Grace Hartell vs Jonathan Mark Hartell

Case Number

Case Type Civil Law & Motion Hearing Date / Time Mon, 06/29/2026 - 10:00 Nature of Proceedings Motions to Compel (3) Tentative Ruling Grace Hartell v. Jonathan Mark Hartell Case No. 24CV06263

Hearing Date: June 29, 2026 HEARING: Motion of Defendant to Compel Further Responses to Requests for Production of Documents Motion of Defendant to Compel Further Responses to Special Interrogatories Motion of Defendant to Compel Further Responses to Form Interrogatories ATTORNEYS: For Plaintiff Grace Hartell: Joshua E. Lynn, Elizabeth A. O'Brien, Lynn & O'Brien, LLP For Defendant Jonathan Mark Hartell: R. Chris Kroes, William P. Frusetta, McCarthy & Kroes

TENTATIVE RULING: The motion of defendant Jonathan Mark Hartell to compel further responses to requests for production, set one, Nos. 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 is granted as set forth herein. Plaintiff Grace Hartell shall provide verified further responses, without objection except as to privilege, in a form complying with the Code of Civil Procedure, on or before July 20, 2026. With respect to any objection on the grounds of privilege, plaintiff shall provide a privilege log identifying the specific document or specifically identifiable category of documents, the applicable privilege, and sufficient additional information for the court to rule on the claim of privilege.

Defendant shall concurrently produce all responsive documents not previously produced except those documents identified in the privilege log as withheld from production. The motions of defendant Jonathan Mark Hartell to compel further responses to special interrogatories, set one, and form interrogatories, set one, are denied as untimely.

Background: On November 8, 2024, plaintiff Grace Hartell filed the original complaint in this action against defendant Jonathan Mark Hartell alleging causes of action for: (1) battery; (2) negligence per se; (3) negligence; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) intentional misrepresentation; and (7) negligent misrepresentation. As alleged in the complaint, plaintiff and defendant were married, but are, and have been since February 2023, involved in a marital dissolution action. (Complaint, P. 7.) Plaintiff alleges that she was infected with high-risk human papilloma virus (HPV) and suffered issues with her reproductive health as a consequence of defendant's extramarital sexual activity. (Complaint, P.P. 8-13.)

On January 15, 2025, defendant filed his answer to the complaint, generally denying the allegations thereof and asserting an affirmative defense. On May 7, 2025, upon stipulation and order of the court, defendant filed a first amended answer, generally denying the allegations of the complaint and asserting 10 affirmative defenses. On August 18, 2025, defendant served a first set of requests for production of documents on plaintiff (RFP), a first set of special interrogatories (SI), and a first set of form interrogatories (FI). (Frusetta decl. re RFP, P. 3 & exhibit 2; Frusetta decl. re SI, P. 2 & exhibit 2; Frusetta decl. re FI, P. 2 & exhibit 2.)

On October 20, 2025, plaintiff served responses to the RFP including objections. (Frusetta decl. re RFP, P. 4 & exhibit 3.) Plaintiff also served verified responses to the SI and FI. (Frusetta decl. re SI, P. 3 & exhibit 3; Frusetta decl. re FI, P. 3 & exhibit 3.) On December 16, 2025, the parties executed a stipulated protective order. (Frusetta decl. re RFP, P. 5 & exhibit 4; Frusetta decl. re SI, P. 4; Frusetta decl. re FI, P. 4.) No party has yet requested that the stipulation be made an order of the court.

On January 22, 2026, plaintiff produced documents, but did not provide supplemental responses to the RFP. (Frusetta decl. re RFP, P. 6.) On February 11, 2026, counsel for defendant sent a meet and confer letter to counsel for plaintiff regarding asserted deficiencies in plaintiff's responses. (Frusetta decl. re RFP, P. 7 & exhibit 5; Frusetta decl. re SI, P. 6 & exhibit 5; Frusetta decl. re FI, P. 6 & exhibit 5.) On February 24, 2026, plaintiff served unverified amended responses to the RFP. (Frusetta decl. re RFP, P. 8 & exhibit 6.)

In the course of meet and confer discussions, the parties agreed to extensions regarding the filing of a motion to compel. (Frusetta decl. re RFP, P. 9 & exhibit 7; Frusetta decl. re SI, P. 5 & exhibit 4; Frusetta decl. re FI, P. 5 & exhibit 4.) On February 27, 2026, defendant filed these three motions to compel further responses to the RPF, SI, and FI. The motions are opposed.

