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MICHAEL L. RAINS [SBN 91013]
ROCKNE A. LUCIA, JR. [SBN 109349]
TIMOTHY K. TALBOT [SBN 173456]
ZACHERY A. LOPES [SBN 284394]
RAINS LUCIA STERN ST. PHALLE & SILVER, PC
2300 Contra Costa Blvd., Suite 500
Pleasant Hill, CA 94523
Telephone: 925.609.1699
Facsimile: 925.609.1690
Email: rlucia@rlslawyers.com
zlopes@rlslawyers.com
Attorneys for Petitioner/Plaintiff
RICHMOND POLICE OFFICERS’ ASSOCIATION

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF CONTRA COSTA

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Case No.: N19-0169
RICHMOND POLICE OFFICERS’
ASSOCIATION,

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Petitioner/Plaintiff,

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vs.
CITY OF RICHMOND; ALLWYN BROWN,
Chief of Police; and DOES 1 through 20,
inclusive,
Respondents/Defendants.

EX PARTE APPLICATION BY
PETITIONER/PLAINTIFF FOR
TEMPORARY RESTRAINING ORDER AND
ORDER TO SHOW CAUSE RE:
PRELIMINARY INJUNCTION;
MEMORANDUM OF POINTS AND
AUTHORITIES
[Filed Concurrently With Declaration of Zachery
A. Lopes and Exhibits thereto; Declaration of
Zachery A. Lopes, Re: Notice of Ex Parte Hearing
of Application; Request for Judicial Notice;
(Proposed) Temporary Restraining Order and
Order to Show Cause re: Permanent Injunction]
DATE: JANUARY 25, 2019
TIME: 10:00 A.M.
DEPT.: 12

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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

 TABLE OF CONTENTS

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I.

INTRODUCTION....................................................................................................................... 1

II.

SENATE BILL 1421 CHANGES EXISTING PRIVACY RIGHTS OF PEACE
OFFICERS .................................................................................................................................. 5

III.

SENATE BILL 1421’S AMENDMENTS OPERATE PROSPECTIVELY ONLY AND
CANNOT BE APPLIED OR ENFORCED AS TO PEACE OFFICER PERSONNEL
RECORDS ARISING OUT OF INCIDENTS OR CONDUCT PRIOR TO 1/1/19 ............. 7

IV.

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND ORDER TO
SHOW CAUSE RE: PRELIMINARY INJUNCTION IS NECESSARY ........................... 10

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V.

A.

RPOA IS LIKELY TO PREVAIL ON THE MERITS............................................................... 11

B.

THE HARM SUFFERED BY RPOA AND ITS MEMBERS WILL FAR OUTWEIGH ANY HARM
SUFFERED BY RESPONDENTS ........................................................................................... 12

CONCLUSION ......................................................................................................................... 13

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TABLE OF AUTHORITIES

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Cases

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Aetna Cas. & Sur. Co. v. Industrial Acc. Commission
(1947) 30 Cal.2d 388 .................................................................................................................... 7, 8, 9

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Alameda County. Land Use Assn. v. City of Hayward
(1995) 38 Cal.App.4th 1716 ............................................................................................................... 12
Arthur Andersen v. Superior Court
(1998) 67 Cal.App.4th 1481 ................................................................................................................. 9
Balen v. Peralta Junior Col. Dist.
(1974) 11 Cal.3d 821 ............................................................................................................................ 8

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Bullard v. California State Automobile Assn.
(2005) 129 Cal.App.4th 211 ............................................................................................................... 10
City of Hemet v. Superior Court
(1995) 37 Cal.App.4th 1411 ............................................................................................................. 5, 6
City of San Diego v. Superior Court
(1981) 136 Cal.App.3d 236 .................................................................................................................. 8

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City of Santa Cruz v. Superior Court
(1989) 49 Cal.3d 74 .............................................................................................................................. 6
Cohen v. Bd. of Supervisors
(1985) 40 Cal.3d 277 .................................................................................................................... 10, 11
Commission on Peace Officer Standards & Training v. Superior Court
(2007) 42 Cal.4th 278 ........................................................................................................................... 6

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Continental Baking Co. v. Katz
(1986) 68 Cal.2d 512 .......................................................................................................................... 10
Copley Press, Inc. v. Superior Court
(2006) 39 Cal.4th 1272 ......................................................................................................................... 6
Costa Mesa City Employees’ Assn. v. City of Costa Mesa
(2012) 209 Cal.App.4th 298 ............................................................................................................... 10

