Case Number: BC505676    Hearing Date: August 04, 2014    Dept: 32

CASE NAME: Alejandra Chavez v. Bimbo Bakeries USA, Inc., et al.
CASE NO.: BC505676
HEARING DATE: 08/04/14
DEPARTMENT: 32
CALENDAR NO.: 5
SUBJECT: (1) Defendants’ Motion to Compel Source of DNA Testing
(2) Plaintiff’s Motion to Compel Defendant Alex Pereira to Submit to a DNA Test Pursuant to CCP § 2032.310
MOVING PARTY: (1) Defendants Bimbo Bakeries USA, Inc. and Alexander Pereira; (2) Plaintiff Alejandra Chavez
RESP. PARTY: (1) Plaintiff Alejandra Chavez; (2) Defendants Bimbo Bakeries USA, Inc. and Alexander Pereira

COURT’S TENTATIVE RULING

Defendants’ Motion to Compel Source of DNA Testing GRANTED IN PART. Plaintiff to permit Defendants to submit the towel at issue to testing by Defendants’ own experts as to the originating source of the DNA on the towel. The motion is DENIED insofar as it requests that any such testing occur before DNA testing of Defendant Pereira. Defendants’ request in reply to compel testing of the “napkin” is DENIED WITHOUT PREJUDICE. Defendants’ request for sanctions in reply is DENIED.

Plaintiff’s Motion to Compel Defendant Alex Pereira to Submit to a DNA Test Pursuant to CCP § 2032.310 GRANTED.

BACKGROUND

In the complaint, Plaintiff alleges that her supervisor at work, Defendant Pereira (“Defendant” or “Pereira”), sexually assaulted her on multiple occasions and forced her to have sexual intercourse. Defendant denies ever having engaged in intercourse with Plaintiff. The instant motion concerns a towel Pereira allegedly used to ejaculate into and to wipe himself after having had sexual intercourse with Plaintiff in late 2010. There are two discovery motions before the court which are interrelated and which will be discussed in turn.
ANALYSIS

Plaintiff’s Request for Judicial Notice

Request 1 – GRANTED. It is not reasonably subject to dispute that DNA samples are obtained from blood, urine, and saliva. No objection has been received.

Request 2 – DENIED. There could reasonably be a dispute as to whether “there are no risks linked with collecting DNA from saliva, urine, or semen.”

Defendants’ Motion to Compel Source of DNA Testing

Meet and Confer

The evidence reflects that the parties met and conferred regarding the subject matter of this motion by written correspondence and also in conversations. (Sandoval Decl. ¶¶ 5-11.) Accordingly, the court reaches the merits of the motion.

Merits

In the motion, Defendants contend that Plaintiff should be required to produce a towel she contends contains Defendant’s seminal fluid for DNA testing. Defendants contend that Defendant Pereira should not be required to submit to DNA testing until Plaintiff establishes that the towel contains seminal fluids. Defendants contend Pereira’s right to privacy outweighs Plaintiff’s right to discovery unless there is seminal fluid on the towel.

In support of the motion, Defendants submit evidence that at deposition, Plaintiff testified that the alleged sexual assault occurred at some point between September 2010 and November 2010. (Deposition Testimony of Alejandra Chavez (“Chavez Depo.”) at 19:4-8, Exhibit B to the Sandoval DecI.) After Pereira allegedly had sexual intercourse with Plaintiff, he is alleged to have utilized the towel at issue to ejaculate into and to wipe his genetalia after having withdrawn from Plaintiff. (Chavez Depo. at 39:17-40:11.) Defendants submit evidence regarding Plaintiff’s previous use of the towel for other purposes; the accessibility to the towel by other employees before the alleged incident; and the chain of custody of the towel after the incident. (Mot. 2-3.) Defendants submit evidence that Plaintiff’s counsel had the towel tested for the presence of DNA, and that the testing facility identified the presence of DNA from a single male. (Moser Decl. ¶¶ 5-6.)

In reply, Defendants submit evidence that the testing facility used by Plaintiff has indicated that there was also a “napkin” in the bag with the towel when delivered to the facility. Defendants also submit evidence that Plaintiff has informed Defendants that Plaintiff’s testing facility has now confirmed the existence of trace amounts of sperm on the towel. (Suppl. Sandoval Decl. ¶¶ 3-4.)

Defendants have shown that they should be permitted to have the towel tested by their own experts for the originating source of the DNA. As both parties acknowledge, and as reflected in Plaintiff’s deposition testimony cited above, the towel could potentially be critical evidence of whether or not Plaintiff and Defendant Pereira engaged in sexual intercourse. Defendant denies having had intercourse with Plaintiff under any circumstances. Similarly, as argued by Defendants, the determination of whether the originating source of the DNA is in fact seminal fluid is likewise directly relevant to Plaintiff’s claims.

Defendants also contend in the motion that the towel should be tested for seminal fluid before Defendant Pereira is required to submit to a DNA test. Defendants have not moved for a protective order to prevent Plaintiff’s request for DNA testing. Thus, the issue is whether Plaintiff has shown good cause in her motion to conduct a physical examination of Defendant Pereira pursuant to CCP § 2032.320. The court addresses this issue and Defendant’s request to delay an order with respect to DNA testing below for Plaintiff’s motion to compel.

