Preview
Jack W. Weaver, Esq., Bar No. 278469
1 Rachel M. Mackie, Esq. Bar No. 318461
2 WELTY, WEAVER & CURRIE
141 North Street, Suite 300
3 Santa Rosa, CA 95403
Tel: (707) 433-4842 Fax: (707) 473-9778
4 jack@weltyweaver.com
rachael@weltyweaver.com
5
6
Alexander M. Schack, Esq., Bar No. 99126
7 Natasha N. Serino, Esq., Bar No. 284711
Shannon F. Nocon, Esq., Bar No. 316523
8 SCHACK LAW GROUP
16870 West Bernardo Drive, Suite 400
9
San Diego, CA 92127
10 Tel: (858) 485-6535 Fax: (858) 485-0608
alexschack@schacklawgroup.com
11 natashaserino@schacklawgroup.com
shannonnocon@schacklawgroup.com
12
Attorneys for Plaintiffs
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 FOR THE COUNTY OF SONOMA
16 DAVID SUCHARD, JODY SUCHARD, Case No. SCV-270983
17 and Jane Doe, individually, and on behalf
of all others similarly situated, PLAINTIFF’S OPPOSITION TO
18 DEFENDANT’S SEPARATE STATEMENT
Plaintiffs,
19
v. Date: 7/5/2023
20 Time: 3:00 p.m.
21 SONOMA ACADEMY, a California non- Dept.: 19
profit; and DOES 1 through 500, Judge: Honorable Oscar A. Pardo
22
Defendants.
23
24
25
Plaintiffs submit the following Opposition to Defendant’s Separate Statement.
26
27
28 -1-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
I. SPECIAL INTERROGATORIES, SET ONE
1
2 SPECIAL INTERROGATORY NO. 1
3 For the period of January 1, 2002 to the present, IDENTIFY ANY AND ALL instances in
4 which YOU notified a Sonoma Academy tuition payer about a complaint of harassment against a
5 Sonoma Academy student by one of YOUR employees.
6 The terms “PERSON” or “PERSONS” shall mean and include any natural person, individual,
7 partnership, firm, association, governmental unit or department, corporation or any other kind of
8 business entity.
9 The use of the singular form of ANY word includes the plural and vice versa. “ANY” therefore
10 means “each, every, and ALL”. “All” includes ANY.
11 The connectives “AND” and “OR” shall be construed either disjunctively as necessary to
12 bring within the scope of these requests ALL information that might otherwise by construed to be
13 outside their scope.
14 The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT”
15 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any
16 of its present and former attorneys, investigators, owners, parents, subsidiaries, representatives,
17 trustees,
18 partners, parent corporations, presidents, principals, managers, members, successors, assigns,
19 predecessors, officers, directors, employees, agents, sales persons, attorneys, accountants, and all
20 other persons acting for or on its behalf.
21 RESPONSE NO. 1:
22 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and
23 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely
24 to harass and annoy Defendant; premature as it seeks the disclosure of merit-based information
25 before class certification; seeking the disclosure of information protected from disclosure by third-
26 party privacy rights; seeking confidential and trade secret information; seeking the disclosure of
27 information protected from disclosure by the attorney-client privilege and work product doctrine;
28 -2-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 and vague and ambiguous as to the terms and or phrases “Sonoma Academy tuition payer,”
2 “complaint,” and “harassment.”
3
4
Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 1
5
6 Courts are vested with considerable discretion to manage discovery. (Pomona Valley Hospital
7 Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is specifically
8 authorized to issue protective orders to protect parties from the burden and expense of discovery
9
procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court “may make
10
11 any order that justice requires to protect any party or other natural person or organization from
12 unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ.
13
Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to make whatever orders
14
are required, including excusing compliance with discovery requests altogether. (Code Civ. Proc., §
15
2030.090, subd. (b)(1).)
16
17 Prior to certification of a class, a party can be entitled to limited discovery on issues relevant
18 to certification “so that the trial court can realistically determine if common questions are
19 sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105
20 Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it
21 is certain that the case will be allowed to proceed as a class action; this is because a “motion to
22 certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th
23 239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was
24 raised as to its propriety.].)
25 Here, Special Interrogatory No. 1 pertains to communications regarding complaints of
26
harassment against Sonoma Academy students, inquiring into the knowledge Defendant would have
27
28 -3-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 had as to any harassment occurring at Sonoma Academy and if they had such knowledge, whether,
2 how, and when they communicated it to others. This interrogatory has nothing to do with class
3
certification and goes right into the merits of the case, which is not permitted.
4
Additionally, while prior to certification of a class, a party can be entitled to discovery on
5
6 issues relevant to certification, precertification class discovery is not a matter of right. (Starbucks
7 Corp. v. Sup. Ct. (2011) 194 Cal.App.4th 820, 825.) In deciding whether to order precertification
8
discovery, including discovery as to potential class members’ names, addresses, and other personal
9
10 information, a trial court must expressly identify any potential abuses of the class action procedure
11 that may be created if the discovery is permitted, such as the violation of privacy rights of putative
12
class members or third parties, and weigh the danger of such abuses against the rights of the parties
13
under the circumstances. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.) Where
14
privacy concerns are at issue, courts will not permit pre-certification class discovery. (See Starbucks
15
Corp., at pp. 827-828.)
16
17 Plaintiffs’ right to discovery is minimal, given that precertification discovery is not even a
18 matter of right. At the same time, the abuses of the class action procedure are immense. Plaintiffs
19 have brought a class action on behalf of an overbroad class of non-victims, tuition payers, based on
20
a smaller group of non-class members, the actual victims, and seek the discovery of highly private
21
22 information, including the name of individuals who made a complaint of harassment and the nature
23 of their complaint, even before the Court’s authorization that Plaintiffs’ pleadings have articulated
24 viable claims against Defendant. Putative class members and third parties have a substantial interest
25
in the privacy of their identity and contact information. (See Starbucks Corp. v. Sup. Ct., supra, 194
26
27 Cal.App.4th at pp. 827-828 [finding that discovery requiring Defendant to disclose class member
28 -4-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 identities could in no way pass the Parris balancing test, given how permitting this discovery would
2 allow putative class to be “outed,” violating their right of privacy]; Cal. Const, Art. I § 1; Life
3
Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-654 [overruled in part on
4
5 other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.].) Further, the right of
6 privacy that individuals are entitled to under the California Constitution extends to the details of
7 one’s personal life, including issues involving sex. (See Cal. Const, Art. I § 1; Vinson v. Sup.Ct.
8 (1987) 43 Cal.3d 833, 841 [validity question on other grounds by People v. Dixon (2007) 148
9 Cal.App.4th 414, 443]; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473.) No balancing by
10 the Court will permit this discovery.
11
Therefore, the Court should issue a Protective Order staying this Interrogatory until the
12
Court either certifies a class or finds that Plaintiffs’ claims are not class claims.
13
Reasons Why Special Interrogatory No. 1 Should Be Permitted:
14
There is no basis to ban the requested discovery prior to class certification, particularly where
15
16 Plaintiffs repeatedly stated they were agreeable to a protective order that redacted victim and Class
17 member information. Pursuant to the Civil Discovery Act, the default rule in this state is that a
18 “party may obtain discovery regarding any matter, not privileged, that is relevant to the subject
19 matter involved in the pending action or to the determination of any motion made in that action, if
20 the matter either is itself admissible in evidence or appears reasonable calculated to lead to the
21 discovery of admissible evidence.” (Code Civ. Proc., § 2017.010 (emphasis added).) Discovery may
22 therefore only be limited upon a showing of good cause and even then, restrictions should balance
23 the interests of all parties in a manner that facilitates the search for truth. (Stadish v. Superior Court
24 (1999) 71 Cal.App.4th 1130, 1145 [noting the standard is a preponderance of the evidence].) Under
25 this permissive discovery framework, there is no bar on merit-based discovery prior to class
26 certification. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 232-233.) In fact, it is an abuse
27 of discretion for a trial court to determine class certification without giving the parties an
28 -5-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 opportunity to conduct discovery on certification issues. (See Carabini v. Superior Court (1994) 26
2 Cal.App.4th 239, 244.)
3 Here, Special Interrogatory No. 1 is relevant to both class certification and the merits
4 because it seeks information about when Sonoma Academy (“SA”) learned of harassment by its
5 employees against SA students and when it notified putative class members about same. This
6 information is directly relevant to class certification and commonality. The crux of Plaintiffs’
7 claims for violation of California’s Unfair Competition Law (“UCL”), constructive fraud and
8 fraudulent concealment is that Sonoma Academy knew of faculty abuse against students, it failed to
9 disclose or report this information to the Class or law enforcement (despite a duty to do so), and it
10 profited handsomely from this concealment at the expense of tuition payers (i.e. the Class). (First
11 Amended Complaint at ¶ 5, 16, 57, 124.) As such, the discovery sought will go directly to common
12 questions of fact (i.e. when SA learned of misconduct and whether it uniformly failed to disclose
13 this information to the Class and authorities). This information is therefore relevant and
14 discoverable under Code Civ. Proc, § 2017.010.
