Judge Audra Mori, Case 21STCV36943 2022-07-25 Tentative Ruling

Plaintiffs Kjersti Flaa (“Plaintiff”) filed this action against Defendants Alex Kotlarenko and Marina Kotlarenko (collectively, “Defendants”) for damages arising from a dog bite incident.

On April 12, 202, Defendants filed the instant motion to compel further responses to form interrogatories, set one, against Plaintiff. The parties then participated in an Informal Discovery Conference on July 7, 2022, where after the court conferred with Plaintiff’s and Defendants’ counsel about the discovery issues, the parties were ordered to file a joint statement regarding the remaining issues before this hearing.

The parties have filed a joint statement which shows that Defendants are seeking to compel a further response to only one interrogatory, form interrogatory 11.1. Form interrogatory 11.1 provides:

Except for this action, in the past 10 years have you filed an action or made a written claim or demand for compensation for your personal injuries? If so, for each action, claim, or demand state:

(a) the date, time, and place and location (closest street ADDRESS or intersection) of the INCIDENT giving rise to the action, claim, or demand;

(b) the name, ADDRESS, and telephone number of each PERSON against whom the claim or demand was made or the action filed;

(Mot. Exh. B.) In response, Plaintiff stated, “Yes. Plaintiff has signed a confidentiality agreement and cannot violate the terms of such agreement, and thus cannot disclose the contents of this claim. However, Plaintiff can state that none of the same injuries in this dog bite case were claimed in the previous claim.” (Id. at Exh. C.)

Defendants contend Plaintiff’s response is inadequate and a further response should be compelled for Defendants to fully evaluate Plaintiff’s claims and prepare their defense. Defendants argue that information regarding prior injuries suffered by Plaintiff is relevant, as the information may show that a claimed condition has a cause predating the incident in this case. Defendants aver that the fact that the prior claim was resolved by way of a confidential settlement does not make the information irrelevant or undiscoverable.

Plaintiff’s position is that responding to the interrogatory will violate the terms of the confidential agreement Plaintiff entered into. Plaintiff contends that Defendants have the necessary information they seek from other of forms of discovery, including from subpoenaing records from Kaiser Permanente that list the injuries relating to the prior car accident case the agreement concerns. Further, Plaintiff asserts that there are no preexisting bites or injuries relating to the claims in this matter, and that once any information is released, this will lead to Defendants seeking more confidential information unrelated to this case.

Defendants, in reply, argue that Plaintiff has put her physical condition at issue and should not be able to hide behind the agreement. Defendants contend that a verified responses is necessary in case Plaintiff later changes her testimony.

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35.)

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at 552.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

The California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.” (Id. at 557.) It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Ibid.) A compelling need for the discovery is not always required. (Ibid.) “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

A right of privacy exists as to a party's confidential financial affairs, even when the information sought is admittedly relevant to the litigation. (Cobb v. Sup. Ct. (1979) 99 Cal.App.3d 543, 550; see also Fortimato v. Sup. Ct. (2003) 114 Cal.App.4th 475, 481.) “ ‘The privacy of a settlement is generally understood and accepted in our legal system, which favors settlement and therefore supports attendant needs for confidentiality.’ [Citation.] Routine public disclosure of private settlement terms would ‘chill the parties’ ability in many cases to settle the action before trial. Such a result runs contrary to the strong public policy of this state favoring settlement of actions.’ ” (Monster Energy Co. v. Schecter (2019) 7 Cal.5th 781, 793.) Moreover, “a private settlement agreement is entitled to at least as much privacy protection as a bank account or tax information…” (See Hinshaw, Winkler, Draa, Marsh & Still v. Sup.Ct. (1996) 51 Cal.App.4th 233, 241 [disapproved by Williams v. Sup.Ct. (2017) 3 Cal.5th 531, 557, fn. 8, to extent it requires party seeking discovery of private information to always establish compelling interest or need without regard to other considerations articulated in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1].) “Thus, given the private nature of a confidential settlement of a lawsuit, the burden rests on the proponents of discovery of this information … to justify compelling production of this material. They must do more than show the possibility it may lead to relevant information.” (Id. at 739.)

