Judge: Cynthia A Freeland, Case: 37-2022-00033658-CU-FR-NC, Date: 2023-09-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 31, 2023

09/01/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2022-00033658-CU-FR-NC WALTER VS THOMPSON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 06/26/2023

Defendants Jeffrey Thompson and Center for Neuroacoustic Research, L.L.C. ('CNR' and, together with Dr. Thompson, 'Defendants')'s motion to compel Plaintiff David D. Walter ('Plaintiff') to provide further responses to Special Interrogatories (Set One), and for sanctions, is granted in part and denied in part.

Any party may propound written interrogatories relating to another party's facts, contentions, witnesses, or documents. See Cal. Code Civ. P. §§ 2030.010(a)-(b). The responding party must answer each interrogatory in as complete and straightforward a manner as the information reasonably available to him or her permits. See Cal. Code Civ. P. § 2030.220(a). If he or she cannot respond completely, he or she must do so to the extent possible. See Cal. Code Civ. P. § 2030.220(b). If he or she lacks personal knowledge sufficient to fully respond, he or she must so state, but must make a reasonable and good faith effort to obtain the information. See Cal. Code Civ. P. § 2030.220(c). If only part of an interrogatory is objectionable, the remainder must be answered. See Cal. Code Civ. P. § 2030.240(a).

California Code of Civil Procedure ('CCP') § 2030.300 provides that '[o]n 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[;] [or] (3) An objection to an interrogatory is without merit or too general.' Cal. Code Civ. P. §§ 2030.300(a)(1)-(3). The propounding party is entitled to demand answers to his or her interrogatories as a matter of right and without a prior showing. See Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541 (quoting West Pico Furniture Co. of Los Angeles v. Sup. Ct. In and For Los Angeles County (1961) 56 Cal. 2d 407, 422). The responding party bears the burden of justifying any objection and failure to respond. See Williams, 3 Cal. 5th at 541 (citing Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221).

At issue is Plaintiff's response to Special Interrogatory No. 1, which asks Plaintiff to 'IDENTIFY the 'close family member' as contended in Paragraph 10 of YOUR COMPLAINT as well as providing the family relationship you have with the 'close family member' (i.e., brother, sister, aunt, nephew, etc.).' See Defendants' Statement of Undisputed Responses, p. 2. Plaintiff has responded as follows: Plaintiff objects to this interrogatory on the grounds that it calls for information that is protected from disclosure by attorney/client privilege. The Plaintiff and the 'close family member' are in an attorney/client relationship in this matter and in other matters. The 'close family member' consulted with the Plaintiff about joining this lawsuit as an additional plaintiff and asserting additional counts against Calendar No.: Event ID:  TENTATIVE RULINGS

2989045 CASE NUMBER: CASE TITLE:  WALTER VS THOMPSON [IMAGED]  37-2022-00033658-CU-FR-NC Defendants. At present, the 'close family member' does not intend to join this lawsuit or intend to testify in this lawsuit.

Ibid.

Initially, to the extent Plaintiff asserts a potential violation of HIPAA, the court respectfully disagrees that he has standing to raise such an objection because he, as his close family member's counsel, does not fall under the statutory definition of a 'covered entity.' The attorney-client privilege, codified at California Evidence Code § 954, provides that 'the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.' Cal. Evid. Code § 954. For purposes of the attorney-client privilege, a 'confidential communication between client and law' is defined as 'information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.' Cal. Evid. Code § 952. Plaintiff, as the party claiming the privilege, bears the initial burden of demonstrating preliminary facts necessary to support its exercise, viz., a communication made in the course of the attorney-client relationship. See Wellpoint Health Networks, Inc. v. Sup. Ct. (1997) 59 Cal. App. 4th 110, 123. If Plaintiff meets his initial burden of establishing a prima facie privilege claim, the communication is presumed to have been made in confidence and the burden shifts to Defendants to establish that the communication was not confidential or that it does not apply for other reasons. See Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal. 4th 725, 733.

