Case Number: BC470714 Hearing Date: April 18, 2014 Dept: 34

PLAINTIFF’S MOTIONS TO ENFORCE SUBPOENAS TO NON-PARTIES MILLS AND FAILURE TO THRIVE CLINIC

Moving Party: Plaintiff Rafaelina Duval (“plaintiff”)

Resp. Party: Deponent Ryan Mills (“Mills” or “deponent”)

Plaintiff’s motions to compel non-party Ryan Mills and non-party Failure to Thrive Clinic to comply with the deposition subpoenas are DENIED. The Court, however, will enforce Mills’ offer to produce the documents that are subject to the subpoena upon the signing of the proposed Stipulated Protective Order. The Court imposes sanctions of $2,200 against Plaintiff and her counsel.

Plaintiff’s request to seal exhibits is GRANTED.

Plaintiff’s Objections to Declaration of Ryan Mills:

Objection
1 OVERRULED
2 OVERRULED
3 OVERRULED
4 OVERRULED
5 OVERRULED
6 SUSTAINED
7 OVERRULED

PRELIMINARY COMMENTS:

Plaintiff, in her reply, cites and extensively quotes from an unpublished opinion. (See Reply, p. 6:6-21.) This is improper. (CRC, Rule 3.1115.)

BACKGROUND:

Plaintiff commenced the instant action on September 30, 2011. Plaintiff filed a first amended complaint on May 30, 2012, alleging causes of action for: (1) violation of federal civil rights; (2) Monell-related claims; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) violation of state civil rights; (6) injunctive relief; (7) violation of section 504 of the Vocational Rehabilitation Act of 1973; and (8) violations of the ADA.

Plaintiff alleges that defendants gave custody of her son, R.D., to his biological father after wrongfully determining that R.D. was failing to thrive in plaintiff’s care.

ANALYSIS:

Plaintiff seeks to compel responses to subpoenas issued to non-party Ryan Mills, the father of plaintiff’s child, and non-party Failure to Thrive Clinic.

“Where the witness whose deposition is sought is not a party (or a ‘party affiliated’ witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group) ¶ 8:535 [citing Code Civ. Proc., §§ 2020.010(a)(1); 2025.280(b)].) Where the subpoena only seeks business records, it must state the person to whom it is directed, a description of the records to be produced, and the time for compliance. (Code Civ. Proc., § 2020.410.) Plaintiff’s subpoenas comply with these requirements. (See Park Decls., Exh. A.)

The subpoenas must have been served by personal service. (See Code Civ. Proc., § 2020.220(b), (c).) Plaintiff provides proof that the subpoena was personally served on Mills. (See Park Decl., Exh. C.) The subpoena was served on the defendants in this action. (See id., Exh. D.) Plaintiff fails to show that the subpoena propounded on Failure to Thrive was served by personal service. (See Park Decl., Exh. A.)

Because the subpoenas seek personal records of the child, additional procedural requirements apply. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2012) ¶¶ 8:580-584.) Plaintiff must have served a notice of the deposition, a copy of the subpoenas, and a notice of privacy rights on the child. (Code Civ. Proc., § 2025.240(b).) Service of these items must be completed at least ten days before the production date and five days before service on the deponent. (Code Civ. Proc., § 1985.3(b)(2), (3).) Mills was served by personal service on 12/4/13. (See Park Decl., Exh. C.) The child was served with the notice and objection by mail on 11/25/13. (See id., Exh. E.) It is unclear if the child was also served more than five days before Failure to Thrive was served. (See Park Decl., Exhs. A-B.)

The subpoenas seek the child’s medical and therapy records and related documents; communications between Mills, Failure to Thrive, and healthcare providers, therapy providers, and other individuals (workers for the County and others); and documents related to the child’s medical condition. (See Park Decls., Exh. A.) Plaintiff argues these documents are relevant to determine whether the diagnosis of the child’s condition as an environmental failure to thrive was erroneous or that the determination was based on bias or prejudice.

