Barrenda L. v. Superior Court

• Decision Date: 22 July 1998
• Docket Number: Nos. B118843,B121277,s. B118843
• Citation: 65 Cal.App.4th 794,76 Cal.Rptr.2d 727
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 5729, 98 Daily Journal D.A.R. 7937 BARRENDA L. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; County of Los Angeles, Real Party in Interest.

Page 727

76 Cal.Rptr.2d 727

65 Cal.App.4th 794, 98 Cal. Daily Op. Serv. 5729,

98 Daily Journal D.A.R. 7937

BARRENDA L. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent;

County of Los Angeles, Real Party in Interest.

Nos. B118843, B121277.

Court of Appeal, Second District, Division 4, California.

July 22, 1998.

Pate & Pate and Linda Wallace Pate; Voorhies & Kramer, Richard C. Voorhies and R. Brian Kramer, Los Angeles, for Petitioners.

No appearance for Respondent.

Collins, Collins, Muir & Traver, Pasadena, and Peter Stacy, for Real Party in Interest.

HASTINGS, Associate Justice.

In these related writ proceedings we conclude that the County of Los Angeles and various of its employees, real parties in interest, have failed to demonstrate good cause to require petitioners to answer questions at depositions relating to sexual encounters other than those directly at issue in this litigation. We also conclude that real parties have failed to demonstrate good cause to require an independent psychological examination designed to invade the same privacy rights addressed during the depositions. Accordingly, we issue a writ of mandate directing the trial court to reverse its rulings ordering petitioners to answer the deposition questions and ordering petitioners to undergo the psychiatric examinations.

STATEMENT OF FACTS

The Action

Petitioners are Barrenda L. and Shiffon B., each of whom was a minor at the time of the alleged incidents that gave rise to this litigation. Each is a plaintiff in an action against real parties in interest in Los Angeles Superior Court case No. BC149788. ¹

It is alleged in the second amended complaint that Shiffon B. was declared a dependent child under Welfare and Institutions Code section 300 shortly after her birth in March 1979. Barrenda L., born in October 1978, was declared a dependent child in 1985. Each was placed in the foster home of Karla Jarett Coleman--Shiffon B. on February 1, 1989, and Barrenda L. on September 1, 1989. The allegations of the second amended complaint pertinent to our discussion are as follows:

"12. That on or about February of 1989, continuing through on or about July 7, 1992, Karla Jarett Coleman's adult son, Anthony Colbert, repeatedly raped, sexually abused and assaulted and battered plaintiff, Shiffon B[.], in the presence of plaintiff, Barrenda L[.].

"13. That on or about September of 1989, continuing through on or about October 10, 1992, and thereafter, Karla Jarett Coleman's adult son, Anthony Colbert, repeatedly raped and sexually assaulted plaintiff, Barrenda L[.], in the presence of plaintiff, Shiffon B[.], resulting in Barrenda L[.] having three pregnancies: one abortion in November, 1989 at age eleven, one pregnancy resulting in live birth in July, 1993, and a third aborted pregnancy in or about the summer of 1994."

Petitioners seek to establish liability against real parties for entrusting them to the Coleman foster home. They assert that they were "forced to incur expenses for medical and/or psychological treatment and are informed and believe and therefore allege that they will continue to incur such expenses in the future...." They also allege that each "suffered severe, permanent and disabling injuries and great mental suffering all to their damage...."

The Depositions (B118843)

During the deposition of each petitioner, their counsel objected to and instructed petitioners not to answer specific questions that The subject questions asked Barrenda L. were: (1) "Will you tell us how many children you have?" (2) "Did you give birth to a baby in May 1996 at the California Medical Center?" (3) "And do you remember--I have a document here dated April 27th, 1996, and that was, I think, a couple months prior to the delivery of your second child, and under medical information here it says: Pregnant female, pregnant yes, number of pregnancies four, number of abortions three. [p] Do you recall telling someone at the McClaren Children's Center back in April of 1996 that you had three prior abortions?" (4) "Prior to telling Josh that Anthony had raped you, had you had sexual intercourse with anyone besides Anthony, Perry?" (5) "Had you ever been sexually molested before you were placed in Karla Coleman's house?" (6) "When Anthony had sex with you, when he attacked you and he used his penis, was that the first time that you had sex with someone who used their penis on you?"

counsel perceived to be an invasion of privacy. Real parties moved to compel answers.

Only one question to Shiffon was included in the motion: "Prior to your placement with Karla Jarett Coleman, had anyone sexually attacked you?"

