B.E. v. DOE 1, et al

Background

On December 2, 2022, Plaintiff B.E. initiated this action against Defendants Doe 1, Doe 2, and unidentified Doe Defendants 3 through 60, setting forth six causes of action for (1) sexual assault of a minor against Doe 2, (2) intentional infliction of emotional distress against Doe 2, (3) negligent supervision, hiring, and retention against Doe 1 and unidentified Doe Defendants 3 through 20, (4) negligent supervision of a minor against Doe 1 and unidentified Doe Defendants 3 through 60, (5) failure to report suspected child abuse against Doe 1 and unidentified Doe Defendants 3 through 20, and (6) negligence against unidentified Doe Defendants 3 through 60.

As alleged in the complaint: B.E. is an adult male born in 1974. (Compl., P.P. 4-5.) In 1991, Doe 2 committed childhood sexual assault against B.E. when B.E. was 15 years old. (Compl., P.P. 4, 33.) Doe 2 committed the alleged assault on B.E. when B.E. resided at Doe 1's residential facility. (Compl., P. 2.) At that time, Doe 2 was an employee, volunteer, representative, and agent of Doe 1. (Compl., P.P. 28, 33.) Doe 2 was placed in a position where he had access to and worked with children as an integral part of his work for Doe 1, including B.E. (Compl., P. 29.) At the time of the assault, B.E. was under the custody and control of Defendants. (Compl., P.P. 2, 27.) B.E. was dependent on Doe 1. (Ibid.) Defendants, including Doe 1, had a duty to protect B.E. (Ibid.)

Doe 2 used his position with Doe 1 to gain the trust and confidence of children placed under his supervision, and further used Doe 1's facility to commit acts of child abuse. (Compl., P. 29.) B.E. was conditioned by Doe 1 to comply with Doe 2's direction and to respect Doe 2 as a person of authority on all matters. (Compl., P. 32.) Doe 2's conduct constituted "grooming" of B.E. and culminated in the sexual assault and abuse of B.E. (Ibid.) Doe 2 sexually assaulted, abused, and molested B.E. at Doe 1's facility by fondling B.E.'s genitals and buttocks, and forcing B.E. to perform oral sex on Doe 2, among other acts. (Compl., P. 35.) The unlawful acts of sexual abuse occurred numerous times over a period of approximately one year. (Ibid.)

On at least one occasion, Doe 2 directed B.E. to the stockroom at Doe 1's facility, then blocked the door to prevent B.E. from leaving. (Compl., P. 36.) Doe 2 forced B.E. to perform oral sex. (Ibid.) This lasted for close to one hour, while other supervisory employees and staff were present outside. (Ibid.) Nevertheless, no supervisory employees or staff did anything to see why Doe 2 was alone with B.E. in the stockroom for such an unreasonably long period of time. (Ibid.)

The above-described conduct was known or observed by Doe 1 by and through its officers, directors, superintendents, administrators, staff, agents, or employees. (Compl., P. 39.) Nevertheless, Doe 1 continued to allow Doe 2 to have regular and unsupervised contact with minors entrusted to Doe 1's care, custody, and control. (Ibid.) Doe 1 knew or should have known that Doe 2 was not competent or fit to be in a position where he would necessarily come in contact with minors. (Compl., P. 40.) Doe 1 knew or should have known that Doe 2 continued to solicit, sexually assault, molest, and abuse minor children, prior to, during, and after Doe 2's sexual assault and abuse of B.E. (Compl., P. 41.)

Doe 1 ignored or concealed the childhood sexual assault committed by Doe 2 and continued to allow numerous children, including the B.E., to be in private, secluded areas with Doe 2, despite knowledge of or reasons to suspect Doe 2's prior sexually abusive conduct against minors. (Compl., P. 47.) Doe 1 failed to report to B.E.'s parents and guardians, law enforcement authorities, civil authorities, and others, the true facts pertaining to Doe 2's sexual misconduct. (Compl., P. 49.)

On February 24, 2023, after reviewing the certificates of merit submitted under seal by B.E., the Court entered an order permitting B.E. to serve the complaint on Doe 1 and Doe 2. On April 3, 2023, Doe 1 filed an answer to the complaint generally denying the allegations therein and setting forth fourteen affirmative defenses. On July 16, 2024, B.E. dismissed Doe 2 from this action without prejudice. It was reported during case management conferences on April 5, 2023, and September 9, 2023, that B.E. was having difficulty locating and serving Doe 2.

