Judge Christopher K. Lui, Case 21STCV27027 2023-02-15 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motions addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

This is a PAGA action based upon hospital Defendants’ alleged health and safety violations in the workplace during the COVID-19 pandemic.

Plaintiff moves to compel further responses to special interrogatories, set one from Defendants HCA Healthcare, Inc. and West Hills Hospital.

Plaintiff Jhonna Porter, individually, and on behalf of other aggrieved employees’, motion to compel further responses to special interrogatories, set one, No. 1 from Defendant HCA Healthcare, Inc. is GRANTED. A further response is due within 20 days.

Plaintiff’s request for sanctions against Defendant and its counsel of record, jointly and severally, is GRANTED in the requested amount of $1,687.50. The Court does not find that Defendant acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Civ. Proc. Code, § 2030.300(d).) Sanctions are to be paid to Plaintiff’s counsel within 20 days.

Plaintiff’s motion to compel further responses to special interrogatories, set one, No. 1 from Defendant West Hills Hospital is conditionally GRANTED, subject to further meet and confer. The Court orders the parties to engage in further meet and confer efforts in light of the Court’s comments, in terms of the pool of aggrieved employees to whom a Belaire-West notice is required, a statistically significant sample size, and who will bear the costs of the notice. The hearing on the motion to compel further responses to form interrogatory No. 1 is CONTINUED to March 9, 2023 at 8:30 a.m. Parties are to submit a joint statement setting forth the results of the parties’ meet and confer by March 1, 2023.

Motion To Compel Further Responses To Special Interrogatories From Defendant HCA Healthcare, Inc.

This motion was timely filed and served on September 7, 2023, which is the deadline to which the parties agreed in writing. (Civ. Proc. Code, § 2030.300(c); Declaration of Shahran Kangavari, ¶ 4 and Exh. D thereto.)

Plaintiff’s counsel engaged in sufficient meet and confer efforts prior to bringing this motion. (See Kangavari, Decl., ¶ 3 and Exh. C thereto.)

u Special Interrogatory No. 1: Provide the contact information, including the first, middle, and last names, last known home addresses, last known home and mobile telephone numbers, last known e-mail addresses, and last known fax numbers, for all current and former hourly-paid or non-exempt employees who worked for DEFENDANT at any time from one year and sixty-five days prior to the filing of this lawsuit to the present.

A party may use interrogatories to request the identity and location of those with knowledge of discoverable matters. (Code Civ. Proc., § 2030.010.) To show an interrogatory seeks relevant, discoverable information “is not the burden of [the party propounding interrogatories]. As a litigant, it is entitled to demand answers to its interrogatories, as a matter of right, and without a prior showing, unless the party on whom those interrogatories are served objects and shows cause why the questions are not within the purview of the code section.” (Citations omitted.) While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory. (Citation omitted.)

Accordingly, Williams was presumptively entitled to an answer to his interrogatory seeking the identity and contact information of his fellow Marshalls employees. Marshalls had the burden of establishing cause to refuse Williams an answer. The trial court was limited to determining whether, for any objections timely interposed, Marshalls had carried that burden. (Citations omitted.)

Defendant objected on the ground that discovery is premature and should be abated until the Court rules on the motion to strike and demurrer, and there is a disposition of alleged wage and hour violations in the Stocker litigation referenced in Hospital’s objections to the duplicate discovery served on it. Defendant maintained that the PAGA claims would be dismissed because Plaintiff does not have standing to represent employees at HCA Healthcare, Inc. affiliated hospitals other than the hospital where she is employed, and therefore no discovery should proceed as to any employees of these other hospitals, all of which are owned by separate subsidiaries of HCA Healthcare, Inc.

(b) A plaintiff may propound interrogatories to a party without leave of court at any time that is 10 days after the service of the summons on, or appearance by, that party, whichever occurs first.

Here, Defendant HCA Healthcare, Inc. was personally served with the Complaint on August 5, 2021. Moreover, Defendant HCA Healthcare, Inc. appeared in this action by filing a motion to strike Plaintiff’s PAGA claim from her First Amended Complaint on April 5, 2022. Plaintiff served SROG No. on Defendant on June 3, 2022. As such, this discovery is permitted by CCP § 2030.020(b).

