Judge: Anne Richardson, Case: 23STCV18241, Date: 2024-01-09 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 23STCV18241    Hearing Date: April 4, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Court Order

I. Background

A. Pleadings

Plaintiff Aidee Jacqueline Tinoco Bucio sues Defendants Khowsrow Benji, Anna Benji, and Does 1 through 100 pursuant to a January 16, 2024, Complaint alleging 21 counts of Fair Employment and Housing Act (FEHA), Labor Code, assault and battery, and other claims.

B. Relevant Procedural History

On October 12, 2023, Plaintiff Tinoco Bucio served a notice of inspection on Khowsrow Benji and Anna Benji (the Benji Defendants) for the inspection of the Benji Defendants’ home, i.e., the residence where Plaintiff worked as a housekeeper and where the alleged sexual harassment occurred.

The request seeks inspection of 12 specific places in the home: (1) the massage room; (2) the master bedroom; (3) the audio and visual room; (4) the location and rooms where all surveillance cameras, video, and recording equipment devices are kept and maintained; (5) the location and rooms where nay massage bed is located; (6) any room with art drawn by Defendant Khowsrow Benji; (7) the kitchen; (8) the living room; (9) the dining room; (10) the restroom; (11) any and all common areas located in the house; and (12) the garage.

On November 14, 2023, the Benji Defendants served a response to the inspection demand, which only contains objections and no substantive responses.

On December 14, 2023, Plaintiff filed a motion to compel an inspection of the Benji Defendants’ home.

On December 26, 2023, the Benji Defendants filed an objection to the motion based on insufficient notice.

On January 2, 2024, Plaintiff filed a reply.

On January 9, 2024, the motion to compel inspection came before the Court, at which time the Court denied Plaintiff’s motion, without prejudice, based on insufficient notice, foreclosing a need for a discussion on the merits.

C. Motion Before the Court

On February 21, 2024, Plaintiff Tinoco Bucio filed a second motion to compel an inspection of the Benji Defendants’ home as noticed on October 12, 2023, and for sanctions against the Benji Defendants and counsel of record.

On March 22, 2024, the Benji Defendants filed an opposition, which contains a cross-request for sanctions.

On March 27, 2024, Plaintiff Tinoco Bucio filed a reply.

Plaintiff Tinoco Bucio’s motion is now before the Court.

II. Motion to Compel Inspection and Request for Sanctions

A. Motion to Compel Inspection: GRANTED.

1. Legal Standard

“A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it.” (Code Civ. Proc., § 2031.010, subd. (d).)

To compel an inspection after an initial response has been by the responding party, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, complete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).

2. Inspection Request and Objections

On October 12, 2023, Plaintiff Tinoco Bucio served a notice of inspection on the Benji Defendants for the inspection of: (1) the massage room; (2) the master bedroom; (3) the audio and visual room; (4) the location and rooms where all surveillance cameras, video, and recording equipment devices are kept and maintained; (5) the location and rooms where nay massage bed is located; (6) any room with art drawn by Defendant Khowsrow Benji; (7) the kitchen; (8) the living room; (9) the dining room; (10) the restroom; (11) any and all common areas located in the house; and (12) the garage. (Mot., Akhavan Decl., Ex. A, p. 2 & Proof of Service.)

On November 14, 2023, the Benji Defendants served a response to the inspection demand, which only contains objections and no substantive responses. (Mot., Akhavan Decl., Ex. E, p. 2 & Proof of Service.)

3. Parties’ Arguments

Plaintiff Tinoco Bucio advances various arguments in favor of inspection. Plaintiff argues that despite multiple efforts to meet and confer regarding the issue, the Benji Defendants refuse to allow the site inspection, and similarly refuse to provide any dates of availability permitting Plaintiff to inspect said premises. Plaintiff argues that a valid inspection demand was served on the Benji Defendants and that most if not all claims and allegations in this matter bear a relationship to the places for which inspection is sought, e.g., the sexual harassment alleged against Defendant Khowsrow Benji. Plaintiff argues that an inspection is necessary to establish an accurate representation of the details surrounding her employment with Defendants. As stated by Plaintiff: “The working environment Plaintiff worked in, the comments she was subjected to, and the interactions she had with her employers are directly relevant to her claims, establishing the right to a site inspection. This information is not only crucial to Plaintiff's case[] but will also serve as the basis for expert testimony.” Last, Plaintiff argues that an unavailability objection is not a proper excuse for not proceeding with an inspection. (Mot., pp. 6-8.)

