Case Number: BC457720    Hearing Date: April 28, 2014    Dept: 34

Moving Party: Plaintiff John Doe 19 (“plaintiff”)

Resp. Party: Defendant Los Angeles Unified School District (“LAUSD”)

Plaintiff’s motion to compel LAUSD to provide further responses to special interrogatory numbers 68 and 69 is GRANTED. The Court imposes sanctions against LAUSD in the requested amount of $1,950.00.

BACKGROUND:

Plaintiff John Doe 19 commenced case number BC457720 on 3/18/11 against defendants for negligence and sexual battery. After the Court sustained defendants’ demurrers to multiple pleadings, Doe 19 filed a third amended complaint on 7/12/13 alleging the same two causes of action. Doe 19 alleges that Miller, who was Doe 19’s music instructor at Hamilton High School, sexually molested him from 1997 to 1999..

Plaintiff John Doe 20 commenced case number BC478491 against defendants on 2/6/12, alleging causes of action for negligence and sexual battery. Doe 20 also alleges that he was sexually molested by Miller from 1997 to 1999. The most recent pleading in BC478491 is a third amended complaint, to which defendants have filed demurrers and motions to strike.

On 3/21/13, the Court granted LAUSD’s motion to consolidate the instant action, BC478491, with BC457720.

On 10/31/12, at a hearing on plaintiff’s motion to compel LAUSD’s further responses to special interrogatories, the Court ordered LAUSD to provide further responses to interrogatory numbers 9-12, 17-61, 65-69, 72, and 73.

ANALYSIS:
Plaintiff seeks to compel further responses to special interrogatory numbers 68 and 69. These interrogatories asked LAUSD to “identify” all employees at Loyola Village School from 1977 to 1993 and all employees at Hamilton High School from 1993 to the present. (See Robles Decl., Exh. 1, p. 10.) The term “identify” is defined to mean “the full name and most recent contact information including, address(s), phone numbers and email address(s).” (Id., p. 3.)

On Oct. 31, 2012, the Court ordered LAUSD to provide further responses to these interrogatories. LAUSD did not provide supplemental responses until Nov. 12, 2013, more one year later. (Robles Decl., Exh. 3.) LAUSD provided some names of its employees from the subject schools during the subject time periods. (Ibid.) LAUSD did not provide the most recent contact information for these employees, and failed to provide the full names of some employees. (See ibid.)

Plaintiff argues that further responses to number 68 are necessary because LAUSD did not provide the full names for some employees, did not provide the time period for the employees’ employment, and did not provide contact information. Plaintiff argues that further responses to number 69 are necessary because LAUSD failed to provide employee names and contact information for 1994 and 1996, and have not provided contact information for other employees. LAUSD argues that plaintiff is not entitled to the contact information for the employees because statements by the employees could be binding upon or imputed to LAUSD; a statement by an employee as to his or her awareness of the alleged misconduct may implicate the employee in a potential violation of Penal Code section 11166(a); and disclosure of the information could constitute a violation of the employees’ rights to privacy.

As an initial matter, the Court notes that LAUSD failed to raise any of these issues as objections to special interrogatory numbers 68 and 69. (See Robles Decl., Exh. 3; Exh. 6, p. 8.) The failure to timely raise these objections in response to the interrogatories acts as a waiver thereto. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶¶ 8:1101-8:1101.2.) Further, these objections either were raised – or should have been raised – when LAUSD opposed the initial motion to compel that was heard on Oct. 31, 2012. If LAUSD believed that the Court’s Oct. 31, 2012 ruling ordering supplemental respones was incorrect, it should have moved for reconsideration or filed a petition for writ of mandate. It did neither. Hence, these arguments are procedurally improper in the present motion.

However, even if the court were to consider these arguments, it finds them without merit.

LAUSD argues that direct ex parte communications with the current and former employees would violate Rules of Professional Conduct number 2-100. This rule provides:

“(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

“(B) For purposes of this rule, a “party” includes:

(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or

(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

“(C) This rule shall not prohibit:

(1) Communications with a public officer, board, committee, or body; or

(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice; or

(3) Communications otherwise authorized by law.”

(Rules Prof. Conduct, rule 2-100.)

In the notes accompanying this rule, it is stated that “Paragraph (B) is intended to apply only to persons employed at the time of the communication.” (Ibid.) “Thus, rule 2-100 permits opposing counsel to initiate ex parte contacts with unrepresented former employees, and present employees (other than officers, directors or managing agents) who are not separately represented, so long as the communication does not involve the employee’s act or failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability.” (Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 140.)