Analysis: (1) Motion to Compel Further Responses to RFP Defendant moves to compel further responses to RFP Nos. 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17. "On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: "(1) A statement of compliance with the demand is incomplete. "(2) A representation of inability to comply is inadequate, incomplete, or evasive. "(3) An objection in the response is without merit or too general." (Code Civ.

Proc., Sec. 2031.310, subd. (a).) "A motion under subdivision (a) shall comply with each of the following: "(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. "(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040." (Code Civ. Proc., Sec. 2031.310, subd (b).)

RFP No. 1 is: "All DOCUMENTS reflecting or relating to any diagnosis, testing, or treatment YOU received for HPV or any other STI at any time." The original response to RFP No. 1 is: "Objection. Plaintiff objects to this request on the grounds that it seeks documents protected by the right to privacy under Article I, Section 1 of the California Constitution, and by the physician-patient privilege codified in Evidence Code Sec.Sec. 990-1007. These records contain sensitive and confidential information that is not subject to unrestricted disclosure. "Subject to and without waiving the foregoing objections, and subject to entry of an appropriate protective order safeguarding the confidentiality of such records, Plaintiff is willing to produce relevant, non-privileged medical records limited to the injuries and conditions placed at issue in this action.

Plaintiff therefore withholds production pending execution of a mutually agreeable protective order consistent with Code of Civil Procedure Sec. 2031.060(b), which authorizes the court to make any order that justice requires to protect a party from unwarranted annoyance, embarrassment, or oppression." The amended response to RFP No. 1 is: "Objection. Plaintiff objects to this request on the grounds that it seeks documents protected by the right to privacy under Article I, Section 1 of the California Constitution, and by the physician-patient privilege codified in Evidence Code Sec.Sec. 990-1007.

These records contain sensitive and confidential information that is not subject to unrestricted disclosure. "Subject to and without waiving the foregoing objections, and subject to the executed mutually agreeable protective order consistent with Code of Civil Procedure Sec. 2031.060(b) safeguarding the confidentiality of such records, Plaintiff has produced responsive documents in their possession, custody, or control."

The court construes the amended response (as contrasted with a supplemental response) as replacing the original response. The first issue is that the amended response is not verified. This issue was raised in the moving papers; plaintiff did not provide any evidence that a verification for the amended response has been served. All substantive responses--original, amended, and supplemental--must be verified. (Code Civ. Proc., Sec. 2031.250, subd. (a).) A verification will be required. "[T]he party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance." (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Defendant has shown good cause based upon the allegations of the complaint. (Frusetta decl. re RFP, P. 2.)

"A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production." (Code Civ.

Proc., Sec. 2031.220.) "If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category." (Code Civ. Proc., Sec. 2031.240, subd. (a).) "If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: "(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. "(2) Set forth clearly the extent of, and the specific ground for, the objection.

If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted." (Code Civ. Proc., Sec. 2031.240, subd. (b).)

A sufficient response by statement that the responding party will comply with a request, in whole or in part, must identify either that all responsive documents within the possession, custody, or control of the responding party have been, or will be, produced or that all responsive documents have been, or will be, produced except for those identified documents withheld on the grounds of an objection. In view of the statement of compliance as subject to objections and subject to the protective order stipulation, it is unclear to what extent, if any, responsive documents are within the possession, custody, or control of plaintiff but are being withheld from production. A further response will be required. The same analysis and conclusion applies to RFP Nos. 1, 2, 3, 6, 7, 8, 9, 10, 12, 14, 15, and 17.

While the above discussion applies equally to RFP Nos. 11 and 13, plaintiff makes additional arguments as to RFP Nos. 11 and 13. RFP No. 11 is: "All DOCUMENTS reflecting communications between YOU and any third party, including healthcare providers, therapists, friends, or family members, in which YOU discussed the cause, source, or timing of YOUR HPV infection." The original response to RFP No. 11 is: "Objection. Plaintiff objects to this request on the grounds that it seeks documents protected by the right to privacy under Article I, Section 1 of the California Constitution, and by the physician-patient privilege codified in Evidence Code Sec.Sec. 990-1007.

These records contain sensitive and confidential information that is not subject to unrestricted disclosure. "Subject to and without waiving the foregoing objections, and subject to entry of an appropriate protective order safeguarding the confidentiality of such records, Plaintiff is willing to produce relevant, non-privileged medical records limited to the injuries and conditions placed at issue in this action. Plaintiff therefore withholds production pending execution of a mutually agreeable protective order consistent with Code of Civil Procedure Sec. 2031.060(b), which authorizes the court to make any order that justice requires to protect a party from unwarranted annoyance, embarrassment, or oppression."

