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PLEASE NOTE: If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6729  and all other opposing parties of your intent to appear by 4:00 p.m. the court day immediately before the day of the hearing.

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The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6729 and all other opposing parties of your intent to appear by 4:00 p.m. the court day immediately before the day of the hearing. Parties in motions for claims of exemption are exempt from this requirement.

PLEASE NOTE: The Court’s Official Court Reporters are “not available” within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases.

Tentative Rulings

Wednesday, June 12, 2024
3:00 p.m.

Hon. Patrick M. Broderick

​​1. 23CV00984, Looney v Robinson

This matter is on calendar for the motion of Plaintiff Gary E. Looney, dba Collectronics of California (“Plaintiff”) for an order compelling Defendant Irma Robinson, individually and as personal guarantor of Smoke Open Fire Cooking, Inc. (“Defendant”), to furnish responses to Plaintiff’s First Set of Post Judgment Interrogatories and Plaintiff’s Post Judgment Demand for Production of Documents and Tangible Things. Plaintiff requests sanctions in the amount of $60. The motion is GRANTED. Defendant is ordered to provide responses, without objections, to Plaintiff’s discovery requests within 15 days of the service of this order, and to pay sanctions within 30 days of this order.

On January 16, 2024, Plaintiff obtained a judgment against Defendant in the amount of $2,960.32. On January 29, 2024, Plaintiff served Defendant with form interrogatories and a request for production of documents. (Looney Decl. ¶1, Ex. A.) As of the date of the motion, no responses have been provided. (Id., at ¶¶2, 3.)

The motion is GRANTED. Plaintiff is directed to submit a written order to the Court consistent with this tentative ruling.

 

 

2. 24CV00804, Countryside MHP LLC v City of Cotati

Defendant City of Cotati (“City”) demurs to the first through fourth causes of action alleged in the complaint filed by Plaintiff Countryside MHP LLC (“Plaintiff”) on the grounds that each fails to state facts sufficient to constitute a cause of action.

            Plaintiff’s complaint alleges that in March 2014, Plaintiff acquired the Countryside Mobile Home Park (“the Park”), which has 33 spaces. Plaintiff alleges that until recently, the Park was operating de facto “seniors only” park, and the Park’s rules stated at least one resident of a mobile home at the Park must be 55 years old or older. The complaint states that since Plaintiff acquired the Park, it has not complied with the requirements of 42 U.S.C. section 3607(b)(2)(iii) because it has not verified the ages of residents at the Park. In addition, neither the Park’s leases nor its rules ever guaranteed that the Park would remain seniors only in perpetuity. Plaintiff alleges the Park’s residents are nearly all non-Hispanic and White in a city where nearly 76.6% of the population is non-Hispanic White and 18.8% is Hispanic/Latino. Plaintiff alleges almost 20% of the City’s population is under 18 years of age, and only 14.4% is 65 years and over.

            In 2023, Plaintiff made the decision to open the Park to families with children. This decision was driven by the economic challenges faced by the Park and a desire to address the shortage of affordable housing for all age groups and racial/ethnic backgrounds in Cotati. The Park recognizes that the need for such affordable housing extends beyond the White-senior demographic.  Plaintiff gave Park residents notice of the change on July 26, 2023. A meeting was held with Park residents on August 10, 2023. The effective rules were mailed to residents on September 13 and the “seniors only” sign placed at the Park’s entrance was removed on September 19. The new Park rules allowing families with children will become effective on February 15, 2024.

            At its September 12, 2023, the City County adopted an interim urgency ordinance making it immediately unlawful for Countryside to convert a senior mobile home park to any other use, including as an “all ages” mobile home park. The interim urgency ordinance was supposed to last 45 days, but it was extended for a period of twenty-two months and fifteen days while the City drafted and adopted a permanent ordinance.

