Case Number: BC615789 Hearing Date: April 11, 2018 Dept: 98

ORDER RE: DEFENDANTS’ MOTION TO COMPEL DISCOVERY PURSUANT TO CCP § 2017.220; MOTION GRANTED

April 1, 2016, Plaintiff Janet Roe (“Plaintiff”) filed this action against Defendants David Park (“Park”), Hacienda La Puente Unified School District (“School District”), and Cheli McReynolds (“McReynolds”) for negligence per se and battery as to Park and negligent supervision as to School District and McReynolds. Plaintiff alleges that from August 2010 to August 2012, she was a student at Los Altos High School and was sexually molested by Park. School District and McReynolds (“Defendants”) move to compel discovery of Plaintiff’s prior sexual conduct, pursuant to Code of Civil Procedure section 2017.220.

In a civil action alleging sexual harassment, sexual assault, or sexual battery, a party seeking discovery of plaintiff’s sexual conduct with individuals other than the alleged perpetrator shall establish specific facts showing: (1) there is good cause for that discovery, (2) the matter sought to be discovered is relevant to the subject matter of the action, and (3) the matter sought to be discovered is reasonably calculated to lead to the discovery of admissible evidence. (Code of Civ. Proc., § 2017.220, subd. (a).)

Plaintiff seeks recovery for past and future emotional distress and claims she can no longer have meaningful relationships or trust people, including men, feels she will always be afraid of men, and does not believe she will ever have the openness, intimacy, and other benefits of a normal marriage. Defendants contend they have identified witnesses, including: Ronald Cerecedes (“Cerecedes”), an ex-boyfriend who lived with Plaintiff for over one year after the events with Park occurred; Barbara Barlow, a nurse practitioner who regularly saw Plaintiff and discussed sexual activity and birth control; and Dr. Elaine Kindle, a therapist who Plaintiff began seeing in 2016 as a result of the events with Park.

Defendants prepared to depose these individuals, but Plaintiff objected to discovery of Plaintiff’s sexual conduct with anyone besides Park. (Declaration of Randall L. Winet, ¶ 5.) The parties met and conferred, but Plaintiff contends the filing of this action did not waive her right to privacy with regard to sexual matters. (Winet Decl., ¶¶ 6, 7.)

Article I, section 1 of the California Constitution recognizes the right to privacy as an inalienable right. This right to privacy extends to sexual relations. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Defendants argue Plaintiff’s right to privacy must be balanced with their right to discover information relevant to Plaintiff’s claims and damages in order to defend themselves. Where privacy rights are balanced against a party’s right to discovery, it is “essential to measure the closeness of the fit between the requested discovery and the allegations of the complaint.” (Id. at p. 1200.)

Here, Defendants argue they seek discovery relating only to Plaintiff’s emotional and mental state and ability to form and maintain relationships, which Plaintiff has already testified to at her deposition and which she has put at issue in her complaint. Defendants contend this evidence is admissible or likely to lead to admissible evidence because they are not seeking to introduce it to prove the absence of injury or consent. (Evid. Code, § 1106.) Rather, they are seeking information to impeach Plaintiff’s credibility and claims.

Defendants submit the declaration of Steven A. Elig, M.D. (“Dr. Elig”), the psychiatrist who performed an independent medical examination of Plaintiff, who opines that key aspects of Plaintiff’s credibility are in doubt, including statements regarding her past experiences. (Declaration of Steven A. Elig, ¶ 2.) Dr. Elig also opines Plaintiff appears to amplify her past, present and future symptoms and functional impairment, and that additional facts relating to her relationships with males during and after the subject incidents could have an effect on his opinions regarding Plaintiff’s credibility. (Elig Decl., ¶¶ 4, 5.)

Plaintiff argues her right to privacy of her sexual conduct is not waived and Defendants have not met their burden of showing good cause for discovery. Plaintiff argues discovery of her sexual conduct with others is not justified on issues of credibility or to obtain impeachment evidence and that instead, such discovery must be relevant and necessary to the determination of the cause of plaintiff’s emotional distress.

The Court disagrees. The Court finds this case is distinguishable from Knoettgen v. Superior Court (1990) 224 Cal.App.3d 11, which Plaintiff cites for support. There, the defendant sought discovery of information regarding two prior sexual assaults on the plaintiff as a child. However, the defendant argued this evidence showed a possible “alternative source of any emotional distress suffered . . . and the extent of damages . . . suffered from the acts alleged in her Complaint.” (Id. at p. 14.) By contrast, here, evidence by Cerecedes, Barlow, and Dr. Kindle that Plaintiff is able to form and maintain normal and healthy relationships with men despite the incidents with Park, would be directly contrary to Plaintiff’s claims for damages and emotional distress.

The Court finds there is good cause to discover the information sought, limited only to Plaintiff’s ability to form and maintain meaningful relationships, to trust men, and to have openness, intimacy, and other benefits of a normal marriage.

The Motion to compel discovery pursuant to Section 2017.220 is GRANTED.

Plaintiff’s request for monetary sanctions pursuant to Section 2017.220, subdivision (b), is DENIED.

Moving party to give notice.