Judge: Daniel M. Crowley, Case: 21STCV00694, Date: 2023-08-04 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff  via the Department's email: SMCdept71@lacourt.org before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Case Number: 21STCV00694    Hearing Date: August 18, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Anthony Eugene Talbert’s motion to compel further responses to Plaintiff’s Request for Production (Set Four) Nos. 3, 7, 9, 10, and 18, for a privilege log, and for verifications by Defendant Beverly Hills Unified School District is granted.

Plaintiff’s motion to compel further responses to Plaintiff’s RFP No. 8 is granted in part only as to as to all documents produced/served in discovery in Anderson v. BHUSD (Case No. 20STCV0496) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to Michael Bregy and/or Don Blake, and otherwise denied.

Plaintiff Anthony Eugene Talbert’s (“Talbert”) (“Plaintiff”) moves to compel further responses from Defendant Beverly Hills Unified School District (“BHUSD”) (“Defendant”) to Plaintiff’s Request for Production (Set Four) Nos. 3, 7-10, 18, for a privilege log, and for verifications.  (Notice Motion, pg. 2; C.C.P. §§2031.310 et seq.)

          Background

On January 8, 2021, Plaintiff filed his operative complaint against Defendant alleging four causes of action: (1) violation of Labor Code §§1102.5 et seq.; (2) retaliation in violation of FEHA; (3) racial discrimination in violation of FEHA; and (4) failure to prevent and/or remedy discrimination and/or retaliation arising from his employment termination in April 2020.  (See Complaint ¶43.)  Plaintiff served its RFP on Defendant on January 25, 2023.  On February 28, 2023, Defendant served its RFP responses.

          Plaintiff filed the instant motion on April 14, 2023.  Defendant filed its opposition on August 7, 2023.  Plaintiff filed his reply on August 11, 2023.

Meet and Confer

Plaintiff’s counsel declares he sent Defendant’s counsel meet and confer letters on March 10, 2023, and April 4, 2023, but does not state the outcome of such efforts to meet and confer.  (Decl. of Yoon ¶¶ 4-5, Exhs. C-D; C.C.P §2031.310(b)(2).)  However, Plaintiff filed an IDC statement on July 28, 2023, and Defendant filed a response to Plaintiff’s IDC statement on July 31, 2023.  While Plaintiff failed to submit a substantive meet and confer declaration, Plaintiff has demonstrated a reasonable and good faith attempt to resolve discovery issues outside of court.  (C.C.P. §§2016.040, 2031.310(b)(2).)

Motion to Compel Further

Legal Standard

A motion to compel further must “set forth specific facts showing good
cause and justifying the discovery sought by the inspection demand.”  (C.C.P. §2031.310(b)(1).)  Plaintiff has the burden to: (1) demonstrate good cause; and (2) set forth specific facts justifying the discovery of the documents requested.  (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)  An absence of specific facts relating to each category of materials sought to be produced, or mere generalities offered as justification for production, fails to justify compelling
the production of documents.  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

RFP No. 3

Defendant agreed to provide a Code-compliant supplemental response to this request.  However, Plaintiff’s reply indicates Defendant has not provided a supplemental response in accordance with parties’ agreement made at the IDC. Therefore, Plaintiff’s motion to compel further responses to RFP No. 3 is granted.

RFP Nos. 7-8

RFP No. 7 requests Defendant produce the following: “All DOCUMENTS produced/served in discovery in Anderson v. BHUSD (Case No. 20STCV0496) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to FEHA discrimination/retaliation, including any concerns about race and national origin discrimination/retaliation.”  (Motion SS, pg. 3.)

RFP No. 8 requests Defendant produce the following: “All DOCUMENTS produced/served in discovery in Anderson v. BHUSD (Case No. 20STCV0496) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to Luke Pavone, Michael Bregy, and/or Don Blake.”  (Motion SS, pg. 6.)

Defendant initially objected to the responses as irrelevant; not reasonably calculated’ assuming facts not in evidence and lacking foundation; calling for speculation, expert opinion, and/or legal conclusions; vague and ambiguous; overbroad in time and scope and therefore burdensome, oppressive, and harassing; and violating attorney client privilege, attorney work product, and/or privacy rights of third parties.  (Motion SS, pg. 3.)

Plaintiff has met his burden to set forth specific facts showing good cause justifying the discovery sought by the demands as to RFP Nos. 7 and 8, with the exception of concerns/complaints relating to Luke Pavone in RFP No. 8.  (Kirkland, 95 Cal.App.4th at pg. 98.)  Here, Plaintiff established that on February 6, 2020, Chris Anderson filed a Complaint against BHUSD (20STCV04986) for (1) Race Discrimination (FEHA); (2) Failure to Prevent Race Discrimination (FEHA); (3) Retaliation for Reporting and Opposing Discrimination (FEHA); (4) Failure to Provide Reasonable Accommodations (FEHA); (5) Failure to Engage in the Interactive Process (FEHA); (6) Disability Discrimination (FEHA), alleging that his layoff was pretextual based on the announcement made by Dr. Bregy.  (Reply Decl. of Yoon ¶4, Exh. J at ¶8).  The deposition of Jason Mikesell (“Mikesell”) further supports Plaintiff’s request based on his communications with Don Blake, specifically Mikesell’s testimony that Blake said he was going to get rid of Plaintiff, Gino Garcia, and the union security (Anderson was a Senior Security Officer).  (Reply Decl. Yoon ¶6, Exh. L at 43:23-44:8.)  Mikesell’s deposition also states Blake used racial slurs to refer to Plaintiff and other BHUSD employees.  (Reply Decl. Yoon ¶6, Exh. L at 26:23-27:9, 27:24-28:2, 40:11-41:1, 54:12-17.)

