Case Number: BC619299 Hearing Date: June 05, 2018 Dept: J

Re: Jane B.M. Doe, et al. v. El Monte Union High School District, et al. (BC619299)

(1) MOTION TO COMPEL EL MONTE UNION HIGH SCHOOL DISTRICT TO PRODUCE FURTHER RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE; (2) MOTION TO COMPEL EL MONTE UNION HIGH SCHOOL DISTRICT TO PRODUCE FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS SET FIVE

Moving Parties: Plaintiff Jane B.M. Doe

Respondent: Defendant El Monte Union High School District

POS: Moving OK; Opposing OK; Replies OK

Plaintiffs allege that Plaintiff Jane B.M. Doe was sexually assaulted and raped by one of her teachers, Richard Paul Daniels (“Daniels”). The complaint, filed 5/4/16, asserts causes of action against Defendants El Monte Union High School District (“District”), Angelita Gonzales Hernandez (“Hernandez”) and Does 1-10 for:

Negligence, Negligent Supervision, Negligent Hiring and/or Retention;
Negligent Infliction of Emotional Distress; and
Sexual Harassment (Civil Code § 51.9)

On 7/6/16, District filed its cross-complaint, asserting causes of action therein against Daniels and Roes 1-50 for:

Total Equitable Indemnity;
Partial Equitable Indemnity; and
Declaratory Relief

On 6/9/17, Daniels’ default was entered on the cross-complaint. On 1/29/18, the court granted District’s motion for summary adjudication as to the second cause of action. On 2/6/18, plaintiffs dismissed their third cause of action against Hernandez, without prejudice.

On 2/23/18, this action was transferred from the personal injury hub (Department 92) to this department.

The Final Status Conference is set for 10/15/18. A jury trial is set for 10/23/18.

(1) MOTION TO COMPEL EL MONTE UNION HIGH SCHOOL DISTRICT TO PRODUCE FURTHER RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE:

Plaintiff Jane B.M. Doe (“plaintiff”) moves the court for an order compelling Defendant El Monte Union High School District (“District”) to provide further supplemental and verified responses to her Special Interrogatories, Set No. Three, Nos. 59-68.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” CCP § 2030.300(a). “A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2030.300(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” CCP § 2030.300(b).

On 11/10/17, plaintiff served the subject discovery on District. (Mashburn Decl., ¶ 5, Exhibit “A”). On 12/8/17, District mail-served its responses thereto. (Id., ¶ 9, Exhibit “E”). Counsel met and conferred via letters dated 1/9/18, 1/12/18 and 1/18/18. (Id., ¶¶ 10-12, Exhibits “F”-“H”). The motion was filed on 1/25/18. The motion was timely filed.

The subject interrogatories read as follows:

Special Interrogatory No. 59:

IDENTIFY all DOCUMENTS REGARDING uniform COMPLAINTS filed against Arroyo High School employee, David Vaca concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 60:

IDENTIFY all DOCUMENTS REGARDING uniform COMPLAINTS filed against Arroyo High School employee, Dan Rios concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 61:

IDENTIFY all DOCUMENTS REGARDING uniform COMPLAINTS filed against Arroyo High School employee, Ramon Lopez concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 62:

IDENTIFY all DOCUMENTS REGARDING uniform COMPLAINTS filed against Mountain View School employee, Abel Acosta concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 63:

IDENTIFY all DOCUMENTS REGARDING uniform COMPLAINTS filed against Rosemead High School employee, Herbert Daniel Ortiz concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 64:

IDENTIFY all DOCUMENTS REGARDING any other COMPLAINTS filed against Arroyo High School employee, David Vaca concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 65:

IDENTIFY all DOCUMENTS REGARDING any other COMPLAINTS filed against Arroyo High School employee, Dan Rios concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 66:

IDENTIFY all DOCUMENTS REGARDING any other COMPLAINTS filed against Arroyo High School employee, Ramon Lopez concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 67: IDENTIFY all DOCUMENTS REGARDING any other COMPLAINTS filed against Mountain View School employee, Abel Acosta concerning employee-to-student SEXUAL MISCONDUCT.

