Judge Christopher K. Lui, Case Number: 22STCV29065, Date: 2024-01-10 Tentative Ruling

Plaintiff alleges wage and hour violations, and demotion and termination following Plaintiff’s disclosures, FMLA qualifying medical leave, and based on her age and perceived disability.

Plaintiff Angela Arnone moves to compel further responses to requests for production of documents from Defendant and requests sanctions.

Plaintiff Angela Arnone’s motion to compel further responses to requests for production of documents from Defendants VS Media, Inc. and David Aguilar is GRANTED as to Demand for Inspection No. 17 and DENIED as to Demand for Inspection Nos. 18, 19, 20, 32, 36, 37, 38, and 62. Where ordered, further responses are due within 20 days.

Because Plaintiff’s motion was largely unsuccessful, Plaintiff’s request for sanctions is DENIED.

Plaintiff Angela Arnone moves to compel further responses to requests for production of documents from Defendant and requests sanctions.

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.

(i) Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

Defendant served supplemental responses on January 27, 2023 electronically. (K.L. Decl, ¶¶ 11 – 12; Exh. D.) Based on the service of these responses, the deadline to bring a motion to compel was March 15, 2023 (45 days plus 2 additional days for electronic service). Plaintiff obtained a “two-week extension” from Defendant’s counsel on March 13, 2023 at 2:04 PM (K.L. Decl., Exh. E.) This would extend the deadline to Wednesday March 29, 2023. (Plaintiff was operating under the assumption that the deadline was extended to March 27, 2023—March 13, 2023, 3:29 and 3:32 PM emails; K.L. Decl., Exh. E.) On March 21, 223 at 1:30 PM, Defendant’s counsel granted an extension to April 4, 2023. (K.L. Decl., Exh. E.) This motion was thus timely filed and served on April 4, 2023.

Plaintiff’s counsel engaged in sufficient meet and confer efforts prior to filing this motion. (K.L. Decl., Exhs. D, E.)

In the separate statement, Plaintiff makes a fact-specific showing of good cause for the requested documents. As such, Defendant’s objections as to relevance and discoverability are OVERRULED.

Moreover, Defendant has not made a sufficient showing under the Hill analysis regarding Tshoaedi’s right of privacy.

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.)

Defendant’s response that it will produce all responsive documents in its possession, custody and control is code-compliant. (Civ. Proc. Code, § 2031.220.) Defendant is not withholding any documents based on the objections.

In the separate statement, Plaintiff makes a fact-specific showing of good cause for the requested documents. As such, Defendant’s objections as to relevance and discoverability are OVERRULED. Defendant’s objections which were not initially asserted are OVERRULED as waived.

Objections which the responding party did not raise in initial responses are deemed to have been waived. (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 272-76 [holding that the attorney-client privilege was waived by failing to present the objection in the initial response to requests for production of documents].) Defendants’ sole recourse is to seek a relief from waiver pursuant to Code Civ. Proc. § 2031.300(a)(1) & (2). (Id. at 274-75 [noting that the “sole remedy for relief from waiver in the context of discovery is contained within the provisions of the Act and [a party] cannot rely upon the provisions of [Code of Civil Procedure] section 473.”])

However, Defendant’s supplemental response that it will produce or already has produced documents responsive to this Request within its possession, custody, and control, and identified as documents Bates stamped VSM 00533-535, 00541, 00572-573, 00697 is code-compliant. (Civ. Proc. Code, § 2031.220; § 2031.230.)

Plaintiff has not made a fact-specific showing of good cause for the broad category of document sought.

“Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [61 Cal. Rptr. 2d 567].) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221.) A party seeking to compel discovery must therefore “set forth specific facts showing good cause justifying the discovery sought.” (§ 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

(Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 (bold emphasis and underlining added), overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, n. 8.)

Defendant’s objection on the ground of attorney-client privilege and attorney work product privilege is SUSTAINED. Defendant must provide a privilege log describing the documents being withheld and the applicable privilege.

Plaintiff has not made a fact-specific showing of good cause for the broad category of document sought.

In the separate statement, Plaintiff makes a fact-specific showing of good cause for the requested documents.

As such, Defendant’s objections as to relevance and discoverability are OVERRULED. Defendant’s objections which were not initially asserted are OVERRULED as waived.

However, in the supplemental response, Defendant has indicated that it is unable to comply because the documents never existed. This complies with Civ. Proc. Code, § 2031.230.

Because Plaintiff’s motion was largely unsuccessful, Plaintiff’s request for sanctions is DENIED.

[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.