Robert Kirsch et al vs County of Santa Barbara et al

Case Number

Case Type Civil Law & Motion Hearing Date / Time Fri, 07/31/2026 - 10:00 Nature of Proceedings Motion to Compel and Production of Pitchess Documents Tentative Ruling For all reasons stated herein: The motion of plaintiffs Robert Kirsch, Joshua Lake, and Robert Garnica for production of Pitchess documents is granted in part as to in camera inspection of category Nos. 1 and 2, as narrowed in scope by this ruling. Plaintiffs request for in camera review under the Pitchess procedures is otherwise denied. The motion of defendant County of Santa Barbara for production of Pitchess documents is granted in part to the same extent plaintiffs' motion is granted, and is otherwise denied.

The in camera review hearing shall take place in this department at a date to be set between August 17 and August 28, 2026. The court will set the in camera review hearing after input from the parties. The custodian of records for defendant and real party in interest Santa Barbara County Sherrif's Department shall appear at the in camera review hearing and present testimony under oath to ensure completeness of responsive Pitchess information. The transcript of the in camera hearing shall be sealed.

On or before August 7, 2026, defendant, custodian, and real party in interest Santa Barbara County Sherrif's Department shall file with the court a declaration indicating that potentially affected peace and custodial officers have been notified of the in camera review hearing pertaining to the records sought by moving parties.

On or before August 14, 2026, defendant, custodian, and real party in interest Santa Barbara County Sherrif's Department shall index, label, and lodge under seal with the court the items as to category Nos. 1 and 2 requested by plaintiffs, as narrowed in scope by this ruling.

Pursuant to Evidence Code section 1043, any records ultimately disclosed or discovered pursuant to this motion proceeding must be treated as confidential and may not be used for any purpose other than this action pursuant to applicable law. The court will endeavor to issue a separate order as to any disclosure or discovery within 7 days after the in camera review hearing.

Background: The original complaint in this action was filed on July 6, 2020. This case is related to Santa Barbara Superior Court Case No. 22CV00655 entitled, Robert Kirsch vs. Santa Barbara County Civil Service Commission. (See Sept. 29, 2022, Order On Related Cases.)

On February 6, 2023, the operative second amended complaint (SAC) was filed by plaintiffs Robert Kirsch (Kirsch), Joshua Lake (Lake), and Robert Garnica (Garnica) against defendants County of Santa Barbara (the County) and Santa Barbara County Sheriff's Department (SBSD). The SAC includes three causes of action: (1) retaliation in violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) (by Kirsch against all defendants); (2) retaliation in violation of Labor Code section 1102.5 (by plaintiffs against all defendants); and (3) failure to take all reasonable steps to prevent harassment, discrimination, and retaliation based on gender in violation of FEHA (by Kirsch against all defendants.)

[Note: The County takes the position in this litigation that SBSD was erroneously sued as a separate governmental entity independent of the County. SBSD is represented by the Office of County Counsel in this action. SBSD did not file a separate responsive pleading to the SAC. (See County Answer to SAC, March 8, 2023.) According to SBSD, SBSD appears separately in this Pitchess motion proceeding "only as the Custodian of Records and Real Party in Interest under Evidence Code section 1043." (See SBSD Opp. to County Pitchess Mtn., p. 2, ll. 6-7.).]

As alleged in the SAC: At all relevant times, Kirsh was a custody deputy employed by SBSD, Lake was a senior custody deputy employed by SBSD, and Garnica was a custody sergeant employed by SBSD. (SAC, P.P. 15-17.) On August 9, 2019, plaintiffs reported to their commander that a custody deputy had engaged in illegal activities pertaining to inappropriate handling of drug evidence. (SAC, P. 23.) Plaintiffs suffered retaliation. (SAC, P.P. 20-52.) Plaintiffs were subjected to unique scrutiny over timecard activity. (SAC, P.P. 24, 26, 27, 44.)