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Davis v. City of Sacramento
(1994) 24 Cal.App.4th 393 ................................................................................................................... 6
Delaney v. Superior Court
(1990) 50 Cal.3d 785 ............................................................................................................................ 9
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Evangelatos v. Superior Court
(1988) 44 Cal.3d 1188 ...................................................................................................................... 2, 8
Frisk v. Superior Court
(2011) 200 Cal.App.4th 402 ................................................................................................................. 3
Funeral Directors Ass’n of Los Angeles and Southern California v. Board of Funeral Directors and
Embalmers of California
(1943) 22 Cal.2d 104 ............................................................................................................................ 3

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Hackett v. Superior Court
(1993) 13 Cal.App.4th 96 ..................................................................................................................... 7
Halbert’s Lumber, Inc. v. Lucky Stores, Inc.
(1992) 6 Cal.App.4th 1233 ................................................................................................................... 8
Indus. Indem. Co. v. Workers’ Comp. Appeals Bd.
(1978) 85 Cal.App.3d 1028 .................................................................................................................. 8

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J.A. Jones Construction Co. v. Superior Court
(1994) 27 Cal.App.4th 1568 ............................................................................................................... 10
Kowis v. Howard
(1992) 3 Cal.4th 888 ............................................................................................................................. 3
Long Beach City Employees Assn. v. City of Long Beach
(1986) 41 Cal.3d 937 .......................................................................................................................... 11

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Maria P. v. Riles
(1987) 43 Cal.3d 1281 ........................................................................................................................ 10
Marken v. Santa Monica-Malibu Unified School Dist.
(2012) 202 Cal.App.4th 1250 ............................................................................................................. 11
Myers v. Philip Morris Companies, Inc.
(2002) 28 Cal.4th 828 ............................................................................................................. 7, 8, 9, 10

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Novar Corp. v. Bureau of Collection & Investigative Services
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(1984) 160 Cal.App.3d 1 ........................................................................................................................ 12
People ex rel. Younger v. County of El Dorado
(1971) 5 Cal.3d 480 ............................................................................................................................ 11
People v. Mooc
(2001) 26 Cal.4th 1216, 1227 ........................................................................................................... 5, 7
Pitchess v. Superior Court
(1974) 11 Cal.3d 531 ............................................................................................................................ 5
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Quintano v. Mercury Casualty Co.
(1995) 11 Cal.4th 1049 ......................................................................................................................... 9
Rosales v. City of Los Angeles
(2000) 82 Cal.App.4th 419 ................................................................................................................. 12
Startrack, Inc. v. County of Los Angeles
(1976) 65 Cal.App.3d 451 .................................................................................................................. 10
Walker v. Los Angeles County
(1961) 55 Cal.2d 626 .......................................................................................................................... 12
Williams v. Garcetti
(1993) 5 Cal.4th 561 ............................................................................................................................. 9

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Wilson & Wilson v. City Council of Redwood City
(2011) 191 Cal.App.4th 1559 ............................................................................................................. 12

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Statutes

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Code of Civil Procedure § 1085 ............................................................................................................. 11

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Code of Civil Procedure § 526 ............................................................................................................... 10

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Evidence Code § 1043 .......................................................................................................................... 1, 5

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Evidence Code § 1046 .......................................................................................................................... 1, 5
Evidence Code § 1047 .............................................................................................................................. 5

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Government Code § 3500 ....................................................................................................................... 11
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Government Code § 6250 ......................................................................................................................... 1
Government Code § 6253 ......................................................................................................................... 2
Penal Code § 832.7 .......................................................................................................................... passim

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Penal Code § 832.8 .......................................................................................................................... passim

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Constitutional Provisions

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California Constitution, article I, § 3, subd. (b), par. (3) ...................................................................... 2, 7

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California Constitution, article VI, section 10 .......................................................................................... 3

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California Constitution. Article I, Section 3 ............................................................................................ 6

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I.

INTRODUCTION
Petitioner/Plaintiff Richmond Police Officers’ Association (“RPOA”) hereby makes its Ex

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Parte Application for a Temporary Restraining Order and Order to Show Cause re: Preliminary

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Injunction against Respondents/Defendants City of Richmond (“City”) and Allwyn Brown, Chief of

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Police (“Chief”), and their employees and representatives (collectively “Respondents”) to refrain

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from retroactively enforcing or taking any steps to retroactively enforce California Senate Bill 1421,

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enacted as Chapter 988 of the 2017-2018 Regular Session (“SB 1421”) effective January 1, 2019,

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which amends Penal Code sections 832.7 and 832.8 respecting the confidentiality of peace officer

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personnel records.
SB 1421 amends Penal Code section 832.7 by eliminating the long-established statutory

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confidentiality of specified peace officer and custodial officer personnel records and the information

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contained in such records. SB 1421 mandates that certain of these records and the information

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maintained by public agencies shall be subject to disclosure and otherwise available for public

