Judge Salvatore Sirna, Case 21STCV01296 2022-12-13 Tentative Ruling

Judge: Salvatore Sirna, Case: 21STCV01296, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV01296 Hearing Date: December 13, 2022 Dept: G

Plaintiff L.R.’s Application for an Order to Seal Court Records in Support of Plaintiff’s Motion to Compel and Plaintiff’s Separate Statement in Support of Plaintiff’s Motion to Compel

Respondent: NO OPPOSITION

Plaintiff L.R.’s Motion to Compel Defendant Walnut Valley Unified School District’s Further Responses to Request for Production of Documents Set Two Nos. 20, 21, 22, and 25

Respondent: Defendant Walnut Valley Unified School District

TENTATIVE RULING

Plaintiff L.R.’s Application for an Order to Seal Court Records in Support of Plaintiff’s Motion to Compel and Plaintiff’s Separate Statement in Support of Plaintiff’s Motion to Compel is GRANTED.

As for Plaintiff L.R.’s Motion to Compel Defendant Walnut Valley Unified School District’s Further Responses to Request for Production of Documents Set Two Nos. 20, 21, 22, and 25, the court requests additional briefing from the parties regarding the unique privacy issues raised by the motion to compel. Specifically, the court requests the parties address whether California’s broad discovery statute controls, or whether a minor’s privacy rights control. The court intends to set a briefing schedule following discussion of the issues on December 13, 2022.

BACKGROUND

This action arises from the sexual assault of a middle school student by a fellow student. Plaintiff L.R., also known as John Doe, was a student with learning disabilities attending South Pointe Middle School, operated and controlled by Defendant Walnut Valley Unified School District. Susan Arozla (Arozla) was employed as the principal of South Pointe Middle School by Defendant. From August 2019 to March 2020 on multiple occasions, another student with learning disabilities sexually assaulted Plaintiff in school bathrooms during school hours. In August 2020, Plaintiff’s parents became aware of what happened to Plaintiff and informed school staff, including Arozla.

On January 12, 2021, Plaintiff, by and through guardian ad litem Jennifer Butler, filed a complaint against Defendant, Arozla, and Does 1-50, alleging the following causes of action: (1) negligence; (2) negligent hiring, retaining, supervision, and training; (3) negligent failure to supervise and careless failure to guard, maintain, inspect, and manage the school premises; and (4) intentional infliction of emotional distress. On May 17, 2021, Plaintiff filed a First Amended Complaint (FAC) against the same defendants, omitting the fourth cause of action for intentional infliction of emotional distress.

On December 2, 2021, Plaintiff filed the present motion to compel further and applied for an order to seal court records. A status conference and a hearing of the motion are set for December 13, 2022. A hearing on a motion for summary judgment is set for April 13, 2023.

ANALYSIS

Application for Order to Seal Court Records

Plaintiff seeks an order from the court sealing court records in support of Plaintiff’s motion to compel further. The court grants the request.

The sealing of court records is governed by rules 2.550 and 2.551 of the California Rules of Court. (Mercury Interactive Corp. v. Klein¿(2007) 158 Cal.App.4th 60, 68.)¿¿The presumption of open access to court records does not apply to “records that are required to be kept confidential by law.”¿(Cal. Rules of Court 2.550, subd. (a)(2).)¿A party seeking to seal a court record or seeking to file a record under seal must do so by motion or application supported by a declaration showing facts justifying the record’s sealing. (Cal. Rules of Court 2.551, subd. (b)(1).)

Rule 2.550(d) of the California Rules of Court states: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and¿(5) No less restrictive means exist to achieve the overriding interest.”

Here, the court finds Plaintiff’s interest in maintaining anonymity through a pseudonym overrides the public’s interest in public access to court records. Second, the court finds Plaintiff’s overriding interest of protecting the anonymity of minor sexual assault victims supports sealing the record. Third, the court finds not sealing the record could result in Plaintiff’s real name being made public. Last, the court finds the proposed sealing is narrowly tailored to the discovery motion at issue and no less restrictive means exist. In coming to this conclusion, the court notes “protecting minor victims of sex crimes from the trauma and embarrassment of public scrutiny” has been previously noted as an overriding interest. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1206-1207, citing Press-Enterprise Co. v. Superior Court for Riverside County (1986) 478 U.S. 1, 9, fn. 2.)

Accordingly, Plaintiff’s application is GRANTED. The court orders that Plaintiff’s motion to compel and the accompanying separate statement are sealed, and not part of the public record without further order from the court.

Motion to Compel Further

Plaintiff argues that the court should compel Defendant to provide further responses to Plaintiff’s second set of requests for production of documents numbered 20, 21, 22, and 25. The court agrees.

A party may file a motion compelling further production if it deems the responses are inadequate, incomplete, or evasive, or an objection in the responses is without merit or too general. (Code Civ. Proc., § 2031.310.) The motion shall be accompanied with a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).) To prevail, the moving party must first offer specific facts demonstrating “good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The court must impose sanctions on a party who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or other circumstances make imposing a sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) However, “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc., § 2031.310, subd. (j)(1).)

On July 20, 2021, Plaintiff served Plaintiff’s Request for Production of Documents, Set Two on Defendant. (Wright Decl., ¶ 6.) Defendant provided responses on August 23. (Wright Decl., ¶ 7.) Disagreeing with Defendant’s objections to document requests involving the student who sexually assaulted Plaintiff, Plaintiff’s counsel sent Defendant a meet and confer letter on September 13. (Wright Decl., ¶ 8.) On September 16, Defendant responded disagreeing and inviting Plaintiff to file a motion to compel further. (Wright Decl., ¶ 9.)

