JANE DOE VS COVINA VALLEY UNIFIED SCHOOL DISTRICT ET AL

Tentative Rulings

Case Number: ****4038    Hearing Date: October 14, 2020    Dept: O

After hearing, Defendant Covina Valley Unified School District’s Motion to Compel Further Responses to Request for Production of Documents, Set Four, No. 62 is GRANTED. Plaintiff is ordered to respond within thirty (30) days.

Defendant Covina Valley Unified School District (“Defendant”) moves the Court for an order requiring Plaintiff Jane Doe (“Plaintiff”) to provide further verified responses to its request for production of documents, set four, Request No. 62 (“the Request”).

Code of Civil Procedure section 2031.310 allows a party to file a motion compelling further answers to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP ; 2031.310(b).)

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item with any of the following: (1) a statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing or sampling; (2) a representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item; or (3) an objection to the particular demand for inspection, copying, testing, or sampling. (CCP ; 2031.210(a).)

Moreover, a statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. (CCP ; 2031.220.)

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

Here, Plaintiff’s responses arguably do not comply with any of the above requirements under this section. While Plaintiff asserted that she objected to the Request, she also stated that she has previously produced all emails, text messages, handwritten notes/messages, and text messages between herself and co-defendant Jason Van Duyne that are currently in her possession, custody and control, and therefore would not be producing "all any and all electronic devices in which Plaintiff JANE DOE has ever COMMUNICATED with Defendant JASON VAN DUYNE" as requested by Defendant. In adding this additional response to the end of the objection, Plaintiff’s response has become unclear whether Plaintiff is standing on her objections or is asserting something else. Particularly, it is now unclear whether the responding party is withholding certain information, especially with the objections that proceed it. This confusion is also compounded by Plaintiff’s statement that potential communication messages between herself and co-defendant Van Duyne were deleted and/or unable to be retrieved and contained in telephonic devices that are still in her possession.

While the Court also notes that implicit in the motion is Defendant seeking the Court to override Plaintiff’s objection by forcing Plaintiff to produce such documents, the Court refuses to do so because Defendant has not cited the any authority for the Court to do this through a motion to compel further responses. This is especially true when it is unclear whether Plaintiff has stated that she will comply with the demand, whether she objects to the demand, or whether she is unable to comply with the demand, as Plaintiff has not stated she intends to comply with the request yet.

Thus, solely based on this technical issue concerning Plaintiff’s responses and Defendant’s notice that the motion was brought under section 2031.310(a), Plaintiff is ordered to provide further code compliant responses as to these Requests, and the motion is GRANTED. At this time, the Motion is DENIED as to Defendant’s request that Plaintiff be ordered to produce the communication devices for examination as this would be a motion made under section 2031.320(a). In the meantime, the Court orders the parties to meet and confer in order to avoid the subsequent motions under section 2031.320(a).

Sanctions

Section 2031.310(h) authorizes the Court to impose a sanction against any party/attorney who unsuccessfully makes or opposes a motion to compel further responses, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. At the hearing, Plaintiff’s counsel provided circumstances that allows this Court to not impose the mandatory sanction.

Thus, sanctions in the amount of $250 will not be issued against Plaintiff’s attorney. Defendant’s request for additional sanctions is DENIED.

Case Number: ****4038    Hearing Date: July 21, 2020    Dept: O

1. Defendant Covina Valley Unified School District’s motion for protective order is DENIED.

Defendant Covina Valley Unified School District (“Defendant”) moves for a protective order of the deposition of third parties, including Monique Chavez, Sandra Thorstenson, David Chandler, and Officer Goodman,[1] and the person most knowledgeable for Bonita Unified School District (collectively “Third Parties”). Defendant makes this motion based on Code of Civil Procedure section 2025.420.

Before a deposition, any party, deponent, or other affected natural person or organization may promptly move for a protective order. (CCP ; 2025.420, subd. (a).) In so ordering on such a motion, the court may direct that the deposition not be taken at all or restrict the scope of matters inquired into. (Id. at subd. (b).) If the court determines that the burden, expense, or intrusiveness of the discovery sought clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence, the court shall limit the scope of the discovery. (CCP ; 2017.020, subd. (a).)