            On December 12, 2023, the City Council adopted Ordinance No. 923, amending the Mobile home Park Overlay Zone (Section 17.28.080 of the City Code) to establish the “Senior Mobile home Park Overlay Zone.” Ordinance No. 923 amends sections 17.20.020, 17.28.030, and 17.90.020 of Title 17 (Land Use) of the City Code, and amends the City’s Zoning Map, to designate the Park—and only the Park—with the “Senior Mobile home Park (MHP-S) Overlay Zone.

            Plaintiff’s complaint alleges causes of action for: 1) Facial and As-Applied Violation of the Fair Housing Amendments Act; 2) Violation of Cal. Gov. Code section 12955 (Disparate Impact); 3) Violation of Cal. Gov. Code section 12955 (“Familial Status Discrimination”); and 4) Violation of Cal. Gov. Code section 65008 (Zoning Discrimination).

  1. Facial and As-Applied Violation of the Fair Housing Amendments Act

Plaintiff’s first cause of action alleges that the Fair Housing Amendments Act (“FHAA”) prohibits the City from discriminating on the basis of familial status. It alleges that pursuant to 42 U.S.C. section 3615, any state or local law that purports to require or permit any action that would be a discriminatory housing practice is invalid. Plaintiff alleges that the Park has been legally and de facto operating as an all-ages park since before the Ordinance passed.

Title 42 of the Public Health and Welfare Code contains the United States Fair Housing Code which declares that the policy of the United States is for fair housing throughout the country. As to Title 42’s effect on state laws, it provides: “[A]ny law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.” (42 U.S.C. § 3615.) Section 3604 prohibits discrimination in the sale or rental of housing because of race, color, religion, sex, familial status, or national origin.

The City argues that the “older persons” exemption in 42 U.S.C. section 3607 is applicable here. That code section provides that the discriminatory prohibition based upon familial status does not apply with respect to housing for older persons. As applicable to this case, “housing for older persons” means housing:

(C) intended and operated for occupancy by persons 55 years of age or older, and-

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall--

(I) provide for verification by reliable surveys and affidavits; and

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification. (“housing for older people” or “HOPA.”)

  1. Housing Facility or Community

The complaint alleges that the “older persons” exemption from FHAA’s ban on familial status discrimination does not apply because the FHAA states that only a “housing facility or community” capable of ““publish[ing] or adher[ing] to policies and procedures,” and of “compl[ying]” with HUD rules for the “verification of occupancy” can invoke the “older persons” exemption. (42 U.S.C. § 3607(b)(2).) Plaintiff argues that, as defined, the City is neither a “housing facility” nor a “community” so that it cannot invoke the exemption and, therefore, the Ordinance violates the FHAA.

            The City argues that it qualifies as a “housing facility” under HOPA and that the Ordinance satisfies the older persons’ exemption requirements codified in 42 U.S.C. section 3607(b)(2)(C). The City cites Putnam Family Partnership v. City of Yucaipa, Cal. (9th Cir. 2012) 673 F.3d 920 (“Putnam”), which found that the FHAA is silent on whether such senior-housing zones are permissible, and that federal regulations allow for them. Therefore, the appellate court affirmed the trial court’s dismissal of the mobile home park’s suit against a city’s ordinance which prohibited mobile homes that were operating as senior housing from converting to all-age housing.

In 1999, HUD issued regulations interpreting the amended senior exemption. The agency defined “housing facility or community” as “any dwelling or group of dwelling units governed by a common set of rules, regulations or restrictions.” (24 C.F.R. § 100.304(b).) As an example of a community, HUD included “[a] municipally zoned area.” (Putnam, supra, 673 F.3d at pg. 927.) By including “[a] municipally zoned area” as an example of a “housing facility or community” that can qualify for the senior exemption, the HUD regulations clearly allow city-zoned senior housing. (See 24 C.F.R. § 100.304(b).) Further, HUD has explained that a housing facility or community satisfies the senior exemption's intent requirement if, inter alia, “[z]oning requirements include the 55–or–older requirement” and “[z]oning maps containing the ‘senior housing’ designation are available to the public.” (Putnam, supra, at pg. 928, citing 64 Fed.Reg. at 16332 ex. 2.) Therefore, the City’s zoned area for senior housing qualifies as a housing facility or community.

