Filed 9/5/19 Dobbins v. Kiner CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ROBERTA DOBBINS et al.,

Plaintiffs and Respondents,

v.

MICHAEL KINER et al.,

Defendants and Appellants.

E070924

(Super.Ct.No. PSC1702383)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Reversed.

Bradley & Gmelich, Jonathan A. Ross, and Darren P. Salute for Defendants and Appellants.

Law Office of Ross L. Hollenkamp and Ross L. Hollenkamp for Plaintiffs and Respondents.

Plaintiffs live in the same apartment complex and were all victims of burglaries by a handyman who worked at the complex. They filed this action against the handyman, against their landlord, and against two agents of the landlord who allegedly participated in hiring the handyman.

Plaintiffs served interrogatories, including one that sought the contact information of other tenants who had reported similar burglaries. The landlord and its agents objected to this interrogatory, on the ground that it invaded the privacy rights of the other tenants. The trial court granted a motion to compel further responses to the interrogatory; it also awarded $5,740 in sanctions against these defendants (and their counsel).

These defendants appeal from the sanctions award. We will hold that they had substantial justification for their opposition to the motion, because they had a reasonable and well-grounded argument that the other tenants were entitled to notice and an opportunity to opt out before their contact information could be disclosed. Accordingly, we will reverse.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Parties and Causes of Action.

The plaintiffs in this action are Roberta Dobbins, Melinda Lee, and Jean Patrick (collectively Dobbins).

The defendants are Thunder Road Associates, LLC, d/b/a Las Colinas Senior Apartments, Michael Kiner, and Patricia Stamper (collectively Las Colinas), plus Jerod Keith Nielsen.

According to the operative complaint, Las Colinas operates the senior apartment complex that Dobbins lives in. Around December 2015, Las Colinas hired Nielsen as a maintenance man and entrusted him with a master key. Las Colinas knew, at the time, that Nielsen had a history of drug abuse and a 2014 burglary conviction.

Nielsen proceeded to burglarize “the apartments of numerous Las Colinas residents,” stealing mostly jewelry. In February 2016, he was arrested for burglary. In April 2016, he pleaded guilty to three counts of burglary and was incarcerated.

Dobbins asserted causes of action against Las Colinas for negligence, negligent hiring, negligent supervision, failure to warn, negligent infliction of emotional distress, and financial elder abuse. Additional causes of action were asserted solely against Nielsen.

B. The Disputed Interrogatory.

On January 31, 2018, Dobbins served form interrogatories on Las Colinas.

The interrogatories defined “INCIDENT” as “the series of burglaries committed by then-employee of Las Colinas Senior Apartments Jerod Nielsen, between approximately December 2015 and February 2016, wherein Jerod Nielsen trespassed into the apartments of numerous Las Colinas Senior Apartments residents, including but not limited to plaintiffs Roberta Dobbins, Melinda Lee, and Jean Patrick, and stole personal property belonging to each said resident.”

Interrogatory No. 12.6 then asked:

“Was a report made by any PERSON concerning the INCIDENT? If so, state:

“(a) the name, title, identification number, and employer of the PERSON who made the report;

“(b) the date and type of report made;

“(c) the name, ADDRESS, and telephone number of the PERSON for whom the report was made; and

“(d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the report.” (Bolding omitted.)

On March 19, Las Colinas responded to the interrogatories. Its response to Interrogatory No. 12.6 was:

“The plaintiffs made police reports regarding the incidents. Attached are copies of the police reports.”

On or about April 27, counsel for Dobbins sent a meet-and-confer letter. He argued that Las Colinas’ responses to seven interrogatories were inadequate. Regarding interrogatory no. 12.6, he argued that the response was “incomplete and evasive,” because the definition of “INCIDENT” included the burglaries of any apartments, not just plaintiffs’ apartments.

Counsel for Las Colinas responded: “[Y]our definition of incident is incorrect. Please identify where you are counsel for others besides your clients on this matter? I have not seen any said representation letters. Moreover, the police reports in our possession were identified and produced. If you have others, I look forward to receiving them in your clients responses to discovery. If you do not have them, you may issue subpoenas to the police department.”

On May 3, counsel for Dobbins responded, reiterating his arguments, and stating that, unless he received further responses, or unless Las Colinas agreed to extend the deadline for filing a motion to compel, he would file a motion to compel on May 8, 2018.

On May 4, Las Colinas served further responses. This time, it objected to Interrogatory No. 12.6 on the ground that the definition of “INCIDENT” “is overly broad and violates the right to privacy of third parties.” Otherwise, its response to this interrogatory was unchanged.