Kirsch was demoted. (SAC, P. 26.) Garnica was told to change Kirsch's employee performance report. (SAC, P. 27.) Plaintiffs were subjected to internal affairs investigations. (SAC, P.P. 27, 29, 32-34.) Kirsch was placed on administrative leave. (SAC, P. 31.) Garnica was transferred. (SAC, P. 31.) Lake was stripped of certain senior deputy duties. (SAC, P. 36.) Lake was blocked from applying for special operations. (SAC, P. 38.) Kirsch was given a notice of proposed discipline of termination. (SAC, P. 44.)

Kirsch was also subjected to retaliation for reporting and opposing gender or sex discrimination pertaining to an alleged improper work reassignment of a female deputy. (SAC, P.P. 20-21.)

On March 8, 2023, the County filed an answer to the SAC, generally denying its allegations and asserting ten affirmative defenses. The County denies that it retaliated against plaintiffs and maintains that it had legitimate, non-retaliatory or independent business reasons for undertaking personnel actions against plaintiffs. (See County Opp. to Plaintiffs Pitchess Mtn., p. 10, ll. 8-12.) The County alleges that it would have made the same decisions regarding plaintiffs' employment even if plaintiffs had not engaged in allegedly protected activity. (Ibid.)

On June 15, 2026, plaintiffs filed this Pitchess motion to seek discovery of certain peace and custodial officer personnel records. Plaintiffs seek seven years of comparator personnel or investigation records from custodian SBSD pertaining to four categories: (1) timecard comparators; (2) timecard investigations regarding Lt. Mike Perkins, if any; (3) retaliation/harassment/discrimination/conduct comparators; and (4) cease-and-desist/surrender-of-evidence directives (including matters similar to Commander Powell's September 9, 2019, memorandum). Plaintiffs also seek an order for an open-court record of documents disclosed after any in camera proceeding.

This motion is opposed by the County and SBSD. The County argues that plaintiffs' Pitchess motion constitutes overreach, an improper fishing expedition, and seeks documents not likely to lead to the discovery of admissible evidence. As argued by the County, disclosure or admission of records constituting confidential peace officer records of third parties, none of whom are parties or anticipated witnesses in this action, is more prejudicial than probative, and likely to necessitate undue consumption of time, confuse the issues, and mislead the jury. The County requests in the first instance that the court exercise its discretion to deny plaintiffs' Pitchess motion. SBSD largely joins in these arguments by the County and further emphasizes the confidential nature of the records at issue and the substantial breadth of the requests by moving parties.

In the alternative, on July 9, 2026, the County filed its own Pitchess motion. If the court orders production of any Pitchess materials sought by plaintiffs, the County argues that good cause exists for custodian SBSD to produce the Pitchess materials sought by the County. As argued by the County, these materials will enable the County to defend itself against plaintiffs' anticipated arguments. In the event the court grants plaintiffs' Pitchess motion, the County requests production of confidential personnel records establishing that the County considered or effectuated substantially the same or similar decisions or discipline, or otherwise effectuated appropriate personnel actions against other SBSD employees.

SBSD opposes the County's Pitchess motion in substantial part because, as argued by SBSD, the County requests certain broad categories of information that are wholly irrelevant to this litigation and therefore not available through the Pitchess process.

Analysis: (1) Personnel Records of Peace and Custodial Officers Subject to certain exceptions, "personnel records of peace officers and custodial officers ... maintained by a state or local agency ... 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." (Pen. Code, Sec. 832.7. subd. (a).) " 'Personnel records' means any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following: [P.] (1) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. [P.] (2) Medical history. [P.] (3) Election of employee benefits. [P.] (4) Employee advancement, appraisal, or discipline. [P.] (5) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. [P.] (6) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy." (Pen.

Code, Sec. 832.8, subd. (a).)

Exceptions from personnel records include records where there was a "sustained finding" by any law enforcement agency or oversight agency "involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury." (Pen.

Code, Sec. 832.7, subd. (b).) " 'Sustained' means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy." (Pen. Code, Sec. 832.8, subd. (b).)

