Case Number: 17K03384 Hearing Date: December 26, 2017 Dept: 77

Plaintiff’s motion to compel further responses to special interrogatory number 13 is GRANTED.

Plaintiff’s motion to compel further responses to special interrogatory number 27 is DENIED.

Defendants’ request for sanctions is DENIED.

Background

Plaintiff Edward P. Kerns (“Plaintiff”) filed the instant action for breach of contract and fraud regarding sale of a vehicle. In 2015, Plaintiff purchased a 2007 BMW 650i from Defendants Valencia B. Imports, Inc. dba Valencia BMW, erroneously sued and served as Valencia BMW; Chuck Coia; Mike Murray; Alexis Biafora; and Kathleen Ruehman (“Defendants”). Plaintiff alleges that Defendants concealed the true condition of the vehicle by coating the vehicle paint with a temporary treatment that would make the paint look new and without defect when in reality the paint was extremely deteriorated by exposure to the sun and weather conditions.

On August 10, 2017, Plaintiff propounded his second set of special interrogatories on Defendant Valencia BMW (“Valencia BMW”). On September 14, 2017, Valencia BMW responded to the special interrogatories, but objected to special interrogatories numbers 13 and 27 on the basis of non-party privacy rights. On September 19, 2017, Plaintiff sent a meet and confer email to Defendants regarding the responses. On September 25, 2017, Defendants responded in a meet and confer letter. On October 31, 2017, Plaintiff filed the instant motion seeking to compel responses to interrogatories 13 and 27.

Legal Standard

The right to discovery is broad and permits any party to “obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action…if the matter either is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010. The “identify and location of persons having knowledge of any discoverable matter” is expressly included within CCP § 2017.010.

A party may move for an order compelling further responses to interrogatories if it determines that (a) a statement of compliance is incomplete, (b) a statement of inability to comply is inadequate, incomplete, or evasive, or (c) an objection is without merit or too general. CCP § 2030.300. The motion must set forth facts showing good cause justifying the discovery sought, must be accompanied by a section 2016.0404 meet and confer declaration, and must be noticed within 45 days of service of the response, unless the parties have agreed in writing to an extension of the 45-day deadline. CCP § 2030.300 (b),(c); see Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898 [rejecting contention that 45-day statutory period runs from date set for production or inspection, rather than from date of service of response].)

While California recognizes a right to privacy, a right to privacy is not absolute and may be overcome in light of a competing interest. The leading cases on this issue are Hill and Williams. The court in Hill established a three part framework for evaluating a claimed invasion of privacy: the party asserting the right must first establish a legally protected privacy interest, an objectively reasonable expectation of the privacy interest, and a serious threatened intrusion. Hill, supra at 35-37. Upon such a showing, the court would then balance this against the other party’s legitimate and important countervailing reasons for disclosure and any feasible alternatives that could serve those same interests or protective measures. Id., supra at 37-40. In Williams, the court disapproved of a string of cases that held that a “compelling” interest was required to overcome privacy interests; Williams held that such a compelling interest or compelling need is not always required, except in cases involving “obvious invasions of interests fundamental to personal autonomy.” Williams, supra at 557.

Discussion

Meet and Confer

Plaintiff does not submit a meet and confer declaration as required by CCP § 2030.300, but he does attach the meet and confer letter sent by Defendants in response to his email. (Kerns Decl. Ex. 3). Defendants attach Plaintiff’s meet and confer email as an exhibit. (Kolar Decl. Ex. B). It appears that the parties met and conferred before Plaintiff filed this motion.

Motion to Compel Further

Although Plaintiff styles this motion a motion to compel, it appears that this is a motion to compel further responses because Valencia BMW responded to the subject interrogatories. Here, Plaintiff requests further responses to two interrogatories regarding contact information for third parties.

Special Interrogatory 13

“Identify the person(s) or entity from whom the subject vehicle was obtained by defendant by stating their names and last known business and residence addresses and phone numbers.”

Valencia BMW responded, “This requests seeks to invade the constitutional right of privacy of a non-party as governed by the Calif. Const. Art. 1, Sec 1. See also Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.

Plaintiff argues that he is entitled to the contact information of the subject vehicle’s prior owners because those individuals may have information regarding the paint’s condition at the time they sold the subject vehicle to Defendants.

In evaluating a privacy right, the court applies the Hill test. Here, Defendants establish a privacy interest in a non-party’s identity and contact information. County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 927, (“Home contact information is general considered private.”). Defendants do not establish grounds regarding the second Hill factor, the reasonableness of that expectation; however, these prior owners are not before the court and have not been identified in discovery. These prior owners have a reasonable expectation in the privacy of their identities and contact information. The disclosure of their identities and contact information could be a threatened intrusion on that privacy interest.

Defendants contend that under Britt v. Superior Court (1978) 20 Cal.3d 844, 859, the requested information must be directly relevant to Plaintiff’s claim and must be “essential to the fair resolution of the lawsuit.” Here, Plaintiff argues that the identities and contact information could enable him to discover the paint’s condition at the time the subject vehicle was transferred to Defendants. This information is both directly relevant to the central question of this case, the condition of the subject vehicle’s paint, and essential to the resolution of the case because it would establish the paint’s condition at the time Defendants acquired the subject vehicle.

While Defendants argue that the information of the subject vehicle’s prior owner is irrelevant, especially in light of the fact that Defendants produced the information for the body shops that performed work on the subject vehicle, this information would not provide Plaintiff the information he requests in the subject interrogatory because it may not reveal the previous owner’s knowledge of the subject vehicle’s paint.

Although the prior owner has a privacy interest in his or her identity and contact information, that privacy interest is outweighed here by Plaintiff’s right to discovery of facts essential to his case. Accordingly, Plaintiff’s motion to compel further responses to special interrogatory 13 is GRANTED.

Special Interrogatory Number 27

“State the last known business and residence addresses and phone numbers for Gary Pilikyan.”

Valencia BMW objected to this interrogatory on the basis of privacy, but responded, “Mr. Pilikyan can be contacted through counsel for defendants.”

Plaintiff requests further responses as to this interrogatory because although Mr. Pilikyan was identified by Defendants, “Defendants’ counsel has indicated she will not accept service of process on his behalf but refuses to provide his contact information. There is no other way to serve this person who was certainly a part of the fraud.” (Separate Statement, 3:6-8).

While individuals do have a privacy interest in their contact information, as discussed above, Mr. Pilikyan was previously identified during discovery. As recognized in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1254, contact information is “personal [but] not particularly sensitive,” and is part of “basic civil discovery.” However, Defendants did respond that Mr. Pilikyan can be contacted through counsel for Defendants. Aside from his remark in the separate statement, Plaintiff has not indicated that he is unable to contact Mr. Pilikyan through Defendants’ counsel or that this response is insufficient in and of itself.

Accordingly, the court DENIES the motion to compel further responses as to this interrogatory. However, the Court orders that Mr. Pilikyan be made available for an interview if Plaintiff wishes to interview him as it would be his right to conduct such an interview if Plaintiff had Mr. Pilikyan’s contact information.

Sanctions

Unless the party acted with substantial justification or other circumstances make the imposition of sanctions unjust, the court “shall” impose a monetary sanction “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories.” CCP § 2030.300(d).

Because Defendants acted with substantial justification in raising objections based on third party interests and in objecting to the motion and because the motion was granted in part and denied in part, the Court declines to award sanctions in connection with the instant motion and opposition.

Moving party to give notice.