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inspection pursuant to the California Public Records Act (“CPRA”), Government Code section 6250

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et seq.
Respondents incorrectly contend that, notwithstanding the absence of any express

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retroactivity provision, SB 1421 must be applied and enforced as to personnel records and

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information reflecting specified peace officer conduct occurring prior to January 1, 2019. Indeed,

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Respondents have informed the RPOA that it intends to apply SB 1421 retroactively and release

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personnel records reflecting conduct occurring prior to January 1, 2019. That information, however,

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was and is confidential as a matter of law and is not otherwise subject to disclosure, except pursuant

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to Evidence Code sections 1043 and 1046. The law in existence prior to the effective date of SB

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1421 afforded peace officers a confidentiality privilege to all the information contained in their

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personnel files as defined in Penal Code section 832.8. This privacy right was established by statute,

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affirmed by the California Supreme Court, and acknowledged by the California Constitution. SB

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1421’s changes, therefore, must operate prospectively only. Peace officers retain their privacy right

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to personnel file information respecting incidents or conduct which occurred prior to January 1,

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2019.
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

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Pursuant to California Constitution, article I, section 3, subdivision (b), paragraph (3), any

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broad construction of statutes pertaining to the right of access to information of public agencies

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(such as the CPRA) does not supersede the construction of statutes that protect the constitutional

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right of privacy, including any statutory procedures governing discovery or disclosure of

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information concerning the official performance or professional qualifications of a peace officer.

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Furthermore, it is well-settled that a statutory enactment cannot operate retroactively unless it

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contains an express retroactivity provision or it is “very clear” from other sources that the

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Legislature “must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44

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Cal.3d 1188, 1209.) SB 1421 does not contain an express retroactivity provision, and the relevant

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extrinsic evidence contains no indication that the Legislature intended a retroactive application of the

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new law.

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As a consequence of the exceedingly short ten (10) day time frame for Respondents to

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respond to public records requests under Government Code section 6253(c), and Respondents’ stated

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intent to unlawfully release personnel records, a regularly noticed hearing on a preliminary

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injunction would not provide timely relief to RPOA’s represented peace officers whose statutory and

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constitutional privacy rights are imminently jeopardized by requests under the CPRA seeking peace

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officer personnel records and information respecting incidents or conduct which occurred prior to

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January 1, 2019. Therefore, a Temporary Restraining Order is appropriate and necessary to maintain

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the status quo ante to the January 1, 2019 effective date of SB 1421 pending the hearing on the

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Order to Show Cause re: Preliminary Injunction against Defendants.

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RPOA is likely to succeed on the merits of this action. SB 1421’s amendments do not operate

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retroactively to divest RPOA’s members of their prior-acquired privacy right to maintain the

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confidentiality of their personnel file information reflecting conduct that occurred prior to January 1,

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2019. Respondents’ stated intent to apply the new law retroactively is unlawful.

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Moreover, absent an immediate injunction, Respondents’ unlawful retroactive application of

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SB 1421’s amendments, RPOA’s represented peace officers will suffer irreparable harm to their

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statutory and constitutional privacy rights that far outweighs any detriment alleged by Respondents

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because, once made public, the disclosed information can never be considered confidential again.
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This Ex Parte Application is based on the accompanying Memorandum of Points and

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Authorities, Declaration of Zachery A. Lopes and Exhibits Thereto, Declaration of Zachery A. Lopes

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Re: Notice of Ex Parte Hearing on Application, Request for Judicial Notice and Proposed Temporary

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Restraining Order and Order to Show Cause re: Preliminary Injunction.

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Respondents/Defendants are represented by the following attorney:

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Name:

Bruce Goodmiller

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Address:

450 Civic Center Plaza, Richmond, CA 94804

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Phone No.:

(510) 620-6509

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E-Mail:

city_attorney@ci.richmond.ca.us

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On December 18, 2018, the San Bernardino County Sheriff’s Employees’ Benefit

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Association (“SEBA”) sought original jurisdiction in the California Supreme Court pursuant to

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California Constitution, article VI, section 10 by filing with the California Supreme Court a Petition

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for Writ of Mandate, Alternative Writ of Mandate and Request for Stay Order in San Bernardino

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County Sheriff’s Employees Benefit Association v. County of San Bernardino et al., Case No.

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S253115, seeking to prevent the retroactive application of Senate Bill 1421 as to peace officer

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personnel records regarding incidents or reflecting conduct occurring prior to January 1, 2019.

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On January 2, 2019, the California Supreme Court declined to exercise original jurisdiction

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and denied SEBA’s Petition for Writ of Mandate and Application for Stay without explanation,

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reason or written opinion. Such action by the California Supreme Court does not constitute the law

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of the case, nor otherwise establish any legal precedent or adjudication of the merits of this matter.