Moreover, Plaintiff was not required to prove the merits of her case, or even standing, in order to be entitled to discovery:

On the other side of the scales, the Court of Appeal minimized the justification for discovery, concluding Williams must “first … establish he was himself subjected to violations of the Labor Code.” As discussed above, to show the merits of one's case has never been a threshold requirement for discovery in individual or class action cases; it is not a threshold requirement here. True, PAGA imposes a standing requirement; to bring an action, one must have suffered harm. (Lab. Code, § 2699; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 796 (2003–2004 Reg. Sess.) as amended Apr. 22, 2003, p. 6.) But the way to raise lack of standing is to plead it as an affirmative defense, and thereafter to bring a motion for summary adjudication [*559] or summary judgment, not to resist discovery until a plaintiff proves he or she has standing. (Cf. Union Mut. Life Ins. Co. v. Superior Court, supra, 80 Cal.App.3d at p. 12 [a discovery motion is not the right vehicle to litigate the appropriate scope of an action].)

(Williams v. Superior Court (2017) 3 Cal.5th 531, 558-59 [bold emphasis added].)

Defendant also objected on the ground that Plaintiff does not work for HCA Healthcare, Inc., but is employed by the Hospital. Defendant maintains that, to the extent Plaintiff is seeking information regarding Hospital based records, actions, activities, or Plaintiff’s relationship with the Hospital, discovery should be sought from the Hospital, upon which a request duplicative of this request as to the Hospital has also been served and which is a source that is more convenient, less burdensome and less expensive.

Here, ¶ 14 of the 1AC alleges that Defendant HCA was Plaintiff’s employer in that it engaged in an integrated enterprise and exercised sole and/or joint control over the wages, terms and working conditions of Plaintiff’s employment and the employment of others throughout the state of California who worked in facilities owned and/or operated by HCA. ¶ 12 alleges that Plaintiff started working at Defendants’ West Hills Hospital location on January 21, 2014. ¶ 15 alleges that West Hills Hospital was controlled by Defendants. These allegations are sufficient to permit Plaintiff to conduct discovery upon HCA.

We need not, in this case, attempt to decide the broad issue thus pressed upon us. Clearly, there are cases in which discovery should not be allowed merely to enable a litigant to discover whether or not he has a cause of action or a defense. But each discovery case must be determined on its own facts. What may be oppressive in one case may not be in another. We conclude that, in this case and on this record, the discovery sought was proper.

While it is, of course, true that we may not, in the present proceeding, review the action of the trial court in sustaining general and special demurrers to petitioner's amended complaint, still we take note of two factors: (1) that the order permitted petitioner to amend his pleading, so that the alter ego issue is still, to some extent, involved in the case; and (2) that, while it is the better practice to allege the facts upon which a plaintiff seeks to hold a defendant on the alter ego theory, still it is the law of California that that issue may be raised by a simple allegation that the defendant sought to be charged had made the contract involved. (Citation omitted.) Had petitioner elected to proceed by such a conclusionary but permissible allegation, its right thereafter to seek by discovery the facts by which that allegation might be proved would have been beyond question. We do not think that it should be prejudiced because it desires to utilize a form of pleading more informative to the real party in interest. Since, in the case at bench, it is not contested that petitioner intends, in good faith, to pursue a theory of liability as to which it already possesses some data, and that fact already appears of record in the trial court, we think that it was an abuse of discretion to deny it the opportunity to obtain information relevant to its theory.

(L.A. Cemetery Asso. v. Superior Court of L.A. Cty. (1968) 268 Cal.App.2d 492, 494 [bold emphasis added].)

Defendant objected on the ground that the interrogatory is overbroad as to time and subject matter scope since at least some of the information sought is not pertinent to the matters at issue in this case.

Defendant did not justify this objection other than rely upon its assertion that Defendant never employed Plaintiff at any point and that Defendant is not a joint employer. However, if a party could defeat the right to discovery by way of such ipse dixit, then the right to discovery would become toothless.

Interestingly, in the opposing separate statement, Defendant provides a substantive response to the interrogatory about having no employees that simply should have been provided in the original response.

Defendant also objected on the ground of privacy under the California Constitution Article 1, Section 1, HIPAA, or other applicable law.

The California Supreme Court has held that a compelling interest or compelling need is not always required in order to discover private information—the Court must consider the factors articulated in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4^th 1 to determine the seriousness of the privacy invasion and the strength of the countervailing interest required to overcome that invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531.)

In ruling upon a privacy objection in the contact of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams, supra, 3 Cal.5th at 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.) If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure serves. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling state interest” or “compelling need[1]” simply because discovery of any facially private information is sought. (Id. at 556-57.)

Here, Defendant HCA did not meet its burden under this privacy interest balancing test, so the Court need not proceed to balancing the competing interests.

