Judge: David B. Gelfound, Case: 22CHCV01266, Date: 2024-06-25 Tentative Ruling

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Case Number: 22CHCV01266    Hearing Date: June 25, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO QUASH OR MODIFY DEPOSITION SUBPOENA

Motion filed: 5/10/24

MOVING PARTY: Defendant Troy Betz (“Betz” or the “Moving Defendant”)

RESPONDING PARTY: Defendant Los Angeles Unified School District (“LAUSD” or the “Responding Defendant”)

NOTICE: OK.¿¿¿ 

RELIEF REQUESTED: An order from this Court quashing or modifying LAUSD’s subpoena for deposition and production of documents

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On November 30, 2022, Plaintiff Jane Doe (“Plaintiff”), a former student at Arleta High School, filed this action for damages arising from an alleged sexual relationship with Betz that commenced when she was a minor. Subsequently, on January 19, 2023, Plaintiff filed her operative First Amended Complaint (“FAC”) against Defendants LAUSD and Betz,  alleging the following seven causes of action: (1) Sexual Battery/Abuse of a Minor (against Betz and Does 1-10), (2) Intentional Infliction of Emotional Distress (against Betz and Does 21-30), (3) Negligent Hiring, Supervision & Retention of an Unfit Employee (against LAUSD and Does 1-20), (4) Breach of Mandatory Duty: Failure to Report Suspected Child Abuse (against LAUSD and Does 1-20), (5) Negligent Failure to Warn, Train or Educate (against LAUSD and Does 1-20), (6) Negligent Supervision of a Minor (against LAUSD and Does 1-20) and (7) Negligence (against Does 31-50).

On February 16, 2023, LAUSD filed its Answer to the FAC.

On April 3, 2023, a Default was entered by the Clerk against Betz.

On May 10, 2024, Betz filed the instant Motion to Quash or Modify LAUSD’s Deposition Subpoena. Subsequently, LAUSD filed its Opposition on June 11, 2024. Betz replied on June 17, 2024.

ANALYSIS

Code of Civil Procedure section 1987.1 provides that “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal. 2d 206.)

A.    Meet and Confer

Code of Civil Procedure section¿2025.410, subdivision (c) provides that a motion to quash a deposition notice must be accompanied by a meet and confer declaration. 

The Court finds that Betz has satisfied the meet and confer requirement. (See Levin Decl. ¶¶ 4-6, 9.)

B.     Motion to Quash Deposition Subpoena

Betz moves to quash LAUSD’s deposition subpoena, served on April 26, 2024, for a deposition of May 16, 2024 (the “Subpoena”).

The Subpoena requests for personal attendance as well as a production of the following documents:

“All documents in your possession related to [Plaintiff] including but not limited to photos, videos, journals, diaries, electronic mail, text messages, social media posts, social media direct messages, electronic messages of any sort, electronically stored information, and paper documents.”

(Mot. at p. 4, Levin Decl. Ex. “B.”)

Here, the Motion does not contest the subpoena for personal attendance; however, it argues that the production of documents should be quashed on multiple grounds, the main basis being his invocation of Fifth Amendment Privilege.

Thus, the Court will first proceed to analyze the Fifth Amendment Privilege issue.

1)      Betz’s Fifth Amendment Privilege

The right not to bear witness against oneself is enshrined in both the United States Constitution (Fifth Amendment) and the California Constitution (Article 1, § 15). (People v. Merfeld, 57 Cal.App.4th 1440, 1443 (1997).) The privilege applies in any proceeding, civil or criminal. (United States v. Balsys (1998) 524 U.S. 666, 672; Kastigar v. United States (1972) 406 U.S. 441, 444-445; see also, Evid. Code, § 940.)

“Under cases of the Supreme Court, there are four requirements that together trigger [the Fifth Amendment self-incrimination] privilege: the information sought must be (i) incriminating; (ii) personal to the defendant; (iii) obtained by compulsion; and (iv) testimonial or communicative in nature.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 366 (Izazaga) [internal quotations omitted].) “Statutorily mandated discovery of evidence that meets these four requirements is prohibited. Conversely, discovery of evidence that does not meet each of these requirements is not barred by the self-incrimination clause.” (Ibid.)

Once a person claims the Fifth Amendment privilege, “the trial court must undertake a particularized inquiry with respect to each specific claim of privilege to determine whether the claimant has sustained his burden of establishing that the testimony or other evidence sought might tend to incriminate him.” (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.)

