Judge: Walter P. Schwarm, Case: 30-2020-01141672, Date: 2022-12-20 Tentative Ruling
Motion No. 1:
Defendants’ (Malcolm Paul, M.D. and Malcolm D. Paul, M.D., Inc.) Motion to Compel Compliance, and/or in the Alternative for Issue, Evidence, and/or Monetary Sanction (Motion), filed on 11-21-22 under ROA No. 226, is GRANTED.
Code of Civil Procedure section 2031.310 provides: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”
Code of Civil Procedure section 2031.220 states, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”
Code of Civil Procedure section 2031.230 states, “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.”
Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255, explains, “Or a party may object to a particular discovery request, placing the burden on the party seeking discovery to enforce discovery through a motion to compel.” Williams v. Superior Court (2017) 3 Cal.5th 531, 541 (Williams), states, “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answer it receives unsatisfactory, the burden to justify any objection and failure to respond remains at all times with the party resisting an interrogatory. [Citation.]”
The Motion seeks to compel further response to Request for Production (RFP) Nos. 1, 2, 4, and 11. (Notice of Motion; 2:1-10.)
Here, on 10-4-22 Defendants served their “Further Amended Notice of Taking the Deposition of Plaintiff Cathleen L. DeWitt and Request for Production of Documents” (NOD). (Farkas Decl., ¶ 2 and Exhibit A.) On 10-25-22, Plaintiff (Cathleen L. DeWitt) served “Plaintiff’s Responses and Objections to Defendants’ Further Amended Notice of the Deposition of Plaintiff and Request for Production of Documents” (Responses). (Farkas Decl., ¶ 7 and Exhibit C.) On 11-3-22, Plaintiff served “Plaintiff’s Amended Responses and Objections to Defendants’ Further Amended Notice of the Deposition of Plaintiff and Request for Production of Documents” (Amended Responses). (Farkas Decl., ¶ 9 and Exhibit E.)
RFP No. 1:
RFP No. 1 requests, “All COMMUNICATIONS and ESI (including but not limited to all native electronic versions of text messages, e-mails, letters, or correspondence of any kind) with anyone other than YOUR attorney that RELATE, PERTAIN, and/or REFER TO Dr. Malcolm Paul.” (Defendants’ Separate Statement (DSS) filed on 11-21-22 under ROA No. 224; 2:7-10.) Plaintiff’s response to RFP No. 1 states in part, “Plaintiff has made a diligent search and reasonable inquiry in order to fully respond to this request but is unable to do so as there are no further documents responsive to this request. Plaintiff has no documents or ESI responsive to this demand other than the text messages between Responding Party and Defendant Paul that were previously produced.” (DSS; 2:17-20.)
The Motion shows sufficient good cause for the communications requested by RFP No. 1 because they are relevant (Code Civ. Proc., § 2017.010) to the allegations of harassment and abuse in Plaintiff’s First Amended Complaint (FAC) filed on 10-20-20 under ROA No. 37. (For example, see FAC at ¶¶ 45-61.) Plaintiff’s response to RFP No. 1 do not fully comply with Code of Civil Procedure sections 2031.220 and 2031.230 for the following reasons: (1) The response to RFP No. 1 does not clearly state whether Plaintiff has complied in whole or in part; and (2) The response to RFP No. 1 does not clearly state whether any 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. Therefore, the court GRANTS the Motion as to RFP No. 1.
RFP No. 2:
RFP No. 2 states, “All COMMUNICATIONS and ESI (including but not limited to all native electronic versions of text messages, e-mails, letters, or correspondence of any kind) with De’Ann Clark that RELATE, PERTAIN, and/or REFER TO Dr. Malcolm Paul.” (DSS; 5:16-19.) Plaintiff’s response to RFP No. 2 states in part, “Responding Party will produce a text message chain between herself and De’Ann Clark between November 13, 2019 and December 19, 2019. Plaintiff has made a diligent search and reasonable inquiry in order to fully respond to this request but is unable to do so as there are no further documents responsive to this request.” (DSS; 5:26-6:1
The court GRANTS the Motion as to RFP No. 2 for the same reasons as stated for RFP No. 1.
RFP No. 4:
RFP No. 4 states, “All COMMUNICATIONS and ESI (including but not limited to all native electronic versions of text messages, e-mails, letters, or correspondence of any kind) between YOU and Dr. Malcolm Paul.” (DSS 8:1-4.) Plaintiff’s response to RFP No. 4 states in part, “Plaintiff produced all text messages and emails between herself and Dr. Paul in her Response to Request for Production served on October 16, 2020 and Supplemental Response to Request for Production served on December 7, 2020. Plaintiff has made a diligent search and reasonable inquiry in order to fully respond to this request but is unable to do so as there are no further documents responsive to this request that exist.”