15 The Parris balancing test referenced by Defendant further weighs in favor of the discovery
16 because Plaintiffs have agreed that Defendants can use redactions and/or pseudonyms to protect
17 victim and third party information. In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290,
18 the putative class representatives moved for leave to communicate with potential class
19 representatives prior to class certification and to compel discovery of their names and addresses.
20 The court held where parties seek discovery into the identities of class members, courts should
21 weigh the danger of potential abuses against the right of the parties to obtain the requested
22 information. (Id. at p. 300-301.) In this case, Plaintiffs are extremely mindful of the privacy of
23 potential victims of abuse and have repeatedly stated in meet and confer discussions that they will
24 agree to protections and/or redactions for sensitive/identity information. For example, with respect
25 to Special Interrogatory No. 1, Defendants could respond by stating on January 1, 2006, SA
26 received a complaint from Victim 1 alleging that Morrone sexually harassed him/her. Similarly,
27 with respect to the identity of putative class members who were allegedly notified of complaints by
28 -6-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 SA, Defendants can identify them by saying something like, “on January 1, 2006, SA notified
2 Putative Class Member 1 about sexual harassment complaints against Morrone via email.” Plaintiffs
3 are willing to temporarily reserve or table their right to seek the identity of these individuals upon a
4 showing of the substance and number of said communications.
5 Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, which Defendant cites, is
6 wholly distinguishable. In that case, class representatives brought claims against Starbucks alleging
7 the company’s job application violated provisions of the marijuana reform legislation that
8 prohibited employers from asking about convictions on job applications. (Id. at p. 822.) The court
9 held discovery into class members identities was not permitted in that case because it required
10 defendant to disclose job applicants with minor marijuana convictions, which was expressly
11 prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a statute
12 prohibiting disclosure of the information sought. Moreover, Plaintiffs have also stated they do not
13 require the specific identity of individuals or putative class members if Defendants will simply
14 identify them by “Tuition Payer 1” or “Victim 1”. Such measures would easily eliminate privacy
15 issues by keeping the identity of victims confidential while still allowing Plaintiffs to obtain
16 discovery on when defendant received complaints of harassment. As such, there is no basis to bar
17 the requested discovery.
18
19 SPECIAL INTERROGATORY NO. 2:
20
For the period of January 1, 2002 to the present, IDENTIFY ANY AND ALL instances in
21
which YOU notified a Sonoma Academy tuition payer about a complaint of inappropriate conduct
22
against a Sonoma Academy student by one of YOUR employees.
23
The term “IDENTIFY” shall mean to state the (1) name of the PERSON making the
24
25 complaint; (2) the date of the complaint; and (3) the nature of the complaint.
26
27
28 -7-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 The terms “PERSON” or “PERSONS” shall mean and include any natural person,
2 individual, partnership, firm, association, governmental unit or department, corporation or any other
3 kind of business entity.
4 The use of the singular form of ANY word includes the plural and vice versa. “ANY”
5 therefore means “each, every, and ALL”. “ALL” includes ANY.
6
The connectives “AND” and “OR” shall be construed either disjunctively or conjunctively
7
as necessary to bring within the scope of these requests ALL information that might otherwise by
8
construed to be outside their scope.
9
10 The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT”
11 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any of
12 its present and former attorneys, investigators, owners, parents, subsidiaries, representatives,
13 trustees, partners, parent corporations, presidents, principals, managers, members, successors,
14 assigns, predecessors, officers, directors, employees, agents, sales persons, attorneys, accountants,
15 and all other persons acting for or on its behalf.
16 RESPONSE NO. 2:
17 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and
18 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely
19 to harass and annoy Defendant; premature as it seeks the disclosure of merit-based information
20 before class certification; seeking the disclosure of information protected from disclosure by third-
21 party privacy rights; seeking confidential and trade secret information; seeking the disclosure of
22 information protected from disclosure by the attorney-client privilege and work product doctrine;
23 and vague and ambiguous as to the terms and or phrases “Sonoma Academy tuition payer,”
24 “complaint,” and “inappropriate conduct.”
25
Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 2
26
27
28 -8-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 Courts are vested with considerable discretion to manage discovery. (Pomona Valley
2 Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is
3 specifically authorized to issue protective orders to protect parties from the burden and expense of
4 discovery procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court
5 “may make any order that justice requires to protect any party or other natural person or
6 organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and
7 expense.” (Code Civ. Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to
8 make whatever orders are required, including excusing compliance with discovery requests
9 altogether. (Code Civ. Proc., § 2030.090, subd. (b)(1).)
10
Prior to certification of a class, a party can be entitled to limited discovery on issues relevant
11
to certification “so that the trial court can realistically determine if common questions are
12
sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105
13
Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it
14
is certain that the case will be allowed to proceed as a class action; this is because a “motion to
15
certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th
16
239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was
17
raised as to its propriety.].)
18
Here, Special Interrogatory No. 2 pertains to communications regarding complaints of
19
inappropriate conduct against Sonoma Academy students, inquiring into the knowledge Defendant
20
would have had as to any complaints and if they had such knowledge, whether, how, and when they
21
communicated it to others. This interrogatory has nothing to do with class certification and goes
22
right into the merits of the case, which is not permitted.
23
Additionally, while prior to certification of a class, a party can be entitled to discovery on
24
25 issues relevant to certification, precertification class discovery is not a matter of right. (Starbucks
26 Corp. v. Sup. Ct. (2011) 194 Cal.App.4th 820, 825.) In deciding whether to order precertification
27 discovery, including discovery as to potential class members’ names, addresses, and other personal
28 -9-
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 information, a trial court must expressly identify any potential abuses of the class action procedure
2 that may be created if the discovery is permitted, such as the violation of privacy rights of putative
3 class members or third parties, and weigh the danger of such abuses against the rights of the parties
4 under the circumstances. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.) Where
5 privacy concerns are at issue, courts will not permit pre-certification class discovery. (See Starbucks
6 Corp., at pp. 827-828.)
7 Plaintiffs’ right to discovery is minimal, given that precertification discovery is not even a
8 matter of right. At the same time, the abuses of the class action procedure are immense. Plaintiffs
9
have brought a class action on behalf of an overbroad class of non-victims, tuition payers, based on
10
a smaller group of non-class members, the actual victims, and seek the discovery of highly private
11
information, including the name of individuals who made a complaint of inappropriate conduct and
12
the nature of their complaint, even before the Court’s authorization that Plaintiffs’ pleadings have
13
articulated viable claims against Defendant. Putative class members and third parties have a
14
substantial interest in the privacy of their identity and contact information. (See Starbucks Corp. v.
15
Sup. Ct., supra, 194 Cal.App.4th at pp. 827-828 [finding that discovery requiring Defendant to
16
disclose class member identities could in no way pass the Parris balancing test, given how
17
permitting this discovery would allow putative class to be “outed,” violating their right of privacy];
18
Cal. Const, Art. I § 1; Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-
19 654 [overruled in part on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557,
20 fn. 8.].) Further, the right of privacy that individuals are entitled to under the California Constitution
21 extends to the details of one’s personal life, including issues involving sex. (See Cal. Const, Art. I §
22 1; Vinson v. Sup.Ct. (1987) 43 Cal.3d 833, 841 [validity question on other grounds by People v.
23 Dixon (2007) 148 Cal.App.4th 414, 443]; Boler v. Superior Court (1987) 201 Cal.App.3d 467,
24 473.) No balancing by the Court will permit this discovery.
25
Therefore, the Court should issue a Protective Order staying this Interrogatory until the
26
Court either certifies a class or finds that Plaintiffs’ claims are not class claims.
27
28 - 10 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 Reasons Why Special Interrogatory No. 2 Should Be Permitted
2 As with Special Interrogatory No. 1, there is also no basis to stay Special Interrogatory No. 2
3 prior to class certification given that Plaintiffs repeatedly stated they were agreeable to a protective
4 order that redacted and/or protected victim and Class member information. Pursuant to the Civil
5 Discovery Act, the default rule in this state is that a “party may obtain discovery regarding any
6 matter, not privileged, that is relevant to the subject matter involved in the pending action or to the
7 determination of any motion made in that action, if the matter either is itself admissible in evidence
8 or appears reasonable calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc.,
9
§ 2017.010 (emphasis added).) Discovery may therefore only be limited upon a showing of good
10
cause and even then, restrictions should balance the interests of all parties in a manner that
11
facilitates the search for truth. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145
12
[noting the standard is a preponderance of the evidence].) Under this permissive discovery
13
framework, there is no bar on merit-based discovery prior to class certification. (Stern v. Superior
14
Court (2003) 105 Cal.App.4th 223, 232-233.) In fact, it is an abuse of discretion for a trial court to
15
determine class certification without giving the parties an opportunity to conduct discovery on
16
certification issues. (See Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244.)