  1. Intent to operate as housing for older persons

Plaintiff argues that it lacks the requisite intent to operate as housing for older persons.

            HUD regulations explained how a housing facility or community could satisfy the senior exemption's requirement that it “publish and adhere to policies and procedures that demonstrate its intent to operate as [senior] housing.” (24 C.F.R. § 100.306.) In an appendix to the final rule intended “to provide guidance to housing facilities or communities in applying these HUD requirements,” the agency listed specific examples of how various facilities and communities could meet this intent requirement. (Putnam, supra, at 927, citing 64 Fed.Reg. 16324, 16331, 16332 (Apr. 2, 1999).)

One such example dealt with a zoned area: An area zoned by a unit of local government as “senior housing” satisfies the intent requirement if: (1) Zoning maps containing the “senior housing” designation are available to the public; (2) Literature distributed by the area describes it as “senior housing”; (3) The “senior housing” designation is recorded in accordance with local property recording statutes; and (4) Zoning requirements include the 55–or–older requirement or a similar provision. (24 C.F.R. § 16332 ex. 2.) The appendix also explained that, overall, the regulations were intended to reflect HOPA's goal of “protect[ing] senior housing.” (Id. at §16325.)

The amended statutes establish that it can be the City which has the requisite intent to provide senior housing. (Putnam, supra. at 928.) If the requirements for the senior exemption are met, any limitations that the Ordinance places on Plaintiff’s ability to rent units in the Park are lawful under the FHAA and Plaintiff has thus failed to state a claim for its violation. (See Putnam, supra, at 927.) However, pre-Ordinance, it could only have been Plaintiff’s intent to provide senior housing that mattered. The City’s intent, post-Ordinance, to have the Park limited to senior housing does not fix the issue alleged by Plaintiff—that they had not complied with HUD requirements and had thus become a de facto all-ages park.

  1. Establishing requirements for exemption

Plaintiff argues that, in Putnam, it was uncontested that Putnam met the requirements for the federal senior exemption and operated as senior housing. (Id., at pg. 928, fn. 3.) The First Amended Complaint stated that, as of the filing of that complaint, none of the park owners had “actually cho[sen] to amend their rules and regulations to allow for ‘familial status' housing.” (Ibid.) It was Putnam’s assertion that it has the right to convert to all-age housing. (Ibid.) The Putnam court stated that “[e]ven if Putnam's litigation position signals an abandonment of its historical intent to operate as senior housing, it is still uncontested that the other requirements—an eighty-percent senior population, adherence to published policies and procedures, and compliance with HUD age-verification rules—are currently met.” (Ibid.)

The court further noted that “[a] different question may be presented if the Ordinance required parks that did not already maintain an eighty-percent senior population or describe themselves as senior parks to do so, but we leave that question for another day. We do note, however, that the fact that Putnam already operates as senior housing in compliance with the federal senior exemption further distinguishes this case from our pre-HOPA decision in City of Hayward, 36 F.3d at 836–38.” (Ibid.)

In reply, the City notes that Plaintiff’s complaint admits that its residents are nearly 100% aged 55 or older. (Complaint. ¶18.) It wasn’t until June 2023 that the Park removed its sign at the entrance specifying that it was a “Community for Older Persons.” (Id., ¶21.) The Park’s rules and regulations required that at least one occupant in each household to be age 55 or older. (Id., at 16.) It was not until July 21, 2023, that Plaintiff’s representative met with Park residents to discuss the Park’s decision to become an all-age park, and the final copy of the new rules and regulations was served on residents on July 26, 2023. (Id., ¶21.) 

Pursuant to Civil Code section 798.25, “Except as provided in subdivision (d) following the meeting and consultation with the homeowners, the noticed amendment to the park's rules and regulations may be implemented, as to any homeowner, with the consent of that homeowner, or without the homeowner's consent upon written notice of not less than six months, except for regulations applicable to recreational facilities, which may be amended without homeowner consent upon written notice of not less than 60 days.” Thus, the City argues that the Park was still operating as a community for older persons at the time the Ordinance was adopted such that Putnam is directly on point. And, since the Ordinance has taken effect, Plaintiff may not change to an all-ages park.

