Judge: Loren G. Freestone, Case: 37-2021-00027978-CU-PO-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2021-00027978-CU-PO-CTL DOE S L VS DEFENDANT DOE 1 [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Grossmont Union High School District's motion to compel Plaintiff Jane Doe S.L. to provide further responses to its requests for production of documents (set three) is DENIED.

Grossmont's motion to compel Doe to provide further responses to its special interrogatories (set four) is GRANTED IN PART and DENIED IN PART.

Grossmont's request to stay the case is DENIED.

Requests for Production RFPs 43 and 44 requests copies of Doe's questionnaire from the Diocese case (Jane Doe S.L. v. Defendant Doe 1, San Diego Superior Court Case No. 21-44825), which was added on to a JCCP (The San Diego Diocese Cases, JCCP Case No. 5105).

Doe objected to the requests based on, among other grounds, the mediation privilege: 'No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.' (Evid. Code, § 1119.) The JCCP case management order specifically states: 'Until such time as an individual case is released from the litigation stay, the sworn responses to the Questionnaire provided by the Plaintiff will be considered subject to mediation confidentiality.' There is no dispute that the case is still stayed, and thus that the document is still covered by the mediation privilege. (See, e.g., Doe 1 v. Superior Court (2005) 132 Cal.App.4th 1160, 1163 [written summaries of personnel records of priests were confidential because they had been prepared for the mediation of 500 cases alleging child sexual molestation].) Grossmont argues that one exception to the mediation privilege 'is where due process is implicated.' As support, Grossmont cites Rinaker v. Superior Court (1998) 62 Cal.App.4th 155.) Rinaker was a juvenile delinquency proceeding. The minors were charged with vandalism based on an incident where they threw rocks at a car. The same incident resulted in a civil harassment action brought against the minors by the owner of the car. After the parties mediated the civil harassment Calendar No.: Event ID:  TENTATIVE RULINGS

3004136  29 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL action, the minors subpoenaed the mediator to testify in the juvenile delinquency proceeding. The minors argued that if the owner of the car testified on direct examination in the juvenile delinquency proceeding that he saw the minors throw the rocks, then they had a due process right to introduce evidence that the owner of the car had admitted at mediation that he did not actually see how threw the rocks. In deciding whether the mediation privilege barred the testimony, the court began by noting that 'due process of law entitles juveniles to certain fundamental protections of the Bill of Rights in proceedings that may result in confinement or other sanctions.' (Rinaker, supra, 62 Cal.App.4th at p. 165.) The court then held as follows: 'That section 1119 serves an important public purpose in promoting the settlement of legal disputes through confidential mediation rather than litigation does not justify the preclusion of effective impeachment of a prosecution witness in a juvenile delinquency proceeding with statements the witness made during mediation. When balanced against the competing goals of preventing perjury and preserving the integrity of the truth-seeking process of trial in a juvenile delinquency proceeding, the promotion of settlements must yield to the constitutional right to effective impeachment.' (Id. at pp. 167.) On remand, the trial court was directed to hold 'an in camera hearing to weigh the constitutionally based claim of need against the statutory privilege' and determine whether the evidence was 'necessary to vindicate' the constitutional rights of confrontation. (Id. at p. 169.) The California Supreme Court has not disapproved Rinaker, but it has repeatedly construed the opinion narrowly and limited it to situations that implicate a 'due process right equivalent to the right bestowed by the confrontation clause of the United States Constitution.' (See Simmons v. Ghaderi (2008) 44 Cal.4th 570, 583; accord Cassel v. Superior Court (2011) 51 Cal.4th 113, 135; Foxgate Homeowners' Assn., Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 16.) The Court has emphasized that 'the mere loss of evidence pertinent to the prosecution of a lawsuit for civil damages does not implicate such a fundamental interest.' (Cassel, supra, 51 Cal.4th at p. 135.) The same holds true when the evidence shielded by the mediation privilege is pertinent to the defense of a civil lawsuit for civil damages. (See Kurtin v. Elieff (2013) 215 Cal.App.4th 455, 475–476.) Here, Grossmont does not explain how application of the mediation privilege to the questionnaire raises a constitutional due process concern akin to that in Rinaker. Although it may be difficult to defend childhood sexual abuse cases involving events that occurred decades prior, defendants in such cases do not have any unique due process rights. (See Deutsch v. Masoni Homes of California, Inc. (2008) 164 Cal.App.4th 748, 763–764.) This is, at its core, a civil suit for money damages and application of the privilege would, at most, result in a loss of potentially relevant evidence. That is not sufficient to pierce the mediation privilege.