17
Here, Special Interrogatory No. 2 is relevant to both class certification and the merits
18
because it seeks information about when Sonoma Academy learned of inappropriate conduct by
19 Sonoma Academy employees and when it notified putative class members about same. This
20 information is directly relevant to class certification and commonality. The crux of Plaintiffs’
21 claims for violation of California’s Unfair Competition Law, constructive fraud and fraudulent
22 concealment is that Sonoma Academy knew of faculty abuse against students, it failed to disclose or
23 report this information to the Class or law enforcement (despite a duty to do so), and it profited
24 handsomely from this concealment at the expense of tuition payers (i.e. the Class). (First Amended
25 Complaint at ¶ 5, 16, 57, 124.) As such, the discovery sought will go directly to common questions
26 of fact (i.e. when SA learned of misconduct and whether it uniformly failed to disclose this
27
28 - 11 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 information to the Class and authorities). This information is therefore relevant and discoverable
2 under Code Civ. Proc, § 2017.010.
3 The Parris balancing test referenced by Defendant further weighs in favor of the discovery
4 because Plaintiffs have agreed that Defendants can use redactions and/or pseudonyms to protect
5 victim and third party information. In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290,
6 the putative class representatives moved for leave to communicate with potential class
7 representatives prior to class certification and to compel discovery of their names and addresses.
8 The court held where parties seek discovery into the identities of class members, courts should
9 weigh the danger of potential abuses against the right of the parties to obtain the requested
10 information. (Id. at p. 300-301.) In this case, Plaintiffs are extremely mindful of the privacy of
11 potential victims of abuse and have repeatedly stated in meet and confer discussions that they will
12 agree to protections and/or redactions for sensitive/identity information. For example, with respect
13 to Special Interrogatory No. 2, Defendants could respond by stating on January 1, 2006, SA
14 received a complaint from Victim 1 alleging that employee Morrone pinched her and/or otherwise
15 engaged in inappropriate conduct with her. Similarly, with respect to the identity of putative class
16 members who were allegedly notified of complaints by SA, Defendants can identify them by saying
17 something like, “on January 1, 2006, SA notified Putative Class Member 1 about inappropriate
18 conduct by faculty against SA students via email.” Plaintiffs are willing to temporarily reserve or
19 table their right to seek the identity of these individuals upon a showing of the substance and
20 number of said communications.
21 Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, which Defendant cites, is
22 wholly distinguishable. In that case, class representatives brought claims against Starbucks alleging
23 the company’s job application violated provisions of the marijuana reform legislation that
24 prohibited employers from asking about convictions on job applications. (Id. at p. 822.) The court
25 held discovery into class members identities was not permitted in that case because it required
26 defendant to disclose job applicants with minor marijuana convictions, which was expressly
27 prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a statute
28 - 12 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 prohibiting disclosure of the information sought. Moreover, Plaintiffs have also stated they do not
2 require the specific identity of individuals or putative class members if Defendants will simply
3 identify them by “Tuition Payer 1” or “Victim 1”. Such measures would easily eliminate privacy
4 issues by keeping the identity of victims confidential while still allowing Plaintiffs to obtain
5 discovery on when defendant received complaints of inappropriate conduct. As such, there is no
6 basis to bar the requested discovery.
7
8 SPECIAL INTERROGATORY NO. 3:
9
For the period of January 1, 2002 to the present, IDENTIFY ANY AND ALL instances in
10
which YOU notified a Sonoma Academy tuition payer about a complaint of abuse against a Sonoma
11
Academy student by one of YOUR employees.
12
The term “IDENTIFY” shall mean to state the (1) name of the PERSON making the
13
14 complaint; (2) the date of the complaint; and (3) the nature of the complaint.
15 The terms “PERSON” or “PERSONS” shall mean and include any natural person,
16 individual, partnership, firm, association, governmental unit or department, corporation or any other
17 kind of business entity.
18 The use of the singular form of ANY word includes the plural and vice versa. “ANY”
19 therefore means “each, every, and ALL”. “ALL” includes ANY.
20
The connectives “AND” and “OR” shall be construed either disjunctively or conjunctively
21
as necessary to bring within the scope of these requests ALL information that might otherwise by
22
construed to be outside their scope.
23
The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT”
24
25 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any of
26 its present and former attorneys, investigators, owners, parents, subsidiaries, representatives,
27 trustees, partners, parent corporations, presidents, principals, managers, members, successors,
28 - 13 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 assigns, predecessors, officers, directors, employees, agents, sales persons, attorneys, accountants,
2 and all other persons acting for or on its behalf.
3 RESPONSE NO. 3
4
Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and
5
time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely
6
to harass and annoy Defendant; premature as it seeks the disclosure of merit-based information
7
before class certification; seeking the disclosure of information protected from disclosure by third-
8
party privacy rights; seeking confidential and trade secret information; seeking the disclosure of
9
information protected from disclosure by the attorney-client privilege and work product doctrine;
10
and vague and ambiguous as to the terms and or phrases “Sonoma Academy tuition payer,”
11
“complaint,” and “abuse.”
12
13 Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 3
14 Courts are vested with considerable discretion to manage discovery. (Pomona Valley
15 Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is
16 specifically authorized to issue protective orders to protect parties from the burden and expense of
17 discovery procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court
18 “may make any order that justice requires to protect any party or other natural person or
19 organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and
20 expense.” (Code Civ. Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to
21 make whatever orders are required, including excusing compliance with discovery requests
22 altogether. (Code Civ. Proc., § 2030.090, subd. (b)(1).)
23 Prior to certification of a class, a party can be entitled to limited discovery on issues relevant
24 to certification “so that the trial court can realistically determine if common questions are
25 sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105
26 Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it
27 is certain that the case will be allowed to proceed as a class action; this is because a “motion to
28 - 14 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th
2 239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was
3 raised as to its propriety.].)
4 Here, Special Interrogatory No. 3 pertains to communications regarding complaints of abuse
5 against Sonoma Academy students, inquiring into the knowledge Defendant would have had as to
6 any complaints and if they had such knowledge, whether, how, and when they communicated it to
7 others. This interrogatory has nothing to do with class certification and goes right into the merits of
8 the case, which is not permitted.
9
Additionally, while prior to certification of a class, a party can be entitled to discovery on
10
issues relevant to certification, precertification class discovery is not a matter of right. (Starbucks
11
Corp. v. Sup. Ct. (2011) 194 Cal.App.4th 820, 825.) In deciding whether to order precertification
12
discovery, including discovery as to potential class members’ names, addresses, and other personal
13
information, a trial court must expressly identify any potential abuses of the class action procedure
14
that may be created if the discovery is permitted, such as the violation of privacy rights of putative
15
class members or third parties, and weigh the danger of such abuses against the rights of the parties
16
under the circumstances. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.) Where
17
privacy concerns are at issue, courts will not permit pre-certification class discovery. (See Starbucks
18
Corp., at pp. 827-828.)
19
Plaintiffs’ right to discovery is minimal, given that precertification discovery is not even a
20
21 matter of right. At the same time, the abuses of the class action procedure are immense. Plaintiffs
22 have brought a class action on behalf of an overbroad class of non-victims, tuition payers, based on
23 a smaller group of non-class members, the actual victims, and seek the discovery of highly private
24 information, including the name of individuals who made a complaint of abuse and the nature of
25 their complaint, even before the Court’s authorization that Plaintiffs’ pleadings have articulated
26 viable claims against Defendant. Putative class members and third parties have a substantial interest
27 in the privacy of their identity and contact information. (See Starbucks Corp. v. Sup. Ct., supra, 194
28 - 15 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 Cal.App.4th at pp. 827-828 [finding that discovery requiring Defendant to disclose class member
2 identities could in no way pass the Parris balancing test, given how permitting this discovery would
3 allow putative class to be “outed,” violating their right of privacy]; Cal. Const, Art. I § 1; Life
4 Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-654 [overruled in part on
5 other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.].) Further, the right of
6 privacy that individuals are entitled to under the California Constitution extends to the details of
7 one’s personal life, including issues involving sex. (See Cal. Const, Art. I § 1; Vinson v. Sup.Ct.
8 (1987) 43 Cal.3d 833, 841 [validity question on other grounds by People v. Dixon (2007) 148
9 Cal.App.4th 414, 443]; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473.) No balancing by
10 the Court will permit this discovery.
11
Therefore, the Court should issue a Protective Order staying this Interrogatory until the
12
Court either certifies a class or finds that Plaintiffs’ claims are not class claims.
