Publications

In state court, citizen complaints against a peace officer are considered confidential personnel records under Penal Code section 832.7, and are not subject to disclosure. Rather, a party seeking discovery of such confidential information must obtain a court order. Cal. Evid. Code section 1043; Pitchess v. Superior Court, (1974) 11 Cal. 3d 531 (hereinafter "Pitchess Motion"). If a Pitchess Motion is granted, courts will generally only disclose limited information, such as names of complainants, rather than the actual complaint document. If this initial disclosure is inadequate, a party may move for further discovery. Until City of Tulare, the proper procedure for such further discovery had not been established.

In City of Tulare, a juvenile was charged with assault on a peace officer. The juvenile filed a Pitchess Motion to obtain the officer's records, which was granted. The court disclosed names and contact information of four complainants. After an investigation into the complainants did not produce any witnesses, the juvenile moved exparte to seek further discovery of the officers records, providing only three days notice to the City. The motion included a declaration purporting to establish why the investigation was unsuccessful.

The City objected to the motion on the grounds that the juvenile was required to file an additional noticed motion pursuant to Evidence Code section 1043 and Code of Civil Procedure 1005, so that the City could address whether the juvenile had established good cause to seek the further discovery. The juvenile argued that because the court already granted his Pitchess motion, the further discovery did not seek "new information" but was merely an extension of the originally granted motion, and therefore was not required to follow the normal Pitchess procedures. The trial court agreed, and ordered the City's custodian of records to appear for an in camera review of the records.

The City sought immediate review to the Court of Appeal, Fifth Appellate District, arguing the trial court was wrong. The appellate court agreed with the City, holding that a second Pitchess motion was required. The appellate court found that the City was effectively denied due process absent a regularly noticed motion, because there was no means for the City to challenge the declaration seeking the further discovery. The appellate court rejected the theory that the information was a mere extension of the first Pitchess motion. Based thereon, the appellate court vacated the trial court's granting of the motion, and required a properly noticed motion.

Keeping in mind that the Pitchess process applies to civil proceedings in state court as well as criminal matters (but not to matters venued in federal court), one successful Pitchess motion does not abdicate the party's duty to follow the normal Pitchess procedural safeguards in seeking further discovery. The appellate court implied a party may do so on shortened time by court order. Public entities are encouraged to consult legal counsel to ensure peace officer personnel records are properly protected.