Judge: Armen Tamzarian, Case: 21STCV15659, Date: 2023-02-23 Tentative Ruling
Case Number: 21STCV15659 Hearing Date: February 23, 2023 Dept: 52
(1) Requests for Production
Plaintiff Al Faustino De Guzman moves to compel defendant Pacifica of the Valley Corporation to further respond to request for production No. 23. A party may move to compel further responses to requests for production if “[a] statement of compliance with the demand is incomplete,” “[a] representation of inability to comply is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.” (CCP § 2031.310(a).)
Request for production No. 23 demands: “All DOCUMENTS RELATING TO complaints YOU received from YOUR EMPLOYEES in the past ten (10) years that RELATE TO RETALIATION.”
Pacifica responded with numerous objections, followed by: “Notwithstanding the foregoing objections, and without waiving them, and limiting the scope of this request to internal complaints and administrative (i.e., Department of Fair Employment and Housing and Equal Employment Opportunity Commission charges) and court filings (initiating complaint only) made by employees in Defendant's Respiratory Care Department from April 26, 2016 through the present alleging retaliation, Defendant responds as follows: After a diligent search and reasonable inquiry, Defendant is unable to produce documents in response to this request aside from Plaintiff's because no such documents are known to exist.”
The bulk of Pacifica’s objections are meritless. Pacifica made no attempt to justify many of them. Pacifica’s objections for ambiguity, attorney-client privilege, attorney work product, privacy rights, public availability, and that the request “is premature” are overruled.
Pacifica, however, properly objected (in part) that the request is not reasonably calculated to lead to admissible evidence. Plaintiff’s complaint alleges defendant retaliated against him and wrongfully discharged him in November 2020. (Comp., ¶¶ 18-20.) Documents dating back to April 2011 are not reasonably calculated to lead to admissible evidence. Pacifica proposed reasonable limits of producing documents dating back only five years to April 2016. Limiting the request to internal complaints, administrative complaints, and court filings was also reasonable.
Limiting the request to complaints by employees in the Respiratory Care Department, however, goes too far. Pacifica argues only other employees in plaintiff’s department are similarly situated, but plaintiff alleges he complained to Gregg Yost, a member of the human resources department, and to Pacifica’s CEO. (Comp., ¶ 18.) Plaintiff shows good cause to believe that decisionmakers involved in his termination could also have been involved in retaliation complaints by other employees outside the Respiratory Care Department.
Pacifica must further respond to the request, limited to internal complaints and administrative complaints and court filings made by employees from April 26, 2016, to the present. Pacifica’s response must comply with the requirements of Code of Civil Procedure sections 2031.220 (statement of compliance) and 2031.230 (statement of inability to comply). Pacifica’s current statement of inability to comply does not satisfy all the requirements of section 2031.230.
(2) Form Interrogatories
Plaintiff Al Faustino De Guzman moves to compel defendant Pacifica of the Valley Corporation to further respond to form interrogatory – employment No. 209.2.
A party may move to compel further responses to interrogatories when an answer “is evasive or incomplete” (CCP § 2030.300(a)(1) or an objection “is without merit or too general” (§ 2030.300(a)(3)).
Form interrogatory No. 209.2 asks for information about any civil action filed against Pacifica in the past 10 years by an employee “regarding his or her employment.” Pacifica responded with numerous objections, followed by: “[L]imiting the scope of this request to civil employment actions filed from April 26, 2016 to the present regarding retaliation, intentional and negligent infliction of emotional distress and/or wrongful termination by any Defendant employee in the Respiratory Care Department, Defendant responds as follows: Aside from Plaintiff, none.”
Most of Pacifica’s objections are meritless. For example, even if assuming facts not in evidence is a valid objection to discovery, it does not apply to this interrogatory. No. 209.2 begins by asking a yes or no question, followed by parts (a) through (d) only if the answer is yes. As for attorney-client privilege or work product, it is not plausible that answering this question about civil actions filed in court could reveal any protected information.
Moreover, that the question “seeks information that is publicly available” is not grounds for refusing to answer. This objection only applies when the responding party does not have the necessary information to respond. “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (CCP § 2030.220(c); see also Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796 (Deyo).)
Pacifica cites Morgan v. Southern Cal. Rapid Transit Dist. (1987) 192 Cal.App.3d 976, 982 in support of this objection, but that case states the same rule now codified in section 2030.220(c). “The good faith and diligence referred to in Deyo requires the responding party to provide information in its possession or in the possession of its agents. It does not require the responding party to research information which is equally available to the propounding party.” (Ibid.) The interrogatory asks about lawsuits filed against Pacifica. Pacifica or its agents possess that information.
These objections are overruled.
Pacifica, however, made a partially proper objection that the interrogatory is not reasonably calculated to lead to admissible evidence. As discussed above, plaintiff’s complaint arises from his termination in November 2020. Lawsuits filed more than five years ago are too attenuated to be reasonably calculated to lead to admissible evidence.
Moreover, some civil actions “regarding [an employee’s] employment” would be completely irrelevant. Plaintiff alleges whistleblower retaliation and related causes of action. Asking about lawsuits regarding, for example, non-compete clauses or meal break violations is not reasonably calculated to lead to the discovery of admissible evidence.
Pacifica proposed reasonable limits of answering the question with respect to lawsuits “regarding retaliation, intentional and negligent infliction of emotional distress and/or wrongful termination” filed since April 26, 2016. But, as discussed above, limiting the question to actions by employees in the Respiratory Care Department goes too far.
