Case Number: BC457096 Hearing Date: February 17, 2015 Dept: 58
JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Tuesday, February 17, 2015
Calendar No: 6
Case Name: E.D., et al. v. The County of Los Angeles, et al.
Case No.: BC457096
Motion: (1) Demurrer to the 4AC
(2) Demurrer to the H.F. CC
(3) Demurrer and Motion to Strike as to the H.F. CC
(4) Motion for Summary Judgment as to the PUSD SACC
(5) Motion for Summary Adjudication as to the PUSD SACC
(6) Motion for Summary Judgment/Adjudication as to the 4AC
(7) Motion to Compel Further Responses to Special Interrogatories
(8) Motion to Compel Deposition
(9) Motion to Compel Psychiatric and Psychological Examination
(10) Motion to Disqualify Counsel
Moving Party: (1),(2) Defendants/Cross-Defendants COLA Parties
(3),(6),(9),(10) Defendants/Cross-Defendants PUSD Parties
(4) Cross-Defendant Hathaway-Sycamores
(5),(7),(8) Cross-Defendant Sierra Madre
Opposing Party: (1),(6),(10) Plaintiffs E.D. and Antione D.
(2),(3) Cross-Complainants H.F. Parties
(4),(5) Cross-Complainants PUSD Parties
(7),(8) Defendant/Cross-Defendant PUSD
(9) No opposition filed
Notice: OK

Tentative Ruling: (1) Demurrer to the 4AC is overruled. COLA Parties are to answer within 10 days.

(2),(3) Demurrers to the H.F. CC are sustained without leave to amend. Motion to strike is moot.

(4) Sierra Madre’s motion for summary judgment as to the PUSD SACC is denied.

(5) Hathaway-Sycamores’ motion for summary adjudication as to the PUSD SACC is denied.

(6) PUSD Parties’ motion for summary judgment/adjudication as to the 4AC is denied.

(7),(8) Sierra Madre’s discovery motions are denied. No sanctions are awarded.

(9) Motion to compel psychiatric and psychological examination is granted. PUSD Parties to submit a compliant proposed order.

(10) Motion to disqualify counsel is denied as moot.
________________________________________

I. BACKGROUND
On 3/11/11, Plaintiffs E.D. and Antione D. (E.D.’s father) filed this action against various Defendants arising out of the alleged sexual assault of E.D. by an older student, H.F., while attending school in May 2010. On 4/19/12, Plaintiffs voluntarily dismissed The County of Los Angeles, The Los Angeles County Department of Mental Health, and the Los Angeles County Department of Juvenile Probations (collectively “COLA”) without prejudice. A Third Amended Complaint was filed on 4/23/12 and asserts causes of action for (1) intentional infliction of severe emotional distress, (2) negligence/negligent failure to supervise or protect, and (3) negligent failure to warn against Pasadena Unified School District (“PUSD”), Edwin Diaz, and Jamie Munro (collectively “PUSD Parties”).

On 9/18/12, the PUSD Parties filed a cross-complaint. A First Amended Cross-Complaint (“PUSD FACC”) was filed on 3/27/13 asserting causes of action for (1) total implied indemnity, (2) equitable contribution, (3) declaratory relief, (4) express indemnity, (5) total implied indemnity, (6) equitable contribution, (7) declaratory relief, and (8) express indemnity. The PUSD FACC is asserted against COLA; Pacific Clinics, Inc.; Sierra Madre Leaning Center/T.O.T.A.L. Programs, LLC; and Hathaway-Sycamores Child and Family Services. On 7/29/13, this action was assigned to this Court.

On 11/12/13, Plaintiffs filed the operative Fourth Amended Complaint (“4AC”), which added COLA, and individuals within those entities Donald H. Blevins, Pedro Anguiano, and Marvin J. Southard (collectively “COLA Individual Defendants”), as defendants (collectively “COLA Parties”) and causes of action for (4) negligence/negligent failure to supervise and (5) negligent failure to warn against COLA Parties. On 11/1513, Sierra Madre filed a cross-complaint (“Sierra Madre CC”) against the PUSD Parties to assert COAs for (1) equitable/implied indemnity, (2) apportionment and contribution, (3) express contractual indemnity, (4) breach of written contract, (5) declaratory relief re: duty to defend, and (6) declaratory relief re: duty to indemnify.

