Judge: Christopher K. Lui, Case: 20STCV37498, Date: 2023-09-13 Tentative Ruling

Case Number: 20STCV37498    Hearing Date: September 13, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that she was sexually harassed and raped by Defendant David, for whom Plaintiff worked. Plaintiff was thereafter fired.

Defendant Alkiviades David a.k.a. Alki David moves to compel further responses to interrogatories and requests sanctions against Plaintiff.

TENTATIVE RULING           

Defendant Alkiviades David a.k.a. Alki David’s motion to compel further responses to special interrogatories Nos. 34 and 35 is GRANTED in part.  Plaintiff must respond as to the period November 2015 to the present.

            Defendant’s request for sanctions against Plaintiff only is GRANTED in the reduced amount of $2,175. Sanctions are to be paid to Defendant’s counsel within 20 days.

ANALYSIS

Motions To Compel Further Responses To Interrogatories

Request For Judicial Notice

            Defendant requests that the Court take judicial notice of the following:

1. On October 5, 2021, Jacke A. Abboud, Esq., Counsel for Petitioner in In Re Marriage of Chouiery (LASC Case No. 19STFL0582) filed a Further Reply Declaration of Jackie A. Abboud Re RFO to Compel and Re Respondent’s Non-Compliance with Court Orders (“Abboud Declaration”). Attached as Exhibit 6 to the Abboud Declaration are Respondent’s Responses to Form Interrogatories along with a copy of Respondent’s Schedule of Assets and Debts. A copy of the Abboud Declaration downloaded from the LASC website is attached hereto as Exhibit A. The relevant portions are on pages 9, 35, and 39 of the attached pdf.  

            The request is DENIED. This document is not relevant to this motion.

            The Court need only take judicial notice of relevant materials. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled in part on other grounds noted in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The Court may deny a request for judicial notice of material unnecessary to its decision. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 713.)

Discussion

            Defendant moves to compel further responses to special interrogatories propounded upon Plaintiff, and requests the imposition of sanctions.

            Civ. Proc. Code, § 2030.300 provides:

(a) 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:

(1) An answer to a particular interrogatory is evasive or incomplete.

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

(3) An objection to an interrogatory is without merit or too general.

(b)

(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.

(d) 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 a further response to interrogatories, 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.

(e) If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

     (Civ. Proc. Code § 2030.300.)

            This motion was filed and served on August 21, 2023, which is within the 45-day deadline measured from Plaintiff’s service of supplemental responses on July 20, 2023.

            Defendant’s counsel engaged in sufficient meet and confer efforts prior to ringing this motion. (See Declaration of Jillian P. Harris, ¶¶ 6 – 10; Exhs. F & G.)

            The Court will address the special interrogatories set forth in the separate statement:

¿        Special Interrogatories Nos. 34, 35: GRANTED in part.

            Defendant is entitled to discovery the identity of witnesses. Plaintiff must respond as to the period November 2015 to the present. Plaintiff alleges that she was hired in November 2015, and soon thereafter, AD snuck up behind her and cut off a lock or her hair. (1AC, ¶¶ 26, 27.)

            “Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter. . . .”  (Code Civ. Proc., § 2017.010.)

Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations: “The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., § 2020.010, subd. (a).) The party's ability to subpoena witnesses presumes that he has the witnesses' contact information.” (Dixon, at p. 443.)  

(Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249.)

            “[A] percipient witness's willingness to participate in civil discovery has never  [*1252]  been considered relevant—witnesses may be compelled to appear and testify whether they want to or not.” (Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1251-52.)

            Further, to the extent Plaintiff’s medical records might be protected from discovery, Plaintiff must still identify such documents:

In short, a responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. (Smith v. Superior Court (1961) 189 Cal. App. 2d 6, 12 [11 Cal. Rptr. 165]; see also, Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601–602 [208 Cal. Rptr. 886, 691 P.2d 642].) Interrogatories may be used to discover the existence of documents in the other party’s possession. (See e.g., Fellows v. Superior Court (1980) 108 Cal. App. 3d 55, 59–60 [166 Cal. Rptr. 274].) If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783 [149 Cal. Rptr. 499].)  Thus, we agree with petitioners that a “privilege log” is unnecessary with regard to answering interrogatories seeking the identification of documents. (See Smith v. Superior Court, supra, 189 Cal. App. 2d at p. 12.)

(Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293.)

            If Defendant thereafter seeks production of those medical records that are unrelated to Plaintiff’s alleged emotional distress, then Plaintiff may object and bring a motion for a protective order or to quash the deposition subpoenas as to the documents that Defendant seeks.  That is an issue to be taken up another day.  

            Plaintiff’s objection on the ground of vagueness and ambiguity is OVERRULED as without merit.=

Plaintiff’s objection on the ground of privacy is OVERRULED.

A plaintiff is recognized as waiving physician-patient and psychotherapist-patient privileges to the extent he or she has put his or her medical or psychological condition in issue in a lawsuit. (Evid. Code, §§ 996, 1016; In re Lifschutz (1970) 2 Cal.3d 415, 435 [85 Cal. Rptr. 829, 467 P.2d 557].)

(Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1068.) 

Here, because of the waiver of Plaintiff’s privacy rights as to emotional distress she suffered from Defendant’s alleged conduct by placing such at issue. (See 1AC, ¶¶ 73, 78, 84, 90, 96, 102, 107, 112, 118, 123.)

Defendant only seeks identification of treating medical providers. It is not until Defendant seeks production of documents that the Court must then conduct the privacy balancing test set forth in Williams.

The California Supreme Court has held that a compelling interest or compelling need is not always required in order to discover private information—the Court must consider the factors articulated in Hill v. National Collegiate Athletic Assn. (1994)  7 Cal.4th 1 to determine the seriousness of the privacy invasion and the strength of the countervailing interest required to overcome that invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531.)

     In ruling upon a privacy objection in the contact of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams, supra, 3 Cal.5th at 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.)  The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.) If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure serves.  (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.  (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling state interest” or “compelling need[1]” simply because discovery of any facially private information is sought.  (Id. at 556-57.)

Plaintiff’s objection on the ground that the interrogatory seeks identities of expert witnesses and expert witness materials is OVERRULED. The interrogatory seeks identification of percipient witnesses, not expert witnesses.

            Plaintiff’s objection the ground of attorney work-product privilege is OVERRULED. Plaintiff’s attorney did not prepare the medical records.

            Defendant’s request for sanctions against Plaintiff only[2] (see Notice of Motion at Page 2:13) is GRANTED in the reduced amount of $2,175 (3 total hours at $725/hour—see Declaration of Jillian P. Harris, ¶ 10.) Sanctions are to be paid to Defendant’s counsel within 20 days.