Special Interrogatory No. 68:

IDENTIFY all DOCUMENTS REGARDING any other COMPLAINTS filed against Rosemead High School employee, Herbert Daniel Ortiz concerning employee-to-student SEXUAL MISCONDUCT.

District provided the following identical response to each of the aforesaid interrogatories: “This responding party objects to this request as it is overbroad, vague and ambiguous, seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence, and invades the privacy and confidentiality rights of employees protected by 20 U.S.C. Section 1232g, et al., California Civil Code § 1798, California Labor Code §§ 1198.5 and 432, the federal Constitution, and Article 1, Section 1 of the California Constitution.”

1. Relevance/Overbreadth Arguments

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence…” CCP § 2017.010. “’For discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.’ (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, italics omitted.).” Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8.

Plaintiff has sued District for (1) Negligence, Negligent Supervision, Negligent Hiring and/or Retention, (2) Negligent Infliction of Emotional Distress and (3) Sexual Harassment (Civil Code § 51.9). Plaintiff asserts that “the information directly goes to the issues of ratification, notice and foreseeability, which [she] must prove to establish her negligent supervision and negligent hiring and/or retention claims, as well as her sexual harassment claims.” (Motion, 2:15-18).

In Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, the Fourth District, Division One Court of Appeal found that the trial court did not abuse its discretion by determining that the plaintiff’s requests for documents regarding other perpetrators of child sexual abuse were relevant and were not overbroad. There, plaintiff sued the national Jehovah’s Witnesses organization, the Watchtower Bible and Tract Society of New York, Inc. (“Watchtower”), alleging that his Bible instructor, Gonzalo Campos (“Campos”), had sexually abused him in 1986 when he was a child. A congregation elder had recommended to plaintiff’s mother that plaintiff receive Bible study instruction from Campos. Plaintiff asserted several legal theories, including failure to warn, negligent supervision, and negligent hiring/retention. Plaintiff noticed the deposition of Watchtower’s Person Most Qualified (“PMQ”), which also requested the deponent to produce documents of post-incident and pre-incident sexual abuse within the organization from 1979 to the present, and documents prepared in response to the Body of Elder Letter Dated March 14, 1997, which instructed elders to send a written report to Watchtower about “anyone who is currently serving or who formerly served in a [Watchtower]-appointed position in your congregation who is known to have been guilty of child molestation in the past.” The post-incident and pre-incident documents request included reports of childhood sexual abuse, including sexual abuse by other perpetrators.

The Court of Appeal in Lopez determined that post-abuse documents were relevant not only to plaintiff’s punitive damages claim, but also to liability: “The postabuse documents may contain information showing the nature of Watchtower’s actions towards others accused of child abuse and this evidence could potentially shed light on Watchtower’s actions or inactions towards Campos and the intent underlying those actions. An entity’s actions and the intent with which the party engaged in such actions ‘may be inferred from evidence of [its] subsequent conduct,’ including that the conduct was not merely a mistake or an accident…[t]he postincident evidence may also be relevant to test the validity of Watchtower’s defenses regarding its knowledge of child sexual abuse at the time of the incident and the effectiveness of its claimed steps to protect Jehovah’s Witnesses children in the 1980’s.” Id. at 593.

The Court of Appeal also determined that “the fact that the other molestation incidents may have been different from the one that allegedly occurred here does not mean the other perpetrator evidence was not discoverable. While the trial court will have to assess whether the information revealed in the documents is admissible (taking into account similarity, remoteness, prejudice, etc.), these issues are not dispositive at the discovery stage. A document may be discoverable even if it is unlikely to be admitted at trial.” Id. at 593-594.

With respect to the issue of overbreadth, the Court of Appeal stated that “[b]ut on the issues for which the sexual abuse reports may be relevant, the court had a reasonable basis to conclude reports prepared long after the incident could contain information helpful to [plaintiff’s] case, even if the document’s remoteness to the incident may preclude their admission at trial.” Id. at 594.