The amended response to RFP 11 is: "Objection. Plaintiff objects to this request on the grounds that it seeks documents protected by the right to privacy under Article I, Section 1 of the California Constitution, and by the physician-patient privilege codified in Evidence Code Sec.Sec. 990-1007. These records contain sensitive and confidential information that is not subject to unrestricted disclosure. "Subject to and without waiving the foregoing objections, and subject to the executed mutually agreeable protective order consistent with Code of Civil Procedure Sec. 2031.060(b) safeguarding the confidentiality of such records, Plaintiff has produced responsive documents in their possession, custody, or control."

Although plaintiff argues privilege issues in the context of RFP No. 11, as with RFP No. 1, it is unclear the extent, if any, that documents are being withheld on that ground. A further response will be required. To the extent documents are withheld, the parties can meet and confer, and, if necessary, the court can address the objection in the context of a privilege log.

RFP No. 13 is: "All DOCUMENTS reflecting therapy, counseling, or psychiatric treatment YOU received where YOUR health, sexual history, or the HPV diagnosis was discussed." The original response to RFP No. 13 is: "Objection. Responding Party objects to this Request in that it seeks DOCUMENTS that are protected by the therapist-patient privilege. Responding party further objects that this request is oppressive and burdensome in that it is overly broad in time and without reasonable limitation in scope.

Responding party will not produce these documents." The amended response to RFP No. 13 is: "Objection. Responding Party objects to this Request in that it seeks DOCUMENTS that are protected by the therapist-patient privilege. Responding party further objects that this request is oppressive and burdensome in that it is overly broad in time and without reasonable limitation in scope. Responding party will not produce these documents."

As with RFP No. 1, defendant has shown good cause for this request. With respect to the overly broad and burdensome objection, the burden is on plaintiff to justify this objection. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) Plaintiff provides no evidence or argument explaining why or how production would be burdensome. That objection is overruled. The overly broad objection is in essence a variation of the privilege objection. "[T]he patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist ...." (Evid.

Code, Sec. 1014.) There is no apparent dispute that this request seeks production of documents falling broadly within the patient-psychotherapist privilege of section 1014. "There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: [P.] (a) The patient." (Evid. Code, Sec. 1016, subd. (a).)

"[T]he patient-litigant exception allows only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the nature of the specific 'emotional or mental' condition which the patient has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquiries. Furthermore, even when confidential information falls within this exception, trial courts, because of the intimate and potentially embarrassing nature of such communications, may utilize the protective measures at their disposal to avoid unwarranted intrusions into the confidences of the relationship." (In re Lifschutz (1970) 2 Cal.3d 415, 431.)

Plaintiff's claims arise from allegations regarding plaintiff's health condition following the HPV diagnosis and regarding defendant's failure to warn of the possibility of infection. "[W]here the patient files a claim for mental suffering and damage, disclosure can be compelled only with respect to communications which are directly relevant to the specific conditions placed at issue by the patient's pleadings. 'Disclosure cannot be compelled with respect to other aspects of the patient-litigant's personality even though they may, in some sense, be "relevant" to the substantive issues of litigation.' [Citation.]" (Roberts v.

Superior Court (1973) 9 Cal.3d 330, 337-338.)

"Recognizing that the patient may alone possess knowledge of the contents of the privileged communications and of the nature of the injuries for which redress is being sought, ... 'the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court.' In order to fulfill this burden, the 'patient may have to delimit his claimed "mental or emotional distress" or explain, in general terms, the object of the psychotherapy in order to illustrate that it is not reasonably probable that the psychotherapeutic communications sought are directly relevant to the mental condition that he has placed in issue.' [Citation.]" (Roberts v.

Superior Court, supra, 9 Cal.3d at p. 338.) The general objection is sufficient to preserve the privilege to the extent it is shown to apply. However, the general objection is insufficient for the court to determine that all documents responsive to this request are subject to the privilege and not subject to the patient-litigant exception. A further response will be required to provide that information.

(2) Motion to Compel Further Responses to Interrogatories "On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: "(1) An answer to a particular interrogatory is evasive or incomplete. "(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. "(3) An objection to an interrogatory is without merit or too general." (Code Civ. Proc., Sec. 2030.300, subd. (a).)

