Judge Ralph C. Hofer, Case Number: 23GDCV02370, Date: 2025-01-17 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV02370, Date: 2025-01-17 Tentative Ruling

Case Number: 23GDCV02370 Hearing Date: January 17, 2025 Dept: D

TENTATIVE RULING

Calendar: 3

Date: 1/17/2025

Case No: 23 GDCV02370 Trial Date: None Set

Case Name: Manukyan, et al. v. Glendale Unified School District

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES

Moving Party: Plaintiff Harutyuan Manukyan, through his GAL

Responding Party: Defendant Glendale Unified School District

RELIEF REQUESTED:

Further Responses to First Set of Form Interrogatories, Interrogatory 12.1

MONETARY SANCTION:

No monetary sanctions sought

FACTUAL BACKGROUND

Plaintiff Harutyun Manukyan, by and through his guardian ad litem, alleges that On January 12, 2023, plaintiff was lawfully on the premises of defendant Glendale Unified School District at Glendale High School in plaintiff’s capacity as a student, during school hours, when two individuals, one believed to be a student at Glendale High School and another individual who is believed to be a non-student who entered school grounds during school hours as a result of breach in security, took Plaintiff into a restroom and severely assaulted and battered him, rendering serious injuries including a fracture to his cervical spine.

The complaint alleges that defendants negligently and recklessly failed to provide security, adequate security, and measures to keep non-students off the premises and protect plaintiff and other students attending the school. It is also alleged that defendant failed to provide adequate safeguards against a known dangerous condition on its premises, by, among other acts and omissions, failing to supervise at all times the conduct of children on the school grounds as well as failing to monitor any individuals who enter the premises and failing to enforce rules and regulations necessary to aid in Plaintiff’s protection.

The complaint alleges causes of action for negligence, premises liability, and battery.

Defendant Glendale Unified School District has filed a cross-complaint for indemnity and declaratory relief against cross-defendant Gavik Ter-Hovsepyan, a minor child, and the child’s parents, cross-defendants Armen Ter-Hovsepyan and Yeranuhi Varderesyan, alleging that cross defendants were responsible in whole or in part for the incident which is the subject of plaintiff’s complaint against Glendale Unified School District and that cross-complainant Glendale Unified School District is entitled to indemnity.

The cross complaint alleges causes of action for total indemnity, partial indemnity and declaratory relief.

The file shows that on November 15, 2024, the parties submitted to the court a Stipulation Regarding Confidential Documents. A Protective Order approving the Stipulation was signed and filed as an order of the court the same date.

ANALYSIS:

Plaintiff by this motion argues that plaintiff is entitled to a further response to Form Interrogatories served in the first round of discovery requesting the identification of witnesses to the incident of physical assault on school property alleged in plaintiff’s complaint. Plaintiff argues that defendant identified three third party witnesses, but failed to provide their respective addresses and phone numbers.

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 relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2030.300 provides, in pertinent part:

“(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete….

(3) An objection to an interrogatory is without merit or too general.

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:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

The motion concerns one Form Interrogatory, Interrogatory No. 12.1.

This interrogatory requests the name, address and telephone numbers of each individual who witnessed the incident, made a statement at the scene, heard a statement at the scene, or of anyone having knowledge of the incident.

The response is a series of objections, including boilerplate objections that the interrogatory is vague and ambiguous as to its definition of “Incident,” is overly broad in scope so as to be unduly burdensome and constitutes harassment, and is not reasonably calculated to lead to the discovery of admissible information.

The response also objects that the interrogatory

“seeks the disclosure of information which would invade the attorney-client privilege, attorney work product doctrine, official information privilege, and violates the privacy rights of Responding Party, the employees and/or students of the Glendale Unified School District (“GUSD”), or third parties under the California and United States Constitution, Family Educational Rights and Privacy Act 20 U.S.C. § 1232g (“FERPA”), Health Insurance Portability Accountability Act (“HIPAA”), and the California Education Code. To the extent that this interrogatory seeks the identifying information and/or contact information of the current or former students of Glendale High School, the GUSD specifically raises privacy objections on the grounds that such disclosure would violate the protections afforded under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, which mandates that educational institutions protect the confidentiality of education records. 20 U.S.C. § 1232g; Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396. Under FERPA, schools cannot divulge student records or information without signed authorization from a parent or student of majority. 20 U.S.C. § 1232g(b)(1).”

