Judge Salvatore Sirna, Case 21STCV43583 2023-04-03 Tentative Ruling

Judge: Salvatore Sirna, Case: 21STCV43583, Date: 2023-04-03 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21STCV43583 Hearing Date: April 3, 2023 Dept: G

Defendant Claremont Unified School District’s Motion to Compel Further Responses to Requests for Production of Documents, Set One

Respondent: Plaintiff John SJ Doe

TENTATIVE RULING

Defendant Claremont Unified School District’s Motion to Compel Further Responses to Requests for Production of Documents, Set One is GRANTED as to Request No. 85, as limited by CUSD.

Plaintiff John SJ Doe is ordered to serve a further and complete code-compliant response without objection on Defendant within ten (10) days of the issuance of this order. Furthermore, sanctions are also awarded in the amount of $700 against Plaintiff, payable within thirty (30) days of the issuance of this order.

BACKGROUND

This action arises from the sexual abuse of a high school student by school staff. Defendant Brandy Wilborn (Wilborn) was a teacher’s aide employed by Defendant Claremont Unified School District (CUSD) at Claremont High School. Plaintiff John SJ Doe was a student at Claremont High School. From December 2014 to May 2015, Wilborn sexually assaulted, abused, molested, and harassed Plaintiff. Wilborn was then arrested in 2015 and pled no contest to unlawful sexual intercourse with a minor.

On November 29, 2021, Plaintiff filed a complaint for damages against CUSD, Wilborn, and Does 1 through 50, alleging the following causes of action: (1) intentional infliction of emotional distress against all defendants; (2) negligence against CUSD and Does 1-50; (3) negligent supervision against CUSD and Does 1-50; (4) negligent retention/hiring against CUSD and Does 1-50; (5) negligent failure to train, warn, or educate against CUSD and Does 1-50; (6) breach of fiduciary duty against all defendants; (7) constructive fraud pursuant to Civil Code, section 1573 against all defendants; (8) sexual harassment pursuant to Civil Code, section 51.9 against all defendants; (9) sexual harassment and abuse in the educational setting pursuant to Education Code, section 220 against CUSD and Does 1-50; (10) sexual battery against Wilborn; (11) gender violence pursuant to Civil Code, section 52.4 against Wilborn; and (12) violation of Penal Code, section 647.6, subdivision (a)(1) against Wilborn.

Wilborn answered with a general denial and affirmative defenses on February 8, 2022, while CUSD responded with a demurrer and motion to strike Plaintiff’s complaint on April 6, 2022. On June 17, 2022, the court sustained CUSD’s demurrer with leave to amend on the grounds that Plaintiff failed to plead facts sufficient to state a cause of action.

On August 25, 2022, CUSD filed a motion to compel further responses to form interrogatories and the present motion to compel further responses to requests for production of documents.

On September 6, 2022, Plaintiff filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On November 14, the court held a hearing CUSD’s demurrer to Plaintiff’s FAC and continued the hearing while directing parties to further meet and confer on discovery issues.

On February 9, 2023, the court sustained CUSD’s demurrer to Plaintiff’s FAC and continued the hearing on the present motion. On March 1, Plaintiff filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action.

A hearing on the present motion and case management conference is set for April 3, 2023.

ANALYSIS

CUSD moves to compel Plaintiff to provide a further response to CUSD’s Request for Production of Documents, Set One, No. 85. For the following reasons, the court GRANTS CUSD’s motion.

Legal Standard

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).)

Discussion

Requests for Production, Set One, No. 85 states as follows:

“Please produce any and all photographs posted, uploaded, or otherwise added to any and all social media sites, including but not limited to, Facebook, Instagram, Twitter, or any similar sites, posted since the date of the incident alleged in the Complaint. This includes photographs posted by others in which Plaintiff has been tagged or otherwise identified.” (Cruz Decl., Ex. A.)

