeguard appears in Evidence Code section

1045, subdivision (c), which provides that ―[i]n determining relevance where the

issue in litigation concerns the policies or pattern of conduct of the employing

agency, the court shall consider whether the information sought may be obtained

from other records maintained by the employing agency in the regular course of

agency business which would not necessitate the disclosure of individual


6

See Evidence Code section 914, subdivision (a) (―The presiding officer

shall determine a claim of privilege in any proceeding in the same manner as a
court determines such a claim under Article 2 (commencing with Section 400) of
Chapter 4 of Division 3.‖).
7

The parties are free to include other protective language in their MOUs,

including an explicit agreement that any Pitchess material can only be used in
connection with the proceeding in which it is sought.

18

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personnel records.‖ Thus, upon an appropriate finding, other data could be

released in lieu of personnel records.

We have also clarified that an officer‘s entire personnel file need not be

presented for review, only materials of the type requested. (Mooc, supra, 26

Cal.4th at pp. 1228-1230.) In the present case, such materials would be limited to

incidents involving conduct similar to Drinkwater‘s. This limitation balances

privacy interests while permitting focused discovery.

The department does not argue that Drinkwater‘s disparate treatment

defense is invalid or that the discovery she seeks is irrelevant to that defense.

Accordingly, we have no occasion to discuss the availability or scope of such a

defense. Drinkwater‘s Pitchess motion also named the specific officers whose

records she sought, reducing the possibility of an improper ―fishing expedition.‖

The department relies heavily upon Brown, supra, 183 Cal.App.4th 1531, a

case readily distinguishable. Brown concluded that a Pitchess motion was

inconsistent with the statutory scheme by which a driver‘s license may be

suspended after a drunk driving arrest. The Brown court reasoned a Pitchess

motion would frustrate the Legislature‘s aim to quickly remove unsafe drivers

from the road using an administrative procedure. Further, the hearing addressed

only whether the licensee drove with a blood-alcohol level above the legal limit.

The relevance of Pitchess discovery in that context was questionable. (Brown, at

pp. 1555-1557.) To the extent Brown rejected the claim ―that the Legislature

intended Pitchess discovery to be available in all administrative proceedings‖

where an officer‘s credibility was at issue (id., at p. 1555, italics added), such

conclusion is inapposite here. The department concedes that the discovery

Drinkwater seeks is relevant to the review of her discipline and does not bear on

the credibility of officers whose records are sought. The question here is not

whether those officers might be credible, but whether department decisionmakers

19

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granted those officers disparate treatment. Additionally, unlike the license

suspension context, allowing Pitchess motions in this case furthers the goals of the

POBRA, and honors the Legislature‘s Pitchess scheme. In any case, ― ‗ ―[i]t is

axiomatic that cases are not authority for propositions not considered.‖ ‘ ‖

(McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626; People v. Johnson

(2012) 53 Cal.4th 519, 528.) The precedential value of Brown is limited to its

facts involving a driver‘s license suspension.

E. Evidence Code Section 1047

The department argues that, because the officers whose records Drinkwater

has requested had nothing to do with her termination, she is not entitled to

discovery. In support, the department cites Evidence Code section 1047, which

provides in part: ―Records of peace officers or custodial officers . . . who either

were not present during the arrest or had no contact with the party seeking

disclosure from the time of the arrest until the time of booking, or who were not

present at the time the conduct is alleged to have occurred within a jail facility,

shall not be subject to disclosure.‖ The department‘s reading of this statute was

rejected in Alt v. Superior Court (1999) 74 Cal.App.4th 950. Alt reasoned that

Evidence Code section 1047 only applies if the discovery request relates to an

incident involving an arrest or its equivalent. When, as here, the discovery request

is unrelated to an arrest, Evidence Code section 1047‘s limitation does not apply.

As Alt observed, a contrary conclusion ―would largely supplant the general

discovery standards set forth in sections 1043 and 1045. [A contrary]

interpretation of section 1047 would mean that police personnel information could

be discovered only if there had been an arrest or contact between arrest and

20

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booking, and in no other situation. This reading runs counter to Memro‘s[8]

observation that sections 1043 and 1045 do not limit discovery of police personnel

records to cases involving altercations between police officers and arrestees.‖

(Alt, at pp. 957-958.)

Evidence Code section 1047‘s legislative history supports Alt‘s conclusion.

The proponents of the provision urged its purpose was to deter frivolous Pitchess

requests made by criminal defendants ―as a bargaining tool to attempt to reduce

pending criminal charges‖ ―made primarily to harass the officers and supervisors

within police and sheriff‘s departments.‖ (Sen. Judiciary Com., analysis of

Assem. Bill No. 1112 (1985-1986 Reg. Sess.) July 3, 1985, p. 3.) The Senate

Judiciary Committee analysis observed: ―The bill would only pertain to cases

alleging the use of excessive force by a peace officer in connection with an arrest.

It would not apply where the person had only been detained and not arrested. [¶]

This distinction appears well founded: since the person had not been arrested

there would be no incentive to file a frivolous request.‖ (Id. at p. 4.) This analysis

expressly alerted the Legislature to the limitation recognized by Alt.

F. The Dissenting Opinion

The dissenting opinion concludes that an administrative hearing officer is

empowered to rule on a Pitchess motion, but may not compel production of

personnel records for in camera review before it rules. (Conc. & dis. opn., post, at

pp. 11-12.) It suggests that if the custodian of records voluntarily produces the

records ―with the consent of the officer whose personnel records are sought, the

matter is at an end.‖ (Id. at p. 12.) If the custodian refuses to comply, the party


8

People v. Memro (1985) 38 Cal.3d 658, overruled on another ground in

People v. Gaines (2009) 46 Cal.4th 172, 181, footnote 2.

21

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seeking discovery may seek to have the matter referred to the superior court.

Under the dissent‘s proposal, after such a transfer, the court could then review

materials in camera to decide whether it should order discovery and make any

protective order. (Ibid.)

The dissent cites Evidence Code section 914, subdivision (b), which

provides that a person may not be held in contempt for failing to disclose

privileged information unless by order of court, and Code of Civil Procedure

section 1991, which empowers a hearing officer to report to the superior court a

witness‘s disobedience to a subpoena or refusal to answer a question and to seek a

court order compelling compliance. The dissent suggests this scheme applies to

Pitchess motions before administrative hearing officers. (See conc. & dis. opn.,

post, at pp. 13-15.)

This proposal is inconsistent with the Pitchess statutes. Most

fundamentally, under the dissent‘s view, an in camera review of personnel records

would no longer be required prior to disclosure. Under the cited scheme of Code

of Civil Procedure section 1991, the superior court would become involved only if

the custodian of records refused to comply with the disclosure order. The dissent

asserts that if the custodian voluntarily complies with the disclosure order, ―the

matter is at an end‖ without any in camera review by anyone. (Conc. & dis. opn.,

post, at p. 12.)