On 11/15/13, PUSD Parties filed a Second Amended Cross-Complaint (“PUSD SACC”) which H.F. and Lilian Morales (H.F.’s mother) as cross-defendants and a 9th COA for violation of Civil Code § 1714.1. On 1/8/14, pursuant to the stipulation between Plaintiffs and PUSD Parties, Plaintiffs struck the punitive damages claims in the 4AC against PUSD Parties. On 3/18/14, H.F. and Lilian Morales (collectively “H.F. Parties”) filed a cross-complaint (“H.F. CC”) against COLA Parties and PUSD Parties to assert COAs for (1) negligence/negligent failure to train/warn/supervise and (2) negligence. On 5/27/14, PUSD Parties dismissed Pacific Clinics with prejudice from the PUSD SACC. On 8/25/14, Sierra Madre dismissed the 3rd through 6th COAs without prejudice.

II. DEMURRER TO THE 4AC
COLA Parties demur to the 4AC.

A. COLA Individual Defendants
COLA Individual Defendants argue that the 4AC is not properly asserted against them because they were not identified in Plaintiffs’ government claim. RJN [4AC Dem.] Ex. A. Gov’t Code § 910(e) requires a government claim to include the name of the public employee causing the injury if known. However, the purpose of the claim requirement is to provide the public entity sufficient information to enable an adequate investigation of the claims and to settle them: “the claims statute ‘should not be applied to snare the unwary where its purpose has been satisfied.’” Stockett v. Assoc. of Cal. Water Agencies Joint Powers Ins. Authority (204) 34 Cal.4th 441, 446 (citations omitted).

Plaintiffs allege that they timely filed government claims, presented all pertinent facts which were known to them at the time, and their claims were summarily rejected. 4AC ¶ 15. At the pleading stage, this is sufficient to support Plaintiffs not knowing of the names of COLA Individual Defendants or of their responsibility for Plaintiffs’ injuries. See Gov’t Code §§ 950.2, 950.4. Additionally, the Court notes that the COLA Parties may have lost the right to assert noncompliance as an affirmative defense by not advising Plaintiffs of any deficiencies with their government claims. See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1234. Therefore, the demurrer is overruled on this ground.

B. Antione D.’s Emotional Distress
COLA Parties argue that Antione D. cannot recover emotional distress because he only discovered the alleged sexual assault after it occurred when told by E.D. 4AC ¶¶ 9-10. In Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, the Court of Appeal summarized the various theories underlying a parent’s recovery of emotional distress due to harm to a child: a bystander theory (id. at 911), a direct victim theory (id. at 912), an alternative model of outrageous conduct (id. at 912-13), and an outrageous decision directed at the parent (id. at 914-15).

Antione D. alleges that COLA Parties failed to warn Plaintiffs of or protect E.D. from the danger that E.D. was exposed to by being in the same school with H.F. despite knowing of such danger. 4AC ¶ 6. At the pleading stage, this is sufficient to allege facts to support an outrageous decision by COLA Parties that was directed at Antione D. The demurrer is overruled on this ground.

C. Duty
COLA Parties argue that Plaintiffs fail to allege facts with particularity as to the existence of a duty and argue that there was no affirmative duty to warm of the potential danger posed by H.F., relying principally on Thompson v. County of Alameda (1980) 27 Cal.3d 741.

In Thompson, the Supreme Court considered the county’s liability arising out of the murder by a juvenile offender releases on probation: it was alleged that the juvenile offender had been confined in a county institution, that the county knew of his dangerous and violent propensities, and that he had indicated that he would kill a young child in the neighborhood if released. 27 Cal.3d at 746. The Supreme Court concluded that the decision to release the juvenile, the selection of the custodian, and the appropriate degree of supervision was subject to the discretionary immunity of Gov’t Code § 820.2. Thompson, 27 Cal.3d at 746-48. Additionally, the Supreme Court concluded that the county had no duty to warn the local police or parents in the neighborhood because of the “nonspecific threats of harm directed at nonspecific victims” (id. at 754): any warnings would suffer from significant practical obstacles in giving warnings and provide little benefit (id. at 754-57). However, the Supreme Court stated: “In those instances in which the released offender poses a predictable threat of harm to a named or readily identifiable victim or group of victims who can be effectively warned of the danger, a releasing agent may well be liable for failure to warn such persons.” Id. at 758.

