Judge Carolyn M. Caietti, Case Number: 37-2023-00006424-CU-OE-CTL, Date: 2024-04-18 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2023-00006424-CU-OE-CTL, Date: 2024-04-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Other employment Discovery Hearing 37-2023-00006424-CU-OE-CTL OHUMUKINI VS 24 HOUR FITNESS USA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Amended Motion, 03/05/2024

Plaintiff Danielle Ohumukini's Motion to Compel Further Responses and Production of Documents to Defendant 24 Hour Fitness USA, LLC and Request for Sanctions is GRANTED.

Plaintiff Danielle Ohumukini's Motion to Compel Further Responses and Production of Documents to Defendant Eddie De La Cruz and Request for Sanctions is GRANTED.

Allegations In this lawsuit, Plaintiff alleges Defendant 24 Hour Fitness USA, LLC employed her in May, 2022 as a Sales and Services Associate and Defendant Eddie De La Cruz as a Sales and Service Manager, who subjected Plaintiff to harassment and discrimination based on sex and/or gender, including repeatedly touching her without her consent in highly inappropriate and threatening ways and creating a hostile work environment. (FAC, at � 1.) Defendant De La Cruz's sexual harassment allegedly included molesting Plaintiff, grabbing her buttocks, touching her hair and cheek, slapping her thighs. (FAC, at �� 32-35.) Plaintiff reported the touching, 24 Hour Fitness did not take corrective action and Plaintiff resigned in October, 2022. (Id., at �� 67-73.) Plaintiff's FAC asserts causes of action for: (1) sexual harassment; and (2) sexual battery.

Motion Against 24 Hour Fitness At issue in this motion is No. 12, which asks for all video recordings, audio recordings and photographs of Plaintiff. Originally, Defendant produced a video and maintained it produced all responsive video.

Then on December 7, 2023, Defendant produced three more hours of surveillance footage that included Defendant De La Cruz putting his hands around Plaintiff's neck and other interactions involving another female at the gym. On January 8, 2024, Defendant served a supplemental response stating it produced all documents responsive to No. 12. But then again on January 24, 2024, Defendant produced more surveillance video clips of Plaintiff. This video was 'video of a video.' On January 25, Defendant disclosed it had an external hard drive (3VR) with hours of video footage of Plaintiff that Defendant had not produced and were unable to copy the files on a hard drive.

Defendant contends it does not retain surveillance video over 30-45 days, unless preserved and has a practice of writing over footage after the video hard drive is full. Thus far, Defendant produced video of Plaintiff for the dates of October 3, 17, 18 and 24, 2022. It was only in March, 2024 that Defendant obtained download privileges of the 3VR which will now allow for extraction of video footage from the Calendar No.: Event ID: TENTATIVE RULINGS

3058770 45 CASE NUMBER: CASE TITLE: OHUMUKINI VS 24 HOUR FITNESS USA LLC [IMAGED] 37-2023-00006424-CU-OE-CTL 3VR. Defendant agreed to allow for a viewing and copying of the 3VR video and to confirm when the video was filmed, whether edited or altered.

As of this motion's amended filing, the video in its native format has not been produced. Defendant's opposition maintains Defendant will produce the '3VR' to Plaintiff, but per the supplemental reply, still has not coordinated with Plaintiff on dates for their respective technical personnel/consultants to conference about and view the hard drive/DVR containing the video. Thus, given all of this, Defendant's supplemental response verifying Defendant produced all documents is incomplete, warranting a further response. (C.C.P., � 2031.310(a)(1).) Further, the film location to the sales area only is too restrictive.

All locations which at the facility which contain video of Plaintiff should be produced and not limited only to the sales area.

The motion papers reference a second document demand (Set Two). This discovery is not identified in the notice of motion or separate statement and will not be considered at this time. Defendant's Separate Statement also references a site inspection of the 24 Hour Fitness as well as discovery propounded by Plaintiff to Defendant in February, 2024. None of these items are properly before the Court. The Court encourages the parties to work on a resolution of these discovery items and seek another IDC if an agreement cannot be reached.