In response to this request, Plaintiff made a series of objections including (1) that the request is overbroad, unduly burdensome, oppressive, and harassing; (2) that the request calls for a legal conclusion; (3) that the request calls for an expert opinion; (4) that the request is overbroad as to time and content; (5) that the request violations Plaintiff’s and third parties’ right to privacy; (6) that the documents are equally or more readily available to CUSD; and (7) that the request seeks attorney work product or information protected by attorney-client privilege. (Cruz Decl., Ex. B.)

On June 21, 2022, CUSD’s counsel sent a meet and confer letter to Plaintiff’s counsel, addressing the alleged deficiencies in Plaintiff’s response. (Cruz Decl., ¶ 6.) Plaintiff’s counsel responded on June 28 by reaffirming the prior objections. (Cruz Decl., ¶ 7; Romero Decl., ¶ 3) Parties also met and conferred telephonically on July 1. (Cruz Decl., ¶ 9.) After the court directed parties to further meet and confer on November 14, CUSD agreed to further limit the request to Plaintiff’s social media posts from 2015 to 2020 that reference Plaintiff’s emotional distress claims, treatment, alternative stressors or Wilborn. (Joint Decl., 2:14-19; Kostrenich Supp. Decl., Ex. 1.)

Plaintiff then provided a further response to No. 85, stating Plaintiff had a Facebook account and Instagram account during the relevant time period from 2015 to 2020. (Kostrenich Supp. Decl., Ex. 1.) Plaintiff provided that Plaintiff’s Facebook account did not contain any posts responsive to CUSD’s narrowed request. (Kostrenich Supp. Decl., Ex. 1.) However, with regards to Plaintiff’s Instagram account, Plaintiff stated it is a public account but has not been accessed since 2017. (Kostrenich Supp. Decl., Ex. 1.) Plaintiff further stated Plaintiff does not remember the account username or any of its credentials and is unable to recall if any posts responsive to the request exist. (Kostrenich Supp. Decl., Ex. 1.)

In CUSD’s supplemental brief in support of its motion to compel further, CUSD claims this response fails to constitute a diligent search and cites to Code of Civil Procedure section 231.230, which states as follows:

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

Here, CUSD claims Plaintiff failed to conduct a diligent search and reasonable inquiry because Plaintiff did not attempt to reset the login information for Plaintiff’s Instagram account or contact Instagram. According to CUSD’s counsel, Instagram’s website states “If you can’t access your Instagram Account and still want to download a copy of your data, you can contact us.” (Kostrenich Supp. Decl., ¶ 6.) Counsel also states that Instagram’s app allows Plaintiff to request a password reset or submit a support request. (Kostrenich Supp. Decl., ¶ 7-8.)

While Plaintiff submitted a supplemental opposition, it failed to include any evidence or declarations disputing CUSD’s claims. While the supplemental opposition quotes an alleged supplemental response by Plaintiff on February 3, 2023, it fails to provide an authenticated copy of that response. The only supplemental response by Plaintiff before the court is the January 20, 2023 response. (Kostrenich Supp. Decl., Ex. 1.) Thus, because Plaintiff’s response does not comply with Code of Civil Procedure section 2031.230 and because CUSD has demonstrated methods exist for Plaintiff to access the Instagram account despite Plaintiff’s inability to remember the login credentials, the court finds Plaintiff’s response is insufficient.

Accordingly, CUSD’s motion to compel further is GRANTED.

CUSD requests sanctions in the amount of $700. Because CUSD’s motion to compel further was successful, CUSD’s request is GRANTED.

Utilizing a lodestar approach and in view of the totality of the circumstances, the court awards CUSD reasonable attorney fees and costs in the amount of $700 for four (4) hours drafting the motion at $175 per hour.

CONCLUSION

For the foregoing reasons, CUSD’s motion to compel further responses to Requests for Production of Documents, Set One is GRANTED as to Request No. 85, as limited by CUSD.

Plaintiff is ordered to serve a further and complete code-compliant response without objection on CUSD within ten (10) days of the issuance of this order. Sanctions are also awarded in the amount of $700 against Plaintiff, payable within thirty (30) days of the issuance of this order.