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This case was last updated from Los Angeles County Superior Courts on 04/29/2020 at 10:52:19 (UTC).

STEVEN JENSEN VS KRISTEN KERR ET AL

Case Summary

On 08/26/2015 STEVEN JENSEN filed a Personal Injury - Other Personal Injury lawsuit against KRISTEN KERR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SUSAN BRYANT-DEASON, ELIZABETH ALLEN WHITE, KEVIN C. BRAZILE and DEBRE K. WEINTRAUB. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2726

  • Filing Date:

    08/26/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SUSAN BRYANT-DEASON

ELIZABETH ALLEN WHITE

KEVIN C. BRAZILE

DEBRE K. WEINTRAUB

 

Party Details

Plaintiff, Petitioner and Cross Defendant

JENSEN STEVEN

Defendants, Respondents and Cross Plaintiffs

DOES 1 THROUGH 20

KERR CLARENCE

KERR KRISTEN

MEDRANO MANUEL A.

O'CONNOR KATHLEEN

PEKARCIK VICTOR

Not Classified By Court

SAFECO INSURANCE COMPANY OF AMERICA

HUB INTERNATIONAL INSURANCE SERVICES INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FREEDMAN + TAITELMAN LLP

SMITH JEREMY D.

SMITH JEREMY

Defendant and Respondent Attorneys

DEVLIN TAD A.

GALLIANI FRITZIE ESQ.

PECH RICHARD LAW OFFICES OF

STELLWAGEN ROBERT H. JR. ESQ.

CARGAIN AARON M.

GALLIANI FRITZIE

STELLWAGEN ROBERT H. JR.

Cross Plaintiff Attorneys

CHAMBERLAIN HARRY W II

CHAMBERLAIN HARRY W. II

Plaintiff and Cross Defendant Attorney

SMITH JEREMY D.

Not Classified By Court Attorney

CROWE JEFFREY

 

Court Documents

Separate Statement

11/1/2019: Separate Statement

Motion to Quash

11/27/2019: Motion to Quash

Ex Parte Application - Ex Parte Application Ex Parte application for order to continue the trial

3/1/2019: Ex Parte Application - Ex Parte Application Ex Parte application for order to continue the trial

Opposition - OPPOSITION DEFENDANT AND CROSS-COMPLAINANT KRISTEN KERR'S OPPOSITION TO PLAINTIFF AND CROSS-DEFENDANT STEVEN JENSEN'S MOTION TO COMPEL DOCUMENTS WITHHELD BASED ON ALLEGED PRIVILEGE

3/19/2019: Opposition - OPPOSITION DEFENDANT AND CROSS-COMPLAINANT KRISTEN KERR'S OPPOSITION TO PLAINTIFF AND CROSS-DEFENDANT STEVEN JENSEN'S MOTION TO COMPEL DOCUMENTS WITHHELD BASED ON ALLEGED PRIVILEGE

Declaration - DECLARATION OF AARON M. CARGAIN IN SUPPORT OF MANUEL A. MEDRANO'S MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

4/22/2019: Declaration - DECLARATION OF AARON M. CARGAIN IN SUPPORT OF MANUEL A. MEDRANO'S MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Stipulation and Order - STIPULATION AND ORDER CONSOLIDATING MOTIONS TO COMPEL HEARINGS AND SETTING THEM FOR MAY 15, 2019

5/2/2019: Stipulation and Order - STIPULATION AND ORDER CONSOLIDATING MOTIONS TO COMPEL HEARINGS AND SETTING THEM FOR MAY 15, 2019

STIPULATION AND ORDER RE EXTENSION OF TIME TO FILE RESPONSIVE PLEADINGS TO CROSS-COMPLAINTS

2/2/2018: STIPULATION AND ORDER RE EXTENSION OF TIME TO FILE RESPONSIVE PLEADINGS TO CROSS-COMPLAINTS

DEFINDANT MANUEL A. MEDRANO'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

11/2/2015: DEFINDANT MANUEL A. MEDRANO'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

ORDER GRANTING KRISTEN KERR'S EX PARTE APPLICATION TO CONTINUE OR ADVANCE HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

1/14/2016: ORDER GRANTING KRISTEN KERR'S EX PARTE APPLICATION TO CONTINUE OR ADVANCE HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

CIVIL DEPOSIT -

3/7/2016: CIVIL DEPOSIT -

PLAINTIFF STEVEN JENSEN'S RESPONSE TO DEFENDANT CLARENCE KERR'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL STEVEN JENSEN'S PRODUCTION OF ELECTRONIC STORAGE DEVICES FOR INSPECTION

3/9/2016: PLAINTIFF STEVEN JENSEN'S RESPONSE TO DEFENDANT CLARENCE KERR'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL STEVEN JENSEN'S PRODUCTION OF ELECTRONIC STORAGE DEVICES FOR INSPECTION

NOTICE OF ERRATA ON THE DECLARATION OF RICHARD PECH IN SUPPORT OF CLARENCE KERR'S MOTION TO COMPEL STEVEN JENSEN'S FURTHER RESPONSES TO DEMANDS FOR PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED IN

3/15/2016: NOTICE OF ERRATA ON THE DECLARATION OF RICHARD PECH IN SUPPORT OF CLARENCE KERR'S MOTION TO COMPEL STEVEN JENSEN'S FURTHER RESPONSES TO DEMANDS FOR PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED IN

PLAINTIFF STEVEN JENSEN'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF KATHLEEN O'CONNOR TO DEPOSITION SUBPOENAS FOR THE PRODUCTION OF BUSINESS RECORDS AND FOR RECOVERY OF EX

4/13/2016: PLAINTIFF STEVEN JENSEN'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF KATHLEEN O'CONNOR TO DEPOSITION SUBPOENAS FOR THE PRODUCTION OF BUSINESS RECORDS AND FOR RECOVERY OF EX

DEFENDANT KRISTEN KERR'S EX PARTE APPLICATION FOR STAY OF ALL DEPOSITIONS, ETC.

5/5/2016: DEFENDANT KRISTEN KERR'S EX PARTE APPLICATION FOR STAY OF ALL DEPOSITIONS, ETC.

KRISTEN KERR'S COMPLIANCE WITH CCP 43O.41 PRIOR TO FILING THE DEMURRER TO PETITIONER'S FIRST AMENDED COMPLAINT

5/11/2016: KRISTEN KERR'S COMPLIANCE WITH CCP 43O.41 PRIOR TO FILING THE DEMURRER TO PETITIONER'S FIRST AMENDED COMPLAINT

PLAINTIFF STEVEN JENSEN'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT KRISTEN KERR TO REQUESTS FOR ADMISSION (SET ONE); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

5/31/2016: PLAINTIFF STEVEN JENSEN'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT KRISTEN KERR TO REQUESTS FOR ADMISSION (SET ONE); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

NOTICE OF RULING RE: NON-PARTY KATHLEEN O'CONNOR'S EX PARTE APPLICATION TO CONTINUE HEARING DATE

6/16/2016: NOTICE OF RULING RE: NON-PARTY KATHLEEN O'CONNOR'S EX PARTE APPLICATION TO CONTINUE HEARING DATE

DEFENDANT MANUEL A. MEDRANO'S OPPOSITION TO PETITION FOR ORDER ALLOWING PLAINTIFF TO FILE A PLEADING AGAINST DEFENDANT BASED ON ATTORNEY-CLIENT CONSPIRACY

7/8/2016: DEFENDANT MANUEL A. MEDRANO'S OPPOSITION TO PETITION FOR ORDER ALLOWING PLAINTIFF TO FILE A PLEADING AGAINST DEFENDANT BASED ON ATTORNEY-CLIENT CONSPIRACY

690 More Documents Available

 

Docket Entries

  • 10/13/2020
  • Hearing10/13/2020 at 09:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/06/2020
  • Hearing10/06/2020 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 07/15/2020
  • Hearing07/15/2020 at 14:00 PM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Adjudication

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  • 04/28/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 04/23/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 04/16/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by Party

