Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV474475
Margulies, J.
Petitioner Sandra Caron European Spa, Inc. (Spa) is a defendant in plaintiff and real party Jane Doe’s suit for negligence and related causes of action arising from Doe’s allegations that defendant Jong “John” Kim (one of the Spa’s employees) inappropriately touched her during a massage session. The superior court granted Doe’s motion to compel discovery of the names and contact information (addresses, telephone numbers and other contact information) for female Spa clients who saw Kim on one occasion. The order also contemplated subsequent production of additional information. This petition followed.
Kim has not joined the petition.
We agreed with the Spa that the superior court abused its discretion. The order failed to give the third party clients any opportunity to object to disclosure of their identities and other personal information, and it contained no appropriate confidentiality and sealing provisions. We therefore issued a stay and our alternative writ. We now grant the petition.
In response to the alternative writ, the superior court issued an amended order, but that order likewise failed to afford minimal protections to the third party Spa clients.
I. BACKGROUND
The operative complaint states causes of action against the Spa for negligence, premises liability, and intentional infliction of emotional distress based upon the allegation that Spa employee Kim touched Doe’s labia during a massage on July 27, 2007. Doe seeks punitive damages. Exhibits filed in conjunction with her motion to compel established that Doe had been a massage client at the Spa on 11 previous occasions. She did not report the incident to Spa personnel when it occurred, but instead discussed it with her husband and thereafter went to the police. Her report to the police on July 29, 2007 stated that the massage therapist, identified as “John,” touched her “pubic area, vagina, and breasts.” Kim was interviewed and generally denied the accusation, although he admitted that he “might have accidentally” touched her thigh. Kim has not been charged with any crime.
Doe moved to compel responses to her discovery requests for a “ ‘list of names and contact information in lieu of actual documentation’ of ‘the identity of each female client of ‘John’ Kim while he worked as a massage therapist at the Sandra Caron European Spa,’ ” for the time periods of May 16, 2006 through May 16, 2007, and January 1, 2003 to July 27, 2007. On January 5, 2009, the superior court issued the order challenged here, granting the requested discovery, but limiting production to those “female customers who saw defendant [Kim] only one time for a massage while he was working at” the Spa.
The trial court had previously granted a motion to compel similar information in an earlier case against the Spa concerning a different therapist who was criminally prosecuted and who admitted the crimes against Spa clients. Those records were eventually produced with no appellate court challenge.
II. DISCUSSION
The principles guiding our review of the order are well settled. “[T]he right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion. [Citation.]... [W]hether a legally recognized privacy interest exists is a question of law, and whether the circumstances give rise to a reasonable expectation of privacy and a serious invasion thereof are mixed questions of law and fact. [Citation.] ‘If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.’ [Citation.]” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370–371 (Pioneer Electronics).)
Reiterating its holding in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill), the Supreme Court in Pioneer Electronics described the “analytical framework for assessing claims of invasion of privacy under the state Constitution. First, the claimant must possess a legally protected privacy interest.’ [Citation.] An apt example from Hill is an interest ‘in precluding the dissemination or misuse of sensitive and confidential information (“informational privacy”)....’ [Citation.] Under Hill, this class of information is deemed private ‘when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.’ [Citation.] Additionally, Hill recognized the interest ‘in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (“autonomy privacy”).’ [Citation.] As with claims of informational privacy, we must examine whether established social norms protect a person’s private decisions or activities from ‘public or private intervention.’ [Citation.] [¶] Second, Hill teaches that the privacy claimant must possess a reasonable expectation of privacy under the particular circumstances, including ‘customs, practices, and physical settings surrounding particular activities....’ [Citation.] As Hill explains, ‘A “reasonable” expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.’ [Citation.] ‘[O]pportunities to consent voluntarily to activities impacting privacy interests obviously affect[] the expectations of the participant.’ [Citation.] [¶] Third, Hill explains that the invasion of privacy complained of must be ‘serious’ in nature, scope, and actual or potential impact to constitute an ‘egregious’ breach of social norms.... [¶] Assuming that a claimant has met the foregoing Hill criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a ‘ “balancing test.” ’ ” (Pioneer Electronics, supra, 40 Cal.4th at pp. 370–371)
We review the trial court’s determination under the abuse of discretion standard. (Pioneer Electronics, supra, 40 Cal.4th at pp. 371–372.)
Contrary to Doe’s argument and the trial court’s conclusion, the privacy interest here is readily apparent. The records potentially disclose residential addresses and telephone numbers. “Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.” (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 359.) A customer’s name and personal contact information reveal the fact of her visit to a massage therapist at the Spa. Doe and the trial court apparently view the business as something akin to a barbershop, with no expectation on the part of the client that the visit was a private matter. The record is otherwise. Doe visited the Spa for a medical reason—therapy for her neck. She undressed in a locker room, put on a robe, sat in a relaxation room, and during the massage, disrobed and was covered only by a sheet and blanket. Clients visiting the Spa disclosed their health histories as well as their personal contact information. Doe asserts that clients would want their information disclosed, but nothing in the record supports such speculation, other than Doe’s arguments concerning the similar discovery order entered in the earlier lawsuit against the Spa, which was apparently never challenged.
Moreover, nowhere in the record is there support for Doe’s argument that third party clients of the Spa would anticipate disclosure of their patronage. To the contrary, a disclosure is on its face a necessarily undue intrusion into their personal lives potentially revealing personal secrets and intimate activities. There is nothing to indicate that Spa clients would have reason to expect that it would occur. In addition, unlike the class members in Pioneer Electronics who had initially self-identified by making complaints to the vendor, the women here have never stepped forward. Indeed, we observe that Doe conceals her own identity in this proceeding.