Defendant objected on the ground of the attorney-client privilege, attorney work-product privilege, or other privileges.

Defendant did not meet its burden of proving these privilege objections were applicable. “[I]t is the burden of the objecting party to support the applicability of a particular privilege.” (Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494.)

Defendant objected on the ground that the information is not relevant to the subject matter of the case. Defendant objected on the ground that the information sought is not discoverable because it is not admissible nor reasonably calculated to lead to the discovery of admissible evidence.

The objection is OVERRULED as without merit because, in the Opposition, Defendant did not demonstrate that the information sought is outside the scope of discoverability:

"Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter . . . ." (Citations omitted.)

We begin, therefore, with relevancy. For discovery purposes, information is relevant if it "might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement . . . ." (Citation omitted.) Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Citation omitted.) These rules are applied liberally in favor of discovery (citation omitted), and (contrary to popular belief), fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 385 [15 Cal. Rptr. 90, 364 P.2d 266] [although fishing may be improper or abused in some cases, that "is not of itself an indictment of the fishing expedition per se"].) More specifically, the identity of witnesses must be disclosed if the witness has "knowledge of any discoverable matter," including fact, opinion and any information regarding the credibility of a witness (including bias and other grounds for impeachment). ( Code Civ. Proc., § 2017, subd. (a); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, PP 8:82-8:83, pp. 8C to 4-5.)

Defendant objected on the ground of undue burden and expense, and that the request is oppressive and harassing.

In the Opposition, Defendant did not meet its burden of demonstrating that these objections apply. The objections are OVERRULED as without merit.

An “objection based upon burden must be sustained by evidence showing the quantum of work required.” (West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at p. 417.) As the objecting party, Marshalls had the burden of supplying supporting evidence, but in response to Williams's motion to compel it [*550] offered none. Given this, the trial court had nothing in the record upon which to base a comparative judgment that any responsive burden would be undue or excessive, relative to the likelihood of admissible evidence being discovered.

In lieu of evidence, Marshalls contended as a legal matter that Williams should be required to submit proof of his case before being allowed statewide discovery. Accepting this argument, the trial court effectively held the pleading of a statewide PAGA claim is insufficient to support discovery of statewide fellow employee contact information without a further showing of cause. As we shall discuss, however, the Code of Civil Procedure does not authorize a trial court to interpose a proof of the merits requirement before ordering responses to interrogatories in the absence of any evidence of the burden responding would entail, and trial courts lack discretion to augment the limitations on discovery established by the Legislature. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 [55 Cal. Rptr. 3d 751].)

As such, the motion to compel a further response to special interrogatory, set one, No. 1 is GRANTED. A further response is due within 20 days.

Plaintiff’s request for sanctions against Defendant and its counsel of record, jointly and severally, is GRANTED in the requested amount of $1,687.50. (Kangavari Decl., ¶ 7.) The Court does not find that Defendant acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Civ. Proc. Code, § 2030.300(d).) Sanctions are to be paid to Plaintiff’s counsel within 20 days.

Motion To Compel Further Responses To Special Interrogatories From Defendant West Hills Hospital

Defendant’s request that the Court take judicial notice of documents filed in Gohar Ghorchian v. West Hills Hospital, et al., Superior Court of California, County of Los Angeles, Case No. LS029737 is GRANTED per Evid. Code, § 452(d)(court records).

Plaintiff’s counsel engaged in sufficient meet and confer efforts prior to bringing this motion. (See Kangavari, Decl., ¶ 3 and Exh. C thereto.)

In the Opposition, Defendant argue that the time period is not appropriate because a prior settlement in Ghorchian v. West Hills Hospital (Los Angeles Superior Court Case No. LS029737) had released all PAGA claims for all hourly West Hills Hospital employees relating to unpaid wages and failure to provide meal and rest breaks through September 3, 2020. Defendant argues that the time period should therefore be limited to employees whose employment ended after September 3, 2020. However, if Defendant wished to delay discovery responses, it should have brought a motion in that regard. “Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Civ. Proc. Code § 2019.020(b).) This goes to the merits of Defendant’s defense, i.e., release of claims, which need not be defeated by Plaintiff in order to obtain discovery, absent a court order to the contract. (Williams v. Superior Court (2017) 3 Cal.5th 531, 558-59.)

Further, nothing prevented Defendant from providing a substantive response as to the contact information of employees whose employment ended after September 3, 2020, and place the burden on Plaintiff to move to compel further responses if she deemed this insufficient, in light of the Ghorchian settlement. Likewise as to Defendant’s view that Plaintiff’s claims are limited to only employees who work in patient care who were required to don and doff PPE and did not receive breaks due to understaffing.

