Ass'n for L. A. Deputy Sheriffs v. Superior Court of Cal. ex rel. the Cnty. of L. A.
This text of 221 Cal. Rptr. 3d 51 (Ass'n for L. A. Deputy Sheriffs v. Superior Court of Cal. ex rel. the Cnty. of L. A.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
SORTINO, J.
*419INTRODUCTION
The primary issue in this case is whether the nearly 40-year-old California statutory scheme that governs discovery of peace officer personnel records, when applied to criminal cases, violates due process and is therefore unconstitutional.
Petitioner, the Association for Los Angeles County Deputy Sheriffs (ALADS), is the union that represents non-supervisory Los Angeles County Sheriff's deputies. Real party in interest, Jim McDonnell, is the duly elected Sheriff of Los Angeles County (real party). Other real parties in interest include the Los Angeles County Sheriff's Department (LASD), Los Angeles *57County, and Does one through 50 (collectively real parties).
In Brady v. Maryland (1963)
Eleven years after Brady , the California Supreme Court, in Pitchess v. Superior Court (1974)
Absent compliance with these procedures, peace officer personnel records, as well as information from them, are confidential and shall not be disclosed "in any criminal or civil proceeding[.]" ( § 832.7, subds. (a) & (f).) Records that cannot be disclosed absent compliance with the Pitchess procedures include the names or identities of peace officers to the extent such a disclosure also links the officers to disciplinary investigations in their personnel files. ( Copley Press, Inc. v. Superior Court (2006)
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SORTINO, J.
*419INTRODUCTION
The primary issue in this case is whether the nearly 40-year-old California statutory scheme that governs discovery of peace officer personnel records, when applied to criminal cases, violates due process and is therefore unconstitutional.
Petitioner, the Association for Los Angeles County Deputy Sheriffs (ALADS), is the union that represents non-supervisory Los Angeles County Sheriff's deputies. Real party in interest, Jim McDonnell, is the duly elected Sheriff of Los Angeles County (real party). Other real parties in interest include the Los Angeles County Sheriff's Department (LASD), Los Angeles *57County, and Does one through 50 (collectively real parties).
In Brady v. Maryland (1963)
Eleven years after Brady , the California Supreme Court, in Pitchess v. Superior Court (1974)
Absent compliance with these procedures, peace officer personnel records, as well as information from them, are confidential and shall not be disclosed "in any criminal or civil proceeding[.]" ( § 832.7, subds. (a) & (f).) Records that cannot be disclosed absent compliance with the Pitchess procedures include the names or identities of peace officers to the extent such a disclosure also links the officers to disciplinary investigations in their personnel files. ( Copley Press, Inc. v. Superior Court (2006)
In this case, the LASD created a so-called " Brady " list of deputies whose personnel files contain sustained allegations of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The LASD proposed to disclose that list to the district attorney, as well as to other prosecutorial agencies that handle LASD investigations, so that prosecutors in individual cases could file *58Pitchess motions to discover the underlying misconduct or advise the defense of the disclosure so the defense could file its own Pitchess motion. ALADS opposed disclosure of the Brady list and filed the immediate action. ALADS' lawsuit seeks, in part, an injunction that prohibits disclosure of the list or any individual on the list to anyone outside the LASD, including prosecutors, absent complete compliance with the Pitchess statutes described above.
After full briefing, the trial court filed a thorough and lengthy written tentative ruling. After oral argument, and consistent with that tentative, the court issued a preliminary injunction which prohibits general disclosure of the Brady list to the district attorney or other relevant prosecutors. Consistent with Copley Press , POST , and Long Beach, the trial court determined that such a disclosure, because it identifies administratively disciplined deputies *421by name in the absence of a properly filed, heard, and granted Pitchess motion, violates the Pitchess statutes.
The injunction, however, expressly allows disclosure of individual deputies from the list to prosecutors, in the absence of compliance with Pitchess statutes, so long as any disclosed deputy is also a potential witness in a pending criminal prosecution. The trial court acknowledged that such a disclosure also violates the Pitchess statutes. The trial court, however, held that a filed criminal case triggers Brady and that the LASD, as part of the prosecution team, then has a " Brady obligation" to disclose exculpatory evidence in its possession. Because of this obligation, the LASD, in the language of the trial court's injunction, "may" notify the prosecutor-in the absence of a fully litigated and granted Pitchess motion-that the identified deputy has a founded administrative allegation of misconduct relevant to his or her credibility.
The trial court's finding that, because of its " Brady obligation," the LASD "may" violate the Pitchess statutes' disclosure prohibition, is, in our opinion, identical to finding that the Pitchess statutes' disclosure prohibition is unconstitutional in the particular context of a filed prosecution wherein a Brady list deputy is a witness. There is simply no lawful way judicially to approve a violation of state law unless compelled to do so by a higher authority: in this case, the United States Constitution as construed in Brady . Also, Brady disclosure is an affirmative, sua sponte, obligation of the prosecution team, meaning the prosecution is required to turn over all exculpatory information in its possession to the defense whether or not the defense requests it. Therefore, to the extent Brady creates a disclosure obligation that overrides Pitchess confidentiality, it is mandatory rather than permissive, no matter how the injunction itself is worded. And, if Brady compels the LASD to violate state law in this fashion, by disclosing the identity of a Brady list deputy in the absence of a fully litigated and granted Pitchess motion where a deputy is also a witness in a filed prosecution, then it compels every state and local law enforcement agency in California to do the same under the same or similar circumstances.2
*59*422The affirmative disclosure obligation of the prosecution required by Brady and constitutional due process have now coexisted with a criminal defendant's good cause burden under the Pitchess statutes for nearly 40 years. In that time frame, no reported case that we are aware of has found Pitchess or the Pitchess statutes to contravene Brady and thus violate the United States Constitution. In this case, real parties ask us to uphold the trial court's injunction. As explained above, to do so would require us to find the Pitchess statutes unconstitutional insofar as they prohibit, absent compliance with their specific procedures, disclosure to prosecutors of deputies from the Brady list who are also potential witnesses in a pending criminal prosecution. ALADS disagrees that Brady and constitutional due process compel disclosure in the absence of compliance with Pitchess, even if the deputy is a potential witness in a pending criminal prosecution. ALADS seeks an order commanding the trial court to strike language that permits such disclosure from the injunction.