Here, Plaintiffs allege that COLA Parties was vested with the care, custody, control, and supervision over H.F.; knew that H.F. was dangerous because of recent history of sexually assaulting smaller and younger boys including while at school, but failed to properly ensure H.F.’s supervision or warn Plaintiffs about the danger when H.F. was enrolled at the school. 4AC ¶¶ 6, 45.

These facts do not reveal that the COLA Parties’ decisions concerning H.F. implicates discretionary immunity. These facts also do not reveal that the duty sought to be imposed by Plaintiffs concerns a “broad segment of the population and would be only general in nature” (Thompson, 27 Cal.3d at 755), “a large amorphous public group of potential targets” (id. at 758), or the same policy considerations for probation and parole as considered in Thompson (id. at 754).

To the extent COLA Parties argue that Plaintiffs fail to allege a statutory basis for liability (see, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795), liability against the COLA Parties is alleged to be based on Gov’t Code §§ 815.2(a) and 820 (see 4AC ¶¶ 50, 57) which is sufficient under the facts alleged (see C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869, 879).

Therefore, COLA Parties fail to establish at the pleading stage that they owe no duty to supervise or warn or that discretionary immunity applies.

III. DEMURRERS (AND MOTION TO STRIKE) TO THE H.F. CC
COLA Parties and PUSD Parties demur to the H.F. CC: PUSD Parties have also filed a motion to strike on the ground. Except as indicated below, the demurrers raise substantively identical issues.

A. H.F. CC
The H.F. CC arises out of the alleged failure of the COLA Parties and the PUSD Parties to follow the requests and warnings of Lilian Morales concerning the enrollment of H.F. at the school (H.F. CC ¶ 6) and the PUSD Parties alleged failure to enforce its safety policies (id. ¶ 10): this allegedly resulted in H.F. sexually assaulting E.D. in May 2013 (id. ¶¶ 9, 11). On 12/6/13, in response to the PUSD Parties’ SACC (filed on 11/15/13), H.F. Parties filed their government claims which were denied as untimely. Id. ¶ 13; see also PUSD Parties’ RJN Exs. 1-4. The H.F. CC was filed on 3/18/14. Notably, the H.F. CC does not request indemnity. Cf. H.F. CC ¶ 12 (alleging emotional distress of H.F. and Lilian Morales based on disruption of their familial relationship).

B. Timeliness of Claims Presentation
COLA Parties and PUSD Parties argue that the H.F. CC is barred because of the untimely government claims (Gov’t Code § 911.2), noting that there are no allegations of seeking relief from the untimely presentation (see Gov’t Code §§ 911.4, 946.6). In opposition, H.F. Parties assert that the statute of limitations of CCP § 340.1 applies. See also Gov’t Code § 905(m) (making CCP § 340.1 an exception to the claims presentation requirement).

COLA Parties and PUSD Parties argue that CCP § 340.1 applies to victims of sexual abuse, not perpetrators such as H.F. COLA Parties and PUSD Parties’ argument has merit. CCP § 340.1(a) applies to “any action for recovery of damages suffered as a result of childhood sexual abuse” (see also CCP § 340.1(a)(2)-(3)). H.F. Parties argue that H.F. suffered childhood sexual abuse, however, such abuse is defined as “any act committed against the plaintiff” as proscribed by various Penal Code statutes (CCP § 340.1(e)). H.F. Parties fail to allege any facts that COLA Parties and PUSD Parties committed any such proscribed acts against H.F. The demurrers are sustained on this ground.

Although this is the first challenge to the H.F. CC, the Court notes that the facts are not in dispute, the nature of H.F. Parties’ claim is clear, and the Court concludes that the H.F. CC is untimely: therefore, leave to amend is denied. See Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.

1) Motion to Strike
The motion to strike is moot in light of the Court’s ruling on PUSD Parties’ demurrer.

IV. MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION
A. Hathaway-Sycamores
Hathaway-Sycamores moves for summary judgment as to the PUSD SACC.