“Ultimately, a trial court may reject an assertion of the privilege only when it appears to the court perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.” (People v. Trujeque (2015) 61 Cal.4th 227, 267 [internal quotations omitted].) 

i.                    Incriminating Information

The information sought need not be directly incriminatory. Rather, the information sought is considered incriminating if the information might provide a link in the chain of evidence of guilt (Hoffman v. United States (1951) 341 U.S. 479, 486 (Hoffman); People v. Lucas (1995) 12 Cal.4th 415, 454) or might lead to incriminating evidence even though the information itself is not inculpatory. (United States v. Hubbell (2000) 530 U.S. 27, 35-36.) The witness must have reasonable cause to apprehend danger from a direct answer. (Hoffman, supra, at p. 486.)  A danger of incrimination “of ‘imaginary and unsubstantial character’ will not suffice. [Citation.]”  (Ohio v. Reiner (2001) 532 U.S. 17, 21.) 

Here, Betz argues that any information concerning any relationship (if any) between him and Plaintiff may provide a link to a criminal prosecution under state sex statutes, including “evidence tending to establish motive, desire or opportunity to engage in the conduct proscribed.” (Mot. at p. 9) He further argues that even if the information were not itself evidence of a crime, his compliance with subpoena, specifically the act of production of the documents, would involve testimonial self-incrimination by admitting their existence, possession and authenticity of the documents. (Id. at pp. 7-8.)

Betz seeks to establish that any association with Plaintiff, even as an adult, creates a potential nexus for sex crimes, citing support from Zonver v. Superior Court of Los Angeles County (1969) 270 Cal.App.2d 613 (Zonver).

The Zonver court considers a claim of Fifth Amendment Privilege in refusing to answer inquiries into the claimants’ social and sexual relationship. It held that information about the locations and times a married man, Mr. Zonver, had visited his female bookkeeper could be a strong link in a chain of evidence proving guilty of a variety of state misdemeanors and felonies, making self-incrimination realistic. (Zonver, supra, 270 Cal.App.2d at pp. 619-621.) 

Notably, the Zonver court emphasized that it is “emphatically wrong” for the trial court to think Mr. Zonver’s privilege in connection with possible prosecution under the federal Mann Act was adequately protected by restricting its order to questions related only to “activities within the State of California.” It reasoned that although “activities within the State of California” are not directly related to “interstate transportation”, a conduct proscribed in the Mann Act, they may nevertheless be relevant to illuminate the purpose or opportunity in later transportation, resulting in self-incrimination future charges based on the possible Mann Act prosecution. (Id. at p. 619.)

The Court notes that although Zonver is not factually most similar to this case, as it does not involve a minor victim or production of documents, it finds the Zonver court’s reasoning in justifying the Fifth Amendment Privilege, as applied to the discovery of social and sexual relationship involving the claimant, directly in point.

Firstly, LAUSD requests “all documents ... related to [Plaintiff] including but not limited to photos, videos, journals, diaries, electronic mail, text messages, social media posts, social media direct messages, electronic messages of any sort ...” (Levin Decl. Ex. “B.”) At a minimum, this information could directly reveal the nature of the social relationship between Betz and Plaintiff. Furthermore, even innocuous photos and videos undoubtedly provide insights into the environment and timings of their interactions. Additionally, diaries, messages, and social media posts, whether created during Plaintiff’s adulthood or earlier, could contain references to past activities or relationships. These pieces of information are more than the “locations and times” that one visited another in the Zonver case, providing an even stronger link in a chain of evidence proving a violation of state sex statutes.

Secondly, the Court rejects LAUSD’s argument that such information is not incriminating merely because “Betz has not been criminally charged, nor even arrested.” (Opp’n. at p. 10.) Just as in Zonver, where there was a danger of possible prosecution under the Mann Act, there is no question that the Fifth Amendment Privilege may be asserted, where like here, by civil defendants who face future or possible criminal charges based on the same facts as the civil action. (See Zonver, supra; Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3 686, 688-689.)

Accordingly, the Court determines that the first requirement in Izazaga is satisfied here, finding the information sought by LAUSD’s subpoena for production of documents to be incriminating.

ii.                  Personal to Betz

“The Fifth Amendment privilege ... being personal to the defendant, does not extend to the testimony or statements of third parties called as witness at trial.” (United States v. Nobles (1975) 422 U.S. 225, 234.)

            Here, it is uncontested that Betz is the person subpoenaed and would be the subject to possible criminal prosecution.

            Thus, the second Izazaga requirement is met.

iii.                Obtained by Compulsion

The Court reiterates that “[t]he constitutional guarantee against compelled self-incrimination protects an individual from being forced to testify against himself or herself in a pending [] proceeding ... ‘civil or criminal, formal or informal,’ where he or she reasonably believes the answers might incriminate him or her in a criminal case. [Citations.]” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1052.) (Underlines added.) “[a] party may claim the Fifth Amendment privilege against self-incrimination where to disclose [] information might lead to prosecution under [certain] statutes.” (In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1156.) (Underlines added.)

