Judge: Curtis A. Kin, Case: 22STCV04064, Date: 2023-02-28 Tentative Ruling

Case Number: 22STCV04064    Hearing Date: February 28, 2023    Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

Date:               2/28/23 (8:30 AM)

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

TENTATIVE RULING:

Defendant W.K.S. Restaurant Corporation’s Motion to Compel Further Responses to Request for Production, Set One is GRANTED IN PART.

Defendant W.K.S. Restaurant Corporation (“WKS”) moves to compel plaintiff Lylonnie Correa to: (1) verify the fourth amended responses to WKS’s Request for Production, Set One; (2) serve verified, supplemental responses to Request Nos. 3-7, 10, 12-17, 19, 21, and 22; and (3) produce all responsive documents within her possession, custody, or control.

With respect to the verification, plaintiff indicates in the opposition that she would like to stand on her third amended responses, which were verified. (See Trevethan Decl. ¶ 16 & Ex. 13.) Plaintiff is entitled to withdraw her fourth amended responses. The Code of Civil Procedure only requires at least one response under oath unless the response contains only an objection. (CCP § 2031.250(a), (c).) Because the third amended responses contain substantive responses, plaintiff was and did verify the responses. Accordingly, the discussion of the adequacy of the responses is based on the third amended responses.

With respect to the adequacy of the responses, for Nos. 3, 4, 6, 10, 12, and 14-16, plaintiff stated that she fully complied by producing all documents within her care, custody, control, or possession.” These responses comply with CCP § 2031.220, which states: “A statement that the party to whom a demand for inspection…has been directed will comply with the particular demand shall state that the production…will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” Plaintiff essentially responds that she complied “in whole” and that, despite her objections, she produced all the documents in her possession custody, or control. Further, plaintiff also indicated the Bates stamp numbers of the documents that are responsive, which complies with CCP § 2031.280. (CCP § 2031.280(a) [“Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond”].)

With respect to WKS’s request to compel plaintiff to produce all responsive documents within her possession, custody, or control, no such order is necessary, because that is already required by CCP § 2031.220. If WKS unearths evidence that plaintiff intentionally withheld responsive documents, WKS may seek any relief to which it believes it is entitled at that time, including a jury instruction for willful suppression of evidence and/or other appropriate sanction(s).

For the foregoing reasons, no further responses are required for Request Nos. 3, 4, 6, 10, 12, and 14-16.

With respect to No. 7, which asks for documents reflecting plaintiff’s efforts to obtain employment since the end of plaintiff’s employment with WKS, plaintiff indicated that “after making reasonable inquiries and diligent searches she was unable to locate such documents in her care, custody, control, or possession and believes they are misplaced, lost or destroyed.” This response complies with CCP § 2031.230, which states: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” Plaintiff’s responses indicate that she made a diligent search and reasonable inquiry. Plaintiff indicates she cannot comply because responsive documents were misplaced, lost, or destroyed. No further response is required for No. 7.

With respect to No. 13, which asks for documents that refer to emotional distress for which plaintiff sought treatment, plaintiff responded that, notwithstanding her objections, “after making diligent searches and reasonable inquiries Plaintiff is unable to locate any responsive documents. She has not had responsive documents within her care, custody, control, or possession and is unaware of their existence.” This response complies with CCP § 2031.230. Plaintiff’s responses indicate that she made a diligent search and reasonable inquiry. By indicating that she is unaware of the existence of responsive documents, plaintiff indicates that, based on her knowledge, the documents have never existed and that she does know the name of any natural person or organization who has possession, custody, or control of responsive documents. No further response is required for No. 13.

With respect to No. 17, which ask for emails and text messages referring to plaintiff’s termination of employment, plaintiff responded that, “[a]fter making diligent searches and reasonable inquiries Plaintiff realizes she does not have the letter in which she quits (broadly construing this demand to include constructive discharge) within her care, custody, control, or possession. It must be lost or misplaced.” This response complies with CCP § 2031.230. Plaintiff indicated that she conducted a diligent search and reasonable inquiry for responsive documents but cannot comply because the documents are lost or misplaced. No further response is required for No. 17.

With respect to No. 19, which asks for communications between her and defendant Nathan Olivares, plaintiff indicated that, “[a]fter making reasonable inquiries and diligent searches Plaintiff is unable to locate any responsive documents within her care, custody, control, or possession…. Plaintiff never had any, and is uncertain what documents would exist.” This response complies with CCP § 2031.230. Plaintiff indicated that she conducted a diligent search and reasonable inquiry for responsive documents but cannot comply because the documents have never been in her possession, custody, or control. No further response is required for No. 19.

With respect to Nos. 21 and 22, which ask for communications between plaintiff and any of defendant’s officers, directors, managers, supervisors, or employees regarding defendant Olivares (No. 21) and inappropriate conduct in the workplace (No. 22), plaintiff responded: “After making reasonable inquiries and diligent searches Plaintiff is unable to locate any responsive documents within her care, custody, control, or possession.” These responses do not comply with CCP § 2031.230 because plaintiff does not state the reason why she cannot comply, including whether responsive documents “ha[ve] never existed, ha[ve] been destroyed, ha[ve] been lost, misplaced, or stolen, or ha[ve] never been, or is no longer, in the possession, custody, or control of the responding party.” Further responses are required for Nos. 21 and 22.

Plaintiff objected to No. 5, which seeks “All DOCUMENTS that evidence or reflect any compensation or money YOU earned from any source other than DEFENDANT in the last 3 years.” This request implicates plaintiff’s right to financial privacy. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, ¶ 8:303, citing Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550 [“A right of privacy exists as to a party's confidential financial affairs, even when the information sought is admittedly relevant to the litigation”].) However, “the constitutional right to privacy is not absolute. [Citations.] It may be outweighed by supervening concerns. [Citation.]” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933.) “When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery. [Citations.]” (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.)

Here, plaintiff alleges that she suffered “substantial losses in salary, bonuses, job benefits, and other employment benefits Plaintiff would have received” as a result of defendants’ conduct. (Compl. ¶¶ 30, 35.) Plaintiff maintains that she stipulated that she is not seeking lost wages in this action. (Trevethan Decl. ¶ 15 & Ex. 12 at 54:20-25.) However, during deposition, immediately after the stipulation, counsel for plaintiff stated that the stipulation “may not be correct” because he needed to confer with plaintiff on “whether there’s a claim for damages until she found a new job or not.” (Trevethan Decl. ¶ 15 & Ex. 12 at 4-7.) Accordingly, it is unclear whether plaintiff intends to assert a lost wages claim.

Plaintiff indicated that she was not “producing all documents from subsequent employment because it exceeds the scope of discovery being that she does not have a future lost wage claim.” Typically, the rule of mitigation of damages comes into play when the event producing injury or damage has already occurred and it then has become the obligation of the injured or damaged party to avoid continuing or enhanced damages through reasonable efforts.” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.) Because the Complaint, and the assertion of financial losses therein, remain operative, WKS is entitled to conduct discovery regarding the extent to which plaintiff is mitigating damages with employment after she worked for WKS. A further response to No. 5 with respect to subsequent employment is required.

The motion is GRANTED IN PART. Within fifteen (15) days hereof, plaintiff Lylonnie Correa is ordered to serve further, verified responses, without objection, to Request for Production, Set One, Nos. 5, 21, and 22 and serve responsive documents to Request No. 5 concerning subsequent employment.

Given the mixed result, all requests for monetary sanctions are DENIED.