While we understand the appeal of a procedure intended to streamline the disclosure of information that guarantees a criminal defendant's right to a fair trial, we do not write on a blank slate guided only by policy concerns. Both our Supreme Court and at least one Court of Appeal have examined the constitutionality of Pitchess and the Pitchess statutes in light of Brady and found no constitutional infirmity. It is our obligation to follow precedent, whether or not we agree with it; we have no authority, as an intermediate appellate court, to ignore precedent, jump ahead of our Supreme Court, and create new law. (See Auto Equity Sales, Inc. v. Superior Court (1962)
Our review of the relevant cases convinces us that the current state of the law supports ALADS. We therefore grant the relief, described above, that ALADS seeks.
FACTUAL HISTORY
Prior to October 14, 2016, the LASD convened a Commander's Panel to review individual deputy personnel files. Based upon this review, the panel *423identified approximately 300 individual deputies who had administratively founded allegations of misconduct involving moral turpitude, conduct which might be used to impeach the deputy's testimony in a criminal prosecution. The categories of misconduct upon which the panel based its decisions were *60administratively founded violations of various sections of the Sheriff's Manual of Policy and Procedures: (1) Immoral Conduct (§§ 3-01/030.07), (2) Bribes, Rewards, Loans, Gifts, Favors (§§ 3-01/030.75), (3) Misappropriation of Property (§§ 3-01/040.40), (4) Tampering with Evidence (§§ 3-01/040.65), (5) False Statements (§§ 3-01/040.70), (6) Failure to Make Statements and/or Making False Statements During Departmental Internal Investigations (§§ 3-01/040.75), (7) Obstructing an Investigation/Influencing a Witness (§§ 3-01/040.76), (8) False Information in Records (§§ 3-01/100.35), (9) Policy of Equality-Discriminatory Harassment (§§ 3-01/121.20), (10) Unreasonable Force (§§ 3-01/030.10), and (11) Family Violence (§§ 3-01/030.16).
In order to comply with what it believed to be its obligations under Brady and Johnson , the LASD proposed to send a " Brady list" of these deputies, identified by name and serial number only, to the various prosecutorial agencies that handle cases investigated by the LASD. The list would identify the deputy as having at least one founded violation of the above categories of misconduct in his or her personnel file. In the event such a deputy was or became a witness on a filed or to be filed prosecution, the prosecutor could (1) make a motion pursuant to Pitchess and Evidence Code sections 1043 and 1045, to discover the conduct underlying the deputy's inclusion on the list, or (2) provide the information disclosed by the LASD to the defense so it could make its own Pitchess motion. ( Johnson, supra , 61 Cal.4th at pp. 715-716,
On October 14, 2016, the LASD sent letters to all affected deputies notifying them of this proposed policy. The letter advised the affected deputy that he or she had a founded allegation of misconduct in his or her personnel file, and that his or her name and serial number would therefore be disclosed to the district attorney, as well as other relevant prosecutorial agencies, in order to comply with Brady . The letter affirmatively stated that records of the investigation itself, as well as the deputy's personnel file, would not be disclosed absent the appropriate Pitchess motion and corresponding court order. The letter also warned of the possibility of assignment transfers, in the event the LASD determined such transfers were necessary to protect the integrity of criminal investigations in light of the disclosures. If the LASD determined such transfers were necessary, the letter advised that proper notice and a hearing would be given, and that "[a]ll due process rights afforded by federal, state, and local law, as well as any applicable union memorandum of understanding (MOU)," would be followed.
The letter also advised any affected deputy who believed his or her name was improperly included on the list to notify LASD Captain Gregory Nelson, *424in writing, within 12 days. In response to this request, ALADS sent letters on behalf of approximately 92 so-affected deputies.
In a separate declaration, LASD Captain Nelson provided further details of the proposed LASD Brady list policy. The declaration reiterated that only names and serial numbers of affected deputies would be disclosed. Details of investigations or portions of the deputies' personnel files would only be disclosed after a formal Pitchess motion and accompanying court order. The LASD would not take any punitive or disciplinary action against any affected deputy, other than that already imposed for the sustained allegations. The LASD, though, was considering a number of options, including the possibility of assignment changes or restriction to specific *61duties, to mitigate problems that might arise because of the disclosures and the consequent impaired credibility of any affected deputy. Such options, if executed, would not be punitive, but for the purpose of protecting the integrity of existing or future criminal investigations. Any option utilized, including transfers or restriction of duties, would not result in reduction of salary, rank, or bonus pay. Any affected deputy would be given notice of the change, an opportunity to obtain representation, and a hearing. All due process rights, under federal, state, or local law would be followed at the hearing, and any union MOU would also be honored.
Additionally, Captain Nelson's declaration clarified that any deputy whose founded allegations were eventually overturned or not proven during an appeal to the Los Angeles County Civil Service Commission would not be included on the proposed Brady list.
PROCEDURAL HISTORY
I. ALADS' Petition/Complaint in the Trial Court
On November 10, 2016, ALADS filed its petition for writ of mandate and complaint for temporary restraining order, preliminary injunction, and permanent injunction in the trial court. The petition and complaint allege three causes of action: (1) Code of Civil Procedure section 1085 (writ of mandate), (2) Government Code section 3309.5 (the enforcement section of the Public Safety Officers Procedural Bill of Rights Act (POBRA), Gov. Code, § 3300 et seq. ), and (3) Code of Civil Procedure sections 526 and 527 (injunctive relief).