13
Reasons Why Special Interrogatory No. 3 Should Be Permitted
14
Plaintiffs are entitled to information about when SA notified putative class members about
15
16 complaints of abuse by faculty because (1) there is no basis to stay discovery; and (2) Plaintiffs
17 agreed that Defendants could redact victim or third-party information or use pseudonyms, thereby
18 eliminating privacy concerns. Pursuant to the Civil Discovery Act, the default rule in this state is
19 that a “party may obtain discovery regarding any matter, not privileged, that is relevant to the
20 subject matter involved in the pending action or to the determination of any motion made in that
21 action, if the matter either is itself admissible in evidence or appears reasonable calculated to lead to
22 the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010 (emphasis added).) Discovery
23 may therefore only be limited upon a showing of good cause and even then, restrictions should
24 balance the interests of all parties in a manner that facilitates the search for truth. (Stadish v.
25 Superior Court (1999) 71 Cal.App.4th 1130, 1145 [noting the standard is a preponderance of the
26 evidence].) Under this permissive discovery framework, there is no bar on merit-based discovery
27 prior to class certification. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 232-233.) In fact,
28 - 16 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 it is an abuse of discretion for a trial court to determine class certification without giving the parties
2 an opportunity to conduct discovery on certification issues. (See Carabini v. Superior Court (1994)
3 26 Cal.App.4th 239, 244.)
4 In this case, Special Interrogatory No. 3 is relevant to class certification because it seeks
5 information about when Sonoma Academy learned about complaints of abuse by Sonoma Academy
6 employees and when/whether it notified putative class members about same. This information is
7 directly relevant to class certification and commonality. The crux of Plaintiffs’ claims for violation
8 of California’s Unfair Competition Law, constructive fraud and fraudulent concealment is that
9 Sonoma Academy knew of faculty abuse against students, it failed to disclose or report this
10 information to the Class or law enforcement (despite a duty to do so), and it profited handsomely
11 from this concealment at the expense of tuition payers (i.e. the Class). (First Amended Complaint at
12 ¶ 5, 16, 57, 124.) As such, the discovery sought will go directly to common questions of fact (i.e.
13 when SA learned of misconduct and whether it uniformly failed to disclose this information to the
14 Class and authorities). This information is therefore relevant and discoverable under Code Civ.
15 Proc, § 2017.010.
16 The Parris balancing test referenced by Defendant further weighs in favor of the discovery
17 because Plaintiffs have agreed that Defendants can use redactions and/or pseudonyms to protect
18 victim and third party information. In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290,
19 the putative class representatives moved for leave to communicate with potential class
20 representatives prior to class certification and to compel discovery of their names and addresses.
21 The court held where parties seek discovery into the identities of class members, courts should
22 weigh the danger of potential abuses against the right of the parties to obtain the requested
23 information. (Id. at p. 300-301.) In this case, Plaintiffs are extremely mindful of the privacy of
24 potential victims of abuse and have repeatedly stated in meet and confer discussions that they will
25 agree to protections and/or redactions for sensitive/identity information. For example, Defendants
26 can identify victims and putative class members as “Victim 1” or “Tuition Payer 1” respectively.
27
28 - 17 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 Plaintiffs are willing to temporarily reserve or table their right to seek the identity of these
2 individuals upon a further showing of the substance and number of these communications.
3 Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, which Defendant cites, is
4 wholly distinguishable. In that case, class representatives brought claims against Starbucks alleging
5 the company’s job application violated provisions of the marijuana reform legislation that
6 prohibited employers from asking about convictions on job applications. (Id. at p. 822.) The court
7 held discovery into class members identities was not permitted in that case because it required
8 defendant to disclose job applicants with minor marijuana convictions, which was expressly
9 prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a statute
10 prohibiting disclosure of the information sought. Moreover, Plaintiffs do not require the specific
11 identity of individuals or putative class members if Defendants will simply identify them by
12 “Tuition Payer 1” or “Victim 1”. Such measures would easily eliminate privacy issues by keeping
13 the identity of victims confidential while still allowing Plaintiffs to obtain discovery on when
14 defendant received complaints of abuse. As such, there is no basis to bar the requested discovery.
15 SPECIAL INTERROGATORY NO. 4:
16 For the period of 2001 to the present, please list, by year, the cost of tuition at Sonoma
17 Academy.
18 RESPONSE NO. 4:
19 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and
20 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely
21 to harass and annoy Defendant; premature as it seeks the disclosure of damages-based information
22 before class certification; seeking the disclosure of information protected from disclosure by
23 financial privacy rights; seeking confidential and trade secret information; seeking the disclosure of
24 information protected from disclosure by the attorney-client privilege and work product doctrine;
25 and vague and ambiguous as to the terms and or phrases “cost of tuition.”
26 Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 4
27
Courts are vested with considerable discretion to manage discovery. (Pomona Valley
28 - 18 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is
2 specifically authorized to issue protective orders to protect parties from the burden and expense of
3 discovery procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court
4 “may make any order that justice requires to protect any party or other natural person or
5 organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and
6 expense.” (Code Civ. Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to
7 make whatever orders are required, including excusing compliance with discovery requests
8 altogether. (Code Civ. Proc., § 2030.090, subd. (b)(1).)
9
Prior to certification of a class, a party can be entitled to limited discovery on issues relevant
10
to certification “so that the trial court can realistically determine if common questions are
11
sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105
12
Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it
13
is certain that the case will be allowed to proceed as a class action; this is because a “motion to
14
certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th
15
239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was
16
raised as to its propriety.].)
17
Here, Special Interrogatory No. 4 pertains to the cost of tuition at Sonoma Academy,
18
inquiring into Plaintiffs’ potential damages. This interrogatory has nothing to do with class
19
certification and goes right into the damages of the case, which is not permitted. Therefore, the
20
Court should issue a Protective Order staying this Interrogatory until the Court either certifies a
21
class or finds that Plaintiffs’ claims are not class claims.
22
23 Reasons Why Special Interrogatory No. 4 Should Be Permitted
24 Plaintiffs are entitled to tuition discovery as it goes directly to the issue of damages and
25 Plaintiffs’ ability to establish a class-wide damage model, which is necessary for class certification.
26 Plaintiffs have a well-established right to conduct discovery prior to class certification. (Stern v.
27 Superior Court (2003) 105 Cal.App.4th 223, 232-233 [stating “[e]ach party…must have an
28 - 19 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 opportunity to conduct discovery on class action issues before filing documents to support or
2 oppose a class certification motion…”].) In Stern, for example, the Court of Appeal held it was an
3 abuse of discretion for the lower court to deny certification without an opportunity for the plaintiffs
4 to present evidence and without time for discovery on class action certification issues. (Id. at p. 229,
5 233.)
6 Damage issues are also directly relevant to class certification and therefore an appropriate
7 topic for pre-certification discovery. For example, in Spoon v. Superior Court (1982) 130
8 Cal.App.3d 735, 740-742, the court permitted discovery on class members as to damage issues,
9 noting that the amount of damage was a necessary question for certification and potential defenses.
10 In this case, the amount of tuition goes to an unavoidable question at class certification – whether
11 damage has been suffered by the Class and whether Class members overpaid for tuition. That
12 question necessarily requires discovery on the amount of tuition charged by Defendant. This
13 information is also necessary to establish damages on a class-wide basis and to support a damages
14 model, which is essential for class certification. Based on the foregoing, the information sought by
15 Special Interrogatory No. 4 is fully discoverable prior to class certification. To preclude discovery
16 on this critical damage issue prior to certification would constitute an abuse of discretion. (See
17 Stern, supra, 105 Cal.App.4th at p. 232-233.)
18 SPECIAL INTERROGATORY NO. 5
19 IDENTIFY ANY AND ALL complaints of harassment committed by YOUR employee(s)
20 from January 1, 2002 to the present.
21
The term “IDENTIFY” shall mean to state the (1) name of the PERSON making the
22
complaint; (2) the date of the complaint; and (3) the nature of the complaint.
23
The terms “PERSON” or “PERSONS” shall mean and include any natural person,
24
25 individual, partnership, firm, association, governmental unit or department, corporation or any other
26 kind of business entity.
27 The use of the singular form of ANY word includes the plural and vice versa. “ANY”
28 - 20 -
PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT
1 therefore means “each, every, and ALL”. “ALL” includes ANY.
2 The connectives “AND” and “OR” shall be construed either disjunctively or conjunctively
3 as necessary to bring within the scope of these requests ALL information that might otherwise by
4 construed to be outside their scope.