Mills objects that the subpoena seeks the production of confidential documents that would violate the non-party’s constitutional rights to privacy. Medical information may be protected by the right to privacy. (See Palay v. Superior Court (1993) 18 Cal.App.4th 919, 932-933.) “The psychotherapist-patient privilege is one aspect of the right of privacy, but it and any exceptions are subject to constitutional standards.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.) “California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property.” (Vinson, supra, 43 Cal.3d at p. 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.) “It has been held that a person’s medical profile is an area of privacy which cannot be compromised except upon good cause.” (Davis, 7 Cal.App.4th at p. 1019.)

The right to privacy is not absolute and is limited by the right to discovery. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853.) “Unless otherwise limited by order of the court in accordance with this title, any 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.” (Code Civ. Proc., § 2017.010.) However, “when the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy the section 2017 standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” (Lantz, 28 Cal.App.4th at pp. 1853-1854.)

“[D]etermination of the nature of the compelling state interest does not complete the constitutional equation.” (Palay, supra, 18 Cal.App.4th at p. 934.) “An impairment of the privacy interest ‘passes constitutional muster only if it is necessary to achieve the compelling interest.’” (Ibid. [quoting Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1148].)

“That means that the conflict between the competing values must be unavoidable, i.e., that it does not arise from the choice of means by which to secure the compelling interest. It can readily be seen that if the conflict is avoidable but is not avoided the real conflict is not between the compelling interest and the constitutional interest but between the means chosen to achieve the compelling interest and the constitutional interest. Thus, a logical corollary of the compelling interest doctrine is the alternatives test. It requires a reordering of the values to be placed on the constitutional scales. If an alternative means of securing the compelling interest can be devised by which to avoid or minimize the conflict between the values protected by the constitution and the values found to be of compelling interest, that must be done. [Citation.] This results in a prohibition, among other things, of overbroad means of enforcement. It requires that the state utilize the ‘least intrusive’ means to satisfy its interest. [Citation.]”

(Palay, 18 Cal.App.4th at p. 934 [quoting Wood, 166 Cal.App.3d at p. 1148].) “The scope of methods used must be tailored to avoid disclosure of protected records.” (Palay, 18 Cal.App.4th at p. 934.)

“The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis, supra, 7 Cal.App.4th at p. 1017.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Ibid.) “[W]hile the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy, the scope of such ‘waiver’ must be narrowly rather than expansively construed.” (Britt, supra, 20 Cal.3d at p. 859.) The child’s “privacy interests must be carefully weighed against the legitimate interests of real parties in preparing their defense.” (Jones, supra, 119 Cal.App.3d at p. 550.)

Plaintiff fails to meet her burden to establish that all of the records sought are directly relevant, or that the request is narrowly tailored to protect the child’s privacy rights. Plaintiff does not merely seek records or communications relating to the condition that lead to the child’s removal from plaintiff’s custody, and the subpoena is not limited as to time. (See Park Decl., Exh. A.) Instead, plaintiff also seeks all of the child’s medical and therapy records, information as to the identities of all of all of the child’s healthcare providers, and all communications to others relating to plaintiff or the child. (See ibid.) Plaintiff fails to explain why all of these documents are necessary. Moreover, plaintiff fails to show that the requests are tailored to protect the child’s privacy rights.

Mills has “agreed to produce ALL requested documents on the condition that plaintiff signed the stipulated protective order (“SPO”) the terms of which provided for two basic stipulations: (1) that any confidential documents (i.e. those protected by non-parties’ constitutional rights [of] privacy) filed with the court he filed “under seal” and (2) that any confidential documents post-dated August 10, 2010 (which was the date when the underlying juvenile dependency proceedings concluded) be subject to a very liberal “Attorney’s Eyes Only” clause, which went so far as to allow the plaintiff to view the documents, discuss the documents with her counsel, and use the documents “under seal” to prove her case.” (Fieldsted Decl., ¶ 5.) Plaintiff refused to accept these terms. (Id., ¶ 10.)

Plaintiff argues extensively in her Reply that an Attorneys Eyes Only protective order is too restrictive and inappropriate. (See Reply, pp. 10-12.) Her reply misses the point. While an Attorneys Eyes Only protective order may violate plaintiff’s rights, that is not what is being proposed here. The proposed protective order would allow Plaintiff to see the confidential documents; she simply would not be allowed to maintain copies of the confidential documents.