Defendant’s motion primarily rests on the contention that the possible testimony of these Third Parties is irrelevant to Plaintiff’s allegations against Defendant. As Defendant correctly points out, Plaintiff’s case against Defendant rests on the key issue of whether Defendant had notice of the improper relationship between Plaintiff and Van Duyne and/or notice of Van Duyne’s alleged dangerous propensities before either Van Duyne or Plaintiff left the District. No one in this case disputes this. However, Plaintiff contends that her questions go to Van Duyne’s denial of any wrongdoing towards Plaintiff, not the issues of Defendant’s liability to Plaintiff. Thus, Plaintiff arguably raises the issue of what interest Defendant even has in preventing these depositions. Defendant is not able to answer this question in any meaningful way, and instead resort to defending Van Duyne’s interest in its Reply. However, Van Duyne is already represented by counsel in this case, and thus it is improper for Defendant to assert the interest of another party to this case who is already represented by counsel.

Defendant contends that there is good cause that requires the issuance of a protective order precluding or limiting the deposition of these Third Parties. However, the Court finds that Defendant has not presented sufficient reasons to prevent Plaintiff from taking the depositions of the Third Parties. While Defendant contends that the Third Parties are not reasonably calculated to lead to the discovery of evidence, it fails to further elaborate beyond stating facts that show these Third Parties, if they have any information about the allegations against Van Duyne, would only be percipient witness for the timeline after Plaintiff already left Defendant’s school. However, this Court had previously ruled on an MSJ that the issues in this case are not so clear-cut in time as Defendant presents it. As all parties are now aware, Plaintiff’s case theory is that the alleged sexual misconduct of Van Duyne occurred well beyond Plaintiff’s time at Defendant’s school, or Van Duyne’s employment with Defendant. In fact, the Court had previously found, in denying Defendant’s MSJ, that the allegations of sexual misconduct by Van Duyne may have extended up to and including 2013. (See Order on Submitted Matter re: Defendant’s Motion for Summary Judgment, Aug. 30, 2019.) The Court can find nothing implausible about Plaintiff’s case theory, which cuts against Defendant’s argument of good cause to prohibit the deposition of the Third Parties. As such there is no good cause for this court to disallow the depositions of the Third Parties, none of whom have objected to their depositions being taken.

Furthermore, here, Defendant does not make a compelling case that the burden expense or intrusiveness of the discovery outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. As Plaintiff points out, the information is highly relevant to her case against Van Duyne. Furthermore, Defendant has not demonstrated what standing it has in objecting to these deposition of Third Parties, to which Defendant does not represent any of their interests. Thus, the Court will not restrict the scope of matters that Plaintiff may inquire into with these Third Parties.

Defendant also contends in the Reply that the information sought is Plaintiff’s attempt at attacking the credibility of Defendant. However, Plaintiff made it clear in that she is deposing these witnesses to discover evidence of wrongdoing by Van Duyne in connection with Plaintiff’s allegations against him, not in connection with Plaintiff’s allegations against Defendant.

Finally, while the Court agrees that invoking the a Fifth Amendment protection is not evidence that may be impeached (i.e., it cannot be used to infer a denial and/or admission of misconduct by Van Duyne), that does not prevent Plaintiff from calling on witnesses that independently corroborate each other’s stories about what Van Duyne may or may not have allegedly done in this case.

Accordingly, motion is DENIED.

1. Plaintiff Jane Doe’s motion to compel further responses to deposition questions of Defendant Jason van Duyne is DENIED.

Plaintiff Jane Doe (“Plaintiff”) moves the court to compel Defendant Jason Van Duyne (“Defendant”) to answer certain questions asked of Defendant at his depositions, which first took place on February 12, 2015, and last took place on January 22, 2020.

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP ;2025.480, subd. (a).) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under ; 2016.040. (CCP ; 2025.480, subd. (b).)