LAUSD argues that “a statement by any employee who might claim they were aware of any alleged sexual misconduct by Mr. Miller would arguably be ‘binding upon or imputed to’ LAUSD on the issue of notice or might ‘constitute an admission on the part of’ LAUSD on the issue of notice.” (Opp., p. 4:20-23.) First, it is interesting to note that this assertion is in the conditional: “would arguably be binding” or “might constitute an admission.”

More critically, LAUSD cites three cases for this assertion; none of the three cases actually support its claim.

In Margaret W. v. Kelly R. (2006) 139 Cal.App.4th 141, the plaintiff, “who was then 15 years old and a high school sophomore, went to a sleepover at a friend’s house and drank too much. Without permission from either her parents or the host parent, she left the house in the company of a girlfriend and some boys from school to hang out at the house of one of the boys, where she alleges she was brutally raped by the boys.” (Id at p. 145.) She sued, among others, the parents at whose house the sleep-over had been held. This case has no relevance to the issues in this motion. The discussion on p. 159 – the jump cite to which defendant refers this court (See Opp., p. 4:23 – 5:1) – simply recites facts to show that the parents did not know of any of the facts regarding this rape.

John Doe v. City of Los Angeles (2007) 42 Cal.4th 531 is equally inapposite. In that case, two forty-year-old former Boy Scouts brought action against Los Angeles City and the Boy Scouts of America seeking damages based on allegations that a city police officer sexually abused them when they participated as teenagers in a joint police explorer and scouting program. The City and the Boy Scotts demurred, raising statute of limitations defense. The trial court sustained the demurrers and the dismissal was affirmed by our Supreme Court. Defendant cites to pages 546-547 to support its argument that a statement by a current or former employee would be binding on the School District. (See Opp., p. 5:1.) These passages do not support that argument; rather they discuss the definition of “reason to know” as used in CCP §340.1(b)(2).

Lastly, C.A. v. William S. Hart Lincoln High School Dist. (2012) 53 Cal.4th 861 is equally unavailing to defendant. In C.A., the plaintiff sued “his public high school guidance counselor and the school district for damages arising out of sexual harassment and abuse by the counselor.” (Id., at p. 865.) Our Supreme Court held that a district could be vicariously liable for negligent hiring, retention or supervision of the guidance counselor. Defendant cites to page 879 to support its argument that a statement by a current or former employee would be binding on the School District. (See Opp., p. 5:1.)
The Supreme Court’s entire discussion on this cited page is as follows:

“We note, as well, that even when negligence by an administrator or supervisor is established, the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the student than with any other party, and that fact should be reflected in any allocation of comparative fault.
Within these limits, we conclude a public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student. Whether plaintiff in this case can prove the District’s administrative or supervisory personnel were actually negligent in this respect is not a question we address in this appeal from dismissal on the sustaining of a demurrer.” (Id., at p. 879.)

This court fails to see how this citation supports LAUSD’s argument.

LAUSD states that “all current and former LAUSD employees are represented by LAUSD’s counsel unless said employees choose not to be represented.” (Opp., p. 7:23-24.) This is, to put it mildly, an absurd position – and one unsupported by any citation to authority.
According to Wikipedia, “[d]uring the 2007-2008 school year, LAUSD . . . had 45,473 teachers and 38,494 other employees. It is the second largest employer in Los Angeles County, after the county government.” (See “Los Angeles Unified School District, Wikipedia, available at http://en.wikipedia.org/wiki/Los_Angeles_Unified_School_District#cite_ref-LAUSDFINGERTIPFACTS_3-0.) It is hard for this court to take seriously the assertion that LAUSD counsel represent all of its approximately 95,000 current employees, and probably several hundred thousand additional former employees.

The Court rejects LAUSD’s request to extend rule 2-100 to former employees in this action. No doubt every employer-defendant who is accused of harassment or other workplace illegalities would prefer that plaintiff’s counsel not be able to interview former employees. However, the mere fact that the former employees could provide information to plaintiff which could bolster plaintiff’s claims against LAUSD is not a valid reason for seeking to withhold the information.