The Legislature could not have contemplated such a scheme because

Evidence Code section 1045 expressly provides that in camera review is

mandatory before disclosure in every case. As noted, subdivision (b) of that

provision requires an examination of the records to exclude complaints about

conduct ―occurring more than five years‖ earlier; the conclusions of any

investigating officer (in a criminal proceeding); and ―[f]acts sought to be disclosed

that are so remote as to make disclosure of little or no practical benefit.‖ (Evid.

22

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Code, § 1045, subd. (b).) ―By providing that the trial court should conduct an in

camera review, the Legislature balanced the accused‘s need for disclosure of

relevant information with the law enforcement officer‘s legitimate expectation of

privacy in his or her personnel records.‖ (Mooc, supra, 26 Cal.4th at p. 1220, maj.

opn. of Werdegar, J.; see Garcia, supra, 42 Cal.4th at pp. 69-70.) Nothing in the

wording of Evidence Code section 1045 remotely suggests the custodian of

records may waive in camera review, much less conduct the required review on its

own.

Indeed, in enacting the Pitchess statutes, the Legislature amended the bill to

specifically eliminate language in earlier versions that made an in camera review

optional at the request of the officer or other person who could assert the privilege.

(See Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as introduced Jan. 27, 1978, p. 3;

Sen. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 3, 1978, p. 3; Sen.

Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 17, 1978, p. 3; Assem.

Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3.)

Previous versions of the bill also limited discovery to the identities of

complainants and witnesses and, in some circumstances, their statements. They

also allowed officers an absolute right not to disclose any privileged information

notwithstanding a court‘s finding that it was relevant to the litigation at issue.

(See Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978

Reg. Sess.) June 5, 1978, p. 2; Assem. Amend. to Sen. Bill No. 1436 (1977-1978

Reg. Sess.) Aug. 7, 1978, pp. 4-5.) It was in this context that legislative

committee reports provided the assurance that ―[a]ll requests for discovery of

police personnel records would require that before disclosure could be made the

judge would have to review, in camera, the records sought, to determine which if

any of them are relevant to the litigation‖ (Assem. Com. on Criminal Justice, Final

Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 30, 1978, p. 2, italics

23

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added), and ―[a]ll requests for discovery would require an in camera hearing at

which the court would determine the relevancy of the material sought‖ (Assem.

Com. on Criminal Justice, analysis of proposed amendments to Sen. Bill No. 1436

(1977-1978 Reg. Sess.) Aug. 18, 1978, p. 2, italics added, underlining omitted).

This history reflects that, in exchange for allowing broader discovery of officer

personnel records and eliminating an officer‘s absolute privilege to foreclose

discovery of his files, the Legislature considered an in camera review a pivotal and

necessary protection for officers. Thus, contrary to the dissent‘s suggestion (see

conc. & dis. opn., post, at p. 8), the focus of the reports was that an in camera

review would be conducted before disclosure, not on who would conduct the

review. The legislative history materials, like Evidence Code section 1045 itself,

largely assumed a judicial proceeding, and made no mention of any difference in

procedure between judicial and nonjudicial proceedings. If the Legislature

contemplated a difference, as the dissent posits, one would expect the extensive

legislative history would have mentioned it at least once.

The dissent asserts the Pitchess statutes ―ensur[ed] that whenever discovery

was opposed, in camera review would follow as a matter of course. ([Evid. Code,]

§ 1045, subd. (b).)‖ (Conc. & dis. opn., post, at p. 13, italics added.) But

Evidence Code section 1045, subdivision (b) says nothing about contested

motions. It requires a determination of relevance and the conduct of an in camera

review to exclude certain categories of information regardless of relevance.

Nothing in the language of the statutory scheme suggests the duty to determine

relevance may be waived by the custodian of records. The only reference to

waiver appears in Evidence Code section 1043, subdivision (c), which provides

that ―[n]o hearing upon a motion for discovery or disclosure shall be held‖ without

compliance with notice obligations, including notice to the affected officer, ―or

upon a waiver of the hearing by the governmental agency identified as having the

24

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records.‖ Thus, while the custodian may waive a hearing on whether good cause

has been shown, no similar waiver provision appears regarding the duty to find

relevance under Evidence Code section 1045. (See California Highway Patrol v.

Superior Court (2000) 84 Cal.App.4th 1010, 1016 [the trial court conducted an in

camera review even though the custodian did not oppose the Pitchess motion].)

The dissent suggests an ―unfortunate consequence‖ of our approach is that

a nonlawyer might preside over the administrative hearing and ―the nonparty

peace officer will have no input‖ into his selection. (Conc. & dis. opn., post, at p.

2.) The dissent further laments that such a person may order disclosure and

―formerly confidential records may be opened to inspection.‖ (Ibid.) These

comments find no footing in actual practice. First, a nonparty officer whose

records are sought would never have input into who would decide the Pitchess

motion, be it a court or an arbitrator. In any case, that concern is completely

unfounded here, where the custodian of records, who is obligated to assert the

privilege, and the Sheriff‘s Association, which represents the officer, are involved

in the litigation. Second, it is simply not so that officer records would be ―opened

to inspection.‖ (Conc. & dis. opn., post, at p. 2.) As noted, officer records

disclosed at these private proceedings remain confidential under Penal Code

section 832.7. (See Copley Press, supra, 39 Cal.3th at pp. 1286-1299.) Further,

the Pitchess statutes themselves restrict use of such records to the proceeding at

issue. (Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)

The dissent first gleans legislative intent regarding the Pitchess statutes

from general Evidence Code provisions concerning privileges. We have already

addressed the Evidence Code argument, particularly the applicability of Evidence

Code section 915, at pages 15-16, ante.

25

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Next, the dissent relies on a repealed provision of the Administrative

Procedure Act (APA) (Gov. Code, § 11340 et seq.). Government Code section

11507.6 allows parties in an APA proceeding to request various pretrial discovery

from the opposing party. Under Government Code former section 11507.7, if a

party failed to comply, the aggrieved party could ―file a verified petition to compel

discovery in the superior court . . . naming as respondent the party refusing or

failing to comply with‖ pretrial discovery obligations. (Gov. Code, former

§ 11507.7, subd. (a), added by Stats. 1968, ch. 808, § 5, p. 1562.) The court would

thereafter rule on the discovery matter, which included the power to review in

camera materials claimed to be privileged. (Gov. Code, former § 11507.7, subds.

(d), (e), added by Stats. 1968, ch. 808, § 5, p. 1563.) Pointing to this mechanism,

which existed at the time the Pitchess statutes were enacted, the dissent asserts that

―the Legislature has taken pains historically to identify and limit who may conduct

in camera review.‖ (Conc. & dis. opn., post, at p. 11.) It suggests the Legislature

had these provisions in mind when enacting the Pitchess scheme.