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(Funeral Directors Ass’n of Los Angeles and Southern California v. Board of Funeral Directors and

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Embalmers of California (1943) 22 Cal.2d 104, 110; See also Frisk v. Superior Court (2011) 200

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Cal.App.4th 402, 415 [Summary denials do not constitute law of the case, and do not establish any

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legal precedents.]; Kowis v. Howard (1992) 3 Cal.4th 888, 894-95.)

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On December 31, 2018, the Los Angeles Superior Court issued an Order Directing

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Alternative Writ of Mandate and Stay Order prohibiting Respondents City of Los Angeles and Police

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Chief Michel R. Moore and their agents, employees and representatives from retroactively enforcing

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or applying Senate Bill 1421’s amendments to California Penal Code sections 832.7 and 832.8 in any
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manner which would result in the disclosure or production of peace officer personnel records and

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information regarding incidents or reflecting conduct occurring prior to January 1, 2019. (A copy of

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the Order Directing Alternative Writ of Mandate and Stay Order in Los Angeles Police Protective

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League v. City of Los Angeles et al., Los Angeles Superior Court Case No. 18STCP03495 is attached

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as Exhibit A to the Request for Judicial Notice filed herewith.)

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On January 9, 2019, the San Bernardino Superior Court issued an Order Directing

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Alternative Writ of Mandate and Stay Order prohibiting the County of San Bernardino and John

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McMahon, Sheriff of San Bernardino Sheriff’s Department and their agents, employees and

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representatives from retroactively enforcing or applying Senate Bill 1421’s amendments to

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California Penal Code sections 832.7 and 832.8 in any manner which would result in the disclosure

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or production of peace officer personnel records and information regarding incidents or reflecting

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conduct occurring prior to January 1, 2019. (A copy of the Order Directing Alternative Writ of

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Mandate and Stay Order in San Bernardino County Sheriff’s Employees’ Benefit Association v.

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County of San Bernardino et al., San Bernardino Superior Court Case No. CIVDS 1900429 is

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attached as Exhibit B to the Request for Judicial Notice filed herewith).

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On January 17, 2019, the Orange County Superior Court issued a Temporary Restraining

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Order and Order to Show Cause Re: Preliminary Injunction prohibiting the County of Orange and

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Don Barnes, Sheriff-Coroner of the Orange County Sheriffs’ Department and their agents,

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employees and representatives from retroactively enforcing or applying Senate Bill 1421’s

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amendments to California Penal Code sections 832.7 and 832.8 in any manner which would result in

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the disclosure or production of peace officer personnel records and information regarding incidents

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or reflecting conduct occurring prior to January 1, 2019. (A copy of the Temporary Restraining

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Order and Order to Show Cause Re: Preliminary Injunction in Association of Orange County Deputy

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Sheriffs, Orange County Superior Court Case No. 30-2019-01043706-CU-JR-CJC is attached as

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Exhibit C to the Request for Judicial Notice filed herewith).

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On January 23, the Ventura County Superior Court issued a Temporary Restraining Order

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and Order to Show Cause Re: Preliminary Injunction prohibiting the County of Ventura and Bill

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Ayub, Sheriff of Ventura County, and their agents, employees and representatives from retroactively
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enforcing or applying Senate Bill 1421’s amendments to California Penal Code sections 832.7 and

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832.8 in any manner which would result in the disclosure or production of peace officer personnel

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records and information regarding incidents or reflecting conduct occurring prior to January 1, 2019.

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(A copy of the Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction in

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Ventura County Deputy Sheriffs’ Association v. County of Ventura, et al. Ventura County Superior

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Court Case No. 56-2019-00523492-CU-WM-VTA is attached as Exhibit D to the Request for

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Judicial Notice filed herewith).

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II.

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SENATE BILL 1421 CHANGES EXISTING PRIVACY RIGHTS OF PEACE
OFFICERS
Prior to SB 1421’s operative date, the law identified all peace officer personnel records and

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information obtained from those records as confidential and exempt from disclosure absent

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compliance with the statutory Pitchess process.1 (Pen. Code § 832.7(a).) Confidential peace officer

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“personnel records” include “any file maintained under that individual’s name by his or her

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employing agency and containing records relating to” among other things “[e]mployee advancement,

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appraisal, or discipline,” and “[c]omplaints, or investigations of complaints, concerning an event or

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transaction in which he or she participated, or which he or she perceived, and pertaining to the

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manner in which he or she performed his or her duties.” (Pen. Code § 832.8(a) (4)-(5).)
This is a confidentiality privilege, or right, possessed by the peace officer (and his or her

