Judge: Michael Shultz, Case: 20STCV02062, Date: 2023-05-23 Tentative Ruling
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20STCV02062 Hearing Date: May 23, 2023 Dept: A
20STCV02062
[TENTATIVE] ORDER
GRANTING PLAINTIFF’S MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES AND
PRODUCTION IN RESPONSE TO PLAINTIFF’S DOCUMENT REQUESTS, SET NO. 3.
I.
BACKGROUND
The First Amended
Complaint alleges that Defendant, Doe 1, sexually assaulted Plaintiff who was
attending classes provided by Los Angeles Unified School District (“LAUSD”) at
Banneker Career and Transition Center (“Banneker”). Plaintiff alleges claims
for assault and battery, sexual battery, intentional infliction of emotional
distress, negligent infliction of emotional distress, negligent supervision,
and dependent adult abuse.
II.
ARGUMENTS
Plaintiff argues that
defendant LAUSD refuses to provide complete and verified responses and records
responsive to Plaintiff’s document requests. Plaintiff seeks documents relating
to incidents of physical harm and sexual assaults by the alleged perpetrator, Marcos
Avila (“Avila”), his academic records including education plans, and evidence
of disciplinary measures.
In opposition, LAUSD
argues that student records are protected from disclosure under state and
federal law. The document requests violate Avila’s privacy and is overbroad in
that it requests 22 years of documents. The documents will reveal confidential
information of third parties. Alternatively, the document request should be
narrowed to information of past sexual assault by the alleged perpetrator. Avila’s
academic records are not relevant.
In reply, Plaintiff argues
that the weight of relevant factors falls in favor of disclosing the records.
The documents are narrowly tailored to elicit documents directly relevant to
Plaintiff’s claim and are only available from LAUSD, who admitted that Avila
engaged in inappropriate conduct with students other than Plaintiff.
III.
LEGAL STANDARDS
A motion to compel further
responses to requests for production of documents is proper where Plaintiff
believes the statement of compliance is incomplete, a representation of
inability to comply is inadequate, incomplete, or evasive and/or an objection
in the response is without merit or too general. Code Civ. Proc., §2031.310.
The parties have met and conferred informally but did not schedule an informal
discovery conference with the court. The parties are admonished to adhere to
the Department’s requirement of an IDC with the court prior to hearing motions
to compel further discovery responses. See Courtroom Information for
Department A at https://www.lacourt.org/courtroominformation/ui/result.aspx.
The scope of discovery is
liberally construed in favor of disclosure “as a matter of right unless
statutory or public policy considerations clearly prohibit it.” (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355, 377-378.) The broad scope of permissible
discovery includes “any matter, not privileged, that is relevant to the subject
matter involved in the pending action or to the determination of any motion
made in that action, if the matter either is itself admissible in evidence or
appears reasonably calculated to lead to the discovery of admissible evidence.”
Code Civ. Proc., § 2017.010.
IV.
DISCUSSION
At issue are requests
57-60 and 63-67. Plaintiff requests documents relating to (1) physical harm and
sexual assault by Avila during his attendance at LAUSD and at Banneker, (2) academic
records including any Individualized Education Plans (“IEP”), (3) Avila’s counseling
records, and (4) documents showing disciplinary measures contemplated or
imposed by LAUSD on Avila.
A.
Defendant has not demonstrated
that the official information privilege applies.
Evidence Code section 1040 creates an
absolute privilege if disclosure is forbidden by a federal or state statute. (Evid. Code, § 1040. (b).)
Otherwise, the privilege is conditional if disclosure is against the public
interest. (Id. (b)(2)." (Los Angeles Unified School Dist. v. Trustees of Southern
California IBEW-NECA Pension Plan (2010) 187
Cal.App.4th 621, 628.) “Official information” is
defined as "information acquired in confidence by a public employee in the
course of his or her duty and not open, or officially disclosed, to the public
prior to the time the claim of privilege is made." (Evid. Code, § 1040 (a).)