The separate statement elaborates on the reasons for compelling an inspection, including arguments to the effect that: “An inspection of the site of Plaintiffs’ work and photographs or video derived therefrom will provide invaluable evidence at trial. It will allow Plaintiff to prepare diagrams, photographic representations of rooms involved in Plaintiffs’ claims, and to provide context for Plaintiff’s claims. These depictions will be relevant to, for instance, Plaintiff’s claims of sexual battery insofar as they claim that Defendant Khowsrow Benji made sexual advances toward Plaintiff by attempting to rub her genitalia with the cream, forcibly kissing her, placing his hand next to her genitalia while she was standing on a ladder trying to work, as outlined in Plaintiff’s Complaint After Plaintiff’s complaints to Defendant Anna Benji, cameras were allegedly installed in the living room and offices, placed in the ‘massage area’ of the home, which is the living room, and in the couple of rooms used as offices and thereafter, Defendant Khowsrow Benji moved the massage table to the Defendants’ bedroom.” (Mot., Separate Statement, pp. 5-6.)

In opposition, the Benji Defendants advance various arguments for denying Plaintiff’s motion. The Benji Defendants argue that this motion was filed in excess of the 45-day statutory timeframe set out in Code of Civil Procedure section 2031.310, subdivision (c), with (1) the trigger date as November 14, 2023, (2) the time period of December 14, 2023, to January 9, 2023, being what amounts to a tolling period triggered by Plaintiff’s prior motion to compel inspection and ended by the Court’s denial of that motion on procedural grounds on January 9th, and (3) expiration of the 45-day statutory timeframe, as extended by two court days for electronic service, as of January 9, 2024, prior to the filing of this motion on February 21, 2024. The Benji Defendants argue that Plaintiff has failed to show good cause for the inspection because she has not shown how admissible evidence would result from an inspection of the premises. More specifically, the Benji Defendants argue that Plaintiff has failed to show the relevant and specific facts justifying an inspection of 11 rooms on the premises—the massage room being excluded, with Defendants agreeing to an inspection of the massage room. The Benji Defendants also attack the moving papers’ separate statement for failure to itemize each individual request for inspection. Last, the Benji Defendants argue that Plaintiff has not shown a compelling interest that overcomes the right to privacy in their home afforded by the California Constitution. (Opp’n, pp. 4-7 & p. 7, fn. 2.)

In reply, Plaintiff Tinoco Bucio first argues that the opposition was not timely served and should thus not be considered. Plaintiff also argues that Plaintiff satisfied the 45-day timeframe requirement by filing her initial motion to compel inspection within the 45-day window. Plaintiff adds that after this Court denied the initial motion to compel inspection, without prejudice, Plaintiff subsequently sought to meet and confer on the inspection and, when those efforts proved not to be fruitful, filed the motion now before the Court. Plaintiff also argues that the Legislature cannot have intended the result that the Benji Defendants advanced in relation to the 45-day timeframe. Last, Plaintiff argues that the moving papers showed good cause for inspection, including in counsel’s declaration and in the separate statement. (Reply, pp. 1-4.)

4. Court’s Determination

a. Preliminary Discussion – Consideration of Untimely Opposition

Here, the Benji Defendants object to consideration of the opposition on the ground that opposition was untimely filed. (Reply, p. 1.)

The Benji Defendants are correct in arguing that the opposition was filed one court day late, on March 22, 2024, rather than on March 21, 2024, where the latter date was the statutorily applicable opposition date as nine court days prior to this hearing date.

However, the Court may consider late-filed papers where insufficient prejudice arises from consideration of the opposition. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) Here, the reply argues the points on the merits, and oral argument will permit moving party’s counsel to further argue against the points made in the opposition. Neither has a request for continuance been made to address any prejudice, such that it may be, arising from an opposition that was served a single court day late.