C. The Motion to Compel.

The further responses were served by mail; as of May 8, counsel for Dobbins had not received them. Thus, he filed a motion to compel. It requested an award of $5,740 in sanctions.

On May 28, while the motion was pending, counsel for Dobbins sent a further meet-and-confer letter. He conceded that Las Colinas’ further responses had mooted the motion to compel, except as to Interrogatory No. 12.6. Regarding that interrogatory, he argued that Dobbins’ need for the information outweighed any privacy interests of third parties. However, he also said that Dobbins was “willing to consider a proposed stipulated protective order . . . .”

On June 1, Las Colinas’s counsel responded. He asserted, “The person whose privacy is involved must be given notice of the discovery request and an opportunity to object to the invasion of his or her privacy prior to disclosure.” All he said about a protective order was that, so far, Dobbins had not agreed to any particular terms: “[W]illing to consider a proposed stipulated protective order is not the same as offering one up.”

In its opposition, Las Colinas argued that the interrogatory invaded the privacy rights of third parties. It also argued that “[t]he person whose privacy is involved must be given notice of the discovery request and an opportunity to object to the invasion of his or her privacy prior to disclosure.” Finally, it argued that the amount of sanctions sought was excessive.

On June 22, at the hearing on the motion to compel, counsel for Las Colinas reiterated his argument that the interrogatory invaded the privacy rights of third parties. He also argued, “[A]t a minimum, these people are entitled to receive notification whether or not they want to be part of this.”

The trial court granted the motion. It ruled: “[Las Colinas has] made no showing that a response would implicate, much less violate, a legally protected privacy right. A party asserting privacy must establish a legally protected privacy interest, an objectively reasonable expectation of privacy and a threatened intrusion that is serious to be balanced against allegedly legitimate and important countervailing interests in discovery.” It awarded the full $5,740 sought in sanctions.

II

SUBSTANTIAL JUSTIFICATION FOR OPPOSING THE MOTION TO COMPEL

A. Legal Background.

The trial court must impose monetary sanctions, consisting of reasonable attorney fees and other expenses (Code Civ. Proc., § 2023.030, subd. (a)), “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).)

“‘Substantial justification’ means ‘ . . . justification [that] is clearly reasonable because it is well grounded in both law and fact.’ [Citation.]” (Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1312.) “‘Courts have held that substantial justification exists to oppose a motion to compel where “novel questions” are presented in a case or where there is “conflicting legal authority on an unsettled issue.”’ [Citation.]” (Yelp Inc. v. Superior Court (2017) 17 Cal.App.5th 1, 20.)

“Orders imposing discovery sanctions are reviewed under the abuse of discretion standard and are subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.]” (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 80.)

B. Discussion.

Las Colinas contends that there was substantial justification for its opposition to motion to compel, in three respects.

1. Welfare and Institutions Code section 15633.

First, Las Colinas argues that the interrogatory violated Welfare and Institutions Code section 15633, subdivision (a), which provides: “The reports made pursuant to Sections 15630, 15630.1, and 15631 shall be confidential and may be disclosed only as provided in subdivision (b). Any violation of the confidentiality required by this chapter is a misdemeanor . . . .”

Welfare and Institutions Code section 15630 and 15630.1 deal with reports of elder abuse made by a mandated reporter. Welfare and Institutions Code section 15631 deals with reports of elder abuse made by someone other than a mandated reporter to “the county adult protective services agency” or a “local law enforcement agency.” (Welf. & Inst. Code, § 15631, subd. (b).) Welfare and Institutions Code section 15633, subdivision (b) allows the disclosure of such reports to certain responsible agencies. (See also Welf. & Inst. Code, § 15633.5, subd. (b).)

“Elder abuse” includes “[t]ak[ing] . . . personal property of an elder . . . for a wrongful use . . . .” (Welf. & Inst. Code, §§ 15610.07, subd. (a)(3), 15610.30, subd. (a)(1).)

We may assume, without deciding, that these statutes effectively prohibit the disclosure of a police report of the burglary of an elder. Las Colinas, however, did not raise this argument below. As it points out, its counsel did mention that the burglary victims were elderly. However, he never argued that this fact triggered Welfare and Institutions Code section 15633; he did not even cite that statute.

Las Colinas falls back on the rule that “a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts. [Citations.]” (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) The problem, however, runs deeper than mere failure to preserve the issue for appeal. The question before us is whether Las Colinas acted with substantial justification in opposing the motion to compel. Its opposition can hardly be justified based on an argument it never raised.