1) Undisputed Facts
H.F. resided at a Hathaway-Sycamores (which was a licensed children’s institution) group foster home from 12/31/09 to 6/17/10: H.F. had a history of sexual molestation and lewd sexual acts on minors. ¶¶ 2-3, 5. Hathaway-Sycamores was a party to a Master Contract General Agreement for Nonsectarian, Nonpublic School and Agency Services (“Master Contract”): pursuant to the Master Contract, Hathaway-Sycamores would provide “special education and/or related services to [PUSD] students with exceptional needs under the authorization of [Educ. Code §§ 56157, 56361, 56365 et seq., and 5 C.C.R. § 3000 et seq.]” and would indemnify PUSD for any liability “resulting from or arising out of this Master Contract or its performance”. ¶¶ 7-9.

2) Evidentiary Objections
PUSD Parties object to (No. 1) portions of the rough transcript of Taz Taylor’s deposition and (No. 2) portions of the deposition testimony of Lisa Warren. The objections are sustained. Although Hathaway-Sycamores has attempted to submit copies of the certified deposition (Stekkinger Decl. ¶¶ 3-4, Ex. A), no certification was provided (see CCP §§ 2025.540(a), 2025.620).

Hathaway-Sycamores objects to portions of the deposition of Claudia Williams, H.F.’s 12/28/09 condition of probation report, portions of the deposition of Lisa Warren, and portions of the declaration of Lisa A. Satter. No proposed order was submitted (CRC 3.1354(c)), and the Court declines to rule on the objections.

3) Express Indemnity
Hathaway-Sycamores argues that the express indemnity provision in the Master Contract does not apply because Hathaway-Sycamores was not providing education services to H.F. who was a student at a PUSD school at the time of the incident (Hathaway-Sycamores Sep. Statement ¶¶ 6, 11). In opposition, PUSD Parties submit evidence that Hathaway-Sycamores provided counseling to H.F. See, e.g., Warren Depo. p. 62:5-14 [Satter Decl. ¶ 8, Ex. G]; Satter Decl. ¶ 10, Ex. I.

Hathaway-Sycamores would have the Court interpret the Master Contract as only applying if Hathaway-Sycamores provided nonpublic, nonsectarian school services. However, the Master Contract broadly states that Hathaway-Sycamores would provide “special education and/or related services” as authorized by certain Education Code statutes. These authorized special education and related services include a continuum of program options (Educ. Code §§ 56360, 56361) such as nonpublic, nonsectarian school services (Educ. Code §§ 56361(e), 56365) and counseling and psychological services (Educ. Code §§ 56361(c), 56363(a), (b)(9)-(10)).

The Court notes that a licensed children’s institution (Educ. Code § 56155.5(a)) may be distinguishable from a nonpublic, nonsectarian school (see Educ. Code § 56157). However, Hathaway-Sycamores has failed to distinguish between services provided by nonpublic, nonsectarian schools (Educ. Code § 56034) and nonpublic, nonsectarian agencies (Educ. Code § 56035). See Educ. Code § 56365. Additionally, Hathaway-Sycamores has failed to submit any evidence to explain that its counseling services to H.F. was not specified in H.F.’s individualized education plain (“IEP”): notably, the pages of the IEP cited by Hathaway-Sycamores (Hathaway-Sycamores Sep. Statement ¶¶ 13-14) are incomplete.

Therefore, Hathaway-Sycamores has failed to carry the initial burden to establish that it did not provide any special education or related serves; alternatively, the evidence submitted raises triable issues of fact.

4) Duty
The Court notes that Hathaway-Sycamores disputes whether it was responsible for placing H.F. at the school (see generally Educ. Code § 56340 et seq. (placing the local education agency in charge of developing the IEP); see also Educ. Code §§ 56366.9 (prohibiting a licensed children’s institution from placing a student in a nonpublic, nonsectarian school): however, this is an immaterial issue because PUSD Parties’ theory of liability against Hathaway-Sycamores is a failure to warn.

