Judge Curtis A. Kin, Case 20STCV27675 2023-04-11 Tentative Ruling

Judge: Curtis A. Kin, Case: 20STCV27675, Date: 2023-04-11 Tentative Ruling

Case Number: 20STCV27675 Hearing Date: April 11, 2023 Dept: 72

MOTIONS TO COMPEL FURTHER RESPONSES TO:

(1) REQUESTS FOR PRODUCTION OF DOCUMENTS; (2) REQUESTS FOR ADMISSION

Date: 4/11/23 (8:30 AM)

Case: Solomon Aflalo v. Farmers Insurance Exchange et al. (20STCV27675)

TENTATIVE RULING:

Plaintiff Solomon Aflalo’s Motion to Compel Further Responses to Requests for Production of Documents, Set Two is GRANTED IN PART.

Plaintiff Solomon Aflalo’s Motion to Compel Further Responses to Requests for Admission, Set One is GRANTED IN PART.

I. PLAINTIFF SOLOMON AFLALO’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET TWO

Plaintiff Solomon Aflalo moves to compel further responses from defendant Farmers Group, Inc. to Requests for Production of Documents, Set Two, Nos. 1-8, as set forth below:

REQUEST FOR PRODUCTION NO. 1:

A DOCUMENT, or set of DOCUMENTS, showing that defendants have been made aware of formal or informal claims against them made by anyone for harassment, retaliation, discrimination, and/or wrongful termination on the basis of age since 2010.

REQUEST FOR PRODUCTION NO. 2:

A DOCUMENT, or set of DOCUMENTS, showing the name of each individual who has made any formal or informal claim for harassment, retaliation, discrimination, and/or wrongful termination on the basis of age since 2010.

REQUEST FOR PRODUCTION NO. 3:

A DOCUMENT, or set of DOCUMENTS, showing the name of each individual similarly situated to Aflalo who has made any formal or informal claim involving any type of adverse action against defendants regarding the same grounds brought by Aflalo in his complaint since 2010.

REQUEST FOR PRODUCTION NO. 4:

A DOCUMENT, or set of DOCUMENTS, showing the exact nature of each formal and informal claim of discrimination, harassment, retaliation, or any inappropriate workplace behavior disclosed to defendants concerning any person who ever supervised plaintiff, Solomon Aflalo, including but not limited to named individual defendants.

REQUEST FOR PRODUCTION NO. 5:

A DOCUMENT, or set of DOCUMENTS, that indicate the name, address, and telephone number of each individual who made any formal or informal claim of discrimination, harassment, retaliation, or any inappropriate work place behavior disclosed to defendants concerning any person who ever supervised plaintiff, Solomon Aflalo, including but not limited to named individual defendants.

REQUEST FOR PRODUCTION NO. 6:

A DOCUMENT, or set of DOCUMENTS, that indicate(s) who, within the five-years preceding the termination of the of plaintiff Solomon Aflalo’s appointment/employment/contract/tenure, produced premiums in an amount similar to that produced by plaintiff.

REQUEST FOR PRODUCTION NO. 7:

All DOCUMENTS showing all efforts defendants made to avoid having to terminate the employment/contract/tenure of plaintiff, Solomon Aflalo.

REQUEST FOR PRODUCTION NO. 8:

All DOCUMENTS showing each and every effort defendants made to train plaintiff or to correct any premium sales deficiency from which plaintiff, Solomon Aflalo, allegedly suffered while working for/with entity defendants.

With respect to Request Nos. 1-5, defendant objects to these requests on the ground that the requests seek production of documents dating back to 2010 and encompassing claims nationwide. With respect to the geographical scope of the requests, as determined in a previously heard discovery motion, the Managing Underperforming Agents Program through which plaintiff’s employment was terminated was a nationwide program. (5/3/22 Minute Order at 5-6.) Accordingly, plaintiff is entitled to ascertain in discovery whether defendant had a company-wide policy of discrimination based on age, which would be evidenced with other instances of age discrimination by defendant. (Jones v. U.P.S., Inc. (10th Cir. 2007) 502 F.3d 1176, 1188 [“The initial inquiry in a pattern-or-practice case is whether unlawful discrimination is part of the employer’s ‘standard operating procedure[.]’….”].)

