Judge: William A. Crowfoot, Case: 20STCV40842, Date: 2022-08-22 Tentative Ruling

Case Number: 20STCV40842    Hearing Date: August 22, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On October 23, 2020, Andre Azarmsa (“Plaintiff”) initiated the present action by filing a Complaint against Talia Vartanian Kaloostian, Paul Kaloostian, and Doe Defendants 1 through 50 (collectively, “Defendants”).

On November 24, 2020, Plaintiff filed the operative First Amended Complaint against Defendants.  Plaintiff’s First Amended Complaint alleges the following causes of action: (1) Negligence; and (2) Negligence (Permissive Use).  Plaintiff’s First Amended Complaint contends that, on about October 8, 2019, Plaintiff was riding his motorcycle on Vermont Avenue when a motor vehicle driven by Defendant Talia Vartanian Kaloostian collided with Plaintiff’s motorcycle, while making a right turn into the driveway of her and Defendant Paul Kaloostian’s home. 

On June 20, 2022, Defendants Talia Vartanian Kaloostian and Paul Kaloostian (hereinafter, “Defendants”) filed a Motion for Order Compelling Plaintiff’s Answers at Deposition.  The Court now considers Defendants’ Motion.

II.        LEGAL STANDARD

          “Any party may obtain discovery by one or more of the following methods: (a) Oral and written depositions . . . .”   (Code Civ. Proc., § 2019.010, subd. (a).)

          “ The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”  (Code Civ. Proc., § 2025.280, subd. (a).)

          “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (Code Civ. Proc., § 2025.480, subd. (a).)  “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Id. § 2025.480, subd. (b).)  “Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.”  (Id. § 2025.480, subd. (c).)

          “Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.”  (Code Civ. Proc., § 2025.480, subd. (h).)

III.      DISCUSSION

          Defendants Talia Vartanian Kaloostian and Paul Kaloostian (“Defendants”) move for an Order compelling Plaintiff Andre Azarmsa’s (“Plaintiff”) answers to six (6) specified deposition questions.   In Opposition, Plaintiff advances procedural and substantive arguments for the purposes of defeating Defendants’ present Motion.  The Court, initially, considers Plaintiff’s procedural arguments, and subsequently, addresses Plaintiff’s substantive contentions.

A.   Whether Defendants’ Separate Statement Fails to Comply with California Rules of Court, Rule 3.1345

          Plaintiff argues Defendants’ instant Motion must be denied on procedural grounds as Defendants’ accompanying Separate Statement does not comply with California Rules of Court, Rule 3.1345.  (Cal. Rules of Court, Rule 3.1345.)

          California Rules of Court, Rule 3.1345 provides, “a motion to compel answers at deposition” must be accompanied by a separate statement.  (Cal. Rules of Court, Rule 3.1345, subd. (a)(4).)  “A separate statement . . . provides all the information necessary to understand each discovery request and all the responses to it that are at issue.”  (Id., Rule 3.1345, subd. (c).)  The separate statement, in relevant part, must include “[a] statement of the factual and legal reasons for compelling further . . . answers . . . as to each matter in dispute”, and “[i]f the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.”  (Id., Rule 3.1345, subd. (c)(3), (c)(6).)

          Plaintiff argues Defendants’ accompanying Separate Statement is defective because, while Defendants reference the “Declaration of Vina Spiehler, Ph.D., F-ABFT” in the Separate Statement, which purportedly demonstrates the relevance of Plaintiff’s testimony, Defendants fail to “summarize” this document in accordance with California Rules of Court, Rule 3.1345, subd. (c)(6).)  Further, Plaintiff argues Defendants’ Separate Statement is defective because Defendants fail to include “[a] statement of the factual and legal reasons for compelling” Plaintiff’s answers to the deposition questions in dispute.  (Id., Rule 3.1345, subd. (c)(3).)