However, the privilege “cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.’” (Shapiro v. United States (1948) 335 U.S. 1, 633 (Shapiro).)

Here, LAUSD argues that Betz’s production of documents would not be compelled because he voluntarily created those documents. (Opp’n. at p. 8.) Yet, LAUSD concedes that “his act of production would be compelled” if the Court compels their production. (Id. at p. 9.)

The Court notes that the “act of production” falls within the scope of “disclose information” and “testify” that the Fifth Amendment privilege protects against self-incrimination. (See Oiye v. Fox, supra, 211 Cal.App.4th at p. 1052; In re Marriage of Sachs, supra, 95 Cal.App.4th at p.1156.)

Furthermore, it is uncontested that the production of documents sought by LAUSD target Betz’s private papers/information rather than public documents or business records that are excepted from the privilege under the “required records doctrine.” (Shapiro, supra, 335 U.S. at p. 33.)

Based on the above, the Court concludes that this part of the Izazaga test is also satisfied based on Betz’s compelled act of production. 

iv.                Testimonial or Communicative in Nature

It is clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but “applies only when the accused is compelled to make a Testimonial Communication that is incriminating.” (Fisher v. U.S. (1976) 425 U.S. 391, 408 (Fisher).) “[W]e leave intact the firmly established precedents that hold the self-incrimination privilege inapplicable to, and allow mandatory production of, nontestimonial evidence such as fingerprints, blood samples, breath samples, appearances in lineups, and handwriting and voice exemplars.” (People v. Collie (1981) 30 Cal.3d 43, 55, fn. 7)

Additionally, an act in producing evidence in response to a subpoena may have testimonial aspects, depending on the facts and circumstances of particular cases. (Curcio v. United States, (1957) 354 U.S. 118, 125; Fisher, supra, 425 U.S. at p. 410)

However, despite the fact that producing the documents tacitly admits their existence and their location in the hands of their possessor, the Supreme Court of the United States has also time and again allowed subpoenas against the custodian of corporate documents or those belonging to other collective entities such as unions and partnerships and those of bankrupt businesses over claims that the documents will incriminate the custodian  (Fisher, supra, 425 U.S. at pp. 411-412. [internal citations omitted.])

Furthermore, when the existence and location of the papers are a foregone conclusion, and the compliance with the subpoena adds little or nothing to the information to the party compelling the subpoena, the question is “not of testimony but of surrender.” (Fisher, supra, at p. 411, [holding that the existence and locations of the documents prepared by an accountant working on the tax return of his client adds little or nothing to the sum of the total of the Government’s information, therefore the client’s act of producing them, which implicitly admitting the existence and possession of the documents, does not rise to the level of testimony with the protection of the Fifth Amendment] [internal citations omitted.])

Here, LAUSD does not contest that the contents of the documents are of testimonial nature. Instead, it makes an incomplete argument, stating, “the act [of producing the documents] would be incriminating only if that act ‘admit[ed] facts previously unknown to LAUSD – namely, “that the [respective documents] existed, were in his possession or control, and were authentic.”’” (Opp’n. at p. 9.) However, LAUSD concedes that it does not know if any responsive documents exist, by noting, “Betz has not endeavored to provide either the Court or LAUSD with a privilege log. How would anyone know what responsive documents [Betz] has in his possession that may or may not be subject to the Fifth Amendment privilege? We must assume that he must have some responsive documents ...” (Opp’n. at p. 7.) (Italics in original.)

It is evident to the Court that LAUSD has not sufficiently demonstrated that the existence of any of Betz’s responsive documents is a foregone conclusion or his compliance with the subpoena adds little or nothing to the sum total of LAUSD’s information. Thus, the Court concludes that the effect of the documents sought by the subpoena is of testimony.

Therefore, the Court’s analysis of the four-part requirements under Izazaga leads to the conclusion that Betz’s claim of Fifth Amendment privilege is justified.

2)      LAUSD’s Other Arguments

Besides its argument focused on the Izazaga requirements, LAUSD, in its Opposition, argues that the Motion should be denied as Betz has made a blanket objection to all documents. LAUSD contends that this is evidenced by Betz’s failure to submit a separate statement or a privilege log, prevent the Court from assessing whether each responsive document would violate Betz’s Fifth Amendment right. (Opp’n. at pp. 6-10.)