5
The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT”
6
shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any of
7
its present and former attorneys, investigators, owners, parents, s
Preview
Jack W. Weaver, Esq., Bar No. 278469 1 Rachel M. Mackie, Esq. Bar No. 318461 2 WELTY, WEAVER & CURRIE 141 North Street, Suite 300 3 Santa Rosa, CA 95403 Tel: (707) 433-4842 Fax: (707) 473-9778 4 jack@weltyweaver.com rachael@weltyweaver.com 5 6 Alexander M. Schack, Esq., Bar No. 99126 7 Natasha N. Serino, Esq., Bar No. 284711 Shannon F. Nocon, Esq., Bar No. 316523 8 SCHACK LAW GROUP 16870 West Bernardo Drive, Suite 400 9 San Diego, CA 92127 10 Tel: (858) 485-6535 Fax: (858) 485-0608 alexschack@schacklawgroup.com 11 natashaserino@schacklawgroup.com shannonnocon@schacklawgroup.com 12 Attorneys for Plaintiffs 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 FOR THE COUNTY OF SONOMA 16 DAVID SUCHARD, JODY SUCHARD, Case No. SCV-270983 17 and Jane Doe, individually, and on behalf of all others similarly situated, PLAINTIFF’S OPPOSITION TO 18 DEFENDANT’S SEPARATE STATEMENT Plaintiffs, 19 v. Date: 7/5/2023 20 Time: 3:00 p.m. 21 SONOMA ACADEMY, a California non- Dept.: 19 profit; and DOES 1 through 500, Judge: Honorable Oscar A. Pardo 22 Defendants. 23 24 25 Plaintiffs submit the following Opposition to Defendant’s Separate Statement. 26 27 28 -1- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT I. SPECIAL INTERROGATORIES, SET ONE 1 2 SPECIAL INTERROGATORY NO. 1 3 For the period of January 1, 2002 to the present, IDENTIFY ANY AND ALL instances in 4 which YOU notified a Sonoma Academy tuition payer about a complaint of harassment against a 5 Sonoma Academy student by one of YOUR employees. 6 The terms “PERSON” or “PERSONS” shall mean and include any natural person, individual, 7 partnership, firm, association, governmental unit or department, corporation or any other kind of 8 business entity. 9 The use of the singular form of ANY word includes the plural and vice versa. “ANY” therefore 10 means “each, every, and ALL”. “All” includes ANY. 11 The connectives “AND” and “OR” shall be construed either disjunctively as necessary to 12 bring within the scope of these requests ALL information that might otherwise by construed to be 13 outside their scope. 14 The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT” 15 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any 16 of its present and former attorneys, investigators, owners, parents, subsidiaries, representatives, 17 trustees, 18 partners, parent corporations, presidents, principals, managers, members, successors, assigns, 19 predecessors, officers, directors, employees, agents, sales persons, attorneys, accountants, and all 20 other persons acting for or on its behalf. 21 RESPONSE NO. 1: 22 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and 23 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely 24 to harass and annoy Defendant; premature as it seeks the disclosure of merit-based information 25 before class certification; seeking the disclosure of information protected from disclosure by third- 26 party privacy rights; seeking confidential and trade secret information; seeking the disclosure of 27 information protected from disclosure by the attorney-client privilege and work product doctrine; 28 -2- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 and vague and ambiguous as to the terms and or phrases “Sonoma Academy tuition payer,” 2 “complaint,” and “harassment.” 3 4 Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 1 5 6 Courts are vested with considerable discretion to manage discovery. (Pomona Valley Hospital 7 Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is specifically 8 authorized to issue protective orders to protect parties from the burden and expense of discovery 9 procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court “may make 10 11 any order that justice requires to protect any party or other natural person or organization from 12 unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. 13 Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to make whatever orders 14 are required, including excusing compliance with discovery requests altogether. (Code Civ. Proc., § 15 2030.090, subd. (b)(1).) 16 17 Prior to certification of a class, a party can be entitled to limited discovery on issues relevant 18 to certification “so that the trial court can realistically determine if common questions are 19 sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105 20 Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it 21 is certain that the case will be allowed to proceed as a class action; this is because a “motion to 22 certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th 23 239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was 24 raised as to its propriety.].) 25 Here, Special Interrogatory No. 1 pertains to communications regarding complaints of 26 harassment against Sonoma Academy students, inquiring into the knowledge Defendant would have 27 28 -3- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 had as to any harassment occurring at Sonoma Academy and if they had such knowledge, whether, 2 how, and when they communicated it to others. This interrogatory has nothing to do with class 3 certification and goes right into the merits of the case, which is not permitted. 4 Additionally, while prior to certification of a class, a party can be entitled to discovery on 5 6 issues relevant to certification, precertification class discovery is not a matter of right. (Starbucks 7 Corp. v. Sup. Ct. (2011) 194 Cal.App.4th 820, 825.) In deciding whether to order precertification 8 discovery, including discovery as to potential class members’ names, addresses, and other personal 9 10 information, a trial court must expressly identify any potential abuses of the class action procedure 11 that may be created if the discovery is permitted, such as the violation of privacy rights of putative 12 class members or third parties, and weigh the danger of such abuses against the rights of the parties 13 under the circumstances. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.) Where 14 privacy concerns are at issue, courts will not permit pre-certification class discovery. (See Starbucks 15 Corp., at pp. 827-828.) 16 17 Plaintiffs’ right to discovery is minimal, given that precertification discovery is not even a 18 matter of right. At the same time, the abuses of the class action procedure are immense. Plaintiffs 19 have brought a class action on behalf of an overbroad class of non-victims, tuition payers, based on 20 a smaller group of non-class members, the actual victims, and seek the discovery of highly private 21 22 information, including the name of individuals who made a complaint of harassment and the nature 23 of their complaint, even before the Court’s authorization that Plaintiffs’ pleadings have articulated 24 viable claims against Defendant. Putative class members and third parties have a substantial interest 25 in the privacy of their identity and contact information. (See Starbucks Corp. v. Sup. Ct., supra, 194 26 27 Cal.App.4th at pp. 827-828 [finding that discovery requiring Defendant to disclose class member 28 -4- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 identities could in no way pass the Parris balancing test, given how permitting this discovery would 2 allow putative class to be “outed,” violating their right of privacy]; Cal. Const, Art. I § 1; Life 3 Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-654 [overruled in part on 4 5 other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.].) Further, the right of 6 privacy that individuals are entitled to under the California Constitution extends to the details of 7 one’s personal life, including issues involving sex. (See Cal. Const, Art. I § 1; Vinson v. Sup.Ct. 8 (1987) 43 Cal.3d 833, 841 [validity question on other grounds by People v. Dixon (2007) 148 9 Cal.App.4th 414, 443]; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473.) No balancing by 10 the Court will permit this discovery. 11 Therefore, the Court should issue a Protective Order staying this Interrogatory until the 12 Court either certifies a class or finds that Plaintiffs’ claims are not class claims. 13 Reasons Why Special Interrogatory No. 1 Should Be Permitted: 14 There is no basis to ban the requested discovery prior to class certification, particularly where 15 16 Plaintiffs repeatedly stated they were agreeable to a protective order that redacted victim and Class 17 member information. Pursuant to the Civil Discovery Act, the default rule in this state is that a 18 “party may obtain discovery regarding any matter, not privileged, that is relevant to the subject 19 matter involved in the pending action or to the determination of any motion made in that action, if 20 the matter either is itself admissible in evidence or appears reasonable calculated to lead to the 21 discovery of admissible evidence.” (Code Civ. Proc., § 2017.010 (emphasis added).) Discovery may 22 therefore only be limited upon a showing of good cause and even then, restrictions should balance 23 the interests of all parties in a manner that facilitates the search for truth. (Stadish v. Superior Court 24 (1999) 71 Cal.App.4th 1130, 1145 [noting the standard is a preponderance of the evidence].) Under 25 this permissive discovery framework, there is no bar on merit-based discovery prior to class 26 certification. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 232-233.) In fact, it is an abuse 27 of discretion for a trial court to determine class certification without giving the parties an 28 -5- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 opportunity to conduct discovery on certification issues. (See Carabini v. Superior Court (1994) 26 2 Cal.App.4th 239, 244.) 3 Here, Special Interrogatory No. 1 is relevant to both class certification and the merits 4 because it seeks information about when Sonoma Academy (“SA”) learned of harassment by its 5 employees against SA students and when it notified putative class members about same. This 6 information is directly relevant to class certification and commonality. The crux of Plaintiffs’ 7 claims for violation of California’s Unfair Competition Law (“UCL”), constructive fraud and 8 fraudulent concealment is that Sonoma Academy knew of faculty abuse against students, it failed to 9 disclose or report this information to the Class or law enforcement (despite a duty to do so), and it 10 profited handsomely from this concealment at the expense of tuition payers (i.e. the Class). (First 11 Amended Complaint at ¶ 5, 16, 57, 124.) As such, the discovery sought will go directly to common 12 questions of fact (i.e. when SA learned of misconduct and whether it uniformly failed to disclose 13 this information to the Class and authorities). This information is therefore relevant and 14 discoverable under Code Civ. Proc, § 2017.010. 