Defendant also objected based on privacy of the other complainants. The identities of potential “me too” witnesses are relevant to determine how defendant treated individuals who were similarly situated to plaintiff. (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 765, quoting Heyne v. Caruso (9th Cir.1995) 69 F.3d 1475, 1479 [“‘It is clear that an employer’s conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group’”].)

With respect to the right of privacy of the complainants, it cannot be assumed as a blanket proposition that “fellow employees would…want to conceal their contact information from plaintiffs asserting employment law violations[.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 553.) Further, “[d]isclosure of witnesses’ identities involves no greater invasion of privacy or revelation of personal information than the disclosure of their addresses and telephone numbers.” (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 969.) “[W]itnesses are [generally] not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1256-57.) Here, the privacy concerns of complainants are sufficiently addressed with the protective order entered in this action, which may limit the dissemination of the contact information with the designation of the information as “Confidential.” (See Puerto v. Superior Court (2008) 158 Cal.App.4th 1248, 1259.)

With respect to the temporal scope of the requests, however, Request Nos. 1-3 seek documents starting from 2010. Request Nos. 4 and 5 contain no temporal limitations but are limited based on persons who supervised plaintiff. Considering that the termination of plaintiff’s employment occurred in 2020 (TAC ¶¶ 22-24), instances of discrimination occurring 10 years earlier are not reasonably tailored toward ascertaining the motive and intent behind plaintiff’s termination. A period of 2015 to 2020 is more appropriate.

Further, with respect to Request Nos. 4 and 5, while the requests are limited to the persons who supervised plaintiff, they are not limited based on the same grounds brought by plaintiff in this action, like Request No. 3. Whether the persons who supervised plaintiff allegedly discriminated, harassed, or retaliated against others on other grounds not alleged by plaintiff is not probative of whether plaintiff was discriminated against or harassed based on age or retaliated against for reporting violations of laws.

With respect to defendant’s objections based on ambiguity, “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [Citation.] Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

Further responses to Request Nos. 1-5 are required. The documents to be produced shall be limited to a period from 2015 to 2020. With respect to Request Nos. 4 and 5, the documents to be produced shall be limited based on the same grounds brought by plaintiff in his Third Amended Complaint.

With respect to Request No. 6, this request is relevant to plaintiff’s allegations of disparate treatment. If defendant did not terminate the employment of persons who produced premiums similar to plaintiff, this would be probative of whether defendant terminated plaintiff because of age, not because plaintiff was underperforming. For the reasons stated with respect to Request No. 1-5, defendant’s objections based on privacy and ambiguity are without merit. However, defendant’s objections based on temporal scope are well taken for the reasons stated above. A further response to Request No. 6 is required. The documents to be produced shall be limited to a period from 2015 to 2020.

With respect to Request Nos. 7 and 8, defendant objects to these requests based on overbreadth as to time. Because the requests are connected to plaintiff’s purported underperformance and defendant’s stated reason for termination, the temporal scope is not unreasonable or limitless. The requests are not ambiguous. Further responses to Request Nos. 7 and 8 as written are required.

The motion is GRANTED IN PART. No later than fifteen (15) days hereof, defendant Farmers Group, Inc. is ordered to serve further verified responses, without objection, to Requests for Production of Documents, Set Two, Nos. 1-8 and produce responsive documents thereto as limited above.

With respect to plaintiff’s request for sanctions, although defendant’s objections based on temporal overbreadth were largely meritorious, defendant still opposed this motion without substantial justification overall. Defendant’s objections based on privacy, ambiguity, and geographic overbreadth were without merit.

For failing to comply with discovery obligations, thereby forcing plaintiff to file this motion, the Court imposes monetary sanctions against defendant Farmers Group, Inc. and counsel of record, jointly and severally, in the amount of $1,860. The monetary sanctions are based on 2.5 hours to draft the motion and 1.5 hours to prepare the reply and attend the hearing, all at an hourly rate of $450, plus a filing fee of $60.

Monetary sanctions shall be paid to counsel for plaintiff within thirty (30) days hereof.