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  • 04/16/2020
  • DocketCertificate of Mailing for ([Notice of Continuance Due to COVID-19 State of Emergency Declarations]); Filed by Clerk

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  • 04/16/2020
  • DocketNotice of Continuance Due to COVID-19 State of Emergency Declarations; Filed by Clerk

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  • 04/09/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by Party

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  • 03/25/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion to Compel (Discovery)

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1,288 More Docket Entries
  • 09/11/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/11/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/11/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/11/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/11/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 08/31/2015
  • DocketORDER TO SHOW CAUSE HEARING

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  • 08/31/2015
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 08/26/2015
  • DocketComplaint; Filed by Steven Jensen (Plaintiff)

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  • 08/26/2015
  • DocketSUMMONS

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  • 08/26/2015
  • DocketCOMPLAINT FOR: 1. UNAUTHORIZED ACCESS TO COMPUTERS, COMPUTER SYSTEMS & COMPUTER DATA IN VIOLATION OF CALIFORNIA PENAL CODE 502(C); ETC

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Tentative Rulings

Case Number: BC592726    Hearing Date: May 7, 2021    Dept: 48

[TENTATIVE] MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Plaintiff Steven Jensen moves to compel the production of documents from Defendant Kristen Kerr on the ground that the documents are not attorney-client privileged.

On November 13, 2018, Jensen filed a motion to compel the production of documents from Defendant Victor Perkarcik. Kerr objected to the production of documents claiming attorney-client privilege. On December 19, 2018, the Court granted in part and denied the motion. The order stated in part, “Any other communications between Pekarcik and Medrano or O’Connor, which are not related to documents obtained from Plaintiff Jensen’s computer, and made to facilitate counsel’s representation of Kerr come within the attorney-client privilege. Such documents, if withheld on the attorney-client privilege, must be specifically identified in a privilege log.” Thereafter, Kerr served a privilege log.

On February 15, 2019, Jensen filed a motion to compel the production of documents withheld by Kerr for an in-camera inspection. On May 15, 2019, the Court ruled that it could not conduct an in-camera inspection of documents to determine whether the documents were attorney-client privileged, and that Jensen had not identified how each privilege log entry reflected a waiver of the privilege. Therefore, the Court denied the motion without prejudice to a renewed motion.

Jensen again moves to compel the documents based on the May 23, 2019 deposition of Pekarcik. Jensen argues that Pekarcik testified that he hacked Jensen’s computer, not because any attorney asked him to do it, but as Kerr’s boyfriend. Jensen also bases his most recent motion on Kerr’s October 19, 2020 deposition where she testified that Pekarcik hacked Jensen’s emails. This new testimony does not add much to the previous motions for several reasons.

First, when Jensen filed his November 13, 2018 and his February 15, 2019 motions, he had already taken Pekarcik’s deposition. In the February 15, 2019 motion, Jensen argued, “Pekarcik admitted at his deposition that he accessed Jensen’s email accounts without Jensen’s knowledge ‘when Kristen [Kerr] was sitting with me in the office.” (See February 15, 2019 motion at p. 3, quoting November 13, 2018 motion.) The prior motions quoted from Pekarcik’s deposition at length about accessing the emails.

Also, the Court already ruled in the December 19, 2018 order that “as to any communications between Pekarcik and Medrano or O’Connor, to the extent such communications pertain to documents obtained by hacking into Plaintiff Jensen’s computer, either by Pekarcik or Kristen Kerr, such communications would not come within the attorney-client privilege and must be produced.” The only documents not ordered produced were those “not related to documents obtained from Plaintiff Jensen’s computer, and made to facilitate counsel’s representation of Kerr.” The current motion’s lengthy discussion and deposition quotations about how Pekarcik accessed Jensen’s emails does not contribute to the question whether the withheld communications not related to documents obtained from Jensen’s computer should be produced.

In the May 14, 2019 order, the Court stated Jensen did not address each document in the privilege log “to meet Jensen’s burden of demonstrating that the privilege was waived or the crime-fraud exception applies,” and “Jensen has not identified how each privilege log entry reflects a waiver of the attorney-client privilege or qualifies for the crime-fraud exception.” That remains a deficiency in this latest motion. Jensen attaches a 21 page privilege listing approximately 450 documents. The motion does not address any particular document on that log. The vast majority of the documents on the privilege log do not include Pekarcik in the communication.

Regarding the communications on the privilege log that include Pekarcik, Jensen makes the blanket argument that Pekarcik was not necessary to accomplish the purpose for which for Kerr consulted the attorney because he is not a litigation consultant, translator or accountant, or the like. He was just a boyfriend. (Motion at pp. 10-11.) Jensen made this argument in the previous two motions.

When a third party is present in a communication with an attorney, “‘no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved.’” (Behunin v. Superior Court (2017) 9 Cal. App.5th 833, 844-845.) [T]here are two ways disclosure of a privileged communication to a third party may not destroy the privileged nature of the communication.” (Id. at pp. 845-846.) The first is were “the third party is an agent or assistant who will help to advance the litigant’s interest.” (Id. at p. 846.) The second “ ‘is where the third party is not in any sense an agent of the litigant or attorney but is a person with interest of his or her own to advance in the matter, interests that are in some way aligned with those of the litigant . . . such as a spouse, parent, business associate, or joint client.’” (Ibid.)

Kerr argues that Pekarcik facilitated her relationship with counsel by organizing thousands of documents at issue in the family law proceedings for the purpose of assisting counsel. The communications in the privilege log are dated from 2012, before this case began and when the parties were litigating in family court. Kerr presented evidence that Pekarcik helped organize documents for the attorneys in the family law case. (Medrano Depo. at p. 65, 98, 101, 102; Pekarcik Depo. at p. 14, 15, 17, 66.) That task was something someone had to do to make the documents available for the family law attorneys, and having Pekarcik organize the documents was likely much less expensive than having an attorney do the job. Therefore, Kerr has satisfied her burden of showing that including Pekarcik in the communications with the attorneys preserved their confidentiality.

Jensen’s evidence does not show Pekarcik did not help advance the Kerr’s interest. Most of the Pekarcik transcript attached to the motion concerned accessing Jensen’s emails. That is not new information and does not address how Pekarcik helped organize documents for the attorneys. In a few pages of the transcript, he discussed organizing the paper documents to be sent to the attorneys to save money and time. (See, e.g., Ex. F at pp. 250-252, 262-263.) The discussion is consistent with Kerr’s evidence about Pekarcik’s role. Also, having a boyfriend organize thousands of pages of documents, rather than leaving that undertaking to the family law attorneys, obviously did save attorney fees and helped Kerr advance her litigation. In this sense, Pekarcik was acting as a paralegal or secretary.

Similarly, most of the testimony in the Kerr transcript attached to the motion is about how Pekarcik accessed Jensen’s emails and Kerr reviewed the emails. That Pekarcik accessed those emails and Kerr read them is not new information. She also testified that Pekarcik was going through the boxes of documents and helping to communicate with the attorneys, but eventually wore out his welcome. (Ex. H at pp. 137-138, 235-236.) The fact that Pekarcik and Kerr had a falling out and are now pointing fingers at each other about who is responsible for accessing Jensen’s emails does not mean that in 2012 Pekarcik was not aiding Kerr by organizing the paper documents for Kerr’s attorneys.

Pekarcik did not show that the crime fraud exception applies here and that the communications with the attorneys were in furtherance of criminal or fraudulent activity. (Evid. Code, § 956.) He presented no evidence that Kerr hired O’Connor or Medrano to accomplish or plan a crime or fraud. Instead, he argues that because Pekarcik hacked Jensen’s emails and helped organize hacked documents, the crime fraud exception applies. (Motion at p. 12.) That is not evidence that the attorneys were hired to enable or involved with a crime or fraud.