Overall, the petition seeks a writ of mandate and injunction compelling real parties in interest to comply with the provisions of section 832.5 et seq. (maintenance, use, and confidentiality of peace officer personnel files), Evidence Code section 1043 et seq. ( Pitchess motions), and POBRA, by not *425(1) disclosing the Brady list or the identity of any individual deputy on the list to the district attorney or any other prosecutorial agency without a court order obtained pursuant to Pitchess and the Pitchess statutes; (2) maintaining in any affected deputy's personnel file the letter mailed October 14, 2016, or any similar letter; (3) taking any punitive action, such as transfer or restriction of duties against any deputy identified on the Brady list; (4) placing any deputy on the Brady list based upon disciplinary action taken over one year after notice to the deputy of the alleged misconduct; (5) placing any deputy on the Brady list based upon disciplinary action that was overturned or found not to be proven during an appeal by the deputy to the Los Angeles County Civil Service Commission; and (6) placing any deputy on the Brady list without first providing the deputy with an opportunity for administrative appeal.
After ALADS filed the petition, both sides stipulated that the Brady list would not be disclosed prior to the trial court ruling on ALADS' request for a preliminary injunction. Prior to oral argument, the trial court posted a lengthy and thorough written tentative ruling that became, in large part, the formal written order partially granting ALADS' request for a preliminary injunction.
II. The Trial Court's Tentative Ruling
A. Brady and Pitchess
In its tentative, the trial court observed that real parties have a statutory obligation to protect the confidentiality of peace officer personnel records. ( §§ 832.7, 832.8.) The court also noted that, as a statutory matter, such records cannot be disclosed to any third party (including prosecutors) absent compliance with *62Pitchess and Evidence Code section 1043 et seq. Further, even the identity of a peace officer is confidential and not subject to disclosure when connected or linked to employee discipline or investigation of complaints against the officer. ( Copley Press, supra , 39 Cal.4th at pp. 1298-1299,
The trial court then concluded that the LASD's plan to circulate, generally, a Brady list of its deputies to the district attorney and other prosecutorial agencies runs afoul of Pitchess and the statutes protecting confidentiality of law enforcement personnel files. Further, the court concluded, such a practice is not constitutionally compelled by Brady , because the LASD's proposed disclosure is not tied to particular deputies involved as potential witnesses in an actual case against a particular defendant. Although, the court concluded, the LASD is a part of the prosecution team subject to Brady' s disclosure obligations, those obligations are triggered only where there is a filed criminal prosecution against a particular defendant and a deputy named on the list is a potential witness in the case. In sum, the trial court observed that "[t]he [LASD] simply is not part of the prosecution team, and is not acting on the prosecution's behalf, in providing the District Attorney a Brady list not tied to a particular prosecution. This is obvious from the fact that there is no Brady duty where there is no prosecution."
Ultimately, the trial court concluded that the LASD is entitled to prepare its own internal Brady list, but is constitutionally required, under Brady , to disclose deputies from that list to the district attorney (or other relevant prosecutor) only when the deputies are involved as witnesses in an actual criminal prosecution. Otherwise, the Pitchess statutes prohibit disclosure, absent compliance with their procedures. When the LASD makes a constitutionally compelled disclosure outside of Pitchess , the prosecution can file its own Pitchess motion to obtain the personnel file and investigation, and then disclose to the defense whatever Brady requires, or simply notify the defense of the disclosure so the defense can file its own Pitchess motion. Either option satisfies the prosecution team's Brady obligations. ( Johnson, supra , 61 Cal.4th at pp. 715-716,
Essentially, the trial court held that when a deputy on the list is a potential witness in a pending prosecution, Brady creates a federal constitutional disclosure obligation that overrides the state-created confidentiality restrictions of Pitchess and the Pitchess statutes. When a deputy on the list is not involved as a witness in a particular filed prosecution, however, the Brady disclosure obligation is not triggered, and the LASD cannot violate its statutory confidentiality obligation by disclosing *63names from the list to outside prosecutors in the absence of a properly filed, heard, and granted Pitchess motion.
Based upon its analysis, the trial court concluded that ALADS was likely to succeed on the merits in terms of preventing the wholesale disclosure of the entire Brady list to the district attorney, but was not likely to succeed in terms of preventing disclosure of individual deputies from the list when such deputies were witnesses in filed prosecutions. The trial court also concluded *427that general disclosure of the list would cause irreparable harm to the reputations of the deputies on the list, while an order enjoining such disclosure would cause no comparable harm to real parties.
B. Government Code Section 3303 et seq. (POBRA)
The trial court also addressed ALADS' claim that the possible transfer or restriction of duties of deputies on the Brady list violates POBRA.
First, the trial court explained that pursuant to Government Code section 3305.5, the LASD and other real parties have a statutory obligation not to take punitive action against a deputy just because his or her name has been placed on a Brady list. Punitive action, as defined in POBRA, is limited: to be punitive, the employer's action must be a personnel action that is disciplinary in nature. ( White v. County of Sacramento (1982)
Based upon the above law, the trial court denied ALADS' request to enjoin the LASD from making transfers or taking other action with respect to deputies on the Brady list. The court found that ALADS was unlikely to succeed at trial because it offered no evidence to support its contention that any such action would be punitive in nature, rather than to accommodate the affected deputy's reduced credibility because of founded allegations of bias, moral turpitude, or dishonesty. Further, the court determined that any deputy transferred or restricted to certain duties who believed that such action was punitive, would be able to challenge the reassignment or other change in duties administratively. Thus, alternative remedies were available.
The trial court also denied the balance of ALADS' requests for additional injunctive relief as requested in the petition and complaint.
III. The Preliminary Injunction
The trial court ordered ALADS' counsel to prepare the written order of preliminary injunction. The parties, however, could not agree and went back *428and forth on the final form of the written preliminary injunction. Initially, ALADS submitted an order that simply enjoined the LASD from releasing the Brady list, or any information from it, to any entity outside the LASD absent a court order issued in response to a properly filed and heard Pitchess motion. Real parties objected, arguing that such an order did not encompass *64the entirety of the trial court's ruling, since the court carved out an exception to the general prohibition against disclosure for deputies on the list who are also witnesses in a pending criminal prosecution. Additionally, real parties objected because the written injunction did not include the trial court's ruling that possible transfers or restrictions of duty do not violate POBRA.