II. PLAINTIFF SOLOMON AFLALO’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION, SET ONE

Plaintiff Solomon Aflalo moves to compel further responses from defendant Farmers Group, Inc. to Requests for Admission, Set One, Nos. 56-58, 65, 66, 68, 100, and 144, as set forth below:

REQUEST FOR ADMISSION NO. 56:

Admit that Jeff Dailey, CEO of Farmer’s Group Inc., identified “Agent behavior” as a “strategic driver” and “critical” to its strategy.

REQUEST FOR ADMISSION NO. 57:

Admit that in 2013, Jeff Dailey, CEO of Farmer’s Group Inc., identified “Agent behavior” as a “strategic driver” and “critical” to its strategy.

REQUEST FOR ADMISSION NO. 58:

Admit that in 2013, Jeff Dailey, CEO of Farmer’s Group Inc., explained to investors that Farmers had “retooled” its “performance management” tools for insurance agents such as Solomon Aflalo to align their conduct with Farmers’ new strategy.

REQUEST FOR ADMISSION NO. 65:

Admit that insurance agents such as plaintiff Solomon Aflalo were warned that while it would reward agents who adopted Farmers’ vision of how to run an agency and sell insurance, taking a different “path” would lead “to a decidedly different outcome”—a “D” ranking and likely termination.

REQUEST FOR ADMISSION NO. 66:

Admit that an exchange between high-level managers discusses identifying the “# of poor performers currently in market defined as Perennial D’s and/or agents under 500 PIF after 5 years,” and how Farmers Group Inc. is “likely to put into affect” the “[a]ggressive performance mgmt of poor performers.”

REQUEST FOR ADMISSION NO. 68:

Admit that in or around 2013, “Smart Office” was implemented and applicable to insurance agents such as plaintiff Solomon Aflalo.

REQUEST FOR ADMISSION NO. 100:

Admit that an “Agency District Specialist” consults with agents, such as plaintiff Solomon Aflalo, to implement action to remedy weaknesses Defendants available resources.

REQUEST FOR ADMISSION NO. 144:

Admit that Farmers Group Inc. creates and administers corporate policies that were binding on plaintiff Solomon Aflalo.

With respect to Request Nos. 56-58, defendant responded: “Following a reasonable inquiry concerning the matter in the particular request, the information known or readily obtainable by FGI, is insufficient to enable it to admit or deny the matter.” Plaintiff maintains that the responses are evasive because a document available on the Internet with the name of Jeff Dailey contains the identifications and explanations set forth in the requests. (Hale Decl. ¶ 9 & Ex. 9.) Considering that the document was dated December 5, 2013, almost ten years ago, and plaintiff did not aver to the context in which this document was disseminated, defendant is entitled to contend that, after a reasonable inquiry, it is unable to admit or deny that certain assertions were made by Dailey. No further responses to Request Nos 56-58 are required.

With respect to Request Nos. 65 and 66, defendant contends that the requests are vague and ambiguous because they do not specify when the statements were made, who made the statements, and that “insurance agents” and “high-level managers” were not defined in the respective requests. Request Nos. 65 and 66 are not vague or ambiguous as written. Defendant’s arguments go to lack of information or knowledge, which defendant may assert pursuant to CCP § 2023.220(b)(3) and (c). However, defendant may not assert objections to avoid providing a response that is compliant with CCP § 2033.220. Further responses to Request Nos. 65 and 66 are required.

With respect to Request No. 68, defendant contends that the request is vague and ambiguous because the entity or entities that implemented Smart Office or made Smart Office applicable to plaintiff were not identified. However, such identification is not required for defendant to provide a response that is compliant with CCP § 2033.220. A further response to Request No. 68 is required.

With respect to Request No. 100, while defendant may be able to answer whether an Agency District Specialist consults with agents, the phrase “to remedy weaknesses Defendants available resources” is vague and ambiguous. It is unclear to what defendant would be responding. No further response to Request No. 100 is required.

With respect to Request No. 144, defendant’s objections based on ambiguity are without merit. The request identifies defendant as the creator and administrator of the policies. No other information, including the date such policies were made binding, what the policies required, or how the policies became binding, is required to respond to the request. A further response to Request No. 144 is required.

Given the mixed result, plaintiff’s request for sanctions is DENIED.