Case Name: Jane Doe v. Bella Enterprises, Ltd., et al.
Case No.: 1-14-CV-263033

Currently before the Court is plaintiff Jane Doe’s (“Plaintiff”) motion to compel defendant Bella Enterprises, Ltd. (“Bella”) to provide further responses to special interrogatories, set one (“SI”) and requests for production of documents, set one (“RPD”).

This is a sexual assault case. Plaintiff alleged the following facts. On March 30, 2012, Plaintiff attended a massage appointment at a day spa owned by Bella. (See Compl., ¶ 9.) Bella assigned defendant Rajesh Kumar Vashisht (“Vashisht”) as Plaintiff’s massage therapist. (See Compl., ¶ 10.) While massaging Plaintiff, Vashisht touched and penetrated Plaintiff’s genitals without consent or permission. (See Compl., ¶ 12.) Plaintiff ended the massage and reported the incident to Bella. (See Compl., ¶ 13.) Plaintiff alleges that Bella ratified Vashisht’s behavior by continuing to employ him. (See Compl., ¶ 14.) Plaintiff further alleges that Vashisht assaulted and battered at least two other women after she reported Vashisht’s conduct to Bella. (See Compl., ¶ 14.) In her complaint, Plaintiff asserts four causes of action against Bella and Vashisht (collectively, “Defendants”) for: (1) assault; (2) battery; (3) sexual battery; and (4) negligent hiring and retention.

On June 13, 2014, Plaintiff served the SI and RPD on Bella. (See Stillman Decl., Exs. 2-3.) On August 1, 2014, Bella served responses to the SI and RPD, consisting of both objections and substantive responses. (See Stillman Decl., Exs. 4-5.) Dissatisfied with the responses, Plaintiff’s counsel sent an email to Bella’s counsel seeking to meet and confer. (See Stillman Decl., Ex. 6.) The following Monday, October 20, 2014, Bella’s counsel sent an email in response, explaining that Bella’s objections were justified and responses complete. (See Stillman Decl., Ex. 8.) After additional discussions, on October 21, 2014, Plaintiff’s counsel sent an email, indicating that the parties had reached an impasse and Plaintiff would be filing a motion to compel. (See Stillman Decl., Ex. 8.) In a final effort to resolve the dispute informally, counsel for Plaintiff and Bella engaged in a meet and confer conference via telephone on November 11, 2014. (See Stillman Decl., ¶ 8.) After reviewing the arguments and authorities raised by Plaintiff’s counsel, Bella’s counsel wrote an email to Plaintiff’s counsel on November 24, 2014, reiterating Bella’s position that the objections were justified and the responses complete. (See Stillman Decl., Ex. 9.)

Plaintiff moves to compel Bella to provide further responses to the SI and RPD on the grounds that its objections are unjustified and its responses are incomplete and/or evasive. (See Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a).)

A. Compel Further Responses the SI

Plaintiff moves to compel further responses to SI Nos. 6 and 7, which asked Bella to identify each person who made complaints to it concerning Vashisht and their contact information, (SI No. 6) and who Mila Recania, one of Bella’s employees, identified to the Palo Alto Police Department as having complained about Vashisht (SI No. 7). Bella responded to each interrogatory with both objections and substantive responses.

While Bella asserted a number of objections to SI Nos. 6 and 7, it only attempts to justify its objections on the ground of relevance and the right to privacy. The other objections are therefore overruled. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 [burden on responding party to justify objections].)

Bella first argues that the identifying information of other clients who complained about Vashisht is not relevant because the complaints were made after Vashisht allegedly assaulted Plaintiff. This argument lacks merit. Plaintiff anticipates that Vashisht may claim that any unwanted touching was purely accidental. Evidence that Vashisht had a practice of inappropriately touching massage clients would be relevant to prove both his intent and the absence of any mistake in inappropriately touching Plaintiff. (See Andrews v. City & County of San Francisco (1988) 205 Cal.App.3d 938, 945 [officer’s assaults on individuals in custody, both before and after assaulting plaintiff, relevant to prove both intent and absence of mistake]; see also Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890 [stating that intent to harm or cause offensive contact is an element of causes of action for assault and battery].) Accordingly, Bella’s objections on the ground of relevance are overruled.

Bella next claims that providing Plaintiff with the name and contact information of other clients who complained about Vashisht would intrude upon their right to privacy. In particular, it notes that each of its clients who made a complaint to the police requested that her identity not be included in the public record. (See Costello Decl., Ex. G.)

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.) A party seeking to prevent discovery on the basis of the right to privacy must demonstrate that a legally protected privacy right exists, there is a reasonable expectation of privacy under the particular circumstances, and the disclosure of the information would constitute a serious invasion of the interest. (See Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1423.) To warrant protection, the intrusion into privacy rights must be “serious in nature, scope, and actual or potential impact….” (Snibbe v Superior Court (2014) 224 Cal.App.4th 184, 194.)

