Barbee argues that he has a legally protected privacy interest in pursuing an "intimate relationship." By using the phrase "intimate relationship," and arguing that his right to privacy under article I, section 1 protects the "sexual lives of the unmarried" ( Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 800 [ 76 Cal.Rptr.2d 727]), Barbee appears to contend that he has a legally protected privacy interest in pursuing a sexual relationship with Tomita. Barbee has not cited, and we have not found, any California cases that have directly addressed whether a person has a privacy interest in pursuing an intimate relationship under the state constitutional right to privacy.
See, e.g., Vinson v. Superior Court (1987) 43 Cal.3d 833, 843, 239 Cal.Rptr. 292, 740 P.2d 404 (Vinson ) (quoting the Legislature's uncodified statement of intent and strictly construing "good cause" for civil discovery, requiring "specific facts justifying inquiry"); Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 801, 76 Cal.Rptr.2d 727 (Barrenda L. ) (stating that "good cause" for civil discovery requires more than "[t]he mere fact that a plaintiff has initiated an action seeking damages for extreme mental and emotional distress"); Knoettgen v. Superior Court (1990) 224 Cal.App.3d 11, 14, 273 Cal.Rptr. 636 (Knoettgen ) (asserting that courts must be "vigilant" when allowing civil discovery concerning prior sexual abuse); Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 573, 253 Cal.Rptr. 731 (Mendez ) (observing that emotional distress is a normal product of sexual abuse and to regularly allow discovery intruding on such privacy would violate the Legislature's intent).
"Because the requested material is constitutionally protected, the ordinary yardstick for discoverability, i.e., that the information sought may lead to relevant evidence, is inapplicable." ( Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 392 [ 97 Cal.Rptr.2d 12]; see also Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 369 [ 99 Cal.Rptr.2d 627] [appellate court reversed discovery order requiring staff members of family planning nonprofit organization to reveal home addresses and telephone numbers to anti-abortion litigants; discovery proponents "have not demonstrated a need for the discovery which would justify an invasion of the substantial privacy interests involved"]; Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 802 [ 76 Cal.Rptr.2d 727], italics added [proponent in sexual molestation case failed to show "good cause" that discovery was both "relevant and necessary" to determine the cause of plaintiffs' emotional distress].) Ampersand misconstrues dicta in Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868 [ 44 Cal.Rptr.2d 46] ( Lafayette Morehouse), an early anti-SLAPP case, for the proposition that trial courts should "liberally" allow pre-SLAPP discovery in defamation cases.
evidence is "relevant" to impeachment and "not inadmissible pursuant to [s]ection 352" (id. , subd. (d)). Unlike section 1106, these statutes allow for a case-by-case approach that sometimes allows for the discovery and limited admissibility of a plaintiff's sexual conduct, which puts them in some "tension" with section 1106 ( People v. Rioz (1984) 161 Cal.App.3d 905, 916-917, 207 Cal.Rptr. 903 ( Rioz ); People v. Chandler (1997) 56 Cal.App.4th 703, 707-708, 65 Cal.Rptr.2d 687 ( Chandler )). Courts have tried to minimize this tension by construing "good cause" under Code of Civil Procedure section 2017.220 narrowly and by applying more scrutiny to the section 352 analysis under section 783 (as well as by highlighting the need for limiting instructions when evidence is admitted solely for impeachment purposes under section 783 ). ( Vinson , supra , 43 Cal.3d at pp. 843-844, 239 Cal.Rptr. 292, 740 P.2d 404 ["good cause" construed strictly to require "specific facts justifying inquiry"]; Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 801, 76 Cal.Rptr.2d 727 [" ‘good cause’ " requires more than "[t]he mere fact that a plaintiff has initiated an action seeking damages for extreme mental and emotional distress"]; Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 572-573, 253 Cal.Rptr. 731 [same], overruled in part by Williams v. Superior Court (2017) 3 Cal.5th 531, 220 Cal.Rptr.3d 472, 398 P.3d 69 ; Knoettgen , supra , 224 Cal.App.3d at pp. 14-15, 273 Cal.Rptr. 636 [courts must be "vigilant" when allowing discovery of prior sexual abuse]; Chandler , at p. 708, 65 Cal.Rptr.2d 687 [courts should "narrowly exercis[e]" their discretion under section 783 ]; Rioz , at pp. 918-919, 207 Cal.Rptr. 903 [noting that "[g]reat care must be taken" to ensure section 783 does not "become a ‘back door’ for admitting otherwise inadmissible evidence"]). That tension is especially pronounced in cases like this one, where a plaintiff seeking to recover emotional distress damages will typically need to testify to establish that the defendant's conduct has infl