The parties do not appear to dispute that the materials at issue in this motion constitute personnel records of peace or custodial officers and records maintained by SBSD which are, together with information obtained from those records, confidential. (See, e.g., Essick v. County of Sonoma (2022) 81 Cal.App.5th 941, 950-951 [general discussion re "personnel records"].) It appears that the records at issue in this motion proceeding are personnel records under Penal Code section 832.8, subdivisions (a)(4) and (a)(5), and potentially subdivision (a)(6).

(2) Discovery of Personnel Records of Peace or Custodial Officers by Pitchess Motion "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." (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710.) "In any case in which discovery or disclosure is sought of peace or custodial officer personnel records ... or information from those records, the party seeking the discovery or disclosure shall file a written motion ...." (Evid.

Code, Sec. 1043, subd. (a).) "The motion shall include all of the following: "(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency that has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard. "(2) A description of the type of records or information sought. "(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid.

Code, Sec. 1043, subd. (b).) "Upon receipt of a notice served pursuant to subdivision (a), the governmental agency shall immediately notify the individual whose records are sought." (Evid. Code, Sec. 1043, subd. (c).) "No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records." (Id., subd. (d).)

Penal Code sections 832.7 and 832.8, together with Evidence Code sections 1043 through 1047, "create a statutory scheme making [peace and custodial officer personnel records] confidential and subject to discovery only through the procedure set out in the Evidence Code." (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.) Further, "Evidence Code sections 1043 et seq. constitute the exclusive means by which a litigant in a civil action may obtain discovery of records governed by those statutes." (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1423, original italics.) The parties dispute whether moving parties have met the requirements of Evidence Code section 1043.

(3) Showing of Good Cause and Materiality The motion must be supported by a declaration "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid. Code, Sec. 1043, subd. (b)(3).) "To show good cause for discovery of confidential officer information, [the] motion must (among other things) explain the proposed [claim or] defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed [claim or] defense." (Giovanni B. v.

Superior Court (2007) 152 Cal.App.4th 312, 320.) "The threshold for establishing good cause is 'relatively low.' [Citations.] The proposed [claim or] defense must have a 'plausible factual foundation' supported by the [moving party] counsel's declaration and other documents supporting the motion. [Citation.] A plausible scenario 'is one that might or could have occurred.' [Citation.] The [moving party] must also show how the information sought could lead to or be evidence potentially admissible at trial....

Once that burden is met, the [moving party] has shown materiality under [Evidence Code] section 1043.' [Citation.]" (People v. Moreno (2011) 192 Cal.App.4th 692, 701; see also Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 41, fn. 2 (Association) ["The affidavit may be executed by an attorney based on information and belief; personal knowledge is not required."].)

However, though the burden of showing "good cause" is not high, the declaration must include "sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information...." (People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).) The trial court has broad discretion to rule on the finding of good cause. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086 (Haggerty).) The parties dispute the issue of good cause and materiality.

(4) In Camera Review "If the threshold showing of good cause is met, the trial court reviews the pertinent documents in chambers in conformity with [Evidence Code] section 915 and discloses only that information that is relevant to the subject matter involved in the pending litigation." (Riske v. Superior Court (2018) 22 Cal.App.5th 295, 304 (Riske II).) "This two-step process for discovery of peace officer personnel records balances the officer's strong privacy interests in his or her own personnel records with the needs of civil litigants ... to obtain information material to their claim or defense." (Riske v.

Superior Court (2016) 6 Cal.App.5th 647, 656 (Riske I.) "In determining relevance, the court shall examine the information in chambers in conformity with [Evidence Code] Section 915, and shall exclude from disclosure both of the following: "(1) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. "(2) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit." (Evid. Code, Sec. 1045, subd. (b).) "If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance." (Warrick v.

Superior Court (2005) 35 Cal.4th 1011, 1019.) "In 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 personnel records." (Evid. Code, Sec. 1045, subd. (c).) "[T]o protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera ..., and the transcript of the in camera hearing and all copies of the documents should be sealed." (People v.