Although Lopez primarily focused on the relevancy of post-incident documents, the Court of Appeal also opined that pre-incident documents were discoverable. The discovery referee there had determined that the documents were relevant to the subject matter in “many areas, including subsequent ratification.” Id. at 579. The trial court then adopted the referee’s recommendation, concluding that “the materials requested are relevant to nearly [every] aspect of Plaintiff’s claim[s], including his negligence based causes of action, [and] ratification based cause of action…” Id. at 587. The Court of Appeal determined that “the court properly considered Watchtower’s challenges to the Referee Recommendation and did not abuse its discretion in ordering the PMQ documents to be produced.” Id. at 588.

Prior to the Court of Appeal discussing the relevancy of post-incident abuse, it addressed the relevancy of the entire scope requested from 1979 to the present: “Lopez brought several claims against Watchtower, including negligent hiring, supervising, and retaining Campos, and failure to warn. To prevail on his negligent hiring/retention claim, Lopez will be required to prove Campos was Watchtower’s agent and Watchtower knew or had reason to believe Campos was likely to engage in sexual abuse. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836, 842-843; see Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139-1140; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395-397). On the negligent supervision and failure to warn claims, Lopez will be required to show Watchtower knew or should have known of Campos’s alleged misconduct and did not act in a reasonable manner when it allegedly recommended him to serve as Lopez’s Bible instructor. (See Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1216; Juarez, supra, at pp. 395-397.)” Id. at 591.

In this case, any evidence that District received complaints of misconduct, either before or during the time frame of plaintiff’s alleged abuse, would be germane to the issues of notice, foreseeability and ratification.

District’s relevancy and overbreadth arguments, then, are not well-taken.

2. Privacy

A court determining whether personnel files should be disclosed “must determine whether disclosure of the information would ‘compromise substantial privacy interests; if privacy interests in given information are de minimus disclosure would not amount to a “clearly unwarranted invasion of personal privacy’ [Citations.]” Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 818. A court must then “determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure.” Id. Public employees have a reasonable expectation of privacy in their personnel files. Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500. “In discussing the general attributes of a personnel file, the United States Supreme Court has stated that an individual’s personnel file generally contains ‘”vast amounts of personal data,”’ including ‘where he was born, the names of his parents, where he has lived from time to time, his high school or other school records, results of examinations, evaluations of his work performance.’…The federal courts recognize that information from a personnel file that applies to a specified individual raises significant privacy concerns.” Id. at 1515.

Again, however, even a “serious privacy invasion” can be overcome by a compelling need for the information. Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423-1424. A compelling need is demonstrated where the information is “directly relevant” and “essential to the fair resolution” of the lawsuit. Id. at 1425. In In re Clergy Cases I (2010) 188 Cal.App.4th 1224, 1235, the Second District, Division 8 Court of Appeal determined that “the compelling social interests in disclosure of information relating to sexual predators of children outweigh the Individual Friars privacy interests.” The Court of Appeal opined that “all citizens have a compelling interest in knowing if a prominent and powerful institution has cloaked in secrecy decades of sexual abuse revealed in the psychiatric records of counselors who continued to have intimate contact with vulnerable children while receiving treatment for their tendencies toward child molestation.” Additionally, as noted by the trial court in Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1259, “[t]he public has a significant interest in the competence and misconduct of public school teachers teaching their children, especially allegations of misconduct that have a negative impact on their children. The public also has a significant interest in knowing how a school district responds to allegations of misconduct or improper behavior towards students by teachers.”

In this case, District has failed to demonstrate a serious invasion of privacy. Plaintiff does not seek any District employees’ purely personal information such as financial records, social security numbers, and marital status. (Reply, 6:21-23). Any such information may be redacted. On the other hand, plaintiff has demonstrated a compelling need for the information, for the reasons noted above.

District newly contends that the subject interrogatories seek confidential pupil records, which requires written parental consent or judicial order except under circumstances not relevant here pursuant to Education Code § 49076. Not so. Plaintiff does not seek the release of student academic records, names, or any personal information of students; rather, plaintiff only seeks information related to the other employee abusers’ sexual misconduct with students. (Reply, 4:25-26 and 5:8-9). Should any of the information pertaining to other employee-to-student sexual misconduct contain student information, District may redact this information.

