Judge Lisa K. Sepe-Wiesenfeld, Case Number: 21STCV15878, Date: 2023-12-11 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 21STCV15878, Date: 2023-12-11 Tentative Ruling

Defendant Los Angeles Unified School District (“LAUSD”) moves to compel Plaintiff Jane Doe (“Plaintiff”)’s compliance with a Notice to Appear with Document Production issued to Plaintiff pursuant to Code of Civil Procedure section 1987, subdivision (c). Plaintiff served objections to the requests, and she has failed to provide any requested documents. LAUSD argues that it is entitled to obtain documents relating to Plaintiff’s settlement with former Defendant Barry Smolin (“Smolin”) because it is admissible to show bias or prejudice, and LAUSD is entitled to determine any amount which may be deductible from any award of damages.

In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.

If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.

The Court finds that LAUSD is not entitled to obtain the documents it seeks here. First, LAUSD seeks production of these settlement documents for trial, such that LAUSD’s contention that the Court need not determine admissibility at this juncture is not well taken. Put simply, there is no reason for Plaintiff to produce documents at trial if they will not be used at trial, so the principles of pretrial discovery, i.e., whether the documents may lead to the discovery of admissible evidence, do not apply here. Notably, there is no trial date set in this action, so it is unclear why LAUSD chose to issue the document request in this manner or the basis for obtaining the documents at this juncture. Instead, the Court must determine whether the documents are relevant pursuant to Evidence Code sections 210 and 350 and whether they are subject to exclusion pursuant to Evidence Code section 352.

Evidence Code section 350 states that only relevant evidence is admissible, and Evidence Code section 210 defines relevant evidence as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Here, evidence relating to the settlement is likely to create a danger of undue prejudice, confusion of issues, or misleading the jury. As the Court stated in its order denying LAUSD’s motion to consolidation, Plaintiff claims in this action that LAUSD negligently permitted the alleged abuse to occur, while LAUSD seeks to shift that blame to Smolin, while Plaintiff no longer has pending claims against him. As to Plaintiff’s claims, the jury could reasonably shift its focus to Smolin’s liability for Plaintiff’s harm, which is no longer at issue in Plaintiff’s case, when the jury should be focused on LAUSD’s liability for Plaintiff’s harm. While there is a possibility Smolin’s testimony could be influenced by the settlement, the Court finds that to be an unlikely scenario. Should the testimony appeared to be biased or demonstrate collusion, LAUSD may renew its request for introduction of evidence relating to the settlement to show bias.

Second, LAUSD has failed to provide any authority to support its argument that it is entitled to these documents. The cases cited by LAUSD are easily distinguishable. Moreno v. Sayre (1984) 162 Cal.App.3d 116 related to a sliding scale agreement between parties and did not involve document requests pursuant to Code of Civil Procedure section 1987. Shepherd v. Walley (1972) 28 Cal.App.3d 1079 held that information related to a settlement should have been excluded from the jury where there is no factual question with regard to the settlement for the jury to decide, i.e., where a party concedes the fact and amount of settlement. Diamond v. Reshko (2015) 239 Cal.App.4th 828 involved a settlement with a defendant who, as part of the settlement agreement, was required to remain a party in the case during trial, which resulted in collusion and bias between settling parties. There is no requirement that Smolin remain in the case and participate trial, the claims against Smolin and LAUSD are not identical, and Smolin has already conceded the fact that he settled with Plaintiff.

Finally, Plaintiff and Smolin entered into a confidential settlement agreement, and while this does not carry the day to exclude these documents, the Court can easily conclude that the parties’ privacy rights are affected by disclosure of these documents. Insofar as LAUSD argues that Plaintiff’s objections were untimely, the Court is not inclined to order production of these documents due to untimely objections where there is no basis to so order, particularly because the request was pursuant to a trial document request where no trial date is set. Accordingly, Defendant Los Angeles Unified School District’s Motion to Compel Compliance of Plaintiff with Document Production Pursuant to CCP 1987(c) is DENIED.

LAUSD also moves to compel Smolin’s compliance with a Document Production Pursuant to Subpoena issued to Smolin pursuant to Code of Civil Procedure section 1987.1. Smolin served objections to the requests, and he has failed to provide any requested documents. LAUSD again argues that it is entitled to obtain documents relating to Plaintiff’s settlement with Smolin because it is admissible to show bias or prejudice, and LAUSD is entitled to determine any amount which may be deductible from any award of damages.

If 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.

For the same reasons stated above, the Court again finds that LAUSD is not entitled to the documents it seeks from Smolin. Pursuant to Evidence Code sections 210, 350, and 352, the Court finds that evidence relating to the settlement is likely to create a danger of undue prejudice, confusion of issues, or misleading the jury, as the jury could shift its focus to Smolin’s liability for Plaintiff’s harm when the jury should be focused on LAUSD’s liability for Plaintiff’s harm, and should the testimony appeared to be biased or demonstrate collusion, LAUSD may renew its request for introduction of evidence relating to the settlement to show bias. Further, “[a]s between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 225.) LAUSD’s requests should be aimed at Plaintiff; it should not be seeking to get around any objections asserted by Plaintiff by seeking the same documents from a third party. Accordingly, Defendant Los Angeles Unified School District’s Motion to Compel Compliance of Barry Smolin with Document Production Pursuant to Subpoena is DENIED.

Smolin seeks monetary sanctions pursuant to Code of Civil Procedure section 2023.010 on the ground that LAUSD engage in discovery abuse. The Court finds this motion is not the sort which warrants sanctions, as LAUSD’s motion was made in good faith, and, as stated above, the documents could be relevant should bias or collusion become evident. Thus, Smolin’s request for monetary sanctions is DENIED.