Judge: Anne Richardson, Case: 22STCV30740, Date: 2023-11-03 Tentative Ruling

Case Number: 22STCV30740    Hearing Date: April 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Court Order

I. Background

A. Pleadings

Plaintiff Marcus Webster sues Defendants the Regents of the University of California (the Regents)—as owner, operator, and/or entity controlling medical clinics and hospitals that are part of the UCLA health system, including the Ronald Reagan UCLA Medical Center (UCLA Reagan)—and Does 1 through 50 pursuant to a June 22, 2023 Second Amended Complaint alleging claims of (1) Discrimination in Violation of the FEHA [Fair Employment and Housing Act], (2) Retaliation in Violation of the FEHA, (3) Harassment in Violation of the FEHA, (4) Failure to Take Steps to Prevent Discrimination, and Harassment in Violation of FEHA, (5) Retaliation Under Cal. Health & Safety Code § 1278.5, (6) Declaratory Relief, and (7) Retaliation under Labor Code § 1102.5.

While the caption of the SAC names a number of individuals as Defendants in this action—including Jasmine Briones—the claims alleged in the SAC are only directed at the Regents and Does 1 through 50.

On July 21, 2023, the Regents filed an Answer to the SAC.

B. Relevant Procedural History

On June 20, 2023, Plaintiff Webster’s counsel served the Regents with Requests for Production of Documents (RPDs), Set Three, Nos. 40-57.

On August 11, 2023, the Regents served responses to RPDs, Set Three, responding with objections alone to RPDs, Set Three, Nos. 40-46 and 48-50.

On August 15, 2023, Plaintiff’s counsel served a meet and confer letter on the Regents’ counsel regarding the deficiency of the Regents’ responses to RPDs, Set Three, Nos. 40-46 and 48-50.

On August 25, 2023, counsel for the parties conferred by phone regarding the allegedly deficient responses, subsequently continuing the meet and confer process via email. Plaintiff’s counsel offered concessions relating to RPDs, Set Three, Nos. 40-46 and 48-50, but the Regents stood by their objections. The parties nevertheless agreed to an informal discovery conference (IDC) for October 20, 2023, and to a continuance of the motion to compel further deadline to October 23, 2023, with later agreements extending the motion to compel deadline to February 2, 2024.

On October 11, 2023, Plaintiff Webster deposed Defendant Scott Karas.

On October 20, 2023, the Court held the IDC between the parties, the result of which was a partial resolution on motion to compel issues.

Between late-October and December 2023, counsel for the parties continued to meet and confer regarding RPDs, Set Three, Nos. 40-46 and 48-50.

On December 6, 2023, the Regents served supplemental responses to RPDs, Set Three, Nos. 40-46 (no responsive documents exist or have ever existed) but failed to supplemental its responses to RPDs, Set Three, Nos. 48-50.

Counsel for the parties subsequently met and conferred regarding the Regents’ failure to supplement responses to Request Nos. 48-50 and the sufficiency of the responses in relation to Request Nos. 40-46.

On January 26, 2024, the Regents’ counsel informed Plaintiffs’ counsel that the Regents would not be supplementing their responses or producing documents in relation to RPDs, Set Three, Nos. 48-50 and that the supplemental responses to RPDs, Set Three, Nos. 40-46 were Code-compliant.

C. Motion Before the Court

On February 2, 2024, Plaintiff Webster filed a motion to compel further production from the Regents in relation to RPDs, Set Three, Nos. 40-46 and 48-50.

On April 3, 2024, the Regents filed an opposition to Plaintiff’s motion.

On April 5, 2024, the Regents filed a supplemental declaration from counsel.

On April 9, 2024, Plaintiff Webster filed a reply to the Regents’ opposition.

Plaintiff Webster’s motion is now before the Court.

II. Motion to Compel Further Production and Request for Sanctions

A. Request for Judicial Notice: GRANTED.

Per Plaintiff Webster’s request, the Court takes judicial notice of the Complaint and proof of service for the Complaint in this action. (Mot., RJN, p. 2, Ex. A; Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

B. Further Production: DENIED.

1. Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)

To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, complete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).