Moreover, even assuming constitutional concerns were at issue, Grossmont has not established that the questionnaire necessary to effectively defend this case. Grossmont essentially asserts that it needs the questionnaire to determine whether the injuries Doe claims in this case were actually caused by the incident at issue in the Diocese/JCCP case. However, Judge Meyer previously granted, in part, Grossmont's motion under Code of Civil Procedure section 2017.220 and allowed it to conduct discovery into the 'claims asserted in the Diocese case by Plaintiff regarding her injuries and treatment attributable to Reverend Byrnes, including the impact Reverend Byrnes' molestation had on Plaintiff's mental and emotional health condition, treatment received therefore, and recovery therefrom, if at all.' Pursuant to that order, Doe was ordered to attend an independent psychological examination with Grossmont's expert to explore, among other things, the alleged abuse at issue in the Diocese/JCCP case. Pursuant to that order, Grossmont may also depose Doe about underlying facts at issue in the Diocese/JCCP case. As Grossmont has other avenues to prove its point, the statutory privilege must prevail.

The mediation privilege applies. Accordingly, the motion to compel a further response to RFPs 43 and 44 is denied.

Special Interrogatories Calendar No.: Event ID:  TENTATIVE RULINGS

3004136  29 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL In addition to requesting copies of the actual questionnaire, Grossmont also propounded a series of interrogatories about the questionnaire.

SROGs 74 and 80 ask whether Doe completed a questionnaire. SROGs 75–76 and 81–82 ask whether Doe provided truthful responses under penalty of perjury. SROGs 77–78 and 83–84 ask whether Doe disclosed this case and the alleged abuse by Larry Wilson in the questionnaire. SROGs 79 and 85 ask for the identity of people who were provided a copy of the questionnaire.

The motion is denied as to SROGs 77–78 and 83–84. These interrogatories inquire into the substance of the questionnaire. The mediation privilege therefore applies.

The motion is granted as to the remaining SROGs. The mediation privilege does not apply to these interrogatories. Doe's other objections to these interrogatories also lack merit.

Stay Grossmont argues that if it is not entitled to production of the questionnaire based on the mediation privilege, then this case should be stayed until the stay is lifted in the Diocese/JCCP case, at which point 'the completed Questionnaire responses will be treated as verified discovery responses, such to any applicable protective order.' 'A court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.' (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141.) The 'power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.' (Ibid.) However, courts also have an obligation to 'control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases.' (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306–307.) Multi-year stays are inconsistent with that obligation. (See id. at p. 309; see also Bains v. Moores (2009) 172 Cal.App.4th 445, 486 [party not entitled to indefinite stay based on purported difficulty in obtaining certain evidence].) This case is over 2 years old and trial has already been continued twice. Grossmont also admits that 'there is no known timeline on the JCCP 5105 stay being lifted.' An indefinite stay under these circumstances is not warranted.

Conclusion The motion to compel further responses to RFPs 43 and 44 is denied.

The motion to compel further responses to SROGs 77–78 and 83–84 is denied.

The motion to compel further responses to SROGs 74–76, 79–82, and 85 is granted. Further verified responses, without objections, shall be served within 20 days.

The request for a stay is denied.

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