Here, in response to form interrogatory 11.1 asking whether Plaintiff has filed an action or made a written claim for compensation for personal injuries, Plaintiff responded that she has signed a confidentiality agreement and cannot disclose the contents of the claim. The confidential settlement agreement entered into by Plaintiff is entitled to privacy protection. (Hinshaw, supra, 51 Cal.App.4th at 242.) As Plaintiff argues, the agreement also implicates third-party privacy rights concerning the other person/s involved in the agreement.

Defendants, in moving to compel further responses to the requested information involving the confidential agreement, primarily argue that “information regarding prior injuries suffered by plaintiff is relevant and discoverable as it may impact plaintiff’s injury claims in this case since evidence of prior injuries may show a claimed condition has a cause pre-dating the accident being litigated.” (Joint Statement at p. 2:6-9.) Defendants attest they do not care to receive the confidentiality agreement. Defendants offer no reasons for why any information concerning the third party involved in the confidential agreement is relevant or what interests compelling information concerning the third-party serves.

Therefore, as to form interrogatory 11.1(b), requesting the name, address, and telephone number of each person against whom the claim or demand was made, the motion is denied. (Williams, 3 Cal.5th at 552, 554 [“While less sensitive than one's medical history or financial data, ‘home contact information is generally considered private.’ ”].)

As to form interrogatory 11.1(a), requesting information concerning the date, time, and place and location of the incident giving rise to the underlying claim, Plaintiff indicates that the information is already contained in the Kaiser records Defendants subpoenaed, and that this matter does not concern a car accident. Plaintiff, thus, indicates that this information has already been provided to Defendants, and Plaintiff does not articulate how providing this information would violate the confidential agreement. Consequently, Plaintiff does not establish a legally protected privacy interest in the information requested by form interrogatory 11.1(a).

The motion is granted as to form interrogatory 11.1(a). Plaintiff is ordered to serve a further response to this interrogatory within 20 days.

As to form interrogatory 11.1(c), (d), and (e), Plaintiff indicates in the joint statement that she can provide a further response with additional information to these subparts. As Defendants argue, they are entitled to verified discovery responses, and Plaintiff does not establish a legally protected interest in the information being requested.

The motion is granted as to form interrogatory 11.1(c), (d), and (e). Plaintiff is ordered to serve a further to interrogatories 11.1(c), (d), and (e) within 20 days.

As to form interrogatory 11.1(f), requesting a description of the injury concerning the underlying claim, Plaintiff again asserts that the information is contained in the Kaiser records. Plaintiff does not dispute that the information is relevant, nor does Plaintiff contend that she has a legally protected privacy interest in the information. Furthermore, Plaintiff does not articulate how providing this information would violate the confidential agreement entered into concerning the underlying car accident. Defendants, however, aver the information is relevant to determining whether any conditions claimed by Plaintiff in this action were caused by something other than the dog bite in this action.

Additionally, to the extent that Plaintiff asserts the information is located in Kaiser’s records concerning Plaintiff and intends to refer Defendants to such records, Plaintiff must serve a response that complies with CCP § 2030.230. The response must be insufficient detail as to permit Defendants to determine where in the records the response to the interrogatory can be ascertained. If Plaintiff wishes to respond to the interrogatories by referring to writings, Plaintiff must specify in detail where in the writings, including medical records, Defendants can locate and identify the information responsive to the interrogatory.

The motion is granted as to form interrogatory 11.1(f). Plaintiff is ordered to serve a further response to this interrogatory within 20 days.

Both parties indicate in the joint statement that no sanctions are being sought, so no sanctions are awarded.

The motion is denied as to form interrogatory 11.1(b). The motion is granted as to 11.1(a), (c), (d), (e), and (f). Plaintiff is ordered to serve further responses to these subparts within 20 days.

Hon. Audra Mori

Judge of the Superior Court