The court GRANTS the Motion as to RFP No. 4 for the same reasons as stated for RFP No. 1.
RFP No. 11:
RFP No. 11 states, “All social media posts in YOUR possession, custody, or control that RELATE, PERTAIN, and/or REFER TO YOUR wedding to Mr. Gabe Weed.” (DSS; 11:14-16.) Plaintiff raised a privacy objection as to RFP No. 11. (DSS; 11:21-23.)
Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840 (Vinson) states, “In the case at bar, plaintiff haled defendants into court and accused them of causing her various mental and emotional ailments. Defendants deny her charges. As a result, the existence and extent of her mental injuries is indubitably in dispute. In addition, by asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress. We thus conclude that her mental state is in controversy.”
Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341, states, “Generally, finding a condition ‘in controversy’ poses no great difficulty. Allegations of physical or mental injury in the complaint and denial of the injury or the extent of injury places the condition in controversy [citation]. The condition need not be first raised in the pleadings though. In Harabedian v. Superior Court, supra, 195 Cal.App.2d 26, 30, 15 Cal.Rptr. 420, the defendant had admitted during his deposition that he had a congenital defect in one eye, and his vision was blurred. An ophthalmological examination was ordered with defendant objecting.”
As to privacy, “The right of privacy is an ‘ “inalienable right” ’ secured by article I, section 1 of the California Constitution. [Citation.] The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and ‘extends to one’s confidential financial affairs as well as to the details of one's personal life.’ [Citation.] (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.) “The constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is ‘ “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” ’ [Citation.] When an individual’s right of privacy in his financial affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced. [Citation.] Even where the balance weighs in favor of disclosure of private information, the scope of the disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘ “must be drawn with narrow specificity” ’ and is permitted only to the extent necessary for a fair resolution of the lawsuit.” [Citations.] (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316; disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)
Williams v. Superior Court (Williams) (2017) 3 Cal.5th 531, 552, explains, “The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interest or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]” “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.” (Id., at p. 557.)
Paragraph 59 of the FAC pleads, “As a further direct and proximate result of Defendants’ collective and concerted wrongful action, as herein alleged, Plaintiff has been hurt in her health, strength and activity. Plaintiff has sustained permanent and continuing injury to her nervous systems and person, which has caused and continues to cause great mental and physical pain, suffering, fright, upset, grief, worry and shock in an amount according to proof at trial but in no event less than the jurisdictional minimum requirements of this Court.”
In conducting the balancing required by Williams, the court finds that the state’s interest in facilitating the ascertainment of truth outweighs Plaintiff’s privacy interest. By alleging continuing emotional injury, Plaintiff has placed her past and current mental state at issue. The Motion shows sufficient good cause for items requested by RFP No. 11 because they are relevant (Code Civ. Proc., § 2017.010) to whether Plaintiff continues to suffer the injuries described in paragraph 59 of the FAC. Therefore, the court GRANTS the Motion as to RFP No. 11.
Based on the above, the court GRANTS Defendants’ (Malcolm Paul, M.D. and Malcolm D. Paul, M.D., Inc.) Motion to Compel Compliance, and/or in the Alternative for Issue, Evidence, and/or Monetary Sanction filed on 11-21-22 under ROA No. 226. The court ORDERS Plaintiff to serve verified, Code of Civil Procedure compliant responses to RFP Nos. 1, 2, 4, and 11 within 30 days from the date of service of the notice of the court’s decision. The court DENIES Defendants’ request for a monetary sanction because the court finds that Plaintiff was substantially justified in opposing the Motion. (Code Civ. Proc., § 2031.310, subd. (h). Since Plaintiff was substantially justified in opposing the Motion, the court does not award and issue or evidentiary sanction.
Defendants are to give notice.
Motion No. 2:
Defendants’ (Malcolm Paul, M.D. and Malcolm D. Paul, M.D., Inc.) Motion to Compel Gabriel Weed’s Compliance and Document Production (Motion), filed on 11-21-22 under ROA No. 227, is DENIED without prejudice.
California Rules of Court, rule 3.1346 states, “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”
Gabriel Weed is a not a party in this action. As a result, Gabriel Weed is a nonparty deponent within the meaning of California Rules of Court, rule 3.1346. The Proof of Service attached to the Motion does not reflect service of this Motion on Gabriel Weed. Therefore, the court finds that Defendants have not adequately served the Motion on Gabriel W
Based on the above, the court DENIES Defendants’ (Malcolm Paul, M.D. and Malcolm D. Paul, M.D., Inc.) Motion to Compel Gabriel Weed’s Compliance and Document Production, filed on 11-21-22 under ROA No. 227, without prejudice.
Defendants are to give notice.