Plaintiff, in fact, expressly offers to sign a confidentiality stipulation and protective order and have any victims’ names redacted to ensure the protection of any victims’ privacy, which is an appropriate measure.

District’s privacy objection, then, is not well-taken.

The motion is granted in its entirety. Further responses are ordered to be served within 20 days. The court instructs the parties to meet and confer regarding the terms of a confidentiality agreement and protective order and to come prepared with a draft of same at the time of the hearing.

(2) MOTION TO COMPEL EL MONTE UNION HIGH SCHOOL DISTRICT TO PRODUCE FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS SET FIVE:

Plaintiff Jane B.M. Doe (“plaintiff”) moves the court for an order compelling Defendant El Monte Union High School District (“District”) to provide further supplemental and verified responses to her Request for Production of Documents, Set No. Five, Nos. 78-87.

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” CCP § 2031.310(a). “A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040…” CCP § 2031.310(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

“In the…specific context of a request to produce documents, a party who seeks to compel production must show ‘good cause’ for the request…but where…there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. CCP § 2017.010. “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…’” Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [citation omitted; emphasis theirs. “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) These rules are applied liberally in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)” Id.

“Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1495.7. The Declaration of Chad Chen (“Chen”) adequately sets forth good cause.

On 11/10/17, plaintiff served the subject discovery on District. (Mashburn Decl., ¶ 5, Exhibit “A”). On 12/8/17, District mail-served its responses thereto. (Id., ¶ 9, Exhibit “E”). Counsel met and conferred via letters dated 1/9/18, 1/12/18 and 1/18/18. (Id., ¶¶ 10-12, Exhibits “F”-“H”). The motion was filed on 1/25/18. The motion was timely filed.

The subject requests read as follows:

Request for Production No. 78:

Any and all DOCUMENTS REGARDING uniform COMPLAINTS filed against Arroyo High School employee, David Vaca concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 79:

Any and all DOCUMENTS REGARDING uniform COMPLAINTS filed against Arroyo High School employee, Dan Rios concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 80:

Any and all DOCUMENTS REGARDING uniform COMPLAINTS filed against Arroyo High School employee, Ramon Lopez concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 81:

Any and all DOCUMENTS REGARDING uniform COMPLAINTS filed against Mountain View School employee, Abel Acosta concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 82:

Any and all DOCUMENTS REGARDING uniform COMPLAINTS filed against Rosemead High School employee, Herbert Daniel Ortiz concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 83:

Any and all DOCUMENTS REGARDING any other COMPLAINTS filed against Arroyo High School employee, David Vaca concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 84:

Any and all DOCUMENTS REGARDING any other COMPLAINTS filed against Arroyo High School employee, Dan Rios concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 85:

Any and all DOCUMENTS REGARDING any other COMPLAINTS filed against Arroyo High School employee, Ramon Lopez concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 86:

Any and all DOCUMENTS REGARDING any other COMPLAINTS filed against Mountain View School employee, Abel Acosta concerning employee-to-student SEXUAL MISCONDUCT.

Request for Production No. 87:

Any and all DOCUMENTS REGARDING any other COMPLAINTS filed against Rosemead High School employee, Herbert Daniel Ortiz concerning employee-to-student SEXUAL MISCONDUCT.

District provided the following identical response to each of the aforesaid interrogatories: “This responding party objects to this request as it is overbroad, vague and ambiguous, seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence, and invades the privacy and confidentiality rights of employees protected by 20 U.S.C. Section 1232g, et al., California Civil Code § 1798, California Labor Code §§ 1198.5 and 432, the federal Constitution, and Article 1, Section 1 of the California Constitution.”

The motion is granted in its entirety, for the reasons set forth above. Further responses are ordered to be served within 20 days. Again, the court directs the parties to meet and confer regarding the terms of a stipulated confidentiality agreement and protective order and to come prepared with a draft of same at the time of the hearing.