Hathaway-Sycamores argues that it had no duty to warn PUSD Parties of H.F. because there was only a generalized risk instead of an identifiable and foreseeable victim. See, e.g., Thompson, 27 Cal.3d at 754; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 444. However, PUSD Parties submit evidence that Hathaway-Sycamores was aware of H.F.’s previous history of sexual misconduct including an assessment that H.F. must be watched at all times (PUSD Parties Add’l Material Facts ¶¶ 23-24); that H.F. was previously designated with the highest security in a juvenile facility prior to being placed at Hathaway-Sycamores (id. ¶¶ 28, 31); and that H.F. had disclosed a romantic interest in another student and questioned whether sexual contact was reportable (id. ¶ 33). This is sufficient to raise triable issues of fact that H.F.’s danger to another student was specific, and that E.D. may have been an identifiable and foreseeable victim.

Hathaway-Sycamores argues that PUSD Parties were already on notice of H.F.’s history and need for supervision, noting the PUSD Parties statutorily mandated participation in the development of H.F.’s IEP. The evidence suggests that PUSD Parties were aware that H.F. was “emotionally disturbed,” needed supervision during “unstructured times,” had a history of “acting out sexually” and “a close eye” was required to assure that he is “not making any sexual gestures and comments,” and his mother expressed a desire that H.F. be supervised at all times. Hathaway-Sycamores Sep. Statement ¶¶ 13-14. This only raises triable issues of fact as to the degree of liability: whether Hathaway-Sycamores’ failure to provide further warnings caused the incident with E.D. to occur or whether PUSD Parties knew or should have known of facts that obviated the need for any such further warnings.

Lastly, to the extent Hathaway-Sycamores argues that it could not disclose confidential information (see Civil Code § 56.103 (addressing minor’s medical information); In re Gina S. (2005) 133 Cal.App.4th 1074, 1081-82 (addressing juvenile records)), Hathaway-Sycamores has failed to explain why a further warning as to the required supervision of H.F. would violate such confidentiality (cf. PUSD Parties Add’l Material Fact ¶ 30 (indicating only that H.F. was “disruptive”)). There has been no showing that any such further warning would result in the improper disclosure of information relating to the content of H.F.’s juvenile records (Welf. & Inst. Code § 827(a)(4)) or medical information (Civil Code §56.05(j)). Indeed, the Court notes that disclosure of medical information is permitted to prevent a serious and imminent threat to the health or safety of a reasonably foreseeable victim. See Civil Code § 56.10(c)(19).

5) Ruling
Hathaway-Sycamores’ motion for summary judgment is denied.

B. Sierra Madre
Sierra Madre moves for summary adjudication as to the 4th COA for express indemnity in the PUSD SACC.

1) Evidentiary Objections
Sierra Madre objects to portions of and exhibits attached to the declaration of Anna De Anda (Nos. 1-12) and Julie A. Mullane (Nos. 13-22). Objection Nos. 12-17 and 19-22 are sustained; remainder overruled.

2) Express Indemnity
Sierra Madre’s motion concerns the same indemnity provision in a Master Contract as Hathaway-Sycamores’ motion (Sierra Madre Sep. Statement ¶¶ 1-3, 5): Sierra Madre submits that it was providing support services to a staff member instead of E.D. (id. ¶¶ 11-12). In opposition, PUSD Parties submit that they requested Sierra Madre to work with E.D. (Munro Depo. p. 155:12-1566:17 [Mullane Decl. Ex. 13]) and that Sierra Madre’s invoices identify E.D. as their client for services rendered (De Anda Decl. ¶¶ 4-8, Exs. 1-5).

Sierra Madre emphasizes that PUSD Parties do not dispute that the IEP did not identify Sierra Madre as the provider of special education or related services for E.D. Sierra Madre Sep. Statement ¶ 8. Sierra Madre would have the Court interpret the Master Contract as only applying if Sierra Madre was identified in the IEP. However, no evidence or argument has been presented to establish that a provider of special education or related services is required to be identified in the IEP for the Master Contract to be applicable. Notably, the Master Contract only states that an individual services agreement (“ISA”) and a Nonpublic Services Student Enrollment form would “acknowledge [Sierra Madre’s] obligation to provide all services specified in the student’s [IEP].” Serra Madre Sep. Statement ¶ 4. This only supports that the IEP must specify services to be provided to the student, not that the provider must be identified.