          The Court is only partially persuaded by Plaintiff’s arguments.  First, the Court finds Plaintiff’s secondary contention is plainly incorrect.  While Plaintiff argues otherwise, Defendants’ Separate Statement does include “[a] statement of the factual and legal reasons for compelling” Plaintiff’s answers to the deposition questions in dispute.  (Cal. Rules of Court, Rule 3.1345, subd. (c)(3); See Separate Statement, at p. 10 [stating, Plaintiff’s answers are sought to be compelled as information concerning whether or not Plaintiff was using mind-altering substances at the time of the subject collision will support Defendants’ defense of contributory negligence].)  While Plaintiff argues such reasons are conclusory, the Court disagrees and finds Defendant’s Separate Statement sufficiently complied with California Rules of Court, Rule 3.1345, subdivision (c)(3).  (Ibid.)  Second, the Court recognizes the accuracy of Plaintiff’s contention that Defendants’ Separate Statement merely references the “Declaration of Vina Spiehler, Ph.D., F-ABFT”, without summarizing the document’s contents.  While Defendants’ Separate Statement states the reasons for which the aforementioned Declaration is proffered (i.e., “filed concurrently herewith as to the relevancy of Plaintiff’s testimony and impairment of Plaintiff’s operation of a motorcycle”), Defendants fail entirely to summarize the contents of the Declaration.  Accordingly, such failure renders Defendants’ Separate Statement insufficient, pursuant to California Rules of Court, Rule 3.1345, subdivision (c)(6).  (Cal. Rules of Court, Rule 3.1345, subd. (c)(6).) 

          However, despite the Court’s finding of insufficiency, the Court exercises its discretion to consider Defendants’ Motion on the merits.  Accordingly, Plaintiff’s procedural arguments, while partially well-taken, are not dispositive of Defendants’ Motion.

B.   Whether Defendants’ Six (6) Deposition Questions Improperly Impede Upon Plaintiff’s Right to Privacy

          Defendants move for an Order compelling Plaintiff to answer the following six (6) questions during a deposition, on the ground Plaintiff refused to orally answer the six (6) questions, at the instruction of Plaintiff’s Counsel, during Plaintiff’s prior deposition, which occurred on January 25, 2022.  The six (6) questions which are presently in dispute are stated below:

(1)  How much heroin did you consume the day before the accident?

(2)  Did you consume heroin the evening before the incident?

(3)  Were you an A.M./P.M. user of heroin at the time of the accident?

(4)  When you would use heroin, would it cause you to start nodding off or falling asleep around the time of the accident?

(5)  When you were withdrawing from heroin around the time of the accident, would you become agitated and have difficulty concentrating?

(6)  When you were withdrawing from heroin around the time of the accident, was it more difficult for you to navigate a motorcycle?

(Pl.’s Separate Statement, at pp. 2-3, 5-6, 8-9.)  Defendants contend information concerning whether or not Plaintiff was under the influence of heroin during the subject collision or, alternatively, whether Plaintiff was experience withdrawal symptoms during the collision, is directly relevant to Defendants’ First Affirmative Defense of contributory negligence.  Such information, additionally, is directly relevant to defend against the allegations advanced within Plaintiff’s operative First Amended Complaint, which provide that the subject accident was caused by Defendant Talia Vartanian Kaloostian’s inattentiveness and negligence, alone.

          Plaintiff presently opposes Defendant’s Motion, contending his refusal to respond to the questions articulated above is justified as such questions impede upon Plaintiff’s substance abuse history, which is protected by the right to privacy under the California Constitution.  Further, Plaintiff argues his substance abuse history is not directly relevant to this litigation.  While Defendants may contend Plaintiff’s substance abuse history is directly relevant to the affirmative defense of contributory negligence, Plaintiff argues such a contention is without merit as Defendants “have no evidence” which suggests Plaintiff was intoxicated at the time of the collision.  Lastly, even where the information sought is directly relevant, Plaintiff argues Defendants have failed to establish that Plaintiff’s testimony is essential.

          The California Constitution expressly grants Californians a right of privacy.  (Cal. Const., art. I, § 1.)  “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.)  However, “[t]he constitutional right of privacy does not provide absolute protection[,]” and only “protects the individual’s reasonable expectation of privacy against a serious invasion.”  (Ibid.; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 [italics added].)  Accordingly, a party asserting a right to privacy must establish three (3) threshold requirements: (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 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-40).)

