Judge Richard S. Whitney, Case 37-2022-00014529-CU-PO-CTL 2024-01-12 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00014529-CU-PO-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited PI/PD/WD - Other Discovery Hearing 37-2022-00014529-CU-PO-CTL FAN VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF UNREDACTED DOCUMENTS PRODUCED ON AUGUST 29, 2023 AND/OR AMENDED RESPONSES FROM DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA TO PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) will be DENIED unless PLAINTIFF provides more information, as discussed below.

Plaintiff XIAOCONG FAN ('Plaintiff') requests the Court order the following from Defendant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ('Defendant') pursuant to the Stipulated Protective Order: (1) Defendant to Produce an Unredacted Copy of REGENTS_000949; (2) Defendant to Produce an Unredacted Copy of REGENTS_001024; (3) Defendant to remove the bold CONFIDENTIAL that is stamped across the full page of text of all pages produced in Constantin Capsa's Personnel File – and place CONFIDENTIAL at the bottom of the page that does not cover text.

As noted by Plaintiff, this Court previously stated in an order that 'the Court believes Justin Capsa's (the Residential Security Officer) employment file is discoverable, but his privacy should be protected by a protective order.' Defendant subsequently met and conferred with Plaintiff and ultimately produced, pursuant to the Stipulated Protective Order, Justin Capsa's file with redactions. Defendant first served the supplemental responses to the requests on January 12, 2023. The Stipulated Protective Order was entered on August 28, 2023. On August 29, 2023, Defendant provided Capsa's entire personnel file, marked 'Confidential,' and provided a Privilege Log explaining each redaction.

Defendant asserts the motion is untimely. Notices of motion to compel further responses to requests for production must be given 'within 45 days of the service of the verified response.' (Code Civ. Proc., § 2031.310(c).) If the required notice is not provided, 'the demanding party waives any right to compel a further response to the demand.' (Code Civ. Proc., § 2031.310(c).) In such instance, the Court must deny the motion and it is without jurisdiction to grant such motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) '[T]he time within which to make a motion to compel production of documents is mandatory and jurisdictional just as it is for motions to compel further answers to interrogatories.' (Id.) However, the 45-day period does not apply if the parties agree in writing to use 'any specific later date' as the deadline. (Code Civ. Proc., § 2031.310(c).) Plaintiff asserts Defendant agreed to extensions of the deadline.

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3045937 49 CASE NUMBER: CASE TITLE: FAN VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 37-2022-00014529-CU-PO-CTL Plaintiff appears to assert the 45-day period should start from the date of production. However, CCP section 2031.310 clearly states it is from the date of the 'verified response, or any supplemental verified response.' (Code Civ. Proc., § 2031.310(c).) Therefore, to be timely, Plaintiff must demonstrate Defendant agreed to extend the 45-day deadline from January 12, 2023, after service on January 12, 2023. Plaintiff points to correspondence wherein Defendant represented that it was planning to provide supplemental discovery responses and that it could provide an extension on the motion to compel deadline if needed. Defendant did not agree to an extension of time as to a motion to compel further responses. Rather, Defendant believed the motion to compel would be taken off calendar since it was producing the personnel file pursuant to the Stipulated Protective Order with a privilege log.

Subsequently, Defendant agreed to an extension of time as to a motion to compel 'related to the redacted documents that were produced by Defendant on August 29, 2023.' However, Defendant clarified that it was not waiving its right to assert the motion was untimely from the date of the verified response. Importantly, Plaintiff does not provide Defendant's supplemental response on January 12, 2023. This is significant because the Court is unsure whether this motion should be treated as a motion to compel further responses or a motion to compel compliance.

Defendant has demonstrated that the motion is untimely if treated as a motion to compel further responses. Further, Plaintiff attempts to rely upon the CCP section dealing with motions to compel further responses (CCP section 2031.310), not motions to compel compliance (CCP section 20313.320).

There is no time limit on a motion to compel compliance. (Code Civ. Proc., § 2031.320; Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) Plaintiff failed to attach Defendant's supplemental responses dated January 12, 2023, such that the Court could determine whether Defendant complied with its statement of compliance. This supports that the Court should not treat the motion as one to compel compliance. The motion is timely to the extent Plaintiff is seeking to compel Defendant to comply with Defendant's statement of compliance.

The Court will address the substances of the motion in the case Plaintiff is able to demonstrate that Plaintiff is seeking to compel compliance. Defendant asserted privacy concerns. Where the constitutional right to privacy is involved, the court must 'balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.' (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) The California Supreme Court has described the manner to address privacy concerns in the context of discovery disputes as follows: 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.

[Citation] 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.

(Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) 'The burden is on the party seeking the constitutionally protected information to establish direct relevance.' (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) Plaintiff notes that Capsa was Defendant's sole employee to respond to the student gathering and that Capsa permitted decedent Aaron Fan to enter the bathroom before Aaron Fan fell. Defendant has already produced Capsa's personnel file. The issue is limited to whether specific prescription information and a doctor's note as well as information concerning a workplace injury are discoverable.

The medication Capsa was taking and notes from a doctor could have relevance, but Defendant represents it was '[a]n off-hand prescription that [Caspa] took on one night in January 2018 – four years before the incident involving Decedent.' The Court finds that the information is not directly relevant unless Caspa was taking the same prescription close to the time of the incident, at least within one year of the incident. The information could also be directly relevant if it reveals Caspa had an ongoing Calendar No.: Event ID: TENTATIVE RULINGS

3045937 49 CASE NUMBER: CASE TITLE: FAN VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 37-2022-00014529-CU-PO-CTL condition for which Caspa should have been taking medication. Given Defendant's representations, neither scenario is true. Therefore, the Court concludes the information is not directly relevant. Plaintiff's interest in obtaining it does not overcome Capsa's right to privacy.

As to the workplace injury, Defendant has not provided context to determine whether the information is directly relevant. While the incident occurred nearly five years before the incident at issue in this case, the information could possibly reveal how Capsa has reacted to certain stimuli and such stimuli could be similar to the circumstances of this case. The Court believes Defendant needs to provide more information to determine whether Capsa's privacy interest outweighs Plaintiff's interest. However, the Court is doubtful that the information is directly relevant as the Court fails to imagine how Capsa would have been injured during some student interaction that would have been similar to the situation in this case.

Finally, Plaintiff asserts the watermark 'CONFIDENTIAL' should be moved because it makes 'it difficult to ascertain the text on each page.' The Court is unconvinced as Plaintiff failed to identify to Defendant any page on which text was unreadable.

If Plaintiff is able to demonstrate to this Court that Defendant did not comply with its statement of compliance, then the Court will consider whether the workplace injury is sufficiently relevant to compel production. Otherwise, the motion will be denied in its entirety.

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