Therefore, PUSD Parties’ evidentiary showing is sufficient to raise triable issues of fact as to whether Sierra Madre provided services to E.D. Sierra Madre’s motion for summary adjudication is denied.

C. 4AC
PUSD Parties move for summary judgment/adjudication as to the 4AC.

1) Evidentiary Objections
PUSD Parties object to the psychological report for Antione D. No proposed order was submitted (CRC 3.1354(c)), and the Court declines to rule on the objections.

2) Antione D.’s Emotional Distress
PUSD Parties argue that Antione D. cannot recover emotional distress because it is undisputed that he did not witness the sexual assault of E.D. PUSD Parties’ Sep. Statement ¶ 12. PUSD Parties rely principally on Steven F., 112 Cal.App.4th 904, and raise substantively identical issues as COLA Parties’ demurrer to the 4AC. PUSD Parties also argue that they are absolutely immune for allegations made to authorities as mandated reporters. Penal Code §§ 11165.7(a), 11165.9; 11172(a).

The Court notes that Antione D.’s alleged emotional distress does not solely arise out of such reports to authorities: instead, the 4AC also alleges that PUSD Parties spread their allegations to other school personnel and parents resulting in Antione D being publicly ostracized. 4AC ¶¶ 11-12. This allegation, alone, is sufficient to support allegations of an outrageous decision by PUSD Parties to support Antione D.’s emotional distress claims. To the extent PUSD Parties assert that no evidence has been raised by Plaintiffs to support the spreading of such allegations to non-authorities, the Court notes that it is PUSD Parties’ initial burden to negate Antione D.’s emotional distress claims (see, e.g., Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662-63), which PUSD Parties have not done here. Therefore, neither of PUSD Parties’ arguments warrants summary adjudication of Antione D.’s emotional distress claims.

3) Liability of Hathaway-Sycamores
PUSD Parties argue that they are not liable to Plaintiffs submitting that Hathaway-Sycamores failed to provide adequate information concerning H.F. PUSD Parties submit that they had no knowledge of H.F.’s previous history of sexual misconduct (PUSD Parties Sep. Statement ¶ 13) and that Hathaway-Sycamores failed to disclose any such history or make adequate warnings as to H.F.’s supervision needs (id. ¶¶ 26, 31-32).

Hathaway-Sycamores failed to oppose this portion of PUSD Parties’ motion. Additionally, Plaintiffs’ opposition brief fails to address this issue (and instead addresses whether liability pursuant to statute has been adequately alleged against PUSD Parties). However, Plaintiffs’ opposition separate statement disputes PUSD Parties’ evidence. Additionally, this issue mirrors the evidence presented by Hathaway-Sycamores’ motion for summary judgment as to the PUSD Parties’ notice of H.F.’s history and need for supervision. The Court notes that PUSD Parties fail to address their statutorily mandated participation in the development of H.F.’s IEP and that H.F.’s IEP team meeting notes indicate a parental concern for H.F. being supervised at all times.

Additionally, Plaintiffs’ evidence supports that PUSD Parties knew facts concerning H.F.’s previous history and/or supervision needs. Plaintiff submits that PUSD Parties determined whether to place H.F. at a public school. Williams Depo. p. 56:18-57:15 [Massey Decl. Ex. G]. Plaintiff submits that Hathaway-Sycamores’ therapist recalls H.F.’s mother making the “most heartfelt recommendation” to have H.F. never be alone with anybody unsupervised (Warren Depo. p. 94:6-12 [Massey Decl. Ex. B]) and discussing sex offenses by H.F. (id. at p. 95:18-96:4). H.F.’s mother’s deposition supports her requests and discussions. Morales Depo. p. 100:3-24, 114:15-115:14, 116:14-117:5 [Massey Decl. Ex. C]. This is sufficient to raise triable issues of fact as to the degree of liability between PUSD Parties and Hathaway-Sycamores.

4) Ruling
PUSD Parties’ motion for summary judgment/adjudication is denied.