The third party clients’ privacy interests must be balanced against Doe’s asserted right to discovery. This is not a class action, and Doe does not argue otherwise. She claims, instead, that the third party clients are “witnesses” in her case. Doe is wrong. These clients are not percipient witnesses to the alleged assault against Doe. The fact that Doe reasonably suggests that they may offer evidence relevant to the allegedly inadequate “hiring, retention and supervision practices” of the Spa does not, at this stage of the proceeding, make them “witnesses.” Furthermore, even as witnesses, in this civil litigation they would be entitled to the protections we require today. (Pioneer Electronics, supra, 40 Cal.4th 360, 373; Planned Parenthood Golden Gate v. Superior Court, supra, 83 Cal.App.4th 347.)
We agree that Doe has described a cognizable right to discovery; however, our inquiry does not end with that conclusion. When we issued our alternative writ, we expressed our concern that the superior court’s order granting the motion to compel failed to comply with well-settled case law concerning disclosure of private third party information, in violation of the reasonable expectation of privacy of the third party, female customers. (See Pioneer Electronics, supra, 40 Cal.4th 360 and Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785 [notice and opportunity to object]; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 [appropriate confidentiality and sealing orders].) The superior court’s subsequent amended order did not cure these defects.
Doe believes that Pioneer Electronics supports her argument that the third party clients are not entitled to an opportunity to object to disclosure of their private information. Doe misreads the case. First, the case was a class action, albeit at the precertification stage. The customers whose contact information was at issue had self-identified by affirmatively complaining to the company. The company, not the plaintiffs’ attorney, was the party directed to mail the letter that “imposed important limitations, requiring written notice of the proposed disclosure to all complaining Pioneer customers, giving them the opportunity to object to the release of their own personal identifying information.” (Pioneer Electronics, supra, 40 Cal.4th at p. 373.) No such opportunity was given to the women in this case.
Cases relied upon by Doe to dispense with a procedure for notice and opportunity to object are also not supportive in the circumstances of this case. In Alch v. Superior Court (2008) 165 Cal.App.4th 1412 (Alch),a privacy notice had in fact gone out to those whose information was at issue and 7,700 people objected. (Id. at p. 1420.) The issue in the case concerned the propriety of the trial court’s order sustaining those objections. Over a dissent, the majority reversed the trial court, remanding for a new order consistent with the opinion’s analysis. Notably, strong protective orders were in place. (Id. at p. 1432.)
We express no opinion concerning the Alch majority’s conclusion.
In Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, an employment class action, employee names and addresses were disclosed for the mailing of a court-approved opt-out notice, to be mailed by Belaire-West. Nothing in the opinion suggests that names were disclosed to plaintiffs.
Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, and Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, are employment law cases granting discovery of employee contact information, with no notice or opportunity to object. We need not decide whether we agree with the analysis or conclusion of these cases, which disclosed information without “[p]rotective measures, safeguards and other alternatives.” (Pioneer Electronics, supra, 40 Cal.4th at pp. 371, 373.) In each, the appellate court stressed the fact that the suits concerned the rights of the employees involved, who were potential class members and percipient witnesses to the conduct at issue in the complaints, concluding that “this type of discovery should not be restricted unless the trial court is able to identify privacy concerns... which outweigh the plaintiff’s right to discovery.” (Crabb Addison, Inc. v. Superior Court, at p. 970.)
In contrast, the disclosure of a woman’s visit to the Spa necessarily implicates serious privacy concerns which may or may not ultimately outweigh Doe’s right to discovery, but which at least require the protections approved and often required by our high court. (Pioneer Electronics, supra, 40 Cal.4th at pp. 371, 373; Colonial Life & Accident Ins. Co. v. Superior Court, supra, 31 Cal.3d 785; Valley Bank of Nevada v. Superior Court, supra, 15 Cal.3d 652.) The trial court’s original order included no safeguards for maintaining the confidentiality of the third party client information. The amended order directed disclosure of the information to all attorneys and their employees, and provided for its use in this litigation. As is apparent from our discussion above, these provisions are inadequate, allowing Doe’s counsel access to and use of the information prior to any notice or opportunity to object.
III. CONCLUSION AND DISPOSITION
We hold that the trial court abused its discretion and therefore erred. It failed to require written notice to the third party clients of the proposed release of their contact and or other information to Doe’s attorney and of their right to object to such disclosure. The trial court also failed to ensure that any such information would be maintained in confidence and under seal until further consideration by the court of objections, if any, by the third party clients.
We reject the Spa’s argument that affirmative consent to disclosure is required. On the record before us, an order affording the third party clients notice and opportunity to object appears sufficient.
Let a peremptory writ of mandate issue commanding respondent Superior Court of San Mateo County to set aside its January 5, 2009 “Order Granting Plaintiff’s Motion to Compel Further Discovery Responses” requiring disclosure to plaintiff’s counsel of “the names and all other contact information in [the Spa’s] possession for all female customers who saw defendant JONG ‘JOHN’ KIM only one time for a massage while he was working at SANDRA CARON EUROPEAN SPA,” and its March 10, 2009 “Amended Order Re: Plaintiff’s Motion to Compel,” and to instead take the following actions: (1) Require the mailing of a court-approved notice (by the Spa or the court) to the specified female clients, in a manner calculated to ensure that the notices reach the clients. The notice shall afford the clients a reasonable opportunity to state their reasons for objecting to disclosure of their information. (2) After balancing any objections against Doe’s claimed right to discovery, make a further order granting or denying disclosure of contact information to Doe. (3) Any further disclosure order shall contain appropriate confidentiality and sealing provisions, and shall place reasonable limitations on the time, place and manner by which the clients may be contacted.
The stay orders previously imposed shall remain in effect until issuance of the remittitur.
Petitioner shall recover its costs.
We concur: Marchiano, P.J. Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.