With respect to both the motion to compel further responses to form interrogatories and the motion to compel further responses to special interrogatories, plaintiff argues that the motions are untimely. "Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories." (Code Civ.

Proc., Sec. 2030.300, subd. (c).) The verified responses at issue here were served on October 20, 2025. Thus, the 45-day period as measured from service of the responses would have expired on December 8, 2025 (adding two court days for electronic service). These motions were filed on February 27, 2026. Absent a written agreement extending the time to file the motions, the motions would be untimely.

Defendant argues that the motions are timely because of a written agreement for an extension of time set forth in emails between counsel. On November 19, 2025, counsel for defendant, attorney William Frusetta, sent an email to counsel for plaintiff, attorney Elizabeth O'Brien, stating: "Would you mind agreeing to continue our deadline to file a motion to compel until January 1, 2026? That way we have time to figure out the Protective Order and then look at the responses." (Frusetta decl., exhibit 4, p. 67.) The response was: "Sure." (Ibid.)

On December 18, 2025, Frusetta sent an email to O'Brien, stating: "I don't mean to pry, but I was wondering if you have an estimate on when you may expect to produce the documents and provide code compliant responses. I had asked for a relatively long extension to my deadline, and the time in reviewing/signing the protective order was longer than anticipated, but I don't want to run up to a deadline. Just trying to keep an eye on things." (Frusetta decl., exhibit 4, p. 66.) There was no reply. Frusetta followed up on December 30: "Hi again. Checking in on this because otherwise I have my deadline." (Ibid.) The reply was: "Sorry William - I have been in and out of the office for the holidays. I am sure I can get them to you by the end of next week - we can extend whatever deadline until after that. What date do you propose?" (Ibid.)

Frusetta responded, stating: "Okay, totally understand. If you can produce the documents by the end of next week, would you agree to a two-week extension beyond that day? So, January 23? [P.] Beyond that, we're very interested in the full production of medical records to get a grasp on everything in connection with the allegations. After that, I may want to have a call with you to check-in on the direction of the case. There are also a few responses I'm likely to need to meet and confer on, but I presume with the production of documents that the responses will give code-compliant statements of compliance, but we can review that issue later." (Ibid.)

O'Brien responded on January 12, 2026, stating: "I apologize that I was not able to get the discovery to you last week - my youngest daughter came down with pneumonia and I was out of the office for most of the week. I should be able to finalize this week and will extend any deadline concurrently with that." (Frusetta decl., exhibit 4, p. 65.)

Frusetta replied, stating: "That's fine, one week after January 23 is January 30." (Ibid.) On January 20, Frusetta sent an email asking for an update. (Ibid.) O'Brien responded: "Completely my fault - I just need to review the documents that have been Bates Stamped and will get them to you tomorrow." (Id., p. 64.) On January 22, Frusetta sent an email, stating: "Do you mind agreeing to another week extension to our deadline to file a Motion to Compel? We're coming up on it again." (Frusetta decl., exhibit 4, p. 64.)

This was followed by O'Brien stating: "Yes that is fine - you should get docs today." (Id., p. 63.) Additional email exchanges involved document production until Frusetta emailed a letter on February 11, 2026, which included a discussion of other discovery. (Frusetta decl., exhibit 4, p. 60 & exhibit 5.) At that point the parties disputed whether the prior extensions included disputes as to the interrogatories.

Code of Civil Procedure section 2030.300, subdivision (c) requires a written agreement to extend the 45-day deadline. An agreement requires the parties' consent to the same thing in the same sense. (See Civ. Code, Sec. 1580.) Defendant has not met his burden to show a written agreement that includes motions to compel further responses to the interrogatories. The email discussion focused only upon the production of documents, and initially upon the protective order as it related to the production of documents.

The protective order was not raised as an issue with respect to the interrogatory responses. Moreover, the extension discussed only "a" motion to compel, consistent with a discussion limited to the RFP document dispute. While Frusetta may have assumed the extension included motions to compel further responses to interrogatories, the email discussion does not demonstrate any agreement of the parties beyond the RFP document discovery dispute and a party's subjective intent is not relevant to determining whether there was an agreement (Stewart v.

Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1587). The court concludes that defendant has not shown an agreement of the parties to extend the time to file motions to compel further responses to the FI or to the SI. Accordingly, these motions will be denied as untimely. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409 [court has no authority to grant a late motion subject to objection on that ground].)

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