All four of Plaintiff’s requests for production involve the student who sexually assaulted Plaintiff. Request No. 20 seeks any documents in Defendant’s possession related to the student. Request No. 21 seeks any communication between Defendant and the student. Request No. 22 seeks any communication between Defendant and student’s parents. Lastly, request No. 25 seeks student’s school file, including disciplinary reports and documents from prior educational facilities. Plaintiff argues good cause exists because these documents are highly relevant to the factual and legal issues in this case, including demonstrating the student’s sexual proclivities and establishing that Defendant’s staff knew or reasonably should have known of the risks to Plaintiff posed by the student. Defendant objects to these requests on the grounds that they invade the student’s general right to privacy and specifically violate the Family Educational Rights and Privacy Act (FERPA), codified at 20 U.S.C. § 1232g.

FERPA

Pursuant to FERPA, federal funding for education agencies or institutions is prohibited when they do not protect the privacy of student records, subject to certain exceptions enumerated by statute. (20 U.S.C. § 1232g(b).) Plaintiff argues two exemptions apply in this case.

Under the first exemption, “the final results of any disciplinary proceeding may be disclosed to the alleged victim of a crime of violence or a nonforcible sex offense.” (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1398 (Rim of the World), citing 20 U.S.C. § 1232g(b)(6)(A).) Under the second exception, listed as the third exception in Rim of the World, “the disciplinary records of a student who poses a significant risk to himself or herself, or to other members of the school community, may be disclosed to persons having a ‘legitimate educational interest[ ] in the behavior of the student.’” (Ibid, citing 20 U.S.C. § 1232g(h)(2).)

However, Plaintiff cannot rely on these exemptions since Plaintiff’s discovery requests are much broader and seek all communications and school records pertaining to one student, rather than merely disciplinary records or final results of disciplinary proceedings. Nonetheless, FERPA also allows the disclosure of student records if made pursuant to a judicial order or lawfully issued subpoena. (20 U.S.C. § 1232g(b)(2)(A).) In applying this exception, federal courts have noted that such requests must be justified by “a genuine need for the information that outweighs the privacy interest of the students.” (Ragusa v. Malverne Union Free School Dist. (E.D.N.Y. 2008) 549 F.Supp.2d 288, 292, quoting Rios v. Read (E.D.N.Y. 1977) 73 F.R.D. 589, 599.)

Accordingly, whether FERPA restricts the release of student records in this case is dependent upon the following privacy analysis.

Privacy Interests

While “[o]rdinarily information which is relevant to the subject matter of a lawsuit and not privileged is discoverable,” some protection is given to “sensitive information” that invades the constitutional right to privacy. (Hofmann Corp. v. Superior Court (1985) 172 Cal.App.3d 357, 362; see Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 306.)

In ruling on discovery motions, the court must balance the privacy claims of the responding party with the requesting party’s need for the information. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718-722.) The party asserting the right of privacy bears the initial burden of demonstrating (1) a “legally protected privacy interest”; (2) an “objectively reasonable expectation of privacy in the given circumstances”; and (3) a “threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (Williams).) Then, the requesting party may show which “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.” (Ibid.)

In this case, parties do not dispute there is a right to privacy in a minor student’s school records. Given FERPA’s protection of student records and Plaintiff’s broad discovery requests, the court finds this is a serious invasion of privacy that must be justified by “legitimate and important competing interests.” (Alch v. Superior Court (2008) 165 Ca.App.4th 1412, 1426-1427 (Alch), quoting Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371.) Information is relevant and subject to discovery’s broad reach if it might assist in case evaluation, preparation for trial, and facilitation of settlement or reasonably lead to evidence that is admissible. (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) However, when discovery results in a serious invasion of privacy, the information sought must be “directly relevant” and “essential to the fair resolution” of litigation. (Alch, supra, 165 Cal.App.4th at p. 1427.)

Here, Plaintiff argues the student records of Plaintiff’s abuser are directly relevant because they can provide a paper trail of any red flags that would have existed and are essential to establishing Defendant’s staff had notice of the student’s behavior. To succeed on causes of action for negligence, Plaintiff needs to establish that Plaintiff’s sexual abuse by a fellow student was foreseeable by school staff. (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 518-519.) And while similar past incidents involving the student are helpful, they are not required to show foreseeability. (See Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 127.)

Defendant objects to the scope of Plaintiff’s discovery request and suggests other means of discovery are less intrusive, such as depositions. Even when private information is directly relevant, the discovery request can be denied or circumscribed if there are less intrusive means of obtaining the information or if the scope is too broad. (El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346, overruled on other grounds by Williams, supra, 3 Cal.5th 531.) While Defendant suggests Plaintiff could obtain records from the student’s parents (Opp., p. 5:1-2), that defeats the purpose of these requests, which are to determine what Defendant’s staff knew. To the extent parents knew or have access to such information on the student, that only becomes relevant if parents communicated it to Defendant’s staff.

Finally, Defendant argues that depositions of the student and school staff are an appropriate alternative, and less intrusive than a document production. The court finds this argument persuasive. However, the court will hear from Plaintiff as to why this option is not the appropriate way forward.

CONCLUSION

Based on the foregoing, the court GRANTS Plaintiff’s application to seal to court records of Plaintiff’s motion and separate statement in Plaintiff’s motion to compel.

The court requests additional briefing from the parties regarding the unique privacy issues raised by the motion to compel. Specifically, the court requests the parties address whether California’s broad discovery statute controls, or whether a minor’s privacy rights control. The court intends to set a briefing schedule following discussion of the issues on December 13, 2022.