Plaintiff has not demonstrated good cause to request all documents produced/served in discovery in Anderson v. BHUSD by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to Luke Pavoné in RFP No. 8.

The discovery requests relating to sought are similar to those sought in Johnson v. United Cerebral Palsy (2009) 173 Cal.App.4th 740, 759-767, in which the Court of Appeal upheld the admission of discriminatory experiences with the same employer, at the same facility, but with different supervisors.  Defendant’s argument that Plaintiff should not be able to obtain the discovery documents in the Anderson lawsuit on the basis of privilege is unavailing, as the records at issue pertain to discrimination and retaliation and are related to lawsuits in the public record.  Should issues of attorney-client privilege or the privacy rights of third parties arise, Defendants can provide a privilege log pursuant to C.C.P. §2031.240.

          Further, Defendant has not demonstrated that the work required to answer Plaintiff’s request is so oppressive and the utility of the information sought it so minimal that it would defeat the ends of justice to require the responses.  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.)

          Accordingly, Plaintiff’s request for further responses to RFP No. 7 is granted.  Plaintiff’s request for further responses to RFP No. 8 is granted only as to all documents produced/served in discovery in Anderson v. BHUSD (Case No. 20STCV0496) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to Michael Bregy and/or Don Blake. 

RFP Nos. 9-10

RFP No. 9 requests Defendant produce the following: “All DOCUMENTS produced/served in discovery in Garcia v. BHUSD (Case No. 21STCV19781) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to FEHA retaliation/discrimination, including any concerns about race and national origin discrimination/retaliation.”  (Motion SS, pgs. 9-10.)

RFP No. 10 requests Defendant produce the following: “All DOCUMENTS produced/served in discovery in Garcia v. BHUSD (Case No. 21STCV19781) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to Luke Pavone, Michael Bregy, and/or Don Blake.”  (Motion SS, pg. 13.)

Defendant initially objected to the responses as irrelevant; not reasonably calculated’ assuming facts not in evidence and lacking foundation; calling for speculation, expert opinion, and/or legal conclusions; vague and ambiguous; overbroad in time and scope and therefore burdensome, oppressive, and harassing; and violating attorney client privilege, attorney work product, and/or privacy rights of third parties.  (Motion SS, pg. 10.)

Plaintiff has met his burden to set forth specific facts showing good cause justifying the discovery sought by RFP Nos. 9 and 10.  (Kirkland, 95 Cal.App.4th at pg. 98.)  Here, Plaintiff established that on May 26, 2021, Gino Garcia filed a Complaint against BHUSD (21STCV19781). The FAC filed a few months later alleged (1) Discrimination (FEHA); (2) Harassment (FEHA); (3) Retaliation (FEHA); (4) Failure to Provide Reasonable Accommodations (FEHA); (5) Failure to Engage in the Interactive Process; (6) Failure to Prevent Discrimination, Harassment (FEHA); (7) Negligent Hiring; (8) Violation of Labor Code section 1102.5; (9) IIED; (10) Violation of CFRA; (11) Retaliation in Violation of CFRA, in which Garcia complained of retaliation for his whistleblower activities of reporting problems with BHUSD’s fire safety systems, which were out of compliance. These allegations were directed to Dr. Bregy and Mr. Pavoné.  (Reply Decl. of Yoon ¶5, Exh. K at ¶¶23-27.)  The deposition of Mikesell further supports Plaintiff’s request based on his communications with Don Blake, specifically Mikesell’s testimony that Blake said he was going to get rid of Plaintiff, Garcia, and the union security.  (Reply Decl. Yoon ¶6, Exh. L at 43:23-44:8.)  Mikesell’s deposition also states Blake used racial slurs to refer to Plaintiff and other BHUSD employees.  (Reply Decl. Yoon ¶6, Exh. L at 26:23-27:9, 27:24-28:2, 40:11-41:1, 54:12-17.)

The discovery requests relating to sought are similar to those sought in Johnson, in which the Court of Appeal upheld the admission of discriminatory experiences with the same employer, at the same facility, but with different supervisors.  Defendant’s argument that Plaintiff should not be able to obtain the discovery documents in the Anderson lawsuit on the basis of privilege is unavailing, as the records at issue pertain to discrimination and retaliation and are related to lawsuits in the public record.  Should issues of attorney-client privilege or the privacy rights of third parties arise, Defendants can provide a privilege log pursuant to C.C.P. §2031.240.

          Further, Defendant has not demonstrated that the work required to answer Plaintiff’s request is so oppressive and the utility of the information sought it so minimal that it would defeat the ends of justice to require the responses.  (West Pico Furniture Co., 56 Cal.2d at pg. 418.)

          Accordingly, Plaintiff’s requests for further responses to RFP Nos. 9 and 10 are granted.

RFP No. 18

Defendant agreed to provide a Code-compliant supplemental response to this request.  However, Plaintiff’s reply indicates Defendant has not provided a supplemental response. Therefore, Plaintiff’s motion to compel further responses to RFP No. 18 is granted.

Conclusion

Plaintiff’s motion to compel further responses to Plaintiff’s RFP Nos. 3, 7, 9, 10, and 18, a privilege log, and verifications from Defendant is granted.

Plaintiff’s motion to compel further responses to Plaintiff’s RFP No. 8 is granted in part only as to as to all documents produced/served in discovery in Anderson v. BHUSD (Case No. 20STCV0496) by both parties relating to, supporting, refuting, discussing, mentioning any concerns/complaints relating to Michael Bregy and/or Don Blake, and otherwise denied.

Moving party to give notice.

Dated:  August _____, 2023