The Court thus considers the opposition on the merits.

b. Preliminary Discussion – 45-Day Statutory Requirement in Code Civ. Proc., § 2031.210, subd. (c)

The 45-day timeframe for motions to compel further inspection, production, etc., is triggered only in relation to “verified response[s]” and “supplemental verified response[s].” (See Code Civ. Proc., § 2031.310, subd. (c).) By their very nature, objection-only responses to discovery requests do not involve “verified responses” of any kind because objections are signed by counsel with no oath requirement, whereas substantive responses to discovery requests must be signed under oath by the party to whom the inspection, production, or other similar demand was made. (Code Civ. Proc., § 2031.250, subds. (a), (c).)

As a result, this argument is unavailing.

Because the January 9, 2024, order was a denial without prejudice, the Court has not restricted Plaintiff’s ability to bring this motion.

c. Substantive Discussion - Inspection Demand No. 1

Here, because the Benji Defendants have agreed to an inspection of the massage room, the Court GRANTS Plaintiff’s motion as to Inspection Demand No. 1. (Opp’n, p. 7, fn. 2.)

d. Substantive Discussion - Inspection Demand Nos. 2-12

i. Relevance

“For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)

“A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it.” (Code Civ. Proc., § 2031.010, subd. (d).)

The discovery sought here--in addition to the massage room to which the defendants concede above--is an inspection of (2) the master bedroom; (3) the audio and visual room; (4) the location and rooms where all surveillance cameras, video, and recording equipment devices are kept and maintained; (5) the location and rooms where any massage bed is located; (6) any room with art drawn by Defendant Khowsrow Benji; (7) the kitchen; (8) the living room; (9) the dining room; (10) the restroom; (11) any and all common areas located in the house; and (12) the garage (Mot., Akhavan Decl., Ex. A, p. 2)— relevant.

The Court determines this information is relevant.

As paraphrased from the moving papers’ separate statement, an inspection of the Benji Defendants’ home and photographs or video derived therefrom will allow Plaintiff to prepare diagrams and photographic representations of rooms involved in Plaintiffs’ claims and to provide context for Plaintiff’s claims, where the Benji Defendants installed cameras in the living room (former massage room) and offices and in some the other rooms used as offices. (Mot., Separate Statement, pp. 5-6.)

The FAC alleges that incidents of sexual harassment took place in the home of the Benji Defendants during Plaintiff’s employment there, that Plaintiff complained of Defendant Khowsrow Benji’s harassment to the Benji Defendants, that the Benji Defendants thereafter installed cameras in different parts of the home, and that the Benji Defendants ignored Plaintiff’s Complaints. (See, e.g., FAC, ¶¶ 17-17(f).)

An inspection of the premises would allow for a determination of the locations of the cameras installed in the household, the range of view for the cameras, and the equipment for the cameras, which, depending on the installation dates of the cameras, could show actionable conduct if camera footage for those dates and times was recorded.

Though the opposition argues that the separate statement is not sufficiently particularized as to each of the 12 inspection demands, the Court finds that the arguments made by Plaintiffs generally encompassed all 12 of the identified areas as areas where allegations connected to this action arose, thus showing general relevance to all inspection demands.

ii. Right to Privacy

The Benji Defendants are correct in arguing that they have a right to privacy in their home. A person claiming a violation of the constitutional right to privacy under California Constitution art. I, § 1, must establish three threshold elements: (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest. (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 (Lewis).) And here, such an interest arises in a person’s residential home. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 212.)

iv. Balancing Competing interests

“While the filing of the lawsuit by petitioner may be something like issuing a fishing license for discovery, as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information. Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery. (Britt v. Superior Court [(1978) 20 Cal.3d 844,] 852-853[] … [(Britt)].) ‘When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery. [Citations.]’ (Harris v. Superior Court (1992) 3 Cal.App.4th 661[] … [(Harris)].)” (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387 (Tylo).)

To determine whether an intrusion of the right to privacy is justified, the court must balance the right of litigants to discover relevant facts against the privacy interests of persons subject to discovery. (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.) The showing required to overcome a privacy right depends on the nature of the privacy right asserted. (Hill v. NCAA (1994) 7 Cal.4th 1, 34-35 (Hill); Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1403.)

The compelling interest standard holds that a right to privacy that involves personal autonomy can only be overcome by a compelling interest in the information subject to the right to privacy, where personal autonomy involves, for example, physical autonomy and autonomy in certain decisions: “… e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships.” (Hill, supra, at p. 34 [quoted language and compelling interest standard]; Williams v. Superior Court (2017) 3 Cal.5th 531 [discussing limitation of compelling interest standard to personal autonomy].)

