*1 Following a discovery conference, this court issued an Order dated May 23, 2023. (Dkt. No. 31.)

Plaintiff subsequently filed a motion to compel discovery responses and for an award of monetary sanctions. (Dkt. No. 32-33.) Defendants Garfield Beach CVS, LLC, G. Garcia and J. Johnson (“CVS Defendants”) filed an opposition and a request for sanctions. (Dkt. No. 37-38.) Defendants City of Glendale, J. Ross, and G. Armendariz (“City Defendants”) filed an opposition. (Dkt. No. 39.) Plaintiff filed a reply. (Dkt. No. 40.) The matter came on for hearing on June 27, 2023.

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “District courts have broad discretion in determining relevancy for discovery purposes.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005).

A. CVS Defendants

Plaintiff's motion to compel sought further responses to Document Request Nos. 1-16 to Defendant Garfield Beach CVS and Interrogatory Nos. 9-12, 14-16 and 19-20 to the defendant CVS employees. In the opposition, the CVS Defendants explain that they produced documents and served supplemental responses on June 9, 2023, prior to the date set in the Order dated May 23, 2023. (Opp. & Jones Decl.)

In her reply, Plaintiff makes several arguments.

Plaintiff states that she has had difficulty opening the electronic video files and requests assistance or instructions from defense counsel. (Reply at 6 & Dkt. No. 40-3.) As stated in the Order dated May 23, 2023, Defendants agreed to contact third party adjuster Sedgwick to obtain any video, audio or photographic evidence about the incident in its possession. (Dkt. No. 31 at 2.) Defense counsel indicated at oral argument that she had requested instructions on how to open the video files and agreed to provide the information to Plaintiff.

Plaintiff complains that Garfield Beach CVS produced the one customer complaint without the customer's name. Defense counsel explained at oral argument that the customer did not provide a name with the complaint and no information was redacted. Defense counsel also explained that the production regarding the complaint is complete.

Plaintiff complains that the scope of Garfield Beach CVS' production in response to Document Request Nos. 1 and 3 is unduly narrow.[1] Garfield Beach CVS produced documents about complaints against Defendants Garcia and Johnson regarding allegations of (a) dishonesty; (b) mask issues; and (c) conflicts with customers in the nature of refusal to serve customer(s), banning or requesting that a customer not return to the CVS location, and threats or harassment of customer(s) for the period beginning five years prior to the incidents in question. The CVS Defendants agree to produce such complaint or claims files regardless of whether the allegations were made by a customer or other persons such as employees or supervisors. Defense counsel requested that Plaintiff identify any additional conduct she contends is similar to the allegations in this case. (Exh. B to Jones Decl., Dkt. No. 38-2 at 3, 5.)

*2 After hearing oral argument, the court adds the following to the list of similar conduct: complaints regarding calling the police on customers. Plaintiff alleges that Defendants improperly called the police on her and that Defendant Garfield Beach CVS does not sufficiently train or monitor its employees on this point.

Plaintiff argues that, in addition, she is entitled to complaints regarding any misconduct by Garcia or Johnson and cites rulings made in Holloway v. Cty. of Orange, CV 19-01514 DOC (DFM), specifically Dkt. Nos. 39, 221, 266, and 414. The court reviewed the cited rulings, none of which supports Plaintiff's argument. The Holloway case was based on excessive force allegations. On the motion to compel in the Holloway case, the magistrate judge permitted certain discovery regarding seven use-of-force incidents alleged in the Second Amended Complaint (“SAC”) and use-of-force investigations involving the individual officer defendants. (Order, Dkt. No. 39 at 3-4; see SAC ¶ 22.) The court denied, however, the motion to compel discovery of other types of conduct involving the individual officer defendants. (Dkt. No. 39 at 3-4.) On motions in limine before both trials, the district judge similarly allowed evidence of use-of-force and dishonest or false statements, but excluded evidence of other bad acts. (Dkt. No. 221 at 2; Dkt. No. 266; Dkt. No. 414 at 2-3.)