Plaintiff’s motions to compel compliance with the subpoenas served on Ryan Mills and Failure to Thrive Clinic are DENIED. However, the denial of plaintiff’s motions to compel is based upon Mills’ continued willingness to produce all requested documents subject to plaintiff signing the proposed stipulated protective order.

Mills’ Request for Sanctions

In the opposition, Mills seeks sanctions against plaintiff and her counsel in the total amount of $3,080.00. Counsel states that he spent 14 hours of research on this motion, and that his billing rate is $220/hour. The Court finds that counsel’s billing rate is reasonable.

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2(a).

The Court finds that Mills’ offer to produce all documents subject to a Stipulated Protective Order was imminently reasonable. Had Mills’ offer been accepted, there would have been no need for plaintiff’s motion to compel. The Court imposes sanctions against plaintiff and her counsel of record, jointly and severally, in the amount of $2,200.

Plaintiff’s Motion to Seal Exhibits

Plaintiff also requests that the Court seal certain exhibits in support of her motions. Pursuant to CRC, rule 2.550(d), a judge may order that a record be filed under seal only if the judge expressly finds facts that establish all the following:

(1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (4) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Courts must find compelling reasons, prejudice absent sealing and the lack of less-restrictive means, before ordering filed documents sealed. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1246; NBC Subsidiary (KNBC-TV), Inc. v. Sup. Ct. (1999) 20 Cal.4th 1178, 1208-09 n. 25; Champion v. Sup. Ct. (1988) 201 Cal.App.3d 777, 787.) A proposed sealing must be narrowly tailored to serve the overriding interest, such as by sealing portions of pleadings or redacting particular text. (In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1052, 1070.) An application to seal must be accompanied by a declaration containing facts sufficient to justify sealing. (CRC Rule 2.551(b)(1).)

However, rule 2.550 does not apply to “discovery motions and records filed or lodged in connection with discovery motions or proceedings.” (Cal. Rules of Court, rule 2.550(a)(3); see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 100 [discovery documents attached to filed complaint were not subject to a presumptive right of access, where not used at trial or submitted as a basis for adjudication.].) The rules do apply to “discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.” (Cal. Rules of Court, rule 2.550(a)(3).)

The instant motions relate to discovery and do not require adjudication of any matter other than discovery proceedings. Therefore, rule 2.550 does not apply. Defendants do not oppose plaintiff’s application. Plaintiff has narrowly tailored the proposed sealing to only certain portions of the moving papers.

Plaintiff’s application to seal Exhs. A and B to Duval’s Declaration is GRANTED.

DEFENDANT BALABAN’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

Moving Party: Defendant Muzeyyen Balaban (“defendant” or “Balaban”)

Resp. Party: Plaintiff Rafaelina Duval (“plaintiff”)

Defendant’s request to compel plaintiff to provide further responses to special interrogatory numbers 160, 166, 181, 186, 191, 196 is GRANTED. The Court imposes sanctions against plaintiff and her counsel of record in the total amount of $1,800.00.

Defendant’s Objections to the Declarations of McMillan and Park are DENIED for failing to comply with California Rules of Court, Rule 3.1354(b)(3).

BACKGROUND:

Plaintiff commenced the instant action on September 30, 2011. Plaintiff filed a first amended complaint on May 30, 2012, alleging causes of action for: (1) violation of federal civil rights; (2) Monell-related claims; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) violation of state civil rights; (6) injunctive relief; (7) violation of section 504 of the Vocational Rehabilitation Act of 1973; and (8) violations of the ADA.

ANALYSIS:

Defendant seeks to compel plaintiff to provide further responses to defendant’s special interrogatories, set three, numbers 160, 166, 181, 186, 191, and 196.

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2031.310(b)(2), 2030.300(b).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.) However, a discovery motion should not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith. (See Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434.) Defendant provides a meet and confer declaration. (See Swiss Decl., ¶¶ 7-11, Exhs. D-G.)

Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. Defendant provides a separate statement.

A propounding party may move for an order compelling further responses to interrogatories if the responding party produced an evasive or incomplete answer or a meritless or overly general objection in response to an interrogatory. (Code Civ. Proc., § 2030.300(a).)

A motion to compel further responses to interrogatories lies where the party to whom the interrogatories were directed gave responses deemed improper by the propounding party; e.g., objections, or evasive or incomplete answers. (Code Civ. Proc., § 2030.300.) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (California Rules of Court, rule 3.1020(c).) “The statement of reasons is required to help the judge prepare for the hearing. But this does not change the burden of persuasion at the hearing-i.e, the responding party still has the burden of justifying at the hearing each objection raised to discovery.” (Weil & Brown, Cal. Prac. Guide: Civil Pro. Before Trial (The Rutter Group 2011) ¶ 8:1157, 8:1179.) “The ruling usually is based on consideration of the following factors: the relationship of the information sought to the issues framed in the pleadings; the likelihood that disclosure will be of practical benefit to the party seeking discovery; the burden or expense likely to be encountered by the responding party in furnishing the information sought.” (Id., ¶ 8:1181.)

The majority of plaintiff’s opposition to this motion to compel consists of an attack on defendants’ conduct during the course of discovery. Plaintiff brings to the court’s attention the “massive quantity of written discovery served by defendants,” (Opp., p. 2:18); “plaintiff’s inability to respond due to the lack of any 827 records,” (Opp., p. 3:13); and “defendants’ refusal to provide documents essential to discovery in plaintiff’s case,” (Opp., p. M:7). However, this is all irrelevant to the motion at hand; Plaintiff has not moved for a protective order against defendants’ 1089 Special Interrogatories or 346 document production requests. (See Opp., p. 2:20-22.) Nor has plaintiff moved to compel.

Plaintiff also points out that “defendants have moved to compel only 6 out of several hundred requests for discovery.” (Opp., p. 5:3-4.) While presumably true, that is also irrelevant. Defendant has only moved to compel further responses to six Special Interrogatories; the court will only make an Order concerning these six Special Interrogatories.

The six Special Interrogatories ask plaintiff to describe allegations made in paragraphs 66, 84, 93, and 98 of the complaint. In a previous interrogatory, the word “describe” was defined as “a complete description and explanation of the facts, circumstances, analysis, opinion and other information logically or factually connected [sic] the subject matter identified in the Special Interrogatory.” (See Swiss Decl., Exh. A, number 119.) Plaintiff responded by objecting that the interrogatories used undefined words, the term “describe” was overly broad, the interrogatories seek privileged information, and they contained impermissible subparts.

Plaintiff’s objections are not well-taken. The interrogatories seek relevant information because they merely ask plaintiff to provide information which supports her allegations against defendant. The interrogatories are not overly broad because they refer to the specific allegations in the complaint. The word “describe” is not so broadly defined that plaintiff cannot respond. The interrogatories appear to be seeking facts personally known by plaintiff, and not legal conclusions or attorney work product. Plaintiff could have provided a substantive response within her personal knowledge without disclosing privileged information, but instead chose only to assert objections. The definition of “describe” does not render the interrogatories compound; the interrogatories each ask for information about a particular allegation in the complaint. The fact that plaintiff’s response may include multiple facts does not render the interrogatory compound, conjunctive, or disjunctive.

Defendant’s request to compel plaintiff to provide further responses to special interrogatory numbers 160, 166, 181, 186, 191, 196 is GRANTED.

The Court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response . . . 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(d), 2031.300(h), 2033.290(d).) A request for sanctions “shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Code Civ. Proc., § 2023.040.) The notice of motion “shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)

Defendant seeks sanctions against plaintiff and her attorneys of record in the total amount of $2,400.00. Defendant makes this request in the notice and supports it in the memorandum and declaration. This amount is based on 2 hours spent meeting and conferring, 3 hours spent preparing the instant motion, and an anticipated 3 hours to review the opposition and prepare a reply, all at an hourly rate of $300.00. (See Swiss Decl., ¶¶ 13-15.) The court finds the hourly rate to be reasonable. The Court declines to award sanctions for the meet and confer efforts. Defendant has not sought sanctions for the time that will be spent at the hearing on this matter, and the court will therefore not award them.

The Court orders sanctions against plaintiff and her counsel of record in the total amount of $1,800.00.

Responses to the Special Interrogatories and sanctions to be paid within 30 days.