Judge: Daniel S. Murphy, Case: 23STCV09530, Date: 2023-11-22 Tentative Ruling

Case Number: 23STCV09530    Hearing Date: March 8, 2024    Dept: 32

BACKGROUND

            On April 28, 2023, Plaintiffs Lexi Burrows and Brooklynn Lundberg filed this employment action against Defendants Touchstone Golf, LLC, Ashley Walston, Peter Wagner, and the City of Burbank. Plaintiffs assert claims stemming from harassment, discrimination and retaliation, wrongful termination, and wage violations. Plaintiffs allege that they experienced and spoke out against sexual harassment and discrimination, and reported illegal or unsafe working conditions, only to suffer retaliation for doing so.  

            On November 22, 2023, the Court granted Plaintiffs’ motions to compel Touchstone Golf to produce further responses as to requests for production, interrogatories, and requests for admission.

            On February 2, 2024, Plaintiffs filed the instant motion for issue, evidentiary, and monetary sanctions on the grounds that Defendant Touchstone violated the Court’s order. Defendant filed its opposition on February 26, 2024, with notice of errata on February 27, 2024. Plaintiffs filed their reply on March 1, 2024.

LEGAL STANDARD

The Court may impose monetary or nonmonetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030.) Misuse of the discovery process is defined as, among other things, failing to respond to an authorized method of discovery, making an evasive response to discovery, or disobeying a court order for discovery. (Id., § 2023.010.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

“The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.) Generally, two facts are prerequisite to the imposition of nonmonetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Abuse of discovery may additionally be treated as a contempt of court. (Code Civ. Proc., § 2023.030(e).)

DISCUSSION

            The Court ordered responses within 15 days, which meant by December 7, 2023. Defendant did not serve supplemental responses until December 11, 2023, which is a minor delay. The Court does not find this to be a willful violation. (See Mackey Decl.) Additionally, the recent substitution of defense counsel and his medical issues constitute substantial justification. (See Vogel Decl.) Under these facts, the requested sanctions would be disproportionate, in particular the issue and evidentiary sanctions which would effectively preclude Defendant from contesting the harassment claim. Therefore, Plaintiffs’ request for sanctions is denied.

            However, Defendant shall produce supplemental responses in accordance with the Court’s order. The record indicates that the parties conferred after Defendant’s December 11 production, and defense counsel stated that Defendant was in the process of supplementing responses and producing documents. (Schein Decl., Ex. 20.) This suggests that Defendant has not finished supplementing its responses despite the December 11 production. It should also be noted that Defendant’s objections based on arbitration, vagueness, privilege, and privacy were deemed meritless. (See Nov. 22, 2023 Order re Mtn. to Compel 2:8-3:7.) If Defendant has a valid privilege objection, it must provide a privilege log with sufficient information to ascertain the merits of the privilege. (See Code Civ. Proc., § 2031.240(c)(1).) Defendant must also produce documents to the extent that it responded to the RFPs with statements of compliance.

CONCLUSION

            Plaintiffs’ motion for sanctions is DENIED. Defendant Touchstone Golf, LLC shall provide supplemental responses in accordance with the Court’s November 22, 2023 order within 10 days.

BACKGROUND

            On April 28, 2023, Plaintiffs Lexi Burrows and Brooklynn Lundberg filed this employment action against Defendants Touchstone Golf, LLC, Ashley Walston, Peter Wagner, and the City of Burbank. Plaintiffs assert claims stemming from harassment, discrimination and retaliation, wrongful termination, and wage violations. Plaintiffs allege that they experienced and spoke out against sexual harassment and discrimination, and reported illegal or unsafe working conditions, only to suffer retaliation for doing so. 

            On January 19, 2024, Plaintiffs filed the instant four motions against Defendant City of Burbank (COB) to compel further responses to requests for production, interrogatories, and requests for admission. Defendant filed its oppositions on February 26, 2024. Plaintiffs filed their replies on March 1, 2024.   

LEGAL STANDARD

Upon receiving responses to its discovery requests, the propounding party may move for an order compelling further responses if the responses are incomplete or evasive, or objections are without merit or too general. (Code Civ. Proc., §§ 2030.300(a), 2031.310(a), 2033.290(a).)

MEET AND CONFER

A motion to compel further must be accompanied by a meet and confer declaration demonstrating an attempt to resolve the matter informally. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b), 2033.290(b).) The Court finds that Plaintiffs have satisfied the meet and confer requirement. (See Schein Decl.)

