Monday, September 9, 2019
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Can’t Impose Discovery Sanction on Litigant Concerned Over Third-Party Privacy—C.A.
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has reversed a $5,740 award of sanctions against an apartment complex and others, along with their lawyers, based on a refusal to disclose, in an action by three tenants whose units were burglarized by the defendants’ handyman, the identities of other tenants known to have had possessions stolen from their units.
Plaintiffs Roberta Dobbins and others sought recompense from Las Colinas Senior Apartments based on its hiring of the thief, Jerod Keith Nielsen—a person who had been a drug addict and incurred a 2014 conviction for burglary—in a position where he had a master key to the units. Las Colinas balked at providing the identities, in response to an interrogatory, expressing its concern over the prospect of incurring liability for invading the privacy of other tenants who had been crime victims.
Riverside Superior Court Judge James T. Latting ordered a response to the interrogatory and imposed the sanction. He declared that Las Colinas “made no showing that a response would implicate, much less violate, a legally protected privacy right.”
‘Substantial Justification’
At issue in the appeal was an application of Code of Civil Procedure §2030.300(d) which mandates imposition of sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”
Presiding Justice Manuel A. Ramirez, in an opinion filed Thursday and not certified for publication, said that there was a “substantial justification” for the defendants’ nondisclosure “because they had a reasonable and well-grounded argument that the other tenants were entitled to notice and an opportunity to opt out before their contact information could be disclosed.”
Going beyond the immediate issue on appeal as to whether the sanction was justified, Ramirez faulted Latting for ordering a response to the interrogatory.
Dictum Inserted
Ramirez said, in dictum:
“[O]ther residents who were victims of Nielsen’s burglaries had a legally protected privacy interest in their contact information. This information was even more sensitive than usual, because it would identify them as crime victims. The trial court therefore erred by ruling that compelling a response to the interrogatory would not implicate any legally protected privacy interest.
“The other residents, however, had no reasonable expectation that that information would be withheld from Dobbins categorically (i.e., without notice and an opportunity to opt out).”
The case is Dobbins v. Kiner, E070924.
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