For these reasons, the motion is denied.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC592726    Hearing Date: April 14, 2021    Dept: 48

[TENTATIVE] ORDER RE: MOTION FOR ORDER TO RETURN DOCUMENTS

On March 22, 2021, Plaintiff Steven Jensen filed this motion for an order requiring Defendant Kristen Kerr to return his confidential documents.

Kerr’s objections to the Declaration of Steven Jensen are overruled.

According to Jensen, Kerr reviewed documents from boxes of documents found in the basement and hacked into his personal and business email accounts, thereby obtaining attorney-client privileged communications and other confidential documents. (Jensen Decl. ¶¶ 3-5.) At Kerr’s deposition, she testified that she still has copies of documents, and some documents were used as exhibits at Jensen’s deposition. (Smith Decl. ¶¶ 2-3 & Ex. E at pp. 160-161, 188-189, 212-213.) Jensen and his counsel declare that the confidential documents were never returned. (Jensen Decl. ¶¶ 8-11; Smith Decl. ¶ 5; Fishbein Decl. ¶¶ 3-4.)

As an initial matter, the motion is vague and uncertain about the documents the motion defines as “Jensen Confidential Documents.” The motion states that the documents contain information from Jensen’s personal and business email accounts that Kerr alleged accessed without authorization and then uploaded to a “cloud.” (Motion at p. 2.) The motion also describes the “Jensen Confidential Documents” as paper documents from boxes that were in the basement of the house.

Jensen argues that Kerr must return the documents and may not review or use them “[u]ntil the question of grounds for clawing back these documents is settled.” (Motion at p. 7.) Jensen cites State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644. That case held that the attorney-client privilege is not waived when counsel inadvertently produced documents during litigation. (Id. at p. 652.) That case also held, “When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.” (Id. at pp. 656-657.) Jensen also cited Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, which affirmed that the State Farm rule applied to documents protected under the attorney-client privilege, work product doctrine, and “any other similar doctrine that would preclude discovery based on the confidential nature of the documents.” (Id. at p. 817 n.9.)

This is not a situation where a lawyer received documents inadvertently produced in this litigation. Jensen left some of the documents at issue in the basement of his house when he moved out, Kerr found them, and apparently some of the documents were used in the family law litigation. There is no showing that all of the documents from the basement contained attorney-client communications, attorney work product, or documents protected by some similar doctrine. The fact that they were used in the family law action suggests they were not protected under some other similar doctrine. For example, tax returns can be relevant and discoverable in family law actions.

Likewise the documents Kerr allegedly obtained without consent from Jensen’s business and personal email accounts and uploaded to the cloud were not inadvertently produced in this litigation. Jensen’s complaint in this action is based on that very allegation – that Kerr accessed Jensen’s computer and email accounts without his consent. Whether that actually occurred is a disputed issue for the trier of fact. Indeed, the Court just denied a motion for summary adjudication because of disputed factual issues surrounding Kerr’s alleged improper access of Jensen’s computer and email accounts. If those issues could not be decided via a motion for summary judgment, they cannot be decided by this motion.

Jensen also argues that the Court has the power to order the return of the documents because stolen property should be returned to its rightful owner, and the Court has inherent power to make orders related to pending litigation. (Motion at p. 8, citing Code Civ. Proc., §§ 128, 187.) But Kerr’s acquisition of the documents occurred before this litigation commenced and is the basis for the SAC’s allegations. Ordering the return of the documents is beyond the scope of the Court’s preservation of order within this proceeding.

Finally, Jensen argues that the Court should order Kerr to comply with her responses to his requests for production of documents as she responded that she would “produce all responsive, non-privileged documents that are reasonably accessible, if any exist.” (Motion at pp. 9-10; see Smith Decl., Exs. Q-R.) This motion does not comply with the rules for discovery motions and the Court will not treat it as a discovery motion.

Accordingly, the motion is DENIED. Jensen’s request for sanctions under Code of Civil Procedure section 2023.030 is also DENIED. Kerr’s request for sanctions (Opposition at p. 7) is DENIED. This was not a discovery motion and there is no statutory basis for sanctions here.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC592726    Hearing Date: April 8, 2021    Dept: 48

[TENTATIVE] ORDER RE: JENSEN’S MOTION FOR SUMMARY ADJUDICATION; KERR’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On July 1, 2016, Steven Jensen (“Jensen”) filed a second amended complaint (“SAC”) against Kristen Kerr (“Kerr”), Victor Pekarcik (“Pekarcik”), Clarence Kerr, Kathleen O’Connor (“O’Connor”), and Manuel A. Medrano (“Medrano”). Jensen later dismissed Pekarcik, O’Connor, and Medrano.

On June 25, 2018, Kerr filed a first amended cross-complaint (“FACC”) against Jensen.

On November 1, 2019, Jensen filed a motion for summary adjudication of the FACC’s first, third, fifth, and sixth causes of action.

On January 20, 2021, Kerr filed a motion for summary judgment, or in the alternative summary adjudication, of Jensen’s SAC.

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

JENSEN’S MOTION FOR SUMMARY ADJUDICATION OF KERR’S FACC

The FACC alleges (1) breach of fiduciary duty; (2) invasion of privacy; (3) unauthorized access to computers, computer systems, and computer data in violation of Penal Code section 502, subdivision (c); (4) violation of Civil Code section 1708.85; (5) intentional infliction of emotional distress; (6) conversion; and (7) violation of the Computer Fraud and Abuse Act. Jensen seeks summary adjudication of the first, third, fifth, and sixth causes of action.

EVIDENTIARY OBJECTIONS

Kerr’s objections are overruled.

Jensen’s objection are overruled.

DISCUSSION

A. First Cause of Action – Breach of Fiduciary Duty

Jensen and Kerr married in 2005. (Undisputed Material Facts “UMF” 1.) In September 2011, Kerr filed for legal separation from Jensen and initiated a family law action against him titled Kristen Kerr Jensen v. Steven E. Jensen, Los Angeles Superior Court Case No. BD553016. (UMF 2.)

Jensen argues that the first cause of action for breach of fiduciary duty is barred by res judicata or collateral estoppel because it was litigated in the family law action. (Motion at p. 6.) Res judicata applies when (1) a claim or issue in the current action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom res judicata is asserted was a party to the prior proceeding. (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82-83.)

In the FACC, Kerr alleges that Jensen breached his fiduciary duty by (1) forging her signature on a non-cancelable commercial equipment lease and personal guarantee on August 6, 2008; (2) forging her signature on a lease for one of his business offices, Temple of the Air; (3) opening numerous credit cards under her name without her consent, putting himself as an authorized user, and routinely maxing them out; (4) opening bank accounts using her social security number and other identifying information; and (5) creating a letterhead with Kerr’s information, using the letterhead to draft letters to banks, credit card companies, and other financial institutions, and forging her signature on those letters. (FACC ¶ 13.)

According to Jensen, in the family law action the parties litigated or had the opportunity to litigate whether Jensen breached his fiduciary duties. (Motion at p. 6-7.) Jensen cites generally to the reporter’s transcripts from July 6 and 8, 2015, but not to any specific page, leaving the Court to guess which parts of the two days’ worth of testimony are relevant.

Jensen also cites to the August 3, 2015 judgment in the family law action. (Jensen Decl., Ex. C.) The family law court found that Jensen “breached his fiduciary duty to [Kerr] by uttering the false W-2’s and payroll stubs causing her to incur fees and costs to protect herself based on the Respondent’s singular fraudulent act of issuing W-2’s and payroll information to secure loans against the residence.” (Id. at p. 2.) On the issue of a breach of fiduciary duty concerning taking loans against the residence, the family law court concluded Jensen did not impair the community by the expenditure of those funds. (Id. at p. 3.) The ruling stated, “All other claims for breach of fiduciary duty asserted by Petitioner, or other claims to establish further liability against the Respondent are denied. (Id at p. 2.)

According to the family law court ruling, the breaches at issue were Jensen’s creation of false W-2 forms and payroll stubs and the taking of loans against the residence. Jensen did not identify other claims for breach of fiduciary duty asserted by Kerr in the family law action. Jensen’s evidence does not show that the specific breaches alleged here action – forging Kerr’s signature on leases, opening credit cards and bank accounts in her name, and using her letterhead and forging her name on letters – were at issue or could have been litigated in the family law action.

