Suzanne Etzel v. Dario Pini, et al.
Case No: 16CV05860
Hearing Date: Mon Oct 01, 2018 9:30

Nature of Proceedings: Motion Compel

Suzanne Etzel v. Dario Pini, et al., #16CV05860, Judge Sterne

Hearing Date: October 1, 2018

Matter:

Motion to Compel Plaintiff’s Compliance: Production of Unredacted Documents

Attorneys:

For Plaintiff: Timothy C. Hale (Nye, Peabody, et al.)

For Defendant: Heather P. Karl (Parker, Ibrahim, & Berg – Costa Mesa)

Tentative Ruling: The court continues the hearing on defendant Dario Pini’s motion to compel plaintiff’s compliance with request for production of documents (production of unredacted documents) to October 15, 2018, at 9:30 a.m., and orders that plaintiff’s counsel produce to the court unredacted copies of bate-stamp pages ETZEL000094 and ETZEL000096, together with a German-to-English translation of the pages, for in camera review on or before October 9, 2018.

Background: Plaintiff Susanne Etzel alleges that she was sexually assaulted at the Ala Mar Motel, a motel operated by defendants Dario L. Pini and Alamar II, LLC (“Alamar”). Etzel further alleges that the assault occurred as a consequence of the motel having multiple lost keys to the room let to Etzel, having not changed the locks or provided a secondary locking mechanism independent of the lost keys, and the perpetrator having obtained one of the lost keys.

Etzel filed her original complaint on December 30, 2016. Etzel filed her first amended complaint on April 27, 2017, asserting causes of action for public nuisance, negligence, intentional infliction of emotional distress, and premises liability. Etzel subsequently dismissed the public nuisance cause of action. On September 11, 2017, Etzel filed amendments adding The Schulte Family Trust and The Bohle Family Trust as defendants formerly designated as “Doe.” The trust defendants were record owners of the motel property at the time of the assault. They have been served but have not appeared in the action. On January 22, 2018, Pini and Alamar filed a cross-complaint against Felipe Martinez Gallegos, the perpetrator of the assault, who is currently incarcerated in state prison.

Trial is scheduled for January 28, 2019.

Motion: Defendant Pini moves for an order compelling Etzel to produce unredacted pages of a notebook she produced in discovery. Etzel has not opposed the motion.

The notebook is Exhibit 4 to the motion and is written in German. Exhibit 5 is a certified German-English translation of the notebook. The notebook appears to be a sort of diary. Bate stamped page ETZEL000094 (“page 94”) is completely redacted and one of the two pages at bate stamped page ETZEL000096 (page 96) is redacted.

Production of the notebook was in direct response to Request for Production (“RFP”) #25, which specifically identified the notebook in a photograph taken at the crime scene. Pini says it also is responsive to RFP #20, which seeks documents related to Etzel’s claim of loss of enjoyment of life.

Etzel submitted a privilege log with the notebook, indicating that page 94 contains contact information for individuals with whom Etzel has never discussed the attack or her injuries and pages 94 and 96 contain information about Etzel’s private sexual conduct. [Exhibit 4, unnumbered 15th page] In response to RFP ##20 and 25, Etzel did not object based on relevance or privacy rights. [Exhibit 2, 13:3-11, 15:5-10] In general objections, Etzel had objected to all RFPs based on relevancy and materiality and to the extent they seek information protected by privacy rights. [Id., 2:23-3:3]

Pini insists that the privacy objection is waived. (He does not mention the relevancy objection.) Pini contends that the Code of Civil Procedure “requires more specific objections than ‘general objections’,” citing Korea Data Sys. Co. v. Superior Court, 51 Cal.App.4th 1513, 1516 (1997), which does not so hold. CCP § 2031.210(a) does provide that a responding party “shall respond separately to each item or category of item” with, inter alia, any objections. Etzel has responded separately to each item and included general objections to all items, which is a category. The court does not find that general objections are necessarily waived.

The right of privacy is an inalienable right expressly protected by Cal. Const., art. I, § 1. The right to privacy “protects both the marital relationship and the sexual lives of the unmarried.” (Vinson v. Superior Court, 43 Cal.3d 833, 841 (1987).) In resolving conflicts between the right to discovery and a privileged right, the court must carefully balance the right of privacy with the need for discovery. (Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 657 (1975).) The court must look to the party seeking the discovery to make a showing of the relevance of the material sought. “The proponent of discovery of constitutionally protected material has the burden of making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.” (Harris v. Superior Court, 3 Cal.App.4th 661, 665 (1992).)

Pini insists that he is entitled to any material that pertains to Etzel’s post-incident sexual behavior, “which she has alleged was affected by the subject incident.” But the discovery responses he refers to do not reflect that Etzel is seeking damages based on injury or distress relating to her sexual conduct. In response to Form Interrogatory 6.2, which asks Etzel to identify her injuries, Etzel responded that she suffered physical and life-changing psychological injuries as a result of the assault. [Exhibit 3, 10:4-5] As relevant here, she said: “As a result of the attack, Plaintiff became very guarded with her emotions, making interpersonal relationships difficult to maintain.” [Id., 11:19-20] “The sexual assault has left Plaintiff with scars of, among other things, shame, confusion, guilt and difficulty trusting, issues which have had and likely will continue to have significant impacts on Plaintiff’s relationships.” [Id., 15:16-18] “Because Plaintiff is still processing and treating for the effects of the attack, it remains to be seen how exactly the assault and the trauma associated will impact her relationships.” [Id., 15:20-22] She then recounts her negative reactions to her landlord offering her a glass of wine or inviting her to a beer garden. [Id., 15:22-16:2]

Interpersonal relationships involve all sorts of conduct and communication that is not of a sexual nature. In correspondence, Etzel’s counsel explained that Etzel has not made a claim based on her sexual conduct. (It is puzzling to the court that Etzel’s counsel has not opposed the motion and made that point.) If Pini is concerned that Etzel will try to introduce evidence of the effect on her sex life, he can use Etzel’s counsel’s assertion in a motion in limine.

Pini points out that Etzel’s psychotherapy records, which have been produced, indicate that she told her therapist that she was experiencing irrational feelings including seeing a lover her son’s age as a protector. [Exhibit 7, unnumbered 4th page] That is not an expression of Etzel’s claims in the case. It simply indicates what she told her therapist.

It does not appear that Etzel’s private sexual conduct is directly relevant to her claims. As to the contact information of other people with whom Etzel has not discussed the incident or her injuries, Pini has not shown why this information is relevant, other than to state generally that they may have information about her general state of well being.

The context of the notes surrounding the redacted pages, however, leaves the court in substantial doubt as to the extent of relevant and private information. Therefore, the court will continue the hearing to October 15, 2018, at 9:30 a.m., and order that plaintiff’s counsel produce to the court unredacted copies of bate-stamp pages ETZEL000094 and ETZEL000096, together with a German-to-English translation of the pages, for in camera review on or before October 9, 2018.