Pacifica must further respond to the request, limited to actions filed from April 26, 2016 to the present regarding retaliation, intentional and negligent infliction of emotional distress and/or wrongful termination.
(3) Special Interrogatories
Plaintiff Al Faustino De Guzman moves to compel defendant Pacifica of the Valley Corporation to further respond to special interrogatories Nos. 22, 23, and 30.
Nos. 22 and 23 ask Pacifica to identify all complaints about retaliation and all employees who made complaints to it about retaliation in the past 10 years. Pacifica responded with numerous objections, followed by the same substantive response used for request for production No. 23: “Notwithstanding the foregoing objections, and without waiving them, and limiting the scope of this request to internal complaints and administrative (i.e., Department of Fair Employment and Housing and Equal Employment Opportunity Commission charges) and court filings (initiating complaint only) made by employees in Defendant’s Respiratory Care Department from April 26, 2016 through the present alleging retaliation, Defendant responds as follows: Aside from Plaintiff, None.”
As with request for production No. 23, most of Pacifica’s objections are meritless. Pacifica’s objections for ambiguity, attorney-client privilege, attorney work product, privacy rights, public availability, calling for a legal conclusion, and that the requests are “premature” are overruled.
Pacifica, however, properly objected (in part) that these questions are not reasonably calculated to lead to admissible evidence. As discussed above, information about complaints dating back to 2011 is too attenuated to be discoverable in this case. Again, Pacifica proposed reasonable limits on the interrogatories, except that it went too far in narrowing the questions to only employees in the Respiratory Care Department.
Pacifica must further respond to special interrogatories Nos. 22 and 23, limited to internal complaints and administrative complaints and court filings made by employees from April 26, 2016, to the present.
Special interrogatory No. 30 asks Pacifica to “IDENTIFY the charge nurse with the first name Sophia referenced in paragraph 15 of the COMPLAINT.” Plaintiff defined “identify” to include providing contact information.
Pacifica responded: “Defendant objects to this interrogatory on the grounds that it seeks information that is neither relevant nor reasonable calculated to lead to the discovery of admissible evidence and, thus, is beyond the permissible scope of discovery set forth in California Code of Civil Procedure Section 2017.010. Defendant further objects to this interrogatory to the extent that it seeks information that is protected by the attorney-client privilege and/or the attorney work-product doctrine. Defendant further objects to this interrogatory on the basis that it seeks information protected from disclosure by the right to privacy as defined in Article I, Section 1 of the California Constitution. Defendant further objects to this interrogatory on the basis that it is premature in that discovery and investigation into this matter are still ongoing. [¶] Notwithstanding the foregoing objections, and without waiving them, Defendant responds as follows: Sophia Zulfia K Davis. Davis was also terminated as a result of the August 30, 2020 incident. Defendant is unaware of any employees who resigned as a result of the August 30, 2020 incident.”
Pacifica’s objections are meritless. In its opposition and response to plaintiff’s separate statement, Pacifica did not attempt to justify any of these objections. “Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter.” (CCP § 2017.010.) A witness’s contact information “is basic civil discovery.” (Puerto v. Superior Court (2008) 158 Cal.4th 1242, 1254.) Plaintiff shows a reasonable basis for believing Davis has knowledge of discoverable matter.
Instead of supporting the objections it made, Pacifica makes two arguments about No. 30. First, it argues Davis’s contact information “is protected under the subject matter test set forth in Upjohn Co. v. United States, 449 U.S. 383 (1981).” (Opp., p. 5.) That test is about whether information is protected by attorney-client privilege. A former employee’s contact information cannot be privileged because defendant did not acquire it via a confidential communication between attorney and client.
Second, Pacifica argues it represents Davis, so plaintiff’s counsel cannot contact her under California Rules of Professional Conduct, rule 2-100. Even if a low-level employee defendant fired over two years ago could be a “party” under rule 2-100(B), the Rules of Professional Conduct are rules of professional ethics—not discovery or evidence.
Pacifica’s objections to special interrogatory No. 30 are overruled. Pacifica must provide a complete answer to the question, including Davis’s contact information.
Disposition
Plaintiff Al Faustino De Guzman’s motion to compel defendant Pacifica of the Valley Corporation to further respond to request for production No. 23 is granted in part. Defendant Pacifica of the Valley Corporation is ordered to further respond to request for production No. 23, limited to internal complaints and administrative complaints and court filings made by employees from April 26, 2016, to the present.
Plaintiff Al Faustino De Guzman’s motion to compel defendant Pacifica of the Valley Corporation to further respond to form interrogatory – employment No. 209.2 is granted in part. Defendant Pacifica of the Valley Corporation is ordered to further respond to form interrogatory – employment No. 209.2, limited to actions filed from April 26, 2016, to the present regarding retaliation, intentional and negligent infliction of emotional distress and/or wrongful termination.
Plaintiff Al Faustino De Guzman’s motion to compel defendant Pacifica of the Valley Corporation to further respond to special interrogatories is granted in part. Defendant Pacifica of the Valley Corporation is ordered to further respond to special interrogatories Nos. 22 and 23, limited to internal complaints and administrative complaints and court filings made by employees from April 26, 2016, to the present. Defendant Pacifica of the Valley is ordered to provide a complete response to special interrogatory No. 30.
Defendant Pacifica of the Valley Corporation is ordered to serve these further responses within 20 days.