Jensen argues the family law court reserved jurisdiction over the issue of fiduciary duty generally. The family law court ruling states the issues of “a subsequent action by any lender or governmental authority related to the fraudulent pay-stubs and the fraudulent W-2s” and if either party sought financial renumeration from the other or to impose liability on the other, those issues were reserved. (Id. at p. 8.) This reservation is based on the issues in that ruling concerning the false paystubs and W-2 forms. Jensen did not show that disputes between the parties about forged signatures and false documents not related to the residence were at issue in the family law action or could have been brought by Kerr in the family law action.

In his reply, Jensen submits evidence as to Kerr’s ability to make the other fiduciary duty claims in the family law action – evidence that Kerr knew about the allegedly forged documents during the family law proceedings. Jensen’s separate statement does not reference that evidence. A party moving for summary adjudication cannot rely on evidence submitted with a reply. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Jensen did not satisfy his burden of showing a prima facie case.

Jensen also argues he did not do the things that Kerr alleges. (Motion at pp. 6-7.) He declares that he never forged Kerr’s signature on any documents without her knowledge, never opened credit cards in her name without her knowledge, and never opened bank accounts using her identification without her knowledge. (Jensen Decl. ¶ 5.) This is sufficient to meet his initial burden.

In opposition, Kerr declares that she discovered lease agreements containing her forged signature, credit card statements in her name with charges that she did not know about, letters written by Jensen requesting that he be added as an authorized user on the credit cards, a forged signature on a non-cancelable commercial equipment lease and personal guarantee, and forged letters on letterhead. (Kerr Decl. ¶¶ 7-9, 12 & Exs. C-G, I.) Kerr has therefore shown the existence of a triable issue of fact.

Finally, Jensen contends that Kerr cannot prove that she suffered damages. (Motion at o. 8.) Jensen did not present evidence of this in his separate statement of undisputed facts. Summary judgment law “continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 (Aguilar), footnote omitted.) Jensen must therefore “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) He has not done so.

Accordingly, summary adjudication of the first cause of action is denied.

B. Third Cause of Action – Violation of Penal Code § 502, subd. (c)

The third cause of action alleges a violation of Penal Code section 502, subdivision (c), which prohibits unauthorized access to computers. “Access” is defined as “to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.” (Pen. Code, § 502, subd. (b)(1).) A person who suffers damage or loss by a violation of Penal Code section 502, subdivision (c) may bring a civil action for injunctive relief and compensatory damages for “any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access.” (Pen. Code, § 502, subd. (e)(1).)

The third cause of action alleges Jensen “knowingly accessed and without permission used Ms. Kerr’s data, computer, computer system and/or computer network in order to devise and/or execute a scheme to wrongfully control, defraud and/or deceive Ms. Kerr,” “knowingly accessed and without permission took, copied, and/or used data from Ms. Kerr’s computer, computer system, or computer network,” and “knowingly and without permission accessed or caused to be accessed Ms. Kerr’s computer, computer system, or computer network.” (FACC ¶¶ 34-36.)

Jensen argues he never hacked data from Kerr’s computers, cell phone, or iCloud, and he did not disrupt Kerr’s computer services in any way. (Motion at p. 8.) He provides only his declaration in which he states, “I never hacked data from Kerr’s cell phone, computer, or iCloud.” (Jensen Decl. ¶ 6.) Jensen has met his initial burden.

In opposition, Kerr declares that Jensen obtained unauthorized access to her phone, computer and accounts and then disseminated some of her private photographs and text messages from her iCloud account, cellular phone, and/or computer to her former counsel and family friend, and he threatened her, her family, her former counsel, and her former boyfriend that he would further disseminate and publish the photographs he obtained. (Kerr Decl. ¶¶ 4-5.) She attaches emails from Jensen stating he has some of her text messages and private photographs. (Kerr Decl., Exs. A-B.)

Jensen argues in reply that he obtained the texts and photographs from a phone Kerr gave their daughter. (See Kerr Decl., Ex. B.)

Where and how Jensen obtained the information and whether accessed a computer without authorization are disputed issues. Summary adjudication is denied.

C. Fifth Cause of Action – Intentional Infliction of Emotional Distress

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) “While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact [citation], the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) When a plaintiff does not suffer physical injury, the conduct must involve “extreme and outrageous intentional invasions of one’s mental and emotional tranquility.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498.)

Kerr alleges Jensen engaged in extreme and outrageous conduct that caused her severe emotional distress, including (1) obtaining unauthorized access to her iCloud account, cellular phone, and/or computer, downloading and copying her private, intimate photographs and text messages, disseminating several of those photographs and text messages to others, and threatening to further disseminate and publish the “100+ pornographic images”; (2) using Kerr’s private photos to decorate a picture box and instructing their children to give the box to her as a Christmas gift; (3) defrauding her by forging her signature on loan documents and leases, and opening numerous credit cards in her name without her knowledge or approval; (4) falsely accusing her of having drinking problems and abusing antidepressants in statements to others; (5) posting a Facebook comment in which he falsely claimed that Kerr “swiped our company address book which had all client staff and business info, personal data. quotes. so deep and so corrupt. her lawyers are being investigated for wrong doing as well, spread the word.”; and (7) incessantly calling her to harass her and often emailing her, calling her a “pig,” “disgusting,” and a “fucking zero.” (FACC ¶ 48.)

Jensen contends that he did not engage in any extreme and outrageous conduct directed at Kerr. (Motion at p. 9; see Jensen Decl. ¶¶ 5-7.) As discussed with the first cause of action, there is a triable issue as to his alleged forging of Kerr’s signature on loan documents and leases and opening numerous credit cards in her name. And as discussed with the second cause of action, Kerr submitted evidence of Jensen’s threats to publish her private text messages and photographs.

Jensen also argues that “as a matter of law, Jensen’s alleged conduct which he did not do . . . cannot possibly be considered acts that exceed all bounds usually tolerated in a civilized community.” (Motion at p. 9.) Jensen cites no law that the alleged conduct cannot be considered outrageous. Jensen therefore has not met his burden of showing that an element of the cause of action cannot be established. (See Code Civ. Proc., § 437c, subd. (p)(2).) Additionally, if proven, a reasonable jury could find that, in the aggregate, threatening to publish “100+ pornographic images” of Kerr, defrauding through forgery, falsely accusing Kerr (to her attorney and friends) of having drinking problems and abusing antidepressants, falsely posting that Kerr stole stolen company property and is “corrupt,” and frequently harassing Kerr with phone calls and emails may constitute outrageous conduct.

Finally, Jensen argues Kerr cannot prove that she suffered severe emotional distress as a result of Jensen’s conduct. As with the first cause of action, this is not in the separate statement of undisputed facts, and Jensen does not provide any evidence of Kerr’s inability to prove any damages.

Accordingly, summary adjudication of the fifth cause of action is denied.

D. Sixth Cause of Action – Conversion

The sixth cause of action alleges that Jensen took possession of Kerr’s domain name and prevented her from accessing it by transferring ownership to himself without her permission. (FACC ¶¶ 52-55.) “Conversion is the wrongful exercise of dominion over the property of another.¿¿The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.¿¿It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.”¿¿(Farmers Ins. Exchange v. Zerin¿(1997) 53 Cal.App.4th 445, 451-452.)

Jensen contends he never took possession of a domain using Kerr’s name, never precluded her from having access to it, and never transferred ownership to himself without her knowledge. (Motion at p. 10.) He states he “never took possession of a domain name utilizing Kerr’s name, and never precluded her from having access to it. I never transferred ownership of Kerr’s domain to myself without her knowledge.” (Jensen Decl. ¶ 8.) This establishes a prima facie case.

