2013-00151887-CU-PO

Nicholas S-T vs. Ryan Matthew Haley

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Meleyco, Kenneth N.

Plaintiff’s Motion to Compel Further Response to Request for Production propounded
to each defendant parent is granted.

Plaintiff alleges that he was molested by defendant parents’ son, Ryan Haley, from
1997 to 2004 while Haley was babysitting him at Haley’s parents’ residences.
Plaintiff’s Request for Production No. 1 seeks “all insurance policies, including
facesheets that were in effect at any residence occupied by defendant Donna Lee
Haley (and Anthony Phillip “Toney” Haley) between 1997 and 2004. The insurance
information is discoverable under CCP 2017.210. Defendant has not produced
policies for the two years still in dispute, 1999-2000, and 2000-2001.

Defendants responses stated that they would produce responsive documents which
are in their “possession.” Defendants further responded that they “[do] not have
copies of insurance policies or face sheets for any policies which were in effect prior to
August 28, 2001.”

This response fails to comply with CCP 2031.230, which concerns representations of
inability to comply. “A representation of inability to comply with the particular demand
for inspection, copying, testing, or sampling shall affirm that a diligent search and a
reasonable inquiry has been made in an effort to comply with that demand. This
statement shall also specify whether the inability to comply is because the particular
item or category has never existed, has been destroyed, has been lost, misplaced, or
stolen, or has never been, or is no longer, in the possession, custody, or control of the
responding party. The statement shall set forth the name and address of any natural
person or organization known or believed by that party to have possession, custody, or
control of that item or category of item.” CCP 2031.230.

Defendants’ responses referring to their lack of possession does not negate their
obligation to conduct a diligent search to determine if the documents were within their
custody or control and provide a verified response so stating.

In opposition, defendants contend that the motion is frivolous because plaintiff knows
that their insurance company, Allied, has “lost” the policies issued to the defendants for
the years prior to 2001. These facts are not set forth in a verified response by a
person with personal knowledge. If in fact a verified response indicates that the
policies actually issued to the defendants were lost by Allied, plaintiff will have the
option to subpoena the policies, or representative policies from Allied that, according to
Allied, have different language about the sexual molestation exclusion than the later
policies. The fact that Allied has filed a declaratory relief action against the
defendants concerning coverage for this action implies that Allied has access to the
policies (if not the actual policies a representative or exemplar sample of the policies)
to support its declaratory relief action.

Defendants are ordered to serve a verified response to Request for Production No. 1
on or before June 17, 2014.

Defendants, jointly and severally, shall pay monetary sanctions to plaintiff in the
reasonable amount of $780. (Three hours attorney time and filing fee.) The court
does not award sanctions for court call cost.)

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.