Judge: David A. Rosen, Case: 22STCV12219, Date: 2023-04-14 Tentative Ruling
Case Number: 22STCV12219 Hearing Date: April 14, 2023 Dept: E
Hearing Date: 04/14/2023 – 10:00am
Case No: 22STCV12219
Trial Date: 08/07/2023
Case Name: JOHN BL DOE v. SERBIAN ORTHODOX DIOCESE OF WESTERN AMERICA, et al.
TENTATIVE
RULING ON MOTIONS TO COMPEL FURTHER RESPONSES
Moving
Party: Defendants, Serbian Orthodox Diocese of Western America, The Brotherhood
of St. Herman of Alaska, John Christensen, and Thomas Dove (collectively
Defendants)
Responding Party: Plaintiff, John Doe
Proof
of Service Timely Filed (CRC Rule 3.1300):Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Moving
Papers: Motion; Decl. Mari F. Henderson; Proposed Order; Separate Statement;
Notice of Lodging Under Seal; Joint Stipulation and Protective Order;
Opposition
Papers: Opposition; Separate Statement; Jane E. Reilly Declaration [Only document not filed under
seal]
Reply
Papers: Reply; Supplemental Separate Statement; Notice of Lodging Under Seal;
Supplemental Declaration of Mari F. Henderson
RELIEF
REQUESTED
Defendants
move this Court for an order compelling Plaintiff, John BL Doe, to provide by
April 28, 2023 full and complete responses, as well as all responsive
documents, to Special Interrogatories (Set One) Nos. 5, 13, 14, 16, 17 and
Requests for Production Nos. 23, 25, and 26.
This motion is made pursuant to
Sections 2030.300 and 2031.320.
Defendants request that Doe and his
counsel, Manly, Stewart, & Finaldi, be sanctioned and ordered to pay
Defendants’ attorneys’ fees for their abuse of the discovery process under CCP
§2023.010 and 2023.030.
BACKGROUND
Defendants propounded the instant
discovery on August 30, 2022. Plaintiff provided responses on October 17, 2022.
Defendants’ counsel sent a meet and confer letter on November 16, 2022. Plaintiff
provided supplemental responses to the instant discovery on December 23, 2022.
The instant motion was filed and served by email on February 6, 2023.
Preliminary Matter
A motion
must be brought separately as to each discovery method at issue. The instant Motion should have been filed as two
separate motions and two filing fees paid.
Instead, Defendants filed only one motion to compel further responses to
two different discovery instruments: special interrogatories and requests for
production. “[P]ayment of filing fees is
both mandatory and jurisdictional.” (Hu
vs. Silgan Containers Corp. (1999) 70 Cal. App. 4th 1261,
1269.)
Although
the Opposition argues that the motion should be denied on the grounds that one
motion was filed instead of two, the Court does not find this argument
availing. Plaintiff cited no case law to support its argument that the motion
should be denied under this theory. In fact, the Plaintiff stated, without
citing any case law, that this Court has the discretion to deny Defendants’
motion on this ground. The Court will not deny this motion on these grounds.
Defendant
is ordered to pay the clerk the necessary filing fees forthwith.
ANALYSIS
45-Day Requirement
“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.” (CCP
§2030.300(c).)
Here, the instant motion is timely.
Meet and Confer
“A motion under subdivision (a) shall be
accompanied by a meet and confer declaration under Section 2016.040.” (CCP
§2030.300(b)(1).)
“A meet and confer declaration in support of a
motion shall state facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.” (CCP §2016.040.)
Here, moving party met and conferred about the
responses from Plaintiff in its November 16, 2022. (Decl. Henderson, ¶7, Ex.
F.)
In Opposition, Plaintiff argues that although
Defendants sent a meet and confer about the initial responses, Defendants did
not meet and confer with Plaintiff’s counsel regarding the Supplemental
Responses that were provided after the meet and confer.
Further in Opposition, Plaintiff argues that
this motion raises issues that Defendants never addressed in their November 16,
2022 letter, or at any other time.
[The Court notes that it is uncertain what
Plaintiff is referring to when Plaintiff argues that this motion raises issues
that Defendants never addressed in their November 16, 2022 meet and confer
letter. Plaintiff does not point out what issues Defendants did not address.]
In Reply, Defendants point out how Plaintiff
cites no law that Defendants were obligated to meet and confer again after
receiving supplemental responses. Further in Reply, Defendants argue that
Defendants did more than send a single letter prior to filing this motion;
Defendants argue that they met and conferred in person, sent a follow-up
letter, and emailed regarding specific defects in Plaintiff’s discovery
responses.
