Judge Stephen P. Pfahler, Case Number: 22STCV41093, Date: 2024-04-03 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22STCV41093, Date: 2024-04-03 Tentative Ruling

Case Number: 22STCV41093 Hearing Date: April 3, 2024 Dept: 68

Dept. 68

Date: 4-3-24

Case Number: 22STCV41093

Trial Date: 7-8-24

SUPPLEMENTAL DOCUMENT PRODUCTION

MOVING PARTY: Defendant, R.W. Selby & Co., Inc.

RESPONDING PARTY: Plaintiff, Luis Licea

RELIEF REQUESTED

Motion to Compel Responses to Supplemental Request for Production of Documents (set 3)

SUMMARY OF ACTION

Plaintiff Luis Licea alleges a certain “business establishment” (an apartment complex) owned and/or managed by defendant R.W. Selby & Co., Inc. insufficiently accommodates visually impaired patrons, such as Plaintiff, thereby improperly depriving Plaintiff of use of the facilities. Plaintiff identifies as a “tester,” defined as “individual[] with disabilities who visit[s] places of public accommodation to determine their compliance with Title III [of the ADA].”

On December 30, 2022, Plaintiff filed a complaint for Violations of the Unruh Act, California Civil Code section 51, et seq. On March 28, 2023, the court overruled the demurrer to the complaint, granted the motion to strike the two references to Plaintiff alleging status as a “tester,” denied the remainder of the motion to strike, and denied the motion to reclassify the action as one for limited jurisdiction court. Defendant answered on April 17, 2023.

RULING: Granted.

Defendant, R.W. Selby & Co., Inc. moves to compel responses to Supplemental Request for Production of Documents (set three) served on Plaintiff, Luis Licea. While the motion was reserved and identified as one for initial responses, the motion in fact seeks further responses to numbers one and two, which seek information regarding Plaintiff’s “ability to financially qualify to rent the apartment.” The responses consist entirely of objections: “Request is compound, vague and overbroad, disproportionate to the needs of the case considering the Plaintiff’s case of action and Defendant’s asserted affirmative defenses, unduly burdensome and harassing, violates the attorney-client, work product and tax privileges, violates Plaintiff’s and third parties’ constitutional rights to privacy, calls for speculation, and seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence.”

The responses were served by mail on January 22, 2024, and the subject motion filed exactly 50 days later. [Declaration of Rachelle Golden, Ex. B.] The motion is timely. (Code Civ. Proc., §§ 1013, 2031.310, subd. (c).)

Plaintiff in opposition contends Plaintiff’s right to privacy “outweighs” the need for said information. Plaintiff maintains less intrusive means of discovery exist. Plaintiff requests the court refrain from imposing sanctions. Defendant in reply reiterates the placement of Plaintiff’s financial condition at issue in brining the subject action.

Defendant moves to compel further responses on grounds that because the court struck the “tester allegations” in March 28, 2023, order on the motion to strike, Defendant remains entitled to conduct discovery into the “bona fide intent” to engage the goods and services of the business, as opposed to a public interest enforcement objective. (Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 307.)

Plaintiff provides no opposition to the majority of the defenses, except for the privacy claim. The court addresses the objections.

On the compound and vague objections, Plaintiff may not intentionally misconstrue a work for obstreperous purposes. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 superseded by statute on unrelated ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) The objections lack merit.

On the disproportionate and overbroad objections, the objection lacks support “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden. When a judge evaluates such factors to determine whether a party has acted reasonably and in good faith in attempting informal resolution, a factual component of decision, derived from the trial judge's knowledge of the case, is inevitably involved.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Again, the objections lack support.

On the burdensome and harassing objections, objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417.) “[S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.) Plaintiff lacks support.

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) The transmission of information between third parties and counsel also maintain attorney client privilege protection, if the communication is in further interest of the client. (Evid. Code, § 952.) “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.)

The work product privilege applies where the sought after documents contains Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Id. at p. 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.)

Neither of the subject objections present any basis of support.

“But ‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ (Citations.)” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653–654.) The subject items seek relevant information regarding the right to proceed with the case. Upon the court striking the “tester allegations” in the March 28, 2023, order, proof of the claim requires proof of “bona fide intent” to engage the goods and services of the business, as opposed to a public interest enforcement objective. (Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 307.) The information is both relevant, and Defendant is entitled to conduct discovery. Plaintiff cannot bring multiple lawsuits as a “tester” and then elect to withhold information, when a party elects to both substantively defend the action and succeeds in undermining a lynchpin basis of the lawsuit. The relevance and speculation objections are overruled.

Relevance constitutes a liberal standard, with privacy as a form of counterbalance. (Williams v. Superior Court (2017) 3 Cal.5th at p. 541.) “Privacy interests generally fall into one of two categories: (1) an interest in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’); and (2) an interest in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’).” (Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1301.) A party “alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by [a party] constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39–40.) “[I]ndividuals have a legally recognized privacy interest in their personal financial information.” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 330.) The objecting party has the burden to file evidence of the preliminary facts establishing a privilege exists. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557; HLC Properties, Limited v. Sup. Ct. (2005) 35 Cal.4th 54, 59; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th at pp. 39-40.)