In opposition, Kerr declares that Jensen was the only other person with access to her domain account. (Kerr Decl. ¶ 25.) “[A]t some point after the divorce,” she lost access to the domain name and website without her knowledge or consent. (Id. at ¶ 26.) Kerr also notes that Jensen’s declaration addresses only Kerr’s lack of knowledge and does not state that he never transferred ownership without her consent. (Opposition at p. 13.) This is sufficient to create a triable issue of fact as to whether Jensen converted the domain name without consent.

Accordingly, summary adjudication of the sixth cause of action is denied.

CONCLUSION

The motion for summary adjudication is DENIED.

KERR’S MOTION FOR SUMMARY JUDGMENT OF JENSEN’S SAC

The SAC alleges (1) unauthorized access to computers, computer systems, and computer data in violation of Penal Code section 502, subdivision (c); (2) invasion of privacy; (3) violation of Civil Code section 1708.8; (4) trespass to chattels; (5) negligent hiring; (6) negligent supervision/failure to warn; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; (9) aiding and abetting unauthorized access to computers, computer systems, and computer data in violation of Penal Code section 502, subdivision (c); (10) aiding and abetting trespass to chattels; (11) aiding and abetting invasion of privacy; and (12) aiding and abetting violation of Civil Code section 1708.8.

The first through fourth, seventh, and eighth causes of action are alleged against Kerr. Kerr seeks summary adjudication of the first, second, fourth, and seventh causes of action.

EVIDENTIARY OBJECTIONS

The Court does not rule on Kerr’s objections, as the evidence objected to is not material to the Court’s decision. (See Code Civ. Proc., § 437c, subd. (q).)]

BACKGROUND FACTS

During the family law action, Kerr discovered documents in the basement of the couple’s home (“Hard Copy Documents”). According to Kerr, the documents included a loan application with Kerr’s forged signature, false W-2s in Kerr’s name without her knowledge or consent, and other documents with Kerr’s personal information, along with confidential documents related to Jensen. (UMF 5-6; Response to UMF 5; AMF 42-43.)

Kerr retained Medrano in July 2012 to ascertain what crimes Jensen had committed during their marriage, ascertain how Jensen’s criminal activity exposed Kerr to potential criminal liability, advocate on Kerr’s behalf with law enforcement and to convince them not to prosecute Kerr based on Jensen’s criminal acts, and draft a prosecution letter to submit to law enforcement agencies that may have sought to prosecute Jensen for his criminal acts. (UMF 7.)

Kerr gave Medrano access to the Hard Copy Documents. (UMF 8.) Pekarcik assisted in organizing and cataloging the Hard Copy Documents, created a “cloud” account, and uploaded them to the online server. (UMF 10-11; see AMF 47-48, 52.) According to Kerr, she reviewed the Hard Copy Documents and emails related to Jensen only to assist in the family law action and to help protect her from liability due to Jensen’s criminal activity. (UMF 16.) Medrano drafted a prosecutorial letter to try to get Jensen charged with crimes. (AMF 59-60.)

Some of the Hard Copy Documents were introduced as evidence in the family law action as evidence without objection from Jensen. (UMF 14.) In April 2012, Jensen acknowledged picking up some documents. (UMF 15.) According to Jensen, his confidential documents have not been returned. (AMF 91.)

DISCUSSION

A. First, Second, Fourth, Seventh Causes of Action – Litigation Privilege

Kerr argues the alleged conduct is protected by the litigation privilege. (Motion at p. 6.) The litigation privilege applies to any communication “‘(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “Because the litigation privilege protects only publications and communications, a ‘threshold issue in determining the applicability’ of the privilege is whether the defendant’s conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature. [Citations.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.) “[I]f the gravamen of the action is based on a communicative act, ‘the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct . . . . Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.’ [Citation.]” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1272-1273.) “If all the elements of the privilege are satisfied, the privilege is absolute, a complete defense regardless of malice.” (Laffer v. Levinson, Miller, Jacobs & Phillips (1995) 34 Cal.App.4th 117, 122.)

Kerr argues that the communications between her, Clarence Kerr, Pakarcik, and Medrano concerning the review of the Hard Copy Documents, and the review itself, were done to further the family law action because Kerr reviewed the documents “to determine the extent of the fraud committed against her and the potential criminal and civil liability to which Jensen exposed her.” (Motion at p. 7.) Kerr’s only evidence regarding Jensen’s emails being related to any litigation is her declaration: “To the extent I reviewed the Hard Copy Documents or any other email communication related to Jensen, it was only to assist in the Family Law Matter between me and Jensen and to help protect myself from liability due to Jensen’s criminal activity.” (Kerr Decl. ¶ 13.)

Kerr analogizes this case to Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263 (Falcon). (Reply at p. 4.) In Falcon, Long Beach Genetics, Inc. (“LBG”) conducted a paternity test in connection with a paternity proceeding. (Id. at pp. 1267-1268.) LBG mailed test results and a declaration from the custodian of records certifying the records to the parents. (Id. at p. 1268.) The results erroneously excluded Patterson as the child’s biological father. (Ibid.) The parents later sued LBG for negligence on the grounds that it “negligently concluded and thereafter via declaration testimony informed the San Diego Superior Court and Plaintiffs—that through their DNA tests, which were 99.99 [percent] accurate—[minor] was not the daughter of her actual father Michael Patterson.” (Ibid.) The trial court ruled that the gravamen of the complaint was communicative conduct barred by the litigation privilege. (Id. at p. 1270.) The Court of Appeal held the plaintiffs’ alleged injury arose from an act that was communicative in nature, i.e., the declaration testimony that the child was not her father’s daughter. (Id. at p. 1275.) Therefore, the court concluded “the litigation privilege extends not only to defendants’ communication of the genetic test results, but the noncommunicative act of the DNA testing itself that is necessarily related to the communication.” (Ibid.)

The first cause of action alleges Kerr accessed Jensen’s computer without his consent, took data from his computer, used his email addresses without his consent, deleted information from his computer, among other things. (FAC ¶ 32.) These allegations are not about the Hard Copy Documents. The second cause of action alleges Kerr hacked into Jensen’s emails, used private information in the family law action, and accessed Jensen’s computer. (FAC ¶ 38.) While this cause of action could refer to the Hard Copy Documents, it is not limited to those documents. The fourth cause of action alleges Kerr accessed Jensen’s computer systems without his authorization. (FAC ¶¶ 54-55.) It does not reference the Hard Copy Documents. The seventh cause of action alleges Kerr gained unauthorized access to Jensen’s computer and subsequently disseminated and used his confidential information, in addition to hacking Jensen’s email accounts and using information from the email accounts. (FAC ¶ 72.) While the allegations about using his confidential information could refer to the Hard Copy Documents, the cause of action includes unauthorized access to computers and email accounts, which is separate from the Hard Copy Documents.

The gravamen of the allegations is not limited to the Hard Copy Documents but also includes the conduct of improperly accessing his email and computer accounts and using information from those accounts.

Accordingly, summary judgment is denied on this ground.

B. First Cause of Action – Violation of Penal Code § 502, subd. (c)

Kerr argues Jensen cannot demonstrate that she accessed his computer, computer system, or computer network, and email accounts in violation of Penal Code section 502, subdivision (c) because physical documents are not data in a computer system. (Motion at p. 8.) The allegations of the second cause of action are not limited to the Hard Copy Documents.

Plaintiff also argues that accessing an email account with a shared password is not hacking. (Motion at p. 8.) Plaintiff cites her deposition testimony in which she stated the couple used the same two passwords for the electric code to get inside, the code to the side gate, and their iPads. (UMF 2-3; Kerr Depo. at pp. 90-91.) She testified that Jensen’s password was the same for everything, and they used two “go-to passwords.” (Kerr Depo. at p. 91.) She knew his email password because it was their “family password for everything,” and “[t]here was no trickery. There was no force.” (Ibid.) But sharing a password does not prove as a matter of law that Kerr was authorized to access Jensen’s emails or did so with his permission. (See Pen. Code § 502, subd. (c) [“Knowingly accesses and without permission . . .”].) A jury could reasonably conclude that even though the couple shared a password, Jensen had not given his consent to the continued access of his email and computer accounts after their separation and had not consented to the dissemination and use of information from his email and computer accounts.