On February 27, 2026, B.E. filed an application seeking leave to file an amendment to the complaint to substitute the name of Doe 1. On April 29, 2026, the Court granted B.E. leave to file an amendment to the complaint to substitute the name of Doe 1. On May 1, 2026, B.E. filed a first amended complaint substituting Doe 1 with the name of Doe 1, the Devereux Foundation.

At issue in this hearing are two discovery motions: (1) B.E.'s motion to compel further responses to requests for admission, set one (RFAs), and related form interrogatory (FI) No. 17.1, set two (filed on January 21, 2026); and (2) B.E.'s motion to compel further deposition testimony of Doe 1's person most qualified (PMQ), to preclude substitution of Doe 1's PMQ witness, and to compel production of documents related to the Doe 1 PMQ deposition (filed on March 13, 2026). These motions are opposed. As requested by the Court, the parties submitted further briefing and separate statements as to the RFAs and FI No. 17.1.

Analysis: (1) Scope of Discovery

"A trial Court must be mindful of the Legislature's preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery ...." (Williams v. Superior Court (2017) 3 Cal.5th 531, 540 (Williams).) "Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property." (Code Civ. Proc., Sec. 2017.010.)

(2) PMQ Deposition

"If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent." (Code Civ. Proc., Sec. 2025.230.) "If a deponent fails to answer any question ... that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the Court for an order compelling that answer...." (Code Civ.

Proc., Sec. 2025.480, subd. (a).) "The deposition officer may not suspend the taking of testimony without the stipulation of all parties present unless any party attending the deposition, including the deponent, demands that the deposition officer suspend taking the testimony to enable that party or deponent to move for a protective order under Section 2025.420 on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party." (Code Civ.

Proc., Sec. 2025.470.)

Here, the record establishes that the deposition of PMQ Moraima Alvarez began on September 16, 2025, at 10:05 a.m. (Mittino Decl., Ex. C. at p. 1, ll. 14-17, p. 4, ll. 1-5.) Shortly after the deposition began, counsel for the parties began arguing on the record. (Id. at p. 34, l. 8 - p. 39, l. 25.) After counsel for B.E. complained that counsel for Devereux "ke[pt] interrupting," counsel for Devereux replied, "Okay. Then let's end the depo ...." (Id. at p. 35, ll. 11-13.) From there, things escalated further and counsel for Devereux stated in part, "Let's end the depo.

Bring your motion. We're done. We're done." (Id. at p. 35, ll. 14-16.) After counsel for B.E. told counsel for Devereux that he was "being inappropriate," counsel for Devereux replied in part, "Make your record so we can end the depo and bring your motion, all right? We're done. You cut her [Ms. Alvarez] off in the middle of her answer...." (Id. at p. 35, ll. 17-20.) After further argument, counsel for Devereux stated, "Just ask your questions or I'll end it now." (Id. at p. 39, ll. 6-7.) After counsel for B.E. asked counsel for Devereux to "please be quiet," counsel for Devereux replied, "No.

We're done. We're done. We're taking a break. We're done." (Id. at p. 39, ll. 8-11.) After counsel for B.E. stated that counsel for counsel Devereux was "not being asked questions here," counsel for Devereux replied, "No. We're done. We're done. We're off. Take me off the record. You're not going to talk to me like that...." (Id. at p. 39, ll. 14-17.) After further argument between counsel, counsel for Devereux stated, "Let's go. Let's go. We're taking a break. You can do whatever you like. We're out of here." (Id. at p. 39, ll. 20-22.)

Apparently after counsel for Devereux left the room, counsel for B.E. made a record that B.E. reserved the right to bring an appropriate motion. (Id. at p. 40, l. 3 - 42, l. 18.) At 10:54 a.m., the deposition officer and videographer suspended the PMQ deposition. (Id. at p. 42, ll. 19-25.)

Prior to the suspension of the deposition, it appears counsel for the parties lost their temper. B.E. carried his burden to demonstrate the deposition was suspended at the direction of counsel for Devereux. Devereux has not filed a motion for protective order. Thus, the termination of the deposition is not supported by substantial justification. (Code Civ. Proc., Sec. 2025.470.) Under these circumstances, the Court will grant B.E.'s motion to compel further PMQ testimony from Devereux. (Code Civ. Proc., Sec.Sec. 2025.470, 2025.480, subd. (a).)