2. Analysis

a. RPDs, Set Three, Nos. 40-46

i. Plaintiff’s Requests

RPDs, Set Three, No. 40: “All DOCUMENTS RELATING TO the incident described in paragraph 6 of the declaration Bates No. WEBSTER000126-WEBSTER000131 [a declaration by Siobhan Johnson produced by Plaintiff to the Regents relating a complaint in an anonymous note to Siobhan Johnson asking why Johnson was hiring so many Black individuals], including Exhibit 1 referenced in that paragraph.”

RPDs, Set Three, No. 41: “All DOCUMENTS RELATING TO any investigation by YOU into the incident described in paragraph 6 of the declaration Bates No. WEBSTER000126-WEBSTER000131, including Exhibit 1 referenced in that paragraph.”

RPDs, Set Three, No. 42: “All DOCUMENTS RELATING TO any formal or informal complaints or reports to YOU by Siobhan Johnson.”

RPDs, Set Three, No. 43: “All DOCUMENTS RELATING TO YOUR RESPONSE or investigation to any formal or informal complaints or reports to YOU by Siobhan Johnson.”

RPDs, Set Three, No. 44: “All DOCUMENTS RELATING TO any formal or informal complaints or reports involving Siobhan Johnson.”

RPDs, Set Three, No. 45: “All DOCUMENTS RELATING TO YOUR RESPONSE or investigation to any formal or informal complaints or reports involving Siobhan Johnson.”

RPDs, Set Three, No. 46: “All COMMUNICATIONS between Siobhan Johnson and Scott Karas.”

(Mot., Kalinowski Decl., Ex. 1, pp. 3-4.)

ii. The Regents’ Objections

The Regents state 13 general objections: (1) Attorney-client and word product privileges; (2) undue burden in expenditure of time and money to answer the request or locate responsive documents or things; (3) overbreadth in time and scope; (4) vague, ambiguous, uncertain, argumentative, unintelligible, and/or indefinite; (5) calls for legal conclusion; (6) cumulative discovery; (7) not relevant or reasonably calculated to lead to the discovery of admissible evidence; (8) lack of foundation; (9) compound requests; (10) trade secret privilege; (11) confidential and proprietary information; (12) request not reasonably particularized in conformity with Code of Civil Procedure section 2031.030, subdivision (c)(1); and (13) right to privacy. (Mot., Kalinowski Decl., Ex. 2, pp. 1-2.)

These objections are then raised in the objection-only responses to RPDs, Set One, Nos. 40-46. (Mot., Kalinowski Decl., Ex. 2, pp. 3-6.)

iii. Regents’ Supplemental Responses

The Regents supplemented these objection-only responses on December 6, 2023, to add:

“Subject to the foregoing [initial] objections, and limiting the request to” (1) “incidents involving a complaint of discrimination, retaliation or harassment against African American or black employees” (RPDs, Set Three, Nos. 40-41), (2) “complaints involving a complaint of discrimination, retaliation or harassment against African American or black employees” “by” or “involving” “Siobhan Johnson made to Employee Relations, the Whistleblower Hotline, and the Staff Diversity & EEO Compliance Office from January 1, 2017, to December 31, 2022” (RPDs, Set Three, Nos. 42-45), or (3) “communications between Siobhan Johnson and Scott Karas involving a complaint of discrimination, retaliation or harassment against African American or black employees from January 1, 2017, to December 31, 2022” (RPDs, Set Three, No. 46), “the University responds as follows: Upon conducting a diligent search and reasonable inquiry, no responsive documents exist or have ever existed.” (Mot., Kalinowski Decl., Ex. 8, pp. 3-9.)

iv. Parties’ Arguments

In his moving papers, Plaintiff Webster argues that RPDs, Set Three, Nos. 40-46 involve relevant discovery and that the Regents’ initial objections to RPDs, Set Three, Nos. 40-46 are not meritorious. Plaintiff Webster also argues that the Regents’ December 6, 2023, representation that no documents could be located in response to these RPDs is facially contradicted by testimony from University of California employees describing responsive communications and documents by or involving Siobhan Johnson. “Specifically,” argues Plaintiff, University of California (UC) employee “testified that there are internal UC communications regarding Siobhan Johnson related to escalating an anonymous note she received at work from an employee that [Johnson] was hiring too many Black people at UC[,] which was escalated to UC’s Staff Diversity & Compliance office ….” (Mot., pp. 7-9, citing Mot., Kalinowski Decl., ¶¶ 10-11, Exs. 8, 12-13 [re: Dec. 6, 2023, supplemental responses].)