However, the complaint also alleges that the Park has was a de facto all-age park because it did not comply with requirements of 42 U.S.C. § 3670(b)(2) for verifying the ages of residents at the park. (Complaint, ¶16.) In addition, it alleges residents’ leases did not guarantee to any that the Park would remain “seniors only” in perpetuity. (Complaint, ¶17.)

As noted by Plaintiff in opposition, the FHAA allows discrimination based upon age if the senior exemption requirements are met. It argues that, because it did not verify age requirements and therefore did not comply with senior exemption requirements, it was not lawfully operating as a park for older persons such that the City cannot now adopt an Ordinance to require the Park to comply with senior exemption requirements.

Putnam did not deal with the situation where the pre-Ordinance housing facility or community did not comply with federal regulations including verification of occupancy by persons 55 years or older. In Waterhouse v. City of American Canyon (N.D. Cal., June 6, 2011, No. C 10-01090 WHA) 2011 WL 2197977, the court found the City of American Canyon violated the Fair Housing Act by applying a zoning overlay to mobile homes to keep senior housing. This was the case because the mobile home park had never met the conditions for exemption to qualify as housing for older persons.

In addition, “[a]s the HOPA exemption is an affirmative defense, [defendant] bears the burden of establishing that [the subject development] satisfies each of the HOPA requirements.” (Waterhouse v. City of American Canyon, supra, at *6.)

The City has acknowledged that housing can be determined to be “housing for older persons” if it meets three requirements: 1) At least 80% of occupied units must be inhabited by at least one resident over the age of 55; 2) The establishment must publish and adhere to policies and procedures demonstrating its intent to operate as housing for older persons; and, 3) Provide verification to the Department of Housing and Urban Development (“HUD”)(42 U.S.C. § 3607(b)(2)(C)). The City has not cited authority that a housing facility can be determined to have been “housing for older persons” merely because it was close to 100% senior occupancy even if it did not comply with the second and third HUD requirements.

While it may be the City’s intent for the Park to provide senior housing, the City has not established that it may force Plaintiff to provide senior housing when Plaintiff alleges it has not qualified for the senior exemption since at least 2014. Therefore, the City has not met its burden on this issue. Moreover, the establishment of compliance with the exemption is an affirmative defense and not grounds for demurrer.

For the reasons stated above, the demurrer to this cause of action is OVERRULED.

  1. Third Cause of Action – Violation of Cal. Gov. Code section 12955 (“Familial Status Discrimination”)

Plaintiff’s third cause of action alleges that the FEHA prohibits owners and persons of housing accommodations from discriminating against any person because of his or her familial status. (Gov. Code section 12955(a).) The City argues that this cause of action is meritless for the same reasons asserted as to Plaintiff’s first cause of action. The FEHA also exempts senior mobile home parks from familial status violations if they qualify for the FHA’s senior exemption. (Gov. Code section 12955.9(a),(b)(3).) The City also cites Health & Saf. Code section 18300(g)(1) which specifically allows a city to establish zones for senior mobile home parks.

However, the same issue arises in that Plaintiff alleges it has not complied with the older persons’ housing exemptions. In addition, compliance is an affirmative defense. Therefore, the demurrer to this cause of action is OVERRULED.

  1. Second Cause of Action – Violation of Cal. Gov. Code section 12955 (Disparate Impact)

This cause of action alleges that the Ordinance, while outwardly neutral with regard to race and other protected characteristics aside from age, has or will have a significant, adverse, and disproportionate effect on racial minorities in the community seeking to rent at a mobile home park. This cause of action alleges that, based upon the past operation as a community for older persons, the Park already has lopsided demographics, “with nearly 100% of the park residents being Caucasian adults aged 55 or older.” (Complaint, ¶47.) Plaintiff alleges that the “City is actually comprised of nearly 22% Hispanic or Latino residents, and 10.3% of the residents are from other racial or ethnic groups that are not White. In its application, the Ordinance overwhelmingly favors White residents at the expense of the Non-White population of the City.” (Ibid.)