Defendant’s argument here is not well developed. Defendant has not identified a
state or federal statute prohibiting disclosure of academic or counseling
records. Nor has Defendant persuasively demonstrated that disclosure of the
information would be against the public interest. Instead, Defendant argues
that “it is understandable” that Plaintiff seeks to discover information
related to the alleged perpetrator. (Opp. 5:14).
Nor has
Defendant established that the scope of requested documents is so broad as to
“tip the scales in favor of preserving the confidential nature of such
records.” (Opp. 5:15-18.) Plaintiff requests records of Avila while he was
enrolled at LAUSD or Banneker. This is relevant to establishing Defendant’s
knowledge of Avila’s behavior or past conduct which is relevant to their
alleged negligence in supervising Avila. California “has long imposed on school
authorities a duty to 'supervise at all times the conduct of the children on
the school grounds and to enforce those rules and regulations necessary to
their protection. [Citations.]' Taylor v. Oakland Scavenger
Co. (1941) 17 Cal.2d 594, 600 . . .; Ed. Code, § 13557
[now § 44807]. . . . The standard of care imposed upon school
personnel in carrying out this duty to supervise is identical to that required
in the performance of their other duties. This uniform standard to which
they are held is that degree of care 'which a person of ordinary prudence,
charged with [comparable] duties, would exercise under the same circumstances.'
[Citations.] Either a total lack of supervision [citation] or ineffective
supervision [citation] may constitute a lack of ordinary care on the part of
those responsible for student supervision. Under section 815.2,
subdivision (a) of the Government Code, a school district is
vicariously liable for injuries proximately caused by such negligence.” (Lucas v. Fresno Unified Sch. Dist. (1993) 14
Cal.App.4th 866, 872.)
Defendant
argues that Avila’s psychotherapist and/or counseling records are “inherently
confidential” but does not cite any authority that provides that they are
absolutely or conditionally privileged from disclosure. Evidentiary privileges
are creatures of statute; “the courts may not add to the statutory privileges
except as required by state or federal constitutional law [citations], nor may
courts imply unwritten exceptions to existing statutory privileges." (Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1231.)
While Defendant
did not specifically cite to the Education Code, it does provide that a school
district is not authorized to permit access to pupil records to a person without
parental consent “or a judicial order.” (Ed. Code, § 49076(a).”
Confidential records and privacy are protected by the state’s Constitution. (Vinson v.
Superior Court (1987) 43 Cal.3d 833, 839; White v. Davis (1975)
13 Cal.3d 757.) Where privacy rights are
implicated, the requesting party (Plaintiff) must show that the records sought
are directly relevant to Plaintiff’s claims and are essential to the fair
resolution of the lawsuit. (Davis v. Superior Court (1992)
7 Cal.App.4th 1008, 1014). The burden falls on the party asserting
privacy to establish the extent and seriousness of the prospective invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557).
Against that
showing, the Court must weigh the countervailing interests the opposing party
identifies. (Id.). The Court considers the purpose of the information
sought, the effect that disclosure will have on the affected persons and
parties, the nature of the objections urged by the party resisting disclosure,
and whether there are less intrusive means for obtaining the requested
information. (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755).
Plaintiff has
established that Avila’s academic, disciplinary, and counseling records are
directly relevant to Plaintiff’s negligence claims as they are probative of
Defendant’s knowledge of Avila’s purported “dangerous propensities” and what if
any supervision was required or provided under the circumstances. Plaintiff obtained deposition testimony from
another witness about two other sexual assault incidents involving Avila.
(Reply, Ex. 1, 23:16-24.) LAUSD’s responses to discovery admitted that Avila
committed “some form of inappropriate conduct.” (Gamez Decl., Ex. 8, pdf page
121, ll. 5-6.
Plaintiff is
also entitled to discover whether there are other witnesses to Avila’s
behavior. (Code Civ. Proc., § 2017.010. ["Discovery
may be obtained of the identity and location of persons having knowledge of any
discoverable matter …"].) With respect to the privacy interests of third
parties, the parties here have entered into a stipulated protective order
limiting the disclosure of confidential information to attorneys and the
employees. (See Protective Ord. filed 6/4/20.) The balance of factors weighs in
favor of disclosure.
V.
CONCLUSION
Based on the
foregoing, Plaintiff’s motion is GRANTED.