This reasoning misses the mark. First, the Legislature has expressly stated

that officer personnel records ―are confidential and shall not be disclosed in any

criminal or civil proceeding except by discovery pursuant to Sections 1043 and

1046 of the Evidence Code.‖ (Pen. Code, § 832.7, subd. (a), italics added.) We

have affirmed that ―[t]he Pitchess procedure is the sole and exclusive means‖ to

obtain Pitchess discovery, and cases ―have rejected attempts to use other discovery

procedures to obtain Pitchess records.‖ (City of Los Angeles v. Superior Court

(2002) 29 Cal.4th 1, 21.) Given the Legislature‘s adoption of the Pitchess statutes

as the exclusive method for discovery of these records, it is doubtful the

Legislature contemplated that the repealed APA discovery procedure would apply.

This is especially true when neither the language nor legislative history of the

Pitchess statutes makes any reference to the APA.

26

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Second, the Legislature could not have contemplated the former APA

procedure would apply to Pitchess motions in administrative hearings for the same

reasons it could not have contemplated application of Code of Civil Procedure

section 1991. Like that procedure, Government Code former section 11507.7

required an aggrieved party to file a discovery motion before the superior court

would become involved; if a party complied with the discovery request, the court

would never need to rule or view the records in camera. Again, the dissent fails to

explain why the Legislature would have expressly required an in camera review of

records before disclosure under Evidence Code section 1045, yet countenanced

application of a scheme that would have allowed disclosure of records without

such review.

Third, the motion under Government Code former section 11507.7 only

applied to discovery violations by parties. (See Gov. Code, former §§ 11507.6

[pretrial discovery obligation of parties], 11507.7, subd. (a).) By contrast,

Pitchess motions are directed at ―the governmental agency which has custody and

control of the records‖ (Evid. Code, § 1043, subd. (a)), even when the custodian is

not a party to the litigation. The Legislature could not have believed this vastly

different scheme would have any application to the Pitchess statutes.

Fourth, the Legislature‘s subsequent amendment of Government Code

former section 11507.7 presents strong evidence that the Legislature never

believed it applied to the Pitchess scheme. As the dissent acknowledges, the

Legislature in 1995, as part of a comprehensive overhaul of the APA (see

Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals

Bd. (2006) 40 Cal.4th 1, 5), amended Government Code former section 11507.7 to

allow an administrative law judge (ALJ) to rule on discovery matters, which

included the power to examine privileged materials if necessary to make a ruling.

(See Gov. Code, § 11507.7, subd. (d).) An ALJ is a specialized arbitrator on staff

27

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with the Office of Administrative Hearings, and the APA requires all hearings

under its provisions to be conducted by an ALJ. (Gov. Code, § 11502, subd. (a).)

Under the dissent‘s view, the 1995 amendment to the APA created a

distinction between ALJs and non-ALJ arbitrators. Thus, with respect to a

Pitchess motion after 1995, an ALJ now can conduct an in camera review of

records under Evidence Code section 1045, because Government Code section

11507.7 generally gives ALJs the power to review privileged materials in camera,

whereas non-ALJ arbitrators cannot. The dissent acknowledges that the

Legislature never amended the Pitchess statutes to reflect this asserted intent.

Indeed, the dissent, in attacking our interpretation of the scheme, makes much of

the fact that Evidence Code section 1045 repeatedly uses ―the court,‖ and reasons

that ―the Legislature has been precise in its choice of terminology‖ and ―[w]e

should take the Legislature at its word.‖ (Conc. & dis. opn., post, at p. 8.)

However, after 1995, and to this day, Evidence Code section 1045 still uses ―the

court,‖ making no reference to ALJs or the APA.

The dissent cannot have it both ways. If the Legislature intended that the

1995 amendment of the APA constituted a substantive modification of the

Pitchess scheme, such a change would have constituted a significant departure in

the law. Yet the dissent posits this major change resulted solely from silent

implication. It is doubtful that the Legislature would have instituted such a

significant change through silence. While the law can occasionally be subtle, we

should avoid constructions that render it delphic. Indeed, the 1995 bill constituted

a comprehensive amendment of the APA and numerous related statutes. It

amended or added over 100 different laws spanning 16 codes, including not only

provisions of the Government, Evidence, and Penal Codes, but sections of the

Health and Safety, Business and Professions, Labor, Revenue and Taxation,

Welfare and Institutions, Vehicle, Fish and Game, Financial, Education, Military

28

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and Veterans, Public Resources, Public Utilities, and Unemployment Insurance

Codes as well. (See Stats. 1995, ch. 938, pp. 7104-7225.) It is difficult to believe

that the Legislature intended the amendment to the APA to change the Pitchess

statutes, yet chose not to modify them expressly as it did with respect to dozens of

other statutes tangentially related to the APA.

Responding to our discussion of Government Code former section 11507.7,

the dissent states it ―take[s] no position‖ on the interaction between the repealed

APA procedure and the Pitchess scheme because ―the issue is, after all, long since

moot.‖ (Conc. & dis. opn., post, at p. 10.) The dissent suggests we are imputing

to it a position about the applicability of the APA that it has not taken. (Id. at p.

14.) The dissent misapprehends the import of our discussion. The dissent asserts

that ―the Legislature had taken the extraordinary step of creating a special

statutory transfer mechanism to allow privilege disputes arising in administrative

matters to be resolved by the only body authorized to conduct in camera review, a

court.‖ (Id. at p. 1.) The dissent reasons that the existence of these transfer

mechanisms shows ―the Legislature took seriously the limits on the powers of

nonjudicial officers‖ (id. at p. 5), and, thus, the Legislature‘s use of ―the court‖ in

Evidence Code section 1045 meant only courts are authorized to conduct in

camera review. However, as noted, that transfer mechanisms such as Code of

Civil Procedure section 1991 and Government Code former section 11507.7 do

not fit the Pitchess procedure shows that the Legislature could not have had them

in mind when enacting the Pitchess statutes. And the fact that the Legislature did

not amend the Pitchess statutes in 1995 when granting ALJs authority to conduct

in camera review further supports our view that the Legislature did not consider

the former APA transfer mechanism when enacting the Pitchess scheme.

