Judge Ralph C. Hofer, Case Number: 20STCV27305, Date: 2024-03-15 Tentative Ruling

Plaintiff Elijah A. Alvillar, an incompetent individual, through his guardian ad litem, alleges that on May 6, 2019, while plaintiff was under the care, custody and control of defendant BHC Alhambra Hospital, Inc., an acute-care psychiatric hospital, defendant breached the applicable standard of care for safe custody of plaintiff when defendant and its agents failed to adequately supervise and protect plaintiff from harm while he was a resident at the Hospital.

Plaintiff alleges that he suffers from a psychiatric disability which required that he be supervised and protected from unsafe situations due to the potential for impulsive acts in which he might engage, but at the time of the subject accident, plaintiff was left unsupervised in the “smoking cage” portion of the residential care facility, which consists of a chain link fencing over the cage acting as a ceiling barrier which rises to over 8 feet in height. Plaintiff alleges that due to defendant’s failure to properly supervise plaintiff, plaintiff climbed on the chain link cage to an unsafe height and fell, immediately shattering his right heel on impact, and causing plaintiff serious injuries and related damages.

The file shows that on November 21, 2021, the court, the Honorable Michael E. Whitaker presiding, sustained a demurrer to the second cause of action of the First Amended Complaint for Dependent Adult Neglect without leave to amend, and also granted a motion to strike a prayer for enhanced remedies without leave to amend. The FAC as remaining alleges a cause of action for negligence.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter….”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Coy, at 221-222. A court should generally consider the following factors:

“Objection. Requests information that is privacy protected. (See Civil Code §§1798.79.9, 1798.79.95; Evidence Code §1035.4, 1035.8, 1036. Britt v. Sup. Ct. (San Diego Unified Port District) (1978) 20 Cal. 3d 844.) Requested information is protected from discovery and disclosure by the privacy protections mandated by the California Constitution, article I, section 1. See also Mendez v. Sup. Ct. (Peery) (1988) 206 Cal. App. 3d 557; Britt v. Sup. Ct. (San Diego Unified Port District) (1978) 20 Cal. 3d 844; Bd. of Trustees of Leland Stanford Jr. Univ. v. Sup. Ct. (Dong) (1981) 119 Cal. App. 3d 516; City of Santa Barbara v. Adamson (1980) 27 Cal. 3d 123, 130.”

Plaintiff argues that there is good cause for compelling a further response to this discovery because, as set forth above, the code expressly permits the discovery of the “identity and specific location of persons having knowledge of any discoverable matter,” and Ryan Flores was the employee who allegedly was on the patio when plaintiff fell, and who held a duty to ensure that plaintiff did not act as a danger to himself in the psychiatric facility. Plaintiff argues that Flores is the essential witness in this case, and defendants are in possession of his current or last known whereabouts. Plaintiff argues that the policy of defendant was that all patients be accompanied and observed on the patio, and it is essential that plaintiff be afforded the opportunity to depose Ryan Flores and can only do so by discovering his last known contact information.

Plaintiff has indicated that plaintiff noticed the deposition of Ryan Flores, but defendant advised that Ryan Flores is no longer an employee of defendant so defendant could not take him available. [Boris Decl., para. 4]. Plaintiff also indicates that plaintiff has not been able to locate Ryan Flores through third party investigation services, as Ryan Flores is a common name in the Los Angeles area. [Boris Decl., para. 7].

Both sides cite to Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, in which the Second District addressed an issue similar to the one presented here, as plaintiffs in that case brought an action against his employer for alleged wage and hour violations and sought through Form Interrogatory No. 12.1 the contact information of other employees. The employer in that case had identified by name and position between 2,600 and 3,000 employees. The trial court granted a motion to compel a further response to the interrogatory, and ultimately approved a process whereby a third-party administrator sent a letter to each affected individual informing them of the request for their address and phone number in connection with the litigation and permitting the individuals to give their permission, or to opt out.

The Second District reviewed the standards applicable to the privacy analysis in connection with contact information, balanced the need for the information against the intrusiveness into the privacy of individuals, and concluded that the contact information was discoverable.

“First, a claimant must possess a “legally protected privacy interest.” (Hill, at p. 35.) Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. (Id. at pp. 36–37.) Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact. Trivial invasions do not create a cause of action. (Id. at p. 37.) If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information. (Pioneer, at pp. 370–371.)”

The Second District faced a situation like the one here, where a percipient witness employee has already been identified by defendant through the depositions of other employee witnesses. The discussion provided by the court of appeal is very broad, and assumes that a propounding party would be entitled to discover the identities of all potential percipient witnesses in cases like the one before it:

“As the Supreme Court pointed out in Pioneer, the information sought by petitioners here—the location of witnesses—is generally discoverable, and it is neither unduly personal nor overly intrusive. (Pioneer, at p. 373.) In some respects, the potential intrusion here is even less significant than that in Pioneer, because here the requested disclosure does not involve individuals' identities, which had already been disclosed by Wild Oats prior to the filing of the motion to compel. There simply is no evidence that disclosure of the contact information for these already identified witnesses is a transgression of the witnesses' privacy that is “sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” (Hill, supra, 7 Cal.4th at p. 37.)

Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses' residential contact information. Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter. In Morales v. Superior Court (1979) 99 Cal. App. 3d 283 [160 Cal. Rptr. 194], the court concluded that while the discovery of names, addresses, and telephone numbers of persons with whom the plaintiff had extramarital affairs was relevant to the subject matter of the action, the compelled disclosure of that information would violate the participants' privacy rights and was not necessary to obtain a fair trial: a fair trial could be had by compelling the plaintiff to disclose whether and when he had extramarital affairs without giving the identities and contact information of the other participants. Obviously, that is not the case here, because the discovery is designed to identify witnesses rather than to establish facts about the existence of relationships. For Wild Oats to disclose whether it had employees and how many employees it had would not be adequate under these circumstances; petitioners need to talk to the witnesses.”

“The individuals whose contact information is sought here have been identified as potential witnesses in response to written discovery. These current and former employees are potential percipient witnesses to the occupational duties of petitioners, the primary issue in this litigation, and as such their locations are properly discoverable. (§ 2017.010.)

In addition, plaintiff has established a strong interest in obtaining this information, as Flores has been identified as the employee on the patio when plaintiff was evidently not stopped from harming himself and has information essential to the prosecution of plaintiff’s claims in this matter. Plaintiff has also indicated that there is no less intrusive means for obtaining the information, as plaintiff has made efforts to locate the former employee through a private investigator but has been unable to do so.

Defendant relies on Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, cited in Puerto, in which the court of appeal expressly recognized that information such as residential addresses or telephone numbers are “routinely disclosed during discovery,” particularly in “‘routine’ civil litigation.” Planned Parenthood, at 365. In Planned Parenthood, the court of appeal distinguished the case before it from such “routine” civil litigation, as the disclosure of the names and addresses of nonparty staff and volunteers of Planned Parenthood posed a potential safety risk, and there was substantial evidence presented that these addresses had been actively protected as confidential. The court noted that the courts have protected addresses of witnesses when the circumstances merit such protection, including in cases pertaining to abortion providers, or where a person’s safety or privacy in a matter such as an arrest or booking record is at stake. Id.

As argued in the reply, this circumstance can be fairly addressed by requiring the information to be disclosed subject to a protective order, pursuant to which the information will be used only in this litigation, with plaintiff’s counsel offering to further limit disclosure of the information so that it would not be disclosed to plaintiff, counsel’s client.

Overall, applying the Puerto analysis, based on the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, defendant has not done a particularly thorough job of establishing that its former employee has a reasonable expectation of privacy under the particular circumstances, making no mention of the customs and practices concerning the collection of residential information from employees, or any maintenance practices to ensure the information remains confidential, or that the invasion here, consisting of counsel only using the information to locate the witness for purposes of obtaining a deposition, would be a serious invasion of privacy. Even recognizing a legally protected privacy interest, and a serious invasion, the competing interest of plaintiff in obtaining the testimony of this witness is a significant and important countervailing interest. It has also been established that the information cannot be obtained through other means, and that plaintiff is willing to maintain the information in confidence pursuant to a protective order.

In weighing these considerations, the court finds that the need for information which could directly support plaintiff’s claims in this matter, outweighs the witness’ privacy interests as reasonably limited by the facts of this case, so long as a protective order is in place. The parties are ordered to meet and confer with respect to entering such an order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties are ordered to provide to the Court within five court days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form, as required by the model, including a stipulation that the contact information will not be disclosed to plaintiff or his guardian ad litem, and the order will be entered by the Court as appropriate.

With respect to interrogatories, CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant in opposition argues that defendant was substantially justified in asserting the privacy objection on behalf of its former employee, and was duty bound to resist attempts at unauthorized disclosure absent a court order. The opposition is supported by a declaration of counsel in which counsel indicates that counsel has attempted to contact Ryan Flores to inquire whether he is amenable to representation and whether he would object to disclosure of his privacy-protected information, but that those efforts “have been unsuccessful.” [Brennan Decl., para. 5]. Under the circumstances, the court finds that defendant was substantially justified in requiring a court order before releasing the information, and no sanctions are awarded.

The Court has weighed the existence of the claimed legally protected privacy interest, the reasonable expectation of privacy in the given circumstances, the severity of the proposed intrusion as narrowly proposed, as well as plaintiff’s legitimate and important interest in pursuant relevant information in connection with plaintiff’s claims in this action concerning what occurred at the time plaintiff suffered harm, the details of which cannot be obtained by other means. The Court finds that the need for the information outweighs any privacy interest asserted by defendant, and that the information will be disclosed only subject to a protective order which will prohibit the use of contact information for the witness outside the context of this litigation and will prohibit counsel for plaintiff from disclosing the information to plaintiff in this matter.

The parties are ordered to meet and confer with respect to entering a stipulated protective order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties will be ordered to provide to the Court within five days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form, as required by the model, including a stipulation that the contact information will not be disclosed to plaintiff or his guardian ad litem, and the order will be entered by the Court as appropriate.

Defendant BHC Alhambra Hospital is ordered to serve further verified responses to Special Interrogatories, Set Three, Interrogatory No. 33 which provides all information requested, without objection, subject to the Stipulated Protective Order.

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