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employer) which forbids public agencies from disclosing such information in response to a CPRA

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request. (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1430 [“the confidentiality

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privilege is possessed both by the agency and the subject officer…”;] [“[T]he protection of Penal

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Code section 832.7 is illusory unless that statute is incorporated into CPRA…”].)
The California Supreme Court has recognized that the statutory privilege affords peace

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officers “a strong privacy interest in [their] personnel records.” (People v. Mooc (2001) 26 Cal.4th

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1216, 1227; Id. at p. 1220 [A peace officer has a “legitimate expectation of privacy in his or her

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The “Pitchess process” refers to the statutory in-camera disclosure procedure for relevant personnel records during civil
and criminal proceedings enacted in response to Pitchess v. Superior Court (1974) 11 Cal.3d 531. (Evid. Code §§ 1043,
1046, 1047.)
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personnel records”]; Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1300 [“One of

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Penal Code section 832.7’s purposes is ‘to protect the right of privacy of peace officers.’”]; City of

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Santa Cruz v. Superior Court (1989) 49 Cal.3d 74, 83-84.) Maintaining the confidentiality of such

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information encourages public agencies to retain these records and encourages the cooperation and

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candor of peace officers during internal investigations. (Davis v. City of Sacramento (1994) 24

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Cal.App.4th 393, 401, fn. 1; City of Hemet, supra, 37 Cal.App.4th at p. 1430.)

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This privacy interest is expressly enumerated in the California Constitution. Article I,

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Section 3 provides generally that legal authority which furthers the people’s right of access to public

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records should be “broadly construed,” while authority that “limits” the right of access should be

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“narrowly construed.” (Cal. Const., art. I, § 3, subd. (b), pars. (1), (2).) This mandate, however,

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specifically excludes provisions which protect peace officers’ privacy interest in the confidentiality

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of their personnel file information. (Cal. Const., art. I, § 3, subd. (b), par. (3); Commission on Peace

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Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 288 [“The Constitution []

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recognizes the right to privacy and specifically acknowledges the statutory procedures that protect

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the privacy of peace officers”].)
SB 1421’s amendments to Penal Code sections 832.7 and 832.8 prospectively modified this

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pre-existing privacy right by identifying four particular categories of peace officer personnel file

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“records”2 as non-confidential and therefore subject to disclosure: (1) records relating to incidents

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involving the discharge of a firearm at a person; (2) records relating to incidents involving use of

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force resulting in death or great bodily injury; (3) records relating to sustained findings by a law

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enforcement agency or “oversight agency” of “sexual assault involving a member of the public”,

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and; (4) records relating to sustained findings by a law enforcement agency or “oversight agency” of

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specified instances of dishonesty. (Pet. ¶ 9, Exh. A, Sec. 2, Pen. Code § 832.7(b) (1)-(2).)
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Records” is defined very expansively to include essentially the entirety of an investigation file, including all documents
from a subsequent administrative appeal process and anything presented by an employer to a district attorney for criminal
investigation. (Pen. Code § 832.7(b)(1)(C)(2).)
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SENATE BILL 1421’S AMENDMENTS OPERATE PROSPECTIVELY ONLY AND
CANNOT BE APPLIED OR ENFORCED AS TO PEACE OFFICER PERSONNEL
RECORDS ARISING OUT OF INCIDENTS OR CONDUCT PRIOR TO 1/1/19

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“A retrospective law is one which affects rights, obligations, acts, transactions and conditions

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III.

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which are performed or exist prior to the adoption of the statute.” (Aetna Cas. & Sur. Co. v.

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Industrial Acc. Commission (1947) 30 Cal.2d 388, 391.) “[E]very statute, which takes away or

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impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty,

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or attaches a new disability, in respect to transactions or considerations already past, must be deemed

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retrospective.” (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839.) Statutes are not

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to be given a retrospective operation unless it is clear that the Legislature intended that result. (Aetna

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Cas. & Sur. Co., supra, 30 Cal 2d at p. 393.)

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Applying SB 1421’s amendments in a manner which rescinds the confidentiality of peace

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officer records related to conduct occurring prior to SB 1421’s effective date would constitute a

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retroactive application of its provisions. Prior to the effective operation of SB 1421’s amendments,

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peace officers were afforded the right to confidentiality in all of their personnel file information – a

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privacy right established by statute, affirmed by this Court, and acknowledged by the Constitution.

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(See Pen. Code § 832.7(a); Mooc, supra, 26 Cal.4th at p. 1227; Cal. Const., art. I, § 3, subd. (b), par.

