Judge: Loren G. Freestone, Case: 37-2019-00024403-CU-DF-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Defamation Discovery Hearing 37-2019-00024403-CU-DF-CTL EDUARDO LARIN VS. JANE DOE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Nadia Bergado's motion to compel Eduardo Larin to provide a further response to special interrogatory 129 is GRANTED.

Larin previously produced a summary of those to whom he provided massages for the two-year period before Bergado allegedly defamed him. The names of those individuals were redacted in the document that was produced. SROG 129 asks Larin to provide the full name of each individual included in that record.

Timeliness Larin argues this motion is untimely because Bergado did not move to compel production of an unredacted copy of his records within 45-days and cannot circumvent that deadline by propounding new discovery seeking the same information.

But Bergado did not re-propound an identical request to restart the clock on a motion to compel any such production. Rather, she propounded an interrogatory that at most relates to a document that was produced. Her motion to compel a further response to that different type of discovery is timely. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 996–997 [party who missed deadline to compel further response to requests for production was nonetheless entitled to seek the same documents by way of a deposition notice].) This motion was filed within 45 days of Larin's response to SROG 129. The motion is therefore timely.

Privacy/Relevance Larin also objects based on third-party privacy rights. Any such rights must be balanced against the need for the discovery. (See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250–1251.) On the one hand, SROG 129 seeks only the names of the individuals that received a massage from Larin, and neither an individual's name nor the fact that individual received a massage is particularly sensitive information. (See Puerto, supra, 158 Cal.App.4th at p. 1254 [stating the contact information for potential witnesses is 'basic civil discovery' and 'neither unduly personal nor overly intrusive,' and that remains so regardless of the number of potential witnesses at issue]; see also Crab Addison, Inc. v. Calendar No.: Event ID:  TENTATIVE RULINGS

2972895  38 CASE NUMBER: CASE TITLE:  EDUARDO LARIN VS. JANE DOE [IMAGED]  37-2019-00024403-CU-DF-CTL Superior Court (2008) 169 Cal.App.4th 958, 969 ['Disclosure of witnesses' identities involves no greater invasion of privacy or revelation of personal information than disclosure of their addresses and telephone numbers'].) On the other hand, the individuals who received a massage from Larin are potential witnesses, and Larin has identified some of them that he may call to testify on his behalf on various issues in this case.

Fairness dictates that Bergado also have access to the full list of individuals who received a massage from Larin to investigate whether any of them have knowledge refuting his claims and contentions. (See Puerto, supra, 158 Cal.App.4th at pp. 1249–1250, 1256 [noting that 'our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations, and holding that the interest in avoiding 'an inequitable situation in which one party has access to all, or nearly all potential witnesses' weighed in favor of disclosure].) Larin argues that Bergado has not shown good cause to question the massage recipients about certain matters (e.g., past complaints and instances of sexual misconduct) for various reasons (e.g., she already has the information or can obtain it from other sources, the information is not relevant, the information is of a sexual nature, and the information may not ultimately be admissible at trial). But the motion does not seek to compel testimony on a particular topic. The issue at this point is simply whether Bergado is entitled to those individuals' names as a first step to conducting any type of investigation or inquiry. (See People v. Dixon (2007) 148 Cal.App.4th 414, 443 [holding the defendant was not required to demonstrate good cause when the discovery sought only the contact information of potential witnesses, as opposed to specific information concerning those witnesses' sexual conduct].) Larin also argues that Bergado's attorneys intend to misuse the information in a separate case Bergado and others filed against Massage Envy. Apart from being speculative, Bergado has proposed a protective order limiting the use of the former clients' names to this litigation. (See Puerto, supra, 158 Cal.App.4th at p. 1259 [noting that the trial court could 'enter a protective order limiting dissemination of the witnesses' contact information'].) Larin additionally has 'concerns' that Bergado's attorneys intend to further defame him when speaking to the former clients and tamper with their testimony, and he requests any questioning of the clients be in writing and limited to specific questions approved by the court. Larin has not demonstrated that his concerns are grounded in fact or that the proposed restrictions are otherwise appropriate. (See San Francisco Unified School Dist. ex rel. Contreras v. First Student Inc. (2013) 213 Cal.App.4th 1212, 1239 [error to enjoin party from discussing the case with potential witnesses based on 'concern' witness tampering might occur, where there was no evidence any such tampering had occurred and witnesses had at most felt uncomfortable].) Finally, Larin argues that disclosure of the names would need to be preceded by a Belaire-West notice entitling them to opt-out of having their names disclosed. Such a notice is typically utilized in class actions to identify putative class members who may or may not want to participate in the lawsuit. Larin has not demonstrated that such a procedure is appropriate here, where the former clients are in essence potential percipient witnesses to his claims and contentions. (See Puerto, supra, 158 Cal.App.4th at pp.

1251–1252 [holding an opt-out notice was 'not necessarily appropriate' because the discovery was intended to locate percipient witnesses, and 'a percipient witness's willingness to participate in civil discovery has never been considered relevant-witnesses may be compelled to appear and testify whether they want to or not'].) Having taken everything into account, the balance tips in favor of disclosure. The motion is therefore granted.

Meet and Confer In advance of this motion, the parties telephonically met and conferred. A dispute then arose as to what Calendar No.: Event ID:  TENTATIVE RULINGS

2972895  38 CASE NUMBER: CASE TITLE:  EDUARDO LARIN VS. JANE DOE [IMAGED]  37-2019-00024403-CU-DF-CTL was said during the call, as reflecting in an ensuing series of emails.

The parties then disagreed as to how to conduct further meet and confer. Bergado now requests that the Larin be ordered to meet and confer only telephonically, in person, or via Zoom, whereas Larin requests that Bergado be ordered to meet and confer only in writing.

Any of those methods of meeting and conferring are permissible. (See Code Civ. Proc., § 2023.010, subd. (i).) What matters is that method chosen reflects 'a reasonable and good faith attempt to resolve informally any dispute concerning discovery.' (Ibid.; see also Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 122 Cal.App.3d 326, 332–334 [personal animosity is no excuse for refusing to meet and confer].) The court therefore denies both requests. However, to the extent either or both parties refuse to meet and confer by unreasonably insisting upon/refusing a particular manner of doing so, they risk sanctions regardless of the outcome of the motion. (See Code Civ. Proc., § 2023.020.) Conclusion The motion to compel is granted. Larin shall serve a further verified response, without objection, to SROG 129 within 10 days. The names of the individuals shall be kept confidential and used only in connection with this lawsuit.

As the motion is granted, Larin's request for monetary sanctions is denied.

The request to fix a particular manner of meeting and conferring is denied.

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