As for current employees, LAUSD fails to show that, if the information were disclosed, plaintiff would engage in communications that would violate rule 2-100. LAUSD is confusing the issue in this motion, i.e., whether plaintiff may discover the contact information of the employees, with an issue of the extent to which plaintiff may communicate with the employees. LAUSD has not moved for a protective order, or any other relief, regarding the use of the contact information. LAUSD provides no authority which holds that a party may withhold the contact information of employees due to a fear that rule 2-100 might be violated. There is no showing that plaintiff will engage in communications related to the employees’ own acts or omissions, as opposed to the acts or omissions of others. (See rule 2-100(B)(2).) There is no showing that any statements made by the employees “may constitute an admission on the part of the organization” because this provision “covers only ‘high-ranking organizational agents who have actual authority to speak on behalf of the organization.’ [Citation.]” (San Francisco Unified School District ex. Rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th at p. 1232; rule 2-100(B)(2).) If plaintiff does engage in improper communications in violation of rule 2-100, LAUSD may seek appropriate relief at that time.

LAUSD also asserts that it would be improper for plaintiff to directly contact the employees because counsel asserts that he represents every LAUSD employee, “unless said employees choose not to be represented.” (Opp., p. 7:23-24.) LAUSD provides absolutely no evidence to support the assertion that all of its employees are represented by LAUSD’s counsel. The Court is unaware of any case that holds that all of the Federal Government’s 2.7 million employees, all of Walmart’s 2.2 million employees, all of McDonald’s 440,000 employees, all of the State of California’s 196,000 employees – or all of LAUSD’s 95,000 employees – are represented by corporate or other counsel hired by the employer.

LAUSD also argues that disclosure of the current and former employee’s contact information would result in an unreasonable and unnecessary invasion of their right to privacy. “[I]ndividuals have a legally recognized privacy interest in their personal financial information.” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal. 4th 319, 330.) “California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 [citing Cal. Const., art. I, § 1; White v. Davis (1975) 13 Cal.3d 757].) In determining this issue, “courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Id. at p. 843.) In certain situations, this balancing test may apply to the discovery of the contact information of witnesses. (See, e.g., Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1254-1256; Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 362-364.)

LAUSD fails to establish that the employees have a strong privacy interest in their contact information. “[I]t is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contact information.” (Puerto, 158 Cal.App.4th at p. 1254.) “Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter” or “in the unusual circumstance of true danger.” (Ibid.) There is no showing that the information is not necessary to the prosecution of the matter. Other than a conclusory assertion that plaintiff will post the contact information on the internet along with accusations that the employees failed to report sexual misconduct, there is no showing of true danger. (See Wyatt Decl., ¶ 3.) Counsel cites the court to Exh. 2, which consist of various postings on a website maintained by plaintiff’s counsel. Exhibit 2 shows that plaintiff’s counsel has posted 6 documents relevant to this case: the “John Doe 20 Complaint,” plaintiff’s “Government Tort Claim Form,” a “Timeline of Vance Miller,” a “Miller Police Investigation Report,” “Miller Photo and Teacher of the Year,” and “Miller John Doe 19 Complaint.” Nothing in this Exhibit establishes that plaintiff has or will publicize the contact information of LAUSD’s employees.

Because there is no showing of a serious invasion of privacy, the Court need not balance the opposing interests. (See Puerto, 158 Cal.App.4th 1242, 1256.)

Finally, LAUSD fails to show that it would be unduly burdensome to provide the information. LAUSD’s counsel’s declaration as to the burden is based on information and belief, and therefore appears not to have been made with personal knowledge. (See Wyatt Decl., ¶ 4.) Counsel declares that the search could be “time-consuming,” but provides no estimate as to how much time this could take. (Ibid.) Counsel’s conclusory declaration is not sufficient to support this objection. Further, the time for LAUSD to have made this objection was before the Court ordered it to produce further documents, more than 1½ years ago.

Plaintiff’s motion to compel LAUSD to provide further responses to special interrogatory numbers 68 and 69 is GRANTED.

Plaintiff requests sanctions against LAUSD in the total amount of $1,950.00. (See Code Civ. Proc., § 2030.300(d).) This amount is based on 3 hours spent drafting meet and confer correspondence and the motion, at an hourly rate of $650.00. (Robles Decl., ¶ 9.) The Court finds both the hourly rate and the time spent on the motion to be reasonable.

The Court grants sanctions against LAUSD in the amount of $1,950.00

Documents to be produced, and sanctions paid, within 30 days.