2. Penal Code section 1054.2.

As Las Colinas points out, Nielsen is a named defendant, and as such, he would be entitled to receive the interrogatory responses. (Code Civ. Proc., § 2030.260, subd. (c).) Las Colinas therefore argues that the interrogatory violated Penal Code section 1054.2, subdivision (a)(1). That subdivision provides that, subject to exceptions not relevant here:

“[N]o attorney may disclose or permit to be disclosed to a defendant, members of the defendant’s family, or anyone else, the address or telephone number of a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1, unless specifically permitted to do so by the court after a hearing and a showing of good cause.”

This argument is frivolous. The statute applies exclusively to the contact information of “a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1” — i.e., disclosed by a prosecutor, to defense counsel, in the criminal discovery process.

3. Privacy rights of third parties.

Third, Las Colinas argues that the interrogatory violated the privacy rights of the other burglary victims.

“Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s ‘inalienable right of privacy’ provided by Calif[ornia] Const[itution] Art[icle] 1, § 1. [Citations.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:293, p. 8C-93.) “The privacy protected may be either that of one of the parties to the action or of some third person (nonparty) to whom the information pertains.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:296, p. 8C-96.)

Constitutional privacy claims, both in general and in the context of discovery, are analyzed under the following “framework”: “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)

“Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. [Citations.] Whether [a person] has a reasonable expectation of privacy in the circumstances and whether . . . conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.)

Williams v. Superior Court, supra, 3 Cal.5th 531, while not exactly on point, lights our path. Plaintiff Williams, acting as representative of all employees of Marshall’s under the Private Attorneys General Act (PAGA), sued Marshall’s for alleged wage and hour violations. (Williams v. Superior Court, supra, 3 Cal.5th at pp. 538-539.) In discovery, he sought the contact information of Marshall’s other California employees. Marshall’s objected that this request violated the privacy rights of third parties. When Williams filed a motion to compel, the trial court granted the motion as to employees of the Costa Mesa store, where Williams worked, provided they were given notice and an opportunity to opt out; it denied the motion as to employees of other stores. (Id. at pp. 539, 553.)

The Supreme Court analyzed the third-party privacy claim under the framework stated above.

First, it held that that the employees had a legally protected privacy interest: “While less sensitive than one’s medical history or financial data, ‘home contact information is generally considered private.’ [Citations.]” (Williams v. Superior Court, supra, 3 Cal.5th at p. 554.)

Second, however, it held that they had no reasonable expectation of privacy: “[W]e doubt Williams’s fellow employees would expect that information to be withheld from a plaintiff seeking to prove labor law violations committed against them and to recover civil penalties on their behalf. [Citations.] Rather, fellow employees ‘might reasonably expect, and even hope, that their names and addresses would be given to’ a plaintiff seeking to vindicate their rights. [Citation.] At a minimum, fellow employees would have no reason to expect their information would be categorically withheld, without even an opportunity to opt in to or opt out of disclosure. [Citation.]” (Williams v. Superior Court, supra, 3 Cal.5th at pp. 554-555.)

Third, it also held that there was no serious invasion of privacy: “The trial court recognized the Costa Mesa store employees’ privacy interests . . . could be protected by conditioning disclosure on issuance of such a notice. Employees at other stores have no different privacy interests and expectations than those for whom disclosure was ordered; there is no reason to think their interests could not have been accommodated in a like manner. [Citation.]” (Williams v. Superior Court, supra, 3 Cal.5th at pp. 554-555.)

Here, under Williams, other residents who were victims of Nielsen’s burglaries had a legally protected privacy interest in their contact information. This information was even more sensitive than usual, because it would identify them as crime victims. The trial court therefore erred by ruling that compelling a response to the interrogatory would not implicate any legally protected privacy interest.

The other residents, however, had no reasonable expectation that that information would be withheld from Dobbins categorically (i.e., without notice and an opportunity to opt out). Admittedly, unlike Williams, this is not a PAGA action or a similar representative action; if Dobbins prevails, other victims will not benefit directly. Nevertheless, their interests are aligned with hers. Moreover, Dobbins was only seeking the contact information of other victims who had made a report. By definition, then, they had already disclosed the fact that they had been burglarized to someone — presumably the police or Las Colinas. And presumably they made the report because they wanted an investigation and/or prosecution, which they had to expect would likely lead to further disclosure of their identity.

Las Colinas argues, however, that the trial court could not order disclosure until the burglary victims were given notice and an opportunity to object. Dobbins does not really respond to this argument, beyond her response to Las Colinas’s privacy argument in general — i.e., that Las Colinas failed to establish a reasonable expectation of privacy. Williams, however, held that the third parties there had no reasonable expectation of privacy, other than being given notice and an opportunity to opt out — it did not hold that they had no reasonable expectation of privacy at all. Moreover, it did not stop there; it went on to hold that there was no serious invasion of privacy, because a notice and opt-out procedure was sufficient to protect the third parties’ privacy interests.

