Judge: Deirdre Hill, Case: 21STCV23350, Date: 2023-03-23 Tentative Ruling

Case Number: 21STCV23350    Hearing Date: March 23, 2023    Dept: M

Hearing Date:                         March 23, 2023

Moving Parties:                      Plaintiff Jane Doe

Responding Party:                  Defendant Manhattan Beach USD

Motion to Compel Deposition Testimony of Scott Wilbur

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED.

BACKGROUND

On June 23, 2021, plaintiff Jane Doe filed a complaint against defendant Manhattan Beach Unified School District for (1) negligence of district employee, (2) negligent supervision, and (3) negligence per se.

On August 18, 2021, defendant MBUSD filed a cross-complaint against Thomas Allan Wallace for indemnity and declaratory relief.

On February 17, 2023, the case was transferred from the PI Hub to Dept. M.

LEGAL AUTHORITY

CCP §2025.480 states:  “(a) If a deponent fails to answer any question or to produce any document, . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.  (b)  The motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. . . . If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. . . . 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 an answer or production, 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. . . .”

DISCUSSION

            Plaintiff Jane Doe requests an order compelling deponent defendant’s former principal Dr. Scott Wilbur to respond further to deposition questions.

            The complaint alleges that defendant District is charged with the duty to supervise employees and minor students in its schools, including Mira Costa High School in Manhattan Beach, and to implement and enforce various policies and procedures for the safe education of students entrusted to its care.  Complaint, ¶1.  Thomas Alan Wallace is a California resident, was the track coach at MCHS during the 2004-2005 school year and was an employee of defendant District.  Wallace was also employed by defendant as a football coach and as a regular substitute teacher at MCHS.  Id., ¶2.  Dr. Scott Wilbur served as Principal of MCHS from 2004-2005 and Julie Rusinger served as Vice Principal of MCHS from 2004-2005 and then as Principal from 2005-2006.  Id., ¶3.  Plaintiff Jane Doe was born in 1990.  Id., ¶4.  Plaintiff attended MCHS beginning in 2004.  During the 2004-2005 school year when she was a student at MCHS, Wallace openly groomed plaintiff and showed her special attention, such as allowing her to skip track practice or certain activities, focusing his attention on her, and offering to drive her home.  Ultimately, Wallace sexually assaulted plaintiff on the MCHS campus.  Id., ¶6.

Plaintiff contends that on November 9, 2022, plaintiff deposed Principal Wilbur and that Wilbur testified that he had reported suspected abuse as a mandated reporter to Child Protective Services or other agencies on four to six occasions.  Plaintiff asserts that when plaintiff’s counsel asked if any of those occasions involved allegations of sexual abuse, defense counsel objected that the requested information is confidential “under the Penal Code” [Child Abuse and Neglect Reporting Act] and instructed Wilbur not to answer.  Plaintiff’s counsel suspended the deposition.

            Plaintiff argues that only the reports themselves are confidential and not the underlying context or information contained in the report.  Plaintiff asserts that although no case has determined the extent to which the information contained in a CANRA report is discoverable, plaintiff points to “cases dealing with analogous statutes” to “inform the analysis here” and in particular, a case dealing with Vehicle Code §20112 (required accident reports shall be for confidential use of DMV and may be disclosed only to those who have a “proper interest”).  Plaintiff requests sanctions.

            In opposition, defendant contends that it appears that plaintiff is seeking a response to one deposition question, where plaintiff asked whether Dr. Wilbur ever made mandated reports regrading alleged sexual abuse outside of his employment at Mira Costa High School.  Defendant argues that the “absolutely confidential mandated reports” have no relevance to this case whatsoever and are not discoverable.  Defendant contends that there are multiple confidentiality provisions in the CANRA, and that CANRA serves to protect mandated reporters from scrutiny about their reports and that by disclosure of the nature of his mandated reports, Dr. Wilbur would thereby identifying himself as the one who disclosed the sensitive information that CANRA is meant to protect.  Defendant also argues that Dr. Wilbur could be subject to criminal penalties if he revealed the highly sensitive and confidential information that plaintiff is improperly seeking.  Defendant notes also that Dr. Wilbur was principal at Mira Costa between July 2004 and April 1, 2005, and that he did not make any mandated reports while a principal of the District, nor did he have suspicions of abuse during his ten months there—almost 20 years ago.  Wilbur decl.  Defendant asserts that plaintiff’s counsel did not ask such case specific questions.  Defendant also argues that the DMV case cited by plaintiff is “clearly not analogous” to the CANRA.  Defendant requests sanctions against plaintiff and her attorney.

            In reply, plaintiff reiterates her argument that the CANRA does not apply to information contained in the reports.

            The court rules as follows:

            The deposition questions at issue are:  (1)  How many of these allegations involved sexual abuse? (2)  Did any of these occasions involve allegations of sexual abuse? 

Defense counsel objected because “his reports to the mandated reporting agencies are confidential.”  He also stated that “If you want to ask about some case-specific questions, then I think I’ll let him answer.  But answering things about other students and other reports of abuse I think is outside the scope of today’s deposition.”  He also objected as “potentially also calls for speculation” and “lacks foundation.”

            The CANRA, Penal Code §§11164-74.3, obligates mandated reporters, including educators, to report to a “child protective agency” any instance of suspected child abuse by telephone immediately and in writing within 36 hours.  Penal Code §11166.  CANRA provides that the required reports “shall be confidential” and may be disclosed only to the agencies identified by the statute and to investigators from these agencies.  Further, the identity of the mandated reporter shall be confidential.  Penal Code §11167(d).  The confidentiality provision regarding the identity of the reporter “fosters the ‘cooperation’ of person who might otherwise be reluctant to report child abuse or neglect.”  All Angeles Preschool/Daycare v. County of Merced (2011) 197 Cal. App. 4^th 394, 403.  It would appear that if Dr. Wilbur were to answer questions as to whether any of the mandated reports he made during his career as a mandated reporter involved sexual assault then it would reveal his identity, which is to remain confidential.  Also, if he were to be compelled to respond to what were in the mandated reports, then it would undermine that the reports themselves, which contained the information, were to remain confidential.  The case cited by plaintiff, Davies v. Superior Court (1984) 36 Cal. 3d 291, is not an analogous statute to the CANRA.  Plaintiff has not cited to any authority whereby discovery is allowed as to a mandated reporter.

            The motion is thus DENIED.

            Defendant is ordered to give notice of ruling.