To the extent that Kerr argues that Jensen “failed to demonstrate” that she accessed his computer, as the moving party it is Kerr’s burden to disprove the allegations with evidence – not Jensen’s burden to prove his claims. (Code Civ. Proc., § 437c, subd. (p)(2).)

As discussed above, the allegations go beyond reviewing the Hard Copy Documents as part of litigating the family law action.

Accordingly, Kerr has not met her initial burden, and summary adjudication is denied on the first cause of action.

C. Second Cause of Action – Invasion of Privacy

The elements of a cause of action for invasion of privacy are “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) “ ‘A “reasonable” expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms,’ and ‘the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant.’ ” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 449.) “If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Id. at p. 40.)

Kerr first argues that Jensen did not have any reasonable expectation of privacy in the Hard Copy Documents because they were in the basement of their home after Jensen moved out, and Jensen later admitted that he was no longer requesting any other Hard Copy Documents. (Motion at p. 10; see UMF 5, 9, 15.) Kerr cites her declaration, in which she states that they used the basement to store their records in several boxes. (Kerr Decl. ¶ 4.) After she retained a family law attorney, she went to the basement to conduct an inventory of their records stored in the basement. (Id. at ¶ 5.) Kerr also cites her family law attorney’s declaration describing documents containing Kerr’s forged signature, credit card statements that Kerr was unaware of, invoices and receipts for contractors, automobile insurance claims, documents related to a claim for water damage, email communications between Jensen and a bank officer, email communications between Jensen and a contractor, and documents preceding the marriage related to Jensen’s criminal conviction. (O’Connor Decl. ¶¶ 9-16.) This evidence does not show that Jensen lacked a reasonable expectation of privacy in the documents he had stored in their house. Kerr cites an April 2012 email from Jensen to O’Connor, in which he references files he had picked up at O’Connor’s office and states, “I’m still missing files, but at this point I have no concern about them anymore . . . .” (O’Connor Decl. ¶ 17 & Ex. K.) The evidence does not identify the contents of the “missing files.”

Kerr next argues that Jensen did not have a reasonable expectation of privacy in documents entered in evidence in the family law action. (Motion at pp. 10-11.) “There is no reasonable expectation of privacy in documents required to be filed in court when those documents are not filed under seal.” (Weaver v. Superior Court (2014) 224 Cal.App.4th 746, 751.) Kerr’s counsel’s declaration states, “Among the fifty-nine exhibits introduced at the Family Law Trial, some were documents from the box; some were derived from the material in the boxes, and other exhibits were developed independently. Many were introduced at trial in the Family Law Matter and were either received into evidence or marked for identification. No exhibit was objected to based upon a violation of privacy or other duty to Mr. Jensen.” (UMF 14; O’Connor Decl. ¶ 7.) That statement does not prove that all of the documents at issue here were publicly filed in the family law action.

Kerr then argues that Jensen did not have a reasonable expectation of privacy in the iCloud account he shared with Kerr. (Motion at pp. 11-12.) Kerr quotes a case holding that there is no expectation of privacy when a file is downloaded to a publicly accessible file. (Motion at pp. 11-12.) There is no evidence the iCloud account was a public file accessible by anyone other than Kerr and Jensen. Kerr did not submit evidence that Jensen had reason to expect Kerr would access and disseminate the contents of the iCloud account to third parties.

Also, the allegations of the second cause of action are not limited to the Hard Copy Documents, documents filed in the family law action, and iCloud documents. For example, the SAC alleges Kerr accessed his personal and business email accounts and computer accounts and does not expressly limit this access to the iCloud account. (SAC ¶ 38.)

Finally, Kerr contends that Jensen cannot establish that reviewing the Hard Copy Documents and Jensen’s emails were highly offensive to a reasonable person. (Motion at p. 12.) As discussed above, Kerr has not shown that she accessed Jensen’s email accounts with authorization. A reasonable jury could find that unauthorized access to business and personal email accounts is highly offensive to a reasonable person.

In sum, summary adjudication of the second cause of action is denied.

D. Fourth Cause of Action – Trespass to Chattels

A cause of action for trespass to chattels requires an intentional interference with the possession of personal property that causes injury. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350-1351.) When the interference with possession does not amount to conversion, a plaintiff may recover only the actual damage caused by the impairment of the property or the loss of its use. (Id. at p. 1351.) Generally, electronic contact to a computer system is a trespass when there is some actual or threatened interference with the computer’s functioning. (Id. at p. 1353.)

Kerr contends that Jensen does not allege his data, computer, or computer system were physically damaged as a result of accessing his email or that she interfered with the functioning of the system. (Motion at p. 14.) When a motion for summary adjudication challenges the legal sufficiency of the complaint and not the absence of a triable issue of fact, the motion is effectively a motion for judgment on the pleadings. (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1378; American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) The Court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

The SAC alleges that Kerr “intentionally and without authorization interfered with Jensen’s possessory interest” in his computer data when she gained unauthorized access into his computer systems. (SAC ¶ 54.) Jensen alleges that the data included personal and private emails, files related to business dealings, internal software containing a proprietary address book with private client information, and document files related to clients. (Id. at ¶ 53.) As a result of the trespass, Jensen suffered damages including emotional distress, a delay in reaching a settlement in the Family Law Action, losing several clients, and losing a substantial film project. (Id. at ¶ 55.) These are not damages caused by impairment of the property or the loss of its use, and Jensen does not allege any damage to the computer’s functioning.

Accordingly, the motion for summary adjudication of the fourth cause of action, construed as a motion for judgment on the pleadings, is granted.

E. Seventh Cause of Action – Intentional Infliction of Emotional Distress

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) “While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact [citation], the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) When a plaintiff does not suffer physical injury, the conduct must involve “extreme and outrageous intentional invasions of one’s mental and emotional tranquility.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498.)

Jensen alleges that Kerr hacked into his email accounts and read, copied, and distributed his emails for more than two years, causing him severe emotional distress. (SAC ¶¶ 72-74.) Kerr contends that these actions are not extreme and outrageous. (Motion at pp. 14-15.) Kerr cites no law to support a finding that the alleged conduct cannot be considered outrageous. A reasonable jury could conclude that accessing and using information stored in email and computer accounts without authorization is outrageous conduct. Kerr therefore has not met her burden of showing that an element of the cause of action cannot be established. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Accordingly, summary adjudication of the seventh cause of action is denied.

F. First, Second, Fourth, Seventh Causes of Action – Proximate Cause

Kerr argues that Jensen cannot prove Kerr’s actions were the proximate cause of any alleged damages. (Motion at p. 15.) She claims Jensen did not lose any clients or his employment, pointing to testimony by a third party that Jensen lost his position because he was not productive or effective and was not making money. (Id. at p. 16; UMF 18.) That testimony establishes a prima facie case that Jensen did not lose his position due to Kerr’s actions, but it does not state if or why he lost clients.

Also, the alleged damages are not limited to lost clients and lost employment. The SAC also alleges damages for mental and emotional distress, along with other unspecified compensatory damages. (See, e.g., SAC at pp. 25-29.) Kerr does not provide evidence that Jensen cannot prove other damages.

Accordingly, summary adjudication is denied on this ground.

CONCLUSION

The motion for summary adjudication is GRANTED in favor of Kerr on the fourth cause of action, and is otherwise DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC592726    Hearing Date: April 2, 2021    Dept: 48

[TENTATIVE] ORDER RE MOTION TO COMPEL DEPOSITION

This latest discovery dispute concerns the continued deposition of Defendant Kristen Kerr. She was deposed on October 19, 2020. At the deposition, her attorney instructed her not to answer some questions and made privilege objections. Plaintiff Steven Jensen then filed a motion to compel responses to those questions. On March 2, 2021, the Court granted in part the motion to compel responses and ordered Kerr to answer two specific deposition questions via a remote deposition to take place in the next 20 days.