Finally, responding party further “objects that the disclosure of information requested herein would result in Propounding Party taking undue advantage of Defense counsel’s industry and efforts, and infringe upon Defense counsel's impressions, conclusions, opinions, legal research and/or theories based upon which particular individuals were interviewed…”

Without waiving these objections, defendant responds:

“(a) Plaintiff, Georgi M., Gagik Ter-Hovsepyan, and Sayad N.; (b) Plaintiff, Georgi M., Gagik TerHovsepyan, and Sayad N.; (c) Plaintiff, Georgi M., and Gagik Ter-Hovsepyan; (d) Plaintiff, Georgi M., Gagik Ter-Hovsepyan, and Assistant Principal Hasmik Simonyan, who may be contacted by counsel for the school district. Discovery is ongoing and Defendant reserves the right to supplement or amend this response should additional information become available.”

As an initial matter, it is not a proper response that discovery is ongoing and propounding party reserves the right to supplement or amend the response; plaintiff is entitled to the information now known to defendant after making the required investigation, including identification of all witnesses.

CCP § 2030.210 provides, in pertinent part:

“(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

Under CCP § 2030.220:

“(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

Plaintiff argues that defendant’s objections are improper, as the right to discovery, as set forth above, expressly includes entitlement to “the identity and location of persons having knowledge of any discoverable matter.” CCP §2017.010.

Plaintiff argues that defendant has objected improperly to providing contact information regarding the witnesses defendant has identified in its response to the interrogatories. Plaintiff argues that plaintiff does not seek witness statements, as sought in the legal authority defendant cites, but rather the mere contact information of witnesses defendant itself identifies. Plaintiff argues that there is no foundation for asserting that the contact information of alleged witnesses to the subject incident is protected by any privilege or outside the scope of reasonable discovery, and that if defendant contends there are direct third-party witnesses to the subject incident, plaintiff is entitled to their contact information in order to determine the scope and extent of their related knowledge and potential testimony. Plaintiff argues that Form Interrogatory 12.1 does not require the disclosure of any sensitive information pertaining to these witnesses nor does plaintiff seek such information.

It appears that what is sought is the contact information of three percipient witnesses to the alleged incident which witnesses have been affirmatively identified by defendant. This information is clearly discoverable information, and the burden shifts to defendant to justify any objection or failure to completely respond.

Defendant GUSD in the opposition argues that the information plaintiff seeks consists of the identity and contact information of three students (two minors and one former student) who attended Glendale High School. Defendant argues that the information is privileged and protected and that defendant GUSD has objected in order to ensure privacy protections of its students, as well as to comply with the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g, hereafter, "FERPA") and the California Education Code. Defendant argues that plaintiff’s right to discovery concerning the identification and contact information of third parties does not outweigh the privacy interests of third parties, especially when the third parties are minors and federal and state law prohibit the disclosure absent a court order.

Generally, in evaluating a claim of privacy in connection with a discovery order, the trial court should apply the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, for evaluating invasion of privacy claims.

First, a claimant must possess a “legally protected privacy interest.” Hill, at 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. Hill, at 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. Hill, at 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. Hill, at 37-40.

In Williams v. Superior Court (2017) 3 Cal.5th 531, the California Supreme Court, in connection with a putative class action by a store employee against an employer under PAGA for alleged wage and hour violations, found that the trial court had erred in denying a motion to compel the employer, Marshalls of California, LLC, to identify and provide contact information of each nonexempt California employee during a two year period.

With respect to the privacy objection, the Court set forth the following analysis to be applied:

“The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Id. at pp. 37–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.).”