Defendant refused to answer the majority of questions at the January 22, 2020 deposition by invoking his Fifth Amendment Rights, which Plaintiff now moves to compel Defendant’s response.

Plaintiff contends in part that the Court should compel Defendant to respond to her questions because Defendant had previously answered these questions under oath in his 2015 depositions. By this statement alone, Plaintiff has admitted that she had previously asked Defendants these questions already and she already received her answer. Plaintiff must demonstrate good cause to repeat the deposition of Defendant. (See CCP ; 2025.610.) Simply because the answers given at a later deposition are not true or what Plaintiff wanted to hear does not empower her or the Court to compel further deposition responses of Defendant, nor does it demonstrate good cause. Plaintiff will have the opportunity to raise these contradictions in Defendant’s answers at trial. For now, Plaintiff fails to demonstrate any good cause for this court to compel Defendant to respond to a question he already answered in the past. Thus, this court does not even need to reach the issues raised in either the moving papers or the Opposition regarding the fifth amendment or privilege.

Motion is DENIED.

1. Defendant Jason Van Duyne’s motion to quash deposition subpoena for records from Whittier Police Department and for protective order sealing all records obtained by plaintiff’s counsel is DENIED.

Defendant Jason Van Duyne moves to quash Plaintiff’s subpoena duces tecum for records on the grounds that they are not relevant and violates his privacy rights.

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands. (CCP ; 1987.1.) Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. (CCP ; 1987.2(a).)

The Court notes that it had issued a prior ruling on this very issue, and that Defendant again reiterates his arguments regarding privacy and relevancy. However, this time the arguments are made with respect to Whittier Police Department records regarding two other allegations of sexual misconduct by Defendant.

The Court finds that the records are certainly relevant to the instant action, and the right to privacy can be abridged in this instance. Particularly, Defendant denied under oath that he had sent sexually explicit text messages to R.B. (Weatherford Decl., ¶ 15, Ex. 3.) Plaintiff however has found evidence collected through a previous subpoena that suggests otherwise. (Id. at ¶¶ 5-6.) This goes directly to Defendant’s credibility.

Defendant also contends that disclosure would violate his right of privacy. Again, however, the constitutional right of privacy is not absolute; it may be abridged when there is a compelling state interest. Inquiry into one’s private affairs will not be constitutionally justified simply because the inadmissible and irrelevant matter sought might lead to other relevant evidence. The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. If an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the “least intrusive means” to satisfy the interest. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855.)

Here, the Plaintiff has demonstrated a compelling need for the file because the file contains statements made by potential percipient witnesses.

Accordingly, the motion is DENIED.

Case Number: ****4038    Hearing Date: November 27, 2019    Dept: O

Defendant Covina Valley Unified School District’s motion to compel the deposition of Plaintiff’s mother, Linda S., is CONTINUED to December 20, 2019.

Defendant Covina Valley Unified School District (“Defendant”) moves to compel Plaintiff’s mother, Linda S. (“Linda S.”) to appear and testify at deposition pursuant to Code of Civil Procedure section 2025.450.

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. (CCP ; 2025.450(a).) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice; and shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP ; 2025.450(b).)

Defendant contends that it has been attempting to take the deposition of Linda S. for about a year, but the deposition has been cancelled and rescheduled numerous times. (See Declaration of Arseneaux Evenstad ¶¶ 3-12.) Plaintiff contends that the cancelling and rescheduling of the depositions were mostly due to Defendant’s actions, and that the deposition has already been rescheduled to December 17, 2019, but Defendant refuses to take this motion off calendar. (See Declaration of Natalie Weatherford ¶¶ 9, 12-15.) Defendant further stated in its Reply that it had offered to take this motion off calendar if Plaintiff’s attorney produced the witness for her deposition prior to the date of the hearing of this motion, but the offer was refused. (Reply, 2:18-20.)

Given that the deposition has been re-scheduled by the parties, it is unclear what Defendant is requesting as relief. Thus, the motion is CONTINUED to December 20, 2019.