          Where a party sufficiently establishes the three threshold requirements, the party seeking the privacy-protected information may raise whatever legitimate and important countervailing interests disclosure serves, and the party seeking protection may identify alternatives that serve the same interests or protective measures that would diminish the loss of privacy.  (Williams, supra, 3 Cal.5th at p. 552.)  A court must then balance these competing considerations.  (Ibid.)  Under this balancing test, a compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. (Id. at 556.) However, whenever lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Ibid.)

          When a party seeks information protected by the right of privacy, the general discoverability standard (Code Civ. Proc., § 2017.010) does not apply.  Rather, a party seeking such information must show that the evidence sought is “directly relevant” to the claim or defense and essential to a fair resolution of the action.  (Ombudsman Services of Northern California v. Superior Court (2007) 154 Cal.App.4th 1233, 1251 disapproved of on other grounds by Williams, supra, 3 Cal.5th 531.)

          Here, the Court finds Plaintiff has failed to establish the three threshold requirements for the purposes of demonstrating that the six questions contemplated implicate Plaintiff’s right to privacy.  Notably, Plaintiff has failed to provide any authority which would suggest Plaintiff’s illegal drug use constitutes “a legally protected privacy interest” under Article 1, Section 1 of the California Constitution.  Plaintiff merely concludes, “[i]nquiry into Plaintiff’s substance use history is . . . prohibited[,]” and cites to two cases which do not mention or discuss the right to privacy with respect to a party’s illegal substance abuse history. (Opp., at p. 8:13-14.)  Further, upon the Court’s own inquiry, the Court has been unable to identify any recognized case law which would suggest Plaintiff holds “a legal protected privacy interest” with respect to illegal drug use.  Accordingly, the Court finds Plaintiff’s contention that Defendants’ six deposition questions contemplate “a legally protected privacy interest” of Plaintiff lacks merit.  (Williams, supra, 3 Cal.5th at p. 552.) 

          However, even if Plaintiff sufficiently satisfied the three threshold requirements outlined above, a balancing of the parties’ interests would lean in favor of allowing discovery in this circumstance, as information concerning Plaintiff’s illegal drug use during the time of the subject collision is “directly relevant” to Defendants’ defense.  (Ombudsman Services of Northern California, supra, 154 Cal.App.4th at p. 1251.)  Specifically, Defendants’ First Affirmative Defense contends Plaintiff, himself, was contributorily negligent in causing the subject collision, on the ground Plaintiff was under the influence of an illegal substance.  Additionally, as evidenced by Plaintiff’s Supplemental Responses to Defendants’ Form Interrogatories, Set One, it is clear that Plaintiff’s drug use during the time of the subject collision is a central issue in this litigation.  Indeed, in response to Defendants’ Form Interrogatories, Set One, No. 2.13, which requests Plaintiff to state whether he took “drug[s] or medication[s]” within twenty-four (24) hours of the subject collision, Plaintiff stated, “Plaintiff does not recall, although a review of his medical records suggests that he may have.”  (Gorelik Decl., Ex. 2 at p. 3.)  Whether or not Plaintiff was under the influence of an illegal substance is clearly directly relevant to this litigation, wherein Plaintiff alleges his physical injuries were caused by Defendant Talia Vartanian Kaloostian’s inattentiveness and negligence.  Accordingly, the Court finds such information is directly relevant to this action.

          Further, while Plaintiff contends this information may be obtained pursuant to the collection of Plaintiff’s medical records and the relevant police report, such an argument is unpersuasive.  Indeed, Plaintiff has produced the documents mentioned, and there is no affirmative reference in either document which establishes Plaintiff was not under the influence of an illegal substance during the time of the accident.  (Gorelik Decl., Exs. 3-4.)  While Plaintiff argues these documents concretely establish Plaintiff was not under the influence of such substances, this representation is misleading as neither document affirmatively states such a fact.  (Ibid.)

          Based on the foregoing, the Court finds Defendants are entitled to an Order compelling Plaintiff’s answer to the six (6) questions outlined above, during a second deposition, pursuant to Code of Civil Procedure section 2025.480, subdivision (a).  (Code Civ. Proc., § 2025.480, subd. (a).) 

IV.      CONCLUSION

            Defendants Talia Vartanian Kaloostian and Paul Kaloostian’s Motion for Order Compelling Plaintiff’s Answers at Deposition is GRANTED.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.