As further discussed below, the Court finds LAUSD’s contention unpersuasive.

i)                   Blanket Refusal

“ [A] blanket refusal to testify is unacceptable; a person claiming the Fifth Amendment privilege must do so with specific reference to particular questions asked or other evidence sought.... [O]nce this is done, the trial court must undertake a particularized inquiry with respect to each specific claim of privilege to determine whether the claimant has ... establish[ed] that the testimony or other evidence sought might tend to incriminate him.” (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 (Warford), [citations and italics omitted]; Fisher v. Gibson (2001) 90 Cal.App.4th 275, 286.) (Underlines added.)

            Here, LAUSD argues that Betz must identify each document to be reviewed for privilege on a case-by-case basis. (Opp’n. at p. 8.) The Court disagrees.

The requirement for specificity is not applied for “each document” that Betz claims his Fifth Amendment privilege, but rather is required for “each question” that Betz thinks objectionable. (See Warford, supra, 160 Cal.App.3d at 1045.)

Here, LAUSD only makes one inquiry for the production of documents. Assuming the inquiry is well-defined and narrowly tailored to meet the standard of discovery purpose, it is nonetheless barred by the Fifth Amendment privilege as discussed above for finding all conditions in Izazaga are satisfied.

            Betz asserts his Fifth Amendment privilege against LAUSD’s only inquiry and specifies his fear that his response to this inquiry and request for production of documents may provide a link to a possible criminal prosecution for sexual crimes. Thus, the Court finds that Betz has met his burden in both referencing the particular inquiry and asserting a specified privilege.

ii)                 Separate Statement

A motion to quash the production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled.  (See Cal. Rules of Court, rule 3.1345(a)(5).) However, rule 3.1345 does not necessarily preclude an order in the absence of a separate statement. (See Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 n.14 (Sinaiko).)

Here, Betz contends that a separate statement is not required under the exception outlined in California Rules of Court rule 3.1345(b)(1), which states, “A separate statement is not required under the following circumstances: (1) When no response has been provided to the request for discovery[.]” He maintains that since he has not served a written objection to the subpoena, the “no response” exception is applicable here.

In response, LAUSD does not argue whether the California Rules of Court rule 3.1345(b)(1) functions as an exception to the separate statement requirement, or whether the exception applies to the present case. Instead, it posits that “[Betz’s] motion may be denied on that ground alone.” (Opp’n. at p. 7.)

The Court finds that the Sinaiko court’s instruction on the effect of the absence of a required separate statement controls in this case. Additionally, even if the Court accepts LAUSD’s argument that failure to submit a separate statement may be a ground for denial of the motion, it has no effect in preventing the Court from granting the motion based on its finding, in alignment with Sinaiko.

            Given that the Court has granted the Motion based on the finding of satisfactory Izazaga requirements, it determines that the absence of a separate statement does not affect the ruling.

iii)               Privilege Log

LAUSD contends that the Motion is further procedurally deficient for failure to submit a privilege log. To support its contention, it relies upon Code of Civil Procedure section 2031.240, subdivision (c), which provides, “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.” (Underlines added.)

In the Reply, Betz argues that Code of Civil Procedure section 2031.240, subdivision (c) does not apply to subpoenas, but instead governs “Response to Inspection Demand.” (Reply at p. 8.) He notes that under the codes that govern subpoenas, no response – much less a privilege log – is required to be served in response to a subpoena, citing Code of Civil Procedure sections 2025.010, et seq. (Ibid.) More importantly, Betz asserts that he would effectively waive the Fifth Amendment privilege by providing the information in the privilege log, as LAUSD demands, such as “the identity and capacity of those who authored, sent, or received each document, the document’s date, a brief description of its contents, and the specific privilege claimed.” (Id. at p. 9.)

The Court agrees with Betz to the extent that the privilege log under Code of Civil Procedure section 2031.240, subdivision (c) does not apply to the situation where a claim of Fifth Amendment privilege is invoked. To conclude otherwise is to compel an act of production that not tacitly but expressly concedes the existence and authenticity of self-incriminating documents, against which the Fifth Amendment privilege protects.

Therefore, the Court finds LAUSD’s argument for the requirement of a privilege log to be unconvincing.

In sum, the Court GRANTS Betz’s Motion to Quash or Modify Subpoena as to the production of documents, finding that compelling the production of documents would violate Betz’s Fifth Amendment right against self-incrimination. Therefore, the Subpoena for Productions of Documents is hereby quashed. The rest of the Subpoena, including the personal appearance of the Betz, is not affected by this ruling.

CONCLUSION

Defendant Troy Betz’s Motion to Quash or Modify Subpoena is GRANTED.

The Court hereby modified the subpoena issued to Troy Betz as follows:

1.      The requirement for the personal attendance of Troy Betz for deposition remains in effect.

2.      The requirement for production of documents is hereby quashed in its entirety, as it violates the deponent’s Fifth Amendment right against self-incrimination.

Moving party to give notice.