ALADS submitted two forms of the written order for preliminary injunction: one consistent with its original order, and one consistent with real parties' requested changes. Each side filed formal objections to the opposing side's proposed order. The trial court signed, and on January 27, 2017, filed the written preliminary injunction requested by real parties. That order enjoins real parties from a number of actions: (1) disclosing the Brady list as a whole to any party outside the LASD; (2) disclosing the identity of any individual deputy on the Brady list to any party outside the LASD, except a relevant prosecutorial agency, and then only if the deputy is a potential witness in a pending criminal prosecution; and (3) except as provided in (2) above, disclosing the identity of any individual deputy on the Brady list to any party outside the LASD, including prosecutorial agencies, unless compelled by a court order issued after a properly filed and heard Brady or Pitchess motion.
The order then recites additional "clarifying" principles: (1) the LASD is not precluded from creating and maintaining an internal Brady list; (2) the LASD is not precluded from taking action against any deputy because he or she is on the Brady list, including transfer or restriction of duties; and (3) the LASD is not precluded from disclosing any future Brady list to prosecutorial agencies insofar as it consists only of non-sworn employees not subject to POBRA. With respect to clarifying principle (2) above, the injunction adds that any deputy so affected by transfer, restriction of duty, or other action who believes the action to be punitive under POBRA, retains all administrative rights under POBRA to challenge and overturn such action.
IV. ALADS' Immediate Petition for Writ of Mandate
ALADS filed the immediate petition for writ of mandate on February 14, 2017. In the petition, ALADS seeks an order to strike or stay enforcement of the portions of the written preliminary injunction that state that "the enjoined parties are not precluded from" (1) maintaining an internal Brady list; (2) disclosing to the relevant prosecutorial agency the identity of any deputy on *429the Brady list, in the absence of a properly filed Pitchess motion and accompanying court order, so long as the deputy is a potential witness in a pending criminal prosecution; (3) transferring, restricting duties of, or otherwise taking action against any deputy because he or she is on the Brady list; and (4) creating and disclosing any future Brady list that includes only non-sworn employees outside the scope of POBRA.
We initially granted ALADS' request for an immediate stay and ordered a preliminary response to the petition from real parties, as well as a reply to that response from ALADS. Subsequently, we issued an order to show cause to the trial court why ALADS should not be granted the relief it seeks, to which real parties filed a return and ALADS filed a reply to the return.
DISCUSSION
I. Review by Appeal or Review by Petition for Writ of Mandate
At the outset, we must determine whether it is appropriate to review the *65trial court's order of preliminary injunction by way of the immediate petition for writ of mandate or by way of a later appeal.
Code of Civil Procedure section 904.1, subdivision (a)(6), permits review by appeal from "an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction." The intent of the statute " 'is that all orders granting or refusing injunctions, whether temporary or permanent or provisional pending appeal, shall be appealable.' " ( Western Electroplating Co. v. Henness (1959)
Ordinarily, a judgment that is immediately appealable is not subject to review by mandate or any other extraordinary writ. ( Powers v. City of Richmond (1995)
The primary issue in this case is whether a statewide statutory discovery procedure that has been in effect for nearly 40 years violates the Constitution, as construed in Brady, when enforced in the context of a filed criminal prosecution that includes as witnesses, peace officers with founded allegations of misconduct, relevant to veracity, in their personnel files. That procedure affects every state and local law enforcement agency in California, and *430potentially every state criminal prosecution wherein a state or local peace officer is a witness. As of 2008, there were 509 state or local law enforcement agencies within California that employed a total of 79,431 sworn personnel.3 In this case, the trial court effectively held that law enforcement agencies have an affirmative constitutional obligation under Brady , in the absence of any compliance with the Pitchess statutes, to notify the prosecutor whenever one of their peace officers has a founded allegation of misconduct involving moral turpitude in his or her personnel file, so long as that officer is also a potential witness in a pending criminal case. The necessary corollary of this holding is that the Pitchess statutes, which require any party outside of the law enforcement agency-including the prosecutor-to make a showing of good cause before obtaining such a disclosure, are unconstitutional in this specific context.
While the trial court's ruling binds only the parties before it, this case is now before the Court of Appeal. Were we to agree with the trial court in a published opinion, the ruling would become binding upon trial courts throughout the state. (See Auto Equity Sales, supra , 57 Cal.2d at p. 455,
II. Standard of Review
When deciding whether to issue a preliminary injunction, a trial court considers two factors: (1) the reasonable probability that the party seeking the injunction will prevail on the merits at trial and (2) a comparison of the "irreparable harm" that will be suffered by that party if the preliminary injunction is denied to the "irreparable harm" that will be suffered by the opposing party if the preliminary injunction is granted. ( Code Civ. Proc., § 526, subd. (a)(1), (2) ; People ex rel. Gallo v. Acuna (1997)
*431Ordinarily, the trial court's evaluation of the two foregoing factors is reviewed on appeal for abuse of discretion. ( Hunter v. City of Whittier (1989)
We agree, in large part, with the trial court's reasonable probability of success/balance of harms analysis and find no abuse of discretion in its decision to issue a preliminary injunction. Based upon our de novo review, though, we find that the trial court erred in its analysis of the constitutional question presented by this case and improperly limited the scope of its injunction.
III. Analysis of the Merits
As mentioned above, in this petition ALADS seeks relief from various portions of the trial court's written injunction: specifically, those portions that expressly do not prohibit the LASD from (1) maintaining an internal Brady list; (2) disclosing to the relevant prosecutorial agency the identity of any deputy on the Brady list who is a potential witness in a pending criminal prosecution where no order pursuant to a properly filed Pitchess motion has been obtained; (3) transferring, restricting duties of, or otherwise taking action against any deputy because he or she is on the Brady list; and (4) creating and disclosing any future Brady list that includes only non-sworn employees outside the scope of POBRA. The first two depend upon an analysis of the interplay between Brady and Pitchess , the third upon an analysis of POBRA, and the fourth upon general concepts of notice and due process. We analyze each in turn.