The declaration of attorney Peter L. Stacy, counsel for real parties in interest, supplies the only evidentiary showing for good cause. The pertinent portions of the declaration are as follows:

"6. Good cause exists to question plaintiff Barrenda L[.] concerning whether she has given birth to other children or become pregnant again. As [Barrenda L.] was born on 10/27/78, she did not reach the age of majority until 10/28/96. [Barrenda L.] remained under the jurisdiction of County Department of Children & Family Services ('DCFS'). A review of DCFS records, pursuant to a WIC Section 827 Petition, reveals that [Barrenda L.] was five months pregnant as of 2/28/96. See the Detention Report filed May 1, 1996 attached hereto as Exhibit 'I.' It is indeed relevant and likely to lead to the discovery of admissible evidence to question her about this pregnancy, whether it was consensual, and what if any, emotional damages resulted from it as opposed to the allegations of the complaint. Furthermore, there is good cause to question [Barrenda L.] about her sexual contact with others besides the perpetrator, Colbert, as [Barrenda L.] had told her social worker that she had been raped at a party in Los Angeles. Although she has offered an explanation at her deposition, it is relevant and likely to lead to the discovery of admissible evidence to question [Barrenda L.] further on such issues. It is certainly relevant to the issue of negligence and violation of mandatory statutory duties as to what [Barrrenda L.] told or withheld from her social workers goes to both [Barrenda L.]'s credibility and the duties of the social workers.

"7. Likewise, plaintiff Shiffon B[.] should be made to answer questions as to whether she had been sexually molested or sexual contact while under the jurisdiction of DCFS or otherwise. [Shiffon B.] has told a social worker that she lied about sexual contact with Colbert and [Barrenda L.] after initially reporting that she had such contact. See the lettergram and Case Activity Log attached hereto as Exhibit 'J.' Now at her deposition she recanted her lie. A review of DCFS records also reveals that, on 9/8/94, [Shiffon B.] allegedly made a further allegation of rape by a 31 year old male. See the Case Activity Log attached hereto as Exhibit 'K.' Questioning is indeed relevant as to this instance and any further instances of sexual molestation as to the issues of damages; veracity/credibility of [Barrenda L.]; and as to what information the defendant social workers had in order to perform their duties."

On December 9, 1997, the court ruled on the motion and denied the relief sought on the first two questions asked of Barrenda L. but granted relief on the remaining five questions.

On January 28, 1998, petitioners filed their petition for writ of mandate and requested an immediate stay. The matter was designated No. B118843. On February 27, 1998, we issued an alternative writ, issued a temporary stay order, and set the matter for hearing on May 14, 1998. On March 20, 1998 The Independent Psychological Examinations (No. B121277)

real parties filed their return to the alternative writ.

In March 1998, real parties filed a motion to compel an independent psychological examination of each petitioner. It was urged that because petitioners were seeking to recover emotional distress damages they had placed their mental state in issue, and therefore good cause existed for the examination. The motion was supported by the declaration of counsel Peter L. Stacy. He declared that he had attempted to work out an appropriate limitation to the scope of the examination with counsel for petitioners but that petitioners' counsel would only stipulate to such an examination on the basis that "[t]here will be no questioning concerning prior or subsequent sexual encounters." This was unacceptable to real parties.

The concluding paragraph of counsel's declaration states: "There is good cause for the Court to order [petitioners] to undergo an [independent psychological examination] as [petitioners] have brought negligence actions against the County and seek to recover for mental/psychiatric injuries sustained as a result of the County's alleged negligence. An [independent psychological examination] is the only available means for discovering issues directly relevant to causation and damages. Further, without an [independent psychological examination], the County will be put at a serious and unfair disadvantage in defending claims which [petitioners] have brought." Attached to counsel's declaration is the curriculum vitae of I. Lee Gislason, M.D., F.R.C.P. (C), a staff psychiatrist from the University of California at Irvine, the doctor who was to perform the examinations.

Petitioners opposed the motion, asserting that real parties had "failed to show good cause and extraordinary circumstances to discover [petitioners'] sexual history."

On April 13, 1998, the court granted the motion "based upon the grounds that [petitioners] have placed their state of minds at-issue and in controversy. (CCP 2032(a).)"

On April 21, 1998, petitioners filed a petition for writ of mandate and requested a temporary stay of the independent psychological examination. We issued an alternative writ and stay on April 28, 1998, and ordered a...