Anderson (2018) 5 Cal.5th 372, 391.) "The defining hallmark of the process is an in camera hearing in which the trial court reviews the files at issue outside the presence of the [moving party] and his or her counsel. The completeness of the records is established through questioning of the custodian of records who produced them. In order to protect the [moving party's] right to a fair trial, the custodian must be placed under oath." (People v. White (2011) 191 Cal.App.4th 1333, 1335.)

Under, Evidence Code section 915, "[w]hen a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) ... and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present.

If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers." (Evid. Code, Sec. 915, subd. (b).) The parties dispute the materials the court should review in camera, if any.

(5) Protection of Governmental Agencies "Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression." (Evid. Code, Sec. 1045, subd. (d).) "The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law." (Id., subd. (e).) The parties dispute whether some or all of the materials are or should be prohibited from disclosure.

(6) Discovery Sought by Plaintiffs "Plaintiffs seek all documents and information in the form of comparator evidence related to the following categories: "1. All materials comprising the complaints/allegations and any investigations related to such complaints/allegations, within the last seven years concerning fraudulent, negligent, and/or erroneous timecards submitted by employees. Materials shall include but not be limited to the following: "a. Complaints/allegations and/or investigation of complaints/allegations, addenda and exhibits, witnesses' interviews and/or statements, photos, correspondence, witness lists, rough notes, the investigator's log, chronologies, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, and any other follow-up or action; "b.

All audio, video, and/or digital recordings and transcripts thereof of witnesses' interviews or statements. "2. All materials comprising the Department's Internal Affairs Investigation and outside investigations on behalf of the Department, if any, into timecards submitted by Lt. Mike Perkins, including but not limited to the following: "a. Complaints/allegations and/or investigation of complaints/allegations, addenda and exhibits, witnesses' interviews and/or statements, photos, correspondence, witness lists, rough notes, the investigator's log, chronologies, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, and any other follow-up or action; "b.

All audio, video, and/or digital recordings and transcripts thereof of witnesses' interviews or statements. "3. All materials comprising any complaints/allegations, and any investigations related to such complaints/allegations, within the last seven years concerning alleged violations of Lexipol section 328 (Discriminatory Harassment), section 1008 (Anti-Retaliation), sections Sec.340.3.2(k), Sec.340.3.2(n), or 340.3.3 (Conduct), section 340.3.4 (Discrimination), any subsection(s) thereof, and/or the County of Santa Barbara's Non-Discrimination Policy, and/or Santa Barbara County Civil Service Rule 1203, by Department employees, including but not limited to, allegations of creating a work environment that is not "harmonious," "less than professional," or that any member has treated an individual in a manner that could be interpreted as demeaning or degrading, together with any and all notification memoranda, counseling, directives, or discipline issued to any employee in connection with such complaints/allegations, including all such materials concerning each of the employees accused of making comments regarding Custody Deputy Batterson in or around August 2019, including but not limited to the following: "a.

Complaint/allegations and/or investigation of complaints/allegations, addenda and exhibits, witness' interviews and/or statements, photos, correspondence, witness lists, rough notes, the investigator's log, chronologies, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, and any other follow-up or action; "b. All audio, video, and/or digital recordings and transcripts thereof of witnesses' interviews or statements. "4.

All memoranda, directives, orders, or other writings issued to any Department employee within the last seven years instructing the employee to cease and desist self-initiated factual inquiries/investigations into potential employee misconduct and/or criminal activity by Sheriff's staff members, and/or directing the employee to surrender information, reports, or evidence of potential employee misconduct or criminal activity, together with all materials reflecting the Department's receipt, handling, investigation, and disposition of any information or evidence so submitted, including but not limited to matters substantially similar to the conduct described in the September 9, 2019, memorandum of Commander Charles Powell, (Attached as Exhibit "K" to Defendant's Motion for Summary Judgment), including but not limited to the following: "a.