15 The Parris balancing test referenced by Defendant further weighs in favor of the discovery 16 because Plaintiffs have agreed that Defendants can use redactions and/or pseudonyms to protect 17 victim and third party information. In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290, 18 the putative class representatives moved for leave to communicate with potential class 19 representatives prior to class certification and to compel discovery of their names and addresses. 20 The court held where parties seek discovery into the identities of class members, courts should 21 weigh the danger of potential abuses against the right of the parties to obtain the requested 22 information. (Id. at p. 300-301.) In this case, Plaintiffs are extremely mindful of the privacy of 23 potential victims of abuse and have repeatedly stated in meet and confer discussions that they will 24 agree to protections and/or redactions for sensitive/identity information. For example, with respect 25 to Special Interrogatory No. 1, Defendants could respond by stating on January 1, 2006, SA 26 received a complaint from Victim 1 alleging that Morrone sexually harassed him/her. Similarly, 27 with respect to the identity of putative class members who were allegedly notified of complaints by 28 -6- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 SA, Defendants can identify them by saying something like, “on January 1, 2006, SA notified 2 Putative Class Member 1 about sexual harassment complaints against Morrone via email.” Plaintiffs 3 are willing to temporarily reserve or table their right to seek the identity of these individuals upon a 4 showing of the substance and number of said communications. 5 Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, which Defendant cites, is 6 wholly distinguishable. In that case, class representatives brought claims against Starbucks alleging 7 the company’s job application violated provisions of the marijuana reform legislation that 8 prohibited employers from asking about convictions on job applications. (Id. at p. 822.) The court 9 held discovery into class members identities was not permitted in that case because it required 10 defendant to disclose job applicants with minor marijuana convictions, which was expressly 11 prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a statute 12 prohibiting disclosure of the information sought. Moreover, Plaintiffs have also stated they do not 13 require the specific identity of individuals or putative class members if Defendants will simply 14 identify them by “Tuition Payer 1” or “Victim 1”. Such measures would easily eliminate privacy 15 issues by keeping the identity of victims confidential while still allowing Plaintiffs to obtain 16 discovery on when defendant received complaints of harassment. As such, there is no basis to bar 17 the requested discovery. 18 19 SPECIAL INTERROGATORY NO. 2: 20 For the period of January 1, 2002 to the present, IDENTIFY ANY AND ALL instances in 21 which YOU notified a Sonoma Academy tuition payer about a complaint of inappropriate conduct 22 against a Sonoma Academy student by one of YOUR employees. 23 The term “IDENTIFY” shall mean to state the (1) name of the PERSON making the 24 25 complaint; (2) the date of the complaint; and (3) the nature of the complaint. 26 27 28 -7- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 The terms “PERSON” or “PERSONS” shall mean and include any natural person, 2 individual, partnership, firm, association, governmental unit or department, corporation or any other 3 kind of business entity. 4 The use of the singular form of ANY word includes the plural and vice versa. “ANY” 5 therefore means “each, every, and ALL”. “ALL” includes ANY. 6 The connectives “AND” and “OR” shall be construed either disjunctively or conjunctively 7 as necessary to bring within the scope of these requests ALL information that might otherwise by 8 construed to be outside their scope. 9 10 The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT” 11 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any of 12 its present and former attorneys, investigators, owners, parents, subsidiaries, representatives, 13 trustees, partners, parent corporations, presidents, principals, managers, members, successors, 14 assigns, predecessors, officers, directors, employees, agents, sales persons, attorneys, accountants, 15 and all other persons acting for or on its behalf. 16 RESPONSE NO. 2: 17 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and 18 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely 19 to harass and annoy Defendant; premature as it seeks the disclosure of merit-based information 20 before class certification; seeking the disclosure of information protected from disclosure by third- 21 party privacy rights; seeking confidential and trade secret information; seeking the disclosure of 22 information protected from disclosure by the attorney-client privilege and work product doctrine; 23 and vague and ambiguous as to the terms and or phrases “Sonoma Academy tuition payer,” 24 “complaint,” and “inappropriate conduct.” 25 Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 2 26 27 28 -8- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 Courts are vested with considerable discretion to manage discovery. (Pomona Valley 2 Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is 3 specifically authorized to issue protective orders to protect parties from the burden and expense of 4 discovery procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court 5 “may make any order that justice requires to protect any party or other natural person or 6 organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and 7 expense.” (Code Civ. Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to 8 make whatever orders are required, including excusing compliance with discovery requests 9 altogether. (Code Civ. Proc., § 2030.090, subd. (b)(1).) 10 Prior to certification of a class, a party can be entitled to limited discovery on issues relevant 11 to certification “so that the trial court can realistically determine if common questions are 12 sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105 13 Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it 14 is certain that the case will be allowed to proceed as a class action; this is because a “motion to 15 certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th 16 239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was 17 raised as to its propriety.].) 18 Here, Special Interrogatory No. 2 pertains to communications regarding complaints of 19 inappropriate conduct against Sonoma Academy students, inquiring into the knowledge Defendant 20 would have had as to any complaints and if they had such knowledge, whether, how, and when they 21 communicated it to others. This interrogatory has nothing to do with class certification and goes 22 right into the merits of the case, which is not permitted. 23 Additionally, while prior to certification of a class, a party can be entitled to discovery on 24 25 issues relevant to certification, precertification class discovery is not a matter of right. (Starbucks 26 Corp. v. Sup. Ct. (2011) 194 Cal.App.4th 820, 825.) In deciding whether to order precertification 27 discovery, including discovery as to potential class members’ names, addresses, and other personal 28 -9- PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 information, a trial court must expressly identify any potential abuses of the class action procedure 2 that may be created if the discovery is permitted, such as the violation of privacy rights of putative 3 class members or third parties, and weigh the danger of such abuses against the rights of the parties 4 under the circumstances. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.) Where 5 privacy concerns are at issue, courts will not permit pre-certification class discovery. (See Starbucks 6 Corp., at pp. 827-828.) 7 Plaintiffs’ right to discovery is minimal, given that precertification discovery is not even a 8 matter of right. At the same time, the abuses of the class action procedure are immense. Plaintiffs 9 have brought a class action on behalf of an overbroad class of non-victims, tuition payers, based on 10 a smaller group of non-class members, the actual victims, and seek the discovery of highly private 11 information, including the name of individuals who made a complaint of inappropriate conduct and 12 the nature of their complaint, even before the Court’s authorization that Plaintiffs’ pleadings have 13 articulated viable claims against Defendant. Putative class members and third parties have a 14 substantial interest in the privacy of their identity and contact information. (See Starbucks Corp. v. 15 Sup. Ct., supra, 194 Cal.App.4th at pp. 827-828 [finding that discovery requiring Defendant to 16 disclose class member identities could in no way pass the Parris balancing test, given how 17 permitting this discovery would allow putative class to be “outed,” violating their right of privacy]; 18 Cal. Const, Art. I § 1; Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652- 19 654 [overruled in part on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, 20 fn. 8.].) Further, the right of privacy that individuals are entitled to under the California Constitution 21 extends to the details of one’s personal life, including issues involving sex. (See Cal. Const, Art. I § 22 1; Vinson v. Sup.Ct. (1987) 43 Cal.3d 833, 841 [validity question on other grounds by People v. 23 Dixon (2007) 148 Cal.App.4th 414, 443]; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 24 473.) No balancing by the Court will permit this discovery. 25 Therefore, the Court should issue a Protective Order staying this Interrogatory until the 26 Court either certifies a class or finds that Plaintiffs’ claims are not class claims. 27 28 - 10 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 Reasons Why Special Interrogatory No. 2 Should Be Permitted 2 As with Special Interrogatory No. 1, there is also no basis to stay Special Interrogatory No. 2 3 prior to class certification given that Plaintiffs repeatedly stated they were agreeable to a protective 4 order that redacted and/or protected victim and Class member information. Pursuant to the Civil 5 Discovery Act, the default rule in this state is that a “party may obtain discovery regarding any 6 matter, not privileged, that is relevant to the subject matter involved in the pending action or to the 7 determination of any motion made in that action, if the matter either is itself admissible in evidence 8 or appears reasonable calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., 9 § 2017.010 (emphasis added).) Discovery may therefore only be limited upon a showing of good 10 cause and even then, restrictions should balance the interests of all parties in a manner that 11 facilitates the search for truth. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145 12 [noting the standard is a preponderance of the evidence].) Under this permissive discovery 13 framework, there is no bar on merit-based discovery prior to class certification. (Stern v. Superior 14 Court (2003) 105 Cal.App.4th 223, 232-233.) In fact, it is an abuse of discretion for a trial court to 15 determine class certification without giving the parties an opportunity to conduct discovery on 16 certification issues. (See Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244.) 