In general, “[w]here nonparties’ identity is relevant to the action (e.g., because they have suffered similar injuries), a party may be compelled to disclose their names, addresses and phone numbers, provided the nonparties are notified and given an opportunity to object to disclosure of their contact information. [Citations.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:299, p. 8C-97, some italics omitted.)

Thus, for example, in In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, the court held that, before potential class members’ identifying information could be disclosed in discovery, notice and an opportunity to opt out were “constitutionally required.” (Id. at p. 1426.) This was true even though the trial court had found that the potential class members had no reasonable expectation of privacy, because they would want the information disclosed. (Id. at pp. 1421, 1426-1427.) The court added that “even as to generally discoverable identifying information for potential class members in a putative class action, some form of notice and opportunity to object to disclosure to a third party is required to protect the potential class members’ privacy rights under the California Constitution. [Citations.]” (Id. at pp. 1427-1428.)

Admittedly, one case — Puerto v. Superior Court (2008) 158 Cal.App.4th 1242 — has indicated that “percipient witnesses” are not entitled to notice and an opportunity to opt out before their contact information is disclosed: “Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” (Id. at pp. 1256-1257.) Las Colinas could reasonably argue that Puerto conflicts with Williams, which acknowledged that, in a PAGA action, “any employee allegedly aggrieved [is] a percipient witness . . . .” (Williams v. Superior Court, supra, 3 Cal.5th at p. 547.) Moreover, Las Colinas could reasonably argue that here, the other burglary victims were not percipient witnesses within the meaning of Puerto. They did not literally perceive either the hiring of Nielsen or his burglary of Dobbins’ apartment; at most, if they reported their own burglaries to Las Colinas, that might shed light on when Las Colinas knew or should have known that Nielsen was the culprit.

We therefore conclude that Las Colinas’s opposition to the motion to compel — which included the argument that disclosure should not be compelled in the absence of a notice and opt-out procedure — was substantially justified. At a minimum, this position presented a sufficiently close question, under the case law, to justify presenting it to the trial court for resolution.

C. Dobbins’ Counter-Arguments.

Dobbins argues that the trial court may have awarded the sanctions for failure to meet and confer in good faith; she asks us to uphold them on this ground.

“The failure to participate in the meet-and-confer process in good faith is an independent discovery abuse ‘for which sanctions are statutorily authorized.’ [Citation.]” (Moore v. Mercer (2016) 4 Cal.App.5th 424, 448-449; see also Code Civ. Proc., §§ 2023.010, subd. (i), 2023.030, subd. (a).)

It seems clear from the record that the trial court did not rely on this theory. Rather, it rejected Las Colinas’ third-party privacy on the merits — erroneously, as we have held. In any event, if it did rely on this theory, it still erred, because there was no showing of a lack of good faith participation.

Dobbins argues that Las Colinas unreasonably refused to stipulate to a protective order. Neither side mentioned a protective order, however, until May 28 — when the motion had already been on file for 20 days. Thus, this theory would not support the trial court’s award of the entire cost of the motion as sanctions.

And even after May 28, the record does not show that Las Colinas refused to stipulate. There was no particular stipulation on the table. Both sides expressed willingness to consider a stipulation, yet both sides failed to propose one. Moreover, Las Colinas made it clear that any such stipulation would have to include a notice and opt-out procedure; Dobbins did not take Las Colinas up on this, nor did Dobbins propose any alternative terms. Both parties were equally responsible for forcing the court to decide the issue.

Dobbins also argues that Las Colinas should have filed its own motion for a protective order. Las Colinas, however, had no obligation to do so; it had preserved its position by objecting. Moreover, such a motion still would have required the trial court to decide the dispute. It would not have resulted in any net saving of time, effort, or expense.

Finally, Dobbins notes that Las Colinas did not extend the deadline for filing a motion to compel. While it is certainly good form to grant an extension of time, we know of no authority holding that the refusal to do so constitutes meeting and conferring in bad faith. Moreover, while an extension of time might have enabled the parties to settle their differences over the other six disputed interrogatories, Dobbins would still have had to bring a motion to compel regarding Interrogatory No. 12.6. Thus, once again, this theory would not support an award of the entire cost of the motion as sanctions.

III

DISPOSITION

The award of sanctions is reversed. By stipulation of the parties, each side shall bear its own costs on appeal. Also by stipulation of the parties, the remittitur shall issue immediately. (Cal. Rules of Court, rule 8.272(c)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.