In Brady,
Evidence is material under Brady if there is a reasonable probability that the result of the proceeding would have been different had the information been disclosed. ( United States v. Bagley (1985)
In Pitchess , the California Supreme Court held that under certain circumstances, and upon an adequate showing, a criminal defendant may discover information from a peace officer's otherwise confidential personnel file that is relevant to a defense of the charge against him or her. ( Mooc, supra , 26 Cal.4th at pp. 1216, 1219,
In 1978, the California Legislature codified the privileges and procedures discussed in Pitchess in sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045. ( Mooc , supra , 26 Cal.4th at pp. 1219-1220,
*433The standard of "good cause" required for Pitchess disclosure-materiality to the subject matter of the litigation and a reasonable belief that the noticed agency has the type of information sought-is relatively relaxed and guarantees inspection and production of all potentially relevant documents. ( *68Johnson, supra , 61 Cal.4th at p. 711,
The Pitchess statutes protect the confidentiality of peace and custodial officer "personnel records," as well as any "information obtained from [them]." ( § 832.7, subd. (a).) "Personnel records" include any file maintained under an individual's name by his or her employing agency that contains records which relate to (1) personal data; (2) medical history; (3) election of employee benefits; (4) employee advancement, appraisal, or discipline; (5) complaints, or investigations of complaints, involving any event pertaining to the performance of the peace officer's duties which he or she participated in or perceived; and (6) any other information the disclosure of which would constitute an unwarranted invasion of personal privacy. ( § 832.8, subds. (a) - (f).)
The information protected by the confidentiality and disclosure procedures of the Pitchess statutes is broad. Thus, the identity of a peace officer that is derived from his or her personnel file, to the extent it connects that officer to administrative disciplinary proceedings or complaints of misconduct also contained within the protected personnel file, may not be disclosed absent compliance with the Pitchess procedures. ( Copley Press, supra , 39 Cal.4th at pp. 1297-1299,
This rule applies even if the information connected to the identified officer is only generic in nature. We base this conclusion on the interplay of two subdivisions within section 832.7, as well as the plain language of Copley Press .
As discussed above, section 832.7, subdivision (a), prohibits disclosure of peace officer personnel records or information obtained from them "in any criminal or civil proceeding" absent compliance with the Pitchess procedures. Section 832.7, subdivision (c), however, creates an exception to the disclosure prohibition of subdivision (a): "[n]otwithstanding subdivision (a), a department or agency that employs peace ... officers may disseminate *434data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved ." (Italics added.) Copley Press ultimately held that "[t]he language limiting the information that may be disclosed under [ section 832.7, subdivision (c),] demonstrates that section 832.7, subdivision (a), is designed to protect, among other things, 'the identity of officers' subject to complaints. [Citation.]" ( Copley Press, supra , 39 Cal.4th at p. 1297,
The dissent asserts that Copley Press , POST , and Long Beach are distinguishable *69from the present case because each involves California Public Records Act of 1968 (CPRA; Gov. Code, § 6250 et seq. ) requests for Pitchess information from media organizations, rather than disclosures to prosecutors with Brady obligations. (Conc. & dis. opn. post, at pp. 83-84.) Thus, the dissent concludes, the Pitchess procedures do not prohibit the generic disclosure allowed by the trial court's injunction. (Conc. & dis. opn. post, at p. 84.)
While this factual difference is accurate, we find it to be a difference without significance. The Pitchess statutes and their requirements do not make distinctions among who is seeking the information, or the type of proceedings in which or for which they are sought: "[p]eace officer or custodial officer personnel records ... or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to [s]ections 1043 and 1046 of the Evidence Code." (§ 832.7, subd. (a); see also Johnson, supra , 61 Cal.4th at p. 714,
The dissent also contends that Copley Press is distinguishable because the disclosure here "does not involve records of any specific disciplinary incident-or any records at all." (Conc. & dis. opn. post, at p. 84.) The argument appears to be that simply identifying a deputy and indicating that he or she has at least one founded administrative allegation of misconduct relevant to his or her veracity is too generic to be considered information within the protection of the Pitchess statutes.
*435Again, we disagree. First, section 832.7, subdivision (a), protects not only personnel records, but all "information obtained from these records." Notifying an outside agency, even a prosecutor's office, that a deputy has an administratively founded allegation of misconduct involving moral turpitude cannot be characterized as anything other than disclosing information obtained from the peace officer's personnel file. Moreover, as discussed earlier, based upon the exception created by section 832.7, subdivision (c), Copley Press rejected the notion that generic complaint information which identifies a particular officer is outside the disclosure prohibition of section 832.7, subdivision (a). ( Copley Press, supra, 39 Cal.4th at p. 1297,
1. Creating and Maintaining an Internal Brady List
ALADS objects to the written injunction's provision that the LASD is "not precluded from maintaining a Brady list internally[.]"
The language objected to is contained in the portion of the injunction which begins, "For purposes of clarifying the Enjoined Parties' obligations under this injunction[.]" That qualifier is then followed by descriptions of various conduct not precluded: (1) creation and maintenance of an internal Brady list, (2) transfers or restrictions of duties of Brady list deputies, and (3) creation and disclosure of Brady lists that include only non-sworn personnel. ALADS contends, generally, that describing the conduct above as "not precluded" affirmatively authorizes that conduct, relief which real parties never noticed or formally requested. Such affirmative *70relief, ALADS continues, granted without formal request or notice by any of the real parties, offends basic concepts of proper notice and due process.
ALADS' argument is not persuasive. By inference, ALADS raised the issue of the legality of an internal Brady list in its original petition and complaint since it essentially objected to the creation of a Brady list based upon already founded misconduct unless the LASD first offered a current administrative appeal. Moreover, the issue of the legality of such an internal list was discussed in both the trial court's tentative and during the preliminary injunction hearing. During the hearing, ALADS did not object to the issue being raised.
Finally, the language of the preliminary injunction, considered as a whole and in context, does not affirmatively authorize the LASD to prepare the list. Although not express, implicitly the language only clarifies or limits the extent of the prohibitions contained elsewhere in the injunction: thus, we read this part of the injunction simply to mean that nothing in the preliminary injunction prohibits the LASD from creating the list, so long as it does not disclose it to any person or entity outside the LASD. In other words, the *436language does not affirmatively compel or even authorize the LASD to review personnel records and create a Brady list, it simply indicates that the injunction does not prohibit the LASD from doing so. In terms of a notice and/or due process issue, we find none. The trial court was merely ensuring that the precise limits of its injunctive relief were understood by the affected parties.