As to B.E.'s argument about substitution of the PMQ witness, the Court will order Devereux to produce Ms. Alvarez for a minimum of two hours of PMQ testimony so that counsel for B.E. may conclude her line of questions. (Id., Sec.Sec. 2025.230, 2025.480, subd. (a).) Devereux may designate Ms. Alvarez or other officers, directors, managing agents, employees, or agents who are most qualified to testify on Devereux's behalf, to cover any remaining PMQ topics. (Id., Sec. 2025.230)

The Court will award monetary sanctions in favor of B.E. for five hours of attorney time at the rate of $500 per hour or $2,500, the filing fee of $83.77, and the Court reporting fees of $1,888.15, for a total of $4,471.92, because Devereux improperly suspended the PMQ deposition without sufficient justification. (Id., Sec. 2025.480, subd. (j); Mittino Decl., P. 47.) Counsel for the parties are ordered to treat each other, the witnesses, and the deposition officers and videographers, with an appropriate level of Courtesy and respect. (See Cal. Rules of Court, rule 9.7.)

(3) Production of Documents Related to the PMQ Deposition

A deposition notice may specify "with reasonable particularity of any materials or category of materials, including any electronically stored information, to be produced by the deponent." (Code Civ. Proc., Sec. 2025.220, subd. (a)(4).) "If a deponent fails to ... produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the Court for an order compelling that answer or production." (Code Civ. Proc., Sec. 2025.480.)

The Court has reviewed the requests for production served by B.E. and Devereux's responses, including request No. 1 (file for B.E.), request No. 2 (document retention policy for historical files), request No. 3 (complaints by B.E.), request No. 4 (historical training documents), request No. 5 (investigations pertaining to B.E.), request No. 6 (investigations pertaining to interactions with children), request No. 7 (employee handbooks from 1988 through 1998), request No. 8 (policies on reporting sexual misconduct), request Nos. 9 and 10 (policies pertaining to youth safety effective from 1988 through 1998), request No. 11 (policies pertaining to prohibited behaviors between staff and youth residents effective from 1988 through 1998), request No. 12 (policies pertaining to monitoring or reporting child abuse effective from 1988 through 1998), request No. 13 (child protection policies effective from 1988 through 1998), request No. 14 (employee or staff rosters indicating who was assigned to B.E.'s residential dorms), request No. 15 (hiring policies effective from 1988 through 1998), request No. 16 (policies pertaining to adult staff or employees being alone with children effective from 1988 through 1998), request No. 17 (investigations of sexual misconduct by Fred Ward), category 18 (investigations of sexual misconduct upon B.E.), request No. 19 (documents that list names of persons assigned to B.E.'s dorms), request No. 20 (policies pertaining to supervision and placement of minor residents with intellectual, mental and cognitive disabilities from 1988 through 1998), request No. 21 (procedures for child placement when B.E. was placed at Devereux), request No. 22 (photographs of B.E.'s dorm), request No. 23 (complaints made by B.E.), request No. 24 (documents identifying employees who separated from 1992 through 1994), request No. 25 (documents describing qualifications of staff members), and request No. 26 (policies pertaining to training standards pertaining to supervising or placing minor residents with intellectual, mental and cognitive disabilities effective from 1988 through 1998). (Mittino Decl., P. 12, Exs.

D-E; B.E. Sep. Stat. filed March 13, 2026.)

The Court will limit the scope of request No. 6 to investigations of alleged sexual misconduct at Devereux from 1988 through 1998. The Court will limit the scope of request No. 8 to policies for reporting sexual misconduct at Devereux effective from 1988 through 1998. Devereux's objections to the requests for production in the operative PMQ notice and requests for production are otherwise overruled with the exception of privilege. (Williams, supra, 3 Cal.5th at p. 540; Code Civ. Proc., Sec. 2017.010; Mittino Decl., P. 12, Exs. D-E; B.E. Sep. Stat. filed March 13, 2026.)

The Court notes that Devereux did not support its undue burden objections with evidence. B.E. contends that the documents responsive to the PMQ notice have not been produced. Devereux contends it has produced what it has located after a good faith search. Under these circumstances, the Court will require that Devereux serve a declaration detailing the status of the document production to bring clarity to the situation and move discovery forward.