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(3).) This is an informational privilege held by the individual peace officer – not merely a privilege

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allowing a public agency to withhold the production of physical documents. The privacy right

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extends beyond the actual “files” or “records” maintained by public agencies to encompass the

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information contained in or obtained from those documents. (Pen. Code § 832.7(a) [“Peace officer…

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personnel records ... or information obtained from these records, are confidential…”, emphasis

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added]); Cal. Const. art. I, § 3, subd. (b), par. (3) [Right to privacy acknowledged by the Constitution

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includes the “statutory procedures governing discovery or disclosure of information concerning the

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official performance or professional qualifications of a peace officer”, emphasis added]; Hackett v.

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Superior Court (1993) 13 Cal.App.4th 96, 98-99 [“[T]here is nothing in the statutory scheme or its

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history suggesting a legislative intent to exclude from the privilege[] information which happens to

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be obtainable elsewhere.” Emphasis in original]; City of San Diego v. Superior Court (1981) 136
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Cal.App.3d 236, 239 [“There would be no purpose to protecting such information in the personnel

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records if it could be obtained by the simple expedient of asking the officers for their disciplinary

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history orally”].)

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Indeed, the Legislature itself acknowledged the informational nature of the existing privilege

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when it enacted SB 1421. (Pet. ¶ 9, Exh. A, Legislative Counsel’s Digest [“Existing law requires any

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peace officer or custodial officer personnel records … or any information obtained from these

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records, to be confidential…”] Emphasis added.)

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Accordingly, disclosing records reflecting incidents or conduct occurring prior to January 1,

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2019 would constitute a retroactive application of SB 1421’s amendments because it would violate

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the right to privacy of that information already acquired under existing law. (Aetna Cas. & Sur. Co.,

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supra, 30 Cal.2d at p. 391 [“A retrospective law is one which affects rights… [which] exist prior to

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the adoption of the statute”].)

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SB 1421’s amendments cannot be applied retroactively, however, because the Legislature did

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not intend such an operation. “Application of a statute to destroy interests which matured prior to its

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enactment is generally disfavored.” (Balen v. Peralta Junior Col. Dist. (1974) 11 Cal.3d 821, 830.)

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Statutes are presumed to “operate prospectively only,” because “the first rule of [statutory]

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construction [states] that legislation must be considered as addressed to the future, not to the past….”

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(Myers, supra, 28 Cal.4th at p. 840.) “[A] retrospective operation will not be given to a statute which

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interferes with antecedent rights ... unless such be ‘the unequivocal and inflexible import of the

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terms, and the manifest intention of the legislature.’” (Id., emphasis added; also see Evangelatos,

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supra, 44 Cal.3d at p. 1209 [“[I]n the absence of an express retroactivity provision, a statute will not

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be applied retroactively unless it is very clear from extrinsic sources that the Legislature [] must have

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intended a retroactive application”].) “Something more than a desirable social objective served by

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the legislation is [] required if we are to infer a legislative intent of retroactivity.” (Indus. Indem. Co.

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v. Workers’ Comp. Appeals Bd. (1978) 85 Cal.App.3d 1028, 1032.)

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“First, a court should examine the actual language of the statute” to determine if a retroactive

27

intent exists because “it is the language of the statute itself that has successfully braved the

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legislative gauntlet.” (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233,
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1238.) SB 1421’s terms contain no express statement of retroactive application. (Pet. ¶¶ 9, 11, Exh.

2

A, Sec. 2.) The enactment contains no legislative findings directing a retroactive application of the

3

new law or asserting that SB 1421 is intended to “clarify” the existing operation of Penal Code

4

section 832.7.3 (Pet. ¶ 9, Exh. A, Sec. 1.) The language of SB 1421 is not ambiguous on this point.

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(Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [“If the language is clear and unambiguous

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there is no need for construction, nor is it necessary to resort to indicia of the intent of the

7

Legislature…”].) Had the Legislature intended SB 1421’s amendments to apply retroactively to

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rescind already acquired privacy rights it would have expressly stated as such. (See Aetna Cas. &

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Sur. Co., supra, 30 Cal.2d at p. 396 [“[I]t must be assumed that the Legislature was acquainted with

10

the settled rules of statutory interpretation, and that it would have expressly provided for

11

retrospective operation of the amendment if it had so intended”].)
Likewise, the relevant legislative history of SB 1421 contains no expression of retroactive

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13

intent. (Declaration of Zachery A. Lopes and Exhibits thereto (“Lopes Decl.”), ¶ 3, Exhs. A-I.)4

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While the legislative history contains ambiguous references to SB 1421’s “effect” as being to “open

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[] police officer personnel records in very limited circumstances,” such language does not manifestly

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state an intent to unwind previously-acquired privacy rights for incidents or conduct that has already

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occurred. (Lopes Decl., ¶ 3, Exh. A, p. 8; Myers, supra, 28 Cal.4th at p. 840.) Rather, this simply

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states an intent to prospectively open personnel records for specified peace officer misconduct that

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occurred after SB 1421’s operative date. Interpreting this stated “effect” any other way would ignore

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the fact that peace officers had an informational privilege, not a document production privilege, for

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the specified categories of incidents prior to January 1, 2019. (Arthur Andersen v. Superior Court

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(1998) 67 Cal.App.4th 1481, 1500 [“The Legislature is presumed to know existing law when it

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3

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To the contrary, the legislative history repeatedly affirms that “existing law” deems all peace officer personnel file
material as confidential.