Moreover, we agree with the trial court on the substantive merits of this issue. The Pitchess statutes prohibit the disclosure of peace officer personnel records to persons or entities outside the law enforcement agency absent compliance with their procedures. Neither Pitchess nor the statutes discuss, let alone prohibit, the internal collection of data, based upon past events found to have occurred after an investigation and administrative hearing by the employing law enforcement agency. Thus, we find no violation of Pitchess or the Pitchess statutes insofar as the LASD reviews already existing personnel records, and simply compiles or creates a summary or categorization of information already contained in those files for internal use only. (See Michael v. Gates (1995)
2. Disclosure of Identity if Deputy Is a Witness in a Pending Case
This, we believe, is ALADS' primary objection to the trial court's order: the injunction, as worded, does not prohibit the LASD from disclosing Brady list deputies to the district attorney, or other prosecutorial agency, so long as the deputies are also potential witnesses in a pending criminal prosecution, even in the absence of a properly filed, heard, and granted Pitchess motion.
The trial court concluded, and, for the reasons stated in Part III.A, ante , we agree, that such disclosure violates Pitchess and the Pitchess statutes. Based upon LASD personnel records, the proposed disclosure identifies the deputy by name and serial number and connects him or her to administratively sustained allegations of misconduct involving moral turpitude or other bad acts, without first complying with the Pitchess procedures.
*71( Copley Press, supra, 39 Cal.4th at pp. 1297-1299,
In this regard, real parties have a tough row to hoe. Courts will presume that a duly enacted statute is constitutional unless its unconstitutionality appears "clearly, positively, and unmistakably." In making this analysis, all "presumptions and intendments favor its validity." ( City of Los Angeles v. Superior Court (2002)
Additionally, and most importantly, the California Supreme Court, as a general matter, has at least twice expressly observed that the statutory Pitchess procedures do not violate either Brady or constitutional due process, but rather, supplement both. In City of Los Angeles , the court held that the Pitchess statutes' limitation of discoverable complaints to those five years old or less does not violate the requirements of Brady. ( City of Los Angeles, supra , 29 Cal.4th at p. 16,
In Mooc , the court "examine[d] the nuts and bolts of a Pitchess motion," and what such a motion requires of both the custodian and the court conducting the in camera review of records. In doing so, the court specifically noted that the Pitchess "procedural mechanism for criminal defense discovery, which must be viewed against the larger background of the prosecution's constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant's right to a fair trial [citations omitted], is now an established part of criminal procedure in this state." ( Mooc, supra , 26 Cal.4th at pp. 1225-1226,
In addition to the more general observations of our Supreme Court in City of Los Angeles and Mooc , a relatively recent decision by our colleagues in Division Three of this District expressly considered, and rejected, a constitutional challenge that involves issues similar to those raised in this case. In People v. Gutierrez (2003)
On appeal, the defendant contended that the statutory Pitchess procedures violated Brady because (1) they interfered with the prosecutor's affirmative obligation to ascertain and disclose exculpatory evidence and (2) placed upon a defendant the burden of establishing good cause for an otherwise obligatory Brady disclosure. ( Gutierrez, supra , 112 Cal.App.4th at pp. 1468, 1470-1471,
The Court of Appeal rejected defendant's contentions. Relying in part on City of Los Angeles, the Gutierrez court found that the materiality standard of Pitchess is both "broader and lower" than that of Brady . ( Gutierrez, supra , 112 Cal.App.4th at p. 1474,
The Gutierrez court also rejected defendant's contention that Pitchess unconstitutionally required him to make a good cause showing before obtaining evidence he was entitled to under Brady. ( Gutierrez, supra, 112 Cal.App.4th at p. 1475,
In support of this position, the Gutierrez court relied upon Pennsylvania v. Ritchie (1987)
On appeal, the United States Supreme Court construed defendant's argument for disclosure as a Brady due process challenge to the state confidentiality rules. ( *73Ritchie , supra , 480 U.S. at pp. 56-57,
Pitchess and the Pitchess statutes require no more than what was required of the defendant in Ritchie. We agree with the reasoning of Gutierrez and Ritchie, as well as the more general conclusions regarding the constitutionality of Pitchess procedures made in City of Los Angeles and Mooc. Furthermore, we agree with the trial court that disclosure of a deputy from the Brady list will cause stigma and irreparable harm to the individual deputy's reputation, while non-disclosure will cause no comparable harm to the LASD or the other real parties. Accordingly, we grant, in part, ALADS' petition for writ of mandate. The language in the injunction that allows the LASD, or any real party, to disclose the identity of any individual deputy on the Brady list to any agency or individual outside the LASD, absent a properly filed and granted Pitchess motion and corresponding court order, even if the affected deputy is a potential witness in a filed criminal prosecution, must be stricken.
Setting aside, for the moment, our holding that Pitchess and the Pitchess statutes do not violate constitutional due process as defined in Brady, we note *440one other issue with the trial court's injunction: as worded, the injunction allows disclosure outside of the Pitchess procedures whenever a Brady list deputy is a "potential" witness in a pending criminal prosecution. Not all "potential" LASD witnesses in a criminal case, however, will be significant enough that impeachment information in their personnel files will be material, which Brady requires as a prerequisite to disclosure. For example, while the credibility of a homicide detective who obtains an unrecorded confession from a murder defendant would likely be a material issue at trial, that of a patrol deputy who simply arrests the defendant but otherwise generates no incriminating evidence likely would not be. In the latter situation, impeachment information in the deputy's personnel file likely would not be material under Brady and thus there would be no disclosure obligation, even if we assume the validity of the trial court's constitutional rationale, that justifies ignoring the requirements of the Pitchess statutes. The injunction, though, permits violation of the Pitchess statutes in both situations described above, since it treats potential witnesses identically regardless of their materiality. The injunction is therefore overbroad even if we assume the validity of its own rationale.
a. Johnson and the Attorney General Opinion
In their argument in favor of the trial court's injunction allowing disclosure of Brady list deputies who are potential witnesses in pending criminal prosecutions, real parties rely largely on the 2015 California *74Supreme Court decision in Johnson and the California Attorney General Opinion ostensibly based upon it. ( 98 Ops.Cal.Atty.Gen. 54 (2015) (Opinion).) This reliance is misplaced.