Complaint/allegations and/or investigation of complaints/allegations, addenda and exhibits, witness' interviews and/or statements, photos, correspondence, witness lists, rough notes, the investigator's log, chronologies, materials related to the disposition of the investigation, including but not limited to any disciplinary actions recommended or taken, any response by the accused, and any other follow-up or action; "b. All audio, video, and/or digital recordings and transcripts thereof of witnesses' interviews or statements. "Plaintiffs also request an order that the Court make a record in open court of the documents ordered disclosed following any in camera proceeding. "All recorded interviews from the above categories would need to be transcribed for the Court's review, which if not already done, Plaintiff will do; Plaintiff also requests an order that the Court make a record in open court of the documents ordered disclosed following any in camera proceeding." (Declaration of Michael A.

Rincon ISO Plaintiffs Pitchess Mtn. [Rincon Decl.], p. 4, l. 5 - p. 6, l. 12 [P. 8].)

(7) Labor Code Section 1102.5 As discussed above, the second cause of action in the SAC is asserted by all plaintiffs under a whistleblower/retaliation theory pursuant to Labor Code section 1102.5. "An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties." (Lab.

Code, Sec. 1102.5, subd. (b).) "In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5." (Lab.

Code, Sec. 1102.6.) "Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter." (Lab. Code, Sec. 1105.)

(8) FEHA Causes of Action Noted above, Kirsch also alleges a cause of action for retaliation in violation of FEHA. "To establish a prima facie case of retaliation under FEHA, an employee must show that (1) [the employee] engaged in a 'protected activity,' (2) the employer subjected [the employee] to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Bailey v. San Francisco Dist. Attorney's Office (2024) 16 Cal.5th 611, 636.) If the employee establishes a prima facie case of retaliation under FEHA, in the context of a summary judgment motion the employer is then required, under the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green (1973) 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668, to produce evidence showing a legitimate, nondiscriminatory reason for the adverse employment action. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 63; Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68 [also noting that the employer's burden is of "going forward with additional evidence"].)

For purposes of this motion proceeding, the FEHA standards are similar for Krisch's third cause of action for failure to prevent discrimination. " [A]n actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: 'Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.' [Citation.]" (Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 284-285, internal quotation marks omitted.)

(9) Discovery of Comparator Evidence "A trial court must be mindful of the Legislature's preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery ...." (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.) "Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property." (Code Civ. Proc., Sec. 2017.010.)

Under some circumstances, California law permits plaintiffs to prove discrimination by circumstantial evidence involving other similarly situated employees. For example, a female employee could support the element of discriminatory intent in a gender-based discrimination action by demonstrating that her employer "enforces its ... policy differently against men and women, [such as] evidence of ... 'comparators' who were male ... but who were not disciplined [for comparable misconduct] or who received only a Performance Warning." (Wawrzenski v.

United Airlines, Inc. (2024) 106 Cal.App.5th 663, 687 (Wawrzenski).) An employer could selectively enforce policies or hand out uniquely severe consequences in retaliation to protected activity or based on discriminatory animus. (See ibid.) For example, a sudden decision to strictly enforce a "company's record-keeping policies" against an employee who recently made accusations of sexual harassment, when similarly situated employees "received greater leniency," could give rise to an inference of retaliatory motive. (Colarossi v.

Coty US Inc. (2002) 97 Cal.App.4th 1142, 1154.) "Evidence that an employer treated 'similarly situated' employees outside the plaintiff's protected class 'more favorably' is probative of the employer's discriminatory or retaliatory intent.... In general, 'individuals are similarly situated when they have similar jobs and display similar conduct.' " (Wawrzenski, supra, at 688, internal quotation marks removed.) "[T]he employees' roles need not be identical; they must only be similar 'in all material respects,' and '[m]ateriality will depend on context and the facts of the case.' (Id. at p. 689, internal quotation marks omitted.) "Determining which similarities and differences are relevant depends on the context and is a question of fact that cannot be mechanically resolved." (Id. at p. 689, internal quotation marks omitted.)

