Judge: Curtis A. Kin, Case: 22STCV04064, Date: 2022-12-29 Tentative Ruling

Case Number: 22STCV04064    Hearing Date: December 29, 2022    Dept: 72

MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORIES, SET TWO, NO. 6

Date:               12/29/22 (8:30 AM)

Case:               Lylonnie Correa v. W.K.S. Restaurant Corporation et al. (22STCV04064)

TENTATIVE RULING:

Plaintiff Lylonnie Correa’s Motion to Compel Further Response to Special Interrogatories, Set Two, No. 6 is GRANTED, subject to entry of a protective order, as discussed below.

Defendant W.K.S. Restaurant Corporation’s evidentiary objections are OVERRULED.

As a preliminary matter, the opposition was timely filed and served by electronic service on December 15, 2022, nine court days before the hearing. (CCP § 1005(b).) Oppositions shall be served in a manner “reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time” the opposition is filed. (CCP § 1005(c).) Electronic service under CCP § 1010.6 is a permissible method of service for an opposition. (Rule of Court 2.251(a).) Defendant was not required to add two court days to the opposition deadline. CCP § 1010.6(a)(4)(B) applies when the duty to make a response is governed by the service of a document. Here, the duty to oppose a motion is governed by the hearing date, not the service of any document. (Cf. CCP §§ 2030.260 [responses to interrogatories due 30 days after service of interrogatories]; 2030.300(c) [deadline to file motion to compel further response is 45 days of service of verified response].)

As another preliminary matter, even if plaintiff was required to log onto a third-party portal and download the opposition papers (Gerber Reply Decl. ¶ 4), use of a third-party portal is a permissible method of electronic service. “Electronic service” is the service of a document “by either electronic transmission or electronic notification.” (CCP § 1010.6(a)(1)(A).) “Electronic service may be performed…through an electronic filing service provider.” (Id.)

Plaintiff Lylonnie Correa moves to compel a further response from defendant W.K.S. Restaurant Corporation (“WKS”) to Special Interrogatories, Set Two, No. 6, which asks defendant to “[p]rovide the name and last known address of the employee identified by Osvaldo Rivas as Diana and working some of the same shifts with him and Plaintiff.”

WKS objected based on vagueness, relevance, and privacy.

With respect to vagueness, “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.) WKS admits that the instant motion was timely filed. (Trevethan Decl. ¶ 17 [stating that deadline to file motion was 12/9/22 and motion was filed 12/2/22.) Accordingly, WKS has the burden of justifying its objections. WKS makes no attempt to justify its objection based on vagueness. Instead, WKS improperly attempts to shift the burden to plaintiff. (Opp. at 11, fn. 2.) Accordingly, the objection based on vagueness is overruled.

With respect to relevance, during deposition, Rivas testified that he warned Diana, another cashier, about defendant Nathan Olivares. (Gerber Decl. Rivas Depo. at 128:19-25.) Rivas witnessed Olivares asking Diana out and flirting with her. (Id. at 27:2-9, 128:3-8.) Plaintiff alleges that she was subject to unwanted advances by Olivares. (Compl. ¶ 6.) Rivas’ testimony indicates that Diana may have also been subject to unwanted advances by Olivares.

The identities of potential “me too” witnesses are relevant to determine how defendant WKS handled complaints of sexual harassment against Olivares. (Johnson, 173 Cal.App.4th at 765, quoting Heyne v. Caruso (9th Cir.1995) 69 F.3d 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’”].) Despite WKS’ disagreement regarding what information Diana may be able to provide, plaintiff is entitled to conduct nonparty discovery relating to her claims in this action. (Compl. ¶¶ 17, 19, 20; CCP § 2017.010; Trevethan Decl. ¶ 16 [stating Diana is a former WKS employee].) The objection based on relevance is overruled.

With respect to privacy, WKS is amenable to providing the information requested in Special Interrogatory No. 6, but subject to a protective order. (Gerber Decl. Ex. 1 at Response to No. 6 [“Defendant is willing to meet and confer with Plaintiff regarding this Interrogatory and, if necessary, entering into a protective order”].)

Contact information about witnesses is an essential part of pretrial discovery. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-50.) However, “home contact information is generally considered private.” (County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 927; see also Puerto, 158 Cal.App.4th at 1252 [“[C]urrent and former employees unquestionably have a legitimate expectation of privacy in their addresses and telephone numbers”].)

“If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” (Puerto, 158 Cal.App.4th at 1251.)

Here, the privacy concern is sufficiently addressed with the type of protective order that WKS proposes. (Trevethan Decl. ¶ 12 & Ex. 9 at ¶ 3 [setting forth persons to whom materials designated as “confidential” can be disclosed].) According to Puerto, the case upon which plaintiff relies, trial courts may enter protective orders “limiting the dissemination of the witnesses’ contact information.” (Puerto, 158 Cal.App.4th at 1259.) “Certainly the trial court may require that the information be kept confidential by the petitioners and not be disclosed except to their agents as needed in the course of investigating and pursuing the litigation.” (Ibid.) With a protective order, plaintiff will still obtain the information she seeks. The balance of interests weighs in favor of a protective order.

The motion is GRANTED, subject to a protective order limiting the dissemination of Diana’s last known address. Plaintiff Lylonnie Correa and defendant W.K.S. Restaurant Corporation are ordered to meet and confer regarding a protective order. No later than ten (10) days after the Court has entered the parties’ proposed protective order, defendant W.K.S. Restaurant Corporation shall serve a further response to Special Interrogatories, Set Two, No. 2 propounded by plaintiff Lylonnie Correa.

WKS requests the imposition of $6,237.00 in monetary sanctions against plaintiff. Before and after the filing of this motion, WKS attempted to meet and confer with plaintiff regarding entry of a protective order. (Trevethan Decl. ¶¶ 9, 11, 12, 13 & Exs. 6, 8, 9, 10.) Plaintiff unjustifiably rejected these efforts. (Id. ¶ 10 & Ex. 7.) Plaintiff also impermissibly and unreasonably attempted to restrict WKS’ meet and confer efforts to U.S. mail, which would only hinder any prospects of informal resolution. (Id. ¶ 15 & Ex. 12.) Plaintiff’s assertions of untimely service and improper electronic service of the opposition are also without merit.

Nevertheless, because plaintiff will obtain the information she seeks, albeit with the entry of a protective order, and because WKS maintained its objections based on vagueness and relevance without merit, it cannot be said that plaintiff unsuccessfully made this motion. (CCP § 2030.300(d).) WKS’ request for sanctions is DENIED.