On March 9, 2021, Plaintiff filed this motion to compel Defendant’s deposition. Plaintiff argues the original deposition only lasted for five hours because the court reporter needed to leave for personal reasons. Plaintiff argues he is entitled to two more hours. Plaintiff identifies certain topics of inquiry. (Motion at p. 3.)

Defendant argues this motion is too late because the previous deposition ended back in October and Plaintiff is not entitled to a second deposition. Defendant does not dispute that the first deposition ended because the court reporter needed to leave, not because Plaintiff’s counsel stated he had no further questions. Nor does Defendant dispute that the first deposition was only five hours.

The first motion to compel further responses focused on the questions on which defense counsel instructed Defendant not to answer or made privilege objections, as did Plaintiff’s separate statement. Defendant’s opposition to the first motion argued Defendant had already answered the specific deposition questions identified by Plaintiff as disputed, the attorney privilege applied to certain questions she did not answer, and she had not waived the privilege. Based on the parties’ papers and separate statements, the Court was under the impression that the specific questions listed in the separate statement comprised the disputed issues.

Defendant’s arguments do not preclude Plaintiff from completing the deposition that was cut short because of the court reporter’s schedule. Plaintiff has identified topics not covered in the first day. Therefore Plaintiff has the right to two more hours of a deposition, which can take place remotely.

This is not a motion to compel further response to questions asked at the deposition because Defendant did not have the opportunity to ask the questions due to the court reporter’s schedule. Therefore, this motion is not subject to the time constraint set in Code of Civil Procedure section 2025.480, subdivision (b). And, even if it were, the record of the deposition is not yet complete because the deposition is not yet complete. Therefore, the 60 days has not yet started.

The motion is GRANTED. Defendant is to appear remotely for two more hours of deposition, including the two questions from the previous motion, within 20 days of the date of this order.

This is a typical situation during depositions – for whatever reason, a deposition cannot go a full day and a second day needs to be scheduled. The vast majority of times the parties agree to a second date. In this case the parties refuse to agree to anything, and it is in vain to exhort them to resolve these types of quotidian discovery disputes. But that does not absolve the attorneys of the duty to resolve these kinds of discovery disputes without motion practice, especially here where Defendant does not dispute that the court reporter needed to leave early. The request for sanctions is granted against Defendant and defense counsel jointly and severally in the amount of $2,034.00 to be paid within 20 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC592726    Hearing Date: February 18, 2021    Dept: 48


Case Number: BC627367    Hearing Date: February 18, 2021    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO ENFORCE SETTLEMENT

On July 29, 2020, Plaintiff Monty Scales (“Plaintiff”) and Defendant Hooman Hyundai (“Defendant”) settled this case for $7,500.00, to be paid by Defendant in specific installments. The Court therefore continued the Order to Show Cause Re: Dismissal (Settlement) to February 5, 2021. On December 21, 2020, Plaintiff moved to enforce the settlement and have a judgment entered pursuant to Code of Civil Procedure section 664.6.

Courts may enter judgments pursuant to written settlements signed by the parties. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428; Code Civ. Proc., § 664.6.) Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement. (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.) The party seeking to enforce a settlement “must first establish the agreement at issue was set forth ‘in a writing signed by the parties’ (§ 664.6) or was made orally before the court. [Citation.]” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304.)

Plaintiff provides a copy of the parties’ Stipulation for Settlement and Mutual Release of Claims. (Friedman Decl., Ex. A.) Defendant agreed to make six payments of $1,250.00 each on or before specific dates between August 29, 2020 and January 29, 2021. The parties also agreed to a stipulated judgment if Defendant defaulted on the payment schedule, and they requested that the Court retain jurisdiction under Code of Civil Procedure section 664.6. In a proceeding to enforce the settlement, the prevailing party is entitled to recover reasonable attorney fees and costs. The settlement agreement “is intended to be fully and formally binding and enforceable as is effective this 29th day of July, 2020,” and it contains “the entire understanding and agreement between the parties concerning the resolution of all disputes between them . . . .” The agreement is also signed by both Plaintiff and Defendant.

Counsel for Plaintiff declares that as of December 7, 2020, Defendant has not made any payments. (Friedman Decl. ¶ 7.) Plaintiff therefore seeks a judgment of $8,177.50, consisting of the $7,500.00 settlement principal plus $587.50 in attorney fees and $90.00 in costs incurred for this motion. The attorney fees and costs are reasonable. Defendant did not file an opposition.

Accordingly, the unopposed motion to enforce settlement is GRANTED. Plaintiff is to file a proposed judgment in the amount of $8,177.50 within five days. The Court sets an Order to Show Cause re entry of judgment for March 19, 2021 at 8:30 a.m.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC592726    Hearing Date: December 12, 2019    Dept: 48

MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND PRODUCTION OF DOCUMENTS

MOVING PARTY: Defendant/Cross-Complainant Kristen Kerr

RESPONDING PARTY(S): Plaintiff/Cross-Defendant Steven Jensen

PROOF OF SERVICE:

ANALYSIS

Motion to Compel Deposition

Defendant/Cross-Complainant Kristen Kerr moves to compel the deposition of Plaintiff/Cross-Defendant Steven Jensen.

Regardless of whether the motion is moot by virtue of the parties agreeing that the deposition of Steven Jensen is to take place between January 23-31, 2020 (Opposition, 2), the Court lacks the power to compel an out-of-state resident to attend a deposition in California. CCP § 1989. Jensen is a resident of North Carolina. Declaration of Jeremy D. Smith, ¶ 5.

CCP § 1989 has been held to apply to deposition witnesses who are named parties to the litigation:

b. Code of Civil Procedure section 1989

I-CA has declined to cite or discuss Code of Civil Procedure section 1989 in its briefs to this court. Therefore any challenge to the trial court's reliance on that section, or the court's interpretation of that section, is forfeited.

I-CA has briefly addressed the cases cited by the trial court. I-CA attempts to distinguish Amoco on the ground that the Amoco court did not discuss Code of Civil Procedure section 2025.230, upon which I-CA relied. Instead, the [*281]  case focused on the obligation of a witness to appear in court in California if he is not a resident of California at the time of service.

While Amoco did not directly discuss the application of Code of Civil Procedure section 1989 to deposition witnesses, the issue was discussed in Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107 [130 Cal. Rptr. 3d 131] (Toyota). The Toyota court held, “[Code of Civil Procedure] section 1989 applies not only to those witnesses obliged to attend as witnesses in court proceedings, but those witnesses obliged to give testimony by deposition before deposition officers.” (Id. at p. 1113.)

I-CA points out that, in a footnote, the Toyota court declined to express an opinion as to whether Code of Civil Procedure section 1989 applies to section 2025.230. Specifically, the Toyota court stated: “We express no opinion … as to whether our analysis or the conclusions we have reached in this opinion would or should extend or apply to a court order made pursuant to [Code of Civil Procedure] section 2025.230 which provides for the circumstances where ‘… the deponent named is not a natural person … .’” (Toyota, supra, 197 Cal.App.4th at p. 1126, fn. 20.)

Aside from pointing out this footnote, I-CA has declined to make any reasoned arguments as to why Code of Civil Procedure section 1989 should not apply when the deposition has been noticed under section 2025.230, as opposed to any of the other discovery statutes.

We note that the Toyota court also made reference to Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754 [344 P.2d 788] (Twin Lock). In Twin Lock, the plaintiff, Twin Lock, Inc., was a resident of New York suing California defendants in a lawsuit filed in Los Angeles. The defendants gave notice that they would depose certain officers of Twin Lock in Los Angeles. Twin Lock moved to vacate the deposition notice, and the trial court denied the motion. The defendants sought imposition of sanctions based on the officers' willful failure to appear. (52 Cal.2d at pp. 757–758.) On appeal, Twin Lock sought a writ of prohibition to prevent the imposition of sanctions for its officers' failure to appear for the depositions.