(10) Supporting Declarations of Plaintiffs' Counsel Plaintiffs argue that they were subjected to unique investigations and enforcement pertaining to timekeeping practices where similarly situated individuals were not. As argued by plaintiffs, within days of plaintiffs' reports pertaining to the mishandling of methamphetamine evidence, plaintiffs were subjected to a coordinated campaign of retaliatory conduct. Plaintiffs seek comparator evidence of the County's practices and actions (or inactions) against others who it identified as making incorrect timecard entries or other substantially similar conduct.

Plaintiffs present two declarations of counsel explaining their theory that plaintiffs were subjected to whistleblower retaliation pursuant to Labor Code section 1102.5 for opposing and reporting a custody deputy's mishandling of methamphetamine evidence seized from a jail inmate in August 2019. (See Rincon Decl., P. 2; Declaration of Jason L. Oliver [Oliver Decl.], P. 1.) Additionally, Kirsch was allegedly subjected to adverse employment actions after Kirsch reported sex/gender discrimination by a different custody deputy to a supervising commander. (See Rincon Decl., P. 2.)

As counsel for plaintiffs explains their theory, the retaliatory adverse employment actions allegedly began within days of plaintiffs' protected activity. (Rincon Decl., P.P. 2-3; Oliver Decl., P. 1.) Plaintiffs learned they were being selectively targeted for increased scrutiny of their timecards, among other negative adverse employment actions taken against them. (Rincon Decl., P. 2.) Kirsch was also selectively targeted for termination and ultimately terminated despite the fact that no other deputies were terminated for the timecard mistakes for which Kirsch was terminated. (Ibid.)

Plaintiffs argue that the County ultimately proceeded with a uniquely significant investigation of Kirsch and made a criminal referral. (Rincon Decl., P. 3.) While the District Attorney's Office did not file charges against Kirsch, the County nonetheless issued a notice of intent to terminate Kirsch. (Ibid.) Although the County initially determined that Kirsch fraudulently submitted timecards, Kirsch appealed to the Civil Service Commission (Commission). (Rincon Decl., P.P. 3-5.) The Commission concluded that there were timecard misrepresentations but "[n]one of the misrepresentations ... were done with an intent to deceive." (Ibid.) Plaintiffs concede the Commission also concluded there was nonetheless substantial evidence to permit the County to terminate Kirsch and these findings were not overturned after review by the court. (Ibid.)

Plaintiffs' theory is that the County takes no systematic measures to ensure or monitor timecard discrepancies. (Rincon Decl., P. 6.) Occasionally, timecard discrepancies come to light for a variety of reasons. (Ibid.) Plaintiffs allege that SBSD seldom, if ever, acts on timecard infractions. (Ibid.) And even when it does, SBSD does not terminate the party who allegedly committed the wrong. (Ibid.) As one comparator example, plaintiffs believe the County did not terminate Lt. Mike Perkins even though the County alleged fraud in his submission of timecards to the County. (Ibid.)

Plaintiffs contend that the County, wanting to create a pretext for its adverse actions against Plaintiffs, dug into their timecard records in an effort to hunt down evidence of wrongdoing while not subjecting others to the same scrutiny and not terminating others who committed similar errors similar to Kirsch. (Rincon Decl., P. 7.) Plaintiffs allege that the County was aware of other employees it believed were guilty of far more egregious acts of misconduct but as to such persons it neither investigated them for it or otherwise imposed minimal-to-no discipline for such misconduct. (Ibid.)

(11) Category 1 - Timecard Investigations Plaintiffs seek "[a]ll materials comprising the complaints/allegations and any investigations related to such complaints/allegations, within the last seven years concerning fraudulent, negligent, and/or erroneous timecards submitted by employees." (Plaintiffs Pitchess Mtn., p. 2, ll. 11-14.) This category is not described with sufficient particularity as to the peace or custodial officers involved. (See Evid. Code, Sec. 1043, subd. (b)(1).) The category of "all employees" is not shown to be sufficiently similar to plaintiffs' positions of custodial officers for purposes of comparator evidence.

