Knoettgen v. Superior Court

Opinion

KLEIN (B.), J.

*

By petition for a writ of mandate, a plaintiff challenges an order granting defendant’s motion to compel discovery in a battery and employment discrimination action.

Petitioner’s complaint alleges the following. In about 1978, she was the first woman ever hired by defendant Transit Mixed Concrete Company as a concrete truck driver. She remained its only woman driver for four years. In March 1989 a coworker, defendant Steve Corral, criminally assaulted petitioner at work. It is unnecessary, for purposes of this opinion, to describe

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this assault in detail. It is sufficient to say that while Corral and his employer might hope to characterize it as mere friendly horseplay in celebration of petitioner’s 30th birthday, what petitioner alleges is blatant hands-on sexual harassment. Petitioner also alleged harassment by other employees on numerous occasions.

Investigating the attack by Corral, the employer learned petitioner had been attacked by men twice in her childhood. At her deposition, petitioner refused to answer the employer’s questions about those events. The employer moved for an order compelling her to answer. The trial court granted the motion, and this petition followed.

This type of discovery is governed by Code of Civil Procedure section 2017, subdivision (d), which provides, in pertinent part, as follows: “(d) In any civil action alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery, any party seeking discovery concerning the plaintiff’s sexual conduct with individuals other than the alleged perpetrator is required to establish specific facts showing good cause for that discovery, and that the matter sought to be discovered is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence. This showing shall be made by noticed motion and shall not be made or considered by the court at an ex parte hearing . . . .”

Transit argued to the trial court that this statute does not apply to prior sexual assaults on a plaintiff, because they are not consensual sexual activity. Evidently the trial court agreed.