Generally, the disclosure of the identity and contact information of witnesses in discovery is not considered a serious intrusion into an individual’s privacy. (See Pioneer Electronics, Inc., supra, 40 Cal.4th at p. 373 [disclosure of identity and contact information involves no revelation of business secrets, intimate activities, or similar private information, and threatens no undue intrusion into personal life]; Puerto v. Super. Ct. (2008) 158 Cal.App.4th 1242, 1253-1254 [contact information, while personal, is not particularly sensitive].)

However, the disclosure of the identity of the other alleged victims in this case necessarily discloses their link to an alleged sexual assault. In spite of the general rule, as claimed victims of sex offenses, Bella’s other clients do have a legally protected privacy interest in preventing the disclosure of their identities and contact information to the public at large. (See Pen. Code, § 293 [at the request of a victim of a sex offense, law enforcement officers prohibited from disclosing the name or address of the victim to anyone other than the prosecutor and certain other law enforcement officials]; see also People v. Ramirez (1997) 55 Cal.App.4th 47, 53 [purpose of statute is “to protect the privacy of victims of sex offenses, to encourage such victims to report the offenses so that rapists may be apprehended and prosecuted, and to protect these victims from harassment, threats, or physical harm by their assailants and others. [Citations.]”].)

Given the significant privacy interests of Bella’s other clients in preventing the disclosure of their identities and contact information, these individuals are entitled to notice of the discovery requested and an opportunity to object. (See Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 658; Pioneer Electronics, Inc., supra, 40 Cal.4th at p. 365 [upholding validity of notice briefly describing the nature of the litigation and the discovery at issue and providing an opportunity to object].)

Accordingly, the Court directs the parties to agree on a form of notice within 10 calendar days of the filing of this order. Bella shall then mail this notice to the clients who made complaints against Vashisht and provide Plaintiff’s counsel with the names and contact information of those individuals that do not object within 60 calendar days of the filing of this order. The Court will further consider whether disclosure can be compelled even if they object, although the Court notes that Plaintiff has substantial information about the nature of the allegations made by the other alleged victims. If those individuals do object, the Court will consider further arguments as to whether the identities should be disclosed, with notice given to the individuals in question.

In the event that any of the other alleged victims consent to disclosure, and to further safeguard the privacy interests of Bella’s other clients, the Court orders that their identities and contact information shall be kept confidential and may only be used for the purposes of this litigation. In addition, the parties are prohibited from disclosing this information in any public document or court proceeding. The parties shall agree on the form of a protective order specific to the concerns of any of the other alleged victims.

B. Compel Further Responses to the RPD

Plaintiff moves to compel further responses to RPD Nos. 7-9. RPD No. 7 sought all documents that relate to any communications between Bella and the Palo Alto Police Department concerning Vashisht. RPD No. 8 requested all documents created after Bella hired Vashisht that relate to any investigation concerning him. RPD No. 9 sought all documents that relate to any complaints concerning Vashisht. Bella responded to each RPD by interposing objections and substantive responses.

1. Good Cause and Relevance Objections

Plaintiff argues that good cause exists for the production of documents responsive to RPD Nos. 7-9. In contrast, Bella objects to these requests on the ground of relevance and attempts to justify these objections in its opposition.

A party moving to compel further responses to requests for production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (See Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (See Kirkland, supra, 95 Cal.App.4th at p. 98.)

With regard to RPD Nos. 7 and 9, it is readily apparent that documents regarding communications with the police department and complaints about Vashisht might assist Plaintiff in proving that he intended to harm her. As previously discussed in connection with Bella’s relevance objections to the SI, evidence that Vashisht had a practice of inappropriately touching massage clients would be relevant to prove both his intent and the absence of mistake. (See Andrews, supra, 205 Cal.App.3d at p. 945.)

With regard to RPD No. 8, Plaintiff persuasively argues that documents relating to any investigations of Vashisht will assist her in proving that Bella ratified Vashisht’s allegedly tortious conduct. (See Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169 [“As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.]”].)

In sum, documents responsive to RPD Nos. 7-9 are relevant to the present action. Accordingly, good cause exists and Bella’s relevance objections to these requests are overruled.

2. Overbreadth Objections

Bella objects to RPD Nos. 7-9 on the ground that they are overbroad “to the extent these requests seek documents that pertain to the two subsequent complaints nine months after plaintiff[’]s complaint….” (Bella’s Opposition, p. 13:5-6.) This argument lacks merit because documents concerning subsequent complaints could demonstrate that Vashisht had a practice of inappropriately touching massage clients. Such information would be relevant to prove both his intent and the absence of mistake in the instant case. (See Andrews, supra, 205 Cal.App.3d at p. 945 [officer’s subsequent assaults on individuals in custody, both before and after assaulting plaintiff, relevant to prove both intent and absence of mistake].) Accordingly, Bella’s overbreadth objections are overruled.