The Supreme Court stated: “The disposition of this proceeding depends upon the applicability of section 1989 of the Code of Civil Procedure … .” (Twin Lock, supra, 52 Cal.2d at p. 758.) Twin Lock asserted that under Code of Civil Procedure section 1989, “no form of compulsion, including the use of sanctions against a party, may be used by the court to compel the New [*282]  York residents to come to California … .” (52 Cal.2d at p. 758.) The high court evaluated Code of Civil Procedure section 1989, noting that “[t]he word ‘witness’ in section 1989 includes a prospective witness who is a party or who is a director, officer, or managing agent of a party.” (Twin Lock, at p. 759.) The court concluded that Code of Civil Procedure section 1989 was “by its terms applicable to the New York residents[1] involved here.” (52 Cal.2d at p. 759.) The court held that the trial court was “without power to impose sanctions upon Twin Lock based upon the notice which defendants gave for the taking of the depositions in Los Angeles of the New York residents.” (Id. at pp. 761–762.)

I-CA has declined to cite or discuss Twin Lock. The case supports the trial court's determination that it had no power to compel production of Plasgad[2]'s financial records or to compel a deposition of Plasgad's nonresident PMK. Under the circumstances, I-CA has provided no grounds for reversal of the trial court's order.

I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 280-282 (bold emphasis and underlining added).


[1] The New York residents were the plaintiffs whose depositions were sought to be taken in California.

[2] Plasgad was a defendant in the action. 235 Cal.App.4th 257, 261.

Case Number: BC592726    Hearing Date: November 13, 2019    Dept: 48

MOTION TO COMPEL FURTHER RESPONSES TO DEMAND FOR INSPECTION AND COPYING OF COMPUTERS AND ELECTRONICALLY STORED INFORMATION; REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff/Cross-Defendant Steven Jensen

RESPONDING PARTY(S): Defendant/Cross-Complainant Kristen Kerr.

PROOF OF SERVICE:

ANALYSIS

Motion to Compel Further Responses to Demand for Inspection

Plaintiff/Cross-Defendant Steven Jensen brings a motion to compel further responses to demand for inspection and copying of Defendant/Cross-Complainant Kristen Kerr’s Computers and Electronically Stored Information, and requests sanctions.

Contrary to Kerr’s argument, the motion is not moot simply because the parties agreed to make their devices available for inspection. Jensen is still entitled to verified responses.

Timeliness

Defendant Kerr’s responses to set three were served by overnight delivery on March 8, 2019. Declaration of Jeremy Smith, Exh. B. The deadline to bring the motion to compel expired on April 25, 2019. This motion was not filed and served until August 30, 2019. However, the parties agreed that the deadline to bring motions such as this one would be two weeks after the forensic inspection takes place. See Smith Decl., ¶ 11; Exh. F (April 10, 2019 email), Page F-9. No forensic inspection has taken place yet. Smith Decl., ¶ 11.

Meet and Confer

Relative to Kerr’s responses to set three, Jensen’s counsel did not engage in sufficient meet and confer efforts as required by CCP § 2031.310(b)(2). See Smith Decl., ¶ 11; Exh. F, p. 17-19 (bold emphasis added). Jensen did not demonstrate a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Bold emphasis added.)

While the Court could continue the hearing the motion for further meet and confer efforts, the Court will proceed to address the merits of this motion.

¿ Demands Nos. 1 – 9 (Set Three):

On November 17, 2015, Jensen served demand for inspection and copying of computers and electronically stored information, set two upon Defendant Kristen Kerr. The demand consisted of the following single demand:

Any computer (laptop and/or desktop) other electronic storage devices, including but not limited to external hard drives, Zip drives, memory sticks, jump drives, USB/flash drive devices, CDs, DVDs, floppy disks, e-mail accounts, Blackberries, other PDAs or cell phones with text messaging or electronic mail capabilities used by KRISTEN KERR during the period between September 2011 and the filing of the complaint in this action in August 2015.

Declaration of Gemma Karapetyan, Exh. A (bold emphasis added).

Kristen Kerr served her initial response to this demand on April 11, 2016 (Karapetyan Decl., Exh. B) and her supplemental response to this demand on November 22, 2017 (Karapetyan Decl., Exh. C). Jensen did not move to compel a further response as to the November 22, 2017 supplemental response. Accordingly, Jensen has waived the right to compel a further response to any document contained in the above Demand No. 1 contained in set two. He cannot simply re-propound the request by splitting it up into subparts, and re-serving them as set three as he seeks to do.

A court does not have jurisdiction to compel further responses if they are filed after the time limit set forth in the Code of Civil Procedure. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788; Karz v. Karl (1982) 137 Cal App.3d 637, 645-46 (bold emphasis added); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (bold emphasis added). See also Weil and Brown, Civil Procedure Before Trial, The Rutter Group, § 8:1491: “The 45-day time limit is mandatory and ‘jurisdictional’ (court has no authority to grant a late motion). . . .”; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1427-28.

A party may not circumvent the time limit merely by propounding the same discovery again. Prof'l Career Colleges, Magna Inst. v. Superior Court (1989) 207 Cal.App.3d 490, 493.

As discussed above, Jensen is deemed to have waived the right to compel further responses to Demands Nos. 1 – 5 for the period September 2011 to August 2015. However, Jensen’s request for production as to Demands Nos. 1 – 5 is timely for the period September 2015 to the present. Moreover, Jensen is not deemed to have waived the right to compel further responses to Demands Nos. 6 - 9 because those were not included in the previous demand for production.

As to Demands Nos. 1 – 5, good cause exists for inspection of electronic devices pertaining to the period September 2015 to the present, to discover evidence of whether Kerr hacked into Jensen’s email and other electronic devices.

As to Demands Nos. 6 – 9, good cause exists for Jensen to discover emails and electronically stored information expressly referenced in Kristen Kerr’s cross-complaint and upon which Kerr relies to defend against Plaintiff’s allegations. To the extent these extend into the period September 2011 to August 2015 (and thus are excluded from Demands Nos. 1 -5), they must be produced if responsive to Demands Nos. 6 – 9.

Kerr’s objection on the ground of attorney-client privilege and work product doctrine are SUSTAINED to the extent that information contained on the electronic devices come within either privilege. Kerr must produce a privilege log identifying what information come within such privilege, and the parties are to agree upon a protocol for reviewing the contents for privileged documents.

Given, the Court’s ruling that only information for the period September 2015 to the present are included in the response demand, Kerr’s remaining objections are OVERRULED; they are not well-taken.

Kerr provided the following substantive response:

Without waiving these objections, and expressly reserving same, Responding Party responds as follows: Responding Party has archived the contents of electronic devices within her possession that are reasonably accessible and functional and upon agreement between the parties regarding a protocol for reviewing the contents of these devices, including review for privileged, private[1], and irrelevant documents, and upon an agreement in which Propounding Party agrees to undertake the cost for the review of any inaccessible information or information that requires an undue burden to review, Responding Party will produce any responsive, non-privileged documents that are reasonably accessible, if any exist, and relevant.

Kerr did not sufficiently identify information of a type or category of source that is not reasonably accessible. CCP § 2031.210(d):

(d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.

(Bold emphasis added.)

Nor has Kerr identified data compilations which require translation into reasonably usable form through detection devices. CCP § 2031.280.

(e) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.

CCP § 2031.280 (bold emphasis added).

Accordingly, Kerr does not have a right to require Jensen to agree

to undertake the cost for the review of any inaccessible information or information that requires an undue burden to review as a condition of production.

Accordingly, the motion to compel further responses to Demands for Inspection (Set Three) Nos. 1 – 5 is GRANTED IN PART as to the period September 2015 to the present only. The motion to compel further responses to Demands Nos. 6 – 9 is GRANTED.

Further responses are due within 10 days. Inspection is to occur within 20 days.

Given the partial success of the motion, both parties’ requests for sanctions are DENIED.


[1] Note: Because Kerr did not object on the ground of privacy, she has waived the objection. Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 272-76.

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