Williams, at 552.

The Court rejected case law which requires a party seeking discovery of private information to establish a compelling interest, placing the initial burden on the party asserting a privacy objection:

“Marshalls argues Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 did not overrule the compelling interest/compelling need test, but only concluded such an interest need not be shown in every case. This is correct so far as it goes. A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right. (See, e.g., American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 340–342, 66 Cal.Rptr.2d 210, 940 P.2d 797.) But the flaw in the Court of Appeal's legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires. What suffices to justify an invasion will, as Marshalls recognizes, vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.”

Williams, at 557.

Here, defendant GUSD, the party asserting the privacy objection, does not make a clear argument under this standard, but seems to argue that the students identified, evidently Georgi M., Gagik Ter-Hovsepyan, and Sayad N., would have an objectively reasonable expectation of privacy in the given circumstances, based on Education Code § 49076, which provides:

“(a) A school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in this section and as permitted by Part 99 (commencing with Section 99.1) of Title 34 of the Code of Federal Regulations.”

There is no evidentiary showing submitted with the opposition which would support the argument that the witnesses identified were in fact pupils, or that the information requested can only be provided by reference to those records. Ordinarily, a representative of the school district would verify in a declaration the fact supporting such an argument.

In any case, in addition to Education Code section 49077, GUSD relies on 34 CFR 99.30 (a), part of the Family Educational Rights and Privacy Act (FERPA), under which:

“(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in § 99.31.”

Under section 99.31 (a)(9)(i), an exception arises when “The disclosure is to comply with a judicial order or lawfully issued subpoena.”

Defendant argues that the Department of Education considers the scope of “Personally Identifiable Information” to include:

“(a) The student's name;

(b) The name of the student's parent or other family members;

34 CFR 99.3

GUSD argues that the federal act prohibits disclosure, in reliance on 20 USC section 1232g (b), which provides under subdivision (1): “No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein… of students without the written consent of their parents to any individual, agency, or organization…”

It is not clear how the argument applies to the contact information of the witness identified as Assistant Principal Hasmik Simonyan, who evidently is not a pupil, so that contact records would not be governed by the codes and regulations cited. A further response providing the contact information for this witness accordingly is ordered with respect to this identified witness.

With respect to any of the identified witnesses, GUSD does not attempt to establish that the threatened intrusion is serious. It does not appear that the threatened intrusion would in fact be serious, given that the only information to be disclosed would be the last names of two of the three identified pupils, and the residential addresses of all three pupil or former pupil witnesses and the non-pupil witness, which is very narrow information. More importantly, as emphasized in the reply, this is a situation where the parties have entered into a stipulation and have in place an order protecting the disclosure of this information and limiting its use to this lawsuit. GUSD under the circumstances has failed to establish an intrusion into privacy which is serious in nature, scope, and actual or potential impact.

Even if this seriousness showing had been made, plaintiff has in response shown how the information serves an important countervailing interest of permitting plaintiff to discover directly relevant information in this matter concerning the perceptions of these identified percipient witnesses of what occurred during the subject incident.

In general, information such as the residential addresses of percipient witnesses is considered a permissible form of discovery. As noted by the Second District in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, “One glance at the form interrogatories approved by the Judicial Council, particularly the interrogatories in the 12.0 series, demonstrates how fundamentally routine the discovery of witness contact information is.” Puerto, at 1250.

It is generally recognized that information such as residential addresses or telephone numbers are “routinely disclosed during discovery,” particularly in “routine civil litigation,” and where there is an absence of disclosure posing a potential safety risk or implicating privacy in a matter such as an arrest or booking record. Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 365. This appears to be in the nature of routine civil litigation and the routine identification of percipient witnesses.

This situation also appears to be a situation where the contact information cannot be obtained in any less intrusive way.