In this case, the attorney-client privilege does not apply to Special Interrogatory No. 1 to the extent Plaintiff relies upon confidential communications between himself and his client. Simply put, Defendants are not seeking the disclosure of any confidential communications between Plaintiff and his client/close family member. Rather, Special Interrogatory No. 1 merely seeks the close family member's identity as well as that individual's familial relationship to Plaintiff. That being said, Defendants are correct that, as a general rule, 'the identity of an attorney's client is not considered within the protection of the attorney-client privilege.' People ex rel. Herrera v. Stender (2012) 212 Cal. App. 4th 614, 648. However, an exception to this rule 'arises where known facts regarding an attorney's representation are such that the disclosure of the client's identity would betray personal, confidential information regarding the client.' Ibid. For example, a client's identity may be treated as privileged information if such disclosure would reveal the client's medical conditions/ailments/problems. See Rosso, Johnson, Rosso & Ebersold v. Sup.

Ct. (1987) 191 Cal. App. 3d 1514, 1518-1519.

The operative pleading alleges that Plaintiff learned of Dr. Thompson and his company, CNR, through a close family member. See First Amended Complaint ('FAC'), ¶ 10. The family member suffered from post-traumatic stress disorder and sleep loss resulting from early childhood and adult trauma. Ibid. The family member believed that Defendants' Automated Biotuning System ('ABS') would provide relief from the family member's medical conditions. Ibid. In October 2020, Plaintiff and Dr. Thompson spoke telephonically, during which time Dr. Thompson represented that there were scientific studies showing that ABS was effective in reducing trauma, PTSD, and sleep loss issues. Ibid., ¶¶ 14-15. Based on Dr.

Thompson's representations, Plaintiff believed that he could help his close family member as well as law students and other attorneys who suffer from trauma, PTSD, and sleep loss issues. Ibid., ¶ 16. Plaintiff ultimately entered into a contract to purchase an ABS. Ibid., ¶ 17. However, Plaintiff later informed Dr.

Thompson that, despite months of ABS sessions, Plaintiff's close family member reported no improvement with his or her trauma and PTSD-related symptoms and instead began experiencing Calendar No.: Event ID:  TENTATIVE RULINGS

2989045 CASE NUMBER: CASE TITLE:  WALTER VS THOMPSON [IMAGED]  37-2022-00033658-CU-FR-NC serious emotional distress and intense suicidal thoughts in addition to the sleep loss and PTSD symptoms. Ibid., ¶ 33. Plaintiff alleges as part of his CLRA claim that Defendants violated California Civil Code § 1770(a) when they represented to Plaintiff that ABS had scientific approval/support as well as characteristics, uses, and benefits that it did not have, including that it could be used to address trauma, PTSD, and sleep loss. Ibid., ¶ 47.

The court agrees with Plaintiff that the attorney-client privilege applies in this instance because revealing the close family member's identity and relationship to Plaintiff would necessarily disclose his or her medical conditions, i.e., his or her PTSD and sleep loss resulting from early childhood and adult trauma.

At the same time, however, Defendants have demonstrated a compelling need for disclosure of this information despite Plaintiff's close family member having a legally protected privacy interest in her medical condition. See Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 552. As set forth above, Plaintiff has put his close family member's identity and medical conditions at issue in this case. Defendants should be permitted to conduct discovery on who the family member is, why that family member believed the ABS could provide him or her relief, and whether he or she is a family member for purposes of Plaintiff's CLRA claim. That being said, case law permits the court to 'effectively use 'ad hoc measures from [its] equitable arsenal,' including techniques such as 'sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings,' so as to permit the action to proceed.' People ex rel. Herrera, 212 Cal. App. 4th at 647. Defendants have indicated a willingness to enter into a protective order related to Plaintiff's close family member's identity and any medical information that is discovered. The court agrees that a protective order is warranted under the circumstances. The parties are directed to meet and confer on this issue in advance of the hearing.

The court must impose sanctions '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.' Cal. Code Civ. P. § 2030.300(d). The party subject to sanctions bears the burden of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal, App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, the court finds that Plaintiff has demonstrated that he was substantially justified in objecting to Special Interrogatory No. 1. The court further finds that the imposition of sanctions against either party is not warranted under the totality of the facts and circumstances. Accordingly, the court denies the parties' respective sanctions requests.

In light of the foregoing, the court: (1) grants the motion to compel subject to the issuance of an appropriate protective order, and (2) denies the parties' respective sanctions requests. The parties shall attend the hearing prepared to discuss the parameters of a protective order.

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