17 Here, Special Interrogatory No. 2 is relevant to both class certification and the merits 18 because it seeks information about when Sonoma Academy learned of inappropriate conduct by 19 Sonoma Academy employees and when it notified putative class members about same. This 20 information is directly relevant to class certification and commonality. The crux of Plaintiffs’ 21 claims for violation of California’s Unfair Competition Law, constructive fraud and fraudulent 22 concealment is that Sonoma Academy knew of faculty abuse against students, it failed to disclose or 23 report this information to the Class or law enforcement (despite a duty to do so), and it profited 24 handsomely from this concealment at the expense of tuition payers (i.e. the Class). (First Amended 25 Complaint at ¶ 5, 16, 57, 124.) As such, the discovery sought will go directly to common questions 26 of fact (i.e. when SA learned of misconduct and whether it uniformly failed to disclose this 27 28 - 11 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 information to the Class and authorities). This information is therefore relevant and discoverable 2 under Code Civ. Proc, § 2017.010. 3 The Parris balancing test referenced by Defendant further weighs in favor of the discovery 4 because Plaintiffs have agreed that Defendants can use redactions and/or pseudonyms to protect 5 victim and third party information. In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290, 6 the putative class representatives moved for leave to communicate with potential class 7 representatives prior to class certification and to compel discovery of their names and addresses. 8 The court held where parties seek discovery into the identities of class members, courts should 9 weigh the danger of potential abuses against the right of the parties to obtain the requested 10 information. (Id. at p. 300-301.) In this case, Plaintiffs are extremely mindful of the privacy of 11 potential victims of abuse and have repeatedly stated in meet and confer discussions that they will 12 agree to protections and/or redactions for sensitive/identity information. For example, with respect 13 to Special Interrogatory No. 2, Defendants could respond by stating on January 1, 2006, SA 14 received a complaint from Victim 1 alleging that employee Morrone pinched her and/or otherwise 15 engaged in inappropriate conduct with her. Similarly, with respect to the identity of putative class 16 members who were allegedly notified of complaints by SA, Defendants can identify them by saying 17 something like, “on January 1, 2006, SA notified Putative Class Member 1 about inappropriate 18 conduct by faculty against SA students via email.” Plaintiffs are willing to temporarily reserve or 19 table their right to seek the identity of these individuals upon a showing of the substance and 20 number of said communications. 21 Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, which Defendant cites, is 22 wholly distinguishable. In that case, class representatives brought claims against Starbucks alleging 23 the company’s job application violated provisions of the marijuana reform legislation that 24 prohibited employers from asking about convictions on job applications. (Id. at p. 822.) The court 25 held discovery into class members identities was not permitted in that case because it required 26 defendant to disclose job applicants with minor marijuana convictions, which was expressly 27 prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a statute 28 - 12 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 prohibiting disclosure of the information sought. Moreover, Plaintiffs have also stated they do not 2 require the specific identity of individuals or putative class members if Defendants will simply 3 identify them by “Tuition Payer 1” or “Victim 1”. Such measures would easily eliminate privacy 4 issues by keeping the identity of victims confidential while still allowing Plaintiffs to obtain 5 discovery on when defendant received complaints of inappropriate conduct. As such, there is no 6 basis to bar the requested discovery. 7 8 SPECIAL INTERROGATORY NO. 3: 9 For the period of January 1, 2002 to the present, IDENTIFY ANY AND ALL instances in 10 which YOU notified a Sonoma Academy tuition payer about a complaint of abuse against a Sonoma 11 Academy student by one of YOUR employees. 12 The term “IDENTIFY” shall mean to state the (1) name of the PERSON making the 13 14 complaint; (2) the date of the complaint; and (3) the nature of the complaint. 15 The terms “PERSON” or “PERSONS” shall mean and include any natural person, 16 individual, partnership, firm, association, governmental unit or department, corporation or any other 17 kind of business entity. 18 The use of the singular form of ANY word includes the plural and vice versa. “ANY” 19 therefore means “each, every, and ALL”. “ALL” includes ANY. 20 The connectives “AND” and “OR” shall be construed either disjunctively or conjunctively 21 as necessary to bring within the scope of these requests ALL information that might otherwise by 22 construed to be outside their scope. 23 The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT” 24 25 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any of 26 its present and former attorneys, investigators, owners, parents, subsidiaries, representatives, 27 trustees, partners, parent corporations, presidents, principals, managers, members, successors, 28 - 13 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 assigns, predecessors, officers, directors, employees, agents, sales persons, attorneys, accountants, 2 and all other persons acting for or on its behalf. 3 RESPONSE NO. 3 4 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and 5 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely 6 to harass and annoy Defendant; premature as it seeks the disclosure of merit-based information 7 before class certification; seeking the disclosure of information protected from disclosure by third- 8 party privacy rights; seeking confidential and trade secret information; seeking the disclosure of 9 information protected from disclosure by the attorney-client privilege and work product doctrine; 10 and vague and ambiguous as to the terms and or phrases “Sonoma Academy tuition payer,” 11 “complaint,” and “abuse.” 12 13 Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 3 14 Courts are vested with considerable discretion to manage discovery. (Pomona Valley 15 Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is 16 specifically authorized to issue protective orders to protect parties from the burden and expense of 17 discovery procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court 18 “may make any order that justice requires to protect any party or other natural person or 19 organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and 20 expense.” (Code Civ. Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to 21 make whatever orders are required, including excusing compliance with discovery requests 22 altogether. (Code Civ. Proc., § 2030.090, subd. (b)(1).) 23 Prior to certification of a class, a party can be entitled to limited discovery on issues relevant 24 to certification “so that the trial court can realistically determine if common questions are 25 sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105 26 Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it 27 is certain that the case will be allowed to proceed as a class action; this is because a “motion to 28 - 14 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th 2 239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was 3 raised as to its propriety.].) 4 Here, Special Interrogatory No. 3 pertains to communications regarding complaints of abuse 5 against Sonoma Academy students, inquiring into the knowledge Defendant would have had as to 6 any complaints and if they had such knowledge, whether, how, and when they communicated it to 7 others. This interrogatory has nothing to do with class certification and goes right into the merits of 8 the case, which is not permitted. 9 Additionally, while prior to certification of a class, a party can be entitled to discovery on 10 issues relevant to certification, precertification class discovery is not a matter of right. (Starbucks 11 Corp. v. Sup. Ct. (2011) 194 Cal.App.4th 820, 825.) In deciding whether to order precertification 12 discovery, including discovery as to potential class members’ names, addresses, and other personal 13 information, a trial court must expressly identify any potential abuses of the class action procedure 14 that may be created if the discovery is permitted, such as the violation of privacy rights of putative 15 class members or third parties, and weigh the danger of such abuses against the rights of the parties 16 under the circumstances. (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.) Where 17 privacy concerns are at issue, courts will not permit pre-certification class discovery. (See Starbucks 18 Corp., at pp. 827-828.) 19 Plaintiffs’ right to discovery is minimal, given that precertification discovery is not even a 20 21 matter of right. At the same time, the abuses of the class action procedure are immense. Plaintiffs 22 have brought a class action on behalf of an overbroad class of non-victims, tuition payers, based on 23 a smaller group of non-class members, the actual victims, and seek the discovery of highly private 24 information, including the name of individuals who made a complaint of abuse and the nature of 25 their complaint, even before the Court’s authorization that Plaintiffs’ pleadings have articulated 26 viable claims against Defendant. Putative class members and third parties have a substantial interest 27 in the privacy of their identity and contact information. (See Starbucks Corp. v. Sup. Ct., supra, 194 28 - 15 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 Cal.App.4th at pp. 827-828 [finding that discovery requiring Defendant to disclose class member 2 identities could in no way pass the Parris balancing test, given how permitting this discovery would 3 allow putative class to be “outed,” violating their right of privacy]; Cal. Const, Art. I § 1; Life 4 Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-654 [overruled in part on 5 other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.].) Further, the right of 6 privacy that individuals are entitled to under the California Constitution extends to the details of 7 one’s personal life, including issues involving sex. (See Cal. Const, Art. I § 1; Vinson v. Sup.Ct. 8 (1987) 43 Cal.3d 833, 841 [validity question on other grounds by People v. Dixon (2007) 148 9 Cal.App.4th 414, 443]; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473.) No balancing by 10 the Court will permit this discovery. 11 Therefore, the Court should issue a Protective Order staying this Interrogatory until the 12 Court either certifies a class or finds that Plaintiffs’ claims are not class claims. 