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The only mention of a potential retroactive application comes from a lobbying organization’s opposition to the bill.
(Lopes Decl., Exh. A, p. 16 [“[Our] reading of Senate Bill 1421 is that making the records of an officer’s lawful and in
policy conduct is retroactive in its impact”].) This is irrelevant, however, because it does not provide any insight into the
Legislature’s collective intent in enacting SB 1421 – lobbyists’ letters “do not aid in [the] interpretation of the statute”
because they “merely state the individual opinions of their authors.” (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th
1049, 1066, fn. 5.) The same is true for statements by individual legislators, including those made by a bill’s principal
author. (Williams v. Garcetti (1993) 5 Cal.4th 561, 569 [“In construing a statute ‘we do not consider the motives or
understandings of an individual legislator even if he or she authored the statute’”].)
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enacts a new statute…”].) Either way, “the wisest course is to rely on legislative history only when

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that history itself is unambiguous.” (J.A. Jones Construction Co. v. Superior Court (1994) 27

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Cal.App.4th 1568, 1578.) And, “a statute that is ambiguous with respect to retroactive application is

4

construed ... to be unambiguously prospective.” (Myers, supra, 28 Cal.4th at p. 841, emphasis

5

added.)
The rule is clear: “a statute may be applied retroactively only if it contains express language

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7

of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature

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intended retroactive application. [Citation.]” (Bullard v. California State Automobile Assn. (2005)

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129 Cal.App.4th 211, 217.) SB 1421 contains no “express language of retroactivity” and nothing in

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the relevant legislative history indicates even an implied retroactive intent. SB 1421’s amendments

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cannot lawfully be applied to rescind previously-acquired privacy rights to the confidentiality of

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information concerning incidents or conduct occurring prior to the statute’s effective date.

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Accordingly, Defendants’ stated intent to apply SB 1421’s amendments retroactively is unlawful.

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IV.

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THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND ORDER TO
SHOW CAUSE RE: PRELIMINARY INJUNCTION IS NECESSARY

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Preliminary injunctive relief is appropriate to maintain the status quo pending a final

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determination of the merits of an action by restraining the commission of a threatened act in

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violation of the plaintiff’s rights or to prevent great or irreparable injury. (Code Civ. Proc. § 526(a)

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(1)-(3); Continental Baking Co. v. Katz (1986) 68 Cal.2d 512, 528.) This court has the authority to

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immediately stay Respondents’ threatened release of confidential information pursuant to an

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unlawful application of SB 1421’s amendments. (Startrack, Inc. v. County of Los Angeles (1976) 65

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Cal.App.3d 451, 457 [“Injunctive relief may be granted against illegal enforcement of valid

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ordinances”]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292 [threatened enforcement of state statute

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by school district sufficient for enjoining implementation, citing Cohen v. Bd. of Supervisors (1985)

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40 Cal.3d 277; Costa Mesa City Employees’ Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th

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298, 305 [Petitioner “may seek injunctive relief against the threatened infringement of their rights”,

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original emphasis].)

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Here, Respondents have unequivocally stated their intent to apply SB 1421’s amendments
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retroactively by releasing personnel files reflecting conduct or incidents which occurred prior to

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January 1, 2019. (Pet. ¶ 12, Exh. B.) Issuance of a preliminary injunction depends on two interrelated

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factors: (1) the likelihood that the plaintiff will succeed on the merits of his claim at trial, and (2) the

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harm that plaintiff is likely to suffer if preliminary injunctive relief does not issue, balanced against

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the harm that the defendant is likely to suffer if it does issue. (Cohen, supra, 40 Cal.3d at p. 286.)

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Both factors warrant issuing an immediate stay order in this case.

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A.

