Judge: David S. Cunningham, Case: 22STCV33477, Date: 2025-06-12 Tentative Ruling

Case Number: 22STCV33477    Hearing Date: June 12, 2025    Dept: 11

Southern California Clergy Cases (JCCP 5101)

OC-26 Doe (22STCV33477)

Tentative Ruling Re: Motion to Compel Discovery Re: Sexual Conduct

Date:                         6/12/25

Time:                        1:45 pm

Moving Party:          The Roman Catholic Bishop of Orange (“RCBO” or “Defendant”)

Opposing Party:       John OC-26 Doe (“Plaintiff”)

Department:             11

Judge:                       David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

Defendant’s motion to compel is granted in part.  The Court adopts the discovery referee’s recommendations with the same timing and topic limitations.

Defendant’s request to depose unidentified third-party witnesses is denied without prejudice.

BACKGROUND

This case (22STCV33477) is part of the coordinated Southern California Clergy Cases (JCCP 5101).

Plaintiff alleges that he was sexually abused as a minor by Father Andrew Christian Andersen.

Here, RCBO seeks an order requiring Plaintiff to answer discovery questions about whether other people also sexually abused him when he was a minor.

DISCUSSION

Defendant’s motion is brought pursuant to Code of Civil Procedure section 2017.220.  “In civil cases alleging conduct constituting ‘sexual harassment, sexual assault, or sexual battery,’” section 2017.220 requires the propounding party to get “a court order . . . for discovery as to [the] plaintiff’s sexual conduct with individuals other than the alleged perpetrator.”  (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2025 Update) ¶ 8:28.)  “This [requirement] applies both to consensual sexual activity and to prior sexual assaults against the plaintiff.”  (Ibid.)

“A person’s sex life is also protected by the constitutional right of privacy[.]”  (Id. at ¶ 8:29, emphasis in original.)  “But privacy protection is not absolute; a balancing of interests is required in each individual case[.]”  (Ibid.)

Section 2017.220 “provides more stringent safeguards in this area: ‘[I]n the majority of sexual harassment suits, a separate weighing of privacy against discovery will not be necessary” if section 2017.220 is satisfied.  (Ibid., emphasis in original.) 

“To obtain discovery regarding [the] plaintiff's sex life with others, [the] defendant . . . must show specific facts justifying that particular inquiry.” (Id. at ¶ 8:32, emphasis in original.)  The defendant must demonstrate “good cause” and that requested information is “relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence.”  (Id. at ¶ 8:30, emphasis in original.)   

“‘Extraordinary circumstances’ are required; i.e., a stronger showing of ‘good cause’ than [is] required for a general physical or mental examination under” Code of Civil Procedure section 2032.020.”  (Ibid., emphasis in original.)

“The mere fact that [the] plaintiff claims extreme mental and emotional distress arising out of alleged sexual harassment is not by itself ‘good cause’ for discovery of other sexual conduct.”  (Id. at ¶ 8:32.1.)

On the other hand, case law recognizes that a plaintiff can waive the protection against discovery, though waiver should be construed narrowly.  (See, e.g., Barrenda L. v. Superior Court (1998) 65 Cal.App.4^th 794, 801; see also, e.g., Tylo v. Superior Court (1997) 55 Cal.App.4^th 1379, 1388; Vinson v. Superior Court (1987) 43 Cal.3d 833, 842; John B. v. Superior Court (2006) 38 Cal.4^th 1177, 1198; Edmon & Karnow, supra, at ¶ 8:29.)

The discovery referee (Hon. Daniel J. Buckley (Ret.)) determined that Defendant should be allowed to depose Plaintiff for an additional one-and-a-half hours and that Defendant’s expert psychologist (Dr. Nancy Kaser-Boyd) should be allowed to conduct a defense medical examination (“DNE”).  (See Averett Decl., Ex. 4, p. 5.)  He found that Defendant proved good cause and relevance based on Plaintiff’s medical records.  In particular, the medical records show that, during an evaluation at SolMar Residential Rehabilitation (“SolMar”) in March 2021, Plaintiff stated that a neighbor had sexually abused him multiple times when he was five or six years old.  (See id. at Ex. 4, pp. 2-3.)  The SolMar statement contradicts Plaintiff’s fact sheet, which denies that Plaintiff was molested by other perpetrators.  (See id. at Ex. 4, p. 2.)  Judge Buckley held that the further deposition and the DNE should be limited to the topic of purported sexual abuse by the neighbor.  (See id. at Ex. 4, p. 5.)

For the most part, Defendant’s motion appears to be unopposed.  Plaintiff concedes that Judge Buckley’s findings should be adopted.  (See Opposition, pp. 3, 9-10.)

The Court agrees.  Judge Buckley’s analysis complies with section 2017.220.  Good cause and relevance are established.  (See Averett Decl., Ex. 4, p. 5.)  Consequently, the Court adopts Judge Buckley’s recommendations with the same timing and topic limitations.

Defendant also asks the Court to permit depositions of “third party witnesses” about the neighbor-abuse incidents.  (Reply, p. 2.)

The request is denied without prejudice.  Defendant does not identify the third-party witnesses.  Nor, apparently, did Defendant discuss the issue with Judge Buckley.  (See Averett Decl., Ex. 4, pp. 1-6 [merely addressing Plaintiff’s further deposition and the DNE].)  At this point, the Court declines to grant depositions of unidentified witnesses, and requests to depose specific, named witnesses, if any, should be presented to Judge Buckley first.