The rulings in Holloway are consistent with the decisions by other district courts. Courts generally order production of complaints that involve allegations of similar incidents or allegations of dishonesty. Whitely v. CDCR, 2021 U.S. Dist. LEXIS 44513, *5 (C.D. Cal. Jan. 29, 2021); see, e.g., Simon v. City of Los Angeles, 2023 U.S. Dist. LEXIS 84301, *23-*24 (C.D. Cal. Apr. 21, 2023) (permitting discovery of similar use-of-force complaints in excessive force case); Roettgen v. Foston, 2016 U.S. Dist. LEXIS 60047, *3-*12 (S.D. Cal. May 4, 2016) (rejecting request for documents about past “misconduct” but permitting discovery of complaints similar to plaintiff's allegations; Bartolome v. City & Cnty. of Honolulu, 2008 U.S. Dist. LEXIS 53398, at *35-*36 (D. Haw. 2008) (finding complaints of rudeness not relevant to plaintiff's allegations of excessive force); see also Miller v. Pancucci, 141 F.R.D. 292, 296-97 C.D. Cal. 1992) (permitting discovery of similar incidents and denying discovery of other complaints against defendants); Mueller v. Walker, 124 F.R.D. 654, 658 (D. Or. 1989) (permitting discovery of similar incidents and denying discovery as to unrelated violations of regulations or procedures). Plaintiff's motion acknowledges as much. (Motion at 63 (“ ‘[C]ourts have repeatedly required Section 1983 plaintiffs to support their ‘custom’ allegations with multiple, similar past incidents ....’ ” (citation omitted).)

Finally, Plaintiff states that the CVS Defendants have not produced policies regarding citizen's arrest or banning customers from a particular location in response to Document Request Nos. 15-16. Defense counsel responds that Defendants are not withholding documents and have not located any such policies. As stated in the Order dated May 23, 2023, Defendants did not object to producing the requested documents. (Order, Dkt. No. 31 at 2.)

After hearing oral argument, and for the same reasons discussed above, the court adds the following to the list of policies to be produced by the CVS Defendants in response to Document Request Nos. 15-16: policies or procedures regarding calling the police on customers.

*3 Plaintiff's reply brief does not specifically address the CVS Defendants' contention that the motion to compel is moot to the extent it is directed to interrogatories to the individual CVS employees. (Opp. at 8-9.) Therefore, the court assumes that there is nothing to compel with respect to the interrogatories. However, now that the court has added a category to Document Request Nos. 1 and 3, the CVS Defendants should review the interrogatory responses to determine whether supplementation is necessary in light of that new category.

B. City Defendants

Plaintiff moves to compel further responses to Document Request Nos. 1-19, 22, 24, and 27-28 from the City of Glendale. The City indicates that it has completed production in response to Document Request Nos. 6, 9, 14, 15, 16, 22 and 24. In addition, Interrogatory Nos. 7 and 18 are fully answered. Plaintiff's motion to compel is moot as to these discovery requests.

Document Request Nos. 1, 3, 4, 7, 8, 10, 11 and 27: The City states that it has produced the Internal Affairs Investigation Report for the incident involving Plaintiff. In addition, as stated in the May 23, 2023 Order, the City does not object to production of nonprivileged complaint files and claims files for the individual City Defendants regarding allegations of (a) dishonesty including falsifying police reports; (b) handcuffing; (c) racism or bigotry; and (d) failure to investigate in the citizen arrest context or retail context for the period beginning five years prior to the incident on January 19, 2021. The City found no responsive documents.

In her reply, Plaintiff states that production of the Internal Affairs Investigation Report was incomplete in three ways. First, Plaintiff states that the recording of the Ross interview was not provided. At oral argument, defense counsel indicated that this was an oversight and agreed to produce the recording. Second, Plaintiff states that the sergeant viewed AXON video, which Plaintiff believes refers to body cam footage. At oral argument, defense counsel explained that there are three types of AXON footage: (1) AXON Fleet, which is in the vehicle; (2) AXON Body; and (3) AXON Capture, which is in the smartphone. Defense counsel reiterated that the police department did not have body worn cameras in January 2021 and adopted them the next month in February 2021.[2] (Order, Dkt. No. 31 at 3.) Defense counsel explained that Defendants produced any AXON Fleet video and AXON Capture video on the smartphone regarding the incident. Third, Plaintiff stated that she did not receive dispatch audio for the incident. Defense counsel agreed to confirm that the dispatch audio was produced.

With respect to the scope of similar incidents involving the individual defendant officers, Plaintiff acknowledges that her case is “somewhat unique” in that it occurred during a global pandemic and started as a dispute between a customer and retail worker over face mask compliance. (Reply at 4.) Once the officers arrived, Plaintiff alleges that she was pushed toward a patrol car, patted down, handcuffed, and subjected to prolonged detention in a patrol car with a face mask on while screaming that she was having a panic attack and could not breathe. (See also Compl. ¶¶ 15-17.) Plaintiff asks for production of use-of-force reports and supplemental reports for the individual defendant officers as well as prolonged detention in a patrol car and unreasonable search in the context of a male officer patting down a female suspect. Defense counsel indicated that Defendants searched use-of-force reports and arrests in the retail context.