Subject to the foregoing limitations, the Court will require that Devereux serve a declaration from a PMQ witness it is producing at the upcoming PMQ deposition, stating under oath, as to each request in the operative PMQ deposition notice, (1) whether Devereux has located any responsive documents in Devereux's possession, custody, or control, after a good faith search, (2) to the best of Devereux's knowledge after reasonable inquiry, whether any responsive document(s) has been destroyed, lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of Devereux, (3) the name and address of any natural person or organization known or believed by Devereux to have possession, custody, or control of any item or category of item that has been destroyed, lost, misplaced, or stolen, or is no longer, in the possession, custody, or control of Devereux, if any, and (4) that any responsive documents located after a good faith search have been produced or listed on an appropriate privilege log. (See Code Civ. Proc., Sec.Sec. 2031.220, 2031.230, 2031.240, subd. (c).)

If any documents are withheld on the basis of privilege, the Court will require that Devereux state any attorney-client privilege or work product objections with sufficient specificity for B.E. to ascertain the basis for these objections and serve a privilege log concurrently with the declaration. (See Code Civ. Proc., Sec. 2031.240, subd. (c).) The Court declines to award monetary sanctions as to the requests for production.

(4) RFAs

"(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. "(b) Each answer shall: "(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. "(2) Deny so much of the matter involved in the request as is untrue. "(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. "(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter." (Code Civ. Proc., Sec. 2033.220.)

The Court has reviewed Devereux's responses to the RFAs, the parties separate statements, and the parties' respective arguments. The Court agrees with Devereux that B.E. originally moved as to RFA Nos. 1, 15, 16, 17, 20, 21, 22, 26, 27, 28, 29, 30, and 31. (B.E. Sep. Stat., filed Jan. 21, 2026.) The Court will deny B.E.'s motion as to RFAs not included in B.E.'s original motion. The Court finds that Devereux's responses to RFA Nos. 26 (unqualified admission), 27 (unqualified admission), 29 (unqualified denial), 30 (unqualified denial), and 31 (unqualified denial) are substantially Code-compliant, and will also deny B.E.'s motion as to these RFAs. (Ibid.)

The Court declines to determine in the context of a discovery motion whether any of these RFA responses are inaccurate or untrue, as argued by B.E. The Court will overrule the objections by Devereux as to RFA Nos. 1, 15, 16, 17, 20, 21, 22, and 28. Devereux's responses to these RFAs do not substantially comply with several requirements of Code of Civil Procedure section 2033.220. Devereux responds based on lack of information, but does not state that it has conducted a reasonable investigation. (Code Civ.

Proc., Sec. 2033.220, subd. (c).) Devereux responds to only part of the RFAs rather than as much of the RFA itself or as reasonably and clearly qualified. (Code Civ. Proc., Sec. 2033.220, subd. (b).) There is no requirement that Devereux's responses be based on information that would independently be admissible at trial over a hearsay objection. (Code Civ. Proc., Sec. 2033.220, subd. (c).) Rather, the requirement is whether information known or readily obtainable is insufficient to enable Devereux to admit all or part of the matter. (Ibid.)

The Court will grant B.E.'s motion as to these RFAs and require that Devereux serve supplemental responses consistent with Code of Civil Procedure section 2033.220. The Court declines to award monetary sanctions as to the RFAs.

(5) FI No. 17.1 as to RFA Nos. 1, 15 through 17, 20 through 22, and 26 through 31

FI No. 17.1 requires Devereux to respond to RFA No. 17.1 as to each RFA that was not an unqualified admission: "17.1 Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: "(a) state the number of the request; "(b) state all facts on which you base your response; "(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and "(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing." (Forsythe Decl., Ex. A.)

Devereux failed to provide complete responses to FI No. 17.1 as to RFA Nos. 1, 15 through 17, 20 through 22, and 26 through 31. In addition to supplemental response to the RFAs required above, the Court will require Devereux to serve supplemental responses to FI No. 17.1, separately as to each supplemental RFA response that is not an unqualified admission, as to as to RFA Nos. 1, 15 through 17, 20 through 22, and 26 through 31. Devereux's supplemental responses to FI No. 17 must include full responses to each of the subcategories in FI No. 17.1 as to each RFA that is not an unqualified admission. The Court declines to award monetary sanctions as to FI No. 17.1.

Tentative Ruling: Erin O'Brien v. Santa Barbara Cottage Hospital, et al. Tentative Ruling: Erin O'Brien v. Santa Barbara Cottage Hospital, et al.