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The Petition seeks a writ of mandate directing Respondents to refrain from applying SB

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10
11

RPOA IS LIKELY TO PREVAIL ON THE MERITS

1421’s amendments in a retroactive manner, and declaratory relief finding that those amendments
may be lawfully applied prospectively only. Both are appropriate remedies.
Mandamus is proper to compel a public agency’s performance of acts specifically prescribed

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by law. (Code Civ. Proc. § 1085.) Issuance of a writ of mandate is dependent upon two basic

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requirements: 1) a clear, present and ministerial duty on the part of the respondent; and 2) a clear,

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present and beneficial right in the petitioner to the performance of that duty. (Code Civ. Proc. §

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1085; People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.) Respondents have a

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ministerial duty to refrain from unlawfully releasing confidential information. (Code Civ. Proc. §

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1085; Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1266-

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1267 [Mandamus is appropriate to “prevent a public agency from acting in an unlawful manner by

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releasing information the disclosure of which is prohibited by law.”]) RPOA, the employee

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organization recognized by Respondents to represent its bargaining unit peace officers in all matters

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regarding working conditions under Government Code section 3500 et seq., is beneficially interested

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in the enforcement of Respondents’ duty to refrain from releasing RPOA’s peace officer members’

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confidential personnel information and any other information in contravention of Penal Code

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sections 832.7 and 832.8. (See Long Beach City Employees Assn. v. City of Long Beach (1986) 41

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Cal.3d 937, 941, fn. 3 [employee organization has standing to assert the privacy rights of its

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members].)

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Declaratory relief is appropriate where there exists “(1) a proper subject of declaratory relief,
and (2) an actual controversy involving justiciable questions relating to” the parties’ rights and
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obligations. (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.)

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The interpretation of statutes is a proper subject for declaratory relief. (Walker v. Los Angeles County

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(1961) 55 Cal.2d 626, 637; Alameda County. Land Use Assn. v. City of Hayward (1995) 38

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Cal.App.4th 1716, 1723 [“An action for declaratory relief lies when the parties are in fundamental

5

disagreement over the construction of particular legislation, or they dispute whether a public entity

6

has engaged in conduct or established policies in violation of applicable law”].) An actual

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controversy exists between the parties as to the lawfulness of Respondents’ stated intent to apply SB

8

1421’s amendments in a retroactive manner by releasing personnel files reflecting conduct or

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incidents which occurred prior to January 1, 2019. (Pet. ¶ 12, Exh. B.)

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As discussed in sections II and III above, RPOA is likely to succeed on the merits of this

11

action. SB 1421’s amendments do not operate retroactively to divest RPOA’s represented peace

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officers of their prior-acquired privacy right to maintain the confidentiality of their personnel file

13

information reflecting conduct that occurred prior to January 1, 2019. Respondents’ stated intent to

14

apply the new law retroactively is unlawful.

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16
17

B.

THE HARM SUFFERED BY RPOA AND ITS MEMBERS WILL FAR OUTWEIGH ANY
HARM SUFFERED BY RESPONDENTS

Absent an immediate injunction to enjoin Respondents’ intended retroactive application of

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SB 1421’s amendments, RPOA’s represented peace officers will suffer irreparable harm. (Novar

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Corp. v. Bureau of Collection & Investigative Services (1984) 160 Cal.App.3d 1, 5 [“[I]t is well

20

settled that where the enforcement of a statute may cause irreparable injury, the injured party may

21

seek to enjoin its enforcement”].) There is no adequate legal remedy to compensate peace officers

22

for the unlawful disclosure of their confidential personnel file information. The damage caused by

23

unlawful disclosure of confidential information is immediate – the mere disclosure of that

24

information to unauthorized individuals constitutes the harm suffered. Once such information is in

25

the public domain, there is no practical way to unwind that harm, and certainly not by way of an

26

action for monetary damages. (See Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 427-

27

428 [“violation of the statutory procedures for disclosure of police personnel records does not give

28

rise to a private right of action for damages”].) The loss of privacy in peace officer personnel file
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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

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information therefore constitutes irreparable harm.
Any harm suffered by enjoining a retroactive application of Senate Bill 1421’s amendments

2
3

is slight. Because the identified categories of personnel file information have been deemed

4

confidential and withheld from public disclosure for over 30 years, waiting until the completion of

5

these proceedings will not cause any undue hardship on Respondents or the public.

6

V.

7

CONCLUSION
RPOA respectfully requests that this Court issue a Temporary Restraining Order and Order to

8

Show Cause re: Preliminary Injunction to enjoin Respondents from any retroactive application or

9

enforcement of SB 1421’s amendments to protect RPOA’s represented peace officers’ right to the

10

confidentiality of their personnel file information reflecting incidents or conduct occurring before

11

January 1, 2019.

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Dated: January 24, 2019

Respectfully Submitted,
RAINS LUCIA STERN
ST. PHALLE & SILVER, PC
______________________________
Zachery A. Lopes
Attorneys for Petitioner/Plaintiff
Richmond Police Officers’ Association

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EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE