Judge Joel L. Lofton, Case Number: 22STCV25035, Date: 2023-12-04 Tentative Ruling

Judge: Joel L. Lofton, Case: 22STCV25035, Date: 2023-12-04 Tentative Ruling

Case Number: 22STCV25035 Hearing Date: December 4, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: December 4, 2023 TRIAL DATE: No date set.

CASE: N.D., a minor by and through her Guardian ad Litem, ANGELA DIVISH, v. PASADENA UNIFIED SCHOOL DISTRICT, a public entity; ALEJANDRO BOTERO, an individual; and DOES 1 to 20.

CASE NO.: 22STCV25035

MOTION TO COMPEL FURTHER

MOVING PARTY: Plaintiff N.D. (“Plaintiff”)

RESPONDING PARTY: Defendant Pasadena Unified School District (“PUSD”)

RELIEF REQUESTED

Plaintiff moves for an order compelling Defendant to provide further responses to her discovery requests.

BACKGROUND

This case arise out of Plaintiff N.D.’s (“Plaintiff”) claim that she was sexually assaulted in a bathroom at Pasadena High School on or about August 27, 2021. Plaintiff filed this complaint on August 11, 2022, alleging twelve causes of action for (1) negligence, (2) negligent hiring, training, and retention, (3) dangerous condition of public property, (4) violation of mandatory statutory duties, (5) assault, (6) battery, (7) intentional infliction of emotional distress, (8) false imprisonment, (9) sexual battery, (10) gender violence, (11) violation of Civil Code section 1708.85, and (12) intrusion into private affairs.

TENTATIVE RULING

Plaintiff’s motions to compel further responses are granted in part and denied in part.

Plaintiff’s motion to compel further responses is granted as to (1) RFP set one number 62; (2) special interrogatories set one numbers 89, 94, and 96; (3) RFP set two numbers 82 and 97; (4) special interrogatories set two numbers 113, 115, 132, 133, and 135; and (5) RFA numbers 71, 72, and 73.

PUSD is ordered to provide responses within 15 days.

Plaintiff’s requests for sanctions is granted for a total of $1060 ordered against Defendant’s counsel.

LEGAL STANDARD

On receipt of a response to discovery requests, the party requesting may move for an order compelling further responses for interrogatories (Code Civ. Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and request for production (Code Civ. Proc. section 2031.310). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” (Code Civ. Proc. section 2033.290, subd. (c).)

DISCUSSION

Plaintiff moves for an order compelling PUSD to provide further responses to her discovery requests. The present motions involve two separate sets of discovery requests.

Plaintiff provides that she served her first set of discovery requests, which included form interrogatories, special interrogatories, and requests for the production of documents on PUSD on February 9, 2023. (Skaf Decl. ¶ 5.) Plaintiff provides PUSD responded on July 19, 2023. (Id. ¶ 6.) Plaintiff provides she served her second set of discovery requests, which included form interrogatories, special interrogatories, requests for the production of documents, and requests for admissions on August 8, 2023. (Skaf Decl. ¶ 3.) Plaintiff provides PUSD served responses on September 7, 2023. (Id. ¶ 4.)

In opposition, PUSD contends that the motions are partially mooted by the fact that it served supplemental responses and any remaining discovery requests improperly seek student records. PUSD provides it served supplemental responses to Plaintiff’s special interrogatories set one and requests for the production of documents set one on November 21, 2023. (Doumanian Decl. ¶ 3.) PUSD provides it served supplemental responses to the entirety of Plaintiff’s second set of discovery requests on November 1, 2023. (Doumanian Decl. ¶ 1.)

According to PUSD, only a small portion of Plaintiff’s discovery request are pending.

Set One Discovery Requests

In its oppositions, PUSD provides that only request for production number 62 and special interrogatories numbers 89, 90, 94, 95, 96, 97, 98, 99, and 100 are still pending. PUSD contends Plaintiff’s form interrogatories set one seek student records.

RFP No. 62: All DOCUMENTS that IDENTIFY every PERSON assigned as an instructor in all classes attended by Defendant Alejandro Botero on the day of the INCIDENT.

Special Interrogatory No. 89: IDENTIFY every PERSON assigned as an instructor in all classes attended by Defendant Alejandro Botero on the day of the INCIDENT.

Special Interrogatory No. 90: IDENTIFY all DOCUMENTS RELATED TO attendance for Defendant Alejandro Botero on the day of the INCIDENT.

Special Interrogatory No. 94: IDENTIFY all DOCUMENTS RELATED TO classroom rules for all classes attended by propounding party on the day of the INCIDENT.

Special Interrogatory No. 95: IDENTIFY all DOCUMENTS RELATED TO Defendant Alejandro Botero’s schedule on the day of the INCIDENT.

Special Interrogatory No. 96: IDENTIFY all DOCUMENTS RELATED TO classroom rules for all classes attended by Defendant Alejandro Botero on the day of the INCIDENT.

Special Interrogatory No. 97: State the current address for Defendant ALEJANDRO BOTERO.

Special Interrogatory No. 98: IDENTIFY all DOCUMENTS RELATED TO the current address of Defendant ALEJANDRO BOTERO.

Special Interrogatory No. 99: DESCRIBE IN DETAIL all documented discipline issues for Defendant ALEJANDRO BOTERO while he was a student in the Pasadena Unified School District.

Special Interrogatory No. 100: IDENTIFY all DOCUMENTS RELATED TO all documented discipline issues for Defendant ALEJANDRO BOTERO while he was a student in the Pasadena Unified School District.

Set Two Discovery Requests

Similarly, PUSD provides that Plaintiff’s motion to compel further responses to her second set of discovery requests are partially mooted by its supplemental responses. PUSD argues that the remaining responses include requests for admissions set two, numbers 70, 71, and 72, special interrogatories set two numbers 113, 115, 130, 131, 132, 133, 134, 135, 136, 137, and 138, and requests for the production of documents numbers 82, 93, 94, 95, 96, 97, and 98. PUSD provides that it responded to each request in Plaintiff’s form interrogatories set two.

RFP No. 82: All DOCUMENTS RELATED TO the actions YOU took based on YOUR investigation of the INCIDENT.

RFP No. 93: All DOCUMENTS that DESCRIBE IN DETAIL the disciplinary process YOU used in investigating Defendant Alejandro Botero subsequent to learning of the INCIDENT.

RFP No. 94: All DOCUMENTS RELATED TO the disciplinary consequences YOU implemented for Defendant Alajandro Botero subsequent to the INCIDENT.

RFP No. 95: All DOCUMENTS RELATED TO Defendant Alejandro Botero’s expulsion from the Pasadena Unified School District.

RFP No. 96: All DOCUMENTS that DESCRIBE IN DETAIL why Defendant Alejandro Botero was expelled from the Pasadena Unified School District.

RFP No. 97: All DOCUMENTS RELATED TO the policies and procedures YOU relied on to expel Defendant Alejandro Botero from the Pasadena Unified School District.

RFP No. 98: All DOCUMENTS RELATED TO the last known contact information for Defendant Alejandro Botero’s parents.

Special Interrogatory No: 113: IDENTIFY all DOCUMENTS RELATED TO the conclusions YOU came to based on YOUR investigation of the INCIDENT.

Special Interrogatory No: 115: What actions did YOU take based on YOUR investigation of the INCIDENT?

Special Interrogatory No: 130: DESCRIBE IN DETAIL the disciplinary process YOU used in investigating Defendant Alejandro Botero subsequent to learning of the INCIDENT.

Special Interrogatory No: 131: What disciplinary consequences did YOU implement for Defendant Alajandro Botero subsequent to the INCIDENT.

Special Interrogatory No: 132: Was Defendant Alejandro Botero expelled from the Pasadena Unified School District?

Special Interrogatory No: 133: If Defendant Alejandro Botero was expelled from the Pasadena Unified School District, state the date he was expelled.

Special Interrogatory No: 134: If Defendant Alejandro Botero was expelled from the Pasadena Unified School District, DESCRIBE IN DETAIL why he was expelled.

Special Interrogatory No: 135: If Defendant Alejandro Botero was expelled from the Pasadena Unified School District, state the policies and procedures YOU relied on to make that decision.

Special Interrogatory No: 136: If Defendant Alejandro Botero was expelled from the Pasadena Unified School District, IDENTIFY all DOCUMENTS RELATED TO his expulsion.

Special Interrogatory No: 137: State the last known contact information for Defendant Alejandro Botero’s parents.

Special Interrogatory No: 138: IDENTIFY all DOCUMENTS RELATED TO the last known contact information for Defendant Alejandro Botero’s parents.

RFA No. 71: Admit that Defendant Alejandro Botero was expelled from the Pasadena Unified School District.

RFA No: 72: Admit that YOU relied on YOUR policies and procedures to expel Defendant Alejandro Botero from the Pasadena Unified School District.

RFA No. 73: Admit that there was video surveillance of the area at or near the SUBJECT BATHROOM for one hour prior to the INCIDENT.

Application

A central issue raised by the discovery motions is whether certain discovery requests seek records protected by Education Code section 49076. Education Code section 49076, subdivision (a), provides in part: “A school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in this section”. However, neither party sufficiently address this issue. “Civil discovery is intended to operate with a minimum of judicial intervention. ‘[I]t is a “central precept” of the Civil Discovery Act ... that discovery ‘be essentially self-executing[.]’ ” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) The parties both rely on copy-pasted language in their briefs to broadly assert their argument.

“California law defines ‘pupil records’ as ‘any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district....’ ” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742. 752.) “ ‘ “Pupil Record” means information relative to an individual pupil gathered within or without the school system and maintained within the school system, regardless of the physical form in which it is maintained. Essential in this definition is the idea that any information which is maintained for the purpose of second party review is considered a pupil record.’ (Cal.Code Regs., tit. 5, § 430, subd. (d).)”

The court recognizes that, pursuant to Education Code section 49076, PUSD may be required to disclose the records under judicial order, but in the absence of any developed argument on this issue, the court declines to grant such a sweeping discovery order.

The court recognizes that Plaintiff asserts that PUSD’s supplemental responses are still deficient and that PUSD’s recitation of pending discovery requests is inaccurate. Thus, Plaintiff may submit subsequent motions to compel.

However, the court informs both parties that any motion to compel further must be accompanied by an adequate separate statement. California Rules of Court, Rule 3.1345 requires a separate statement to include “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute”. In her several separate statements, Plaintiff merely used copy-pasted language that makes no reference to the specific discovery request at issue. Plaintiff merely includes stock language claiming the responses are insufficient and that Defendant’s objections are meritless and boilerplate. Any future motion to compel must include a proper separate statement addressing why the court should order further responses as to each matter in dispute.

Sanctions

Plaintiff seeks sanctions for each motion filed. The court notes that PUSD served supplemental responses months after its initial response and after Plaintiff filed the present motions. Further, Code of Civil Procedure section 2033.280, subdivision (c), provides, in part, that “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” Thus, Plaintiff’s requests for sanctions is granted for two hours worked at $500 an hour plus a $60 filing fee for a total of $1060 ordered against Defendant’s counsel.

CONCLUSION

Plaintiff’s motions to compel further responses are granted in part and denied in part.

PUSD is ordered to provide responses within 15 days.

Plaintiff’s requests for sanctions is granted for a total of $1060 ordered against Defendant’s counsel.