Rather than gleaning legislative intent from general statutes of questionable

applicability, the better view recognizes that the Legislature, by expressly allowing

29

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Pitchess motions to be filed with an appropriate administrative body under

Evidence Code section 1043, contemplated administrative Pitchess motions from

the very beginning of the scheme. To conclude that administrative hearing

officers lack authority to rule on them effectively reads this language out of the

statute. If the Legislature intended to keep hearing officers from ruling on such

motions, or to require that only courts conduct the in camera review, it certainly

could have done so by providing that such motions not be filed before hearing

officers, or by expressly creating a transfer mechanism to the superior court. It did

neither. Our conclusion harmonizes the Pitchess scheme with Evidence Code

sections 914 and 915. It is consistent with Penal Code section 832.7 and our

holding that the confidentiality of officer personnel records extends to

administrative proceedings. Finally, allowing administrative hearing officers to

determine Pitchess motions in this context furthers the goals of the POBRA and

maintains the balance between an officer‘s interest in privacy and a litigant‘s

interest in discovery. Of course, the Legislature remains free to clarify its intent as

to the authority of administrative hearing officers in this context, and to take

additional steps to protect the confidentiality of officer personnel records in the

administrative context.

30

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III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
WILLHITE, J. *





______________________________

*

Associate Justice of the Court of Appeal, Second Appellate District,

Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

31

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CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.




I agree with the majority that Pitchess1 discovery can be sought in

administrative proceedings. I disagree, however, with the further conclusion that

every nonjudicial presiding officer may review privileged and confidential

materials in the context of such a motion.

As of the 1970s, when the Pitchess discovery scheme was enacted, the

Legislature had never entrusted administrative hearing officers with reviewing

allegedly privileged and confidential documents to determine their discoverability.

Only judicial officers were permitted to examine such documents. The disparity

in authority was neither a relic of an older time nor an inadvertent oversight; as

recently as 1968, the Legislature had taken the extraordinary step of creating a

special statutory transfer mechanism to allow privilege disputes arising in

administrative matters to be resolved by the only body authorized to conduct in

camera review, a court.

The Pitchess discovery scheme continues this regime. At every turn,

Evidence Code section 1045,2 the statute governing in camera review of

confidential peace officer records, spells out what a ―court‖ should do, eschewing

the broader term ―presiding officer‖ used elsewhere to identify those powers and

1

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

2

All further unlabeled statutory references are to the Evidence Code.

---

duties shared by both judges and administrative hearing officers. Yet the majority

concludes the Legislature in enacting the Pitchess discovery statutes not only

intended the then unprecedented step of empowering administrative officers to

conduct in camera privilege review, but took this step sub silentio, using each

directive to ―the court‖ to announce what a ―court [or any other presiding officer]‖

should do. This cannot be what the Legislature intended.

The unfortunate consequence of the majority opinion is this. Often, the

person presiding over an administrative hearing need not be a lawyer and could be

whomever the parties choose; the nonparty peace officer will have no input. On

the say-so of such a person, without judicial oversight or any guarantee of a

protective order, the peace officer‘s formerly confidential records may be opened

to inspection. Because the statutory scheme does not compel this regrettable

result, I respectfully dissent.

I.

In 1965, the Legislature first codified in one place the rules of evidence.

(Stats. 1965, ch. 299, p. 1297.) The new Evidence Code adopted largely verbatim

the work of the California Law Revision Commission (Commission), which had

been asked to study the possibility of conforming the state‘s evidence rules to a set

of nationally proposed uniform rules. (Stats. 1956, ch. 42, pp. 263, 265; see

Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision

Com. Rep. (1965) p. 3.)3

3

The Commission‘s recommendations were delivered to the Legislature,

which expressly endorsed the Commission‘s commentary as reflecting its own
intent unless otherwise noted. (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 333 (1965 Reg. Sess.) 1 Assem. J. (1965 Reg. Sess.) p. 1712; Sen. Com. on
Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 2 Sen. J. (1965 Reg.
Sess.) p. 1573.) Consequently, ―with respect to unchanged sections of the
Evidence Code the commission‘s comments state the intent of the Legislature


(footnote continued on next page)

2

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With respect to privilege issues, the Commission recognized that questions

of privilege might arise in a broad range of proceedings and sought to ―remove the

existing uncertainty concerning the right to claim a privilege in a nonjudicial

proceeding.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code

(2009 ed.) foll. § 910, p. 217.) The policy served by privileges would be seriously

undermined if ―[e]very officer with power to issue subpoenas for investigative

purposes, every administrative agency, every local governing board, and many

more persons could pry into the protected information . . . .‖ (Id. at p. 216.)

Accordingly, the Commission proposed, and the Legislature enacted, an explicit

declaration that privilege protections would apply equally to judicial,

administrative, and other proceedings. (§§ 901, 910.)

Equally important to protecting confidentiality, the new Evidence Code

articulated procedures for how privilege claims would be resolved in nonjudicial

proceedings. In general, ―presiding officer[s],‖ broadly defined to include not

only judicial officers but also arbitrators and anyone else overseeing a nonjudicial

proceeding, could ―determine a claim of privilege in any proceeding in the same

manner as a court determines such a claim‖ under the Evidence Code. (§ 914,

subd. (a); see § 905 [defining ― ‗Presiding officer‘ ‖]; Cal. Law Revision Com.

com., 29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 905, at p. 215.)

However, the authority to determine a claim of privilege was subject to two

significant limits. First, only a ―court,‖ not just any presiding officer, could

―require the person from whom disclosure is sought or the person authorized to



(footnote continued from previous page)

regarding those sections.‖ (Arellano v. Moreno (1973) 33 Cal.App.3d 877, 884.)
This principle applies fully to each section I discuss.

3

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claim the privilege, or both, to disclose the information in chambers . . . .‖ (§ 915,

subd. (b).) The consequence of this was quite clear: the narrow authorization for

in camera review ―applies only when a court is ruling on the claim of privilege.

Thus, in view of [§ 915,] subdivision (a), disclosure of the information cannot be

required, for example, in an administrative proceeding.‖ (Cal. Law Revision Com.

com., 29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 915, at p. 256.)

Nonjudicial in camera review remained forbidden. (See ibid. [the statute‘s broad

limits on in camera review ―codif[y] existing law‖].)4

Second, recognizing the risk of error inherent in having nonjudicial officers

make privilege determinations, the Commission and Legislature withheld the

power to issue enforceable orders on privilege matters. Orders to disclose issued

by such officers carried no risk of contempt for noncompliance. (§ 914, subd. (b).)

Instead, parties seeking discovery needed a court order compelling disclosure.

(Ibid.; see Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code,

supra, foll. § 914, at p. 254 [―What is contemplated is that, if a claim of privilege

is made in a nonjudicial proceeding and is overruled, application must be made to

a court for an order compelling the witness to answer.‖].) This detour to court was

necessary ―to protect persons claiming privileges in nonjudicial proceedings.

Because such proceedings are often conducted by persons untrained in law, it is

desirable to have a judicial determination of whether a person is required to

disclose information claimed to be privileged before he can be held in contempt

4

Stressing the importance of section 915‘s safeguards, the Commission

explained in camera disclosure will frequently be wholly prohibited, and even
when it is allowed, ―[s]ection 915 undertakes to give adequate protection to the
person claiming the privilege by providing that the information be disclosed in
confidence to the judge and requiring that it be kept in confidence if it is found to
be privileged.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid.
Code, supra, foll. § 915, at p. 256.)

