Planned Parenthood v. Superior Court
| Decision Date | 28 August 2000 |
| Docket Number | No. A090162.,A090162. |
| Citation | 99 Cal.Rptr.2d 627,83 Cal.App.4th 347 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PLANNED PARENTHOOD GOLDEN GATE, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; Rossi Foti et al., Real Parties in Interest. |
Robert J. Glynn, Esq., San Francisco, Lynne G. Stacker, Esq., Law Offices of Robert J. Glynn, LLP; Lynn H. Pasahow, Esq., Katharine L. West, Esq., Palo Alto, Leslie G. Landau, Esq., and Beth H. Parker, Esq., San Franciso, McCutchen, Doyle, Brown & Enersen, for Petitioner.
No appearance for Respondent.
Yale W. Rohlff, Esq., Donn Waslif, Esq., San Jose, Law Offices of Rohlff & Waslif; Terry Thompson, Esq., Danville, Law Offices of Terry Thompson, for Real Parties in Interest.
Petitioner, Planned Parenthood Golden Gate (Planned Parenthood), and real parties in interest Rossi Foti and Jeannette Garibaldi are parties in litigation concerning the scope of the real parties' rights to engage in antiabortion protest activities outside Planned Parenthood facilities. Planned Parenthood initiated this original proceeding to challenge a superior court discovery ruling which requires it to disclose, pursuant to a protective order, the names, residential addresses and telephone numbers of staff and volunteers who have knowledge relevant to the litigation. We stayed the superior court's order and issued an order to show cause. For the reasons discussed below, we conclude that the superior court's ruling cannot be sustained.
On July 24, 1998, Rossi Foti (Foti) filed a complaint for damages and injunctive relief against Planned Parenthood and several individuals, alleging defamation, abuse of process, infliction of emotional distress and battery. According to the complaint, Foti engages in picketing, leafleting and counseling outside Planned Parenthood clinics in San Mateo, Menlo Park and Redwood City "[o]n a regular basis." Foti alleged, among other things, that "`escorts' " employed by Planned Parenthood, including the named individual defendants, "physically obstruct, intimidate, and interfere with [Foti] while he is on the sidewalk lawfully exercising his constitutional rights."
On September 11, 1998, Planned Parenthood filed a cross-complaint against Foti, Jeannette Garibaldi (Garibaldi) and others. The cross-complaint alleged causes of action for interference, harassment and emotional distress. According to the cross-complaint, the cross-defendants habitually harass and intimidate Planned Parenthood employees, volunteers, patients and their companions while protesting at Planned Parenthood clinics.
Both the complaint and cross-complaint have been amended more than once. At some point, named defendant Gabriella Gibson was added as a cross-complainant and cross-claims for abuse of process, false arrest, defamation and conspiracy were also alleged.
In September 1998, Foti served various discovery requests on Planned Parenthood and other individual defendants. In March 1999, Foti filed a motion to compel further responses to several interrogatories and requests for production of documents. Among other things, Foti argued that Planned Parenthood improperly objected to requests for disclosure of the identities of non-party Planned Parenthood staff and volunteers as an invasion of the constitutional right to privacy. On April 12, 1999, the superior court (the Honorable Phrasel L. Shelton) appointed H. Kelly Ogle (Ogle) as the discovery referee for this case.
Ogle issued a Memorandum of Decision and Recommendation dated May 26, 1999 (the May 26 recommendation). Among other things, Ogle concluded that "[t]here is no Constitutional Right of Privacy as to Non-Party Employees, Escorts, Guards and/or Staff Employees or Corporate Officers of PLANNED PARENTHOOD AND IT IS SO ORDERED for all purposes throughout this MEMORANDUM OF DECISION and all RULINGS made and Ordered herein." Thus, when ruling on specific requests for further discovery responses, Ogle repeatedly instructed defendants to "identify" or to "specifically identify" "each and every person" with knowledge of the facts set forth in their discovery responses.1
Planned Parenthood objected to the May 26 recommendation. Among other things, it complained that Ogle failed to properly assess the privacy rights of nonparty staff and volunteers of Planned Parenthood. On June 30, 1999, Judge Shelton held a hearing to address several matters, including Planned Parenthood's objections to the May 26 recommendation. At that hearing, he rejected Planned Parenthood's objections without offering any opinion as to the scope or nature of the privacy rights of non-party witnesses. An order filed July 21, 1999 (the July 21 order), states: "The decision of the discovery referee as to privacy objections is confirmed." The July 21 order contains no explanation or analysis supporting this ruling.
In August 1999, Foti filed a second motion to compel. Foti argued that defendants' further responses to his discovery requests were inadequate and failed to comply with the July 21 order. Among other things, Foti complained that defendants "did not provide addresses or phone numbers for the non-party witnesses identified in response to the interrogatories." In opposing Foti's motion, defendants argued that (1) the July 21 order did not require them to disclose the addresses and telephone numbers of non-party escorts and employees, (2) such information was unnecessary since those individuals were represented by counsel for Planned Parenthood, who was willing to accept service for them, and (3) such information was confidential and private.
Meanwhile, on May 4, 1999, cross-defendant Garibaldi served various discovery requests on cross-complainants Planned Parenthood and Gabriella Gibson (collectively, Planned Parenthood). In September 1999, Garibaldi filed a motion to compel further responses. Like Foti, Garibaldi objected to Planned Parenthood's refusal to disclose the names, addresses and telephone numbers of individuals with knowledge relevant to the litigation, a refusal based on the ground that such disclosure would violate the individuals' constitutional rights of privacy. Garibaldi maintained that "there is no evidentiary privilege or exemption for persons who are percipient witnesses for non-party patients, staff, volunteers, and contractors of responding party." Planned Parenthood opposed Garibaldi's motion to compel and, on September 17, 1999, filed a motion for a protective order.
On September 10, 1999, Thomas D. Reese (Reese) replaced Ogle as the discovery referee for this case.2 On October 21, 1999, Reese held a hearing to address (1) Foti's motion to enforce the July 21 order, (2) Garibaldi's motion to compel further discovery responses, and (3) Planned Parenthood's motion for a protective order. On November 8, 1999, Reese issued a Recommended Order re Enforcement of July 21, 1999, Order (November 8 recommendation). The November 8 recommendation stated, in part:
On November 10, 1999, Reese issued a Recommended Order re Cross-Complainants' Motion for a Protective Order and Cross-Defendants' Motion to Compel (November 10 recommendation). Reese recommended that a protective order apply to all discovery in the case and stated:
In his November 10 recommendation, Reese also ruled on Garibaldi's motion to compel further discovery responses. He ordered that further responses be given to many of the discovery requests at issue. In some instances, Reese ordered that Planned Parenthood produce the addresses and telephone numbers of potential witnesses "pursuant to an `Attorneys-Eyes Only' Protective Order." However, Reese denied Garibaldi's requests for disclosure of the names and personal information of patients of Planned Parenthood pursuant to the physician/patient privilege.
In the "Discussion" section of his November 10 recommendation, Reese stated: ...
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