Plaintiffs have not made a sufficient showing of similar circumstances as to all materials and all investigations for purposes of comparator evidence. "[T]he information sought must be requested with sufficient specificity to preclude the possibility of a [moving party] simply casting about for any helpful information." (Mooc, supra, 26 Cal.4th at p. 1226.)

The court finds this requested category is overbroad. The court finds that plaintiffs have not demonstrated good cause for in camera review of all materials as to any investigation files and all SBSD employees over seven years pertaining to timecard issues. However, the court will require that SBSD lodge under seal for in camera review a summary list of any allegations, complaints, and investigations within seven years prior to June 15, 2026, concerning fraudulent, negligent, or erroneous timecards of peace or custodial officers employed by SBSD.

As to each listed item, the list shall include the date an allegation was received or a file was created, an indication of whether an informal inquiry or formal investigation was undertaken, the status of the inquiry or investigation (e.g., pending, concluded, etc.), whether the officer involved was a custodial or peace officer, whether violations of timecard policy were found, and the resulting corrective action taken by SBSD, if any (e.g., instruction, continuing education, termination, reprimand, suspension, warning, etc.).

The peace or custodial officers shall be identified by pseudonym only, e.g., "officer 1," "officer 2," etc. The list shall be verified by a custodian of records for SBSD. The court will evaluate this information in camera and may make further orders as required to balance the competing interests of discovery in this litigation, privacy interests, and burden. The court finds that the declarations and documents submitted by plaintiffs demonstrate good cause for in camera review of this information (as modified herein) as to the element of retaliatory motive or intent under Labor Code section 1102.5.

(12) Category 2 - Lt. Mike Perkins (Perkins) Timecard Investigations Plaintiffs seek "[a]ll materials comprising the Department's Internal Affairs Investigation and outside investigations on behalf of the Department, if any, into timecards submitted by Lt. Mike Perkins." (Plaintiffs Pitchess Mtn., p. 2, ll. 22-24.) Plaintiffs' stated theory is that Perkins was treated differently than Kirsch for similar timecard violations. The court finds that plaintiffs have demonstrated good cause for in camera review of the Perkins investigation files.

The court will require that SBSD lodge under seal for in camera review any documents constituting internal or external investigation files as to timecards submitted by Perkins. The court will evaluate this information in camera and may make further orders as required to balance the competing interests of discovery in this litigation, privacy interests, and burden. The court finds that the declarations and documents submitted by plaintiffs demonstrate good cause for in camera review of this information (as modified herein) as to the element of retaliatory motive or intent under Labor Code section 1102.5.

The submission shall be verified by a custodian of records for SBSD.

(13) Category 3 - Retaliation and Discrimination Investigations Plaintiffs seek "[a]ll materials comprising any complaints/allegations, and any investigations related to such complaints/allegations, within the last seven years concerning alleged violations of Lexipol section 328 (Discriminatory Harassment), section 1008 (Anti-Retaliation), sections Sec.340.3.2(k), Sec.340.3.2(n), or 340.3.3 (Conduct), section 340.3.4 (Discrimination), any subsection(s) thereof, and/or the County of Santa Barbara's Non-Discrimination Policy, and/or Santa Barbara County Civil Service Rule 1203, by Department employees." (Plaintiffs Pitchess Mtn., p. 3, ll. 4-15.) Plaintiffs specify that the request "include[es] all such materials concerning each of the employees accused of making comments regarding Custody Deputy Batterson in or around August 2019." (Id. at p. 3, ll. 14-15.)

The court finds that plaintiffs failed to demonstrate good cause or materiality of category No. 3 by way of affidavit and supporting documents. This request is extremely broad and encompasses investigations and documents that have little or no connection to the issues in this case. Comparator evidence must be linked to the treatment of similarly situated employees. Individuals are similarly situated when they have similar jobs and display similar conduct. Plaintiffs have not made a sufficient showing that these sweeping categories of investigations may be sufficiently linked to the treatment of employees who are similarly situated to plaintiffs.