The Court incorporates by reference its discussion above re: the motion to compel against HCA Healthcare. For those reasons set forth above, the objections on the grounds that the interrogatory is vague and ambiguous, burdensome, oppressive, harassing, and invades the privacy of third/non-parties[2], is not within the scope of discovery, and seeks information protected by the attorney-client privilege or work product doctrine are OVERRULED.

Likewise, for the reasons discussed above re: the motion to compel against HCA Healthcare, Defendant’s objection that any discovery related to Plaintiff’s PAGA claim concerning Cal-OSHA violations should be stayed until there is a ruling on Defendant’s Motion to Strike is OVERRULED. If Defendant wished to delay discovery responses, it should have brought a motion in that regard. “Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Civ. Proc. Code § 2019.020(b).)

Defendant further objected on the grounds that Plaintiff’s PAGA claims concerning wage-and-hour violations are duplicative of the PAGA claims brought by plaintiff Jona Stocker in Jona Stocker v. HCA Health Services of California, Inc. and West Hills Hospital (LASC Case No. 21STCV12683) (“Stocker”), which was filed on April 2, 2021. Defendant argues that any discovery related to Plaintiff’s PAGA claim concerning wage-and-hour violations should be stayed until there is a disposition of the earlier lawsuit. Defendant reserves the right to file a motion to stay and/or seek a protective order to excuse production of information until there is a ruling on Defendant’s MTS or there is a disposition in the Stocker case and/or limit or set conditions for discovery related to Plaintiff’s PAGA claims.

Defendant does not cite any case law whereby a party is excused from responding to discovery due to the pendency of a similar or overlapping lawsuit. Indeed, even in the same lawsuit duplicative discovery is permissible.

A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method. ( Coy v. Superior Court (1962) 58 Cal.2d 210, 218-219 [23 Cal.Rptr. 393, 373 P.2d 457].)

Again, Defendant could have brought a motion to establish the sequence and timing of discovery for the parties’ and witnesses’ convenience and in the interests of justice pursuant to CCP § 2019.020(b). But, there was no justification to refuse to provide a response to the interrogatory.

Defendant argues that on April 19, 2022, a Belaire-West notice was mailed out to 400 non-exempt employees of West Hills Hospital in the Stocker v. HCA Health Services of California, Inc., et al. action. 28 non-exempt employees opted out of providing their contact information. On May 24, 2022, the names and contact information of 370 West Hills Hospitals non-exempt employees were provided to Stocker’s attorney in the Stocker action.

Defendant’s citation to CCP § 2019.030(a) and § 2017.020 and the Court’s power to restrict discovery is inapposite, as those sections relate to a protective order, which Defendant did not seek. Moreover, although Defendant argues that the Belaire-West notice procedure would have to occur again in this action, as Plaintiff points out, there does not appear to be a need to do so as to the 3770 employees who failed to opt-out of the Stocker notice procedure. Since the Hospital already has compiled that information, it can simply produce that information in this action.

Defendant proposes that production of contact information should be limited to a 15% sampling for those non-exempt employees in patient care from September 4, 2020 to present, with a Belaire-West notice procedure at Plaintiff’s expense and a protective order.

On the other hand, Plaintiff will stipulate to a 35% sampling of the other approximately 1,048 aggrieved employees outside of the Stocker action. Plaintiff also argues that her allegations touch all of Defendant’s non-exempt hourly employees in California. Plaintiff also argues that the cost of the Belaire-West notice should be divided equally between Plaintiff and Defendant.

Plaintiff’s motion to compel further responses to special interrogatory set one, No. 1 is conditionally GRANTED, subject to further meet and confer . The Court orders the parties to engage in further meet and confer efforts in light of the Court’s above comments, in terms of the pool of aggrieved employees to whom a Belaire-West notice is required, a statistically significant sample size, and who will bear the costs of the notice.

The hearing on the motion to compel further responses to form interrogatory No. 1 is CONTINUED to March 9, 2023 at 8:30 a.m. Parties are to submit a joint statement setting forth the results of the parties’ meet and confer by March 1, 2023.

[1] In this regard, Plaintiff’s repeated argument that Defendants must show a compelling need for the discovery is based on authority which has been overruled.

[2] The privacy interests of defendant’s employees must be given consideration and an “opt-out notice adequately protects the privacy rights of the current and former employees involved.” (Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 556.) Current and former employees of a defendant are entitled to privacy protection as to their contact information.(Id. at 561.)