In reply, Defendants contend that the court should also compel DNA source testing for the napkin allegedly submitted to Plaintiff’s testing facility in the same bag that contained the subject towel. (Reply 4.) Defendants did not request such relief anywhere in their moving papers, presumably because Defendants did not yet know of the existence of the napkin. Because such relief was not requested in the motion, it would be procedurally improper for the court to consider this request. The court would encourage the parties to meet and confer as to a stipulation with respect to testing of the napkin to avoid further motion practice.

In reply, Defendants contend that Plaintiff and her counsel should be sanctioned for “frivolous actions and delay tactics” pursuant to CCP § 128.5. Insofar as Defendants intended to seek sanctions pursuant to CCP § 128.7, Defendants did not comply with the 21-day safe harbor of that statute. (CCP § 128.7(c)(1).) Since Defendants did not request monetary sanctions anywhere in the moving papers, or submit evidence of the amount of attorney hours expended, the request for sanctions is procedurally improper and is denied on that basis. (CCP § 2023.040.)

The motion to compel testing of the originating source of the DNA on the towel at issue is GRANTED.

Plaintiff’s Motion to Compel Defendant Pereira to Submit to DNA Testing

If any party desires to obtain discovery by a physical examination, the party shall obtain leave of court. (CCP § 2032.310(a).) The court must grant a motion for a physical examination only for good cause shown. (CCP § 2032.320(a).) “A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2032.310(b).)

Meet and Confer

The evidence reflects that the parties met and conferred regarding the subject matter of this motion by written correspondence and also in conversations. (Moser Decl. ¶¶ 8-9.) Accordingly, the court reaches the merits of the motion.

Time, Place, Manner, Conditions, Scope and Nature of Examination

The motion requests that Defendant Pereira submit to a DNA test before Truth4U on a date and time convenient to Pereira. Defendants have not objected to the motion on the basis that further information regarding the time, place, or manner of the DNA test be provided.

Merits

Although the constitutional right of privacy does not provide absolute protection against disclosure of personal information and must be balanced against the countervailing public interests in disclosure (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842), information may nonetheless be shielded from discovery, despite its relevance, where its disclosure would invade an individual’s right of privacy. (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1003.) When a party seeks discovery subject to the constitutional right to privacy, that party bears the burden of establishing that the discovery is directly relevant to the lawsuit. (Lantz v Superior Court (1994) 28 Cal.App.4th 1839, 1853.) Any intrusion on the right to privacy should be the minimum necessary to achieve its objective. (Lantz at 1855.)

As discussed above, the parties’ papers, including Defendants’ papers, show that the towel could potentially be critical evidence of whether or not Plaintiff and Defendant Pereira engaged in sexual intercourse. Plaintiff has provided sworn testimony at her deposition and in her declaration that Defendant used the subject towel to wipe semen from himself after forcing Plaintiff to have sexual intercourse in late 2010. (See Chavez Decl. ¶¶ 2-4.) Plaintiff also submits evidence that the towel was provided to a testing facility, and that tests confirmed the presence of male DNA. (Moser Decl. ¶¶ 4-6.) In reply, Plaintiff submits evidence that the testing facility also found trace amounts of semen. (Moser Reply Decl. ¶¶ 4-6.)

On balance, Plaintiff has made a sufficient showing of good cause to obtain a DNA test of Defendant Pereira that outweighs the privacy objections raised by Defendants. There is now evidence, submitted in reply, that the towel contains trace amounts of semen. Moreover, even without this evidence, Plaintiff has good cause to obtain evidence as to whether the towel contains Defendant’s DNA. It appears that Defendant Pereira denies Plaintiff’s allegations that they had sexual intercourse. (See Mot. 3 and Exh. 7, SI 4; Oppo. 12.) Plaintiff has sworn to the contrary. Thus, Defendant’s alleged use of the towel after sexual intercourse could be critical to this case. Plaintiff has good cause to explore that issue through DNA testing.

In Defendants’ opposition and motion to compel, Defendants raise various chain of custody, admissibility, and prejudice arguments that are not dispositive on a discovery motion. (See Oppo. 7-10.). The issue here is not whether the DNA evidence would be admissible at trial. Defendants may, of course, make any appropriate arguments against the use of the evidence at trial. Rather, it is whether Plaintiff has shown good cause for the DNA testing at this time. Although Defendants may have arguments of contamination or insufficient chain of custody, Plaintiff has submitted countervailing evidence on those issues. Plaintiff’s evidence as to chain of custody and reliability of the towel for DNA testing is sufficient to find good cause for the requested DNA testing. Issues on admissibility will be reserved for trial.

Defendants’ privacy arguments are not persuasive under the circumstances. (Oppo. 12-13.) The parties entered a protective order on February 26, 2014 that would apply to the results of the test. Defendants contend that a DNA test could place a strain on Pereira’s personal and employment relationships. It seems that the filing of Plaintiff’s complaint would have already caused any such strain, and that a DNA test would not exacerbate any such repercussions from the allegations of Plaintiff’s complaint. This is particularly the case given the Protective Order. Finally, aside from the privacy concerns, Defendants do not argue that the DNA testing itself places Pereira at any risk of injury.

The motion is GRANTED.