The FEHA makes it unlawful for the City to “discriminate through public ... land use practices, decisions, and authorizations because of” protected characteristics, including race and source of income. (Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 268.)

Subdivision (a) of section 12955.8 addresses how to prove “an intentional violation” of the housing discrimination provisions. Subdivision (b) of section 12955.8 provides proof of a violation causing a discriminatory effect is shown if an act or failure to act that is otherwise covered under the Housing Discrimination statute has the effect of unlawfully discriminating on the basis of a protected category, including race. “In cases that do not involve a business establishment, the person whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of this part if the person can establish that the action or inaction is necessary to achieve an important purpose sufficiently compelling to override the discriminatory effect and effectively carries out the purpose it is alleged to serve.” (Gov. Code section 12955.8(b).) “Any determination of a violation pursuant to this subdivision shall consider whether or not there are feasible alternatives that would equally well or better accomplish the purpose advanced with a less discriminatory effect.” (Gov. Code section 12955.8(b)(1).)

In Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 258, the acts and omissions constituting the unlawful practice were identified in Martinez's allegation that the City failed to accommodate and to provide opportunities to develop lower income housing “through its failure to comply with Housing Element Law.” The failures to comply with the Housing Element Law were alleged in detail in Martinez's first three causes of action and those allegations were incorporated into her fifth cause of action alleging a violation of the FHA. (Ibid.) As Martinez alleged a cause of action under the FHA, she also alleged a cause of action under the FEHA. (Id., at 271.) 

“[D]isparate-impact liability has always been properly limited in key respects” to avoid the serious problems that would ensue “if such liability were imposed based solely on a showing of a statistical disparity.” (Mahler v. Judicial Council of California (2021) 67 Cal.App.5th 82, 112.) “[A] disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity,” and “[a] robust causality requirement” ensures that a disparity, alone, “ ‘does not, without more, establish a prima facie case of disparate impact.’ ” (Id., at 113.) [S]tatistical disparities must be sufficiently substantial that they raise such an inference of causation.” ’ ” (Ibid.) The complaint must allege facts or statistical evidence demonstrating a causal connection between the challenged policy and a significant disparate impact on the allegedly protected group. (Id., at 114.)

The Mahler court noted several cases which failed to properly allege a disparate impact claim: “Adams v. City of Indianapolis (7th Cir. 2014) 742 F.3d 720, 733 [complaint suffered from “complete lack of factual content directed at disparate-impact liability”; there were no “allegations about the number of applicants and the racial makeup of the applicant pool as compared to the candidates promoted” or the “department as a whole,” “no allegations about the racial makeup of the relevant workforce” or “the supervisory ranks” in the departments, and “no factual allegations tending to show a causal link between the challenged testing protocols and a statistically significant racial imbalance” in the higher ranks]; Garay, supra, 2017 WL 5473887 *3 [“disparate impact claim is properly dismissed at the pleading state when it lacks ‘basic allegations’ regarding statistical methods and comparison, or ‘any other factual material to move the disparate-impact claim over the plausibility threshold’ ”; amended complaint “provide[d] only the conclusory allegation that the policy-driven terminations” fell more heavily on older workers and did not “allege how many people [were] employed by Lowes, how many total people ha[d] quit or been fired over the same four-year period, the ages of those who quit or were fired, or any other information that would allow the Court to reasonably connect [the] fifteen terminations [of older workers] to the alleged policy or policies”]; Jianqing Wu v. Special Counsel, Inc. (D.D.C. 2014) 54 F.Supp.3d 48, 55 [“speculative correlation between age and experience” is “insufficient to state a claim for disparate impact”; at a minimum, plaintiff was required to proffer “some form of statistical or anecdotal evidence showing that older candidates were being excluded systematically”].) (Mahler, supra, at 114-115.)