In opposition as to the December 6, 2023, supplemental responses, the Regents argue that neither Jasmine Briones nor Scott Karas identified communications that exist between Siobhan Johnson and Mr. Karas regarding the anonymous note, and that the Regents provide Code-compliant responses relating to the non-availability of responsive documents. (Opp’n, pp. 7-8.)

In reply, Plaintiff Webster argues that the Regents are withholding documents responsive to RPDs, Set One, Nos. 40-46. (Reply, pp. 3-6.)

v. Court’s Determination

The Court finds in favor of the Regents as to RPDs, Set One, Nos. 40-46.

Plaintiff Webster requested documents responsive to six specific subject matters within the context of a FEHA race discrimination, retaliation, and harassment action. The Regents have indicated the responsive documents cannot be located or have never existed. The Regents’ discovery obligations are thus complete, and Plaintiff’s contention as discussed in the Reply that the Regents are in fact lying—essentially committing perjury—in providing verified supplemental responses attesting to a lack of responsive documents appears based, for example, on deposition testimony that says the incident (which Regents does not define as a Complaint) was reported to various persons – but does not say whether in writing or orally. Generally, when a party states they have produced all responsive documents in their possession, custody or control, the requesting party is limited to a remedy of exclusion – not a court order telling the responding party to produce a document they contend they do not have.

Moreover, the Court determines that the Regents reasonably qualified their December 6, 2023, supplemental responses to the subject matter of each request: (1) “incidents involving a complaint of discrimination, retaliation or harassment against African American or black employees” (RPDs, Set Three, Nos. 40-41), (2) “complaints involving a complaint of discrimination, retaliation or harassment against African American or black employees” “by” or “involving” “Siobhan Johnson made to Employee Relations, the Whistleblower Hotline, and the Staff Diversity & EEO Compliance Office from January 1, 2017, to December 31, 2022” (RPDs, Set Three, Nos. 42-45), or (3) “communications between Siobhan Johnson and Scott Karas involving a complaint of discrimination, retaliation or harassment against African American or black employees from January 1, 2017, to December 31, 2022” (RPDs, Set Three, No. 46). (Mot., Kalinowski Decl., Ex. 8, pp. 3-9; cf. Mot., Kalinowski Decl., Ex. 1, pp. 3-4.)

If the Regents later seek to introduce or otherwise rely on new evidence responsive RPDs, Set One, Nos. 40-46, in a motion, at trial, or in some other fashion, Plaintiff Webster may raise a judicial estoppel, impeachment, or a similar argument or objection at that time. For discovery purposes, however, the Regents’ obligations relating to RPDs, Set One, Nos. 40-46 appear complete.

Plaintiff’s motion is thus DENIED as to compelling further responses to RPDs, Set One, Nos. 40-46.

b. RPDs, Set Three, Nos. 48-50

i. Plaintiff’s Requests

RPDs, Set Three, No. 48: “The call out records for YOUR employees who were managed by WEBSTER from 2020 to present.”

RPDs, Set Three, No. 49: “The attendance records for YOUR employees who were managed by WEBSTER during the time that WEBSTER was employed by YOU.”

RPDs, Set Three, No. 50: “Any and all disciplinary records and associated documents for YOUR employees who were managed by WEBSTER from 2020 to present including but not limited to the following documents: coaching sessions, memorandums to employees, write-ups, notices to dismiss, and termination.”

(Mot., Kalinowski Decl., Ex. 1, p. 4.)

ii. The Regents’ Objections

The Regents state 13 general objections: (1) Attorney-client and word product privileges; (2) undue burden in expenditure of time and money to answer the request or locate responsive documents or things; (3) overbreadth in time and scope; (4) vague, ambiguous, uncertain, argumentative, unintelligible, and/or indefinite; (5) calls for legal conclusion; (6) cumulative discovery; (7) not relevant or reasonably calculated to lead to the discovery of admissible evidence; (8) lack of foundation; (9) compound requests; (10) trade secret privilege; (11) confidential and proprietary information; (12) request not reasonably particularized in conformity with Code of Civil Procedure section 2031.030, subdivision (c)(1); and (13) right to privacy. (Mot., Kalinowski Decl., Ex. 2, pp. 1-2.)