Here, the Court finds that the meet and confer
requirement was met.
LEGAL STANDARD - COMPEL FURTHER RESPONSES TO
INTERROGATORIES
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.
(CCP §2030.300(a).
If
a timely motion to compel has been filed, the¿burden is on the responding
party¿to justify any objection or failure fully to answer.¿(Coy v. Superior
Court (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further
responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000)
22 Cal.4th 245, 255.)
Furthermore,
to the extent there is any doubt in whether these records should be
discoverable, California’s liberal approach to discovery provides that doubt
should be resolved in favor of permitting discovery. (Pacific Tel. &
Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.)
The
party to whom interrogatories have been propounded shall respond in writing
under oath separately to each interrogatory by any of the following:
(1) An
answer containing the information sought to be discovered.
(2) An
exercise of the party’s option to produce writings.
(3) An
objection to the particular interrogatory.
(CCP
§2030.210(a).)
LEGAL
STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION
Under CCP § 2017.010, “any party may
obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action..., if the matter either is
itself admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” The
Section specifically provides that “[d]iscovery may relate to the claim or
defense of the party seeking discovery or of any other party to the action,”
and that discovery “may be obtained of the identity and location of persons
having knowledge of any discoverable matter, as well as of the existence,
description, nature, custody, condition and location of any document,
electronically stored information, tangible thing, or land or other property.”
CCP § 2031.310(a) provides that a party
demanding a document inspection may move for an order compelling further
responses to the demand if the demanding party deems that:
“(1) A statement of compliance with the demand is
incomplete.
(2) A
representation of inability to comply is inadequate, incomplete, or evasive.
(3)
An objection in the response is without merit or too general.”
Under CCP § 2031.310 (b)(1), “The
motion shall set forth specific facts showing good cause justifying the
discovery sought by the demand.”
The burden is on the moving party to
show both relevance to the subject matter and specific facts justifying
discovery. (Glenfed Develop. Corp. v. Superior Court (1997) 53
Cal.App.4th 1113, 1117. Once good cause
is established by the moving party, the burden then shifts to the responding
party to justify any objections made to document disclosure. (See Hartbrodt
v. Burke (1996) 42 Cal.App.4th 168, 172-174.)
DISCUSSION
The
Court notes that all moving, opposing, and reply papers were filed under seal –
with the exception of the Opposition Declaration of Jane E. Reilly. Therefore,
the Court will simply refer to the relevant interrogatories/requests by number
and will not be restating the interrogatories/requests, the responses, and the
supplemental responses.
In
Opposition the Plaintiff argued that the Court should not consider Defendants’
arguments about a privilege log or communications with members of the clergy
because these arguments were only in Defendants’ moving papers but were not in
Defendants’ separate statement. The Court notes it does not find Plaintiff’s
argument on this point convincing.
Further,
Defendants argue that Doe waived his claim of clergy-penitent privilege by
voluntarily disclosing these clergy-penitent communications to his counselor.
The Court does not find Defendants’ argument on this point convincing.
TENTATIVE
RULING SROG 5
Plaintiff’s
Objections to SROG 5 are overruled. Defendants’ motion to compel further
responses to SROG 5 is GRANTED, and Plaintiff is to provide verified, code
compliant further responses under oath within 20 days of this hearing.
TENTATIVE
RULING SROG 13
Defendants’
motion to compel further response to SROG 13 is GRANTED IN PART with the
exception that the Court is editing SROG 13 to state, “IDENTIFY all phone
numbers and accounts (including without limitation all email and social media
accounts) through which YOU have sent or received any COMMUNICATION RELATING TO
the ALLEGED INCIDENTS from March 2013 to the present, including but not limited
to the name of the service provider, YOUR username, the date of creation, the
date on which YOU last used the account or phone number, and (if applicable)
the date on which YOU disabled or otherwise terminated the account.”
Plaintiff’s
Objections to SROG 13 are overruled, except to the extent that the Court
limited the language of SROG 13 as indicated above.
Plaintiff
is to provide verified, code compliant further responses under oath within 20
days of this hearing.
TENTATIVE
RULING SROG 14
Defendants’
motion to compel further responses to SROG 14 is DENIED. The privacy of third
parties outweighs the possibility that this interrogatory could lead to the
discovery of admissible evidence. Second, the communications to and from family
members is not likely under Plaintiff’s custody and control and not
discoverable through him. Third, Plaintiff’s objection as to the interrogatory
being overly broad is well-taken.
TENTATIVE
RULING SROG 16
Plaintiff’s
Objections to SROG 16 are overruled. Defendants’ motion to compel further
responses to SROG 16 is GRANTED, and Plaintiff is to provide verified, code
compliant further responses under oath within 20 days of this hearing.