In contrast, the balancing of interests standard applies where the privacy interest is less central or in bona fide dispute, a general balancing test must be used. (Lewis, supra, 3 Cal.5th at p. 572; see e.g., Hill, supra, at p. 34 [claim that drug-testing program violated privacy rights of college athletes was evaluated using general balancing test]; Department of Fair Empl. & Hous. v. Superior Court (2002) 99 Cal.App.4th 896, 903-904 [claim that disclosure of rental applications and agreements would violate privacy rights of current and former tenants and rental applicants was evaluated using general balancing test].) Under this test, the invasion of a privacy interest does not violate the state constitutional right to privacy if the invasion is justified by a legitimate competing interest. (Lewis, supra, at p. 573; Hill, supra, at p. 38.) The general balancing test applies to most privacy interests. (See Lewis, supra, at p. 573; Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 288.)

“The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims. (Harris v. Superior Court, supra, 3 Cal.App.4th at p. 665[] ….)” (Tylo, supra, at p. 1387.)

iv. Right to Discovery in the Instant Circumstances

The Court finds that Plaintiff has shown sufficient good cause for inspection of the remaining eleven portions of the subject premises, and that the objection-only responses served by the Benji Defendants and the opposition arguments made by the Benji Defendants do not advance sufficient grounds for the Court to make a contrary determination.

To show a compelling need, the discovering party must demonstrate that the information sought is directly relevant and essential to the fair resolution of the legal proceeding. (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425 [Alch].)

In her reply, Plaintiff Tinoco Bucio directs the Court to various portions of the moving papers and the pleadings that show good cause for inspection on the ground that, among other things, “all of the aforementioned locations constitute locations where Plaintiff was required to perform her tasks with Defendants, and where the relevant claims arose.” (Reply, p. 3, citing Mot., Akhavan Decl., ¶ 2 [briefly detailing scope and relevancy of inspection demand].)

And the Court notes that while people have a right to privacy in their home, that privacy is diminished here because alleged actionable conduct by the homeowner took place in the home, as alleged in the Complaint here. (See, e.g., FAC, ¶¶ 17-17(f).)

Under these circumstances and based on the relevance discussion above, the Court finds that whichever standard applies, an inspection of the Benji Defendants’ home is proper.

The parties should discuss whether a protective order would be appropriate for any videotape that may depict the inspection, and if one has not already been signed, submit the applicable protective order to the Court to protect Defendants’ privacy rights.

Plaintiff Tinoco Bucio’s motion is thus GRANTED as to Inspection Demand Nos. 2-12.

C. Sanctions: DENIED.

1. Legal Standard

Except as related to certain ESI production, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.320, subd. (b).)

2. Court’s Determination

Here, the Court DENIES the cross requests for sanctions by the parties. (Mot., pp. 8-9.) 8-10; Reply, pp. 5-6.)

Given the fundamental right to privacy issue at hand, reasonable minds could differ as to the outcome of this ruling, for which reason the imposition of sanctions on either Plaintiff or the Benji Defendants would be unjust. 

V. Conclusion

A. Motion to Compel Inspection [Plaintiff Tinoco Bucio]

Plaintiff Aidee Jacqueline Tinoco Bucio’s Motion for an Order Compelling the Site Inspection of the Premises of Defendants Khowsrow Benji and Anna Benji is GRANTED.

An inspection of the subject premises is ORDERED to take place within 30 days of this order.

The parties shall meet and confer within the following week and appear at an Order to Show Cause re: Inspection Date hearing to take place at 8:30 AM on April 9, 2024. If the parties have not agreed to a date for inspection, the Court will set the date of inspection after conferring with counsel.

B. Sanctions [Plaintiff Tinoco Bucio]

Plaintiff Aidee Jacqueline Tinoco Bucio’s Request for Monetary Sanctions of $1,800 Against Defendants and Their Counsel of Record, Steven M. Kroll, and Bent Caryl & Kroll LLP is DENIED.

C. Sanctions [Defendants Khowsrow Benji and Anna Benji]

Defendants Khowsrow Benji and Anna Benji’s opposition request for sanctions is DENIED.