These objections are then raised in the objection-only responses to RPDs, Set One, Nos. 48-50. (Mot., Kalinowski Decl., Ex. 2, pp. 6-7.)

Unlike with RPDs, Set Three, Nos. 40-46, the Regents have refused to supplement their initial, objection-only responses to RPDs, Set Three, Nos. 48-50.

iii. Parties’ Arguments

In his motion, Plaintiff Webster argues that discovery relating to RPDs, Set Three, Nos. 48-50 is relevant to proving up Plaintiff Webster’s Health and Safety Code and Labor Code retaliation claims by showing that Plaintiff Webster made protected complaints regarding employees calling out sick without sufficient notice, which affected patient safety. (Mot., pp. 6-7.)

In opposition, the Regents raise the privacy rights of nearly 90 employees and unnamed patients whose rights may be implicated by Plaintiff Webster’s production requests, as well as the overbreadth and the resulting burden of those requests. The Regents add that the requested information is not relevant to whether Plaintiff made reports of conduct endangering patient safety in good faith. The Regents last argue that the sought-after discovery can be obtained through less intrusive means, such as to propound interrogatories as to the employees that Plaintiff Webster reported for excessive absences, only three of which are identified in the pleadings at paragraphs 18 to 26. (Opp’n, pp. 11-14.)

In reply, Plaintiff Webster argues that “[i]nformation responsive to these RFPs may lead to admissible evidence that UC had an ongoing problem with employees calling out of work, which Webster reported during his employment to his supervisor and, moreover, that it was affecting patient safety.” This, in turn, could “validate one of Webster’s reports of patient safety made during his employment in support of his Health and Safety Code §§ 1278.6 and Labor Code § 1102.5 causes of action.” (Reply, p. 6.)

iv. Court’s Determination

The Court finds in favor of the Regents as to RPDs, Set One, Nos. 48-50.

Plaintiffs’ requests are overbroad. As phrased, RPDs, Set Three, Nos. 48-49 conceivably relate to all individuals supervised by Plaintiff Webster, not just employees with prolonged periods of absence that support the retaliation claims in the SAC. Request No. 50 requests all disciplinary documents relating to Plaintiff Webster’s former supervisees, failing to limit itself to disciplinary documents for supervisees disciplined based on excessive absences. The requests are also burdensome as many of the documents are in paper copies only.

And while the meet and confer evidence attached to the moving papers shows that Plaintiff offered to modify Requests 48-50 by limiting their scope to 2022, with production to be made under a protective order or subject to redactions that protect third-party information (Mot., Kalinowski Decl., Ex. 4, pp. 15-16), those modifications do not save the overbreadth in scope of the requests.

Moreover, the Court determines that the sought-after information can be secured through less obtrusive means, such as limiting the production requests to specific employees explicitly identified by the discovery request, or through interrogatories establishing whether, on or at a reasonable time after Plaintiff’s termination, the University of California received complaints regarding, disciplined, or terminated any employees previously under the supervision of Plaintiff Webster based on excessive absences, or other targeted interrogatories such as the number of absences each day in a given timeframe, as a few examples.

Plaintiff’s motion is thus DENIED as to RPDs, Set One, Nos. 48-50.

C. Request for Sanctions: DENIED.

1. Legal Standard

Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).)

2. Analysis

Having denied Plaintiff’s motion, the Court also DENIES Plaintiff’s sanctions request.

The Court also DENIES the sanctions requested by the Regents in their opposition because Plaintiff had valid concerns relating to evidence in bringing this motion, i.e., concerns as to whether the Regents have been forthcoming as to evidence relating to RPDs, Set Three, Nos. 40-46, and concerns as to finding evidence supporting Plaintiff’s retaliation claims. 

III. Conclusion

A. Plaintiff Marcus Webster

Plaintiff Marcus Webster’s Motion to Compel Further Responses and Document Production to Requests for Production of Documents and Request for Sanctions is DENIED.

B. Defendant The Regents of the University of California

Defendant The Regents of the University of California’s Opposition Request for Sanctions is DENIED.