The court must then consider any protective measures or feasible alternatives suggested by the party seeking protection. Defendant here has indicated that even if a court order is warranted here, defendant will still be obligated to notify the parents of any minor pupils or the majority age pupil directly to inform them of the court order in order to comply with GUSD’s statutory obligations. GUSD cites to Education Code section 48077, which provides:

“(a) Information concerning a pupil shall be furnished in compliance with a court order or a lawfully issued subpoena. The school district shall make a reasonable effort to notify the pupil's parent or legal guardian and the pupil in advance of compliance with a lawfully issued subpoena and, in the case of compliance with a court order, if lawfully possible within the requirements of the order.

(b) Once a court order or lawfully issued subpoena is issued to obtain a pupil's contact information, the school district shall make a reasonable effort to enter into an agreement with the entity that obtained the court order or subpoena requiring that the pupil contact information be maintained in a confidential manner.

(c) Notwithstanding the content or existence of any agreement with a school district, a party that obtains pupil contact information pursuant to this section shall not use or disseminate that information for any purpose except as authorized by the court order or subpoena.”

(Emphasis added).

Similarly under 34 CFR 99.31(a)(9), where the “disclosure is to comply with a judicial order…” under subdivision (i):

“(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action…”

A feasible alternative accordingly appears to be permitting a sufficient time for defendant to comply with the court’s order so that defendant has the opportunity to make a reasonable effort to notify the interested parties in advance of its compliance with the court order. As noted above, an agreement has already been made with plaintiff to maintain the subject information in a confidential manner.

It would appear that the balance here strongly favors the disclosure of the information necessary to identify and contact witnesses affirmatively identified with knowledge by GUSD, and that the protective order, giving of notice, and providing a sufficient time window for a further response to permit reasonable efforts of notice to be given, would be appropriate. Hence, the motion is granted and further responses ordered pursuant to such conditions.

RULING:

Motion to Compel Further Response Re: Form Interrogatories (Set 1) is GRANTED.

Defendant Glendale Unified School District is ordered to serve a further complete verified response to Form Interrogatory 12.1, and each subpart, which provides the identification and contact information required by the interrogatory for each person identified in response to the interrogatory. The response must provide all information requested in that interrogatory, and fully comply with the requirements under the Discovery Act, including, under CCP § 2030.210 (a)(1) answers “containing the information sought to be discovered.” The responding party must also comply fully with CCP § 2030.220, including subdivision (a): “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.”

With respect to defendant’s objections based on third party privacy, pursuant to Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, the Supreme Court held that in evaluating potential invasions of privacy, the party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances and a threatened intrusion that is serious. While defendant has cited to statutory authority establishing an objectively reasonable expectation of privacy by pupils in pupil records, it has not been established that under the narrow circumstances here there is a threatened intrusion that is serious. Even if such a showing had been made, plaintiff has established a legitimate and important interest in pursuing relevant information in connection with plaintiff’s claims in this action concerning the subject incident, in effect, the identification and location of percipient witnesses. The request is narrow, and the court finds the need for this information outweighs any privacy invasion argued by defendant. The parties are also in this matter protected by a protective order concerning maintaining the confidentiality of records, and the Court orders that the information provided in the further response to Form Interrogatory No. 12.1 is subject to that order, signed and filed on November 15, 2024.

In recognition of the obligations of defendant Glendale Unified School District under Education Code section 48077 and 34 CFR 99.31(a)(9)(ii), this order will be issued this date, but defendant is permitted 60 days to serve the further response to permit defendant to make a reasonable effort to notify the pupil's parent or legal guardian and the pupil in advance of compliance with the court order.

There has been no objection justified to the provision of contact information regarding witness Assistant Principal Hasmik Simonyan, and a full and complete further response, including address information, must be provided as to this witness.

Defendant has failed in the opposition to make any effort to meet its burden to justify any of the other asserted objections in its response to the subject interrogatory. The court has reviewed the other objections, and finds they are without merit, and objections are overruled. Further responses are to be without objection.

The Court does not find acceptable a response to discovery which states, “Discovery is ongoing, or reserves the right to supplement or amend responses.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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