We address Johnson first. In August 2010, the San Francisco Police Department (Department) created its own Brady policy through the enactment of Bureau Order No. 2010-01 (Order). ( Johnson, supra , 61 Cal.4th at pp. 706-707, 724,
The Order set up a procedure similar to that proposed by real parties in the immediate case: "the [Department] will identify potential Brady material on an ongoing basis and notify the district attorney's office on an ongoing basis that the personnel files for particular officers may contain Brady material. When the police department becomes aware of potential Brady material regarding an officer, it creates a synopsis identifying the officer, the conduct, *441and the documents and information for potential disclosure. A departmental ' " Brady Committee" ' reviews the synopsis and, after notifying and permitting comment from the affected employee, recommends to the chief of police whether to disclose the employee's name to the district attorney. The chief of police either approves or disapproves the recommendation. If disclosure of an officer's name is approved, the district attorney is notified that the officer 'has material in his or her personnel file that may be subject to disclosure under' Brady ." ( Johnson , supra , 61 Cal.4th at p. 707,
The underlying criminal case in Johnson charged defendant with various domestic violence crimes. ( Johnson , supra , 61 Cal.4th at p. 706,
The trial court denied the request for in camera review, finding that the prosecution had not made the required Pitchess good cause showing. ( Johnson , supra , 61 Cal.4th at p. 708,
The Court of Appeal stayed the trial court order and issued an order to show *75cause. ( Johnson , supra , 61 Cal.4th at p. 708,
On review, the California Supreme Court reversed the Court of Appeal insofar as it ordered, or even allowed, the prosecution to review law enforcement personnel files absent a properly filed Pitchess motion and accompanying court order. ( Johnson, supra , 61 Cal.4th at pp. 713, 723,
The court then addressed the prosecution's Brady obligation when, as in the case before it, the law enforcement agency discloses to it that a witness officer may have Brady material in his or her personnel file. The court held that the prosecution is obligated to do nothing more than notify the defendant of the information provided to it; it is not required to make its own Pitchess motion and then disclose what it discovers as a result of that motion. The defense can decide whether, based upon that notice, it wishes to file its own Pitchess motion. ( Johnson, supra , 61 Cal.4th at pp. 715-716,
The defendant in Johnson argued that California's Pitchess procedures were inadequate to protect his right to exculpatory information under Brady. The court flatly rejected that argument and reiterated the observations it made previously in both City of Los Angeles and Mooc : "The Brady requirements and Pitchess procedures have long coexisted. '[T]he Pitchess scheme does not unconstitutionally trump a defendant's right to exculpatory evidence as delineated in Brady. Instead, the two schemes operate in tandem.' [Citation.] We are confident that trial courts employing Pitchess procedures will continue to ensure that defendants receive the information to which they are entitled." ( Johnson , supra , 61 Cal.4th at pp. 719-720,
As significant as what Johnson decides, however, is what it does not decide: Johnson does not decide and, in fact, the Johnson court does not mention, let alone discuss, *76the legality under Pitchess of the Department's initial disclosure to the district attorney that the two officers had Brady material in their personnel files. Neither the parties nor the court ever raised that issue. In fact, by the time the prosecutor in Johnson filed her Pitchess motion, the Order had been in place for over three years. ( Johnson, supra , 61 Cal.4th at pp. 706, 724,
It is true that Johnson comments positively about the procedure created by the San Francisco Police Department: "[i]n this case, the police department has laudably established procedures to streamline the Pitchess / Brady process." ( Johnson, supra , 61 Cal.4th at p. 721,
To approve formally the legality of the Department Order in Johnson , our Supreme Court would have had to find that the Department's confidentiality obligations and procedures under sections 832.7 and 832.8 and Evidence Code sections 1043 and 1045, obligations and procedures that were enacted 15 years after Brady , and that had, in the decades since, become "an established part of criminal procedure in this state," Mooc, supra , 26 Cal.4th at page 1226,
*77*444The change effected in California criminal jurisprudence by such a ruling would be significant. It would affect every law enforcement agency in this state and potentially every criminal prosecution with a peace officer witness. It would effectively require every local law enforcement agency in the state, in the absence of any compliance with the Pitchess statutes, to notify the prosecutor whenever one of their peace officers has a founded allegation of misconduct involving moral turpitude in his or her personnel file, so long as that officer is also a potential witness in a pending criminal case.
If this is what the Constitution requires under Brady , then so be it: the Constitution is the supreme law of the land and must be followed. For the reasons stated earlier, however, we do not believe this is required by the Constitution as explicated in Brady . Additionally, we do not believe this type of "sea change" ruling is one our Supreme Court would make implicitly by commenting, without analysis, on a procedure whose legality was never raised by the parties or expressly discussed by the court. Given the other authority cited earlier in this opinion, we find the court's brief description of the Order in Johnson as "laudable" not dispositive in terms of our ruling on the ultimate, and serious, constitutional issue raised in this case. It certainly does not, in our opinion, mandate the significant change in the procedure governing discovery of peace officer personnel records that would be created were we to agree with real parties' position.
The California Attorney General's Opinion, based on Johnson , is likewise not persuasive. In the Opinion, the Attorney General approved the legality of a proposed policy, authored by the California District Attorneys Association, which addressed Brady disclosures from California Highway Patrol (CHP) personnel files. ( 98 Ops.Cal.Atty.Gen. 54 (2015).) Under the proposed policy, a qualified representative of the CHP would examine personnel files and compile a list of officers who had sustained administrative findings of misconduct involving moral turpitude or actual criminal convictions involving moral turpitude. Based upon this list, the CHP would create a secure database identifying the officers, but not the misconduct. Prosecutors would have access to the database and could search it for the names of officers who might testify in their upcoming trials. If an officer witness appeared on the database search, the prosecutor would then file a Pitchess motion and any information released after an in camera review would be disclosed to the defense. ( 98 Ops.Cal.Atty.Gen. at pp. 62-64.)
