Jane Doe vs James Balster et al

Case Number

22CV04861

Case Type

Hearing Date / Time

Fri, 05/17/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For the reasons set forth herein:

1. Plaintiff’s motion to compel further responses to requests for production of documents, production of the documents, and for sanctions is granted.
2. Cecilia Balster shall serve code compliant written responses to the requests for production of documents, without objection, no later than May 31, 2024.
3. Cecilia Balster shall serve the responsive documents with the written responses, no later than May 31, 2024.
4. Sanctions are awarded in favor of plaintiff and against Cecilia Balster and Thyne Taylor Fox Howard, LLP, in the amount of $2,535.00, jointly and severally, to be paid to plaintiff’s counsel no later than May 31, 2024.

Background:

This action was commenced on December 12, 2022, by plaintiff Jane Doe against defendants James Balster (“J. Balster”) and Cecilia Balster (“C. Balster”) setting forth causes of action for: (1) Childhood sexual assault; (2) Intentional infliction of emotional distress; (3) Sexual assault and battery; (4) Violation of Civil Code section 1708.5; (5) Violation of Civil Code section 52.4; and (6) Negligence.

As alleged in the complaint:

“JANE DOE was the victim of unlawful childhood sexual assault and other misconduct by J. Balster, her step-grandfather who was married to Plaintiff’s grandmother, C. Balster, during the 2001-2003 time period. The sexual assaults and abuse occurred and started during 2001 when Plaintiff was five years old. Upon information and belief, J. Balster was in his mid-forties at the time the sexual assaults and abuse started. The sexual assaults and abuse continued for some years when Plaintiff was approximately five through seven years old.” (Compl., ¶ 10.)

“Defendant J. Balster and C. Balster were married and had a home in Santa Barbara where the sexual assaults occurred. During the relevant time period, Plaintiff would visit the Defendants frequently and would often sleep over at their home. There were at least ten occasions during that time period that Plaintiff remembers J. Balster sexually assaulting and abusing her while she was at Defendants’ home.” (Compl., ¶ 11.)

“Plaintiff is informed and believes, and thereon alleges, that during this period, C. Balster was aware of her husband’s propensities and that these propensities created an unreasonable risk of harm to the Plaintiff. In point of fact, C. Balster took steps that acted to conceal and coverup J. Balster’s conduct thus exacerbating the risk of harm to the Plaintiff and other victims.” (Compl., ¶ 12.)

The sole cause of action asserted against C. Balster is negligence. C. Balster filed her answer to the complaint on February 2, 2023, setting forth a general denial and asserting six affirmative defenses.

Default judgment was entered against J. Balster on January 8, 2024.

On January 8, 2024, plaintiff served demand for production of documents, set one, on C. Balster. (Woosley Dec., ¶ 3 & Exh. A.) On February 14, 2024, C. Balster served responses. (Woosley Dec., ¶ 4 & Exh. B.)

Following unsuccessful meet and confer attempts, plaintiff served the present motion to compel further responses to the demand for production of documents, production of the documents, and sanctions.

C. Balster has filed no opposition or other response to the motion.

Analysis:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

Code of Civil Procedure, section 2031.010 provides, in pertinent part:

“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.

“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

There are two demands for production at issue: (1) “Any and all homeowner insurance policies you and/or James Balster had in place for 1024 Diamond Crest Court, Santa Barbara, California, at any time between the date you acquired it until the date you sold it.” (2) “Any and all umbrella liability insurance policies you and/or James Balster had in place between 1999 and 2022 inclusive.”

“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 by 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.” (Code Civ. Proc. § 2031.210, subd. (a).)

Code of Civil Procedure section 2031.220 requires: “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.”

C. Balster provided the identical response for each demand for production: “Defendant has conducted a diligent search and asserts the following: Allstate Premium Co., Policy No. 027282673 from November 1999-May 2003. Homeowners insurance with Allied Insurance Co. on or about 2004-2015, Policy No. HMC 0040273592, Account No. 859624992.”

No documents were provided with C. Balster’s responses.

A motion to compel further responses to a demand for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 (Glenfed).) Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)

Plaintiff argues that the insurance policies are discoverable in the negligence cause of action in that plaintiff seeks to discover whether any insurance carrier may be liable to satisfy any judgment entered against C. Balster. Plaintiff has met her burden of establishing good cause. C. Balster has not asserted any objections or otherwise justified her failure to provide the requested documents.

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320. subd. (a).)

Pursuant to Code of Civil Procedure section 2031.260, subdivision (a), the documents were due to be produced no later than 30 days after service of the requests.

C. Balster will be ordered to provide code compliant written responses to the discovery in accordance with Code of Civil Procedure sections 2031.210 and 2031.220, without objection.

Further, C. Balster will be ordered to produce all responsive documents in her possession, custody, or control.

            Sanctions

Plaintiff seeks monetary sanctions of $3,930.00 in connection with the present motion. (Woosley Dec., ¶ 10.) That amount is calculated as follows: .60 hours meeting and conferring with defense counsel at $450.00 per hour for a total of $270.00; 4.80 hours drafting the motion and separate statement at $450.00 per hour; 2.50 hours anticipated for reviewing opposition and drafting a reply at $450.00 per hour; .70 anticipated time reviewing the court’s tentative ruling on the motion and appearing at the hearing on the motion at $450.00 per hour; and $60.00 for the filing fee. (Ibid.)

The court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (Code Civ. Proc., § 2031.310.)

“Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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.” (Code Civ. Proc., § 2031.320, subd. (b).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

The court does not find that C. Balster acted with substantial justification in failing to produce the documents she identified or that other circumstances would make the imposition of sanctions unjust.

As noted, the motion is unopposed and therefore plaintiff did not incur fees for reviewing an opposition or preparing a reply. Reasonable time spent related to this motion is 4.8 hours for preparing the motion, .70 for reviewing this tentative and appearing at the hearing, and $60.00 for the filing fee. Sanctions in the amount of $2,535.00 will be granted in favor of plaintiff.