V. DISCOVERY MOTIONS
Sierra Madre moves to compel PUSD to provide further responses to the Special Interrogatories Nos. 172-173 (concerning the number of urinals and bathroom stalls in male students’ bathrooms for the elementary age level classrooms at the school) and 174-176 (concerning a facsimile from Sierra Madre dated 6/10/13, which was not attached to the special interrogatories but appears to be the letter attached as Exhibit 6 to the declaration of Anna De Anda filed in opposition to Sierra Madre’s motion for summary adjudication). Sierra Madre also moves to compel the deposition of PUSD’s PMK concerning the facsimile.

As to the number of urinals and bathroom stalls, PUSD responded by offering to allow Sierra Madre to inspect the premises. Although the Court finds this response to be improper (see CCP §§ 2030.220, 2030.230), the Court notes that Sierra Madre has failed to explain why the number of urinals and bathroom stalls could lead to the discovery of admissible evidence as revealed by the operative pleadings, evidence submitted, and arguments asserted in the parties’ papers.

As to the facsimile, Sierra Madre seeks to inquire as to who requested such information and retrieved the letter, noting that PUSD did not provide such information and Anna De Anda could not recall such information at her deposition. Although Sierra Madre’s discovery requests properly seek to inquire as to the circumstances of the production and receipt of the facsimile, the Court finds that PUSD’s declared failure to be able to provide such information does not warrant further discovery. Notably, if PUSD seeks to have the facsimile admitted at trial and provides foundation not provided in discovery, the Court may preclude admission of the facsimile.

Therefore, Sierra Madre’s discovery motions are denied. The Court notes that both Sierra Madre and PUSD have sought sanctions against each other. However, the Court concludes that any award of sanctions would be unjust under the circumstances. CCP §§ 2025.450(c)(1), 2030.300(d).

VI. PSYCHIATRIC AND PSYCHOLOGICAL EXAMINATION
PUSD Parties move to compel the psychiatric and psychological examination of Plaintiffs. CCP § 2032.020(a) provides in pertinent part: “Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action.” CCP § 2032.020(c) provides: “A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” “If any party desires to obtain discovery . . . by a mental examination, the party shall obtain leave of court.” CCP § 2032.310(a).

The court shall grant a motion for mental examination only for good cause shown. CCP § 2032.320(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259. Generally, “good cause” is made out by showing that the exam is “relevant to the subject matter” and specific facts justify discovery. Vinson, 43 Cal.3d at 840.

Here, as revealed by the operative pleadings, evidence, and arguments presented, the mental condition of Plaintiffs have clearly been placed in controversy: therefore, PUSD Parties are entitled to take the psychiatric and psychological examination of Plaintiffs. See Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887. Therefore, PUSD Parties’ motion to compel the psychiatric and psychological examination of Plaintiffs is granted: PUSD Parties to submit a proposed order that complies with the CCP §2032.320(d).

VII. MOTION TO DISQUALIFY
PUSD Parties move to disqualify Plaintiffs’ counsel from representing H.F. Parties, arguing that this results in a dual representation of clients whose interests are directly adverse. See Flatt v. Superior Court (1994) 9 Cal.4th 275, 284-85; Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 63-64.

Preliminarily, counsel argues that PUSD Parties fail to have standing to object to seek disqualification because there is no attorney-client relationship with counsel. However, this is incorrect and such a relationship is not strictly required. See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204.

PUSD Parties emphasize that Plaintiffs and H.F. Parties are directly adverse because they are the respective victims and perpetrators of the sexual assault. However, notwithstanding the Court’s ruling on the demurrers to the H.F. CC, the operative pleadings reveal that Plaintiffs and H.F. Parties are united in seeking to attribute liability for the sexual assault based on the failure to adequately supervise E.D. and H.F. or to give sufficient warnings as to H.F.’s dangerous propensities. Plaintiffs and H.F. Parties are therefore seeking to attribute liability as to COLA Parties, PUSD Parties, Hathaway-Sycamores, and Sierra Madre, who have cross-claimed against each other based on their asserted responsibilities, knowledge, and control. Only PUSD Parties have sought to attribute liability to H.F. Parties in the PUSD SACC based on the willful misconduct of H.F. (PUSD SACC ¶ 55). Indeed, throughout these proceedings, there has been no dispute that the sexual assault occurred. Under these circumstances, the Court concludes that any conflict between Plaintiffs and H.F. Parties is, at most, merely potential.

The motion to disqualify is denied.