*4 The court adds the following categories to Document Request Nos. 1, 3, and 4 as to the individual defendant officers for the period beginning five years prior to the date of the incident: (e) use-of-force reports not involving the use of guns or other weapons; (f) false arrest or detention based on face mask issues, trespassing or disturbing the peace in a retail context; (g) prolonged detention in a patrol car involving face mask issues, trespassing or disturbing the peace in a retail context; and (h) unreasonable search in the context of patting down or searching a female suspect. To the extent Plaintiff contends that she is entitled to any complaint about the individual defendant officers, Plaintiff's arguments are rejected for the same reasons discussed above in connection with the CVS Defendants. Plaintiff cited the rulings made in Holloway v. Cty. of Orange, CV 19-01514 DOC (DFM), specifically Dkt. Nos. 39, 221, 266, and 414. The court's rulings in this case are consistent with the rulings in Holloway, including with respect to Document Request No. 2. (Holloway, Dkt. No. 39 at 3-4.)

The court rejects Plaintiff's contention that Defendants have waived any privilege in the event responsive complaints are found. When, as here, there is an objection to the scope of the document request, a court may rule on the objection first. The Advisory Committee Notes to the 1993 Amendments to Rule 26 offer an example:

Similarly, “[i]f the court finds that the document is within the scope of the objection, and the court overrules the objection, it must then give the party an opportunity to list the document on a privilege log pursuant to Rule 26(b)(5).” United States v. Philip Morris, Inc., 347 F.3d 951, 954, 358 U.S. App. D.C. 226 (D.C. Cir. 2003).

Document Request No. 2: This request seeks production of crime, detention and arrest reports, and digital media for all cases involving several designated sections of the California Penal Code in which the individual defendant officers were victims or witnesses. The court concludes that this discovery, with the exception of the incident at issue, is not proportional to the needs of this case. (See also Holloway, Dkt. No. 39 at 3-4.)

Document Request No. 5: This request seeks production of the background investigations of the individual defendant officers. The court finds that the background investigations are relevant and proportional to the needs of this case to the extent they disclose issues of honesty or dishonesty, violence, or bigotry. On the other hand, Defendants need not produce the portions of the background investigation, if any, that involve the individual defendant officers' personal identifying information, childhood, family, bank or financial accounts, health insurance, or medical issues. If this guidance is not sufficient, then Defendants may request in camera review.[3]

*5 Document Request No. 12: This request seeks all recorded radio transmissions on all recorded channels involving the individual defendant officers during a 12-hour period on January 19, 2021. The court has already addressed the radio transmission regarding the incident at issue in this case in connection with other document requests. Document Request No. 12 is not relevant or proportional to the needs of this case.

Document Request No. 13: This request seeks all calls for service or radio transmissions from the Garfield Beach CVS for a five-year period. The court has already addressed the radio transmission regarding the incident at issue in ths case in connection with other document requests. Document Request No. 13 is not relevant or proportional to the needs of this case.

Document Request No. 17: This request calls for production of color photographs of the two individual defendants. The City objects and argues Plaintiff could videotape the deposition if she wants color stills. The court overrules the objection. The City will be ordered to produce said photographs. (See Holloway, Dkt. No. 39 at 4.)

Document Request No. 18: This request calls for the daily roster showing each officer, supervisor, jailer, custodial officer, watch commander, and civilian employee on duty during a 12-hour period on January 19, 2021. The City agreed to produce the daily roster showing the supervisor and watch commander on duty during this incident. Nothing more would be proportional to the needs of this case.

Document Request No. 19: This request calls for the daily watch activities for the individual defendant officers on January 19, 2021. The City agreed to produce responsive documents for this incident. Nothing more would be proportional to the needs of this case.

Document Request No. 28: This request calls for annual reports filed with the California Department of Justice pursuant to Cal. Penal Code § 13012. There is no showing of relevance, and this request is not proportional to the needs of this case.

The Individual Defendant Officers may review Interrogatory Nos. 3, 6, and 20 in light of any supplemental document productions in response to Document Request Nos. 1 and 3 above.

Interrogatory No. 19 seeks identification of any other physical tattoos on the body of Defendants Ross and Armendariz. The word “other” is necessary because Defendants have denied the existence of tattoos associated with membership in a gang, clique or subgroup in response to Interrogatory No. 18. Plaintiff cites the presence of gangs in the Los Angeles County Sheriff's Department (“LASD”) and argues that Defendants Ross and Armendariz graduated from the LASD Academy prior to being hired by GPD.

The court concludes that Interrogatory No. 19 is not proportional to the needs of this case. The publication cited by Plaintiff reviews 50 years of gangs, cliques or subgroups in certain LASD stations and jail facilities. The publication does not identify any such groups at the Academy. The mere fact that Defendants Ross and Armendariz graduated from the LASD Academy does not render any tattoos they may or may not have relevant to this case. The allegations in this case do not remotely touch on gang, clique or subgroup activity in LASD or GPD.

C. Order

IT IS ORDERED that Plaintiff's motion to compel is GRANTED IN PART AND DENIED IN PART as follows: