John L. Mlnarik v. Glenn Slivinske et al. CASE NO. 113CV243581
DATE: 01 May 2014 TIME: 9:00 LINE NUMBER: 24
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 30 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 01 May 2014, the motion of plaintiff, John L. Mlnarik (“Plaintiff”) to compel inspection of things and premises was argued and submitted. Defendants Glenn Slivinske and Margaret Slivinske, (“Defendants” or the “Slivinskes”) filed formal opposition to the motion.

I. Background

This case arises from an alleged dog bite incident. Defendants own two dogs named “Tiki” and “Coco.”

On 12 September 2012, Plaintiff, a local lawyer, was campaigning for a seat on the Santa Clara City Council. Plaintiff went to Defendants’ home in Santa Clara to follow-up on a telephone conversation he had previously with Defendant Margaret Slivinske on neighborhood issues. Plaintiff arrived at their home and knocked the front door. When Mrs. Slivinske answered the door, Defendants’ dog “Tiki” a Miniature Pinscher, ran out and bit Plaintiff on the leg.

II. Discovery Dispute

On 21 March 2014, Plaintiff served counsel for Defendants, a Demand for Inspection of Things and Premises. (See Declaration of “James” Huan Ly, Exh. A.) The Inspection Demand specifically lists as the things to be inspected as:

1. “Tiki” and “Coco”, the two dogs in possession, control, and custody of Defendants.

2. The dog house, kennel, sleeping quarters; if any, of Tiki and Coco.

3. Yard, fences, and any areas where Tiki and/or Coco is allowed to roam.

4. Leashes, collars, chains, if any.

5. Food bowls/water bowls.

6. Dog toys, chew toys, bones, and any other objects which Tiki and/or Coco chew.

The inspection is to be conducted by Plaintiff’s expert Amy Cook, Ph.D., in Psychology from the University of California at Berkley. Dr. Cook, has worked as an animal behaviorist, dog behavior counselor and trainer for over 20 years. She is certified through the International Association of Animal Behavior Consultants, and through the Council for Professional Dog Trainers. (See Declaration of Amy Cook, ¶ 2.)

On 10 April 2014, Defendants served objections to Plaintiff’s Demand for Inspection of Things and Premises.

On 12 April 2014, counsel for Plaintiff sent a meet and confer letter to counsel for Defendants. (See Declaration of James Ly, Exh. C.)

An informal resolution to the discovery dispute could not be reached. However, both parties stipulated to an order shortening time to hear this discovery matter.

III. Discussion

Pursuant to Code of Civil Procedure § 2031.010(a), “[a]ny party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.

In addition, Code of Civil Procedure 2031.010(c), clarifies that “[a] party may demand that any other party produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made.”

Here Plaintiff noticed Defendants of their inspection demand to allow, Plaintiff’s expert Amy Cook, Ph.D., to inspect the dogs, premises, and dog equipment, to form an opinion regarding the history and behavioral profile of the dogs. Defendants object to the inspection demand and Plaintiff’s now make a motion to compel such inspection.

A. Motions for Order compelling Further Response to a Demand for Inspection.
B.
Pursuant to Code of Civil Procedure § 2031.310(a), upon receipt of a response to a demand for inspection the demanding party may move for an order compelling a 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; and (3) An objection in the response is without merit or too general.

Defendants object on the basis the inspection is overbroad, burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Having served objections, the Court will treat this motion as a motion to compel further responses to a demand for inspection.

For motions to compel further responses to a demand for inspection, Rules of Court, Rule 3.1345(a)(3), requires a separate statement. Plaintiff has not provided the Court with a separate statement, but the Court shall nonetheless address the merits of the motion. Separate statements help the Court to evaluate the merits of motions to compel further responses to demands for insepections.

“We conclude that because Plaintiffs did not comply with the requirements of former rule 335 [now Rule 3.1345], the trial court was well within its discretion to deny the motion to compel discovery on that basis. (Cf. Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [describing trial court’s denial of motions to compel discovery because of a nonconforming separate statement].)” Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893.

The motion is DENIED for the lack of a Separate Statement.

B. Balancing the Rights of the Defendants with Plaintiff’s Right to Discovery.

Generally a party is entitled to discovery “regarding any matter, not privileged, this is relevant to the subject matter . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code of Civil Procedure § 2017.010.

However, Article I of the California Constitution, recognizes certain inalienable rights to privacy of an individual. A person has a reasonable expectation of privacy in property located inside a person’s home. Katz v. United States, (1967) 389 U.S. 347, 361. Often in regards to discovery, the Courts are forced to balance the rights of individual against his opponent’s right to privacy. Valley Bank of Nevada v. Superior Court, (1975) 15 Cal.3d 652, 657.

Defendants have made an objection based on the burdensomeness of Plaintiff’s inspection demand. The inspection demand endeavors to allow Plaintiff’s expert to inspect and test the two dogs owned by Defendants, as well as inspect and video tape the areas of Defendants’ home where the dogs roam. As a general matter, “some burden is inherent in all demands for discovery.” West Pico Furniture Co. v. Superior Court, (1961) 56 Cal.2d. 407, 418.

Here, Plaintiff asserts that the propensity of the dogs viciousness is a discoverable fact and relevant to prove Plaintiff’s requests for punitive damages. Plaintiff has brought a cause of action against Defendants under two theories of law: (1) Theory of strict liability against owners of dogs who bite others (Civil Code § 3342); and (2) negligence.

Under Civil Code § 3342, the “owner of any dog is liable for the damages suffered by any person who is bitten by the dog while . . . lawfully in a private place.” The statute specifically ignores the former viciousness of the dog or the owner’s knowledge of such viciousness. As such under the theory of liability based on Civil Code § 3342, the requested discovery is absolutely irrelevant. Plaintiff need only prove his injuries to the Court and not the viciousness of the dogs. The statute has no provision for punitive damages.

In addition, Civil Code § 3294(a) allows a party to recover punitive damages, “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Malice is later defined under Civil Code § 3342(c)(1) as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

The Court is unclear as to how Plaintiff’s general claim of negligence relates to a recovery for punitive damages, where Plaintiff has incurred almost no medical costs.

Further, in the mind of this Court, the proposed discovery does very little to establish a case of punitive damages.

On balance the rights of Plaintiff to discovery is not outweighed by Defendants’ rights to privacy.

Accordingly, Plaintiff’s request for an order compelling further responses to Demand for Inspection, Set One is DENIED.