DISCUSSION

            Defendant COB primarily contends that it does not have responsive information because it was not Plaintiffs’ employer. COB denies Plaintiffs’ joint employer allegation. However, the merits of that allegation cannot be litigated in these discovery motions. COB must simply provide responsive information to the extent that it possesses such, and provide code-compliant statements of inability to comply if not. Plaintiffs’ insistence that COB was a joint employer does not compel COB to produce information that it does not have, but COB also cannot withhold responsive information by simply claiming that it was not the employer. The bare statement that COB was not the employer is not a responsive answer to the subject discovery requests.

            COB also argues that Plaintiffs propounded over 35 special interrogatories and requests for admission without the proper supporting declaration. (See Code Civ. Proc., §§ 2030.030(b), 2033.030(a).) The SROGs were supported by a sufficient declaration (See Schein Decl., Ex. 1.) The RFAs were not, but COB failed to timely object to the balance of the RFAs. (See id., ¶ 3 [COB did not respond to RFAs within 30 days].) Code of Civil Procedure section 2033.030(b) states that a responding party only needs to answer the first 35 RFAs “if that party states an objection to the balance under Section 2033.230 on the ground that the limit has been exceeded.” Because a failure to timely respond results in waiver of objections (Code Civ. Proc., § 2033.280(a)), COB essentially did not object to the RFAs as being excessive.   

In sum, further responses are required for the subject discovery requests. 

CONCLUSION

            Plaintiffs’ motions to compel further responses are GRANTED. Defendant City of Burbank shall provide supplemental responses to the subject discovery within 15 days. Sanctions are denied as the parties acted with substantial justification. 

BACKGROUND

            On April 28, 2023, Plaintiffs Lexi
Burrows and Brooklynn Lundberg filed this employment action against Defendants
Touchstone Golf, LLC, Ashley Walston, Peter Wagner, and the City of Burbank.
Plaintiffs assert claims stemming from harassment, discrimination and
retaliation, wrongful termination, and wage violations. Plaintiffs allege that
they experienced and spoke out against sexual harassment and discrimination,
and reported illegal or unsafe working conditions, only to suffer retaliation
for doing so.

            On February 9, 2024, Defendants
Touchstone Golf, LLC and City of Burbank filed the instant motion to compel
arbitration. Plaintiffs filed their opposition on February 26, 2024. Defendants
filed their reply on March 1, 2024.

EVIDENTIARY
OBJECTIONS

Plaintiffs’
Objections:

• Plaintiffs’ objections to the Kearney
  Declaration are overruled. The remaining objections are not pertinent to
  the Court’s ruling on the motion.

Defendants’
Objections:

• Objection Nos. 3-7 to the Burrows
  Declaration are overruled. Objection Nos. 2-8 to the Lundberg Declaration
  are overruled. The remaining objections are not pertinent to the Court’s
  ruling on the motion.

LEGAL STANDARD

“On petition of a party to an arbitration
agreement alleging the existence of a written agreement to arbitrate a
controversy and that a party to the agreement refuses to arbitrate that
controversy, the court shall order the petitioner and the respondent to
arbitrate the controversy if it determines that an agreement to arbitrate the
controversy exists….” (Code Civ. Proc, § 1281.2.) “The party seeking
arbitration bears the burden of proving the existence of an arbitration
agreement, and the party opposing arbitration bears the burden of proving any
defense, such as unconscionability.” (Pinnacle Museum Tower Assn. v.
Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

DISCUSSION

I.
The Documents at Issue

Defendants rely on several acknowledgments
purportedly signed by Plaintiffs. First, Plaintiffs’ electronic signatures
appear on an acknowledgment providing that their employment was “subject to the
terms and conditions set forth in our Employee Handbook, a copy of which will
be provided to you, as well as compliance with all Touchstone policies and
procedures.” (Kearney Decl., Ex. 3, 13.) The acknowledgment further provides
that “as a term and condition of employment, you agree to execute an agreement
to binding arbitration of any dispute arising from your employment with
Touchstone Golf, the terms of which are set forth in a separate Agreement to
Arbitrate Employment Disputes.” (Ibid.) Plaintiffs’ electronic
signatures additionally appear on an acknowledgment stating that “I have
received and read a copy of the Co-Worker Handbook and its policies. I agree
that the Handbook and its policies apply to and govern my employment with
Touchstone Golf.” (Id., Ex. 5, 14.)  