3. Privacy Objections

Bella objects to RPD Nos. 7-9 on the ground that they intrude on the privacy of both its other clients and Vashisht.

With regard to its other clients, Bella contends that providing Plaintiff with documents relating to complaints and communications with the police department concerning Vashisht would intrude on their right to privacy. Given the significant privacy interests of Bella’s other clients, the Court directs Bella to redact all personal identifying information of these individuals in the documents produced in response to RPD Nos. 7-9. (See Snibbe, supra, 224 Cal.App.4th at p. 195 [redaction of personal identifying information may remediate third-party privacy concerns].)

With regard to Vashisht, Bella argues that the requests intrude upon Vashisht’s right to privacy to the extent the requests seek documents found in his personnel file. It is well established that the right to privacy extends to documents contained in an employee’s personnel file. (See Life Technologies Corp. v. Super. Ct. (2011) 197 Cal.App.4th 640, 653-653.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Super. Ct. (1978) 20 Cal.3d 844, 850; see also Binder v. Super. Ct. (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been shown, the proponent of discovery must demonstrate that the information sought is not available through less intrusive means. (See Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449.) The court must then carefully balance the right to privacy on the one hand and the right of civil litigants to discover facts on the other. (See Pioneer Electronics, Inc., supra, 40 Cal.4th at p. 371.)

Documents concerning communications with the police department and complaints against Vashisht may contain information relevant to his intent to harm Plaintiff. (See Andrews, supra, 205 Cal.App.3d at p. 945.) In addition, documents concerning the investigation into the complaints may assist Plaintiff in proving that Bella ratified Vashisht’s conduct by failing to adequately investigate the assaults. (See Baptist, supra, 143 Cal.App.4th at p. 169.) Accordingly, these documents are “directly relevant” to a claim or defense and “essential to the fair resolution of the lawsuit.” (Britt, supra, 20 Cal.3d at p. 850.) In addition, it is readily apparent that no less intrusive means exist to discover the complaints made against Vashisht and Bella’s diligence in investigating them. As such, the Court will balance Vashisht’s right to privacy against Plaintiff’s right to discover relevant information.

Here, providing documents responsive to RPD Nos. 7-9 would not constitute a substantial intrusion into Vashisht’s privacy. The requests only seek documents related to the investigations of Vashisht’s tortious conduct, not the type of “sensitive information ordinarily found in personnel files, such as evaluation of the person’s work …, income information, employment contracts and the like.” (See Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1433.) Thus, any intrusion occasioned by the disclosure would not be significant. In addition, the parties have entered into a stipulated protective order. Designating the responses to RPD Nos. 7-9 as confidential would assuage these privacy concerns. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37-38.) On the other hand, these documents would permit Plaintiff to uncover evidence demonstrating Vashisht’s intent to harm and Bella’s purported ratification of his conduct. Thus, as the intrusion would be slight and the documents sought significant, Bella’s objections on this basis are unjustified and overruled. However, the names and contact information of any other alleged victims mentioned in the documents are to be redacted until resolution of the consent issue described above.

4. Remaining Objections

While Bella asserted additional objections to RPD Nos. 7-9, it does not defend these objections in its opposition. Therefore, Bella has failed to meet its burden of justifying the remaining objections and the objections are therefore overruled, with the exception of the attorney-client privilege, which is preserved. (See Coy, 58 Cal.2d at   p. 220-221 [burden on responding party to justify objections]; Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189 [holding that where a defendant asserted attorney-client privilege in timely manner, albeit in a boilerplate fashion, trial court erred in finding a waiver of privilege].)

5. Substantive Responses

Bella substantively responded to RPD Nos. 7-9 by stating the following: “Defendant will produce all non-privileged documents in its possession, custody and control that are responsive to this request that predate the alleged incident involving plaintiff and/or pertain to the alleged incident involving plaintiff.” Given that the RPD seek documents after the date of the alleged incident and pertaining to the other complaints made against Vashisht, Bella’s responses are incomplete.

6. Conclusion

In sum, further responses to RPD Nos. 7-9 are warranted. As such, Plaintiff’s motion to compel further responses to the RPD is GRANTED. Accordingly, within 20 calendar days of the filing of the order, Bella shall serve verified, code-compliant further responses to RPD Nos. 7-9, without objections, except for the attorney-client privilege, and produce documents in accordance with those responses. To the extent any documents are withheld based on the attorney-client privilege, Bella shall serve a privilege log identifying all documents withheld and providing a factual basis for the privilege claimed. The Court further directs Bella to redact any personal identifying information of Bella’s other clients in any of the documents produced.

The Court will prepare the order.