TENTATIVE
RULING SROG 17
Plaintiff’s
Objections to SROG 17 are overruled. Cases that Plaintiff cites in support of the
motion that religious affiliations are private are factually distinguishable from
this case. Defendants’ motion to compel further responses to SROG 17 is
GRANTED, and Plaintiff is to provide verified, code compliant responses under
oath within 20 days.
TENTATIVE
RULING RPD 23
Plaintiff’s
objections to RPD 23 are all overruled except as to the attorney/client,
work-product, and clergy-penitent privileges.
CCP
§2031.240 states:
(a) If only part of an item or category of item
in a demand for inspection, copying, testing, or sampling is objectionable, the
response shall contain a statement of compliance, or a representation of
inability to comply with respect to the remainder of that item or category.
(b) If the responding party objects to the demand
for inspection, copying, testing, or sampling of an item or category of item,
the response shall do both of the following:
(1) Identify with particularity any document,
tangible thing, land, or electronically stored information falling within any
category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the
specific ground for, the objection. If an objection is based on a claim of
privilege, the particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work product under
Chapter 4 (commencing with Section 2018.010), that claim shall be expressly
asserted.
(c) (1) If an objection is based on a claim of privilege or
a claim that the information sought is protected work product, the response
shall provide sufficient factual information for other parties to evaluate the
merits of that claim, including, if necessary, a privilege log.
(2) It is the intent of the Legislature to codify
the concept of a privilege log as that term is used in California case law.
Nothing in this subdivision shall be construed to constitute a substantive
change in case law.
(CCP §2031.240(a)-(c).)
Defendants argued on
page 11 of their motion in relevant part:
In
correspondence with Doe’s counsel on October 7, 2022, Defendants proposed both
parties produce privilege logs to reflect documents withheld or redacted on
privilege grounds prior to April 11, 2022, the date Doe filed his complaint. Henderson
Decl. Ex. W. This proposal is consistent with standard litigation practice. See,
e.g., Ritchie v. Sempra Energy (S.D. Cal. Aug. 4, 2014, No.
10CV1513-CAB(KSC)) 2014 WL 12638874, at *2 [parties rarely allowed “to
unilaterally dispense with pre-complaint logging”]. Doe subsequently produced a
privilege log reflecting communications with a separate attorney in February
2020, but failed to log any communications with any member of Manly,
Steward & Finaldi, his current firm. Henderson Decl. Ex. L. Doe began
communicating with his current firm at least as early as March 2020, more than
two years prior to filing his complaint. Henderson Decl. Ex.P. He should be
ordered to supplement his privilege log and log all communications with Manly,
Stewart & Finaldi prior to April 11, 2022, along with any other documents
he is withholding on privilege grounds.1
(Defs. Mot. p. 11, footnote 1 citation omitted.)
Defendants’ motion to compel further responses to RPD
23 is GRANTED, with the limitations discussed herein, and Plaintiff is ordered
to provide further responses that are verified and code compliant.
TENTATIVE
RULING RPD 25 and 26
Plaintiff’s
objections to RPDs 25 and 26 are overruled except to the extent the requests seek
premature disclosure of expert opinion and except to the extent these requests seek
attorney-client or work product privileges.
Plaintiff is
ordered to provide a supplemental, verified, code compliant privilege log for clergy
privileged and for attorney-client privilege and work product for responsive
documents to these requests between former counsel and current counsel of
Manly, Stewart & Finaldi prior to April 11, 2022.
Defendants’ motion
to compel further responses to RPD 25 and 26 is GRANTED, with the limitations
discussed herein, and Plaintiff is ordered to provide further responses that
are verified and code compliant.
Defendants are
also reminded to pay the extra filing fee forthwith.
SANCTIONS
“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.” (CCP
§2030.300(d).)
Except as provided in subdivision (j), 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 further response to 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. (CCP §2031.310(h).)
As a preliminary matter, the notice of motion doesn’t
specify, as required, how much Defendants are requesting in sanctions.
In Defendants’ motion on page 13, Defendants request
that Doe and his counsel should be ordered to pay Defendants’ attorneys’ fees
for bringing this motion in the amount of $15,000.00. In Opposition, Plaintiff
argues Defendants are not entitled to sanctions because Plaintiff acted with
substantial justification because he provided code compliant responses and
logged appropriate objections and voluntarily supplemented his initial responses.
Given movants’ failure to properly Notice the
sanctions request and given further that some of Plaintiff’s points are upheld
here, the Court finds that it would be unjust to award sanctions to either
party.