The referenced Co-Worker Handbook
(December 2015 version) contains an arbitration provision on page 26 of 30,
stating that “[a]ll Co-Workers are required to sign an agreement to arbitrate
their employment disputes as a condition of employment with Touchstone Golf.”
(Kearney Decl., Ex. 1.) Pages 28 and 30 contain the separate arbitration
agreement, which is unsigned. (Ibid.) The revised Co-Worker Handbook of
April 2022 similarly contains an arbitration provision on page 31 of 35,
stating that “[a]ll Co-Workers will be asked to sign an agreement to arbitrate
their employment disputes with Touchstone Golf.” (Id., Ex. 2.) Once
again, the attached arbitration agreement is unsigned. (Ibid.)

II.
Whether the Acknowledgments Created Binding Agreements to Arbitrate

Courts have found “no agreement to
arbitrate [where] language in the handbook or acknowledgment forms . . .
indicated that the handbook was intended to be informational, not contractual;
could be changed by the employer at any time; or did not create a contract of
employment.” (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th
748, 784.) An arbitration clause in a handbook is not an enforceable agreement
to arbitrate where it is “not prominently distinguished from the other clauses
. . . not specifically highlighted, and there is no place for the employee to
acknowledge it in writing.” (Sparks v. Vista Del Mar Child & Family
Services (2012) 207 Cal.App.4th 1511, 1519.) The right to a judicial forum
cannot be waived “based on one obscure clause in a large employee handbook
distributed to new employees for informational purposes.” (Id. at p.
1522.)

Here, the 2015 and 2022 Co-Worker
Handbooks were presented as informational rather than contractual. (See Kearney
Decl., Ex 1, 2 [“This Co-worker handbook has been developed to describe some of
our expectations and to outline some of our important policies, programs and
benefits available to Co-workers”].) The employer, Touchstone, also had the
authority to change the policies at any time. (Ibid. [“we may need, and
reserve the right, to revise, supplement or rescind any policies or portions of
this Handbook from time to time as we deem appropriate”].) The arbitration clause
in each handbook appears toward the end and is not distinguished from the other
provisions. (Ibid.)

Most notably, both versions of the
handbook, as well as the acknowledgments with Plaintiffs’ alleged signatures,
all refer to a separate arbitration agreement. Defendants concede that
Plaintiffs did not sign a separate arbitration agreement, and Defendants’
evidence shows that the separate arbitration agreements were unsigned. Plaintiffs’
acknowledgment that they will execute an agreement to arbitrate in the future
is not an agreement to arbitrate in and of itself. If the acknowledgment itself
constituted the agreement to arbitrate, it would have said so instead of
referencing a standalone arbitration agreement to be executed separately.
Clearly, the parties “contemplated that the arbitration of disputes provision
would be effective only if both parties assented to that particular provision.”
(Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1160.) “Since
the parties did not assent to this particular provision the parties did not
agree to binding arbitration.” (Ibid.)

It is not dispositive that Plaintiffs
acknowledged receiving and agreeing to be bound by the policies in the
handbook. “Merely agreeing to abide by all applicable rules and policies and to
‘read, observe and abide by’ the contents of the Handbook that ‘is designed for
quick reference and general information’ does not constitute a contract and
does not bind the employee to arbitration.” (Mendoza, supra, 75
Cal.App.5th at p. 786.) This is especially so where, as here, “the employee
handbook's arbitration provision only placed plaintiffs on notice that they would
be called upon to sign a separate binding arbitration agreement,” but the
plaintiffs did not actually sign the separate arbitration agreement. (Mitri
v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1171.) Defendants cite
to Mitri but erroneously conclude that it stands for their position.
Instead, the court in Mitri found the employer’s argument to be “completely
undermine[d]” by the handbook’s reference to a standalone arbitration
agreement. (Id. at pp. 1170-71.)

Like in Mitri, the handbook and
acknowledgments here state that Plaintiffs “agree to execute an
agreement to binding arbitration . . . the terms of which are set forth in a separate
Agreement to Arbitrate,” or that Plaintiffs “will be asked to sign
an agreement to arbitrate.” (Kearney Decl., Ex. 2, 3, 13.) These provisions
merely show that Plaintiffs “would be called upon” to sign a separate
arbitration agreement, not that Plaintiffs actually agreed to arbitration. Because
it is undisputed that Plaintiffs did not sign the separate arbitration
agreement, there is no agreement to arbitrate according to Defendants’ own caselaw.

Therefore, even assuming Defendants could
authenticate Plaintiffs’ signatures, those signatures do not represent
Plaintiffs’ agreement to arbitrate. Although the law favors arbitration, it
does not require arbitration where no agreement to arbitrate exists. (Lopez
v. Charles Schwab & Co., Inc. (2004) 118 Cal.App.4th 1224, 1229.)

CONCLUSION

            Defendants’ motion to compel
arbitration is DENIED.