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Patrick Barber v. California Department of Corrections and Rehabilitation

February 15, 2012

PATRICK BARBER, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed. (Super.Ct.No. CIVRS912404)

The opinion of the court was delivered by: Codrington J.

CERTIFIED FOR PUBLICATION

OPINION

I

INTRODUCTION

Petitioner and appellant Patrick Barber appeals from a trial court judgment denying his petition for writ of mandamus, seeking production of his personnel and internal affairs files (records) from the California Department of Corrections and Rehabilitation (CDCR) under Government Code sections 3306.5 and 3309.5.*fn1 The trial court rejected Barber's records request on the ground he was not entitled to his records under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.) after termination from his employment with the CDCR.

Barber contends CDCR violated POBRA by not producing his records and requests this court to impose penalties against CDCR for the violation. Barber claims CDCR had a history of concealing and/or destroying his records. We conclude Barber did not have a right under POBRA section 3306.5 to review his records after he was no longer employed with CDCR. We deny imposition of penalties and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

CDCR hired Barber in 1998. CDCR placed Barber on administrative time off with pay on January 11, 2008, until his termination on April 10, 2009. At the time of termination, Barber was employed as a parole agent I with CDCR's Division of Juvenile Justice (DJJ), located at the Heman G. Stark Youth Correctional Facility, in Chino. Barber filed an appeal of his April 2009 termination with the state personnel board (SPB).

Meanwhile, on June 4, 2009, the California Office of the Attorney General filed a Pitchess motion*fn2 for production of Barber's personnel records in the case of Ruelas v. Shelby (case No. RCV-RS-083017). On June 21, 2009, Barber sent DJJ director, Sandra Youngen (Youngen), a letter informing her that he had discovered the Pitchess motion, and CDCR had violated Evidence Code section 1043 by failing to notify him of the motion. Barber requested independent counsel to represent him in the Pitchess motion matter. In response to Barber's letter, he was provided with representation. The trial court granted the Pitchess motion, resulting in CDCR producing Barber's records for 1999 through 2004.

On October 22, 2009, six months after Barber's termination, Barber sent Youngen a letter requesting copies of his CDCR records from 2005 through 2009. Barber stated that his records request included "records of internal affairs investigations, adverse actions, requests for adverse action, citizen complaints, records in the personnel departments at the Heman G. Stark Youth Correctional Facility and at Headquarters in Sacramento, and records containing psychological and/or other medical information concerning me." Barber specifically requested records from four Office of Internal Affairs (OIA) investigations between 2005 and 2009 (file Nos. S-HGS-021-05-A; S-HGS-716-07-C; S-HGS-716-07-A; and S-HGS-030-08-A).

About a week later, Barber sent CDCR attorney, Gregory Nicholas (Nicholas), a letter concerning Barber's conversation with Nicholas on October 28, 2009, regarding Barber's records request. During the conversation, Nicholas told Barber his records request was denied. Barber stated in his letter that he was entitled to the records because they were relevant to two actively litigated cases in the SPB (case Nos. 08-4882 and 09-1199). Barber acknowledged that he had received his records for the period of 1999 through 2004 as a result of the Pitchess motion. Barber further stated that there was no legal justification for denying him review of his 2005 through 2009 records.

On November 5, 2009, Barber filed in the superior court a petition for writ of mandamus and complaint for declaratory and injunctive relief under POBRA, against CDCR, DJJ, and Youngen (writ petition). Barber requested copies of documents and records in his personnel files and internal affairs files, from 2005 to the date of the hearing on the writ petition. Barber alleged he was entitled to the requested records under section 3306.5 and paragraph 9.03 of the memorandum of understanding (MOU) between the State of California and the California Correctional Peace Officers Association. Barber prayed in his petition for a peremptory writ of mandamus directing CDCR to make the requested documents available to Barber and for a declaration that under section 3306.5, CDCR violated Barber's POBRA rights by refusing to produce the requested documents.

On January 8, 2010, the trial court held a hearing on Barber's writ petition and instructed Barber to provide the court with the underlying administrative record. CDCR's attorney explained that Barber's writ petition did not emanate from a specific administrative proceeding. The court asked Barber if his termination prompted his writ petition for records. Barber said, no, and explained there had been a Pitchess motion in which a number of documents were deliberately withheld. When he discovered that, he felt it necessary to bring the instant writ petition demanding complete compliance with the law. Barber believed CDCR was deliberately withholding additional documents and needed the requested records before the September SPB hearing on his termination. The court instructed CDCR to file a response to Barber's writ petition.

On February 18, 2010, CDCR filed an answer to Barber's writ petition. CDCR alleged as an affirmative defense that Barber was dismissed from employment with the CDCR on April 10, 2009, and therefore had no rights to review his records under POBRA or under the MOU. In Barber's reply to CDCR's response, Barber argued that the fact that he had been terminated did not preclude him from reviewing his records under POBRA.

On February 19, 2010, the trial court held a predisposition hearing on Barber's writ petition and inquired as to why Barber had filed two actions. Barber explained that he had filed the instant writ petition to compel review of his records.*fn3 The other writ petition, brought under section 1094.5, was for Skelly*fn4 violations and was based on extrinsic fraud committed by CDCR. The SPB had told Barber in the other administrative proceeding that, in order to get his records, he had to get a court order for the records by filing the instant writ petition. Barber said that after the Pitchess motion in Ruelas v. Shelby, he discovered CDCR had committed extrinsic fraud by withholding documents from Barber. The documents should have been produced during his actions in 2004, challenging two terminations, in which he was ultimately reinstated in both instances. Barber acknowledged he had been terminated again in 2009, and was no longer employed at CDCR. He had not yet had a final hearing before the SPB on his termination.

Barber further explained that he brought the instant writ petition, not only to gather information in connection with his termination, but also to establish that CDCR committed fraud and a Skelly violation by withholding and destroying his records in 2004. CDCR's attorney acknowledged that Barber's 2009 termination case had not yet been heard by the SPB. The hearing was scheduled for September 29, 2010. The other case involved Barber's previous terminations in 2004 and the withholding of a document during the previous proceedings. The trial court ordered the hearing on the writ petition set on June 25, 2010. The hearing was later continued to July 30, 2010.

On March 23, 2010, Barber filed an opening brief for the hearing on his writ petition. Barber argued that CDCR provided him with two notices of adverse action, one in 2008 and one in 2009. The 2008 adverse action was overturned by the SPB based on a POBRA violation. The SPB revoked the notice of adverse action based on CDCR violating section 3304, subdivision (d).*fn5 The 2009 action concerned Barber's termination on April 10, 2009. Barber argued in his opening brief that he was entitled to all documents CDCR relied upon in issuing the notices of adverse ...


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