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for failing to disclose such information.‖ (Cal. Law Revision Com. com., at

p. 254.)

In 1968, the Legislature codified procedures for discovery in proceedings

under the Administrative Procedure Act (APA). (Stats. 1968, ch. 808, § 3,

p. 1561; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 21.) As discussed, at the time all

nonjudicial officers were prohibited from conducting in camera review of

assertedly privileged documents. (§ 915.) Rather than lift this prohibition, the

Legislature authorized the filing of a freestanding ―verified petition to compel

discovery in the superior court for the county in which the administrative hearing

will be held, naming as [a] respondent the party‖ refusing to provide discovery.

(Gov. Code, former § 11507.7, subd. (a), enacted by Stats. 1968, ch. 808, § 5,

p. 1562.) Former section 11507.7 expressly granted a court the authority

nonjudicial officers lacked: the power to review in camera the assertedly

privileged administrative discovery materials under the rules set out in section 915

of the Evidence Code. (Gov. Code, former § 11507.7, subd. (d); Stats. 1968, ch.

808, § 5, pp. 1562, 1563.) Plainly, the Legislature took seriously the limits on the

powers of nonjudicial officers.

This, then, was the landscape in 1978 when the Legislature enacted the

Pitchess discovery statutes. Claims of privilege could be raised in judicial and

nonjudicial settings alike. (§ 910.) Courts and nonjudicial presiding officers

could rule on these claims. (§ 914, subd. (a).) Courts had authority to rule on

claims of privilege following in camera review. (§ 915, subd. (b).) Presiding

officers, other than court judges, did not; they were required to issue rulings

without directly inspecting assertedly privileged materials. (Id., subd. (a); see

§ 905 [defining ― ‗Presiding officer‘ ‖].) Moreover, compliance with nonjudicial

privilege rulings was not inherently compulsory. (§ 914, subd. (b).) Persons

possessing assertedly privileged documents could not be required to allow

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nonjudicial officers to examine them and could not be forced to disclose them

without review by an actual court.

The statutory scheme offered a path to resolution of any privilege dispute

by the only entity entrusted to conduct in camera review and issue binding

rulings—the court. If discovery was sought and refused on grounds of privilege in

a proceeding covered by the APA, the party seeking discovery could file a petition

in superior court under Government Code former section 11507.7 and have the

court proceed with in camera review and a determination whether disclosure

should be required. (See Gov. Code, former § 11507.7, subds. (d), (e); Stats.

1968, ch. 808, § 5, p. 1563.) In proceedings not covered by the APA, application

to a court for an order compelling discovery was also necessary. In the absence of

any more specifically applicable statutory procedure, such as Government Code

former section 11507.7, the Legislature directed parties to use ―the procedure

prescribed by Section 1991 of the Code of Civil Procedure‖ to obtain such an

order. (Evid. Code, § 914, subd. (b); see Code Civ. Proc., § 1991 [granting

superior courts jurisdiction to issue orders compelling discovery].)

II.

In Pitchess, supra, 11 Cal.3d 531, 535–540, we recognized a right to

discovery of relevant peace officer records, subject only to a court‘s balancing

under section 1040 the interest in disclosure against the interest in confidentiality.

The Legislature responded by creating a new statutory peace officer privilege.

(Stats. 1978, ch. 630, § 5, p. 2083.) Henceforth, peace officer records were to be

deemed confidential, and were to be discoverable solely to the extent authorized

by newly enacted section 1043 et seq. (Pen. Code, § 832.7, subd. (a).)

Section 1043 explains how to obtain peace officer records discovery. (See

generally Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038–1039; City of

Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 82–83.) The party seeking

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disclosure must file ―a written motion with the appropriate court or administrative

body.‖ (§ 1043, subd. (a).) Notice must be given to the custodian of records, who

will notify the party whose records are sought. (Ibid.) The motion must be

supported by evidence establishing ―good cause‖ for discovery, including a

showing that the evidence sought would be material and reason to believe the

identified government agency has records of the type sought. (Id., subd. (b)(3).)

A hearing is required absent waiver by the governmental agency with custody.

(Id., subd. (c).)

Section 1045 further authorizes a ―court‖ to determine relevance by

examining records ―in chambers in conformity with Section 915.‖ (§ 1045, subd.

(b).) The ―court‖ may exclude certain irrelevant and outdated matters (ibid.),

―make any order which justice requires to protect the officer or agency from

unnecessary annoyance, embarrassment, or oppression‖ (id., subd. (d)), and issue

protective orders (id., subd. (e)).

As an initial matter, the text plainly authorizes Pitchess discovery in

nonjudicial proceedings. Section 1043, subdivision (a) expressly allows motions

before ―administrative bod[ies],‖ and we must give this language its natural and

obvious meaning.

Nothing in the text of section 1043 or section 1045, however, relaxes the

settled limits on the power of nonjudicial officers, who may neither compel

disclosure in the face of privilege claims nor demand in camera disclosure. (See

§§ 914, subd. (b), 915, subd. (b).) Nor does anything suggest the Legislature was

any less concerned about those limits here, or intended to make the new peace

officer privilege less secure against nonjudicial abrogation than other existing

privileges. Throughout section 1045, the Legislature uses the specific term

―court,‖ not the broader term ―presiding officer,‖ to identify who is authorized to

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conduct in camera review—a distinction that comports with what was then the

firmly established practice. We should take the Legislature at its word.

Of note, the Legislature has been precise in its choice of terminology

elsewhere in the Evidence Code and, indeed, in the very legislation at issue. (See

§§ 905 [specially defining ― ‗Presiding officer‘ ‖ to encompass all hearing officers,

as distinct from judges or courts], 914 [making distinct and differential use of the

terms ―presiding officer‖ and ―court‖], 915 [same], 1043 [referring to a ―court or

administrative body‖ (italics added)].) We should not lightly presume the

Legislature was any less precise in section 1045. If it had meant ―presiding

officer,‖ the term the majority‘s interpretation effectively reads into the statute in

place of ―court,‖ it would have said so. (Cf. § 914, subd. (a) [using the term

―presiding officer‖ to explicitly grant nonjudicial hearing officers authority to

conduct privilege hearings under § 400 et seq.].) Indeed, the commentary to

section 914 notes that express authorization for nonjudicial hearing officers to

conduct privilege hearings was ―necessary because Sections 400–406, by their

terms, apply only to determinations by a court.‖ (Cal. Law Revision Com. com.,

29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.) When the

Legislature has written a statute to extend power only to a ―court,‖ it knows that

statute does not extend power to every nonjudicial ―presiding officer.‖ And when

the Legislature intends to extend new powers to nonjudicial officers, it knows how

to do so expressly.

The legislative history supports the plain meaning of the text. The purpose

of the new statutes was to ―protect peace officer personnel records from discovery

in civil or criminal proceedings‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill

No. 1436 (1977–1978 Reg. Sess.) as amended Apr. 3, 1978, p. 1) by creating a

new privilege limiting their disclosure (id. at pp. 4–5). In committee report after

committee report, assurances were offered that peace officers could not be forced

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to surrender this newly created privilege until a judge had reviewed materials in

camera. (E.g., id. at pp. 3–5; Assem. Com. on Criminal Justice, Analysis of Sen.

Bill No. 1436 (1977–1978 Reg. Sess.) as amended Aug. 7, 1978, p. 2; Assem.

Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.)

Final Analysis, pp. 1–2.)5 These guarantees mirror the recognition in connection

with section 914 that only a judicial determination could support compelled

disclosure of privileged materials. (See Cal. Law Revision Com. com., 29B pt. 3A

West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.)

That the Legislature knows how to authorize nonjudicial officers to conduct

in camera review of privileged documents, and says so expressly when that is its

intent, is further illustrated by how the Legislature later handled nonjudicial

privilege review under the APA. In 1995, in response to recommendations from

the Commission, the Legislature substantially updated and modernized the APA.

(Stats. 1995, ch. 938, p. 7104; see Department of Alcoholic Beverage Control v.

Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 8–9.) Among the

proposed changes the Legislature enacted verbatim were revisions to the act‘s

discovery provisions. Whereas under then existing law, ―discovery disputes

between the parties [were] referred to the superior court for resolution and

enforcement,‖ the Commission sought to ―expedite the discovery process‖ by

―vest[ing] resolution of discovery disputes in the administrative law judge.‖

(Recommendation: Administrative Adjudication by State Agencies (Jan. 1995) 25

5

The majority is quite right to note no special focus was placed on who

would conduct the review (maj. opn., ante, at p. 24), the reason being no special
focus was needed; the various bill analyses, like the text of section 1045, carried
forward the assumption that had always been true, that in camera review was
something done only by courts and judges. If the Legislature contemplated a
departure from that well-established practice, as the majority posits, one would
expect the legislative history to so indicate. Instead, there is only silence.

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Cal. Law Revision Com. Rep. (1995) pp. 55, 116.) Government Code section

11507.7 was revised to allow administrative law judges to do what previously only

courts had done, including, with respect to privilege claims, authorizing for the

first time an ―administrative law judge [to] order lodged with it matters provided

in subdivision (b) of Section 915 of the Evidence Code and examine the matters in

accordance with its provisions.‖ (Gov. Code, § 11507.7, subd. (d).) This new

authority eliminated any need for a transfer mechanism to bring every APA

discovery dispute before a court; accordingly, the freestanding petition previously

authorized by section 11507.7 was eliminated. (See Gov. Code, § 11507.7, subd.

(a) [motion to compel may be filed directly with the administrative law judge].)

Curiously, the majority imputes to me the view that a Government Code

former section 11507.7 petition would necessarily have provided the mechanism

for Pitchess discovery, then refutes that asserted view at length. (Maj. opn., ante,

at pp. 25-27.) But I take no position on how a former section 11507.7 petition and

the Pitchess statutes might have interacted; the issue is, after all, long since moot.

For present purposes, the significance of Government Code former section

11507.7, and of the current version of that same statute, is simply this: when it

comes to withholding or granting in camera powers to nonjudicial hearing officers,

the Legislature has acted intentionally and explicitly. We cannot fairly assume

that uniquely, in Evidence Code section 1045, it acted inadvertently and implicitly.

Turning the interpretive question on its head, the majority asks whether

section 1045 contains a limit on who may act. The majority argues that section

1045 at most ―implicitly‖ withholds from nonjudicial hearing officers the power to

conduct in camera review (maj. opn., ante, at p. 7, italics omitted), and references

to ― ‗the court‘ ‖ in that statute should not be read ―as a coded expression of

legislative intent to substantively limit who may rule on Pitchess motions‖ (maj.

opn., ante, at p. 15). But there is nothing implicit or coded about the statute. Its

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designation of who may conduct in camera review and issue appropriate protective

and other orders is explicit and plain: ―the court.‖ (§ 1045, subds. (b), (c), (d),

(e).) When the Legislature intends a grant of authority to a broader group, it has

available, and uses, a different and more encompassing term: ―presiding officer.‖

(See §§ 905, 913–916, 919.) More fundamentally, the issue here is not whether

section 1045 contains a limit on who may act. Rather, given that until 1995, when

the Legislature amended the APA, only a judicial officer had the express power to

conduct in camera review, the relevant inquiry ought to be whether section 1045

contains an unprecedented affirmative grant of such authority to a nonjudicial

officer. By its terms, the statute does not.

The Legislature has taken pains historically to identify and limit who may

conduct in camera review. Nothing in the text or history of the Pitchess discovery

statutes authorizes us to undo that effort. We should honor the language the

Legislature has chosen by giving it effect.

III.

If, as I conclude, section 1043 allows administrative discovery but section

1045 does not authorize administrative in camera review, the further question is

how the statutory scheme, correctly applied, would operate here.

As noted, this dispute arises in a non-APA proceeding; no administrative

law judge is involved, and nonjudicial officers other than administrative law

judges have no power to issue protective orders, nor any authority to conduct in

camera review. (§ 915, subd. (b); cf. Gov. Code, §§ 11511.5, subds. (b)(7), (e),

11507.7, subd. (d).) Section 1043, subdivision (c), however, authorizes any

administrative body presented with a peace officer records discovery motion to

conduct a hearing. At that hearing, the nonjudicial presiding officer may consider

the arguments and evidence in favor of and against whether the requested

information is material and likely to be possessed by the identified custodian of

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records, and may rule on whether a showing has been made to warrant discovery.

(See § 1043, subd. (b)(3).) Although the nonjudicial officer may not order in

camera disclosure to assist in this determination (see § 915, subd. (b)), this is

hardly unusual; the Evidence Code has always called on nonjudicial presiding

officers to rule on privilege matters without examining the assertedly privileged

documents (§§ 914, subd. (a), 915; see Southern Cal. Gas Co. v. Public Utilities

Com. (1990) 50 Cal.3d 31, 45, fn. 19). Privilege determinations nevertheless can

be rendered based on all other available evidence. (See United States v. Reynolds

(1953) 345 U.S. 1, 8–11; Costco Wholesale Corp. v. Superior Court (2009) 47

Cal.4th 725, 737.)

As has also always been the case, a nonjudicial order directing discovery is

not self-executing. If the custodian of records voluntarily complies, with the

consent of the officer whose personnel records are sought, the matter is at an end.

If the custodian does not comply, or the party seeking discovery believes

compliance has been only partial, no immediate sanction is available, but the party

requesting discovery may seek referral of the matter to the superior court in the

county where the administrative proceeding is ongoing. (§ 914, subd. (b); Code

Civ. Proc., § 1991.) At this point, the provisions of Evidence Code section 1045

come into play; a court asked to enforce a nonjudicial order for section 1043

Pitchess discovery can review materials in camera to decide whether to issue a

court order directing discovery, as well as a protective order (§ 1045, subd. (e)) or

any other order ―which justice requires‖ (id., subd. (d)).

The majority criticizes this view of the governing statutes as permitting

compelled discovery without in camera review, as required by section 1045. To

the contrary, unlike the majority construction, this view ensures in camera review,

in all cases where discovery is contested, by the entity authorized to do such

review—―the court.‖ Nothing in the statutory text or history supports the view the

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Legislature intended the contemplated protections to apply even in the rare

hypothetical instance where a privilege holder might have no objection and waive

the privilege.

To support its view that ―shall examine‖ in section 1045 means ―shall

examine‖ even when the privilege is waived and disclosure uncontested, the

majority points to earlier unenacted versions of the Pitchess discovery legislation

that made in camera review optional by placing a burden on the privilege holder to

affirmatively seek in camera review. (Maj. opn., ante, at pp. 23-24; e.g., Assem.

Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3 [―In

determining relevance, the court shall, at the request of any person authorized to

claim the privilege, examine the information in chambers in conformity with

Section 915 . . .‖].) The enacted version lifted that burden, ensuring that whenever

discovery was opposed, in camera review would follow as a matter of course.

(§ 1045, subd. (b).) To interpret this change as also compelling review in

uncontested cases, and the new privilege as unwaivable even by the holder, lacks

any basis.

The majority also would find no statute currently authorizes transfer of a

discovery dispute from a nonjudicial setting to a judicial setting, and in the

absence of such a mechanism would read broad new powers for nonjudicial

officers into section 1045. Given a choice between disregarding the plain text of

section 1045, on the one hand, and reading section 914, subdivision (b) and Code

of Civil Procedure section 1991 as collectively allowing a court to act on

discovery disputes arising before nonjudicial officers, on the other, I would choose

the latter course, the one that gives effect to the text of each relevant statute and

accords with the Legislature‘s long-standing desire ―to protect persons claiming

privileges in nonjudicial proceedings‖ from having to surrender those privileges at

the sole behest of nonjudicial officers. (Cal. Law Revision Com. com., 29B pt. 3A

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West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.) Far from reading Pitchess

discovery in administrative hearings out of section 1043, this approach embraces

such discovery. Moreover, unlike the majority‘s approach, it does so without also

sacrificing equally significant protections for privileged information expressly

codified in the in camera review provisions of section 1045.

Here, the majority again imputes to me, and then refutes, a position I do not

assert in connection with a scenario not before us: that if this were an APA

proceeding, the appropriate course necessarily would be to seek discovery under

Government Code section 11507.7, rather than under Code of Civil Procedure

section 1991. (See maj. opn., ante, at p. 27 [first imputing this imagined view and

then using it to claim ―[t]he dissent cannot have it both ways‖].) Because this case

does not involve the APA, neither I nor the majority need sort out which would be

the correct course in such a proceeding. Concerning the non-APA proceeding that

is before us, and the demonstration that Pitchess discovery can be had without

violating the general rule against nonjudicial in camera review, the majority is

largely silent.

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IV.

Applying the foregoing framework to the instant case, I agree with the

majority and the Court of Appeal that former Deputy Kristy Drinkwater can seek

Pitchess materials through a motion filed with the nonjudicial hearing officer

reviewing her termination. I cannot agree that the nonjudicial officer has authority

to demand their production for in camera review. To so hold unjustifiedly

eviscerates the protections in sections 914, 915, and 1045 that ensure judicial

officers, and judicial officers alone, will conduct privilege review. Instead, any

determination that good cause for discovery has been shown should be followed,

in the absence of voluntary compliance, by a request for a court order enforcing

discovery under section 914, subdivision (b), and Code of Civil Procedure section

1991.

I respectfully dissent.

WERDEGAR, J.

I CONCUR:

BAXTER, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Riverside County Sheriff‘s Department v. Stiglitz
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 209 Cal.App.4th 883
Rehearing Granted
__________________________________________________________________________________

Opinion No. S206350
Date Filed: December 1, 2014
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Mac R. Fisher
__________________________________________________________________________________

Counsel:

Hayes & Cunningham, Dennis J. Hayes, Adam E. Chaikin and Amanda K. Hansen for Intervener and Appellant.

Stone Busailah, Michael P. Stone, Muna Busailah, Melanie C. Smith, Robert Rabe and Travis M. Poteat for Real
Party in Interest and Appellant and Real Party in Interest and Respondent.

Lackie, Dammeier & McGill and Michael A. Morguess for Peace Officers‘ Research Association of California
Legal Defense Fund as Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and Appellant
and Real Party in Interest and Respondent.

Silver, Hadden, Silver, Wexler & Levine, Richard A. Levine, Brian P. Ross and Michael Simidjian for Los Angeles
Police Protective League as Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and
Appellant and Real Party in Interest and Respondent.

Green & Shinee, Richard A. Shinee and Helen L. Schwab for Association for Los Angles Deputy Sheriffs as
Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and Appellant and Real Party in Interest
and Respondent.

Law Office of James E. Trott and James E. Trott for Association of Orange County Deputy Sheriffs, Long Beach
Police Officers Association and Southern California Alliance of Law Enforcement as Amici Curiae on behalf of
Intervener and Appellant, Real Party in Interest and Appellant and Real Party in Interest and Respondent.

Ferguson, Praet & Sherman, Jon F. Hamilton, Kimberly A. Wah and Bruce D. Praet for Plaintiff and Respondent.

Kathleen Bales-Lange, County Counsel (Tulare) and Crystal E. Sullivan, Deputy County Counsel, for California
State Association of Counties and California League of Cities as Amici Curiae on behalf of Plaintiff and
Respondent.

Jones & Mayer, Martin J. Mayer, Gregory P. Palmer and Krista MacNevin Jee for California State Sheriffs‘
Association as Amicus Curiae on behalf of Plaintiff and Respondent.

No appearance for Defendant and Respondent.



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Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael P. Stone
Stone Busailah
200 East Del Mar Boulevard, Suite 350
Pasadena, CA 91105
(626) 683-5600

Bruce D. Praet
Ferguson, Praet & Sherman
1631 E. 18th Street
Santa Ana, CA 92705-7101
(714) 953-5300


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Petition for review after the Court of Appeal reversed an order granting a petition for writ of administrative mandate. The court limited review to the following issue: Does the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff's department have the authority to grant a motion under Pitchess v. Superior Court, 11 Cal.3d 531 (1974)?

Opinion Information

Date:	Citation:	Docket Number:
Mon, 12/01/2014	60 Cal.4th 624 (2014); 339 P.3d 295 (2014); 181 Cal. Rptr. 3d 1 (2014)	S206350

Opinion Authors
Opinion	Justice Carol A. Corrigan
Concur	Justice Kathryn M. Werdegar, Justice Marvin R. Baxter
Dissent	Justice Kathryn M. Werdegar, Justice Marvin R. Baxter

Brief Downloads
DRINKWATER K. FILED ANSWERING BRIEF OF REAL PARTY IN INTEREST & APPELLANT .pdf (2178953 bytes) - Answering Brief - Real Party in Interest and Respondent: Kristy Drinkwater
DRINKWATER K. SUPREME COURT PETITIONERS OPENIN BRIEF.pdf (3000831 bytes) - Opening Brief - Plaintiff and Respondent: Riverside County Sheriff's Department
DRINKWATER K. SUPREME COURT PETITIONRES REPLY BRIEF.pdf (969607 bytes) - Reply Brief - Plaintiff and Respondent: Riverside County Sheriff's Department

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Apr 13, 2015 Annotated by Elizabeth Hook

FACTS Deputy correctional officer Kristy Drinkwater was fired by the Riverside County Sheriff‘s Department for allegedly falsifying her payroll forms. Drinkwater appealed the termination according to the terms of a memorandum of understanding between the Riverside Sheriff’s Association and the County of Riverside that provided for an administrative appeal. Drinkwater planned to bring a disparate treatment defense, arguing that other Riverside County Sheriff’s Department personnel had committed similar misconduct and received less severe punishments. Accordingly, Drinkwater filed a motion for discovery, commonly called a Pitchess motion, seeking disciplinary records for other employees who had been investigated and disciplined for similar misconduct. Arbitrator Jan Stiglitz served as the hearing officer at the appeal. PROCEDURAL HISTORY Stiglitz initially denied Drinkwater’s motion for discovery, because under California Evidence Code Sections 1043 and 1045, Drinkwater, and not the sheriff’s department, had the burden to identify the the employees whose records she sought. Drinkwater subsequently renewed her motion, supporting it with more specific information and identifying the employees by name. Stiglitz found good cause and granted Drinkwater’s motion. The sheriff’s department sought an administrative mandate in superior court, compelling Stiglitz to vacate the decision. The superior court granted the mandate, agreeing with the sheriff's department that Pitchess motions were not properly the subject of administrative hearings, and ordered Stiglitz to reverse his previous order. The Riverside Sheriff’s Association then sought to intervene and requested a new hearing. Intervention and a new hearing were granted, but the superior court again denied Drinkwater’s motion for discovery. Drinkwater and the Riverside Sheriff’s Association sought review, and the court of appeal reversed the superior court’s decision. ISSUES Whether an administrative hearing body in an appeal from the dismissal of a county sheriff’s department correctional officer may rule on a motion seeking discovery of peace officer personnel records under Pitchess v. Superior Court, 11 Cal.3d 531 (1974). HOLDING Affirming the appellate court’s decision, the Supreme Court held, by a 5-2 vote, that an administrative body has the authority to rule on a Pitchess motion when hearing an administrative appeal from discipline imposed on a correctional officer. ANALYSIS After examining the language of California Evidence Code Section 1043, the court determined that a Pitchess motion may be filed in an appropriate administrative body and that the language reflected a legislative intent that administrative officers, not just judicial officers, be allowed to hear and decide such motions. A Pitchess motion proceeds in two steps. Under Section 1043, the movant must file a motion with an appropriate court or administrative body and establish good cause for the discovery request. Upon a showing of good cause, an in camera hearing, or private review, must be granted pursuant to California Evidence Code Section 1045 to assess the relevance of the requested discovery material. The sheriff’s department argued that references to the “court” in Section 1045 as the entity that presides over the in camera hearing were more important than the reference to an “administrative body” in Section 1043. The court, however, stressed that use of the term “court” in one section did not invalidate the use of the term “administrative body” in another section, and if the Legislature had intended to preclude administrative bodies from hearing Pitchess motions, it had had the opportunity to make that clear. The court reasoned that if a Pitchess motion were not allowed to be filed with an administrative body, then Section 1043 would be authorizing the “idle act” of filing a motion with an entity not authorized to rule on it. Moreover, since Section 1043 did not provide for a transfer mechanism for Pitchess motions from an administrative body to a superior court, the Legislature must have intended to grant administrative hearing officers the authority to decide such motions. Finally, the court determined that its holding was consistent with the purposes of the Public Safety Officers Procedural Bill of Rights Act (POBRA) which provides for the right to administratively appeal an adverse employment decision. The court also explained that its conclusion was consistent with the Pitchess scheme of balancing a litigant’s discovery interest against an officer’s confidentiality interest. Here, the court distinguished Brown v. Valverde, a 2010 case holding that only judicial officers may rule on Pitchess motions in a DMV administrative license suspension hearing. The sheriff’s department had relied heavily on Brown in its argument. Unlike Brown, where a Pitchess motion would have frustrated the legislative intent to quickly remove unsafe drivers from the road and the relevance of the discovery was questionable, the sheriff’s department in this case conceded that Drinkwater’s request was relevant to her claim and did not call into question the credibility of the officers whose records were requested. Moreover, the existence of confidentiality safeguards in this case that protected the privacy of the requested files was in line with the purposes behind POBRA and the Pitchess discovery scheme. The court concluded that the precedential value of Brown is limited to its facts and administrative license suspension hearings. Concurring and Dissenting Opinion Two Justices concurred in part and dissented in part. They concurred that Pitchess motions can be brought before administrative bodies and administrative hearing officers can hear Pitchess motions and rule on them. However, they argued that hearing officers should not have the power to review privileged and confidential information in the context of a Pitchess motion; only judicial officers should conduct the in camera hearings. TAGS administrative appeal, administrative body, arbitrator, Pitchess motion, Pitchess, California Evidence Code § 1045, California Evidence Code § 1043, Evidence Code § 1045, Evidence Code § 1043, § 1045, § 1043, discovery, hearing officer, correctional officer, peace officer, disparate treatment, civil, employment, labor, in camera hearing, Public Safety Officers Procedural Bill of Rights Act (POBRA) Annotation by Elizabeth Hook

Related Media	CA Supreme Court Case Permits Use of Pitchess Motions in Administrative Disciplinary Appeals
	Riverside County Sheriff’s Department v. Stiglitz (Drinkwater)