Monetary sanctions against Defendant are authorized and the amount sought is reasonable and substantiated. (C.C.P., � 2031.310(h).) There is no substantial justification for Defendant's failure to provide compliant and complete discovery responses and the video. The Court disagrees with Defendant that it has been transparent. The fact Defendant did not receive the credentials used to log into the 3VR from its own Miramar gym location also did not absolve Defendant from its duties to compliantly respond to the discovery requests. In opposition, Defendant cites to its efforts to meet and confer in good faith, but as discussed, under these circumstances, such meet and confer does not show substantial justification or other circumstances that make the imposition of sanctions unjust.

Plaintiff asks the sanctions be paid to the Legal Aid Society of San Diego and Defendant does not oppose this aspect of the request. The Court will award Plaintiff monetary sanctions in the amount of $2,900 against Defendant, only.

For these reasons, the motion is GRANTED.

Motion Against De La Cruz No. 4 requests communications between the parties. Defendant's opposition acknowledges a further production was made recently on March 5, 2024. However, there is no evidence Defendant also served a supplemental response. Critically, it appears Defendant acknowledged not producing all responsive documents at his deposition. Notwithstanding, the supplemental response reflected in the opposition separate statement does not comply with C.C.P. section 2031.220 as it does not indicate whether production is allowed in whole or in part. Defendant also maintains various ways he is unable to comply with the request (Plaintiff blocked him on social media, in the possession of other providers) but Defendant's response does not include the language required in C.C.P. section 2031.230. Defendant also does not address the redactions made, nor provide the basis for any redactions. A further response is warranted.

No. 6 asks for photographs or videos Defendant sent to Plaintiff. For the same reasons stated for No. 4, a further response is warranted. In addition, to the extent Defendant maintains the ESI is from a source not reasonably accessible because of undue burden or expense, the supplemental response does not comply with C.C.P. section 2031.210(d) as it does not identify in the response the 'types or categories of sources of [ESI] that it asserts are not reasonably accessible.' Nos. 9-12 ask for documents Defendant sent to or between other/current/former employees of 24 Hour Fitness with whom he had intimate relations of a sexual nature on or around the premises. Defendant Calendar No.: Event ID: TENTATIVE RULINGS

3058770 45 CASE NUMBER: CASE TITLE: OHUMUKINI VS 24 HOUR FITNESS USA LLC [IMAGED] 37-2023-00006424-CU-OE-CTL acknowledges the supplemental responses do not comport with C.C.P. section 2031.230 and that he will supplement the responses. Thus, an order compelling him to do so is warranted.

Monetary sanctions against Defendant are authorized and the amount sought is reasonable and substantiated. (C.C.P., � 2031.310(h).) There is no substantial justification for Defendant's failure to provide compliant and complete discovery responses and production. Defendant's efforts to meet and confer in good faith and Plaintiff's election to file the motion before setting an IDC do not show substantial justification or other circumstances that make the imposition of sanctions unjust. Plaintiff asks the sanctions be paid to the Legal Aid Society of San Diego and Defendant does not oppose this aspect of the request. The Court will award Plaintiff monetary sanctions in the amount of $1,450 against Defendant, only.

For these reasons, the motion is GRANTED.

Concluding Orders Defendant 24 Hour Fitness USA, LLC is ordered to serve a further verified response to Plaintiff's Request for Production, Set One, No. 12 by April 26, 2024. Defendant is also ordered to pay monetary sanctions in the amount of $2,900 to Legal Aid Society of San Diego by April 26, 2024 and show proof of same to Plaintiff by May 3, 2024. The Court further orders the inspection of the 3VR/hard drive to occur by April 26, 2024 at Defense Counsel's Los Angeles office, unless the parties agree to a mutually agreed upon alternative inspection and copying date.

Defendant Eddie De La Cruz is ordered to serve a further verified response to Plaintiff's Request for Production, Set One, Nos. 4, 6, 9-12 by April 26, 2024. Defendant is also ordered to pay monetary sanctions in the amount of $1,450 to Legal Aid Society of San Diego by April 26, 2024 and show proof of same to Plaintiff by May 3, 2024.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Plaintiff is ordered to serve written notice of the Court's final ruling on all appearing parties by April 9, 2024.

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