Other than a series of conclusions, the court finds the opposition and objections lack any articulated basis. Notwithstanding, potential disclosure of financial records constitute a basis of privilege. (Valley Banks of Nevada v. The Superior Court of San Joaquin County (1975) 15 Cal. 3d 652, 655-657.) Upon the showing of a privacy interest, a party must present a compelling basis for discovery, including a showing of no other available alternatives. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855, 864; Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 482 [“The waiver of both privileges and the constitutional right to privacy ‘must be narrowly rather than expansively construed,’ in order to protect the purposes of the privilege or right’”].)

As determined in the relevance section, financial ability to rent the premises directly addresses a required element of the claim, and therefore a valid defense. Furthermore, Plaintiff placed the information at issue, thereby both making the inquiry relevant and arguably constituting a waiver of said privacy rights. Nevertheless, the court remains bound to follow the requirements of determining no less intrusive means exist for a determination of a “bona fide intent” to rent from Defendant. (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 481-483.)

The actual written demands only actually seek information relating to financial ability to qualify for the rental without directly identifying any specifically sought after items. While Plaintiff pushes back on the valid, yet conclusive less intrusive means argument, missing from the opposition is any meaningful effort to present the required, non-privileged information. Again, regardless of the public policy basis for the multitude of “tester” lawsuits brought by Plaintiff, each and every named defendant maintains a right to defend the actions, including permissible discovery. This court adheres to a robust open discovery policy in order to allow full and fair adjudication of all claims on the merits.

The court therefore finds a basis to compel production of supplemental responses, with a reservation of right to later determine any true financial privacy implications upon actual identification of any and all privileged documents. Plaintiff is therefore ordered to provide factual, non-privileged information containing responses in compliance with Code of Civil Procedure section 2030.210, subdivision (a)(1-2) through 2031.240. Plaintiff may include a privilege log where applicable. If Plaintiff maintains ALL information constitutes privileged material, and Defendant elects to seek information potentially deemed privileged by Plaintiff, the court will consider any renewed motion addressing subsequent arguments thereby considering the public policy concerns of insufficient available information versus the right to defend the action. Such a hearing will likely include an in camera review of any and all said items.

The court otherwise finds no basis of support for this objection or the third party privacy objections. Again, if Plaintiff elects to double down on this objection, Plaintiff must include any and all objections in the privilege log. The court will also consider any and all third party notice criteria requirements should this objection actually find support upon further potential review.

In summary, Plaintiff to serve verified, non-privileged factual responses to Defendant within 30 days, and a privilege log, if applicable. The minimum amount of sanctions for each motion to compel production of documents increased to $1,000 per motion. (Code Civ. Proc., § 2023.050, subd. (a)(1).) The court therefore imposes sanctions in the amount of $1,000 joint and severally imposed against both counsel and Plaintiff, and payable within 30 days of this order. (Code Civ. Proc., § 2031.310, subd. (h).) Non-compliance with this order may support a further motion for additional monetary sanctions, issue, evidentiary or even terminating sanctions. (Code Civ. Proc., § 2023.310, subd. (i).)

Trial remains scheduled for July 8, 2024.

Defendant to give notice.

Dept. 68

Date: 4-3-24

Case Number: 22STCV41093

Trial Date: 7-8-24

INSPECT COMPUTER

MOVING PARTY: Defendant, R.W. Selby & Co., Inc.

RESPONDING PARTY: Plaintiff, Luis Licea

RELIEF REQUESTED

Motion to Compel Inspection of Plaintiff’s Computer

SUMMARY OF ACTION

RULING: Denied.

Defendant, R.W. Selby & Co., Inc. moves to compel the inspection of the computer of Plaintiff Luis Licea. While the motion was reserved and identified as one for initial responses, the motion in fact seeks further responses to number one, which seeks to arrange for a forensic examination of Plaintiff’s computer “as it related to the website and his browsing history,” whereby the examiner “will utilize forensic tools to create an evidentiary image of an electronic device or other repository of evidence, then inspect, analyze, copy, photograph and/or videotape Plaintiff’s ESI.”

The response consists entirely of objections: “vague and overbroad (both as to scope and time), and disproportionate to the needs on the case considering Plaintiff’s claims and Defendant’s alleged defenses. Cal. Civ. Proc. Code § 2031.060(a). Plaintiff additionally objects on the grounds that the Demand violates Plaintiff’s constitutional rights to privacy, is meant to harass, and is unduly burdensome. Plaintiff also objects on the grounds that the Demand seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence. Plaintiff also objects on the grounds that the Demand violates the attorney-client and work product privileges.”

The court electronic filing system shows no opposition or reply filed at the time of the tentative ruling publication cutoff.

The responses were served by mail on January 16, 2024, and the subject motion was filed 51 days later on March 7, 2024. [Declaration of Rachelle Golden, Ex. F.] The motion is therefore untimely. (Code Civ. Proc., §§ 1013, 2031.310, subd. (c).) The court must deny the motion on this basis. The court declines to address the merits of the motion, including the validity of the objections, and agreement to limit the scope of discovery.

Trial remains scheduled for July 8, 2024.

Defendant to give notice.