The CHP objected to this policy, arguing that it could not release to the district attorney the names of officers who were also identified as having sustained allegations of misconduct without violating Pitchess and the Pitchess statutes, an argument fully supported by Copley Press, supra, 39 Cal.4th at pages 1297-1299,
The Attorney General is authorized to issue advisory opinions to designated state and local officials, and such opinions are entitled to respect. They are however, advisory only, and are not binding on the courts. ( State of California v. Superior Court (1986)
Neither Johnson nor the Opinion, therefore, persuades us that our earlier analysis and conclusion prohibiting disclosure of deputy identities from the Brady list, absent a properly filed and granted Pitchess motion and corresponding court order, are incorrect.
B. POBRA
ALADS also opposes any language in the injunction that allows the LASD to transfer, restrict duties of, or in any other similar way affect the job assignment or duties of any deputy on the Brady list.
As mentioned earlier, Government Code section 3300 et seq. is the Public Safety Officers Procedural Bill of Rights Act, otherwise known as POBRA. POBRA grants public safety officers a number of basic procedural rights and protections, which must be followed by the public safety agencies that employ them. Government Code section 3305.5, subdivision (a), prohibits any "punitive action" against or any denial of promotion of any public *446safety officer solely because that officer has been placed on a " Brady list," or because that officer's name might otherwise be subject to disclosure under Brady.
A " Brady list" is any "system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in Brady v. Maryland (1963)
Technically speaking, a Brady list, as defined by POBRA, includes only lists maintained "by a prosecutorial agency or office," and does not seem to include similar lists maintained by a law enforcement agency. (See Gov. Code, § 3305.5, subd. (e).) Nevertheless, the protections of Government Code section 3305.5 do apply to the list created by the LASD since *79Government Code section 3305.5, subdivision (a), prohibits punitive action against any public safety officer on a Brady list, as defined, or against any officer whose "name may otherwise be subject to disclosure pursuant to [ Brady ]." If an officer appears on a Brady list created by a law enforcement, rather than prosecutorial agency, he or she certainly "may otherwise be subject to disclosure pursuant to [ Brady ]." ( Gov. Code, § 3305.5, subd. (a).)
None of the acts proposed by real parties that may result from a deputy's placement on the LASD's Brady list involve "dismissal, demotion, suspension, reduction in salary, [or] written reprimand." ( Gov. Code, § 3303.) Indeed, Captain Nelson's declaration establishes that any response by the LASD will not involve changes in rank, salary, or even bonus pay. The only possible action suggested by Captain Nelson's declaration or the October 14, 2016 letter described in Government Code section 3303 is the possibility of transfer.
A transfer must be punitive in nature before it violates POBRA. ( Gov. Code, § 3303.) A transfer is not inherently disciplinary or disadvantageous to the officer, and is punitive only when it is "for purposes of punishment."
*447( White v. County of Sacramento, supra , 31 Cal.3d at pp. 682-683,
On this issue, we agree with the trial court that ALADS did not demonstrate a likelihood of success on the merits. The record below shows that ALADS failed to rebut real parties' evidence that any transfer or other change in duties based upon a deputy's placement on the LASD Brady list would be to address, or compensate for, the deputy's reduced credibility due to potential disclosure of the deputy's past founded allegations of misconduct. Such a transfer is not "for purposes of punishment." Moreover, as the trial court observed, any individual deputy in the future who believes his transfer is, in fact, punitive, still retains the procedural protections of POBRA and may assert them if he or she feels it is necessary.
To the extent ALADS argues that this portion of the injunction grants affirmative relief to real parties that they neither requested nor properly noticed, we reiterate our comments made in the discussion of the LASD's creation and maintenance of a wholly internal Brady list in part III.A.1, ante . Considered as a whole, and in context, the language merely limits what the immediate injunction prohibits. It does not affirmatively compel or even authorize the *80LASD or any other real party to make transfers or impose restrictions of duty. It simply establishes that the immediate injunction, in and of itself, does not prohibit such acts.
C. Non-sworn Employees
The final paragraph of the trial court's injunction states that "[r]espondents are not enjoined from disclosing any future developed 'Brady List' to the Los Angeles County District Attorney's Office, or any other prosecutorial agency, *448provided any new Brady List contains only the names of non-sworn employees who are not subject to the Public Safety Officers' Procedural Bill of Rights Act ('POBRA'), Government Code section 3300, et seq."
As ALADS points out, the non-sworn employees of the LASD are not parties to, and are therefore not represented in, this litigation. The issue of a Brady list for non-sworn LASD employees is not raised by ALADS' petition and complaint, and, as far as we can see, was never raised by the parties either in their pleadings, motions, or other documents filed in the trial court, or during oral argument before the trial court. It appears to be completely beyond the scope of the issues fairly raised by the litigation up to this point, and thus beyond the scope of the trial court's injunctive authority in the context of the immediate case. Whatever the legality, or illegality, of a Brady list disclosure of non-sworn employees, that issue must wait for a lawsuit in which it is fairly raised, noticed, and litigated. That lawsuit is not the immediate case.
DISPOSITION
While we agree with the trial court that injunctive relief is proper in this case, for the foregoing reasons we disagree with its analysis of the constitutional question presented and thus with the limited scope of the injunction ordered. The petition for writ of mandate is granted, in part. The trial court's order of preliminary injunction as worded, must be modified so that it is consistent with this opinion.
The trial court is ordered to strike from the injunction any language that allows real parties or any of them to disclose the identity of any individual deputy on the LASD's Brady list to any individual or entity outside the LASD, even if the deputy is a witness in a pending criminal prosecution, absent a properly filed, heard, and granted Pitchess motion, accompanied by a corresponding court order. The court must also strike any language that purports to address real parties' power or authority with respect to a Brady list involving non-sworn employees.
In all other respects, the petition is denied.
I CONCUR:
BIGELOW, P.J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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