Judge: Michael Shultz, Case: 19STCV29783, Date: 2022-08-16 Tentative Ruling
Case Number: 19STCV29783 Hearing Date: August 16, 2022 Dept: A
19STCV29783
[TENTATIVE] ORDER
I.
BACKGROUND
Plaintiff alleges that Defendants
violated his civil rights and unlawfully deployed a K9 causing Plaintiff’s
injuries. Plaintiff alleges claims for 1) violation of the Bane Act, 2)
negligence, 3) assault, 4) battery, and 5) intentional infliction of emotional
distress.
II.
MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR INSPECTION
A.
Motion filed on July 25, 2022
Plaintiff asks for an order to
compel County of Los Angeles (“County”) to provide verified photographs of
Sergeant Rene Barragan’s (“Sgt. Barragan”) tattoos or to permit photographing
of his tattoos as set forth in an inspection request served on Defendant on
June 14, 2022. The court has previously found that the tattoos are relevant and
have previously required production of such photographs and testimony relevant
to the existence of the Defendant’s tattoos. County refused to produce any
photographs of Sgt. Barragan’s tattoo and did not produce Sgt. Barragan for
inspection and photograph. County’s response that it is not in possession of
photographs is not a code-compliant response. Plaintiff contends that County
employs Sgt. Barragan and has direct and legal control over him.
On August 2, 2022, Plaintiff filed
a supplemental brief citing to case authority in support of requiring Sgt.
Barragan to take a photograph of his tattoo.
B.
Opposition filed on August 3, 2022
County argues that it conducted a
reasonable search and confirmed it does not have photographs of Sgt. Barragan’s
tattoo. Sgt. Barragan’s counsel stated that Sgt. Barragan would not voluntarily
comply with Plaintiff’s demand. The discovery sought by Plaintiff is personal
to Sgt. Barragan. There is no civil code or policy that establishes that an
employer can compel a non-party employee to submit to a demand for inspection.
His body is not a tangible thing.
County argues
that Plaintiff’s case authority is distinguishable because that case concerned
parties compelled to take photographs of themselves in uniform. Sgt. Barragan
is not a party. The discovery is directed to his employer, not Sgt. Barragan.
Nor is his tattoo in County’s custody possession or control. The court should
impose sanctions against Plaintiff for unsuccessfully making this motion.
C.
Reply filed August 9, 2022
In reply, Plaintiff argues that
this court has determined that there is no recognized privacy interest in one’s
tattoo. Sgt. Barragan testified that the County did not ask him to provide a
photograph of his tattoo. The County has authority to order Sgt. Barragan to
provide the requested photograph. There is no need for Sgt. Barragan to produce
his physical body for photographs. Tattoos, like fingerprints, are “things”
subject to discovery.
III.
DISCUSSION
The court sustains Plaintiff’s objections to the declaration of
Rickey Ivie, Nos. 1-3. A third party’s statement is hearsay. Defense counsel
lacks foundation for statements regarding County’s conclusions with respect to
discovery lacks foundation.
The court denies Plaintiff’s request to take judicial notice of a
motion in limine filed in another case, as it is irrelevant.
A propounding party may move for an order compelling a party’s
response to the inspection demand. Code Civ. Proc., § 2031.300 subd. (b).
Failure to timely respond results in waiver of any objection. Code Civ. Proc.,
§ 2031.300 subd. (a) [“The party making the demand may move for an order
compelling response to the inspection demand.”].
On June 14, 2022, Plaintiff served County with a Demand for
Inspection directing the County to produce its employee, Sgt. Barragan, for
inspection and photographing. Alternatively, the demand states the County can
produce true and correct verified photographs of all tattoos on Sgt. Barragan’s
body. Declaration of Yana G. Henriks, Ex. 6, page 3.
On July 14, 2022, the
County served its response stating that subject to objections, Defendant
conducted a diligent search and reasonable inquiry and is unable to comply
because the item requested has never been in the County’s custody or control.
Henriks declaration, Ex. 7, 2:17-23. The response complies with the Code. Code
Civ. Proc., § 2031.230. The court’s
file reflects that the parties participated in an informal discovery conference
on August 25, 2022.
The
issue is not whether the tattoo at issue is relevant to this litigation; that
issue has been addressed numerous times by two different judicial officers in
this case. Henriks Declaration, Exs. 1-4. The issue presented by this motion is
whether a party can compel a party employer to produce an employee for
inspection or to require that employee, who is not a party to this action, to
submit to photographs of tattoos on his body.
Plaintiff refers to the County’s Manual of Policy and Procedures which
provide that the issue of membership in groups and subgroups is within
Defendant’s County’s exclusive control. Henriks Declaration, Ex. 5, 27-28,
40-41, 48, 82. This does not support the proposition that a non-party employee
must present himself for inspection and photographing at his employer’s demand.
Plaintiff’s case authority
determined that broadly construed, the Discovery Act’s reference to “objects or
tangible things” include photographs of the face and body of a person and is
"well within the contemplation of the statute.” Shepherd v. Superior Court (1976) 17
Cal.3d 107, 118. Therefore, the Court of Appeal held that the trial court could
compel defendant officers to be photographed in the clothing they wore on the
night of the shooting incident to facilitate the interviewing of witnesses. Shepherd
at 118. However, Shepherd is distinguishable because the discovery was
directed to the officers themselves, who were parties in the action. Here, the
discovery is directed to the County and demands that the County require its
non-party employee to submit to photographs as if an employee is a thing that
could be produced for photographing of his body. Shepherd is inapposite.
Defendant’s request for imposition
of sanctions against Plaintiff is denied as it would be unjust under the
circumstances. Code Civ. Proc., § 2031.310 subd. (h).
IV.
CONCLUSION
Based on the foregoing, the court DENIES Plaintiff’s motion to
compel the County’s further responses to Demand for Inspection and DENIES
Defendant’s request for imposition of sanctions.
The parties are admonished to
comply with the rules for papers filed electronically. Electronic exhibits must
be text searchable. CA ST CIVIL RULES Rule 2.256
subd. (d). Electronic exhibits submitted by represented parties “must include
electronic bookmarks with links to the first page of each exhibit and with
bookmark titles that identify the exhibit number or letter and briefly describe
the exhibit." CA ST CIVIL RULES Rule 3.1110 subd. (f)(4).