13 Reasons Why Special Interrogatory No. 3 Should Be Permitted 14 Plaintiffs are entitled to information about when SA notified putative class members about 15 16 complaints of abuse by faculty because (1) there is no basis to stay discovery; and (2) Plaintiffs 17 agreed that Defendants could redact victim or third-party information or use pseudonyms, thereby 18 eliminating privacy concerns. Pursuant to the Civil Discovery Act, the default rule in this state is 19 that a “party may obtain discovery regarding any matter, not privileged, that is relevant to the 20 subject matter involved in the pending action or to the determination of any motion made in that 21 action, if the matter either is itself admissible in evidence or appears reasonable calculated to lead to 22 the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010 (emphasis added).) Discovery 23 may therefore only be limited upon a showing of good cause and even then, restrictions should 24 balance the interests of all parties in a manner that facilitates the search for truth. (Stadish v. 25 Superior Court (1999) 71 Cal.App.4th 1130, 1145 [noting the standard is a preponderance of the 26 evidence].) Under this permissive discovery framework, there is no bar on merit-based discovery 27 prior to class certification. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 232-233.) In fact, 28 - 16 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 it is an abuse of discretion for a trial court to determine class certification without giving the parties 2 an opportunity to conduct discovery on certification issues. (See Carabini v. Superior Court (1994) 3 26 Cal.App.4th 239, 244.) 4 In this case, Special Interrogatory No. 3 is relevant to class certification because it seeks 5 information about when Sonoma Academy learned about complaints of abuse by Sonoma Academy 6 employees and when/whether it notified putative class members about same. This information is 7 directly relevant to class certification and commonality. The crux of Plaintiffs’ claims for violation 8 of California’s Unfair Competition Law, constructive fraud and fraudulent concealment is that 9 Sonoma Academy knew of faculty abuse against students, it failed to disclose or report this 10 information to the Class or law enforcement (despite a duty to do so), and it profited handsomely 11 from this concealment at the expense of tuition payers (i.e. the Class). (First Amended Complaint at 12 ¶ 5, 16, 57, 124.) As such, the discovery sought will go directly to common questions of fact (i.e. 13 when SA learned of misconduct and whether it uniformly failed to disclose this information to the 14 Class and authorities). This information is therefore relevant and discoverable under Code Civ. 15 Proc, § 2017.010. 16 The Parris balancing test referenced by Defendant further weighs in favor of the discovery 17 because Plaintiffs have agreed that Defendants can use redactions and/or pseudonyms to protect 18 victim and third party information. In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290, 19 the putative class representatives moved for leave to communicate with potential class 20 representatives prior to class certification and to compel discovery of their names and addresses. 21 The court held where parties seek discovery into the identities of class members, courts should 22 weigh the danger of potential abuses against the right of the parties to obtain the requested 23 information. (Id. at p. 300-301.) In this case, Plaintiffs are extremely mindful of the privacy of 24 potential victims of abuse and have repeatedly stated in meet and confer discussions that they will 25 agree to protections and/or redactions for sensitive/identity information. For example, Defendants 26 can identify victims and putative class members as “Victim 1” or “Tuition Payer 1” respectively. 27 28 - 17 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 Plaintiffs are willing to temporarily reserve or table their right to seek the identity of these 2 individuals upon a further showing of the substance and number of these communications. 3 Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, which Defendant cites, is 4 wholly distinguishable. In that case, class representatives brought claims against Starbucks alleging 5 the company’s job application violated provisions of the marijuana reform legislation that 6 prohibited employers from asking about convictions on job applications. (Id. at p. 822.) The court 7 held discovery into class members identities was not permitted in that case because it required 8 defendant to disclose job applicants with minor marijuana convictions, which was expressly 9 prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a statute 10 prohibiting disclosure of the information sought. Moreover, Plaintiffs do not require the specific 11 identity of individuals or putative class members if Defendants will simply identify them by 12 “Tuition Payer 1” or “Victim 1”. Such measures would easily eliminate privacy issues by keeping 13 the identity of victims confidential while still allowing Plaintiffs to obtain discovery on when 14 defendant received complaints of abuse. As such, there is no basis to bar the requested discovery. 15 SPECIAL INTERROGATORY NO. 4: 16 For the period of 2001 to the present, please list, by year, the cost of tuition at Sonoma 17 Academy. 18 RESPONSE NO. 4: 19 Defendant objects to this Interrogatory on the grounds that it is: overly broad as to scope and 20 time; unduly burdensome; premature as it was propounded pending a demurrer; propounded solely 21 to harass and annoy Defendant; premature as it seeks the disclosure of damages-based information 22 before class certification; seeking the disclosure of information protected from disclosure by 23 financial privacy rights; seeking confidential and trade secret information; seeking the disclosure of 24 information protected from disclosure by the attorney-client privilege and work product doctrine; 25 and vague and ambiguous as to the terms and or phrases “cost of tuition.” 26 Factual and Legal Reasons Why the Court Should Stay Interrogatory No. 4 27 Courts are vested with considerable discretion to manage discovery. (Pomona Valley 28 - 18 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) The Court is 2 specifically authorized to issue protective orders to protect parties from the burden and expense of 3 discovery procedures under the Civil Discovery Act. Upon a showing of “good cause,” the Court 4 “may make any order that justice requires to protect any party or other natural person or 5 organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and 6 expense.” (Code Civ. Proc., § 2030.090, subd. (b) [interrogatories].) The Court is empowered to 7 make whatever orders are required, including excusing compliance with discovery requests 8 altogether. (Code Civ. Proc., § 2030.090, subd. (b)(1).) 9 Prior to certification of a class, a party can be entitled to limited discovery on issues relevant 10 to certification “so that the trial court can realistically determine if common questions are 11 sufficiently pervasive to permit adjudication in a class action.” (Stern v. Superior Court (2003) 105 12 Cal.App.4th 223, 232-233.) Discovery on the merits of the purported class claim is deferred until it 13 is certain that the case will be allowed to proceed as a class action; this is because a “motion to 14 certify a class action is not a trial on the merits.” (See Carabini v. Sup.Ct. (1994) 26 Cal.App.4th 15 239, 241-245 [where the trial court ordered discovery limited to class certification and no issue was 16 raised as to its propriety.].) 17 Here, Special Interrogatory No. 4 pertains to the cost of tuition at Sonoma Academy, 18 inquiring into Plaintiffs’ potential damages. This interrogatory has nothing to do with class 19 certification and goes right into the damages of the case, which is not permitted. Therefore, the 20 Court should issue a Protective Order staying this Interrogatory until the Court either certifies a 21 class or finds that Plaintiffs’ claims are not class claims. 22 23 Reasons Why Special Interrogatory No. 4 Should Be Permitted 24 Plaintiffs are entitled to tuition discovery as it goes directly to the issue of damages and 25 Plaintiffs’ ability to establish a class-wide damage model, which is necessary for class certification. 26 Plaintiffs have a well-established right to conduct discovery prior to class certification. (Stern v. 27 Superior Court (2003) 105 Cal.App.4th 223, 232-233 [stating “[e]ach party…must have an 28 - 19 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 opportunity to conduct discovery on class action issues before filing documents to support or 2 oppose a class certification motion…”].) In Stern, for example, the Court of Appeal held it was an 3 abuse of discretion for the lower court to deny certification without an opportunity for the plaintiffs 4 to present evidence and without time for discovery on class action certification issues. (Id. at p. 229, 5 233.) 6 Damage issues are also directly relevant to class certification and therefore an appropriate 7 topic for pre-certification discovery. For example, in Spoon v. Superior Court (1982) 130 8 Cal.App.3d 735, 740-742, the court permitted discovery on class members as to damage issues, 9 noting that the amount of damage was a necessary question for certification and potential defenses. 10 In this case, the amount of tuition goes to an unavoidable question at class certification – whether 11 damage has been suffered by the Class and whether Class members overpaid for tuition. That 12 question necessarily requires discovery on the amount of tuition charged by Defendant. This 13 information is also necessary to establish damages on a class-wide basis and to support a damages 14 model, which is essential for class certification. Based on the foregoing, the information sought by 15 Special Interrogatory No. 4 is fully discoverable prior to class certification. To preclude discovery 16 on this critical damage issue prior to certification would constitute an abuse of discretion. (See 17 Stern, supra, 105 Cal.App.4th at p. 232-233.) 18 SPECIAL INTERROGATORY NO. 5 19 IDENTIFY ANY AND ALL complaints of harassment committed by YOUR employee(s) 20 from January 1, 2002 to the present. 21 The term “IDENTIFY” shall mean to state the (1) name of the PERSON making the 22 complaint; (2) the date of the complaint; and (3) the nature of the complaint. 23 The terms “PERSON” or “PERSONS” shall mean and include any natural person, 24 25 individual, partnership, firm, association, governmental unit or department, corporation or any other 26 kind of business entity. 27 The use of the singular form of ANY word includes the plural and vice versa. “ANY” 28 - 20 - PLAINTIFFS’ OPPOSTION TO DEFENDANT’S SEPARATE STATEMENT 1 therefore means “each, every, and ALL”. “ALL” includes ANY. 2 The connectives “AND” and “OR” shall be construed either disjunctively or conjunctively 3 as necessary to bring within the scope of these requests ALL information that might otherwise by 4 construed to be outside their scope. 5 The terms “YOU”, “YOUR”, “YOURS”, “SONOMA ACADEMY”, and “DEFENDANT” 6 shall mean Defendant Sonoma Academy (by any names which it has been or is known), and any of 7 its present and former attorneys, investigators, owners, parents, s