Similarly, in Mahler, the allegations were insufficient as, for example, there were “no specifics as to the total number of participants in the [Temporary Assigned Judges Program], or the number of participants allegedly adversely impacted by the challenged changes to the program, or even the age ‘group’ allegedly adversely impacted. Nor are there any ‘basic allegations’ of statistical methods and comparison, or even any anecdotal information of a significant age-based disparity.” (Id., at 115.)

Here, the complaint alleges that the Park is nearly 100% non-Hispanic or Latino Caucasian adults aged 55 or older, even though the City is comprised of nearly 22% Hispanic or Latino residents, and 10.3% from non-White racial or ethnic groups.

“Caucasian,” and “Hispanic” and “Latino” are not mutually exclusive as “Hispanic” and “Latino” are not racial categories. Discriminatory impact would be more accurately stated as being based upon ancestry and/or national origin. Regardless, the only substantive allegations are that because the City’s older residents are disproportionately White [and non-Hispanic and non-Latino], the Ordinance will disproportionally affect Hispanic and Latino residents and non-White residents. These allegations are insufficient as they do not have any substantive support establishing how the Ordinance will cause disparate impacts for Hispanic, Latino, and non-White residents who are 55 years and older. Accordingly, the demurrer to this cause of action is SUSTAINED with leave to amend.

  1. Fourth Cause of Action – Violation of Cal. Gov. Code section 65008 (Zoning Discrimination).

Section 65008 prohibits zoning discrimination. This cause of action is based upon the same allegations of disparate impact; that the Ordinance disproportionately impacts residents on the basis of race. It also, therefore, fails for the same reasons as stated above. Accordingly, the demurrer to this cause of action is SUSTAINED with leave to amend.

  1. Conclusion and Order

The demurrer to the first and third causes of action is OVERRULED. The demurrer to the second and fourth causes of action is SUSTAINED with leave to amend.

­­­­­­­­­­            The City’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.

 

3. 24CV02995, Bellevue Union School District v All Persons Interested in the Matter of the Validity of Proceedings re

APPEARANCE REQUIRED per the 06/06/24 denial order setting this hearing. 

 

 

4. SCV-270409, Fischer v Fischer

Court-appointed Receiver Randy Sugarman (“Receiver”) moves for an order authorizing him to appear and defend Case No. 24CV00649, Reynaud Trust v. C.J. Fischer, LLC, an unlawful detainer action relating to real property located at 2475 and 2487 Bluebell Drive in Santa Rosa (“the Property”), to commence with advice of counsel, legal action to enforce the terms of the recorded option agreement. The Receiver also seeks modification of the Order entered January 29, 2024 authorizing employment of counsel insofar as the cap established on counsel's fees so as to enable counsel for Receiver to be compensated for services rendered. These issues were decided via ex parte application on April 11, 2024. Accordingly, the motion is DROPPED as MOOT. ­­­­­­­­

 

5. SCV-272344, Wilde v Morrone

Plaintiffs Jane Doe 1, Jane Doe 2, Linnet Vacha, Clio Wilde, Savannah Turley, Morgan Apostle, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, and Hannah Holt (“Plaintiffs”) move for a protective order regarding thirty-four (34) subpoenas for Plaintiffs’ medical records issued by Defendant Ellie Dwight. The motion is CONTINUED to July 17, 2024, at 3:00 p.m., in Department 16. Counsel for Defendants Sonoma Academy and Ellie Dwight are directed to provide further briefing—limited to five pages, and filed and served at least nine court days prior to the hearing—regarding the need for the requested records. Plaintiff may file a further response—limited to five pages, and filed and served at least five court days prior to the hearing. The parties are also ordered to meet and confer regarding the appropriate scope of discovery of Plaintiffs’ medical records in this case to determine if they can reach a reasonable compromise.

            This suit arises from the alleged repeated failure of defendant Sonoma Academy and its administrators, defendants Janet Durgin and Ellie Dwight, to protect under-age female students from childhood sexual assault by its faculty members Marco Morrone and Adrian Belic, as well as defendants’ alleged cover-up of incidents of sexual assault of female students by male students.

            Defendant Ellie Dwight served thirty-four subpoenas seeking production of medical records without limitation for eight of the twelve Plaintiffs. Plaintiffs do not argue that no records should be produced, only that there should be a mechanism to prevent disclosure of some highly sensitive, private information that Defendants are not entitled to.

            Plaintiffs argue that CCP section 2017.020 allowed this court to issue a protective order requiring a “first look agreement. CCP section 2017.020(a) provides:

The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

The court must carefully balance the right of privacy against the need for discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)  The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Ibid.) The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Ibid.) The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Ibid.) A court must then balance these competing considerations. (Ibid.) disclosure may be ordered if a “compelling public interest” would be served thereby. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855, 855-856.)

The records sought in 28 of the subpoenas seek: “Any and all records, documents, reports, psychiatric reports, psychological evaluation, treatment for alcohol, drug related disorders, including doctors entries, nurses charts, progress reports, lab reports, special tests and any sign-in sheets pertaining to the care and treatment, diagnosis, prognosis, condition, discharge, and statement of charges, payment of charges, whether rendered to or by the below named individual or any insurance or other entity, affecting or relating to [Plaintiff’s name and DOB].”

The other eight subpoenas seek: “Any and all records, including but not limited to health insurance claim information such as receipts, invoices, and computer generated ledgers with the names and addresses of the treating healthcare providers, dates of treatment, descriptions of services provided, amounts billed by the healthcare provider, amounts paid as payment in full to the healthcare provider, amounts not paid to the healthcare provider, amounts paid by the insured, reimbursements of any sort, and any agreements with the healthcare provider describing the amounts and/or percentages that your company will pay as payment in full for treatment rendered to [Plaintiff’s name and DOB].”

Plaintiffs object to allowing the discovery of all the requested documents as they argue the requests are overbroad. At the same time, Plaintiffs recognize that Defendants have a right to discover information related to Plaintiffs’ claims of emotional distress. Plaintiffs request the Court issue a protective order requiring Defendants submit to a “First Look Agreement” of Plaintiffs’ medical records. The thirty-four subpoenas to health care providers including therapists contain no limitations whatsoever and likely contain highly private and irrelevant information involving Plaintiffs’ sexual history, contraception use, gynecological issues, couples therapy issues, third-party medical histories, and other information to which Defendants are not entitled in this action.

The mere initiation of a sexual harassment suit, even with allegations of extreme mental and emotional damage, does not waive all privacy rights. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841.) However, privacy interests may have to give way to Defendants’ right to a fair trial. (Id., at 842.) Defendants must be able to discover relevant facts. (Ibid.)

Here, Defendants are seeking a broad range of Plaintiffs’ medical and mental health records as well as health insurance claims. It is not clear that any of this information will be relevant. And, as it pertains to personal medical information, it is covered by Plaintiffs’ right to privacy.

In opposition, Defendants have not justified the reason or need for such a broad discovery request. Rather, they merely argue that a “first look” proposal has never been discussed in any California case and that the method outweighs any advantage. Defendant argues that the parties should enter into an agreement allowing discovery of the entirety of the requests for “attorney eyes only.” This does not solve the problem of disallowing discovery of irrelevant private information.

Neither method proposed by the parties appears satisfactory. As the subpoenas are overly broad and Defendants have not justified the need for all of Plaintiff’s medical records, the court may construe this motion as a motion to quash. However, the court deems it appropriate to give Defendants sufficient notice and time to allow them to adequately address the need for the records sought. Accordingly, the motion is CONTINUED to July 17, 2024, at 3:00 p.m., in Department 16. Defendants shall provide further briefing—limited to five pages and filed and served at least nine court days prior to the hearing—regarding the need for the requested records. Plaintiff may file a further response—limited to five pages and filed and served at least five court days prior to the hearing. The parties are also ordered to meet and confer regarding the appropriate scope of discovery of Plaintiffs’ medical records in this case to determine if they can reach a reasonable compromise.

6. SCV-273008, Bullock v State of California

This matter is continued from last week’s law and motion calendar for argument.

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