Plaintiffs failed to articulate how this requested discovery may be admissible as direct or impeachment evidence in support of a claim or defense. As to this category, the court in its discretion declines to issue a finding of good cause based on the submission by plaintiffs. (See Haggerty, supra, 117 Cal.App.4th at p.1086.)

(14) Category 4 - Investigations Similar to Memorandum by Commander Charles Powell (Powell) Plaintiffs seek "[a]ll memoranda, directives, orders, or other writings issued to any Department employee within the last seven years instructing the employee to cease and desist self-initiated factual inquiries/investigations into potential employee misconduct and/or criminal activity by Sheriff's staff members, and/or directing the employee to surrender information, reports, or evidence of potential employee misconduct or criminal activity, together with all materials reflecting the Department's receipt, handling, investigation, and disposition of any information or evidence so submitted, including but not limited to matters substantially similar to the conduct described in the September 9, 2019, memorandum of Commander Charles Powell, (Attached as Exhibit "K" to Defendant's Motion for Summary Judgment)." (Plaintiffs Pitchess Mtn., p. 3, l. 23 - p. 4, l. 3.)

The court finds that plaintiffs failed to demonstrate good cause or materiality of this category by way of affidavit and supporting documents. Plaintiffs' motion and declarations only briefly mention Powell. (See Rincon Decl., P. 4; Plaintiffs Pitchess Mtn, p. 2, l. 6.) The September 9, 2019, memorandum by Powell referenced in the motion and declarations is not attached to plaintiffs' motion. Plaintiffs' motion did not provide the court the reference (i.e., the Powell memorandum) of the "substantially similar" conduct to which plaintiffs are referring in their motion.

Plaintiffs failed to carry their burden to articulate how the requested discovery may be admissible as direct or impeachment evidence in support of a claim or defense. This category is not described with sufficient particularity as to the peace or custodial officers involved. The court finds that the request is also difficult to understand as written, and not stated with sufficient specificity as to the information it seeks. The court will deny plaintiffs' motion as to this category.

(15) The County's Motion As the court understands the County's motion, the County opposes any of the requested information being reviewed in camera as part of the Pitchess process but, to the extent the plaintiffs' motion is granted, the County requests review of information needed for the County's defense as to the same or similar categories. For the reasons stated herein, the court will grant the County's motion to the same extent the court grants plaintiffs' motion. If the County believes that additional materials should be produced by SBSD for in camera review in light of the court's ruling to ensure completeness of disclosures of investigation materials, the County may file a subsequent motion addressing these issues upon a showing of good cause.

(16) Required Notice "Upon receipt of a notice served pursuant to subdivision (a), the governmental agency shall immediately notify the individual whose records are sought." (Evid. Code, Sec. 1043, subd. (c).) "No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records." (Id., subd. (d).)

There has been no showing of good cause to forego the notice procedures and there has been no express waiver of notice. The County argues that notice must be provided. (County Opp. to Plaintiffs Pitchess Mtn., p. 5, ll. 4-8.) There has been no confirmation that notice has been provided. The court will require that notice be provided to affected current or former SBSD employees whose records are sought by the Pitchess process. The notice should include all individuals whose records may be subject to disclosure and in camera review, including the officers to be referenced by pseudonym as to category No. 1 and Perkins.

(17) Stipulation Entered July 6, 2026 The court notes that the parties previously stipulated for an expedited schedule for the in camera hearing to take place on or before August 7, 2026. However, this schedule does not provide sufficient time for the preparation of the material needed for the in camera proceeding or notice to potentially affected peace and custodial officers. Upon further reflection and in light of the issues presented by the parties' Pitchess motions and oppositions thereto, the court will set a different schedule.

The court is mindful of the upcoming trial on November 6 and summary judgment hearing on October 2 and will set an expedited schedule pursuant to the parties' request. If the parties believe that the upcoming summary judgment hearing and briefing schedule should be modified in light of the court's ruling, the parties may submit a stipulation or present argument at this hearing. (See Code Civ. Proc., Sec. 437c, subd. (a)(3).)